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United States Department of Labor

Employees’ Compensation Appeals Board

 

 

__________________________________________   ELMA BROWN, Appellant   and   TENNESSEE VALLEY AUTHORITY, WIDOWS CREEK FOSSIL PLANT, Stevenson, AL, Employer __________________________________________

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Docket No. 03-1380 Issued: January 20, 2004

 

Appearances:                                                                          Case Submitted on the Record

Elma Brown, pro se

Office of Solicitor, for the Director

 

 

DECISION AND ORDER

 

Before:

ALEC J. KOROMILAS, Chairman

DAVID S. GERSON, Alternate Member

WILLIE T.C. THOMAS, Alternate Member

 

 

JURISDICTION

 

Appellant filed an appeal on April 28, 2003 of an April 8, 2003 decision of the Office of Workers’ Compensation Programs, finding that his hearing loss was not related to factors of his federal employment.  Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.  On appeal, appellant argued that Dr. Joseph Motto, a Board-certified otolaryngologist and second opinion physician, was biased in favor of the employing establishment and performed an inaccurate evaluation.

ISSUE

 

The issue on appeal is whether appellant has established that he sustained a hearing loss in the performance of duty.

FACTUAL HISTORY

 

            On July 17, 2002 appellant, a 66-year-old former federal employee, filed a notice of occupational disease alleging that his binaural hearing loss was caused by noise exposure in the course of his federal employment.  Appellant asserted that he first became aware of his hearing loss on or about July 31, 1998, the date he retired from federal employment.

           

Appellant submitted a history of his noise exposure, including private sector employment from 1955 to 1965 laying tile and operating a yarn press, both of which involved exposure to significant machine noise.  Appellant worked at the employing establishment from October 1966 to July 31, 1998 as an operator, laborer and miner.  Among these positions, appellant alleged exposure to hazardous noise during his work as an auxiliary operator from October 4, 1993 to mid-November 1995, and as a coal handler from November 13, 1995 until his retirement on July 31, 1998.  Appellant alleged that there was “no hearing protection provided until OSHA [Occupational Safety and Health Administration] stepped in” on an unspecified date.  In a November 21, 2002 letter, the employing establishment acknowledged that fossil plant laborers were exposed to noise levels between 75 to 91 decibels for 4 to 6 hours per day, but that appropriate earplugs and muffs were provided.[1]

           

Appellant submitted periodic employing establishment audiograms obtained from December 7, 1976 to February 25, 1997. The February 25, 1997 audiogram showed the following thresholds at 500, 1,000, 2,000 and 3,000 hertz (Hz):  on the left -- 15, 15, 15 and 35 decibels; on the right -- 15, 20, 20 and 30 decibels.[2]

  

            To obtain a current evaluation and opinion on causal relationship, the Office referred appellant, the record and a statement of accepted facts to Dr. Motto, a Board-certified otolaryngologist.  In a February 25, 2003 report, Dr. Motto obtained an audiogram showing the following thresholds at 500, 1,000, 2,000 and 3,000 Hz for air conduction:  on the left -- 25, 20, 30 and 55 decibels; on the right -- 50, 50, 55 and 55 decibels.  Dr. Motto found inconsistencies between appellant’s air and bone conduction results[3] as well as between speech reception thresholds and pure tone averages, indicating a functional hearing loss as opposed to an organic impairment.  Therefore, Dr. Motto concluded that appellant’s audiometric tests results were invalid and that he required reevaluation.  Dr. Motto diagnosed “bilateral sensorineural hearing loss with a large functional component,” not due to noise exposure during his federal employment.  Dr. Motto explained that, although there was “a lot of noise at the workplace,” appellant’s hearing loss from ages 40 to 61 at 6,000 Hz “failed to exceed age expected loss,” then appeared to nearly double
between ages 61 and 66, although the “audiologist found testing to be nonconsistent!”[4] (Emphasis in the original.)

 

By decision dated April 8, 2003, the Office denied appellant’s claim on the grounds that causal relationship was not established.  The Office found that appellant’s hearing loss was due to presbycusis, or age-related hearing loss, and not to noise exposure in the course of his federal employment.

 

LEGAL PRECEDENT

 

            To establish that a condition was sustained in the performance of duty in an occupational disease claim, a claimant must submit the following:  (1) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; (2) a factual statement identifying the employment factors alleged to have caused or contributed to the etiology of the disease or condition; and (3) medical evidence establishing that the employment factors identified by the claimant were the proximate cause of the condition for which compensation is claimed.  Stated differently, the claimant must submit medical evidence establishing a causal relationship between the diagnosed condition and the identified employment factors.[5]  Causal relationship is generally established by rationalized medical evidence explaining how and why factors of the claimant’s federal employment caused or contributed to the claimed condition.  Such evidence must be based on a complete and accurate factual and medical history, and be of reasonable medical certainty.[6]

 

            Hearing loss is among those conditions specified in the schedule award provisions of the Act[7] and its implementing regulation,[8] which sets forth the number of weeks of compensation payable to employees sustaining permanent impairment from loss, or loss of use, of members or functions of the body listed in the schedule.  The A.M.A., Guides has been adopted by the implementing regulations as the appropriate, uniform standard in evaluating schedule losses.[9]  The Office evaluates hearing loss in accordance with the standards set forth in the A.M.A., Guides,[10] using audiometric test results at the frequencies of 500, 1,000, 2,000 and 3,000 Hz (cycles per second).[11]  The Board has concurred in the Office’s adoption of this standard for evaluating hearing loss.[12]

 

ANALYSIS

 

In this case, the Office referred appellant to Dr. Motto, a Board-certified otolaryngologist, for a rationalized opinion as to whether appellant’s bilateral hearing loss was ratable under the A.M.A., Guides, and if such loss was related to factors of his federal employment.  He submitted a February 25, 2003 report opining that appellant’s invalid audiometric test results indicated a functional hearing loss and not an organic impairment.  Dr. Motto diagnosed a bilateral sensorineural hearing loss “with a large functional component,” due to presbycusis.  Appellant has not provided any evidence indicating that occupational noise exposure during the course of his federal employment caused any of his hearing loss.  Thus, in the absence of rationalized opinion establishing a causal relationship between appellant’s diagnosed hearing loss and factors of his employment, the Office properly denied compensation.[13]

 

CONCLUSION

 

The Board finds that appellant failed to establish that his hearing loss was causally related to his employment.

ORDER

 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated April 8, 2003 is hereby affirmed.

Issued: January 20, 2004

Washington, DC

 

 

                                                                                                            Alec J. Koromilas

                                                                                                            Chairman

 

 

 

 

                                                                                                            David S. Gerson

                                                                                                            Alternate Member

 

 

 

 

                                                                                                            Willie T.C. Thomas

                                                                                                            Alternate Member