P.B. and Department of the Air Force, Randolph Air Force Base, Randolph, TX (Board decision, July 18, 2014)

ECAB final decision and order. The Board affirmed OWCP’s August 14, 2013 denial of a hearing-loss schedule award. OWCP had accepted work-related hearing loss, but the measured loss was not ratable under the adopted impairment method. 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

P.B., an Air Force transportation operations officer, had accepted hearing loss from workplace noise and sought a schedule award. A specialist’s hearing test showed some high-frequency loss, and a medical consultant applied the adopted rating method. The average loss at the frequencies used for the award calculation fell below the method’s 25-decibel threshold in each ear. The Board explained that a zero-percent award rating did not mean P.B. had no hearing loss. It affirmed the award denial because the accepted loss did not meet the threshold for a ratable impairment.

Decision snapshot

• Authority: FECA impairment-rating regulation, 20 C.F.R. § 10.404.
• Outcome: Hearing-loss schedule award denial affirmed.
• Key point: Accepted work-related hearing loss can fall below the rating threshold for a schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
P.B., Appellant
)
)
and ) Docket No. 14-660
) Issued: July 18, 2014
DEPARTMENT OF THE AIR FORCE,
)
RANDOLPH AIR FORCE BASE, Randolph, TX,
)
Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION

On January 30, 2014 appellant filed a timely appeal from an August 14, 2013 schedule award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant met his burden of proof to establish a ratable hearing loss that would warrant a schedule award.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence following the August 14, 2013 decision. The Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. The Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005). FACTUAL HISTORY

On December 12, 2012 appellant, then a 58-year-old transportation operations officer, filed an occupational disease claim alleging hearing loss as a result of exposure to hazardous sounds from jet engines and industrial noise since 1977. He first became aware of his hearing loss on August 25, 2003 and realized it resulted from his employment on May 16, 2012. Appellant did not stop working.

By letter dated January 3, 2013, OWCP advised appellant that it had not received any evidence to support his occupational disease claim. It requested additional factual and medical evidence to establish his claim. OWCP sent a similar letter to the employing establishment requesting information regarding appellant’s employment and noise exposure.

Appellant submitted a description of his job duties and a statement describing his work-related noise exposure to jet engines, air freight terminal and cargo handling machinery. He submitted employee hearing evaluation reports and audiograms dated October 29, 1999 to May 18, 2012. An October 29, 1999 audiogram revealed the following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000, hertz (Hz): 10, 5, 5 and 10 for the left ear and 10, 5, 5 and 15 for the right ear.

On January 24, 2013 OWCP referred appellant, together with a statement of accepted facts and the medical record, to Dr. David Kiener, a Board-certified otolaryngologist, for a second-opinion examination to determine whether he sustained employment-related hearing loss. In a February 19, 2013 report, Dr. Kiener reviewed appellant’s history, including the statement of accepted facts and related appellant’s complaints of hearing loss, worse on the right side than on the left with occasional ringing and tinnitus. He noted that appellant had been employed by the U.S. Air Force since 1977 and worked around heavy cargo loaders and other loud equipment. Appellant used earplugs. Dr. Kiener reported that appellant’s last significant noise exposure was in November 2012. Upon physical examination, he observed normal and mobile tympanic membranes and no evidence of abnormalities of the external auditory canals. Dr. Kiener reported that audiograms before 1989 were all normal and that audiograms after October 29, 1999 demonstrated hearing loss developing in the high frequencies, primarily in the 3,000, 4,000 and 6,000 hertz range. An audiogram performed by him that day revealed the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 0, 5, 10 and 15 dBA for the right ear and 0, 5, 5 and 25 dBA for the left ear. Dr. Kiener diagnosed noise-induced sensory hearing loss in the high frequencies. He explained that appellant’s progression of hearing loss was consistent with the history of noise exposure he encountered over time during his federal civilian employment. Dr. Kiener advised that appellant was not in need of hearing aids.

On March 6, 2013 OWCP accepted appellant’s claim for bilateral sensorineural hearing loss due to employment-related noise exposure. It noted that hearing aids were not authorized.

On June 14, 2013 appellant requested a schedule award.

OWCP referred the case record to Dr. Brain N. Schindler, a Board-certified otolaryngologist and medical consultant, to determine the extent of appellant’s permanent impairment.

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 In a July 26, 2013 report, Dr. Schindler accurately described appellant’s employment and reviewed the medical records, including Dr. Keiner’s February 19, 2013 report and audiogram. In accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had zero percent bilateral sensorineural hearing loss. Dr. Schindler did not authorize hearing aids. He found that the date of maximum medical improvement was February 19, 2013, the date of appellant’s audiology testing.

In a decision dated August 14, 2013, OWCP denied appellant’s schedule award claim. It found that the medical evidence was insufficient to establish that he sustained permanent impairment due to his accepted bilateral sensorineural hearing loss.

LEGAL PRECEDENT

The schedule award provision of FECA3 and its implementing regulations 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. FECA, however, does not specify the manner in which the percentage of loss of a member shall be determined. The method used in making such determination is a matter which rests in the sound discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as the appropriate standards for evaluating schedule losses.4

OWCP 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 cycles a second, the losses at each frequency are added up and averaged. Then, the fence of 25 dBA is deducted because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear everyday speech under everyday conditions.6 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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.7 The Board has concurred in OWCP’s adoption of this

3
5 U.S.C. §§ 8101-8193.
4
20 C.F.R. § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002).
5
R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.
6
See A.M.A., Guides 250 (6th ed. 2009).
7
Id.

3 standard for evaluating hearing loss.8 The Board has also noted OWCP’s policy to round the calculated percentages of impairment to the nearest whole number.9

ANALYSIS

OWCP accepted appellant’s claim for bilateral sensorineural hearing loss. On June 14, 2013 appellant requested a schedule award. OWCP referred him to Dr. Kiener, who performed an examination and obtained andiological testing. In a July 26, 2013 report, Dr. Schindler reviewed Dr. Kiener’s February 19, 2013 second-opinion report and audiogram. Testing at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 0, 5, 10 and 15 dBA on the right for a total of 30 dBA. When divided by 4, the average resulted in 7.5 dBA. Because this average is below the fence of 25dBA, appellant has zero percent monaural hearing loss in the right ear. The frequency levels on the left revealed losses of 0, 5, 5 and 25, for a total of 35 dBA. When divided by 4, the average of this figure resulted in an average of 8.75 dBA. Because this average is also below the fence of 25 dBA appellant has zero percent monaural hearing loss in the left ear. Accordingly, appellant is deemed to have no impairment in his ability to hear every day sounds under everyday listening conditions.10 This does not mean that he has no hearing loss. Rather, the extent of degree of loss is not sufficient to show a practical impairment in hearing according to the A.M.A., Guides. The A.M.A., Guides set a threshold for impairment and appellant’s employment-related hearing loss did not reach that threshold. Accordingly, he was not entitled to a schedule award.

On appeal, appellant described the noise to which he was exposed in the performance of his duties. He alleged that the medical reports from the audiology department demonstrate that he has permanent hearing loss. The Board notes that OWCP has accepted that appellant sustained bilateral hearing loss as a result of his employment; however, his hearing loss is not severe enough to be considered a ratable hearing loss.

The Board finds that OWCP properly determined that appellant’s hearing loss was not severe enough to be considered ratable for schedule award purposes. Therefore, appellant is not entitled to a schedule award for his employment-related hearing loss.

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant did not establish that he is entitled to a schedule award for his employment-related hearing loss.

8
E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).
9
Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010). 10 See L.F., Docket No. 10-2115 (issued June 3, 2011).

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 ORDER

IT IS HEREBY ORDERED THAT the August 14, 2013 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: July 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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