United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Elk Grove Village, IL, Employer 

__________________________________________ 

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Docket No. 15-1193 

Issued: October 6, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 4, 2015 appellant filed a timely appeal from a December 29, 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 sustained permanent impairment to a scheduled member or 

function of the body. 

FACTUAL HISTORY 

On March 20, 2013 appellant, then a 41-year-old mail handler, fractured her right upper 

arm when she fell at work. She stopped work that day. OWCP accepted the claim for right 

radius head fracture. 

 1

 5 U.S.C. § 8101 et seq. 
2

In a March 25, 2013 diagnostic report, Dr. Parviz Nabavi, a diagnostic radiologist, 

confirmed by x-ray that appellant had a fracture at the radius head of her right arm without 

significant displacement, questionable minimal depression, and joint fluid. 

After a period of physical therapy, appellant was released to work with no restrictions by 

Dr. Michael Birman, a Board-certified orthopedic surgeon. On examination of the right elbow 

Dr. Birman found that it was nontender at the radial head, there was reproducible popping, no 

pain associated with the popping, crepitus that occurred with elbow range of motion, 30 degrees 

of elbow extension, and 135 degrees of flexion. 

Appellant returned to full-time work without restrictions on August 28, 2013. 

Dr. Birman, in an October 7, 2013 report, advised that appellant was six months post 

elbow fracture. Appellant related that her pain resolved and that she was able to perform all 

home and work activities without difficulty. However, she expressed concern with the continued 

crepitus and popping with elbow range of motion. Dr. Birman noted that an x-ray of the right 

elbow revealed a healed radial head fracture and changes at the capitellum. He stated that he was 

concerned with the changes noted at the capitellum due to the potential for further progression of 

these changes over time. Dr. Birman discussed treatment options with appellant including 

surgery and noted that he would reevaluate her later to assess her progress. 

In a January 6, 2014 report, Dr. Birman advised that appellant was still experiencing 

persistent clicking in the elbow with certain movements. He noted that she was functioning well 

despite mild residual elbow stiffness. Dr. Birman again discussed surgical treatment options to 

address the clicking and catching symptoms. He stated that appellant would take the next several 

weeks to decide whether to proceed with surgery. Dr. Birman advised that she would be at 

maximum medical improvement if she elected not to proceed with surgery although there would 

be a possibility of increased symptoms in the future. 

Dr. Birman advised that appellant’s condition was unchanged in a March 17, 2014 report. 

On physical examination he noted that the elbow had no tenderness, no swelling, full supination 

and pronation, reproducible elbow crepitus, and full wrist and hand range of motion. Dr. Birman 

reiterated that appellant had no pain and had returned to her usual activities, including full duty 

work. He advised that she was not interested in surgery, as she had resumed her usual activities 

without pain. Dr. Birman noted that appellant was at risk for progressive arthritis at the radiocapitellar joint and advised that if she experienced worsening symptoms in the future she could 

consider surgery at that time. He advised that appellant was at maximum medical improvement. 

On April 29, 2014 appellant submitted a CA-7 claim form for a schedule award. 

Accompanying the claim was a March 18, 2014 attending physician’s report from Dr. Birman. 

Dr. Birman noted that appellant was discharged from treatment, but had a loss of elbow 

extension and crepitus with elbow range of motion. 

By letter dated May 12, 2014, OWCP advised appellant that the medical evidence was 

not sufficient to establish permanent impairment due to the accepted condition. It requested that 

she submit a detailed medical report with respect to any permanent impairment utilizing the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 
3

Impairment (A.M.A., Guides). Appellant was allotted 30 days to submit the requested 

information, but no additional evidence was received. 

In a December 29, 2014 decision, OWCP determined that appellant had not established 

permanent impairment to the right upper extremity based on the accepted condition. 

LEGAL PRECEDENT 

Section 8107 of FECA provides that, if there is permanent disability involving the loss or 

loss of use of a member or function of the body due to employment, the claimant is entitled to a 

schedule award for the permanent impairment of the scheduled member or function.2

 Neither 

FECA nor the regulations specify the manner in which the percentage of impairment for a 

schedule award shall be determined. For consistent results and to ensure equal justice for all 

claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all 

claimants.3

 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth 

edition.4 

An employee seeking compensation for a permanent impairment under FECA has the 

burden of establishing the essential elements of the claim, including that an employment injury 

contributed to a permanent impairment of a scheduled member or function of the body.5 The 

medical evidence necessary to support a schedule award includes a physician’s detailed report 

that provides a sufficient description of the impairment.6

ANALYSIS 

OWCP accepted that appellant sustained right radius head fracture. However, there is no 

probative medical evidence addressing any permanent impairment to the right arm under the 

A.M.A., Guides. The medical evidence necessary to support a schedule award is evidence that 

describes the impairment in detail, shows the impairment has reached maximum medical 

improvement and provides an opinion as to the percentage of impairment under the A.M.A., 

Guides.

7

 

 2

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

3 A. George Lampo, 45 ECAB 441 (1994). 

4

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

2.808.5a (February 2013). 

5 See A.B., Docket No. 12-1392 (issued January 24, 2013). 

6 See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, supra note 4 at Chapter 

2.808.6(b) (February 2013). 

7 See A.W., Docket No. 13-621 (issued July 22, 2013); Federal (FECA) Procedure Manual, id. at Chapter 

2.808.5(b) (February 2013). 
4

There is no medical report describing a permanent impairment to the right hand or arm 

due to the accepted condition. Accompanying her claim for a schedule award was Dr. Birman’s 

March 18, 2014 report noting, appellant’s discharge from treatment, a loss of elbow extension, 

and crepitus with elbow range of motion. However, he did not otherwise address specific or 

findings essential to an impairment rating.

In a May 12, 2014 letter, OWCP asked appellant to provide a medical report addressing 

permanent impairment. No additional evidence was received. Appellant has failed to establish a 

permanent impairment to a scheduled member. 

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 established a permanent impairment to a scheduled 

member or function of the body. 

ORDER 

IT IS HEREBY ORDERED THAT the December 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 6, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board