United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Jose, CA, Employer 

__________________________________________ 

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Docket No. 16-0263 

Issued: March 25, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 23, 2015 appellant filed a timely appeal from a September 15, 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. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he is entitled to a 

schedule award. 

FACTUAL HISTORY 

On August 13, 2014 appellant, then a 33-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an injury to his right shoulder blade as a 

result of his employment activities. He explained that he started to experience more pain in his 

 1

 5 U.S.C. § 8101 et seq.
2

right shoulder, the more that he used the shoulder. Appellant stopped work on July 24, 2014. 

OWCP accepted his claim for right shoulder impingement. 

On August 25, 2014 appellant returned to full duty. On November 28, 2014 he stopped 

work again and requested disability compensation. 

In a decision dated February 25, 2015, OWCP denied appellant’s claim for disability 

beginning December 8, 2014. 

On January 2, 2015 appellant returned to part-time light duty working two hours per day. 

OWCP paid compensation for six hours of wage loss per day. 

In a May 22, 2015 work capacity evaluation form, Dr. Keith A. Dismuke, a Boardcertified family practitioner, noted that appellant’s claim was accepted for right shoulder 

impingement. He checked “No” that appellant was not capable of working his usual job. 

Dr. Dismuke indicated that appellant could work with restrictions. 

On June 2, 2015 OWCP received appellant’s request for schedule award (Form CA-7). 

In a letter dated June 3, 2015, OWCP advised appellant that the evidence submitted was 

insufficient to establish his schedule award claim. It requested that he provide a medical report 

from his treating physician addressing whether he reached maximum medical improvement 

(MMI) and whether his 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). 

On July 7, 2015 OWCP referred appellant, along with a statement of accepted facts and 

the medical record to Dr. Richard R. Harris, a Board-certified orthopedic surgeon and secondopinion examiner, to determine the nature of appellant’s condition and extent of disability. 

Dr. Harris was not requested to provide an evaluation of appellant’s permanent impairment. In 

an August 3, 2015 report, he reviewed the statement of accepted facts and noted that appellant’s 

claim was accepted for right shoulder impingement. Dr. Harris opined that appellant’s right 

shoulder impingement had not resolved and that he continued to suffer residuals of his accepted 

condition. He explained that objective findings showed that appellant’s condition persisted as 

there was pain with range of motion, tenderness of the acromioclavicular (AC) joint shoulder, 

crepitus with right shoulder range of motion, decreased strength in the right hand, and particular 

pain with abduction at 90 degrees and flexion and extension. Dr. Harris indicated that appellant 

could not return to his date-of-injury position or work in a full-duty capacity, but that he could 

work sedentary to light duty eight hours a day. He recommended that appellant be reevaluated 

by an orthopedic surgeon and have a magnetic resonance imaging (MRI) scan examination of the 

right shoulder to further evaluate the details of the impingement syndrome. Dr. Harris did not 

offer an opinion regarding appellant’s entitlement to a schedule award. 

In a decision dated September 15, 2015, OWCP denied appellant’s claim for a schedule 

award. It found that the medical evidence failed to establish that he sustained a permanent 

impairment to his right upper extremity as a result of his accepted condition. 
3

LEGAL PRECEDENT 

The schedule award provision of FECA2 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. 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.3

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

scheduled member.4

 It is the claimant’s burden to establish that he has sustained a permanent 

impairment of the scheduled member or function as a result of any employment injury.5

 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.6

 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.

7

ANALYSIS 

OWCP accepted that appellant sustained right shoulder impingement in the performance 

of duty as a result of his duties as a rural carrier. Appellant stopped work and returned to parttime modified duty. On June 2, 2015 OWCP received appellant’s claim for a schedule award. 

The only contemporaneous medical evidence that appellant submitted along with his 

claim for a schedule award was a May 22, 2015 work capacity evaluation form by Dr. Dismuke. 

Dr. Dismuke indicated that appellant’s claim was accepted for right shoulder impingement. He 

checked “no” that appellant was not capable of working his usual job but indicated that appellant 

could work with restrictions. Although Dr. Dismuke noted that appellant had an accepted right 

shoulder condition, he did not address whether appellant sustained a permanent impairment as a 

result of his accepted condition nor opine on whether appellant was at MMI. In order to be 

entitled to a schedule award, a claimant must establish that he is at MMI and sustained a 

 2 Id. 

3

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

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

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

6

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

7 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7 (February 2013). 
4

permanent impairment of a scheduled member of the body due to an employment injury.8

 It is 

appellant’s burden to submit sufficient evidence to establish the extent of permanent 

impairment.9

 As appellant did not submit any probative medical opinion evidence from a 

physician addressing how appellant’s impairment correlated to the appropriate edition of the 

A.M.A., Guides and explaining the causal relationship between these findings and his permanent 

impairment, the Board finds that appellant did not meet his burden of proof to establish his 

entitlement to a schedule award. 

While the record also contains a second opinion report from Dr. Harris dated August 3, 

2015, the referral was made to determine appellant’s disability status. Dr. Harris was not 

requested to evaluate appellant to determine whether appellant had a permanent impairment 

pursuant to the A.M.A., Guides. He therefore offered no opinion in that regard. 

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 appellant has not established that he sustained a permanent 

impairment to his right upper extremity causally related to his employment condition. 

 8 R.E., Docket No. 14-713 (issued June 26, 2014); D.R., 57 ECAB 720 (2006). 

9 See Annette M. Dent, 44 ECAB 403 (1993). C.C., Docket No. 13-1399 (issued April 24, 2014). 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 25, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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