United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dallas, TX, Employer

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Docket No. 17-1753

Issued: February 13, 2018

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 August 8, 2017 appellant filed a timely appeal from June 29 and July 7, 2017 merit 

decisions 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 more than six percent permanent impairment of the 

lungs for which she previously received schedule awards. 

FACTUAL HISTORY

On February 9, 2009 appellant, then a 50-year-old vocational nurse, filed an occupational 

disease claim (Form CA-2) alleging that she developed difficulty breathing, shortness of breath, 

 

1 5 U.S.C. § 8101 et seq.
2

nasal and sinus congestion, asthma, eye irritation, and mouth ulcers due to mold and toxin 

exposure at work. She became aware of her condition on June 2, 2008 and its relationship to her 

federal employment on July 2, 2008. The employing establishment indicated that appellant 

worked in a different building after the date of injury. OWCP accepted the claim for an 

aggravation of allergic rhinitis and an aggravation of asthma due to mold exposure.2

In a March 7, 2012 impairment evaluation, Dr. Gregory Powell, a Board-certified 

physiatrist, discussed appellant’s symptoms of shortness of breath and diagnosed occupational 

asthma. He identified the diagnosis as class 1 asthma using Table 5-5 on page 90 of the sixth 

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

Impairment (A.M.A., Guides).

3 Dr. Powell indicated that appellant’s daily use of a 

bronchodilator constituted a class 2 impairment but found that her forced expiratory volume in 

one second (FEV1) was 79 percent of predicted, for a class 1 impairment. He advised that he 

used the class 1 impairment as it was based on objective testing, but modified her impairment 

rating upward due to her daily bronchodilator use, for eight percent whole person permanent 

impairment.

Dr. H. Mobley, an internist and OWCP district medical adviser (DMA) reviewed the 

evidence on July 31, 2012 and noted that Dr. Powell had not included a copy of the pulmonary 

function study (PFS) he relied upon in reaching his impairment determination.4 He 

recommended referring appellant for a second opinion examination.

On August 21, 2012 OWCP referred appellant to Dr. Javed Ashiq, a Board-certified 

internist and pulmonologist, for a second opinion examination regarding the extent of appellant’s 

permanent impairment of the lungs. In a report dated September 11, 2012, Dr. Ashiq interpreted 

a PFS as showing a normal, large airway with no bronchodilator response, mildly reduced 

diffusing capacity of the lungs for carbon monoxide (DLCO), and normal lung volume. He 

diagnosed allergic rhinitis and asthma. Dr. Ashiq advised that appellant’s postbronchodilator 

FEV1 was 88 percent of predicted for a class 0 impairment. He further found a class zero 

impairment for pulmonary dysfunction under Table 5-4 on page 88 based on objective tests, 

history, and examination findings.

Dr. Mobley reviewed the evidence and concurred with Dr. Ashiq’s finding of no lung 

impairment. He noted, however, that Dr. Ashiq should submit a copy of the PFS relied upon in 

reaching his impairment rating. 

In an impairment evaluation dated April 6, 2015, Dr. Louise Lamarre, a family 

practitioner, discussed appellant’s history of injury. She reviewed a November 21, 2012 PFS

 

2 By decision dated March 6, 2009, OWCP denied appellant’s claim as the medical evidence was insufficient to 

establish a diagnosed condition as a result of the accepted work factors. On September 8, 2009 it vacated its 

March 6, 2009 decision and accepted the claim for an aggravation of allergic rhinitis and asthma.

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

4 By decision dated May 15, 2012, OWCP denied appellant’s claim for wage-loss compensation on February 13 

and 21, March 7, and April 24, 2012. On September 7, 2012 it vacated the May 15, 2012 decision and found that 

she was entitled to compensation for four hours per day on those dates for time lost due to doctor’s appointments.
3

showing an FEV1 of 59 percent of predicted and a study two years later showing an FEV1 of 70 

percent of predicted. Dr. Lamarre noted that a July 28, 2008 computerized tomography (CT) 

scan revealed nodules in the right upper lobe of appellant’s lung. She identified the diagnosis as 

class 1 asthma using Table 5-5 on page 90 of the A.M.A., Guides based on the PFS showing an 

FEV1 of 70 percent of the predicted value, which yielded a default value of six percent. 

Dr. Lamarre moved the value to grade D due to appellant’s periodic exacerbations of her 

condition, frequent use of medication, the lung nodule on the CT scan, and the prior PFS 

showing an FEV1 of 59 percent of predicted, for a final impairment rating of eight percent of the 

whole person.

OWCP determined that a conflict in medical opinion existed between Dr. Lamarre and

Dr. Powell, appellant’s physicians, and Dr. Ashiq, who had provided a second opinion 

examination, regarding whether appellant sustained a permanent impairment of the lungs. On 

May 16, 2016 it referred her to Dr. Dennis M. Parker, a Board-certified internist and 

pulmonologist, for an impartial medical examination.

In a report dated August 8, 2016, Dr. Parker discussed appellant’s history of injury. He 

obtained a PFS demonstrating a forced vital capacity (FVC) of 72 percent of normal and an 

FEV1 of 73 percent of normal before bronchodilators and an FVC of 77 percent of normal and an 

FEV1 of 76 percent of normal after bronchodilators. Using Table 5-4 on page 88 of the A.M.A., 

Guides, Dr. Parker found that appellant had class 1 impairment due to allergic asthma based on 

her intermittent use of albuterol. He determined that she had no physical findings and did not 

use optimal effort on PFS, for a class zero permanent impairment based on testing. Dr. Parker 

related, “Therefore, I would characterize [appellant’s] impairment as class 1, grade 1 because her 

history of still requiring intermittent treatment would preclude her from being entirely in class 0 

with zero impairment. I would assign to her at best [two percent] impairment.” He opined that 

appellant had reached maximum medical improvement.

Dr. Albert A. Rizzo, a Board-certified internist and pulmonologist acting as a DMA, 

reviewed the evidence on October 3, 2016 and found that an FVC of 77 percent and an FEV1 of 

76 percent postbronchodilator constituted class 1 impairment with a default value of six percent 

under Table 5-4 on page 88. He further found class 1 impairment due to dyspnea requiring 

medication and class 0 impairment based on physical findings, which adjusted the impairment 

down to four percent. In a supplemental report dated December 14, 2016, Dr. Rizzo related that

Dr. Parker found that appellant had class 0 impairment and then adjusted the impairment upward 

to two percent based on history even though it was a non-key factor. He used the FVC and FEV1

results to find class 1 impairment under Table 5-4, and adjusted the impairment rating downward 

to four percent from the default value of six percent.

By decision dated January 24, 2017, OWCP granted appellant a schedule award for four 

percent permanent impairment of a lung. The period of the award ran for 6.24 weeks from 

August 8 to September 20, 2016.

Appellant, on April 7, 2017, requested reconsideration. By decision dated June 29, 2017, 

OWCP modified in part and affirmed in part the January 24, 2017 decision. It found that 

Dr. Parker’s report constituted the special weight of the evidence and established that appellant 

had six percent permanent impairment of the lungs. OWCP determined that its medical adviser 
4

should not have adjusted the report of the impartial medical examiner (IME), and modified its 

January 24, 2017 decision to show that appellant had six percent permanent impairment.

By decision dated July 7, 2017, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of a lung. The period of the award ran for 3.12 

weeks from September 21 to October 12, 2016.

On appeal appellant questions the period of the award and why it did not begin on the 

date of injury. She notes that she still experiences problems due to her accepted condition.

LEGAL PRECEDENT

The schedule award provision of FECA,5and its implementing federal regulation,6set

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 As of 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 impairment (DBI) 

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 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.11 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 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.12 Table 5-5, relevant to rating impairments due to asthma, 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8 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). 

9 A.M.A., Guides 3 (2009), section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement.

10 Id. at 77-99.

11 Id. at 88.

12 Id.
5

provides whole person permanent impairment ratings based on a designated class (0-4) of 

impairment.13 Depending on the assigned class, the range of whole person permanent 

impairment due to asthma is 0 to 65 percent. 

OWCP’s procedures provide that all claims involving permanent 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.14

FECA provides that, if there is disagreement between an OWCP-designated physician 

and the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.15 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”

16

 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.17

When a case has been referred for a referee evaluation to resolve the issue of permanent 

impairment, it is appropriate for the DMA to review the calculations to ensure the referee 

physician appropriately used the A.M.A., Guides.

18

ANALYSIS

OWCP accepted that appellant sustained an aggravation of allergic rhinitis and an 

aggravation of asthma due to exposure to mold at work. It properly determined that a conflict in 

medical opinion arose between her attending physicians, Dr. Powell and Dr. Lamarre, and the 

OWCP referral physician, Dr. Ashiq, regarding whether she sustained a permanent impairment 

of the lungs due to her accepted employment injury. OWCP properly referred appellant to

Dr. Parker, a Board-certified internist and pulmonologist, for an impartial medical examination.

 

13 Id. at 90.

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

Chapter 2.808.5(c)(1) (February 2013).

15 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on 

behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).

16 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

17 Gary R. Sieber, 46 ECAB 215, 225 (1994).

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.8k (September 2010). Although the DMA may review the opinion of a referee specialist in a schedule award 

case, the resolution of the conflict is the specialist s responsibility. Id. The DMA cannot resolve a conflict in 

medical opinion. Id.
6

When a case is referred to an impartial medical examiner for the purpose of resolving a 

conflict, the opinion of such specialist, is sufficiently well rationalized and based on a complete 

factual and medical background, must be given special weight.19 

The Board finds that the case is not in posture for decision as the impartial medical 

examiner did not provide an impairment rating in accordance with the provisions of the A.M.A., 

Guides. In a report dated August 8, 2016, Dr. Parker identified the diagnosis as asthma. He used 

Table 5-4 on page 89 of the A.M.A., Guides to find class 1 impairment based on appellant’s use 

of albuterol. Dr. Parker noted that a PFS demonstrated an FVC of 72 percent of normal and an 

FEV1 of 73 percent of normal before bronchodilators and an FVC of 77 percent of normal and an 

FEV1 of 76 percent of normal after bronchodilators. Dr. Parker indicated that appellant used 

suboptimal effort on the PFS and had no physical findings, for a class zero impairment, but 

opined that she had class 1 impairment as she still required treatment. He found two percent 

permanent impairment of the lungs. The A.M.A., Guides, however, provides a separate table, 

Table 5-5, for calculating impairments due to asthma.20 The objective tests for asthma 

impairment are not the same as for rating other pulmonary function impairments under 

Table 5-4.21 

As Dr. Parker did not provide an impairment rating in accordance with the A.M.A., 

Guides, his opinion is insufficient to resolve the conflict in medical opinion. OWCP procedures 

note: 

“If the referee specialist submits an opinion which is equivocal, lacks rationale, or 

fails to address the specified medical issues or conflict, the CE [claims examiner] 

should seek clarification or further rationale from that physician. When OWCP 

undertakes to develop the evidence by referring the case to an [OWCP]-selected 

physician, it has an obligation to seek clarification from that physician upon 

receiving a report that did not adequately address the issues that [OWCP] sought 

to develop. 

“Only if the referee physician does not respond, or does not provide a sufficient 

response after being asked, should the CE request a new referee examination.”

22

On remand OWCP shall obtain a supplemental report from Dr. Parker addressing the 

extent of any permanent impairment of the lungs in accordance with the A.M.A., Guides. The 

Board further notes that, in its January 24 and July 7, 2017 decisions, OWCP issued schedule 

awards for impairment to a single lung. However, as noted, OWCP procedures provide that 

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 

 

19 See A.S., Docket No. 17-1033 (issued October 23, 2017); M.P., Docket No. 16-0551 (issued May 19, 2017).

20 A.M.A., Guides 90, Table 5-5; see also M.H., Docket No. 14-0013 (issued April 2, 2014).

21 See L.B., Docket No. 13-1088 (issued September 13, 2013).

22 Federal (FECA) Procedure Manual, supra note 18 at Chapter 2.810.11(e) (September 2010); K.E., Docket No. 

16-1494 (September 19, 2017).
7

of function of one lung) to obtain the number of weeks payable in the schedule award.23 Upon 

remand, OWCP shall determine if its procedures were properly followed. Following this and

such further development as deemed necessary, OWCP shall issue a de novo decision regarding 

appellant’s entitlement to schedule award compensation.

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the July 7 and June 29, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board.

Issued: February 13, 2018

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

 

23 See supra note 13.