United States Department of Labor

Employees’ Compensation Appeals Board

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L.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dearborn Heights, MI, Employer

__________________________________________

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Docket No. 18-1405

Issued: April 8, 2019

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 12, 2018 appellant, through counsel, filed a timely appeal from a May 11, 2018 

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 this case.3

 

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.

3 The Board notes that following the May 11, 2018 decision, OWCP received additional evidence. However, the

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a permanent 

impairment of her right upper or right lower extremity, entitling her to a schedule award. 

FACTUAL HISTORY

On February 12, 2010 appellant, then a 28-year-old carrier/transitional employee, filed a 

traumatic injury claim (Form CA-1) alleging that she sustained injury to her right elbow, shoulder,

and knee when she slipped and fell on an icy sidewalk while in the performance of duty. OWCP 

accepted the claim for right elbow, shoulder, and upper arm sprain, cervical sprain, and right knee 

sprain. Appellant stopped work on February 12, 2010. OWCP paid her wage-loss compensation 

on the supplemental rolls as of March 3, 2010 and on the periodic rolls as of July 4, 2010. 

By decision dated April 9, 2015, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that day. Determinative weight was accorded to the November 12, 

2014 report of Dr. Robert D. Travis, a Board-certified orthopedic surgeon and OWCP referral 

physician, who opined that appellant had no residuals of the accepted conditions, or any additional 

conditions which had been caused or aggravated by the accepted February 12, 2010 employment

injury.

On March 31, 2017 appellant filed a claim for a schedule award (Form CA-7). No evidence 

was submitted in support of her claim.

By development letter dated April 7, 2017, OWCP requested that appellant submit a

permanent impairment evaluation from her attending physician in accordance with the sixth 

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

(A.M.A., Guides).4 No additional evidence was received.

By decision dated May 24, 2017, OWCP denied appellant’s claim for a schedule award as 

there was no evidence to establish that she sustained permanent impairment of a scheduled member 

or function of the body. 

By letter dated June 1, 2017, appellant, through counsel, requested a telephonic hearing 

before an OWCP hearing representative. A telephonic hearing was held on November 13, 2017 

and counsel indicated that new medical evidence established that appellant was at maximum 

medical improvement, but he had been unable to obtain a permanent impairment evaluation.

After the hearing OWCP received a March 21, 2017 report from Dr. William Sharp, Boardcertified in internal medicine, which advised that appellant had reached MMI.5

By decision dated January 26, 2018, an OWCP hearing representative affirmed the 

May 24, 2017 decision denying appellant’s schedule award claim. She found that Dr. Sharp’s 

 

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

5

In a November 13, 2017 letter, counsel indicated that he wished to withdraw his request for reconsideration of 

OWCP’s May 24, 2017 decision.
3

March 21, 2017 statement only advised that appellant had reached MMI, but did not otherwise 

address permanent impairment.

On February 14, 2018 appellant, through counsel, requested reconsideration. 

In a January 17, 2018 report, Dr. Sami E. Moufawad, Board-certified in physical medicine 

and rehabilitation, reviewed appellant’s medical history and provided findings on physical 

examination. He also reviewed diagnostic testing which revealed evidence of right carpal tunnel 

syndrome without denervation, disc displacements at several levels in the cervical spine and 

thoracic spine, straightening of normal lordosis of cervical spine, tendon tear, bursitis, and 

moderate adhesive capsulitis of right shoulder. Dr. Moufawad opined that appellant had reached 

MMI on November 7, 2017. Utilizing the A.M.A., Guides, he opined that appellant had 2 percent 

permanent impairment of the right upper extremity under the diagnosis-based impairment (DBI) 

methodology for rating right shoulder partial thickness tear, but when utilizing the range of motion 

(ROM) methodology she had 12 percent permanent impairment of the right shoulder.

Dr. Moufawad concluded that appellant was entitled to the highest impairment rating, and 

therefore had 12 percent permanent impairment of the right upper extremity. For the right lower 

extremity, he opined that appellant had seven percent permanent impairment for knee sprain with 

mild motion deficits, utilizing the DBI methodology. Dr. Moufawad provided his impairment 

calculations and worksheets.

On March 31, 2017 appellant refiled her claim for a schedule award (Form CA-7). 

By letter dated April 19, 2018, OWCP requested that Dr. Moufawad provide a wellrationalized opinion supported by objective findings explaining how appellant’s examination 

findings were causally related to the accepted employment injury. It noted that Dr. Travis had 

previously opined on November 12, 2014 that appellant no longer had residuals of her accepted 

conditions. OWCP provided a copy of Dr. Travis’ November 12, 2014 report and afforded

Dr. Moufawad an opportunity to respond. In a note to claimant at the bottom of the letter, appellant 

was advised that while OWCP had written directly to her attending physician in an effort to assist 

in obtaining the required information, it remained her responsibility to ensure the submission of 

the necessary evidence. OWCP afforded appellant 20 days to submit the requested evidence. No 

response was received.

By decision dated May 11, 2018, OWCP denied modification of its January 26, 2018 

decision. It found that Dr. Moufawad’s report was of diminished probative value because he had 

not addressed how appellant’s permanent impairment was causally related to conditions that had 

previously resolved. OWCP concluded that the evidence of record was insufficient to establish a

permanent impairment resulting from the accepted February 12, 2010 employment injury.

LEGAL PRECEDENT

The schedule award provision of FECA and its implementing regulations 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.6 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 to all claimants, good administrative practice necessitates the 

 

6 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
4

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

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides.

8

 The Board has approved the use by OWCP of the A.M.A., Guides for the 

purpose of determining the percentage loss of use of a member of the body for schedule award 

purposes.9

OWCP procedures and Board precedent provide that termination of a claim for all benefits 

due to a finding of no residuals of the accepted condition does not bar a subsequent schedule award. 

Rather, the claims examiner should consider the schedule award matter separately from the 

termination of benefits.10 This is because a claimant may have an employment-related condition 

that results in a permanent impairment under the A.M.A., Guides without a disability for work or 

the need for continuing medical treatment.11 If a claimant applies for a schedule award after 

termination of compensation benefits and submits sufficient medical evidence reflecting a 

permanent impairment as a result of the work-related injury exposure, the claims examiner should 

further develop the claim.12

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his or her employment.13 For conditions not accepted by OWCP as being 

employment related, it is the employee’s burden to provide rationalized medical evidence 

sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.14

ANALYSIS

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

On March 31, 2017 appellant filed a claim for a schedule award which OWCP denied by 

decision dated May 24, 2017. Appellant, through counsel, requested a telephonic hearing which 

was held on November 13, 2017. By decision dated January 26, 2018, an OWCP hearing 

representative affirmed the May 24, 2017 decision denying appellant’s schedule award claim. 

Appellant, through counsel, requested reconsideration and submitted a January 17, 2018 report by

 

7 Supra note 4 at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,

Chapter 2.808.5a (March 2017).

9 See S.J., Docket No. 18-0010 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 R.H., Docket No. 17-1017 (issued December 4, 2018). 

11 See B.K., 59 ECAB 228 (2007); supra note 8 at Chapter 2.808.11 (February 2013).

12 Id.

13 Veronica Williams, 56 ECAB 367 (2005).

14 F.E., Docket No. 17-0584 (issued December 18, 2017).
5

Dr. Moufawad which opined that appellant sustained 12 percent permanent impairment of her right 

upper extremity and 7 percent permanent impairment of her right lower extremity. On March 31, 

2017 appellant refiled her claim for a schedule award. Following the submission of the January 17,

2018 report, OWCP wrote to Dr. Moufawad on April 19, 2018 and posed a series of questions, 

including an explanation as to how he had assigned permanent impairment in light of the opinion 

of Dr. Travis who opined that she had no residuals of her accepted conditions and the subsequent 

termination of her wage-loss compensation and medical benefits. He did not timely respond. By 

decision dated May 11, 2018, OWCP denied modification of its January 26, 2018 decision denying 

schedule award compensation. 

As noted above, if a claimant requests a schedule award after termination of wage-loss 

compensation and submits sufficient medical evidence of permanent impairment as a result of the 

work-related injury, OWCP shall develop the claim further despite the prior finding of no 

residuals.

15

The Board finds that OWCP has not properly developed the issue of permanent impairment 

following the submission of the report of Dr. Moufawad. Pursuant to its procedures, OWCP 

should have routed the case record, including the report of Dr. Moufawad, to a district medical 

adviser (DMA) for an opinion concerning the nature and extent of permanent impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified, if any.

16

 As this was not done, the case must be remanded for referral to a 

DMA.17

On remand OWCP shall further develop the medical evidence of record by obtaining an 

opinion from a DMA regarding the nature and extent of appellant’s permanent impairment, if any, 

for her accepted conditions. Following this, and such further development as may be deemed 

necessary, OWCP shall issue a de novo decision regarding appellant’s schedule award claim.

CONCLUSION

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

 

15 Supra note 11.

16 See supra note 8 at Chapter 2.808.6(f) (February 2013).

17 Supra note 10.
6

ORDER

IT IS HEREBY ORDERED THAT the May 11, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this decision of the Board.

Issued: April 8, 2019

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