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. 18-1105

Issued: January 10, 2019

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 May 8, 2018 appellant filed a timely appeal from April 5 and 9, 2018 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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish more than 

four percent permanent impairment of the lungs, for which she previously received schedule award

compensation; and (2) whether OWCP used the proper rate of pay in calculating her schedule 

award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

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

disease claim (Form CA-2) alleging that she experienced shortness of breath, nasal and sinus 

congestion, breathing difficulty, asthma, eye irritation, and mouth ulcers as a result of exposure to 

mold and toxins at her work location. OWCP accepted the claim for an aggravation of allergic 

rhinitis and an aggravation of asthma due to mold exposure.3

Dr. Gregory Powell, a Board-certified physiatrist, provided a March 7, 2012 impairment 

evaluation. Using the sixth edition of the American Medical Association, Guides to the Evaluation 

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

4

for rating purposes he identified the diagnosis as 

class 1 asthma under Table 5-5 on page 90. He found that appellant had a class 1, grade D 

impairment due to asthma, which yielded eight percent whole person permanent impairment.5

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

internist and pulmonologist, for a second opinion examination regarding the extent of her 

permanent impairment of the lungs. On September 11, 2012 Dr. Ashiq interpreted a pulmonary 

function study (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 

forced expiratory volume in one second (FEV1) was 88 percent of predicted. He further found no 

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

history, and examination findings.6

In an impairment evaluation dated April 6, 2015, Dr. Louise Lamarre, who specializes in 

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

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 the lung. Using Table 5-5, she identified the diagnosis 

 

2 Docket No. 17-1753 (issued February 13, 2018).

3 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. It subsequently vacated its March 6, 2009 

decision on September 8, 2009. 

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

5 By decision dated May 15, 2012, OWCP denied appellant’s claim for compensation for wage-loss 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.

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

Dr. Ashiq’s finding of no lung impairment. He indicated that Dr. Ashiq should submit a copy of the PFS relied upon 

in reaching his impairment rating. 
3

as class 1 asthma based on the PFS showing an FEV1 of 70 percent of the predicted value, which 

yielded a default value of 6 percent. Dr. Lamarre moved the value to grade D based on appellant’s 

frequent exacerbations of her condition, 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 8

percent of the whole person.

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

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

examination, regarding whether she 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 and an FEV1 of 73 

percent before bronchodilators and an FVC of 77 percent and an FEV1 of 76 percent after 

bronchodilators. Using Table 5-4 on page 89 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 testing, for a 

class 0 impairment. Dr. Parker opined that appellant had a class 1, grade 1 impairment as she 

required intermittent treatment, for two percent permanent impairment. He found 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. He found that, under Table 15-4 on page 88 of the 

A.M.A., Guides, appellant had a class 1 impairment based on her FVC of 77 percent and an FEV1

of 76 percent postbronchodilator, which yielded a default impairment rating of 6 percent. 

Dr. Rizzo further found a class 1 impairment due to dyspnea requiring medication and class 0

impairment based on physical findings, and thus adjusted the impairment rating down to four 

percent. 

The employing establishment, on November 17, 2016, advised OWCP that appellant was 

last exposed to the conditions that caused her condition in March 2009. It provided pay rate 

information.

In a supplemental report dated December 14, 2016, Dr. Rizzo noted that Dr. Parker had 

found a class 0 impairment, but adjusted the impairment rating upward to two percent based on 

history even though it was a nonkey factor. He opined that appellant had class 1 impairment using 

Table 5-4 on page 88 based on the results of her pulmonary testing. Dr. Rizzo 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. OWCP used March 1, 2009 as the effective pay rate date for 

schedule award compensation.

On April 7, 2018 appellant requested reconsideration. By decision dated June 29, 2017, 

OWCP modified in part and affirmed in part the January 24, 2017 decision. It found that
4

Dr. Parker’s report represented the special weight of the evidence and demonstrated that appellant 

had six percent permanent impairment of the lungs. OWCP determined that its DMA should not 

have adjusted the report of the impartial medical examiner (IME), and modified its January 24, 

2017 decision to reflect 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. OWCP based the amount of schedule award 

compensation on an effective pay rate date of March 1, 2009.

Appellant appealed to the Board. By decision dated February 13, 2018, the Board set aside 

the June 28 and July 7, 2017 decisions. The Board found that Dr. Parker did not properly evaluate 

the extent of appellant’s permanent impairment under the A.M.A., Guides, noting that he 

calculated the impairment using Table 5-4 instead of Table 5-5, the applicable table for rating 

impairments due to asthma. The Board remanded the case for OWCP to obtain a supplemental 

report from Dr. Parker. The Board further noted that OWCP had issued schedule awards for a 

single lung impairment even though its procedures provided that the award should be based on the 

loss of use of both lungs.

OWCP, on February 15, 2018, requested that Dr. Parker rate appellant’s impairment due 

to asthma using Table 5-5 of the A.M.A., Guides. It further indicated that he should rate the loss 

of use of both lungs.

In a March 20, 2018 response, Dr. Parker noted that appellant used bronchodilators as 

needed and that her maximum FEV1 after bronchodilator was 76 percent of normal. He found that 

she had a class 1 impairment under Table 5-5 of the A.M.A., Guides based on her occasional use 

of medication and her maximum FEV1 of 76 percent postbronchodilator, which yielded an 

impairment range of 2 to 10 percent of the whole person. Dr. Parker determined that appellant had 

two percent whole person impairment for loss of pulmonary function due to her comparatively 

mild and intermittent symptoms. He noted that he was using the results from his August 8, 2016 

examination rather than current findings.

By decision dated April 5, 2018, OWCP vacated in part, modified in part, and affirmed in 

part its January 27, 2017 decision. It noted that Dr. Rizzo had previously reviewed the August 8, 

2016 IME report and found that appellant had four percent whole person impairment, while

Dr. Parker found two percent whole person impairment. OWCP found that appellant had four 

percent whole person impairment as it was the more generous rating, and multiplied the four 

percent whole person impairment rating by 312 weeks to find that she was entitled to an additional 

3.12 weeks of schedule award compensation, for a total award of 12.48 weeks. 
5

By decision dated April 9, 2018, OWCP granted appellant a schedule award for four 

percent permanent impairment of the lungs.

7

 It noted that it had previously paid her schedule 

award for 9.46 weeks, and found that she was entitled to an additional 3.12 weeks of schedule 

award compensation, for a total of 12.48 weeks. OWCP found that appellant was entitled to 

schedule award compensation using a pay rate date of June 2, 2008. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,8and its implementing federal regulations,

9

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. 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.10 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.11

OWCP’s procedures provide that all claims involving 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.12

Table 5-5 of the A.M.A., Guides sets forth the criteria for rating permanent impairment 

due to asthma. It provides whole person impairment ratings based on a designated class (0 to 4) 

 

7 OWCP indicated that it was issuing appellant a schedule award for a whole person impairment rather than for the 

lungs, but properly calculated the number of weeks to be paid for a schedule award for the lungs. FECA does not 

provide for whole person impairment ratings. 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see also D.H., Docket No. 

18-0024 (issued May 7, 2018). Although FECA does not specifically provide compensation for whole person 

impairment, the measurement of lung function warrants special consideration, including using tables in A.M.A., 

Guides that provide for a whole person impairment award. See A.M.A., Guides 88 and 90, Table 5-4 and Table 5-5; 

see also J.G., Docket No. 16-1533 (issued March 15, 2018). The percentage for the particular class of whole person

respiratory impairment is multiplied by 312 weeks (twice the award for loss of function of one lung) to obtain the 

number of weeks payable. 

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.

10 Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

12 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(c)(1) 

(February 2013).
6

of impairment. Class 0 is used for any maximum FEV1 percentage predicted greater than 80 

percent. Class 1 is used for FEV1 percentage predicted from 70 to 80 percent.13

Where OWCP has referred the case to an IME 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.14

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish more than four 

percent permanent impairment of the lungs, for which she previously received schedule awards.

On prior appeal, the Board found that Dr. Parker rated the extent of appellant’s impairment 

using Table 5-4 of the A.M.A., Guides instead of Table 5-5, the applicable table for rating 

impairments due to asthma. The Board remanded the case for OWCP to obtain a report from

Dr. Parker applying Table 5-5. The Board also noted that OWCP should issue additional schedule 

award benefits based on the permanent impairment of the bilateral lungs rather than a single lung.

In an addendum report dated March 20, 2018, Dr. Parker found that appellant had a class 

one impairment using Table 5-5 of the A.M.A., Guides. He determined that the maximum FEV1

after bronchodilator was 75 percent of normal, which yielded a class 1 impairment and a default 

value from 2 to 10 percent. Based on appellant’s relatively mild and sporadic symptoms,

Dr. Parker found that she had an impairment rating at the low end of the range. He opined that 

appellant had two percent whole person impairment due to her pulmonary dysfunction. 

Dr. Parker’s report is detailed and well reasoned and thus sufficient to constitute the special weight 

of the evidence.15

Based on Dr. Parker’s report, OWCP found that appellant had no more than the previously 

found four percent permanent impairment of the lungs, noting that it was the more generous award. 

The Board finds that there is no evidence supporting a greater impairment.

On appeal appellant questions the amount of her schedule award. As noted, in determining 

the impairment of the lung the percentage for the particular class of whole person respiratory 

impairment is multiplied by 312 weeks to obtain the number of weeks of compensation.16 OWCP 

paid appellant for four percent permanent impairment of the lungs, or 12.48 weeks of 

compensation. 

 

13 A.M.A., Guides 90, Table 5-5.

14 See A.R., Docket No. 18-0632 (issued October 19, 2018).

15 See C.G., Docket No. 18-0392 (issued August 14, 2018).

16 See supra note 11.
7

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

LEGAL PRECEDENT -- ISSUE 2

Section 8107 of FECA provides that schedule award compensation for permanent 

impairment of a scheduled member shall be based on the employee’s monthly pay.17 Such 

compensation is to be based on the pay rate as determined under section 8101(4) which defines 

monthly pay as “[t]he monthly pay at the time of injury, or the monthly pay at the time disability 

begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more 

than six months after the injured employee resumes regular full-time employment with the United 

States, whichever is greater....”

18

The Board has held that where an injury is sustained over a period of time the date of injury 

is the date of last exposure to those work factors causing injury.19 Applying this principle to 

schedule award claims, the Board has held that the date of injury is the date of the last exposure 

which adversely affects the impairment because every exposure which has an adverse effect (an 

aggravation) constitutes an injury.20 In a case where a claimant continues to be exposed to 

injurious work factors and the medical evidence documents continued worsening of the claimed 

condition, OWCP selects the date of last exposure to injurious work factors as the date of injury.21

ANALYSIS -- ISSUE 2

The Board finds that OWCP erred in basing her schedule award compensation on an 

effective pay rate date of June 2, 2008. 

As noted, where an injury is sustained over a period of time, as in this case, the date of 

injury is generally the date of last exposure to the employment factors causing the injury.22 The 

employing establishment informed OWCP on November 17, 2016 that appellant was last exposed 

in March 2009 to the conditions identified as resulting in her injury. In its prior schedule award 

decisions dated January 24 and July 7, 2017, OWCP based her schedule award compensation on 

an effective pay rate date of March 1, 2009, which yielded a weekly compensation rate of $667.19. 

In its April 9, 2018 schedule award decision, however, it found that the effective date of appellant’s 

pay rate for schedule award compensation was June 2, 2008, which yielded a weekly compensation 

rate of $647.48. As the employing establishment specified that she was last exposed to the 

conditions alleged to have caused her condition in March 2009, OWCP should base her pay rate 

 

17 5 U.S.C. § 8107(a).

18 Id. at § 8101(4).

19 See J.S., Docket No. 17-1277 (issued April 20, 2018); Sherron A. Roberts, 47 ECAB 617 (1996).

20 See Barbara A. Dunnavant, 48 ECAB 517 (1997).

21 See G.L., Docket No. 12-1795 (issued September 24, 2013).

22 See D.D., Docket No. 15-0193 (issued May 11, 2015).
8

for schedule award compensation on her date of last exposure.23 The Board will therefore remand 

the case for OWCP to recalculate appellant’s pay rate for schedule award compensation.24

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish more than four 

percent permanent impairment of the lungs, for which she previously received schedule award

compensation. The Board further finds, however, that OWCP improperly determined her pay rate 

for compensation purposes.

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2018 decision of the Office of Workers’

Compensation Programs is affirmed in part and set aside in part. The case is remanded for further 

proceedings consistent with this decision of the Board. The April 5, 2018 decision is affirmed.

Issued: January 10, 2019

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

 

23 See M.D., Docket No. 12-0976 (issued December 19, 2012).

24 Id.