P.M. and Department of the Air Force, Hill Air Force Base, UT (Board decision, January 25, 2010)

ECAB final decision. The Board affirmed OWCP's January 26, 2009 decision accepting P.M.'s work related hearing loss but finding no ratable impairment for a schedule award. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to this appeal 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

P.M., a retired Air Force quality assurance specialist, had an accepted claim for hearing loss related to workplace noise. OWCP authorized medical benefits but denied a schedule award after its medical adviser found no ratable impairment in either ear. The Board agreed with the calculation from the January 2009 hearing test. It recognized greater high frequency loss in the left ear, but found that neither ear reached the rating threshold. No medical report supported P.M.'s tinnitus claim, and the Board found no basis for an additional tinnitus rating without measurable hearing loss.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404.
• Outcome: January 26, 2009 decision affirmed; medical benefits allowed, but no schedule award for hearing impairment.
• Key point: Work related hearing loss may qualify for medical care without reaching the impairment level required for a schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.M., Appellant
)
)
and ) Docket No. 09-1418
) Issued: January 25, 2010
DEPARTMENT OF THE AIR FORCE, HILL
)
AIR FORCE BASE, UT, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 18, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation Programs’ merit decision dated January 26, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUE

The issue is whether appellant has a ratable hearing loss entitling him to a schedule award.

FACTUAL HISTORY

On May 15, 2008 appellant, then a 55-year-old quality assurance specialist, filed an occupational disease claim alleging that he developed binaural hearing loss due to exposure to noise in the performance of duty. He stated that he first realized he had hearing loss in 1996 and first related the loss to his employment in 2003. Appellant retired on May 13, 2008.

In a letter dated May 21, 2008, the Office requested additional factual and medical evidence from appellant and the employing establishment and allowed 30 days for a response. The employing establishment responded that appellant had worked in environments that produce hazardous noise during his employment.

The Office referred appellant to Dr. Elizabeth Payne, a Board-certified otolaryngologist, for a second opinion evaluation. In a report dated January 15, 2009, Dr. Payne noted appellant’s employment-related noise exposure and diagnosed moderately severe high frequency sensorineural hearing losses in both ears worse on the left. She opined that appellant’s high frequency hearing loss was aggravated by his work environment. Appellant’s audiometric test results on January 15, 2009 demonstrated in the right ear 10 decibels at 500 cycles per second, 10 decibels at 1,000 cycles per second (cps), 20 decibels at 2,000 cycles per second and 20 decibels at 3,000 cycles per second. In the left ear, appellant had decibel loss of 10, 10, 10 and 55, respectively.

The district medical adviser reviewed appellant’s claim on January 22, 2009 and found that appellant did not have a ratable impairment in either ear, but that he had significant hearing loss in the left ear at 3,000 cps and that he would benefit from hearing aids in both ears.

By decision dated January 26, 2009, the Office accepted appellant’s claim for noise- induced hearing loss. It found that appellant was not entitled to a schedule award, but that he was entitled to medical benefits.

On appeal, appellant alleged that the Office improperly determined that his right ear was worse than his left. He further contends that he experiences tinnitus.

LEGAL PRECEDENT

The schedule award provision of the Federal Employees’ Compensation Act1 and its implementing regulations2 set forth the number of weeks of compensation payable to employees sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of the body. However, the Act does not specify the manner in which the percentage of loss shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants. The American Medical Association, Guides to the Evaluation of Permanent Impairment has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.3 Effective February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that date.4

1
5 U.S.C. § 8107.
2
20 C.F.R. § 10.404 (1999).
3
Id.
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(a) (August 2002).

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 The Office evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear everyday speech under everyday conditions.7 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s adoption of this standard for evaluating hearing loss.10

The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral hearing impairment may impair speech discrimination: “Therefore, add up to five percent for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of daily living.”11 The A.M.A., Guides advises as follows:

“Some impairment classes refer to limitations in the ability to perform daily activities. When this information is subjective and possibly misinterpreted, it should not serve as the sole criterion upon which decisions about impairment are made. Rather, obtain objective data about the severity of the findings and the limitations and integrate the findings with the subjective data to estimate the degree of permanent impairment.”12

ANALYSIS

The Office accepted that appellant sustained an employment-related hearing loss; however, the district medical adviser further found that appellant’s hearing loss was not ratable for schedule award purposes. The record contains an audiogram dated January 15, 2009, which indicates that appellant’s right ear had losses of 10, 10, 20 and 20 decibels at 500, 1,000, 2,000 and 3,000 cps. These losses total 60 decibels and averaged equal 15. The fence of 25 cannot be deducted from 15 and appellant does not have a ratable hearing loss in his right ear. On the left appellant’s audiogram indicates decibel losses of 10, 10, 10 and 55 respectively. When totaled, these losses equal 85 decibels and average to 21.25. The fence of 25 cannot be deduced from 5 A.M.A., Guides at 226-51 (5th ed. 2001).
6
Id.
7
Id.
8
Id.
9
Id.
10
Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11
Id.
12
Id.

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21.25 and appellant has no ratable hearing loss in his left ear. Accordingly, pursuant to the Office’s standardized procedures, the Office properly determined that appellant had no ratable hearing loss in either ear. The Board notes that the record demonstrates that appellant has greater high frequency hearing loss in his left ear. However, the Board further notes that there are no medical reports in the record supporting appellant’s claim for tinnitus. Furthermore, as noted above, the A.M.A., Guides provide an additional impairment rating for tinnitus only if the underlying hearing loss is measurable. As appellant does not have a ratable hearing loss, he is not entitled to an additional schedule award for tinnitus.

CONCLUSION

The Board finds that appellant has an employment-related binaural loss of hearing, which is not ratable for schedule award purposes.

ORDER

IT IS HEREBY ORDERED THAT the January 26, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: January 25, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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