J.M. and Department of the Air Force, Laughlin Air Force Command Fire Department (Board decision, March 20, 2024)

ECAB final decision. The Board affirmed OWCP's finding that the record did not establish more than 57 percent binaural hearing loss. A party may petition the Board for reconsideration within 30 days of issuance unless this order 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

An Air Force supervisory firefighter sought a larger schedule award for hearing loss. The Board found that later audiograms were unreliable, based on testing difficulties and their inconsistency with his ability to understand ordinary speech. A later auditory brainstem response test supported the examiner's concern about the audiogram results. The Board affirmed the existing 57 percent award because the record did not establish greater work related hearing loss.

Decision snapshot

• Authority: 5 U.S.C. § 8101 et seq., 5 U.S.C. § 8128(b).
• Outcome: Existing 57 percent binaural hearing loss award affirmed.
• Key point: The later audiograms did not reliably establish a higher impairment rating.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.M., Appellant
)
)
and ) Docket No. 24-0083
) Issued: March 20, 2024
DEPARTMENT OF THE AIR FORCE,
)
LAUGHLIN AIR FORCE COMMAND FIRE
)
DEPARTMENT, Del Rio, TX, 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 JANICE B. ASKIN, Judge
JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 6, 2023 appellant filed a timely appeal from an October 25, 2023 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.2

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 57 percent binaural hearing loss, for which he previously received schedule award compensation.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the October 25, 2023 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. FACTUAL HISTORY

On March 2, 2010 appellant, then a 48-year-old supervisory firefighter, filed an occupational disease claim (Form CA-2) alleging that he sustained sensorineural binaural hearing loss due to factors of his federal employment over the course of a 28-and-half-year fire career. He first became aware of his conditions and realized the relationship to his federal employment on January 1, 1990. On August 7, 2012 OWCP accepted the claim for binaural sensorineural hearing loss.

On August 11, 2012 appellant filed a claim for compensation (Form CA-7) for a schedule award.

By decision dated October 30, 2012, OWCP granted appellant a schedule award for 22 precent binaural hearing loss. The period of the award ran 44 weeks from July 26 to May 29, 2013 and was based on the July 26, 2012 opinion of Dr. Paul W. Loeffler, a Board-certified otolaryngologist, who served as a second opinion physician, and the August 3, 2012 opinion of Dr. Ronald H. Blum, a Board-certified orthopedic surgeon, who served as a district medical adviser (DMA).3

On July 29, 2017 appellant filed a Form CA-7 for an additional schedule award.

By decision dated January 18, 2019, OWCP granted appellant an additional schedule award for 35 percent binaural hearing loss, for a total 57 percent binaural hearing loss. The schedule award included a 4 percent award for tinnitus which was added to the calculated hearing loss of 52.8 percent. The period of the award ran 70 weeks from August 6, 2018 to December 10, 2019 and was based on the August 8, 2018 opinion of Dr. Loeffler, who served again as a second opinion physician, and a September 5, 2018 opinion of DMA Dr. Jeffrey M. Israel, a Board- certified otolaryngologist. Dr. Israel suggested that appellant have yearly audiograms, noise protection and that hearing aids be authorized.

On August 23, 2021 appellant filed a Form CA-7 for additional schedule award compensation. No additional medical evidence was received.4

In a November 7, 2022 development letter, OWCP advised appellant that he must provide medical evidence that reflected an increased impairment to his previously awarded impairment that was a direct result of his federal employment. It afforded him 30 days to submit the required medical evidence. No relevant medical evidence was received.

On November 16, 2022 OWCP referred appellant along with an updated November 7, 2022 statement of accepted facts (SOAF) to Dr. Enrique T. Garcia, a Board-certified

3
Appellant retired from Federal service effective June 1, 2015.
4
The record reflects that, under OWCP File No. xxxxxx894, on June 21, 2022 appellant filed a notice of traumatic injury (Form CA-1) alleging that he had sustained bilateral hearing loss. By decision dated October 25, 2023, OWCP denied his claim finding that he had not established more than 57 percent total binaural hearing loss. OWCP File No. xxxxxx894 has been combined with OWCP File No. xxxxxx684, with the latter serving as the master file.

2 otolaryngologist, for a second opinion examination and a rationalized medical opinion regarding the relation of the hearing loss to employment-related noise exposure.

Dr. Garcia performed an otolaryngologic examination on December 13, 2022. In a December 16, 2022 report, he indicated that while he did not have audiometric testing reports prior to appellant’s federal employment. Appellant’s audiograms performed in 2012 and 2018 showed a consistent hearing loss pattern and severity consistent with the history of noise exposure described in the SOAF. Dr. Garcia indicated that appellant’s physical examination was unremarkable and that the December 13, 2022 audiogram performed in his office was unreliable, in spite of several attempts at reinstruction, as appellant’s pure-tone averages were grossly inconsistent with his speech reception threshold bilaterally. He opined that appellant had binaural sensorineural hearing loss and binaural tinnitus due to work-related noise exposure, but that the December 13, 2022 audiogram did not allow him to accurately assess its severity. A copy of the December 13, 2022 audiogram and tinnitus handicap inventory worksheet were provided.

On February 8, 2023 OWCP referred appellant along with an updated November 7, 2022 SOAF to Dr. David M. Gleinser, a Board-certified otolaryngologist for a second opinion evaluation and a rationalized medical opinion regarding the relationship of the hearing loss to employment-related noise exposure.

In a February 28, 2023 report, Dr. Gleinser opined, with medical rationale, that appellant had binaural sensorineural hearing loss and binaural tinnitus due to noise exposure in his federal employment. He recommended an auditory brainstem response (ABR), a magnetic resonance imaging (MRI) scan of internal auditory canal (IAC), cognitive behavioral therapy, sleep aids, masking and learning aids. Dr. Gleinser indicated that the February 28, 2023 audiogram which reflected testing at frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed the following: right ear 105, 100, 110, and 120 dBs, respectively and left ear 110, 115, 120, and 120 decibels (dBs), respectively. He indicated that he was unable to condition appellant to respond to any speech testing, but appellant had responded to speech/communication during instructions. Dr. Gleinser additionally noted that audiogram was performed by two separate testers in different booths with same results. Utilizing the sixth edition of the A.M.A., Guides, he found that appellant had monaural hearing impairment of 125.625 percent in right ear and 135 percent in left ear or 100.00 percent binaural hearing impairment. Dr. Gleinser also found an additional four percent impairment for severe tinnitus. He recommended hearing aids. A copy of the February 28, 2023 audiogram and tinnitus handicap inventory worksheet were provided.

On March 23, 2023 Dr. Israel, serving as a DMA, reviewed Dr. Garcia’s December 13, 2022 report and Dr. Gleinser’s February 28, 2023 report. He opined that the maximum medical improvement (MMI) audiogram date was February 28, 2023 as that was the latest audiogram in the records. Dr. Israel opined that Dr. Gleinser’s February 28, 2023 audiogram results were suspect as appellant was not able to be conditioned to properly take the audiogram twice; yet, according to the audiologist, he was able to understand voice communication. He noted that the prior audiogram of December 13, 2022 also showed difficulty in conditioning to testing and very poor speech reception thresholds/ pure-tone average (SRT/PTA) correlation. Dr. Israel explained that the hearing levels 2.5 months prior were much better (but still suspect at that time) added further credence to the concerns regarding the February 28, 2023 audiogram. He suggested that appellant have an ABR test to help better understand the level he was hearing. Dr. Israel calculated

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100 percent binaural loss based on the results of the February 28, 2023 audiogram, reiterating that the results were suspect.

On April 26, 2023 OWCP requested a supplemental report from Dr. Gleinser. In a June 7, 2023 supplemental report, Dr. Gleinser opined that any decrease in hearing was not related to appellant’s employment noise exposure, but rather was due to a functional impairment or a faked response. He opined that appellant failed to cooperate with the examination, noting that appellant had responded to normal level of speech which did not fit the audiogram finding. Dr. Gleinser agreed that the requested ABR test would help determine the validity of the test results.

On June 29, 2023 OWCP requested another supplemental report from Dr. Gleinser. No response was received.

On August 17, 2023 OWCP referred appellant to F.C., an audiologist, for diagnostic ABR testing. In a September 18, 2023 report, F.C. noted that appellant had reported diagnosis of Parkinson’s/early onset dementia, that he stopped wearing hearing aids, and, throughout testing, exhibited no typical indicators of having difficulty hearing conversational level speech when either given test instruction or during general conversation. Based on the ABR testing, F.C. found a moderate hearing loss at 4,000 Hz for the right ear and a moderately-severe hearing loss in the left ear at 4,000 Hz with an inconclusive response for the right ear at higher Hz and a possible moderately severe hearing loss at higher Hz for left ear. F.C. opined that the thresholds obtained for 4,000 and 5,000 Hz in both ears were most consistent with audiometric results from 2018.

In an undated supplemental report, which OWCP received on September 27, 2023 Dr. Gleinser opined that, based on the September 18, 2023 ABR testing,5 appellant’s hearing loss examination results from February 28, 2023 were not valid because appellant was able to communicate at normal speaking levels. He also opined, based on the ABR testing, that appellant likely had a moderate hearing loss in appellant’s right ear in the high frequencies, and a moderate- severe hearing loss in his left ear in the high frequencies. Dr. Gleinser noted that audiologist opined that there was likely moderate hearing loss at the low frequencies despite inconclusive responses. He opined that appellant either did not understand how to respond to the formal audiogram, or had functional hearing loss.

By decision dated October 25, 2023, OWCP denied appellant’s claim for entitlement to an increased schedule award.

LEGAL PRECEDENT

The schedule award provision of FECA,6 and its implementing federal regulations,7 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. FECA, however, does not specify the manner in which the percentage loss of a member shall be determined. The method used in making such a determination is a matter which rests in the 5 Dr. Gleinser incorrectly noted that the ABR testing was performed on September 19, 2023.
6
Supra note 1.
7
20 C.F.R. § 10.404.

4 discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a single set of tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of permanent impairment according to the standards set forth in the sixth edition of the A.M.A., Guides, to the Evaluation of Permanent Impairment (A.M.A., Guides).8 The Board has approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the body for schedule award purposes.9

For hearing loss claims, the Board requires that the employee undergo both audiometric and otologic examination, that the audiometric testing precede the otologic examination, and that the audiometric testing be performed by an appropriately certified audiologist. The Board has explained that all audiological equipment authorized for testing meet the calibration protocol contained in the accreditation manual of the American Speech and Hearing Association. The audiometric test results must include both bone conduction and pure tone air conduction thresholds, speech reception thresholds and monaural discrimination scores, and the otolaryngologist’s report must include: date and hour of examination; date and hour of employee’s last exposure to loud noise; and a statement of the reliability of the tests.10

OWCP evaluates industrial hearing loss in accordance with the standards contained in the A.M.A., Guides.11 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each frequency are averaged. Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech under everyday conditions.12 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.13 The binaural loss of hearing 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.14 The Board has concurred in OWCP’s adoption of this standard for evaluating hearing loss.15

The A.M.A., Guides provides that if tinnitus interferes with activities of daily living, including sleep, reading (and other tasks requiring concentration), enjoyment of quiet recreation,

8
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 2.808.5.a. (March 2017); see also Chapter 3.700.2, Exhibit 1 (January 2010). 9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
10
See E.E., Docket No. 19-1763 (issued March 24, 2020); J.G., Docket No. 12-1469 (issued January 11, 2013).
11
A.M.A., Guides 250.
12
Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).
13
Id.
14
Id.
15
See D.R., Docket No. 20-1570 (issued April 14, 2021); V.M., Docket No. 18-1800 (issued April 23, 2019).

5 and emotional well-being, up to five percent may be added to a measurable binaural hearing impairment.16

The Board has long recognized that, if a claimant’s employment-related hearing loss worsens in the future, he or she may apply for an additional schedule award for any increased permanent impairment. The Board has recognized that a claimant may be entitled to an award for an increased hearing loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the medical evidence of record.17

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 57 percent binaural hearing loss, for which he previously received schedule award compensation.

On March 23, 2023 Dr. Israel, the DMA, reviewed Dr. Garcia’s December 13, 2022 report and audiogram and Dr. Gleinser’s February 28, 2023 report and audiogram. He opined that the results of both audiograms were suspect. Dr. Israel explained that Dr. Gleinser’s February 28, 2023 audiogram results were suspect as appellant was not able to be conditioned to properly take the audiogram twice; yet, according to the audiologist, he was able to understand voice communication. He also noted that appellant’s December 13, 2022 audiogram also showed difficulty in conditioning to testing and very poor SRT/PTA correlation. Dr. Israel explained that appellant’s hearing levels 2.5 months prior were much better (but still suspect at that time) further added credence to the concern of inaccurate testing of the February 28, 2023 audiogram. He suggested that appellant undergo an ABR test to help better understand the level he was hearing. In a June 7, 2023 supplemental report, Dr. Gleinser agreed with the recommended ABR testing to determine the validity of the appellant’s February 28, 2023 test results. He also opined that any increase in hearing was not related to appellant’s employment noise exposure, but rather was due to a functional impairment or a faked response, noting that appellant failed to cooperate with the examination and had responded to normal level of speech which did not fit the audiogram finding.

Based on the September 18, 2023 ABR testing, Dr. Gleinser subsequently opined that appellant’s hearing loss examination results from February 28, 2023 were not valid as appellant was able to communicate at normal speaking levels. He further opined that appellant either did not understand how to respond to the formal audiogram or had functional hearing loss.

The ABR test was provided to determine the validity of appellant’s February 28, 2023 audiogram. Based on the September 18, 2023 ABR testing, Dr. Gleinser opined that appellant’s hearing loss examination results from February 28, 2023 were not valid. He reiterated his prior opinion that any increase in hearing was not related to appellant’s employment noise exposure. As Dr. Gleinser opined that, any additional hearing loss was not related to appellant’s federal employment, the Board finds that Dr. Gleinser’s opinion is probative as it is rationalized, based on a thorough examination, and an accurate work history.18

16
A.M.A., Guides 249.
17
J.O., Docket No. 08-0735 (issued September 10, 2008); Paul Fierstein, 51 ECAB 381 (2000).
18
See C.M., Docket No. 16-0529 (issued December 14, 2016); J.M., Docket No. 07-2138 (August 6, 2008).

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 Accordingly, the medical evidence of record is insufficient to establish greater than 57 percent binaural hearing loss, for which appellant previously received schedule award compensation, the Board finds that he has not met his burden of proof.

Appellant may request a schedule award or increased schedule award at any time based on evidence of a new exposure or medical evidence showing progression of an employment-related condition resulting in permanent impairment or increased permanent impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than 57 percent binaural hearing loss, for which he previously received schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2023 merit decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 20, 2024
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge
Employees’ Compensation Appeals Board

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