United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

DEPARTMENT OF THE ARMY, FORT 

McCOY, Sparta, WI, Employer 

__________________________________________ 

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Docket No. 14-1075 

Issued: November 3, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 7, 2014 appellant, through counsel, filed a timely appeal from a March 13, 2014 

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 may receive a schedule award for her bilateral upper 

extremity impairment. 

On appeal appellant’s counsel argues that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case was previously before the Board.2 Appellant, then a 46-year-old boiler 

fireman, sustained an injury at work on February 9, 1979 when he bumped his head against a 

pipe. OWCP accepted his claim for acute muscle spasm with C5-6 radiculopathy, for which he 

underwent a cervical discectomy and fusion. In a June 20, 1994 decision, OWCP terminated 

appellant’s monetary compensation benefits under section 8106(c) due to his refusal of an offer 

of suitable work. The termination was effective as of June 18, 1994. The facts as set forth in the 

Board’s prior decisions are hereby incorporated by reference. 

On November 21, 2012, January 25 and February 1, 2013 appellant submitted claims for 

a schedule award. 

By decision dated March 12, 2013, OWCP denied appellant’s claim for a schedule award. 

It found that no evidence was submitted to establish the date of maximum medical improvement 

or any percentage of permanent impairment. 

By letter dated March 18, 2013 appellant, through counsel, requested a telephone hearing 

before an OWCP hearing representative. 

In a March 2, 2013 report, Dr. Neil Allen, a Board-certified internist and neurologist, 

listed a diagnosis of displacement of a cervical intervertebral disc without myelopathy. He 

applied the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed., 2009) (A.M.A., Guides). Dr. Allen determined that appellant 

had an upper extremity impairment of 35 percent, comprised of 18 percent motor impairment 

and 17 percent sensory impairment. He made reference to Chapter 17, pertaining to rating 

impairment of the spine. 

The record was referred to Dr. Christopher Gross, an OWCP medical adviser. In a report 

dated April 28, 2013, Dr. Gross determined that the date of maximum medical improvement was 

January 2, 1990, as reflected by the report of Dr. Stephen L. Haug, an attending physician. 

Dr. Haug determined that appellant had degenerative arthritis of the cervical spine with fusion at 

two levels as a result of the 1979 injury. He stated that appellant’s prognosis was poor and he 

did not foresee any change in the future. Dr. Gross determined, based on the clinical findings by 

Dr. Allen, that appellant had 23 percent impairment of the right arm and 5 percent impairment of 

the left arm due to his accepted injury. 

By decision dated June 5, 2013, OWCP hearing representative remanded the case to 

OWCP to further evaluate the medical evidence. 

 2

 In Docket No. 84-725 (issued June 13, 1984), petition for recon. denied, Docket No. 84-725 (issued August 21, 

1984), the Board affirmed OWCP’s finding that appellant failed to establish disability causally related to his 

employment after March 12, 1979, the date he returned to his regular duties. In Docket No. 97-2794 (issued 

April 24, 1998) the Board dismissed appellant’s appeal at his request. In Docket No. 06-1946 (issued July 13, 

2007), Docket No. 09-511 (issued September 4, 2009), petition for recon. denied and Docket No. 09-511 (issued 

December 24, 2009), the Board affirmed OWCP’s denial of reconsideration as his requests were untimely and did 

not establish clear evidence of error. 
3

A payment history inquiry report reflects that appellant received wage-loss compensation 

commencing in 1982 for total disability. Appellant was paid wage-loss compensation until 

June 18, 1994, the date monetary benefits were terminated under section 8106(c)(2) based on his 

refusal of suitable work. The period of wage-loss payments made to appellant incorporate 

January 2, 1990, the date of maximum medical improvement as determined by the medical 

adviser, through September 5, 1991, the date benefits payable under the schedule would cease. 

By decision dated August 28, 2013, OWCP found that the weight of medical opinion was 

represented by Dr. Gross, the medical adviser. It determined that appellant sustained 23 percent 

impairment to the right upper extremity and 5 percent impairment to the left upper extremity. 

The date of maximum medical improvement was on January 2, 1990. The decision noted that 

the schedule awards for the arms equaled 74.88 weeks of compensation, beginning with the date 

of maximum medical improvement on January 2, 1990 and running through September 5, 1991. 

OWCP determined that, as appellant received wage-loss compensation for disability during this 

period, he was not eligible for payment under the schedule award as it would constitute a 

prohibited dual payment. 

On September 5, 2013 appellant, through counsel, requested a telephone hearing. 

 At the January 27, 2014 hearing, appellant’s counsel argued that appellant reached 

maximum medical improvement prior to the date OWCP terminated his benefits in 1994; 

therefore, he should be entitled to schedule award benefits accruing prior to such date. 

 By decision dated March 13, 2014, an OWCP hearing representative affirmed the 

August 28, 2013 decision. 

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 stands applicable to all 

claimants. OWCP evaluates the degree of permanent impairment according to the standards set 

forth in the specified edition of the A.M.A., Guides.

5

 The A.M.A., Guides has been adopted by 

the implementing regulations as the appropriate standard for evaluating schedule losses.6

 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. For impairment ratings calculated on and after May 1, 2009, OWCP uses the sixth edition. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a 

(January 2010). 

6 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 
4

Section 8106(c)(2) of FECA provides in pertinent part, that a partially disabled employee 

who refuses or neglects to work after suitable work is offered is not entitled to compensation.7 A 

claimant who refuses suitable work is not entitled to further compensation, including payment of 

a schedule award, for the permanent impairment of a scheduled member.8

 If, however, a 

claimant reached maximum medical improvement prior to termination for refusal of suitable 

employment, he or she would be entitled to payment of any portion of the schedule award due 

prior to the termination of monetary compensation benefits.9

It is well established that the period covered by a schedule award commences on the date 

that the employee reaches maximum medical improvement from the residuals of the accepted 

employment injury. The Board has explained that maximum medical improvement means that 

the physical condition of the injured member of the body has stabilized and will not improve 

further. The determination of whether maximum medical improvement has been reached is 

based on the probative medical evidence of record and is usually considered to be the date of the 

evaluation by the attending physician which is accepted as definitive by OWCP.10

The Board notes that a claimant is not entitled to concurrent wage-loss compensation and 

a schedule award for the same injury.11 

ANALYSIS 

The Board finds that appellant is not entitled to schedule award compensation from 

January 2, 1990 through September 5, 1991, a period during which he already received wageloss compensation for disability. 

Dr. Allen did not list the date of maximum medical improvement. Dr. Gross, OWCP 

medical adviser, reviewed the medical record and determined that the date of maximum medical 

improvement was January 2, 1990, the date appellant’s then-treating physician noted that his 

prognosis was poor and did not expect appellant’s condition to change in the future. In Marie J. 

Born,

12 the Board reviewed the rule that a period covered by a schedule award commences on 

the date the employee reached maximum medical improvement. The Board stated that 

maximum medical improvement “means that the physical condition of the injured member of the 

 7

 5 U.S.C. § 8106(c)(2). 

8 D.S., Docket No. 08-885 (issued March 17, 2009); Sandra A. Sutphen, 49 ECAB 174 (1997). 

9 Id.; see also G.S., Docket No. 14-408 (issued June 10, 2014). 

10 Mark A. Holloway, 55 ECAB 321, 325 (2004). 

11 See James A. Earle, 51 ECAB 567 (2000). 

12 27 ECAB 623 (1976), petition for recon. denied, 28 ECAB 89 (1976). 
5

body has stabilized and will not improve further.”13 The question is factual and depends in each 

case on the medical findings in the record.14

In this case, the date of maximum medical improvement is clearly supported by the 

weight of medical opinion of Dr. Gross, the medical adviser, based on a review of the medical 

reports of Dr. Haug. Accordingly, the period of appellant’s schedule awards for impairment to 

his arms commenced on January 2, 1990.15 As the schedule awards for the upper extremities 

covered 74.88 weeks of compensation, the end date was on September 5, 1991. The record 

reflects, however, that appellant had already received wage-loss compensation for total disability 

during this time period. 

As held in Eugenia L. Smith,

16 a claimant is not entitled to dual workers’ compensation 

benefits for the same injury. A claimant may not receive compensation for temporary total 

disability based on his or her loss of wage-earning capacity and a schedule award covering the 

same period of time.17 Therefore, appellant cannot receive concurrent wage-loss compensation 

and a schedule award for the same injury.18

Counsel for appellant was correct in stating that he reached maximum medical 

improvement prior to June 20, 1994, when his monetary benefits were terminated under section 

8106(c)(2), but the prohibition against dual benefits for the same injury precludes the receipt of 

schedule award compensation from January 2, 1990 to September 5, 1991 due to the payment of 

wage-loss compensation for total disability during this period. 

CONCLUSION 

The Board finds that appellant is precluded from receipt of schedule award compensation 

for a period he received wage-loss compensation for total disability. 

 13 Id. at 27 ECAB 629. 

14 Id. at 630. See also James Kennedy, 40 ECAB 620 (1989). 

15 See V.B., Docket No. 14-8 (issued March 6, 2014). 

16 41 ECAB 409 (1990). 

17 Id. at 412-13. 

18 James A. Earle, supra note 11. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated March 13, 2014 is affirmed. 

Issued: November 3, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees' Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees' Compensation Appeals Board