United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.F., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

JAMES H. QUILLEN VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Mountain Home, TN, Employer 

__________________________________________ 

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Docket No. 16-0192 

Issued: November 8, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 11, 2015 appellant, through counsel, filed a timely appeal from an 

October 22, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of the decision. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant met his burden of proof to establish permanent impairment 

due to the accepted pulmonary condition. 

On appeal counsel asserts that, because Dr. Martin Fritzhand, a Board-certified urologist, 

provided an impairment evaluation relying on clinical findings, his opinion should carry the 

weight of the medical evidence. 

FACTUAL HISTORY 

On March 6, 2012 appellant, then a 51-year-old painter, filed an occupational disease 

claim (Form CA-2) alleging that spraying lead-based paint during the course of his employment, 

in 104-degree heat, caused breathing problems. He advised that he first became aware of the 

condition and its relationship to his federal employment on March 11, 2011. The paint shop 

supervisor indicated that he was first made aware of the condition on March 11, 2011. The 

supervisor’s acknowledgment signature was signed March 6, 2012. 

On an emergency department treatment note dated March 11, 2011, Dr. Terry L. Puckett, 

Board-certified in preventive medicine and medical director of occupational health services at 

the employing establishment, noted a history that, following two days of painting at work, 

appellant developed a cough, headache, a very sore throat, and raw-feeling lungs. He provided 

physical examination findings and prescribed medication. 

By decision dated April 17, 2012, OWCP denied the claim because the medical evidence 

submitted was insufficient to establish entitlement to benefits. 

In correspondence received by OWCP on April 19, 2012, Dr. Puckett forwarded 

treatment notes dated September 28, 2011 to March 14, 2012. In each of these report, he noted 

appellant’s complaint of periodic shortness of breath. Dr. Puckett indicated that appellant was 

being treated for chemical pneumonitis following exposure to paint and finish vapors in 

March 2011. On March 14, 2012 he advised that appellant had been on prednisone since 

February 2012 and reported improved breathing. Dr. Puckett diagnosed chemical pneumonitis 

with good response to appropriate therapy, as evidenced by current normal spirometry. He 

recommended continued medication. 

On May 2, 2012 appellant, through counsel, requested a hearing. Following a 

preliminary review of the record, in a June 20, 2012 decision, an OWCP hearing representative 

found that the evidence submitted by Dr. Puckett established the claim and she reversed the 

April 17, 2012 OWCP decision. 

On June 25, 2012 OWCP accepted the condition of chemical pneumonitis, ICD-9 code 

506.3.3

 3

 ICD-9 code 506.3 is identified as other acute and subacute respiratory conditions due to fumes and vapors. 

www.cdc.gov. 
3

On May 23, 2014 appellant forwarded a March 6, 2012 schedule award claim (Form 

CA-7) to OWCP. 

By letter dated June 2, 2014, OWCP requested that Dr. Puckett submit an impairment 

evaluation for appellant’s accepted condition of “other acute respiratory conditions due to fumes 

and vapors.” It instructed Dr. Puckett to provide an evaluation in accordance with the American 

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

Guides).4

In a report dated August 26, 2014, Dr. Fritzhand, a Board-certified urologist, noted his 

review of the history of injury and Dr. Puckett’s reports. He described appellant’s report that he 

had not worked since March 2012. Dr. Fritzhand advised that appellant’s acute symptoms 

resolved over two weeks after the March 2011 chemical exposure although he had continued 

shortness of breath which restricted his activity. He related that pulmonary functions were 

obtained. Dr. Fritzhand advised that, in accordance with Table 5-5 of the A.M.A., Guides, which 

deals exclusively with the condition of asthma, appellant had a class 2 impairment, based on key 

factor, for a whole person impairment of 14 percent. Pulmonary function studies dated 

August 27, 2016 demonstrated forced vital capacity 57 percent predicted before bronchodilator 

and FEV1 60 percent of predicted before bronchodilator. 

OWCP forwarded the case record, including Dr. Fritzhand’s report, to Dr. Eric Puestow, 

a Board-certified internist and OWCP medical adviser, for review. In a January 27, 2015 report, 

Dr. Puestow advised that only an acute condition had been accepted, and that Dr. Fritzhand 

reported that appellant’s acute symptoms had resolved two weeks after the March 2011 

exposure. He concluded that, as the accepted condition was no longer present, calculation of a 

schedule award was not appropriate. 

By decision dated February 2, 2015, OWCP found the weight of the medical evidence 

rested with the opinion of OWCP’s medical adviser, Dr. Puestow, and denied appellant’s claim 

for a schedule award. 

Appellant, through counsel, timely requested a hearing, which was held on 

August 5, 2015. He testified regarding his employment history that he continued to have 

respiratory problems and was being treated at the employing establishment. Appellant stated that 

he was not working and had applied for disability retirement. 

In an October 22, 2015 decision, OWCP’s hearing representative reported that no 

additional evidence had been received. She noted that, based on the evidence of record, other 

than the report of Dr. Fritzhand, appellant was last treated for the accepted condition in 2012. 

The hearing representative affirmed the February 2, 2015 decision, finding that appellant had not 

established that any lung impairment was due to the accepted claim. 

 4

 A.M.A., Guides (6th ed. 2009). 
4

LEGAL PRECEDENT 

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

a scheduled member or function as a result of any employment injury.5

 

The schedule award provision of FECA and its implementing federal regulations6

 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.7 For decisions after 

May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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).9

 Chapter 5 of the A.M.A., Guides addresses the framework to be used for 

addressing the pulmonary system.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 

The Board finds that appellant has not established permanent impairment due to a 

pulmonary condition. As noted, it is his burden to establish a permanent impairment of a 

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

6

 20 C.F.R. § 10.404 (2011). See 5 U.S.C. § 8107. 

7 Id. 

8

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

Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

9 Supra note 4 at 3, section 1.3, “The [ICF,] Disability and Health: A Contemporary Model of Disablement.” 

10 Id. at 77-99. 

11 Supra note 8 at Chapter 3.700.4(d)(1). 

12 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013). 
5

scheduled member or function as a result of any employment injury.13 The accepted condition is 

other acute and subacute respiratory conditions due to fumes and vapors (chemical pneumonitis). 

In his August 26, 2014 report, Dr. Fritzhand noted that he had examined appellant. He 

reviewed medical evidence, provided physical examination findings, and advised that he had 

performed pulmonary function studies. Dr. Fritzhand concluded that, in accordance with Table 

5-5 of the A.M.A., Guides, appellant had 14 percent whole body impairment. Moreover, section 

5.5 of the A.M.A., Guides provides the methodology to be used in determining impairment,14

noting that most pulmonary impairments can be rated according to Table 5-4, the standard 

impairment classification table.15 Table 5-5 is used for rating impairment solely for asthma.16 

Dr. Fritzhand did not explain why he used the table for asthma, which is not an accepted 

condition, rather than Table 5-4. For these reasons, his August 26, 2014 report is insufficient to 

establish that appellant is entitled to a schedule award for permanent impairment of his lungs. 

OWCP procedures provide that, to support a schedule award, the record 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 sufficient detail for the claims examiner to visualize 

the character and degree of disability, and gives a percentage of impairment, based on a specific 

diagnosis, not the body as a whole, except for impairment to the lungs.17 When the examining 

physician does not provide an estimate of impairment confirming to the A.M.A., Guides, OWCP 

may rely on the impairment rating provided by its medical adviser.18 Dr. Puestow, the medical 

adviser, indicated that, because only an acute condition had been accepted and this condition was 

no longer present, calculation of a schedule award was not appropriate. 

 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 met his burden of proof to establish permanent impairment 

due to the accepted pulmonary condition. 

 13 See supra note 5. 

14 Supra note 4 at 86-87. 

15 Id. at 87. 

16 Id. at 90. 

17 Supra note 8 at Chapter 2.808.5. 

18 J.Q., 59 ECAB 366 (2008). 
6

ORDER 

IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 8, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board