K.M. and Department of the Army, Joint Munitions & Lethality Command, McAlester, OK (Board decision, April 12, 2016)

ECAB final decision. The Board set aside OWCP’s July 31, 2015 denial and returned the hearing loss claim for further development. 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

K.M., an Army explosives worker, claimed additional hearing loss from workplace noise. OWCP denied the claim after a referral physician attributed his hearing loss to aging. The Board found the physician’s report contradictory: it said the workplace noise was intense and long enough to cause the loss, yet also said the loss was unrelated to federal work. OWCP had previously accepted another hearing loss claim for K.M. The Board set aside the denial and directed OWCP to resolve the medical inconsistency, combine the related case records, and decide again.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: July 31, 2015 denial set aside and hearing loss claim remanded.
• Key point: OWCP’s referral opinion gave conflicting answers about the work-related cause of the hearing loss.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
K.M., Appellant
)
)
and ) Docket No. 15-1812
) Issued: April 12, 2016
DEPARTMENT OF THE ARMY, JOINT
)
MUNITIONS & LETHALITY COMMAND,
)
McAlester, OK, 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 COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 1, 2015 appellant filed a timely appeal from a July 31, 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 met his burden of proof to establish binaural hearing loss in the performance of duty, causally related to factors of his federal employment.

On appeal, appellant contends that when he went to work at the employing establishment in 2003 his hearing was in good shape, it worsened from 2004 to 2007, and in 2010 he was told that he needed to change jobs because his hearing loss was more severe than before.

1
5 U.S.C. § 8101 et seq.
 FACTUAL HISTORY

On August 18, 2013 appellant, a 66-year-old explosives worker, filed an occupational disease claim (Form CA-2) alleging that he sustained additional hearing loss due to noise exposure in the course of his federal employment. On the claim form, the employing establishment indicated that he was reassigned to a light-duty position in storage on January 11, 2011. A statement of accepted facts confirmed that appellant was employed as an explosives worker from 2003 to 2011, that he was a participant in the hearing conservation program, and had a previously accepted claim for binaural hearing loss under OWCP File No. xxxxxx108.

In a September 3, 2013 letter, OWCP notified appellant of the deficiencies of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries. Appellant did not respond.

By decision dated November 26, 2013, OWCP denied appellant’s claim as the evidence was insufficient to establish that the claimed work events occurred as alleged.

On January 14, 2014 appellant requested reconsideration and submitted audiograms dated January 15, 2004 through February 13, 2013 from the employing establishment’s hearing conservation program.

By decision dated February 25, 2014, OWCP denied modification of its prior decision.

On August 25, 2014 appellant again requested reconsideration and submitted an August 15, 2014 narrative statement and memoranda from the employing establishment dated October 20, 2010, September 8, 2011, and May 2, 2012 regarding noise exposure in the workplace and the availability of hearing protection. He also resubmitted audiograms dated January 15, 2004 through December 4, 2013 from the employing establishment’s hearing conservation program.

OWCP referred appellant to The Scholl Center for diagnostic testing to evaluate his hearing. An audiological evaluation dated July 6, 2015 demonstrated mild-to-moderate-severe sensorineural hearing loss in the right ear and mild-to-severe sensorineural hearing loss in the left ear. The July 6, 2015 audiogram exhibited the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 Hertz (Hz): 35, 35, 35, and 45 for the right ear and 30, 30, 35, and 45 for the left ear.

OWCP referred appellant to Dr. Charles Heinberg, a Board-certified otolaryngologist, for a second opinion evaluation to determine the nature and extent of appellant’s employment- related hearing loss. In his July 6, 2015 report, Dr. Heinberg reviewed a statement of accepted facts, appellant’s medical records and history, and conducted a physical examination. He diagnosed bilateral sensorineural hearing loss based on the July 6, 2015 audiogram performed on his behalf. Dr. Heinberg reported appellant’s percent of hearing loss according to the formula derived by the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2 as 19 percent monaural hearing loss in the right ear, 2 A.M.A., Guides (6th ed. 2009).

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15 percent monaural hearing loss in the left ear, and 16 percent hearing loss binaurally. He noted that appellant had a long history of hearing loss since 2004. Dr. Heinberg concluded, however, that appellant’s pattern of hearing loss was “more consistent with presbycusis than noise trauma” and opined that it was not due to noise exposure encountered during the course of his federal employment. In response to OWCP’s question, “Was the workplace exposure, as described in the material provided, sufficient as to intensity and duration to have caused the loss in question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The sensorineural hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure encountered in this claimant’s [f]ederal civilian employment.” (Emphasis in the original.) Dr. Heinberg determined that the date of maximum medical improvement was July 6, 2015 and recommended hearing aids.

On July 28 2015 Dr. H. Mobley, an OWCP medical adviser, reviewed Dr. Heinberg’s report and audiometric test of July 6, 2015. He concurred with Dr. Heinberg’s findings and calculations under the sixth edition of the A.M.A., Guides and concluded that appellant had 16 percent binaural hearing loss. Dr. Mobley concurred with Dr. Heinberg that appellant’s hearing loss was compatible with presbycusis and, therefore, it was not causally related to his federal employment. He further opined that hearing aids should not be authorized as appellant’s hearing loss was not employment related. Dr. Mobley determined that the date of maximum medical improvement was July 6, 2015.

By decision dated July 31, 2015, OWCP denied appellant’s claim as the medical evidence of record failed to establish a causal relationship between his hearing loss and factors of his federal employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA has the burden of establishing the essential elements of his or her claim, including the fact that the individual is an “employee of the United States” within the meaning of FECA, that the claim was timely filed within the applicable time limitation period of FECA, and that an injury3 was sustained in the performance of duty. These are the essential elements of each compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

To establish that an injury was sustained in the performance of duty in a claim for an occupational disease claim, an employee must submit the following: (1) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; and (3) medical

3
OWCP regulations define an occupational disease or illness as a condition produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). 4 See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

3 evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.5

Causal relationship is a medical issue and the medical evidence generally required to establish causal relationship is rationalized medical evidence. The opinion of the physician must be based on a complete factual and medical background of the employee, must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the employee.6

ANALYSIS

The Board finds that this case is not in posture for decision due to inconsistencies in Dr. Heinberg’s second opinion report.

OWCP referred appellant to Dr. Heinberg for a second opinion evaluation to determine the nature and extent of appellant’s employment-related hearing loss. In his July 6, 2015 report, Dr. Heinberg diagnosed bilateral sensorineural hearing loss and noted that appellant had a long history of hearing loss since 2004. In response to OWCP’s question, “Was the workplace exposure, as described in the material provided, sufficient as to intensity and duration to have caused the loss in question?,” Dr. Heinberg replied “Yes.” However, he also opined that, “The sensorineural hearing loss seen is, in part or all, in my opinion NOT DUE to noise exposure encountered in this claimant’s [f]ederal civilian employment.” (Emphasis in the original.) Dr. Heinberg indicated that appellant’s pattern of hearing loss was “more consistent with presbycusis than noise trauma” and opined that it was not due to noise exposure encountered during the course of his federal employment.

The Board finds that OWCP’s referral physician, Dr. Heinberg, provided contradictory findings regarding the cause of appellant’s hearing loss by opining that appellant’s hearing loss was not work related yet also opining that workplace noise exposure was sufficient to have caused appellant’s hearing loss. The Board has held that once OWCP undertakes development of the record, it must do a complete job in procuring medical evidence that will resolve the relevant issues in the case.7 Accordingly, the Board will set aside OWCP’s July 31, 2015 decision and remand the case to OWCP to resolve the issue.

The Board further finds that OWCP previously accepted appellant’s claim for binaural hearing loss as an explosives worker from 2003 to 2011 under OWCP File No. xxxxxx108. Upon return of the case, OWCP should combine the current case record with File No.

5
Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
6
See I.J., 59 ECAB 408 (2008). See also Victor J. Woodhams, 41 ECAB 345 (1989).
7
See Richard F. Williams, 55 ECAB 343, 346 (2004).

4 xxxxxx544.8 Following any necessary further development, OWCP should issue a de novo decision.

CONCLUSION

The Board finds that this case is not in posture for decision. Further development of the evidence is warranted.

ORDER

IT IS HEREBY ORDERED THAT the July 31, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further development consistent with this decision of the Board.

Issued: April 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000) (cases should be doubled when a new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body).

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