T.H. and Department of Labor, Mine Safety & Health Administration, Pikeville, KY (Board decision, June 13, 2014)

ECAB final decision and order. The Board set aside OWCP’s denial of T.H.’s hearing loss claim and remanded for a combined review of his claims and a reasoned medical opinion. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order 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

T.H. had previously received awards for hearing loss attributed to noise exposure during his federal employment. OWCP denied a later hearing loss claim, concluding that the claimed occupational noise exposure had not occurred and that any further loss after retirement was unrelated to work. The Board found that his work-related noise exposure had been established. It held that OWCP could not rely on a blanket medical statement that hearing loss does not progress after exposure ends. The Board ordered OWCP to combine T.H.’s hearing loss files and obtain a reasoned opinion on whether his employment caused increased hearing loss.

Decision snapshot

• Authority: FECA Procedure Manual guidance on increased hearing loss schedule awards, Chapter 3.700.4(b)(3).
• Outcome: December 23, 2013 denial set aside and case remanded.
• Key point: OWCP needed to assess the combined claim files and obtain a reasoned opinion on any progression.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
T.H., Appellant
)
)
and ) Docket No. 14-534
) Issued: June 13, 2014
DEPARTMENT OF LABOR, MINE SAFETY &
)
HEALTH ADMINISTRATION, Pikeville, KY,
)
Employer
)
__________ )

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

ORDER REMANDING CASE

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 9, 2014 appellant filed a timely appeal from a December 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his hearing loss claim for failing to establish fact of injury. The appeal was docketed as number 14-534.

The Board has duly considered the matter and finds that the case is not in posture for decision.1

The record before the Board indicates that appellant has three separate claims for hearing loss due to his federal employment. On August 21, 1991 appellant filed a claim for noise- induced hearing loss which was accepted by OWCP in claim No. xxxxxx088. He was last exposed to employment-related noise exposure on February 1, 2007, the day he retired from his federal employment. On January 31, 2011 appellant filed another claim for noise-induced hearing loss in claim No. xxxxxx039. OWCP accepted claim No. xxxxxx039 for binaural hearing loss based on the results of an August 9, 2011 audiogram. The record further indicates that appellant previously received schedule awards for binaural hearing loss in claim Nos. xxxxxx088 and xxxxxx039.

1
T.R., Docket No. 13-771 (issued June 25, 2013).
 On June 26, 2013 appellant filed a third occupational disease claim for noise-induced hearing loss in this claim, No. xxxxxx254.

OWCP referred appellant to Dr. William M. Parell, a Board-certified otolaryngologist, for a second opinion evaluation and audiometric testing on September 3, 2013. In a September 3, 2013 report, he diagnosed noise-induced sensorineural hearing loss which was due to appellant’s federal civilian employment and in excess of what would normally be predicated on the basis of presbycusis.

An OWCP medical adviser reviewed the claim on September 20, 2013 and stated that appellant retired from federal employment on February 1, 2007. He stated that because appellant was not exposed to employment-related noise since February 1, 2007 and had an audiogram processed on August 9, 2011, after his date of retirement, that the worsening of his hearing loss was due to presbycusis and not a result of employment-related noise exposure.

By decision dated December 23, 2013, OWCP denied appellant’s claim on the grounds that the evidence of record failed to establish fact of injury, namely, that the occupational noise exposure did not occur as alleged.

The Board has long recognized that, if a claimant’s employment-related hearing loss worsens in the future, he may apply for an additional schedule award for any increased permanent impairment. The Board has also recognized that a claimant may be entitled to a schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the medical evidence of record.2 In Adelbert E. Buzzell,3 the Board cautioned against an OWCP medical adviser providing a blanket unrationalized statement that hearing loss does not progress following the cessation of hazardous noise exposure.4

The Board finds that OWCP did not properly develop the factual and medical evidence in this claim. The Board notes that appellant has established fact of injury, namely, that he was exposed to employment-related noise. OWCP improperly relied on the medical adviser’s blanket unrationalized statement that appellant’s employment-related hearing loss did not progress and OWCP failed to combine appellant’s hearing loss claims. Pursuant to its procedures, OWCP has determined that cases should be combined when correct adjudication of the issues depends on frequent cross-reference between files. Therefore, for a full and fair adjudication, appellant’s claims should be combined.5 On remand OWCP shall combine claim Nos. xxxxxx088, xxxxxx039 and xxxxxx254 and refer appellant and the case file to a second opinion otolaryngologist for a fully-rationalized opinion regarding whether appellant developed

2
J.R., 59 ECAB 710, 713 (2008).
3
34 ECAB 96 (1982).
4
The Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3) (January 2010) notes that, if the progression of a noise-induced hearing loss is to be denied, the medical adviser must provide a well-reasoned opinion. 5 Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).

2 increased hearing loss as a result of his federal employment noise exposure.6 Following this and any other further development deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s occupational disease claim.

IT IS HEREBY ORDERED THAT the December 23, 2013 decision of the Office of Workers’ Compensation Programs is set aside and remanded for further development consistent with this decision of the Board.

Issued: June 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6
Supra note 1.

3