F.M. and Department of the Navy, Fleet Forces Command, Norfolk, VA (Board decision, November 4, 2015)

ECAB remand decision. The Board set aside OWCP’s July 2, 2015 denial of a schedule award for F.M.’s accepted hearing loss. OWCP must clarify whether the latest hearing test was valid and issue a new decision; the Board made no impairment rating. 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).

Plain-English summary

F.M., a retired Navy materials handler inspector, had accepted hearing loss from workplace noise. OWCP denied a schedule award after treating three audiometric evaluations as invalid. The Board found that the latest specialist had called his results somewhat inconsistent but also said the pure tone results were fairly reliable. He had not clearly declared the test invalid. The Board set aside the award denial and directed OWCP to ask the specialist to clarify the test’s validity before deciding the award claim again.

Decision snapshot

• Authority: 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
• Outcome: July 2, 2015 schedule award denial set aside and remanded for clarification and a new decision.
• Key point: OWCP could not treat the latest hearing test as invalid without clarifying the specialist’s ambiguous opinion.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
F.M., Appellant
)
)
and ) Docket No. 15-1639
) Issued: November 4, 2015
DEPARTMENT OF THE NAVY, FLEET
)
FORCES COMMAND, Norfolk, VA, Employer
)
__________ )

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

DECISION AND ORDER

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 28, 2015 appellant, through counsel, filed a timely appeal from a July 2, 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 OWCP properly denied appellant’s claim for a schedule award due to hearing loss.

FACTUAL HISTORY

On August 28, 2013 appellant, then a retired 64-year-old materials handler inspector, filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to exposure to hazardous noise at work. He indicated that on August 1, 2006 he first became aware

1
5 U.S.C. § 8101 et seq. of his claimed condition and first realized that it was caused or aggravated by his employment. On the same form, appellant’s immediate supervisor indicated that he retired effective December 31, 2011.

In an August 29, 2013 letter, OWCP requested that appellant submit additional factual and medical evidence. It also requested that the employing establishment submit information.

Appellant submitted a detailed statement describing his federal and nonfederal employment over the years, including the type of noise exposure he experienced in each job. He indicated that in some of his federal jobs he was exposed to noise from pneumatic tools, trucks, trains, and heavy equipment. Appellant submitted a January 10, 2012 audiogram that showed mild hearing loss, but the audiogram report was not signed.

On September 10, 2013 appellant filed a claim for a schedule award (Form CA-1).

OWCP referred appellant for evaluation of his claimed hearing loss to Dr. William R.
Lomax, a Board-certified otolaryngologist. In a November 6, 2013 report, Dr. Lomax reported findings of November 4, 2013 audiometric testing. He found that appellant had sensorineural hearing loss which was caused by presbycusis and acoustic trauma, but he checked a box indicating that the audiometic testing results were invalid and unrepresentative of appellant’s hearing sensitivity.2

In a November 14, 2013 report, Dr. Eric Puestow, a Board-certified internist and an OWCP medical adviser, noted that a schedule award could not be calculated because Dr. Lomax had indicated that the November 4, 2013 audiometric testing results were not valid.

OWCP sent appellant to another OWCP referral physician to evaluate his claimed hearing loss. In a May 21, 2014 report, Dr. Kristen Bish, a Board-certified otolaryngologist, reported findings of audiometric testing she obtained on that date. She noted that the testing showed poor morphology and that the results were “inconclusive.”

OWCP then referred appellant for additional evaluation of his claimed hearing loss. In a March 30, 2015 report, Dr. Rocco Cassone, a Board-certified otolaryngologist serving as an OWCP referral physician, reported findings of audiometric testing he obtained on that date. Dr. Cassone noted that the audiometric testing showed a moderate-to-severe sensorineural hearing loss with excellent speech discrimination of 92 percent and 96 percent in the right and left ear, respectfully. He noted that appellant was “somewhat inconsistent” comparing his pure tones to his speech scores and noted, “I do believe the pure tones were fairly reliable and are consistent testing to reach the charted numbers.” In the “impression/recommendation” portion of the report, Dr. Cassone noted that appellant appeared to have a sensorineural hearing loss that was at least in part related to federal employment although there was a little inconsistency in his testing and “this had been similar over his previous testing.” Appellant’s pure tones were slightly worse on the present audiometric evaluation than on his earlier evaluations. Dr. Cassone

2
In his November 6, 2013 report and a supplemental report dated June 9, 2014, Dr. Lomax noted that the January 10, 2012 audiogram of record was a better indicator of appellant’s hearing loss than the audiogram he obtained on November 4, 2013.

2 noted, “It is my feeling that he should be considered to have some possible relation to his noise exposure at work.” He noted there also was a component of presbycusis to appellant’s hearing loss and that amplification should be used.

On April 29, 2015 Dr. Puestow, an OWCP medical adviser, noted that calculation of a schedule award was not possible. He indicated that Dr. Cassone noted that sensorineural hearing loss was possible due to appellant’s employment, but that the audiometric testing results were invalid.

In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to his employment-related noise exposure, but found, “After three evaluations however tests were deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a schedule award of compensation under [FECA].”

LEGAL PRECEDENT

The schedule award provision of FECA3 and its implementing 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 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. The American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) has 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 cycles per second, the losses at each frequency are added up and averaged.7 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.8 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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

3
5 U.S.C. § 8107.
4
20 C.F.R. § 10.404.
5
Id.
6
A.M.A., Guides 250-51 (6th ed. 2009).
7
Id.
8
Id.
9
Id.

3 six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.11

It is well established that proceedings under FECA are not adversarial in nature, and while the claimant has the burden to establish entitlement to compensation, OWCP shares responsibility in the development of the evidence.12

ANALYSIS

On August 28, 2013 appellant filed a claim alleging that he sustained hearing loss due to exposure to hazardous noise at work. He later filed a claim for a schedule award. OWCP developed the record by referring appellant for audiometric testing and evaluation of his claimed hearing loss. After it determined that two OWCP referral physicians obtained test findings that were unreliable, OWCP referred appellant for additional evaluation of his claimed hearing loss to Dr. Cassone, a Board-certified otolaryngologist.

Dr. Cassone submitted a March 30, 2015 report of his March 30, 2015 audiometric testing. Thereafter, Dr. Puestow, a Board-certified internist serving as an OWCP medical adviser, noted on April 29, 2015 that calculation of a schedule award was not possible. He indicated that Dr. Cassone had noted that sensorineural hearing loss was possible due to appellant’s employment, but that the audiometric test results were invalid.

In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to his employment-related noise exposure and noted, “After three evaluations however tests were deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a schedule award of compensation under [FECA].”

The Board notes that Dr. Cassone’s March 30, 2015 report requires clarification as he did not explicitly indicate whether the testing results he obtained were invalid. Dr. Cassone noted that appellant was “somewhat inconsistent” comparing his pure tones to his speech scores and noted, “I do believe the pure tones were fairly reliable and are consistent testing to reach the charted numbers.” In the “impression/recommendation” portion of the report, he noted that appellant appeared to have a sensorineural hearing loss that was at least in part related to federal employment although there was a little inconsistency in his testing and “this had been similar over his previous testing.” Therefore, Dr. Cassone’s opinion on the validity of the testing is vague and in need of clarification.

For these reasons, the case shall be remanded to OWCP in order to obtain a supplemental report from Dr. Cassone clarifying his opinion on the validity of the test results he obtained on March 30, 2015. After carrying out this development, it shall issue a de novo decision regarding appellant’s claim for schedule award compensation.

10
Id.
11
Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No. 01- 1570 (issued August 13, 2002).
12
Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

4
 CONCLUSION

The Board finds that the case is not in posture for decision regarding whether OWCP properly denied appellant’s claim for a schedule award due to hearing loss.

ORDER

IT IS HEREBY ORDERED THAT the July 2, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent with this decision of the Board.

Issued: November 4, 2015
Washington, DC

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

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

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

5