D.H. and Department of Justice, Federal Bureau of Investigation Headquarters, Atlanta, GA (Board decision, April 21, 2010)

ECAB final decision. The Board affirmed OWCP’s denial of a schedule award for D.H.’s accepted hearing loss. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 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

D.H., an FBI special agent, had accepted noise-induced hearing loss from duties involving firearms and explosives. OWCP denied a schedule award because a physician-reviewed audiogram produced no ratable impairment under the applicable formula. The Board agreed that the measured average in each ear fell below the formula’s 25-decibel threshold. Historical test results lacked required testing or physician certification. The accepted hearing loss remained eligible for related medical benefits, but the Board affirmed the schedule award denial.

Decision snapshot

• Authority: FECA hearing loss schedule awards, 5 U.S.C. § 8107(c)(13); impairment method, 20 C.F.R. § 10.404.
• Outcome: July 30, 2009 schedule award denial affirmed.
• Key point: An accepted hearing condition could receive medical benefits even when it did not produce a ratable schedule loss.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and ) Docket No. 09-2133
) Issued: April 21, 2010
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF INVESTIGATION
)
HEADQUARTERS, Atlanta, GA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION

On August 20, 2009 appellant filed a timely appeal from a July 30, 2009 merit decision of the Office of Workers’ Compensation Programs denying him a schedule award for hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award claim.

ISSUE

The issue is whether appellant established that he sustained a ratable hearing loss entitling him to a schedule award.

FACTUAL HISTORY

On March 31, 2009 appellant, a 58-year-old special agent, filed an occupational disease claim (Form CA-2) for bilateral hearing loss that he attributed to performance of his employment duties as a fire arms instructor, sniper and special agent bomb technician. He first realized his condition and that it was caused by his federal employment on April 1, 1985. On April 20, 1988 Dr. A. Gregory Jameson, a Board-certified internist, reported that auditory testing revealed “decreased auditory acuity.” In a June 26, 1989 note, Dr. William Levine, an internist, reported that auditory testing revealed “diminished hearing in both ears (since 1984).” On April 26, 1993 Dr. Anthony Ditullio, an internist, reported appellant’s hearing was “normal.”

Appellant submitted results from diagnostic tests, reports concerning annual physical and other examinations conducted between 1984 and 2009, and a June 18, 2002 note in which Dr. E. Darryl Walker, Board-certified in occupational medicine, reported that an audiogram revealed the presence of moderate bilateral hearing loss. Several of these historical medical records contained results from hearing tests but lacked the original audiograms. Appellant also submitted results from historical audiograms. In a June 4, 2004 note, Dr. David Greenwald, an orthopedist, reported that an audiogram revealed noise-induced hearing loss.

On July 12, 2006 Dr. Amanda Sahai, Board-certified in family medicine, reported that results from an audiogram were “abnormal.”

Appellant submitted supplemental statements, dated March 26, 2009, documenting his employment history and describing how his employment duties caused his hearing loss.

The Office referred appellant, together with a statement of accepted facts, for evaluation by Dr. Joel Alexander, an otolaryngologist.

On June 23, 2009 Dr. Alexander reviewed appellant’s history of injury, presented findings on examination and diagnosed bilateral sensorineural hearing loss. He opined that appellant’s hearing loss exceeded that normally associated with presbycusis and that workplace noise exposure was sufficient to produce appellant’s hearing loss. An audiogram performed June 23, 2009 reflected testing at frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz) and revealed hearing losses in appellant’s right ear of 5, 5, 5 and 50 respectively and 10, 5, 10 and 40 on the left.

The district medical adviser reviewed Dr. Alexander’s report and concluded that appellant’s hearing loss was not ratable.

By decision dated July 30, 2009, the Office accepted appellant’s claim for noise-induced hearing loss but, finding that his hearing loss was not ratable, concluded that he was not entitled to a schedule award for his hearing loss.

LEGAL PRECEDENT

Section 8107 of the Federal Employees’ Compensation Act sets forth the number of weeks of compensation to be paid for the permanent loss of use of specified members, functions and organs of the body.1 The Act, however, does not specify the manner by which the

1
The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52 weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’ compensation. 5 U.S.C. § 8107(c)(13) (2000).

2 percentage loss of a member, function or organ shall be determined. To ensure consistent results and equal justice under the law, good administrative practice requires the use of uniform standards applicable to all claimants. The implementing regulations have adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001) as the appropriate standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).3

Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each frequency are added up and averaged.4 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.5 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.6 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 and then added to the greater loss and the total is divided by six to arrive at the amount of the binaural hearing loss.7

ANALYSIS

On appeal, appellant disputes the Office’s findings and determination of his hearing loss.

The Office medical adviser applied the Office’s standardized procedures to the June 23, 2009 audiogram obtained by Dr. Alexander. According to the Office’s standardized procedures, testing at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed hearing losses in appellant’s right ear of 5, 5, 5 and 50 respectively. These totaled 65 decibels which, when divided by 4, produced an average hearing loss of 16.25. The average of 16.25 decibels when reduced by 25 decibels (the first 25 decibels are discounted as discussed above), equals 0 and that, when multiplied by the established factor of 1.5 produced a 0 percent hearing loss in appellant’s right ear.

Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed hearing losses in the left ear of 10, 5, 10 and 40. These totaled 65 which when divided by 4, produced an average hearing loss of 16.25 decibels. The average hearing loss of 16.25 decibels when reduced by 25 decibels (the first 25 decibels are discounted as discussed above) equals 0 which, when multiplied by the established factor of 1.5 produced a 0 percent hearing loss in appellant’s left ear.

2
20 C.F.R. § 10.404 (2006).
3
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).
4
A.M.A., Guides 250 (5th ed. 2001).
5
Id.
6
Id.
7
Id.

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 The district medical adviser then proceeded to calculate appellant’s binaural hearing loss. The zero percent hearing loss on the left, when multiplied by five, yielded a product of zero percent. The zero percent loss was then added to the zero percent loss in appellant’s right ear to obtain a total of zero percent which, when divided by six yields a zero percent binaural hearing impairment. Thus appellant’s hearing loss is not ratable and he is not entitled to a schedule award.

Although appellant submitted reports containing results from historical audiograms as well as other medical evidence demonstrating the presence of varying degrees of hearing loss, they are insufficient to satisfy appellant’s burden of proof as they do not comply with the requirements set forth by the Office because, for example, they lack speech testing and bone conduction scores and were not prepared or certified as accurate by “physician” as defined by the Act.8 The Board has held that if an audiogram is prepared by an audiologist its accuracy must be certified by a physician before it can be used to determine the percentage of hearing loss.9 It is appellant’s burden to submit a properly prepared and certified audiogram to the Office.10 The Office is not required to rely on this evidence in determining the degree of appellant’s hearing loss because it does not constitute competent medical evidence and, therefore, is insufficient to satisfy appellant’s burden of proof.

Therefore, although appellant’s claim for hearing loss was accepted and he is entitled to medical benefits related to this loss, his hearing loss is not now ratable under the Act and thus, appellant is not entitled to a schedule award.

CONCLUSION

The Board finds appellant has not established that he sustained a ratable hearing loss entitling him to a schedule award.

8
Robert E. Cullison, 55 ECAB 570 (2004); Joshua A. Holmes, 42 ECAB 231 (1990).
9
Joshua A. Holmes, supra note 8.
10
Id.

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 ORDER

IT IS HEREBY ORDERED THAT the July 30, 2009 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: April 21, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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