R.L. and Department of Homeland Security, Customs & Border Protection, Del Rio, TX (Board decision, November 12, 2015)

ECAB final decision. The Board affirmed OWCP’s June 8, 2015 denial of a hearing loss schedule award. R.L.’s bilateral work-related hearing loss remained accepted. 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 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

R.L., a Customs and Border Protection communication assistant, had accepted bilateral hearing loss attributed to workplace noise. She sought a schedule award for permanent impairment. The Board found that the measured hearing thresholds at the four frequencies used for the award calculation averaged 20 decibels in each ear, below the 25-decibel threshold for ratable loss. It affirmed the award denial while leaving the accepted hearing loss claim intact. The decision says she may request a future award if new exposure or medical evidence shows progression to a ratable impairment.

Decision snapshot

• Authority: 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
• Outcome: June 8, 2015 schedule award denial affirmed; bilateral hearing loss remained accepted.
• Key point: Accepted work-related hearing loss did not produce a schedule award without a ratable permanent impairment.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
R.L., Appellant
)
)
and ) Docket No. 15-1473
) Issued: November 12, 2015
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Del Rio, TX, 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 June 29, 2015 appellant filed a timely appeal from the June 8, 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’s injury has caused a ratable impairment for hearing loss.

FACTUAL HISTORY

On October 22, 2014 appellant, a 58-year-old communication assistant, filed an occupational disease claim alleging that the hearing loss in her right ear was a result of her

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5 U.S.C. § 8101 et seq. federal employment. OWCP accepted her claim for bilateral hearing loss and referred her to Dr. William C. Smith, a Board-certified otolaryngologist, for a second opinion evaluation.

Dr. Smith diagnosed a mild high frequency sensorineural hearing loss at 6,000 and 8,000 cycles per second, which he believed was due to appellant’s occupational noise exposure. At frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, hearing thresholds were 20, 20, 20, and 20 decibels on the right and 20, 20, 20, and 20 decibels on the left. Dr. Smith calculated that appellant had no ratable hearing loss.

An OWCP medical adviser reviewed the evaluation and agreed. Although he accepted Dr. Smith’s opinion that noise exposure on the job was sufficient to implicate it as a contributing factor to appellant’s mild high-frequency hearing loss, appellant’s hearing loss was not ratable.

In a decision dated June 8, 2015, OWCP denied a schedule award. It explained that appellant’s hearing loss was not severe enough to be considered ratable.

LEGAL PRECEDENT

FECA authorizes the payment of schedule awards for the loss or loss of use of specified members, organs, or functions of the body.2 Such loss or loss of use is known as permanent impairment. OWCP evaluates the degree of permanent impairment according to the standards set forth in the specified edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides (6th ed. 2009).4 Hearing levels at frequencies of 500, 1,000, 2,000, and 3,000 cycles per second are added together and averaged. Then, a “fence” of 25 decibels is deducted because, according to the 1996 American National Standards Institute audiometric standards, averages of 25 decibels or less reflect no change in the ability to hear everyday sounds under everyday listening 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 the binaural hearing loss.5 The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.6

2
5 U.S.C. § 8107.
3
20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010). 4 Id. at § 10.404.
5
A.M.A., Guides 250-51 (6th ed. 2009).
6
J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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 ANALYSIS

The Board finds that appellant has not proven a ratable hearing loss. In comparing the findings of Dr. Smith, the evaluating otolaryngologist, to the procedures set forth in the A.M.A., Guides for determining the extent of any permanent hearing loss it is found that her hearing thresholds at frequencies of 500, 1,000, 2,000, and 3,000 cycles per second were at 20 decibels across the board bilaterally. These hearing levels totaled 80 decibels in each ear for an average of 20.

Because averages of 25 decibels or less reflect no change in the ability to hear everyday sounds under everyday listening conditions, appellant’s hearing is not considered impaired. The hearing losses Dr. Smith recorded were at 4,000, 6,000, and 8,000 cycles per second, high- frequency levels that do not impact appellant’s hearing.

On appeal appellant asserts that she should be compensated for her injury because it was proved that her permanent hearing loss was work related. However, appellant cannot be compensated for her injury as she has not proven ratable impairment caused by her injury. The loss she sustained was at very high frequencies, which does not impair her ability to hear and thus does not result in a ratable permanent impairment of her ability to hear.

The Board finds that OWCP properly applied the standards for determining hearing impairment to the clinical findings recorded by Dr. Smith.

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’s injury has not caused a ratable hearing loss.

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 ORDER

IT IS HEREBY ORDERED THAT the June 8, 2015 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: November 12, 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

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