United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.G., Appellant 

and 

DEPARTMENT OF THE INTERIOR, U.S. 

GEOLOGICAL SURVEY, Denver, CO, 

Employer 

__________________________________________ 

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Docket No. 15-1606 

Issued: November 19, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 21, 2015 appellant filed a timely appeal from a July 1, 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 that he is entitled to a 

schedule award for a permanent impairment of the lungs. 

FACTUAL HISTORY 

On March 8, 2010 appellant, then a 73-year-old laborer, filed an occupational disease 

claim (Form CA-2) alleging that he sustained a restriction in the airflow to his lungs and 

blockage of his bronchial tubes after removing and replacing ceiling tiles at work, OWCP File 

 1

 5 U.S.C. § 8101 et seq. 
2

No. xxxxxx933. OWCP accepted the claim for cough, ventilation pneumonitis, unspecified 

allergic alveolitis and pneumonitis, emphysema, shortness of breath, and nonspecific abnormal 

radiologic findings in other intrathoracic organs. 

OWCP also accepted that appellant sustained a left inguinal hernia in File No. 

xxxxxx163, which it doubled into the current file number. It paid him wage-loss compensation 

under file number xxxxxx163 from May 24, 2010 until June 29, 2013, when it terminated his 

wage-loss compensation. OWCP paid appellant compensation for total disability under the 

current file number beginning June 30, 2013. 

In a report dated December 30, 2011, Dr. Tareq Jamil, a pulmonologist, evaluated 

appellant for cough, wheezing, and shortness of breath. He noted that appellant had a history of 

organic dust exposure after replacing ceiling tiles at work. Dr. Jamil opined that a computerized 

tomography (CT) scan dated September 13, 2010 did “not show any parenchymal problem and 

was essentially clear.” He further found that pulmonary function studies showed an obstructive 

and restrictive impairment, but the CT scan did not show “any interstitial scarring process to 

correlate with the restrictive part” and attributed the discrepancy to obesity. 

On September 27, 2013 appellant filed a claim for a schedule award (Form CA-7). By 

letter dated October 11, 2013, OWCP requested that he submit an evaluation from his attending 

physician addressing the extent of any employment-related permanent impairment in accordance 

with the American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th

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

In response appellant submitted a page from the August 10, 2010 opinion of 

Dr. Bogdn C. Nowakowski, a pulmonologist and OWCP referral physician.2

 He further 

submitted a report dated June 12, 2014 from Dr. Reza Berjis, Board-certified in family practice. 

Dr. Berjis obtained a history from appellant of developing pneumonitis and emphysema after 

removing “contaminated ceiling tiles” at work. On examination he found no rhonchi, rales, or 

wheezing and normal auscultation and respiratory effort. Dr. Berjis diagnosed emphysema and 

pneumonitis and referred him for a pulmonary consultation. 

On July 10, 2014 Dr. Ferdinand Tan, a Board-certified internist and treating physician, 

evaluated appellant for employment-related chronic obstructive pulmonary disease. On 

examination he found normal respiratory effort and auscultation. Dr. Tan diagnosed reactive 

airway disease, asthma, a history of uvuloplasty, and a history of septoplasty. He referred 

appellant for a spirometry test and chest x-ray, but noted that appellant refused diagnostic testing. 

In a report dated July 21, 2014, Dr. Marjorie A. Malleck, an internist, indicated that 

appellant had a lung condition covered under workers’ compensation, but was “having difficulty 

getting compensation....” She diagnosed asthma, diabetes, hyperlipidemia, hypertension, and 

depression. In an August 15, 2014 work restriction evaluation, Dr. Malleck found that he was 

totally disabled due to asthma, depression, and low back pain. 

 2

 In a report dated August 10, 2010, Dr. Nowakowski diagnosed cough, organic fungal pneumonitis, unspecified 

allergic alveolitis and pneumonitis, emphysema, dyspnea, and an abnormal chest x-ray. He attributed appellant’s 

condition to organic dust exposure from removing “contaminated ceiling tiles” at work. Dr. Nowakowski advised 

that appellant was totally disabled. Based on his report, OWCP accepted appellant’s claim. 
3

By decision dated January 21, 2015, OWCP denied appellant’s claim for a schedule 

award. It found that he had not submitted medical evidence addressing the extent of any 

impairment under the sixth edition of the A.M.A., Guides. 

On February 11, 2015 appellant requested a review of the written record. In a decision 

dated July 1, 2015, an OWCP hearing representative affirmed the January 21, 2015 decision. He 

found that appellant had not submitted medical reports or diagnostic studies showing an 

impairment of the lungs. The hearing representative noted that the medical reports from Dr. Tan 

and Dr. Berjis showed normal respiratory findings on examination. He also reviewed Dr. Jamil’s 

finding that a 2010 CT scan showed no interstitial scarring, but rather a restrictive impairment 

due to obesity.3

On appeal appellant contends that the physicians were biased. He asserts that Dr. Tan did 

not examine him and complained about the extra work required by OWCP. Appellant alleges 

that the hearing representative ignored medical evidence in finding that his condition resulted 

from obesity rather than his employment-related respiratory condition. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4

 and its implementing federal regulations,5 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

It is the claimant’s burden to establish that he sustained a permanent impairment of the 

scheduled member or function as a result of any employment injury.8 OWCP procedures 

provide that, to support a schedule award, the file must contain competent medical evidence 

which shows that the impairment has reached a permanent and fixed state and indicates the date 

on which this occurred (date of maximum medical improvement), describes the impairment in 

 3

 The OWCP hearing representative indicated that the date of Dr. Jamil’s report was December 30, 2011 rather 

than January 19, 2012. 

4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 

7

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

8 See Tammy L. Meehan, 53 ECAB 229 (2001). 
4

sufficient detail so that it can be visualized on review, and computes the percentage of 

impairment in accordance with the A.M.A., Guides.

9

ANALYSIS 

OWCP accepted that appellant sustained cough, ventilation pneumonitis, unspecified 

allergic alveolitis and pneumonitis, emphysema, shortness of breath, and nonspecific abnormal 

radiologic findings in other intrathoracic organs as a result of removing and replacing ceiling 

tiles at work. It paid him compensation for total disability beginning June 30, 2013. 

On September 27, 2013 appellant filed a schedule award claim. OWCP advised him by 

letter dated October 11, 2013 of the evidence necessary to establish his schedule award claim. It 

specifically informed appellant that he should submit an impairment evaluation from an 

attending physician in accordance with the A.M.A., Guides. Appellant did not, however, provide 

the requested information. He submitted the first page of an August 10, 2010 report from 

Dr. Nowakowski, who provided a second opinion examination. Appellant also submitted a 

June 12, 2014 report from Dr. Berjis who diagnosed emphysema and pneumonitis and referred 

appellant for a pulmonary examination. On July 10, 2014 Dr. Tan diagnosed reactive airway 

disease and asthma and referred him for a chest x-ray and spirometry testing. Appellant, 

however, declined to undergo the diagnostic testing. On examination, both Dr. Berjis and 

Dr. Tan found normal respiratory effort and auscultation. In a report dated July 21, 2014, 

Dr. Malleck evaluated him for an employment-related lung condition. On August 15, 2014 he 

advised that appellant was totally disabled due to low back, pain, asthma, and depression. None 

of these physicians, however, addressed the extent of any permanent impairment due to 

appellant’s employment injury or provided a description of any impairment in sufficient detail to 

allow it to be visualized on review such that the percentage of impairment could be calculated 

under the A.M.A., Guides.

10 Consequently, their reports are insufficient to meet appellant’s 

burden of proof. 

On appeal appellant asserts that the physicians were biased, that Dr. Tan failed to 

examine him, and that Dr. Tan complained about the extra work required by OWCP. As 

discussed, however, the relevant issue is whether he submitted medical evidence establishing a 

permanent impairment to a scheduled member as defined under section 8107 of FECA or the 

implementing federal regulations. Appellant did not provide, as requested by OWCP, a medical 

report specifically addressing whether he had a permanent impairment of his lungs due to the 

accepted work injury. 

Appellant further asserts that OWCP hearing representative wrongly attributed his 

condition to obesity instead of his work injury. OWCP, however, has accepted that he sustained 

an employment-related lung condition and that he is disabled as a result of his injury. The issue 

is whether appellant sustained an impairment of the lungs warranting payment of a schedule 

award. Appellant submitted medical evidence addressing the extent of his disability for work, 

but did not submit any medical evidence showing an impairment of the lungs. Under FECA, the 

term disability means the incapacity, because of an employment injury, to earn the wages that the 

 9 See supra note 7 at Chapter 2.808.5(b) (February 2013). 

10 Id. 
5

employee was receiving at the time of injury.11 Disability is not synonymous with physical 

impairment, which may or may not result in incapacity to earn wages.12 A schedule award is not 

intended to be compensation for wage loss or potential wage loss and is made without regard to 

whether or not there is a loss of wage-earning capacity resulting from the injury or its effects 

upon employment or social opportunities.13 As appellant has not submitted medical evidence 

showing a permanent impairment of the lungs under the A.M.A., Guides, he has not established 

entitlement to a schedule award. 

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 that he is 

entitled to a schedule award for a permanent impairment of the lungs. 

ORDER 

IT IS HEREBY ORDERED THAT the July 1, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: November 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 D.M., 59 ECAB 164 (2007); Sean O Connell, 56 ECAB 195 (2004). 

12 See D.M., id. 

13 L.H., Docket No. 13-1990 (issued February 11, 2014); Renee M. Straubinger, 51 ECAB 667 (2000).