United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.N., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 16-0895 

Issued: December 16, 2016 

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 March 26, 2016 appellant filed a timely appeal from a September 30, 2015 nonmerit 

decision and an October 20, 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.2

ISSUES 

The issues are: (1) whether OWCP properly denied further merit review of appellant’s 

case pursuant to 5 U.S.C. § 8128(a) regarding the denial of wage-loss compensation for the 

 1

 5 U.S.C. § 8101 et seq.

2

 The Board notes that appellant submitted additional evidence following the October 20, 2015 decision. 

However, since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final 

decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); 

Sandra D. Pruitt, 57 ECAB 126 (2005). 
2

periods January 1 to July 31, 2012 and July 29 to September 22, 2014; and (2) whether appellant 

met her burden of proof to establish that she was entitled to a schedule award. 

FACTUAL HISTORY 

On August 20, 1998 appellant, then a 39-year-old deportation assistant, filed an 

occupational disease claim (Form CA 2) alleging that she developed bilateral wrist and elbow 

pain, numbness in fingers, and left shoulder pain as a result of training staff members and 

inputting computer data. She did not stop work. The record reveals that in March 1996 

appellant had been involved in a nonwork-related motor vehicle accident and sustained a cervical 

strain. 

On November 20, 1998 OWCP accepted appellant’s claim for bilateral wrist, elbow, and 

shoulder sprain. It did not accept a cervical condition. It requested that she provide medical 

reports related to her 1996 automobile accident before it made a determination regarding whether 

her current cervical symptoms were related to her employment. OWCP subsequently expanded 

acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, gastritis and 

gastroduodenitis, brachial neuritis or radiculitis, and cervical radiculopathy resolved. 

This case has a complicated history as to whether appellant’s cervical condition was 

causally related to the accepted injury and whether it caused periods of disability. This case has 

previously been before the Board.3

 The facts and circumstances as presented in the Board’s prior 

decisions are incorporated herein by reference. The facts relevant to this appeal are as follows. 

On December 8, 1999 appellant stopped work and subsequently filed claims for disability 

compensation. OWCP paid wage-loss compensation. Appellant returned to work on 

November 13, 2000. She was off work intermittently between December 11, 2000 and 

March 19, 2001. In March 2001 appellant resigned from federal employment. In June 2003 she 

returned to federal employment with the U.S. Attorney’s Office. 

On March 12, 2004 OWCP accepted appellant’s claim for cervical radiculopathy, 

resolved. 

 3

 On September 1, 2005 the Board issued an order which set aside a February 23, 2004 OWCP decision because 

appellant was denied the right to a hearing before an OWCP hearing representative. The Board remanded 

appellant’s claim in order for OWCP to provide appellant the opportunity to exercise her right to an oral hearing. 

Docket No. 05-844 (issued September 1, 2005). By order dated February 4, 2010, the Board remanded appellant’s 

case for OWCP to reconstruct and properly deliver the case record to the Board. Docket No. 09-2350 (issued 

February 4, 2010). On May 25, 2011 the Board issued an order that set aside the May 28, 2010 OWCP decision and 

remanded appellant’s case for further development of the medical evidence. Docket No. 10-1810 (issued 

May 25, 2011). In a decision dated December 18, 2012, the Board determined that appellant’s case was not in 

posture for decision as there remained an unresolved conflict in medical opinion regarding whether appellant’s 

cervical condition was causally related to her employment. Docket No. 12-1056 (issued December 18, 2012). In a 

decision dated September 16, 2014, the Board affirmed OWCP’s decision to deny appellant’s request for 

reimbursement of travel expenses on May 22, 2012 because she failed to demonstrate that her travel from California 

to Arizona was necessary and reasonable for treatment of her accepted conditions. Docket No. 13-2097 (issued 

September 16, 2014). 
3

Appellant submitted numerous requests for reconsideration of the decision that her workrelated cervical condition had resolved. 

On May 10, 2010 appellant was terminated from her federal employment. 

OWCP referred appellant’s case to Dr. Ronald Lampert, a Board-certified orthopedic 

surgeon, for examination and an opinion as to whether appellant’s currently claimed cervical 

condition was causally related to her federal employment. In a July 13, 2011 report, Dr. Lampert 

opined that there was no evidence in appellant’s medical history to indicate that she sustained a 

neck injury as a result of her federal employment. He concluded that the disc bulges seen on 

magnetic resonance imaging (MRI) scan evaluation were consistent with her age and not due to a 

traumatic event. 

Following years of further development of the medical evidence, and denials of the claim 

related to appellant’s cervical condition, OWCP determined that a conflict in medical opinion 

existed as to whether appellant’s current cervical condition was causally related to factors of her 

employment. It referred appellant’s claim to Dr. R. Richard Maxwell, a Board-certified 

orthopedic surgeon, for an impartial medical examination and an opinion to resolve the conflict 

in medical opinion evidence. 

In a report dated November 18, 2011, Dr. Maxwell discussed appellant’s history and 

provided physical examination findings. He opined that appellant’s cervical radiculopathy and 

subsequent surgery were not related to her employment. Dr. Maxwell explained that even in an 

overuse syndrome, the repetitive motion of rotary and side-to-side bending would not cause a 

disc bulge or rupture to the point of requiring surgery. He opined that it was more than likely 

that appellant’s flexion extension injury resulted from the 1999 automobile accident. 

OWCP denied appellant’s claim for a cervical condition in a decision dated 

March 5, 2012. It found that the special weight of medical evidence rested with Dr. Maxwell’s 

November 18, 2011 impartial medical examiner’s report. 

Appellant underwent cervical disc surgery on May 16, 2012. Dr. Mohammad K. Khan, a 

Board-certified surgeon, performed disc resections at C5-6 and C6-7. Appellant underwent 

authorized right open carpal tunnel release, left endoscopic carpal tunnel release, and right 

de Quervain’s release on August 1, 2012. This procedure was performed by Dr. Mark 

Mellinger, a Board-certified hand surgeon. 

OWCP paid appellant wage-loss compensation on the supplemental rolls as of 

August 1, 2012. Appellant continued to submit claims for continued disability compensation. 

On December 13, 2012 OWCP received an October 13, 2012 report from Dr. Travis H. 

Calvin Jr., a Board-certified neurosurgeon. In this report, Dr. Calvin related that appellant was 

seen at the request of Dr. Mellinger. He related a detailed history of appellant’s medical 

treatment and current physical examination findings. Dr. Calvin related that appellant was status 

post bilateral carpal tunnel revisions of August 1, 2012, with minimal carpal tunnel symptoms, 

and status post anterior cervical fusion C5-6, stable. He opined that appellant would continue to 

be disabled for two months, as she had to avoid excessive hand use activities. In a progress 

report dated December 4, 2012, Dr. Calvin related that appellant still had residual “tissue edema” 
4

of the right hand, which may require an additional three months to reach maximum recovery. On 

January 15, 2013 he reported that appellant’s carpal tunnel syndrome had improved with no 

motor weakness in neither upper extremity and no sensory deficit. 

In a letter dated February 6, 2013, OWCP requested that Dr. Maxwell provide a 

supplemental report of his November 18, 2011 impartial medical report. Dr. Maxwell was asked 

to include a detailed clinical history, detailed examination findings, and an explanation on 

whether appellant’s cervical condition was causally related to her employment. No response was 

received. 

In February 2013 appellant began receiving medical treatment from Dr. James E. Creek, 

a family practitioner. In May 8 and 22, 2013 reports, Dr. Creek related that appellant continued 

to have bilateral upper extremity pain, numbness, tingling, and grip weakness with persistent 

right cervical shoulder pain. Upon examination of appellant’s cervical spine, he observed a 

healed anterior surgical scar over the midline, painful range of motion, and tenderness of the 

paraspinal musculature, right trapezius muscle, right mid-scapular muscle, and the anterior 

scalene muscles. Dr. Creek provided physical examination findings of appellant’s bilateral upper 

extremities. He noted tenderness and pain with dorsiflexion of the right wrist and weakness and 

tenderness in the right medial epicondyle. Dr. Creek diagnosed cervical degenerative disc 

disease postoperative cervical discectomy, right shoulder strain with impingement and tendinitis, 

right lateral and medial epicondylitis, and bilateral carpal tunnel syndrome. He recommended 

additional diagnostic testing. In various work status reports, Dr. Creek recommended that 

appellant remain off work until April 23, 2014. 

In a letter dated June 24, 2013, OWCP advised appellant that the evidence submitted was 

insufficient to establish her claims for disability compensation beginning January 1, 2012. It 

requested additional evidence to demonstrate that she was unable to work beginning January 1, 

2012 as a result of her accepted conditions. 

On August 8, 2013 appellant called OWCP and asked whether it was able to obtain 

further clarification and a supplemental report from Dr. Maxwell, the impartial medical 

examiner, as instructed by the Board in its December 18, 2012 decision in Docket No. 12-1056. 

The claims examiner indicated that he reviewed appellant’s file and noted that a letter was sent to 

Dr. Maxwell, but without a response. He noted that he would have to obtain another impartial 

medical opinion to resolve the conflict in medical opinion evidence. 

On June 13, 2014 OWCP determined that a conflict in medical opinion evidence existed 

between Dr. Lampert, an OWCP referral physician, and Dr. Calvin, appellant’s treating 

physician regarding whether appellant continued to suffer from a work-related cervical 

condition.4

 It referred appellant, along with a statement of accepted facts (SOAF), to Dr. Harry 

Marinow, a Board-certified orthopedic surgeon for an impartial medical examination in order to 

resolve the conflict. 

 4

 OWCP specifically pointed out that in Dr. Lampert’s July 13, 2011 report, he opined that appellant had not 

sustained an injury to her neck and that there was insufficient evidence to show that ongoing repetitive work had 

caused or aggravated a neck condition. Appellant’s treating physician, Dr. Calvin, however, determined in his 

February 26, 1999 report that appellant’s cervical condition was caused by overuse and poor positioning at work. 
5

In a June 19, 2014 letter, appellant indicated that she received OWCP’s letter which 

referred her to an impartial medical examiner and expressed her refusal to attend the 

examination. She discussed the progression of her claim including the various remands by the 

Board and other OWCP-directed examinations which she attended. Appellant also reviewed 

various medical reports beginning in 2000 and alleged that various doctors had established that 

her cervical injury was work related and that she was unable to work due to her accepted 

condition. She pointed out that OWCP had been developing her claim for 16 years and required 

four different second opinion evaluations in order to determine whether her current cervical 

condition was work related. Appellant related that she had suffered because OWCP had delayed 

gathering the evidence needed for a proper decision. She noted that she submitted various 

medical reports from Dr. Creek and Dr. Calvin, which demonstrated that she was disabled from 

work beginning November 1, 2012 until the present time. 

On July 2, 2014 Dr. Marinow’s office informed OWCP that appellant did not attend the 

impartial medical examination scheduled for July 1, 2014. 

On July 10, 2014 OWCP proposed to suspend appellant’s compensation benefits under 5 

U.S.C. § 8123(d) because she failed to report to the examination on July 1, 2014 as directed 

pursuant to the December 18, 2012 Board decision. Appellant was provided 14 days to explain 

her refusal to attend the examination. 

In a July 16, 2014 letter, appellant responded to OWCP’s notice of proposed suspension 

of compensation due to her failure to report for examination with Dr. Marinow. She noted that 

she sent a letter to OWCP dated June 19, 2014 informing them that she was not going to attend 

the examination. Appellant further noted that the Board’s December 18, 2012 decision ordered 

OWCP to request a supplemental report from Dr. Maxwell, an impartial medical examiner, but 

instead, OWCP referred her for another impartial medical examination. She requested that 

OWCP review the medical evidence provided by Dr. Creek and Dr. Calvin and the 

September 10, 2013 MRI scan examination report before making a second opinion examination 

referral. Appellant also discussed the medical treatment she received and the progression of her 

claim. She noted that every OWCP-directed evaluation was deemed to be of “limited probative 

value” by the Board. Appellant noted that OWCP had accepted her claim for cervical 

radiculopathy, resolved and that she appealed only the “resolved” aspect of that decision. She 

related that she was presently in disability status for accepted injuries, but OWCP refused to 

authorize additional medical treatment other than pain medicine. 

On July 29, 2014 OWCP finalized the suspension of appellant’s wage-loss and medical 

compensation benefits. It determined that appellant’s reasons to refuse to attend an OWCPdirected examination in her June 16 and July 16, 2014 letters were without merit. 

In an August 11, 2014 letter, appellant expressed her concerns about the delays by 

OWCP in the processing of her claim. She alleged that even though the last four OWCPdirected examinations had been deemed of limited probative value, OWCP failed to request the 

physician to elaborate or clarify his findings. Appellant asserted that the question of whether her 

cervical condition was work related was settled so she did not understand why OWCP continued 

to deny her treatment. She discussed her claim and the mistakes and delays by OWCP for the 
6

past 10 years. Appellant resubmitted OWCP’s March 12, 2004 decision which accepted her 

claim for cervical radiculopathy, resolved. 

OWCP rescheduled appellant’s impartial medical examination with Dr. Marinow for 

September 23, 2014. 

In a September 23, 2014 medical report, Dr. Marinow related that appellant worked for 

the employing establishment and reviewed her duties as a deportation docket clerk. He 

discussed appellant’s employment history and reviewed the extensive record of medical reports 

beginning in August 1998 about the medical treatment that appellant received, specifically for 

neck and upper extremity symptoms. Dr. Marinow noted appellant’s current complaints of 

constant cervical spine pain radiating to her trapezius muscles and shoulders, constant bilateral 

shoulder pain aggravated with repetitive movement of her arms, and bilateral elbow pain. He 

provided physical examination findings of appellant’s cervical spine and upper extremities. 

Dr. Marinow diagnosed chronic cervical spine myofascial pain syndrome, degenerative disc 

disease at the C4-5 interspace, bilateral shoulder trapezial myofascitis symptoms with 

acromioclavicular (AC) joint degenerative osteoarthritis, bilateral elbow epicondylar, and 

myofascial pain symptoms, right wrist chronic tendinitis symptoms with chronic carpal tunnel 

syndrome residuals, and left wrist chronic tendinitis symptoms with carpal tunnel syndrome. He 

noted that the medical evidence demonstrated that appellant was experiencing and complaining 

of neck pain symptoms dating back to at least November 1997. Dr. Marinow opined that 

appellant’s cervical condition was causally related to her employment injuries, with subsequent 

aggravation as a result of a second nonindustrially-related motor vehicle accident on 

April 28, 1999. 

OWCP paid wage-loss compensation from November 1, 2012 to July 28, 2014, the date 

that OWCP suspended appellant’s disability compensation. It also paid compensation beginning 

September 23, 2014, the date that appellant attended her impartial medical examination. OWCP 

notified appellant that she would be placed on the periodic rolls. 

In a letter dated June 25, 2015, OWCP informed appellant that she was not eligible for 

compensation for the period July 29 through September 22, 2014 because she did not report to 

the impartial medical examination scheduled for July 1, 2014. It explained that her 

compensation was reinstated following her cooperation with the examination. 

On July 3, 2015 appellant requested reconsideration of OWCP’s denial of compensation 

benefits for the periods January 1 to July 31, 2012 and July 29 to September 22, 2014. She 

alleged that she filed claims for compensation (Form CA-7) for all of 2012, but was not paid for 

the period January 1 through July 31, 2012. Appellant asserted that Dr. Mellinger’s medical 

reports and requests for surgery evinced that she should be entitled to wage-loss compensation. 

She noted that OWCP provided disability compensation for the time period following the 

authorized carpal tunnel release surgery from August 1 to October 31, 2012 and asserted that 

OWCP should pay her disability for the remaining period in 2012 because she was unable to 

return to work and filed timely claims for disability compensation. 

Regarding the period June 29 to September 22, 2014, appellant explained that when she 

received the June 13, 2014 letter from OWCP informing her of her scheduled second opinion 
7

examination she began to panic because she had less than two weeks to gather all her medical 

documentation. When she realized that she did not have enough time to obtain all her medical 

reports before the scheduled examination, she notified OWCP before the seven-day deadline in a 

June 19, 2014 letter that she was not able to attend the scheduled examination. Appellant 

discussed her various letters to OWCP requesting more time to gather evidence before she 

attended the scheduled examination. She alleged that she never obstructed the examination or 

refused to cooperate, but merely requested more time to gather medical evidence, specifically a 

computerized tomography myelogram, which she believed was crucial for the impartial medical 

examiner to review. Appellant believed the denial period was unfair because she sent two letters 

requesting to reschedule the appointment. 

On July 31, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated July 21, 2015, OWCP informed appellant that no medical evidence was 

submitted in support of her schedule award claim. It requested that she submit a medical report 

from her treating physician which addressed whether she reached maximum medical 

improvement (MMI) and whether her accepted conditions caused permanent impairment 

pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

Appellant continued to be treated by Dr. Creek. In progress reports and work status notes 

dated July 29 to September 1, 2015, he noted that appellant complained of constant pain. Upon 

examination, Dr. Creek observed decreased sensation of the left second digit and right fifth digit, 

positive right cervical neck painful range of motion, and tenderness along the midline and 

paraspinal muscles. Tinel’s test was positive, left greater than right, and grip strength was 

decreased, left greater than right. Dr. Creek diagnosed spinal stenosis and right cervical 

radiculopathy. He indicated that appellant was unable to return to work. 

In an August 19, 2015 narrative report, Dr. Creek indicated that he reevaluated appellant 

for neck, shoulder, and bilateral arm pain with associated numbness and tingling in the hands and 

fingers with increasing pain over the last eight to nine years. He noted that since appellant 

underwent several surgeries many physicians had requested authorization for cervical 

myelogram, physical medicine rehabilitation evaluation, pain management evaluation, and 

psychiatric evaluation. Dr. Creek indicated that appellant had not been able to return to work 

because of functional limitations. He diagnosed chronic cervical spine myofascial syndrome, 

degenerative disc disease at C4-5 interspace, past history of anterior cervical discectomy with 

prosthetic replacement, bilateral shoulder trapezial myofascitis symptoms with AC joint 

degenerative osteoarthritis, bilateral elbow epicondylar and myofascial pain symptoms, right 

wrist chronic tendinitis symptoms with chronic carpal tunnel syndrome residuals, and left wrist 

chronic tendinitis symptoms with carpal tunnel syndrome residual. Dr. Creek explained that the 

combination of multiple conditions including the chronic pain syndrome precluded appellant 

from returning to meaningful clerical work. He noted that appellant’s current work status would 

be total temporary disability pending the recommended evaluations. 

Appellant also resubmitted Dr. Marinow’s September 23, 2014 impartial medical report 

and Dr. Creek’s progress reports dated February 25 to June 16, 2015. 
8

In a decision dated September 30, 2015, OWCP denied further merit review of 

appellant’s case. It determined that the evidence submitted was repetitive and substantially 

similar to evidence previously submitted. 

By decision dated October 20, 2015, OWCP denied appellant’s claim for schedule award. 

It noted that appellant provided insufficient medical evidence to establish a schedule award. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.5

 OWCP’s regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

An employee shall exercise his or her right through a request to the district office.6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.7

 

A request for reconsideration must also be received within one year of the date of 

OWCP’s decision for which review is sought.8 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.9 If the request is timely but fails to 

meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.10

ANALYSIS -- ISSUE 1 

The Board lacks jurisdiction to review the merits of the underlying issue of whether 

appellant has established entitlement to wage-loss compensation for the periods January 1 to 

July 31, 2012 and July 29 to September 22, 2014. The Board’s jurisdiction is limited to 

determining whether OWCP properly denied a merit review of her request for reconsideration. 

 5

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

6

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

7 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued 

December 9, 2008). 

8 Id. at § 10.607(a). 

9 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

10 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 
9

Appellant has worked intermittently and has received wage-loss compensation for 

periods of disability related to her carpal tunnel syndrome. She has not received wage-loss 

compensation associated with her cervical radiculopathy claim. Appellant therefore did not 

receive wage-loss compensation during the period January 1 to July 31, 2012, which was a 

period associated with her May 16, 2012 cervical disc surgery. 

On July 29, 2014 OWCP issued a decision suspending her entitlement to compensation 

because she did not attend an OWCP-directed examination scheduled for July 1, 2014. 

Appellant attended the rescheduled examination on September 23, 2014. By decision dated 

June 25, 2015, OWCP paid appellant disability compensation beginning November 1, 2012, 

except for the period July 29 through September 22, 2014. Appellant submitted a request for 

reconsideration of that decision, which was received by OWCP on July 3, 2015. 

The Board finds that in her application for reconsideration appellant has not shown that 

OWCP erroneously applied or interpreted a specific point of law; she has not advanced a 

relevant legal argument not previously considered by OWCP; and she has not submitted relevant 

and pertinent new evidence not previously considered by OWCP. 

Appellant discussed several OWCP-directed examinations that she attended and the 

various remands which determined that these examination reports were not well rationalized. 

The Board notes that appellant has previously made similar arguments in her June 19 and 

July 16, 2014 statements which expressed her refusal to attend the OWCP-directed examination 

on July 1, 2014. As appellant’s allegations do not advance a new legal argument nor 

demonstrate that OWCP erroneously applied or interpreted a specific point of law, these 

allegations do not warrant further review of appellant’s claim. 

Appellant also submitted new medical reports from Dr. Creek dated July 29 to 

September 1, 2015 regarding treatment for her cervical and upper extremity conditions. These 

reports, however, fail to address appellant’s disability during the period January 1 to July 31, 

2012 or appellant’s refusal to attend the impartial medical examination on July 1, 2014 and the 

suspension of her benefits from July 29 to September 22, 2014. The Board notes that the 

submission of evidence that does not address the particular issue involved does not constitute a 

basis for reopening a case.11 

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3) to warrant a review of the merits. Accordingly, the Board finds that OWCP 

properly refused to reopen her case for further consideration of the merits of her claim under 

5 U.S.C. § 8128. 

LEGAL PRECEDENT -- ISSUE 2 

The schedule award provision of FECA12 and its implementing regulations set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

 11 Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000). 

12 5 U.S.C. §§ 8101-8193. 
10

loss, or loss of use, of scheduled members or functions of the body. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The 

method used in making such determination is a matter which rests in the sound discretion of 

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a 

single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule 

losses.13

Not all medical conditions accepted by OWCP result in permanent impairment to a 

scheduled member.14 It is the claimant’s burden to establish that she has sustained a permanent 

impairment of the scheduled member or function as a result of any employment injury.15 Before 

an award may be made, it must be medically determined that no further improvement can be 

anticipated and the impairment must reach a fixed and permanent state, which is known as 

MMI.16 OWCP procedures provide that, to support a schedule award, the file must contain 

competent medical evidence which 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.17

ANALYSIS -- ISSUE 2

OWCP accepted that appellant sustained bilateral wrist, elbow, and shoulder strains, 

bilateral carpal tunnel syndrome, gastritis and gastroduodenitis, brachial neuritis or radiculitis, 

and cervical radiculopathy in the performance of duty as a result of her duties as a deportation 

assistant. On July 21, 2015 it received appellant’s claim for a schedule award. 

The only contemporaneous medical evidence submitted with appellant’s schedule award 

claim are Dr. Creek’s progress reports dated July 29 to September 1, 2015 and a narrative report 

dated August 19, 2015. Although Dr. Creek recounted his medical treatment of appellant for her 

cervical and upper extremity conditions, he did not address whether appellant sustained a 

permanent impairment as a result of her accepted conditions nor opine on whether appellant had 

reached MMI. In order to be entitled to a schedule award, a claimant must establish that she is at 

MMI and sustained a permanent impairment of a scheduled member of the body due to an 

employment injury.18 It is appellant’s burden of proof to submit sufficient evidence to establish 

the extent of permanent impairment.19 As she did not submit any probative medical opinion 

 13 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

14 Thomas P. Lavin, 57 ECAB 353 (2006). 

15 Tammy L. Meehan, 53 ECAB 229 (2001). 

16 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010). 

17 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7 (February 2013). 

18 C.H., Docket No. 16-0263 (issued March 25, 2016); R.E., Docket No. 14-713 (issued June 26, 2014); D.R., 57 

ECAB 720 (2006). 

19 See Annette M. Dent, 44 ECAB 403 (1993). C.C., Docket No. 13-1399 (issued April 24, 2014). 
11

evidence from a physician addressing how her impairment correlated to the appropriate edition 

of the A.M.A., Guides and explaining the causal relationship between the findings and her 

permanent impairment, the Board finds that appellant did not meet her burden of proof to 

establish her entitlement to a schedule award. 

Appellant may request a schedule award based on medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that OWCP properly denied further merit review of appellant’s claim 

under 5 U.S.C. § 8128(a). The Board also finds that appellant has not established that she 

sustained a permanent impairment causally related to her employment condition. 

ORDER 

IT IS HEREBY ORDERED THAT the September 30, 2015 nonmerit decision and 

October 20, 2015 merit decision of the Office of Workers’ Compensation Programs are affirmed. 

Issued: December 16, 2016 

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