L.M. and Tennessee Valley Authority, Division of Agri-Chemical Development, Chattanooga, TN (Board decision, November 5, 2010)

ECAB final decision. The Board affirmed OWCP’s September 2, 2009 schedule award for two percent permanent hearing loss in L.M.’s right ear. Under 20 C.F.R. § 501.6(d), this Board decision becomes final 30 days after issuance unless the Board fixed a different period in it. 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

L.M., a Tennessee Valley Authority instrument mechanic, had an accepted work-related hearing loss in both ears. OWCP awarded 1.04 weeks of compensation for two percent permanent impairment of the right ear. The Board reviewed the physician’s certified audiogram and the required hearing-loss formula. The left ear’s tested loss was below the ratable threshold, while the right ear result rounded to two percent. The Board found no qualifying medical evidence supporting a higher rating and affirmed the award.

Decision snapshot

• Authority: FECA schedule awards under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404.
• Outcome: September 2, 2009 two percent right-ear hearing award affirmed, totaling 1.04 weeks.
• Key point: The certified audiogram produced two percent ratable loss in the right ear and none in the left.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
L.M., Appellant
)
)
and ) Docket No. 10-876
) Issued: November 5, 2010
TENNESSEE VALLEY AUTHORITY,
)
DIVISION OF AGRI-CHEMICAL
)
DEVELOPMENT, Chattanooga, TN, 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 February 19, 2010 appellant filed a timely appeal from a September 2, 2009 decision of the Office of Workers’ Compensation Programs. Under 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 more than two percent monaural hearing loss of his right ear, for which he received a schedule award.

FACTUAL HISTORY

Appellant, a 58-year-old instrument mechanic, filed an occupational disease claim (Form CA-2) on April 28, 2009, alleging that he sustained a hearing loss caused by factors of his federal employment. He worked in a MINCAMS control room and around glove box motors, filter banks and pneumatic pumps from March 2003 to the present. Appellant did not stop work. He submitted audiograms dated 1981 to 2008 which showed varying degrees of bilateral hearing loss.

The Office referred appellant to Dr. Joseph Motto, a Board-certified otolaryngologist, for a second opinion evaluation of his hearing loss. In a July 14, 2009 report, Dr. Motto discussed the results of a July 14, 2009 audiogram, which revealed bilateral mild to moderate sensorineural hearing loss. The audiogram dated July 14, 2009, with an attached calibration certificate, showed hearing levels of 10, 10, 30 and 55 decibels on the right and 10, 10, 25 and 50 decibels on the left at 500, 1,000, 2,000 and 3,000 cycles per second (cps), respectively. Dr. Motto opined that the results of the audiogram suggested a noise-induced hearing loss.

In a July 29, 2009 report, an Office medical adviser reviewed the results of the July 14, 2009 audiogram. He determined that appellant had two percent permanent, right-sided monaural hearing loss.

On August 3, 2009 the Office accepted appellant’s claim for bilateral sensorineural hearing loss. In a September 2, 2009 decision, it granted him a schedule award for two percent monaural hearing loss for the right ear. The award ran from July 29 to August 5, 2009, for a total of 1.04 weeks of compensation.

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 A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.3

The Office evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are added up and averaged.5 Then, the fence of 25 decibels is deducted. 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, then added to the greater loss, and the total is

1
5 U.S.C. § 8107.
2
20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).
3
Id. See R.D., 59 ECAB 127 (2007); Robert E. Cullison, 55 ECAB 570 (2004).
4
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 2.700.4.b (January 2010).
5
Id. See J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009).
6
Id. See J.B., 60 ECAB ___ (Docket No. 08-1735, issued January 27, 2009).

2 divided by six to arrive at the amount of the binaural hearing loss.7 The Board has concurred in the Office’s adoption of this standard for evaluating hearing loss.8

ANALYSIS

The Board finds that appellant has to no greater than two percent monaural hearing loss in his right ear, for which he received a schedule award. Dr. Motto’s July 14, 2009 audiogram tested the frequencies of 500, 1,000, 2,000 and 3,000 cps, for which the following thresholds were reported in the left ear: 10, 10, 25 and 50 decibels. These decibels, totaled to 95 and divided by 4, reflected an average hearing loss at those cycles of 23.75 decibels. The average of 23.75 decibels, when reduced by 25 decibels (the first 25 decibels were discounted as discussed above), equals negative 1.25, which when multiplied by the established factor of 1.5 amounts to a nonratable hearing loss in the left ear.

Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 10, 30 and 55 respectively. These decibels amounted to 105, which, when divided by 4, reflected an average hearing loss at those cycles of 26.25 decibels. The average of 26.25 decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above), equals 1.25 decibels, which when multiplied by the established factor of 1.5 totals a 1.88 percent hearing loss in the right ear. This loss was rounded up for a total two percent loss in the right ear.9 The Office medical adviser correctly determined that appellant had two percent monaural hearing loss in his right ear, for which he received a schedule award on September 2, 2009.

The Board notes that the Office medical adviser properly applied the applicable standards of the A.M.A., Guides, to determine that appellant had two percent monaural right-sided hearing loss. There is no other probative medical evidence of record to establish that he sustained any greater impairment.10

CONCLUSION

The Board finds that appellant has no more than two percent monaural hearing loss of his right ear.

7
Id.
8
See Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
9
See J.H., supra note 5; David W. Ferrall, 56 ECAB 362 (2005).
10
The record contains several audiograms submitted by appellant and the employing establishment, but none of these were certified by a physician as accurate. The Board has held that, if an audiogram is prepared by an audiologist it must be certified by a physician as being accurate before it can be used to determine the percentage of hearing loss. Joshua A. Holmes, 42 ECAB 231, 236 (1990).

3
 ORDER

IT IS HEREBY ORDERED THAT the September 2, 2009 decision of the Office of Workers’ Compensation Programs be affirmed.

Issued: November 5, 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

4