J.C. and Department of Defense, DLA Distribution Region East, Fort Belvoir, VA (Board decision, August 20, 2015)

ECAB final decision. The Board affirmed OWCP's May 11, 2015 and December 23, 2014 decisions denying a hearing-loss schedule award. 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 of issuance 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

J.C., a defense supply specialist, sought a schedule award for hearing loss after work noise exposure. The Board found that OWCP's medical adviser properly applied the impairment standards to his audiogram. The measured hearing loss did not reach a ratable level. It affirmed denial of an award on the existing record.

Decision snapshot

• Authority: 5 U.S.C. § 8107.
• Outcome: Both schedule award denials affirmed.
• Key point: The documented hearing loss fell below the impairment threshold for a schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.C., Appellant
)
)
and ) Docket No. 15-1294
) Issued: August 20, 2015
DEPARTMENT OF DEFENSE, DLA-
)
DISTRIBUTION REGION EAST,
)
Fort Belvoir, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On May 21, 2015 appellant filed a timely appeal from December 23, 2014 and May 11, 2015 merit decisions 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 the case.

ISSUE

The issue is whether appellant met his burden of proof to establish that he sustained a ratable hearing loss entitling him to a schedule award.

FACTUAL HISTORY

On February 27, 2014 appellant, then a 56-year-old general supply specialist, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of

1
5 U.S.C. § 8101 et seq. employment-related noise exposure. He was employed as a general supply specialist from January 5, 1997 to present and was exposed to noise from golf carts, fork lifts, conveyers system, and tow line cart systems. Appellant’s prior federal employment stemmed back to September 8, 1975.

Audiograms and hearing conservation data were submitted from January 28, 1988 through March 13, 2014.

OWCP referred appellant to Dr. Carol L. St. George, a Board-certified otolaryngologist, for a second opinion evaluation on September 24, 2014. It prepared a statement of accepted facts addressing appellant’s federal work duties as a general supply specialist and the types of employment-related noise he was exposed to.

An audiogram was completed on September 24, 2014 which revealed the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 10, 15, 20, and 50 for the right ear and 10, 10, 5, and 15 for the left ear. Dr. St. George noted that the audiogram showed mild- to-moderate left high frequency hearing loss of a sensorineural nature and a right mild-to-severe high frequency sensorineural hearing loss. She opined that appellant’s bilateral asymmetric high frequency hearing loss was due to his workplace noise exposure and in excess of what would be predicated for presbycusis. Dr. St. George stated that in accordance with the A.M.A., Guides, calculation of monaural and binaural impairment revealed no ratable hearing loss. She further recommended a consultation for hearing aids.

By decision dated November 24, 2014, OWCP accepted appellant’s claim for bilateral sensorineural hearing loss.

On November 30, 2014 appellant filed a claim for a schedule award.

On October 28, 2011 an OWCP district medical adviser (DMA) reviewed Dr. St. George’s September 24, 2014 otologic examination and agreed that appellant had developed binaural work-related hearing loss. In accordance with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides), he applied the audiometric data to OWCP’s standard for evaluating hearing loss and determined that appellant had zero percent monaural hearing loss in the left ear, zero percent monaural hearing loss in the right ear, and zero percent binaural hearing loss.3 The DMA concluded that appellant had no ratable hearing loss and the date of maximum medical improvement (MMI) was noted as September 24, 2014. He further stated that hearing aids should be authorized for the right ear due to significant hearing loss at 3,000 Hz. However, the DMA did not recommend hearing aids for the left ear stating that appellant had no significant hearing loss until 8,000 Hz and it was unlikely amplification of this frequency would provide any benefit in terms of improved speech discrimination. He requested the second opinion physician explain why she felt amplification in the left ear was necessary.

2
A.M.A., Guides (6th ed. 2009).
3
Id. at 252, Table 11-2.

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 By decision dated December 23, 2014, OWCP denied appellant’s schedule award claim finding that his hearing loss was not severe enough to be considered ratable. It further found that he was entitled to medical benefits for the effects of his injury, including a hearing aid for the right ear.

On January 16, 2015 appellant appealed the December 23, 2014 schedule award determination and requested review of the written record before the Branch of Hearings and Review. In support of his claim, he resubmitted prior audiograms previously of record.

By decision dated May 11, 2015, the Branch of Hearings and Review affirmed the December 23, 2014 schedule award decision finding that appellant’s hearing loss was not severe enough to be considered ratable.

LEGAL PRECEDENT

The schedule award provision of FECA4 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 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 (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such adoption.5

OWCP evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the losses at each frequency are added up and averaged. 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.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. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.7

4
5 U.S.C. §§ 8101-8193.
5
See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).
6
See A.M.A., Guides 250.
7
See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

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 ANALYSIS

Appellant filed a claim for bilateral hearing loss and was referred to Dr. St. George for a second opinion examination. After reviewing the statement of accepted facts and medical file, conducting a thorough physical evaluation and obtaining an audiogram on September 24, 2014, Dr. St. George diagnosed bilateral asymmetric high frequency sensorineural hearing loss due to occupational noise exposure. The DMA concurred with this finding and further concluded that appellant had no ratable hearing loss which would warrant a schedule award. He recommended hearing aids for the right ear only. OWCP accepted appellant’s occupational disease claim for bilateral sensorineural hearing loss. By decisions dated December 23, 2014 and May 11, 2015, OWCP denied appellant’s schedule award claim.

The Board finds that OWCP correctly denied appellant’s schedule award claim.
According to the audiometry obtained on September 24, 2014, appellant’s hearing thresholds were 10, 15, 20, and 50 on the right and 10, 10, 5, and 15 on the left. These total 95 and 40 decibels, respectively, for averages of 23.75 and 10 decibels. Because these averages are below the fence of 25 decibels, appellant is deemed to have no impairment in his ability to hear every day sounds under everyday listening conditions.8 This does not mean that he has no hearing loss. It means that the extent or 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 occupational hearing loss did not cross that threshold. Thus, the OWCP DMA applied the proper standards to the September 24, 2014 audiogram. Appellant’s hearing loss was not ratable. For this reason, the Board finds that OWCP properly denied a schedule award for appellant’s nonratable 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 has not established a ratable loss of hearing such that he is entitled to a schedule award.

8
See L.F., Docket No. 10-2115 (issued June 3, 2011).

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 ORDER

IT IS HEREBY ORDERED THAT the May 11, 2015 and December 23, 2014 decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 20, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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