United States Department of Labor

Employees’ Compensation Appeals Board

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B.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION,

El Paso, TX, Employer

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Docket No. 18-1389

Issued: January 11, 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 July 9, 2018 appellant filed a timely appeal from a June 20, 2018 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 has met his burden of proof to establish permanent 

impairment of his lungs, warranting a schedule award. 

FACTUAL HISTORY

On November 2, 2011 appellant, then a 45-year-old canine enforcement officer, filed a 

traumatic injury claim (Form CA-1) alleging that, on October 20, 2011, he injured his left shoulder 

 

1 5 U.S.C. § 8101 et seq.
2

and upper arm in the performance of duty. OWCP accepted the claim for a sprain of the superior 

glenoid labrum of the left shoulder and disorder of the bursae and tendons of the left shoulder 

region. On March 7, 2012 appellant underwent a left subacromial decompression and 

acromioplasty. Subsequent to the surgery, on March 7, 2012 he was admitted to the hospital for 

acute pulmonary edema after being intubated and experiencing hemoptysis, and hypoxemia. 

OWCP subsequently expanded acceptance of the claim to include left pneumonia due to other 

specified organism, an unspecified pneumonia organism, pure hypercholesterolemia, shortness of 

breath, and other respiratory abnormality.2

Appellant, on September 1, 2016, contacted OWCP regarding a schedule award for a 

permanent impairment of his lungs. 

OWCP referred appellant to Dr. Carlo Majid Hatem, a Board-certified internist and 

pulmonologist, for a second opinion examination. It requested that Dr. Hatem provide an opinion 

regarding the extent of permanent impairment, if any, of appellant’s lungs using the sixth edition 

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

(A.M.A., Guides).3

In a report dated October 13, 2016, Dr. Hatem discussed appellant’s history of 

experiencing a respiratory event after surgery that required hospitalization. Following his surgery, 

appellant had developed asthma requiring the use of Symbicort daily and Albuterol before 

exercise. Dr. Hatem diagnosed uncomplicated mild intermittent asthma. He noted that appellant 

could work without restrictions and had not experienced any “recent hospitalizations or emergency 

room visits for his condition.” 

Dr. Hatem, in a December 20, 2016 addendum, related that a December 19, 2016 

pulmonary function study (PFS) demonstrated postbronchodilator forced expiratory volume in one 

second (FEV1) of 88 percent of predicted. He opined that appellant had class 1, grade E 

impairment based on the FEV1 results and his daily use of steroids.

In a December 22, 2016 addendum, Dr. Hatem opined that, pursuant to Table 5-5 on page 

90 of the (A.M.A., Guides), appellant had class 1, grade E impairment due to asthma, which 

yielded 10 percent whole person impairment. 

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

district medical adviser (DMA), on January 24, 2017 reviewed the records provided to him. He 

noted that appellant had developed pneumonia after shoulder surgery in 2011 and currently 

experienced mild symptoms of asthma that did not affect his work ability. Dr. Rizzo found that a

December 2016 PFS demonstrated FEV1 of 88 percent of predicted, forced vital capacity (FVC)

after bronchodilator of 84 percent of predicted, and a ratio of FEV1 to FVC of 82 percent of 

predicted. Based on the results of the PFS, he opined that appellant had class 0, or no impairment

 

2 By decision dated March 6, 2013, OWCP granted appellant a schedule award for seven percent permanent 

impairment of the left upper extremity. By decision dated June 24, 2016, it granted him a schedule award for an 

additional one percent permanent impairment of the left upper extremity impairment. 

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

of the lungs, according to Table 5-4 on page 88 of the A.M.A., Guides. Dr. Rizzo noted that 

appellant had class 1 impairment based on his use of medication and a class 0 impairment based 

on the lack of findings on examination, which yielded no adjustment from the class 0 impairment. 

Appellant, on February 13, 2017, filed a schedule award claim (Form CA-7) for permanent 

impairment of the lungs.

By decision dated February 24, 2017, OWCP denied appellant’s schedule award claim. It 

found that the medical evidence of record was insufficient to establish permanent impairment of 

the lungs, warranting a schedule award.

On March 23, 2017 appellant requested a telephonic hearing before an OWCP hearing 

representative.

During the telephonic hearing, held on August 22, 2017, appellant noted that Dr. Hatem 

found that he had 10 percent whole person impairment. He advised that he continued to receive 

treatment for his lung condition.

By decision dated October 12, 2017, OWCP’s hearing representative vacated the 

February 24, 2017 decision. She found that the DMA had not discussed Dr. Hatem’s 

December 22, 2016 addendum or explained why his report did not support permanent impairment 

under the A.M.A., Guides. The hearing representative instructed OWCP to refer the case back to 

the DMA for a supplemental opinion.

Dr. Rizzo provided an addendum report on November 27, 2017. He related that appellant 

had class 0 impairment based on the results of PFS showing postbronchodilator results for FEV1

of 88 percent of predicted, FVC of 84 percent of predicted, an FEV1/FVC ratio of 82 percent of 

predicted, and a diffusion capacity of 86 percent of predicted according Table 5-4 on page 88 of 

the A.M.A., Guides. Dr. Rizzo noted that the A.M.A., Guides instructed the evaluator to use the 

key factor of pulmonary function to identify the class and that nonkey factors such as history and 

physical factors did not alter the class identification in evaluation pulmonary impairments under 

both Table 5-4 and Table 5-5. He concluded that appellant had no impairment of the lungs 

according to Table 5-4 on page 88 of the A.M.A., Guides.

By decision dated June 20, 2018, OWCP denied appellant’s claim for a schedule award for 

the lungs. 

LEGAL PRECEDENT

The schedule award provision of FECA4and its implementing federal regulation5set 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 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.
4

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.6 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.7

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.8

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) 

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.9

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his lungs, warranting a schedule award. Dr. Hatem, an OWCP referral physician,

evaluated appellant on October 13, 2016. He diagnosed uncomplicated mild intermittent asthma. 

Dr. Hatem indicated that appellant could work without limitations, but required daily use of low 

dose steroids to control his asthma. In a December 20, 2016 addendum, he reviewed a 

December 19, 2016 PFS and noted that the FEV1 was 88 percent of predicted. Based on the FEV1

results and appellant’s use of steroids, Dr. Hatem found a class 1, grade E impairment. On 

December 22, 2015 he specified that he used Table 5-5 on page 90 of the A.M.A., Guides to find 

that appellant had class 1, grade E impairment due to asthma, or 10 percent whole person 

impairment.

Dr. Rizzo, a DMA, reviewed Dr. Hatem’s October 13, 2016 report and found that appellant 

had no pulmonary impairment. In a supplemental report dated November 27, 2017, he reviewed 

the records provided, including Dr. Hatem’s December 20 and 22, 2015 addendums. Dr. Rizzo 

utilized Table 5-4 on page 88 of the A.M.A., Guides to find that appellant had no ratable 

impairment of the lungs based on postbronchodilator results of 88 percent of predicted for FEV1, 

84 percent of predicted for FVC, an FEV1/FVC ratio of 82 percent of predicted, and a diffusion 

capacity of 86 percent of predicted. He noted that the test results constituted key factors while

history and physical findings constituted nonkey factors that did not alter class identification 

according to the A.M.A., Guides. Dr. Rizzo further found that the A.M.A., Guides on page 88 

 

6

Id. at § 10.404(a).

7 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). 

8

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(c)(1) (February 2013).

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

provided that Table 5-5, used to rate impairments due to asthma, had the same key elements as 

Table 5-4. He concluded that appellant had a class 0 impairment of the lungs.

The A.M.A., Guides provides for evaluation of asthma under Table 5-5 on page 90. The 

objective findings for asthma impairment are not the same as for the pulmonary function 

impairment under Table 5-4 on page 88. Both tables, however, begin rating impairment with FEV1

at 80 percent or less of predicted. Table 5-5 of the A.M.A., Guides begins with a maximum 

postbronchodilator FEV1 of 80 percent of predicted and then descends to under 50 percent of 

predicted. As appellant’s FEV1 was 88 percent of predicted, he has a class 0 impairment under 

both Table 5-4 and Table 5-5.

Dr. Rizzo disagreed with Dr. Hatem’s finding that appellant had class 1 impairment due to 

asthma under Table 5-5 based on his daily use of medication, noting that the A.M.A., Guides 

provided that test results were the key factors used to identify class under both Table 5-4 and Table 

5-5. The A.M.A., Guides provides that the key factor used to determine the impairment class is 

the loss of pulmonary function as demonstrated by the relevant objective test results for the 

condition rated, and that nonkey factors are history and physical examination.10 The first step is 

to determine the impairment class according to the key factors, and then use the key factors to add 

or subtract from the default impairment found through application of the key factor.11 As 

appellant’s PFS results established a class 0 impairment, he is not entitled to a schedule award for 

the lungs.12

On appeal appellant notes that he continues to experience asthma requiring medication and 

medical treatment. He contends that he is entitled to the 10 percent permanent impairment found 

by Dr. Hatem. As noted, however, appellant’s test results place him at zero percent impairment of 

the lungs, and thus the medical evidence of record is insufficient to establish permanent 

impairment.13 

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.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his lungs, warranting a schedule award. 

 

10 Id. at 86; see also D.W., Docket No. 17-0974 (issued January 16, 2018).

11 Id.

12 D.W., supra note 10; see also T.R., Docket No. 17-0047 (issued July 27, 2017).

13 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the June 20, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: January 11, 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