S.S. and Department of the Air Force, Tinker Air Force Base, OK (Board decision, October 9, 2015)

ECAB final decision. The Board affirmed OWCP’s June 10, 2015 schedule award as modified to reflect 39 percent loss of hearing in the left ear. 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

S.S., an Air Force production controller, received a schedule award calculated from 6.6 percent loss of hearing in both ears. The Board found that the percentage should have been rounded to seven percent. It also found that her 39 percent loss in the left ear yielded more weeks of compensation under FECA than the combined-ear calculation. The Board modified the award to use the left-ear rating, resulting in a greater award.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8107.
• Outcome: Schedule award modified to 39 percent left-ear hearing impairment.
• Key point: The calculation providing more compensation for a single ear controlled over the combined-ear calculation.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.S., Appellant
)
)
and ) Docket No. 15-1470
) Issued: October 9, 2015
DEPARTMENT OF THE AIR FORCE,
)
TINKER AIR FORCE BASE, OK, Employer
)
__________ )

Appearances: Case Submitted on the Record
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 29, 2015 appellant, through counsel, filed a timely appeal from a June 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 more than 6.6 percent binaural hearing loss, for which she received a schedule award.

FACTUAL HISTORY

On October 3, 2014 appellant, then a 55-year-old production controller, filed an occupational disease claim (Form CA-2) alleging hearing loss caused by high levels of noise exposure in her employment. She stated that the noise exposure continued until her retirement

1
5 U.S.C. § 8101 et seq. on November 30, 2013. Appellant became aware of her condition and of its relationship to her employment on January 1, 1989.

By letter dated November 21, 2014, appellant, through counsel, responded to a hearing loss questionnaire and submitted audiograms administered while she still worked for the employing establishment.

In a statement of accepted facts dated April 9, 2015, OWCP listed the jobs held by appellant during her time with the employing establishment. Appellant worked as a transcriber from 1979 through 1980 and as a supply clerk and technician in 1980, where she was exposed to the noise of key punches. She was an aircraft engine mechanic from 1980 through 1981 and was exposed to industrial and engine noise. Appellant was provided earplugs as hearing protection. She worked as a material handler, a supply clerk, and a production controller from 1981 through her retirement, and was exposed to the same industrial noises and was continued to be provided with earplugs. Appellant reported that she had no hobbies involving loud noises.

OWCP referred appellant to Dr. Richard B. Dawson, a Board-certified otolaryngologist, for a second opinion evaluation. In a May 5, 2015 report, Dr. Dawson diagnosed bilateral otosclerosis along with high tone sensorineural hearing loss. He opined that appellant’s hearing loss was a mixed hearing loss and in excess of what would be expected due to presbycusis. Dr. Dawson noted that noise exposure in appellant’s federal employment was sufficient to cause hearing loss. Audiometric testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following: left ear decibel losses of 55, 45, 50, and 55 decibels; decibel losses right ear of: 35, 5, 25, and 35 decibels. Dr. Dawson calculated that appellant had a 0 percent monaural right hearing impairment and a 39 percent monaural left hearing impairment, for a combined 7 percent binaural hearing loss. He recommended that appellant wear a hearing aid.

OWCP forwarded Dr. Dawson’s report to a district medical adviser for review on May 19, 2015. In a May 20, 2015 report, the medical adviser concluded that, under the sixth edition of the A.M.A., Guides, appellant had a binaural hearing loss of 6.6 percent. He explained that for the left ear the decibel losses of 55, 45, 50, and 55 totaled 205 decibels. The medical adviser divided 205 by 4, to reach 51.25 decibels, less the fence of 25 decibes, resulted in a balance of 26.25. The balance of 26.25 multiplied by 1.5 equaled a 39.375 percentage hearing loss of the left ear. Applying this same formula to the right ear, the decibel losses of 35, 5, 25, and 35 totaled 100 decibels. The medical adviser divided 100 by 4 to reach 25, less the fence of 25 left a balance of 0. He then calculated the binaural loss by multiplying the lesser right ear loss of 0 by 5, then added the greater left ear loss of 39.375, and divided by 6 to equal 6.6 percent binaural loss.

The medical adviser agreed that hearing aids should be authorized.

By decision dated May 19, 2015, OWCP accepted appellant’s claim for bilateral hearing loss. This decision also noted that the evidence of record established that appellant would benefit from hearing aids. On June 10, 2015 OWCP issued a schedule award for 6.6 percent binaural hearing impairment. It based its decision on the medical findings and reports of

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Dr. Dawson and its medical adviser. The period of the award was for 14 weeks from May 5 to 30, 2015.

LEGAL PRECEDENT

The schedule award provision of FECA2 and its implementing regulations3 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 to all claimants, good administrative practice necessitates the use of a single set of tables so that there may be uniform standards applicable to all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the appropriate standard for evaluating schedule losses.5

OWCP evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 hertz (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.7

ANALYSIS

The Board finds that appellant is entitled to a greater award.

Appellant’s claim of occupational hearing loss was accepted by OWCP based on the report of Dr. Dawson. Test results at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following: left ear decibel losses of 55, 45, 50, and 55 decibels; right ear decibel losses of 35, 5, 25, and 35 decibels. Dr. Dawson properly calculated that appellant had a 0 percent monaural right hearing impairment and a 39 percent monaural left hearing impairment, for a combined 7 percent binaural hearing loss. The medical adviser agreed with Dr. Dawson’s report, explained the calculations and concluded that, in accordance with the sixth edition of the A.M.A., Guides, appellant had a binaural hearing loss of only 6.6 percent. 2 Id. at § 8107.
3
20 C.F.R. § 10.404.
4
See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).
5
Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010).
6
See A.M.A., Guides 250 (6th ed., 2009).
7
J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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 The Board notes initially that it is the policy of OWCP to round the calculated percentage of impairment to the nearest whole point.8 Appellant’s binaural hearing loss should therefore have been rounded up to seven percent binaural impairment.

Furthermore, it is also well established that, if calculations based on the monaural hearing loss result in greater compensation, then the monaural hearing loss calculation should be used.9 Under FECA, the maximum award for binaural hearing loss is 200 weeks of compensation.10 The maximum number of weeks of compensation for hearing loss in one ear is 52 weeks.11 As appellant’s binaural loss is seven percent, 200 weeks multiplied by seven percent equals 14 weeks of compensation. Her left ear monaural loss of 39 percent, when multiplied by 52 weeks equals 20.28 weeks of compensation. Since the monaural loss results in a greater number weeks, OWCP erred in calculating appellant’s schedule award based upon her bilateral hearing impairment. Appellant’s schedule award should have been based upon her left-ear (monaural) hearing impairment.

As such, the Board modifies the June 10, 2015 schedule award decision to reflect a 39 percent monaural, left tear, loss of hearing.

CONCLUSION

The Board finds that appellant is entitled to a greater schedule award for 39 percent left ear, monaural hearing impairment.

8
See Robert E. Cullison, 55 ECAB 570 (2004); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010). 9 See C.C., Docket No. 11-826 (issued October 13, 2011).
10
5 U.S.C. § 8107(c)(13)(b).
11
Id. at § 8107(c)(13)(a).

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 ORDER

IT IS HEREBY ORDERED THAT the June 10, 2015 decision of the Office of Workers’ Compensation Programs is affirmed, as modified.

Issued: October 9, 2015
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge Employees’ Compensation Appeals Board

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