United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer

__________________________________________

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Docket No. 19-1492

Issued: February 26, 2020

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 1, 2019 appellant, through counsel, filed a timely appeal from an April 22, 2019 

merit decision of the Office of Workers’ Compensation Programs.2 Pursuant to the Federal 

 

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 Subsequent to OWCP’s April 22, 2019 decision, the Board issued a decision in this case on other issues. By 

decision dated June 19, 2019, the Board affirmed in part and set aside in part an August 30, 2018 OWCP decision. 

Docket No. 19-0131 (issued June 19, 2019). It found that appellant had not met her burden of proof to establish a 

recurrence of disability beginning March 1, 2016 due to her accepted August 19, 2015 employment injury. The Board 

further found, however, that the case was not in posture for decision regarding whether the acceptance of her claim 

should be expanded to include reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS) and 

remanded the case for further development of the medical evidence on this issue.
2

Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.4

ISSUE

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

impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On August 21, 2015 appellant, then a 31-year-old carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on August 19, 2015 she injured her left calf when a dog bit her while 

she was in the performance of duty. OWCP accepted the claim for a puncture wound to the left 

lower leg. It paid wage-loss compensation for intermittent time lost from work in October 2015.5 

On October 20, 2017 appellant filed a claim for a schedule award (Form CA-7).6 

In a development letter dated November 2, 2017, OWCP requested that appellant submit 

an impairment evaluation from her physician addressing whether she had reached maximum 

medical improvement (MMI) and evaluating the extent of permanent impairment, if any, in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).7

Thereafter, OWCP received reports dated June 29, 2017 through June 19, 2018 from

Dr. Matthew M. Richlen, Board-certified in family medicine. Dr. Richlen diagnosed RSD/CRPS 

and provided work restrictions. 

 

3 5 U.S.C. § 8101 et seq.

4 The Board notes that following the April 22, 2019 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.

5 By decision dated April 8, 2016, OWCP denied appellant’s claim for wage-loss compensation from October 28 

to 30, 2015. It found that the medical evidence was insufficient to establish disability from employment during the 

claimed period.

6 By decision dated June 7, 2016, OWCP denied appellant’s claim for a recurrence of disability. By decision dated 

November 22, 2016, an OWCP hearing representative affirmed the June 7, 2016 decision. He further found that the 

medical evidence was insufficient to support that appellant had sustained RSD due to her accepted employment injury.

By decision dated March 24, 2017, OWCP denied modification of its November 22, 2016 decision. By decision dated 

September 27, 2017, it denied modification of its March 24, 2017 decision. By decision dated August 30, 2018, 

OWCP denied modification of its September 27, 2017 decision.

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

Appellant further submitted reports dated August 30 and November 1, 2017 from

Dr. Steven James Donatello, a Board-certified anesthesiologist, who diagnosed RSD/CRPS and 

recommended a spinal cord stimulator. 

By decision dated October 11, 2018, OWCP denied appellant’s schedule award claim

finding that she had not submitted medical evidence addressing the relevant issue of whether she 

had reached MMI. 

On October 19, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

On October 22, 2018 Dr. Richlen diagnosed RSD/CRPS and provided work restrictions. 

A telephonic hearing was held on March 8, 2019. Appellant described her continued 

problems with her left leg. Counsel requested that OWCP hold the record open for 30 days for the 

submission of an impairment evaluation. 

By decision dated April 22, 2019, OWCP’s hearing representative affirmed the October 11, 

2018 decision. She found that appellant had not submitted evidence supporting that she had 

reached MMI or that she had sustained a permanent impairment causally related to her accepted 

employment injury.8

LEGAL PRECEDENT

The schedule award provisions of FECA,9and its implementing federal regulation,10 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 loss of a member shall be determined. 

The method used in making such a determination is a matter which rests in the 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. OWCP 

evaluates the degree of permanent impairment according to the standards set forth in the specified 

edition of the A.M.A., Guides, published in 2009.11 The Board has approved the use by OWCP 

 

8 OWCP’s hearing representative noted that the case was currently accepted for a dog bite, but that the Board had 

instructed OWCP to further develop the issue of whether appellant had sustained RSD/CRPS due to her accepted 

employment injury.

9 Supra note 3.

10 20 C.F.R. § 10.404.

11 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
4

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.12

A claimant has the burden of proof under FECA to establish permanent impairment of a 

scheduled member or function as a result of his or her employment injury entitling him or her to a 

schedule award.13 Before the A.M.A., Guides can be utilized a description of impairment must be 

obtained from his or her physician. In obtaining medical evidence required for a schedule award, 

the evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decrease in strength or disturbance 

of sensation or other pertinent descriptions of the impairment. This description must be in 

sufficient detail so that the claims examiner and others reviewing the file will be able to clearly 

visualize the impairment with its resulting restrictions and limitations.14

OWCP’s procedures provide that, if a claimant has not submitted an impairment 

evaluation, it should request a detailed report that “includes history of clinical presentation, 

physical findings, functional history, clinical studies or objective tests, analysis of findings, and 

the appropriate impairment based on the most significant diagnosis, as well as a discussion of how 

the impairment rating was calculated.”

15

 If the claimant does not provide an impairment 

evaluation, “and there is no indication of permanent impairment in the medical evidence of file, 

the CE [claims examiner] may proceed with a formal denial of the award.”

16

It is the claimant’s burden of proof to establish that he or she has sustained a permanent 

impairment of a scheduled member or function of the body as a result of an employment injury.17 

OWCP procedures provide that, to support a schedule award, the file must contain competent 

medical evidence which shows that the impairment has reached a permanent and fixed state and 

indicates the date on which this occurred (date of MMI), 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.

18

 

12 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

13 See M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued 

December 31, 2018).

14 K.F., Docket No. 18-1517 (issued October 9, 2019); A.T., Docket No. 18-0864 (issued October 9, 2018).

15 Supra note 11 at Chapter 2.808.6(a) (March 2017).

16 Supra note 11 at Chapter 2.808.6(c).

17 D.F., Docket No. 18-1337 (issued February 11, 2019).

18 Supra note 11 at Chapter 2.808.4 (March 2017).
5

ANALYSIS

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

impairment of a scheduled member or function of the body, warranting a schedule award.

Appellant submitted medical reports from Dr. Richlen diagnosing RSD/CRPS and 

providing work restrictions and from Dr. Donatello recommending a spinal cord stimulator trial. 

However, neither of these physicians addressed whether she had reached MMI or described a 

permanent impairment due to her accepted puncture wound.

19

 As noted, before the A.M.A., 

Guides can be utilized a description of impairment must be obtained from the claimant’s physician. 

The evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decrease in strength or disturbance 

of sensation or other pertinent descriptions of the impairment.20 This description must be in 

sufficient detail so that the claims examiner and others reviewing the file will be able to clearly 

visualize the impairment with its resulting restrictions and limitations.21 

The Board finds that the medical reports of record do not establish that appellant’s accepted 

puncture wound had reached MMI, do not describe the impairment in sufficient detail so that it 

can be visualized on review, and do not compute the percentage of impairment in accordance with 

the A.M.A., Guides.

22

 On November 2, 2017 OWCP requested that she submit a medical opinion 

addressing whether she had reached MMI and the extent of permanent impairment; however, she 

did not provide such a rating. Accordingly, the Board finds that appellant has not met her burden 

of proof to establish her schedule award claim.23 

Appellant may request a schedule award or increased schedule award 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 her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

 

19 See K.F., Docket No. 18-1517 (issued October 9, 2019).

20 See S.W., Docket No. 19-1078 (issued January 9, 2020).

21 K.F., supra note 19; A.T., Docket No. 18-0864 (issued October 9, 2018).

22 C.T., Docket No. 18-0257 (issued May 21, 2019).

23 D.F., supra note 17.
6

ORDER

IT IS HEREBY ORDERED THAT the April 22, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 26, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board