United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

I.B., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

FACILITIES ENGINEERING COMMAND -- 

STATIONS, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 14-388 

Issued: May 20, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 6, 2013 appellant filed a timely appeal from a November 25, 2013 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 has established permanent impairment due to his workrelated injuries. 

FACTUAL HISTORY 

On May 31, 2012 appellant, then a 69-year-old retired boilermaker and boiler plant 

operator, filed an occupational disease claim (Form CA-2) alleging that he developed pleural 

 1

 5 U.S.C. § 8101 et seq.
2

plaques in his lungs as a result of work-related exposure to asbestos. He first became aware of 

his condition and of its relationship to his employment on January 10, 2012. 

In a November 16, 2012 statement of accepted facts, OWCP reported that appellant 

worked as a boilermaker from 1968 to 1974 and worked as a boiler plant operator from 1974 to 

1995 when he retired from employment. The employing establishment confirmed that he 

participated in an asbestos medical surveillance program. 

In a January 10, 2012 medical report, Dr. Herman Bruch, Board-certified in internal 

medicine and subspecialty in pulmonary disease, reported that appellant underwent a pulmonary 

function study on January 10, 2012. He noted that a computerized tomography (CT) scan of the 

chest revealed asbestos-related pleural disease and interstitial fibrosis indicative of pulmonary 

asbestosis. Dr. Bruch stated that appellant had no complaints of dyspnea and his lung function 

showed mild airway obstruction which was probably related to his history of smoking. He found 

no evidence of pulmonary emphysema. Upon review of the study and physical examination, 

Dr. Bruch diagnosed asbestos-related pleural disease and interstitial fibrosis as a result of 

appellant’s federal employment duties. 

OWCP referred appellant together with a statement of accepted facts and a series of 

questions, for a second opinion examination by Dr. Hsien Wen Hsu, Board-certified in internal 

medicine and subspecialty in pulmonary disease. 

On January 10, 2013 appellant underwent a spirometry and pulmonary function analysis 

by Dr. Kristina Kramer, Board-certified in internal medicine and subspecialty in critical care 

medicine and pulmonary disease. The test revealed a forced vital capacity (FVC) of 3.76 liters 

(L) or 107 percent of predicted, a forced expiratory value in the first second (FEV1) of 2.55 L or 

93 percent of predicted and a diffusing capacity of carbon monoxide (DLco) of 22 millimeters 

(mm) per minute or 83 percent of predicted. The ratio of FEV1 to FVC was 68 percent with no 

significant change with bronchodilators. Dr. Kramer found mild isolated obstruction with wellpreserved lung volumes and gas exchange. 

In a January 30, 2013 report, Dr. Hsu examined appellant and reviewed the case record 

and pulmonary function analysis. He opined that appellant had asbestos-related pleural disease 

and interstitial fibrosis due to work-related exposure based on findings of pleural thickening and 

mild interstitial infiltrate noted on both his chest CT and chest x-ray. Dr. Hsu diagnosed pleural 

plaque with presence of asbestos and pulmonary asbestosis. He reported that appellant continued 

to suffer from work-related exposure and his pleural disease and lung fibrotic changes would 

likely continue to worsen throughout his lifetime. In accordance with the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides), Dr. Hsu opined that appellant’s degree of impairment was class 0. An FVC equal or 

above 80 percent (107 percent predicted in his case), FEV1 equal or greater than 80 percent (93 

percent predicted) and a DLco above 75 percent (83 percent predicted) resulted in no ratable 

impairment despite appellant’s subjective complaints.2 

 2

 A.M.A., Guides (2009). 
3

In an October 18, 2013 report, Dr. Emeka Eziri, an OWCP consultant Board-certified in 

pulmonary disease, reported that review of appellant’s medical reports revealed asbestos-related 

pleural disease and interstitial fibrosis without pulmonary emphysema. Based on the sixth 

edition of the A.M.A., Guides, he noted no symptoms of dyspnea, no objective physical findings 

based on normal pulmonary function testing. Dr. Eziri agreed with Dr. Hsu’s determination that 

appellant had a class 0 impairment rating for pulmonary dysfunction which did not represent a 

permanent impairment.3

By decision dated November 25, 2013, OWCP denied appellant’s claim for a schedule 

award. It found that the medical evidence was not sufficient to establish that he sustained any 

permanent impairment to the lungs based on his asbestos exposure. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations 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.4

 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 A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5 For decisions after May 1, 2009, the sixth 

edition of the A.M.A., Guides is used to calculate schedule awards.6

 

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).7 Chapter 5 of the A.M.A., Guides addresses the framework to be used for 

addressing the pulmonary system.8 Table 5-4, Pulmonary Dysfunction, describes four classes of 

pulmonary dysfunction based on an assessment of history, physical findings and objective tests, 

including a comparison of observed values for certain ventilatory function measures and their 

respective predicted values.9 The appropriate class of impairment is determined by the observed 

values for either the FVC, FEV1 or DLco, measured by their respective predicted values. If one 

of the three ventilatory function measures, FVC, FEV1 or DLco or the ratio of FEV1 to FVC, 

 3 Id. at 88, Table 5-4. 

4

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

5 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

6 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

7 Supra note 2 at 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement. 

8 Id. at 77-99. 

9 Id. at 88. 
4

stated in terms of the observed values, is abnormal to the degree described in classes 2 to 4, then 

the individual is deemed to have an impairment which would fall into that particular class of 

impairments, either class 2, 3 or 4, depending on the severity of the observed value.10

OWCP’s procedures provide that all claims involving impairment of the lungs will be 

evaluated by first establishing the class of respiratory impairment, following the A.M.A., Guides

as far as possible. Awards are based on the loss of use of both lungs and the percentage for the 

applicable class of whole person respiratory impairment will be multiplied by 312 weeks (twice 

the award for loss of function of one lung) to obtain the number of weeks payable in the schedule 

award.11 The procedures further provide that, after obtaining all necessary medical evidence, the 

file should be routed to the medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.12

ANALYSIS 

OWCP accepted appellant’s claim for bilateral asbestosis. By decision dated 

November 25, 2013, it denied his claim for a schedule award as the medical evidence was not 

sufficient to establish that he sustained any permanent impairment to his lungs. The Board finds 

that appellant has not met his burden of proof to establish that he sustained a permanent 

impairment due to his work-related bilateral asbestosis.13 

In a January 30, 2013 report, Dr. Hsu reviewed the January 10, 2013 pulmonary function 

analysis and opined that appellant had asbestos-related pleural disease and interstitial fibrosis due 

to his work-related exposure. Based on the sixth edition of the A.M.A., Guides, he determined 

that appellant’s degree of impairment was class 0. An FVC equal or above 80 percent (107 

percent predicted), FEV1 equal or greater than 80 percent (93 percent predicted) and a DLco 

above 75 percent (83 percent predicted) resulted in no impairment despite appellant’s subjective 

complaints.14 

Dr. Eziri reviewed Dr. Hsu’s report and the pulmonary function analysis. He agreed that 

appellant’s asbestos-related pleural disease and interstitial fibrosis resulted in no permanent 

impairment under class 0. Dr. Eziri found no symptoms of dyspnea and no physical findings of 

current disease. Objective tests also established a class 0 impairment rating as appellant’s 107 

percent FVC was above 80 percent, the 93 percent FEV1 was above 80 percent and the 83 

percent DLco was above 75 percent resulting in objective findings of normal pulmonary function 

testing.15 Dr. Eziri provided a well-reasoned report based on a proper factual and medical 

 10 Id. 

11 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(d)(1) (January 2010). 

12 Supra note 6, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) 

(February 2013). 

13 J.P., Docket No. 06-683 (issued October 23, 2006). 

14 Supra note 9. 

15 Id.
5

history and included detailed findings and rationale supporting his opinion. Based on Table 5-4, 

he properly found that appellant had a class 0 impairment rating for pulmonary dysfunction 

which did not demonstrate a permanent impairment.16 As the record does not provide any 

medical opinion finding that appellant sustained permanent impairment of his lung as a result of 

his employment injury, the Board finds that OWCP properly denied his claim for a schedule 

award.17 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish entitlement to 

a schedule award for permanent impairment. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated November 25, 2013 is affirmed. 

Issued: May 20, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Id. 

17 James R. Bender, Docket No. 04-997 (issued August 2, 2004).