D.J. and Department of the Air Force, Robins Air Force Base, Warner Robins, GA (Board decision, September 1, 2015)

ECAB final decision. The Board affirmed OWCP’s denial of a schedule award because D.J.’s accepted bilateral hearing loss was not ratable under the required formula. The hearing-loss claim remained accepted, and OWCP had provided instructions for seeking hearing-aid authorization. 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

D.J., an Air Force machinist, had accepted bilateral hearing loss after decades of work around noise. OWCP’s examining physician recommended an evaluation for hearing aids, but the agency denied a schedule award. The Board reviewed the physician’s audiogram and found an average loss of about 21 decibels in each ear at the tested frequencies. That was below the 25-decibel threshold used in the impairment formula, producing zero percent ratable loss. It affirmed the award denial without reversing acceptance of the hearing-loss condition.

Decision snapshot

• Authority: Schedule awards under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404.
• Outcome: April 10, 2015 schedule award denial affirmed; bilateral hearing loss remains accepted.
• Key point: Accepted occupational hearing loss can be below the threshold for a monetary schedule award.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.J., Appellant
)
)
and ) Docket No. 15-1327
) Issued: September 1, 2015
DEPARTMENT OF THE AIR FORCE, ROBINS
)
AIR FORCE BASE, Warner Robins, GA,
)
Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 27, 2015 appellant filed a timely appeal from an April 10, 2015 merit 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.

ISSUE

The issue is whether appellant sustained a ratable hearing loss warranting a schedule award.

FACTUAL HISTORY

On December 8, 2014 appellant, then a 62-year-old machinist, filed an occupational disease claim alleging that he sustained bilateral sensorineural hearing loss due to noise exposure

1
5 U.S.C. § 8101 et seq. in the course of his federal employment. He was last exposed to the factors alleged to have caused his condition on December 2, 2014.

The employing establishment submitted audiograms obtained as part of a hearing conservation program beginning in 1982. It further submitted noise exposure data.

On December 3, 2014 appellant described his exposure to noise levels in excess of 86 decibels at work and advised that the employing establishment required him to wear hearing protection beginning in 1984. He related that he had a 32-year history of noise exposure.

On February 10, 2015 OWCP prepared a statement of accepted facts describing appellant’s exposure to noise at work from 1982 through December 2014. It referred him to Dr. Kenneth Walker, a Board-certified otolaryngologist, for a second opinion examination.

In a report dated March 31, 2015, Dr. Walker discussed appellant’s extensive history of exposure to noise at work and noted that he wore hearing protection. He diagnosed bilateral sensorineural hearing loss due in whole or in part to exposure to noise in the course of appellant’s federal employment. Dr. Walker recommended that appellant be evaluated for hearing aids. Audiometric testing performed on March 31, 2015 at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed the decibel losses in the right ear of 10, 10, 20, and 45 decibels, respectively; and decibel losses in the left ear of 15, 15, 20, and 35 decibels.2

On April 8, 2015 OWCP advised appellant that it had accepted his claim for bilateral sensorineural hearing loss. It further provided him instructions for obtaining authorization for hearing aids.

On April 9, 2015 an OWCP medical adviser reviewed the medical evidence and audiometric testing to determine if appellant’s binaural sensorineural hearing loss was ratable for schedule award purposes. Using Dr. Walker’s audiogram results, he calculated that, under the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had a zero percent binaural hearing loss and a zero percent loss in both the left and right ears. The medical adviser found that appellant’s total decibel loss in the right ear at 500, 1,000, 2,000, and 3,000 was 85 decibels and the average loss was 21 decibels. After he subtracted the fence of 25, appellant had a zero percent monaural loss of hearing on the right. In the left ear, the decibel losses totaled 85 decibels and averaged 21 decibels. After subtraction of the fence of 25, appellant had a zero percent monaural loss of hearing on the left. The medical adviser identified the date of maximum medical improvement as March 31, 2015.

By decision dated April 10, 2015, OWCP denied appellant’s schedule award claim as his hearing loss was not sufficiently severe to be ratable.

2
The audiologist noted that appellant was last exposed to loud noise at least 16 hours before testing and that the audiological equipment was last calibrated on November 5, 2014.

2
 LEGAL PRECEDENT

The schedule award provision of FECA3 and its implementing federal regulations4 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, FECA 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 for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

OWCP evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, 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 point out, losses below 25 decibels result in no impairment in the ability to hear everyday speech under everyday conditions. 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 binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.8

ANALYSIS

The Board finds that appellant has not established that he has a ratable hearing loss due to his accepted binaural sensorineural hearing loss. OWCP accepted that he had bilateral sensorineural hearing loss based on the report of Dr. Walker. As part of his March 31, 2015 otologic evaluation, Dr. Walker had audiometric testing performed.

The medical adviser applied OWCP’s standardized procedures to Dr. Walker’s March 31, 2015 audiogram. Test results for the frequency levels recorded at 500, 1,000, 2,000, and 3,000 Hz on the right revealed decibel losses of 10, 10, 20, and 45 decibels respectively, for a total of 85 decibels. This figure, when divided by 4, resulted in an average hearing loss of 21 decibels. The average of 21 decibels, when reduced by the 25-decibel fence and multiplied by 1.5, yielded a zero percent monaural hearing loss of the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 15, 15, 20, and 35 decibels

3
5 U.S.C. § 8107.
4
20 C.F.R. § 10.404.
5
Id. at § 10.404(a).
6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 7 A.M.A., Guides 250.
8
See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

3 respectively, for a total loss of 85 decibels. The medical adviser divided 85 decibels by 4 to find an average of 21 decibels, which, when reduced by the 25-decibel fence and multiplied by 1.5, yielded a zero percent monaural hearing loss of the left ear. As appellant had a monaural hearing loss of zero percent for the left and right ears, the binaural hearing loss was also zero percent.9 Thus, although he has an employment-related binaural hearing loss, it is not sufficient to show impairment of hearing according to the A.M.A., Guides.10

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 that he sustained a ratable hearing loss warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 10, 2015 is affirmed.

Issued: September 1, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

9
See W.W., Docket No. 14-643 (issued July 11, 2014).
10
See M.R., Docket No. 15-0529 (issued July 2, 2015); P.V., Docket No. 13-1870 (issued January 7, 2014).

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