United States Department of Labor

Employees’ Compensation Appeals Board

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S.R., Appellant

and

DEPARTMENT OF THE ARMY, RESERVES 

COMMAND, Fort McCoy, WI, Employer

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Docket No. 17-1512

Issued: December 12, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 29, 2017 appellant filed a timely appeal from a June 5, 2017 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 of a scheduled 

member due to his work-related injuries, warranting a schedule award.

FACTUAL HISTORY

On May 13, 2014 appellant, then a 60-year-old heavy mobile equipment repairer, filed an 

occupational disease claim (Form CA-2) alleging that he was exposed to asbestos. He did not 

note on the claim form whether he had stopped work. 

 

1

5 U.S.C. § 8101 et seq.
2

By letter dated April 26, 2016, OWCP notified appellant that it had scheduled an 

appointment with a second opinion physician in order to determine the nature and extent of his 

claimed condition.

In a report dated May 11, 2016, Dr. Tehmina Badar, Board-certified in pulmonary 

disease, noted contact with and suspected exposure to asbestos and diagnosed chronic 

obstructive pulmonary disease (COPD); and a personal history of nicotine dependence. In an 

attached letter dated May 16, 2016, she noted that a computerized tomography (CT) scan of 

appellant’s chest demonstrated evidence of asbestosis. Dr. Badar concluded that it was highly 

unlikely that the abnormalities in the CT scan were the result of nicotine dependence or exposure 

from smoking.

By decision dated September 1, 2016, OWCP accepted his claim for mild COPD and 

contact with and suspected exposure to asbestos. 

On September 6 and 14, 2016 appellant filed a claim for a schedule award (Form CA-7).

By letter dated September 16, 2016, OWCP informed appellant that it had not received 

any medical evidence in support of his schedule award claim. It explained the requirements of 

medical evidence in order for his schedule award claim to be accepted, including that the 

impairment report must be rendered according to the sixth edition American Medical 

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

2

 Appellant

was afforded 30 days to submit the necessary evidence.

In an undated letter, appellant stated that he lived in a small town and there was no local 

physician who would perform an impairment rating.

As noted in a record of a telephone conversation dated March 7, 2017, appellant told 

OWCP’s representative that he did not have a treating physician and obtained his medical care 

through the Department of Veterans Affairs. The representative explained to appellant that 

OWCP required a medical report with a date of maximum medical improvement (MMI) and an 

impairment rating. Appellant did not submit additional evidence within the time allotted.

By decision dated June 5, 2017, OWCP denied appellant’s claim for a schedule award. It 

noted that he had not submitted medical evidence containing a date of MMI, a description of any 

permanent impairment, or an impairment rating.

LEGAL PRECEDENT

The schedule award provision of FECA3and its implementing federal regulations4set 

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 

 

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

3

Supra note 1 at 8107.

4

20 C.F.R. § 10.404 (2011). 
3

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.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 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, stated in 

terms of the observed values, is abnormal to the degree described in classes 1 to 4, then the 

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

impairments, either class 1, 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

ANALYSIS

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

permanent impairment due to his accepted conditions of mild chronic obstructive pulmonary 

disease and contact with and suspected exposure to asbestos. 

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of any employment injury.12 OWCP procedures 

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

 

5

Id.

6

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

7 A.M.A., Guides 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement.

8

Id. at 77-99.

9

Id. at 88.

10 Id.

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

See R.G., Docket No. 15-209 (issued April 29, 2015).

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

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

on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can 

be visualized on review and computes the percentage of impairment in accordance with the 

A.M.A., Guides.

13

Appellant has not submitted any medical evidence containing a date of MMI, a 

description of the impairment, and a computation of the percentage of impairment in accordance 

with the A.M.A., Guides. While he has submitted medical reports establishing his accepted 

work-related conditions, these reports did not contain the necessary elements to support a claim 

for a schedule award. As such, appellant has not met his burden of proof.

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not established a permanent impairment of a 

scheduled member due to his work-related injuries warranting a schedule award.

ORDER

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

Compensation Programs dated June 5, 2017 is affirmed.

Issued: December 12, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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

Chapter 2.808.5 (February 2013). See V.W., Docket No. 17-976 (issued August 25, 2017).