D.A. and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, WA (Board decision, January 4, 2011)

ECAB final decision. The Board affirmed OWCP’s January 8, 2010 decision denying D.A.’s hearing loss claim. 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).

Plain-English summary

D.A., a retired Navy shipyard storekeeper, attributed hearing loss to workplace noise. OWCP accepted that he had been exposed to noise, but the examining physician attributed the later worsening of his hearing to arterial disease and found that its audiogram pattern did not fit industrial noise exposure. The Board held that the medical evidence did not connect his diagnosed hearing loss to the accepted work exposure. It affirmed the denial of the occupational disease claim.

Decision snapshot

• Authority: Occupational disease definition under 20 C.F.R. § 10.5(q).
• Outcome: January 8, 2010 hearing loss claim denial affirmed.
• Key point: Accepted noise exposure did not establish that it caused the diagnosed hearing loss.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.A., Appellant
)
)
and ) Docket No. 10-1305
) Issued: January 4, 2011
DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD, Bremerton, WA,
)
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
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On April 6, 2010 appellant filed a timely appeal of a January 8, 2010 decision of the Office of Workers’ Compensation Programs denying a schedule award for a hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.

ISSUE

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

FACTUAL HISTORY

On April 8, 2009 appellant, then a 65-year-old storekeeper, filed an occupational disease claim alleging that he developed hearing loss due to working around loud noise in the performance of his federal job duties. He was last exposed to noise on September 3, 1996, the date he retired. Appellant first became aware of his condition on January 1, 1996 and related his hearing loss to his employment on that date. The employing establishment challenged appellant’s claim on the grounds that yearly physicals informed him of his hearing loss while employed.

Appellant submitted an April 13, 2009 report and an audiogram dated April 8, 2009 from Dr. Gerald G. Randolph, a Board-certified otolaryngologist, who diagnosed bilateral sensorineural hearing loss. Dr. Randolph stated that appellant had a high-tone hearing loss which may have been aggravated by noise exposure, but that the low-tone component to appellant’s hearing loss was not audiometrically compatible with hearing loss caused by noise exposure.

In a letter dated May 4, 2009, the Office requested additional factual and medical evidence. Appellant submitted audiograms dated December 1989 through September 5, 1995 obtained for the employing establishment. He described his employment including mail room, pipefitting, foundry and hazardous material store.

The Office requested a supplemental report from Dr. Randolph on June 18, 2009 and provided him with a statement of accepted facts. In a June 30, 2009 report, Dr. Randolph reviewed the statement of accepted facts and appellant’s employment audiograms. He concluded:

“The claimant left his civil service employment in 1996. The last industrial audiogram present in the claimant’s record is dated September 1, 1994. That audiogram revealed a mild hearing loss in the right ear and essentially normal hearing in the claimant’s left ear. The hearing loss in the right ear was in the lower frequencies not affected by noise. The hearing loss was ratable at zero percent in both ears. Since 1994, the claimant’s hearing has degenerated significantly. The vast majority of this degeneration has been in the lower frequencies which, on a more likely than not basis, would not be due to industrial noise exposure…. The increase in the claimant’s hearing loss does not have an audiometric configuration compatible with hearing loss aggravated by industrial noise exposure.”

Dr. Randolph stated that, while appellant’s workplace noise exposure was sufficient to have aggravated hearing loss, he did not believe that noise exposure was the cause of appellant’s hearing loss. Instead, he attributed appellant’s hearing loss to the diagnosed condition of arterial disease with the need for bilateral carotid artery surgery.

By decision dated July 15, 2009, the Office denied appellant’s claim. It found that the medical evidence did not establish a causal relationship between his diagnosed hearing loss and his accepted federal noise exposure.

Appellant requested an oral hearing on July 18, 2009 that was held on October 29, 2009.
He stated that his hearing loss was increasing and was damaged while working at the employing establishment. Appellant resubmitted Dr. Randolph’s June 30, 2009 report with a new date of November 25, 2009.

By decision dated January 8, 2010, an Office hearing representative affirmed the July 15, 2009 decision.

2
 LEGAL PRECEDENT

The Office’s regulations define an occupational disease as “a condition produced by the work environment over a period longer than a single workday or shift.”1 To establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following: (1) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; (2) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; and (3) medical evidence establishing that the employment factors identified by the claimant were the proximate cause of the condition for which compensation is claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant. The evidence required to establish causal relationship is rationalized medical opinion evidence, based upon a complete factual and medical background, showing a causal relationship between the claimed condition and identified factors. The belief of a claimant that a condition was caused or aggravated by the employment is not sufficient to establish causal relation.2

ANALYSIS

On appeal appellant alleged that his hearing loss was caused by noise exposure in the performance of duty as demonstrated by his employment audiograms. He contended that his noise exposure at the employing establishment was sufficient to cause hearing loss. The Board notes that the issue of causal relation is a medical question to be resolved by probative medical evidence.3

Appellant provided evidence regarding his noise exposure which the Office accepted as factual. Dr. Randolph advised that he had a loss of hearing. However, appellant failed to provide the necessary medical opinion evidence establishing that his hearing loss was the result of the accepted noise exposure.

The only medical evidence is from Dr. Randolph. In response to the Office’s request for additional information regarding the cause and extent of appellant’s hearing loss, Dr. Randolph advised that appellant’s loss of hearing was not due to noise exposure, but was instead the result of his underlying condition of arterial disease. He stated that appellant’s increasing hearing loss since 1994 did not have an audiometric configuration compatible with a noise-related hearing loss.

Appellant has the burden of proof to establish the causal relationship between his diagnosed hearing loss and his employment-related noise exposure and must establish this relationship through medical evidence. The medical evidence of record does not support this relationship but instead attributes his hearing loss to a cause other than his accepted noise

1
20 C.F.R. § 10.5(q).
2
Lourdes Harris, 45 ECAB 545, 547 (1994).
3
See Paul Foster, 56 ECAB 208 (2004).

3 exposure. For this reason, appellant failed to meet this burden of proof to establish his claim for hearing loss.

CONCLUSION

The Board finds that appellant failed to establish a causal relationship between his loss of hearing and the accepted occupational noise exposure in his federal employment.

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2010 decision of Office of Workers’ Compensation Programs is affirmed.

Issued: January 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4