United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Swansea, MA, Employer

__________________________________________

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Docket No. 18-1517

Issued: October 9, 2019

Appearances: Case Submitted on the Record

Edwin T. Scanlon, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 23, 2018 appellant, through counsel, filed a timely appeal from a January 30, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

 

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 Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20 

C.F.R. § 501.5(b). By order dated August 9, 2019, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying 

Request for Oral Argument,Docket No. 18-1517 (issued August 8, 2019).
2

Federal Employee’ 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

This case has previously been before the Board.5 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 June 28, 1995 appellant, then a 37-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on that date she injured her right shoulder and back when exiting her 

vehicle while in the performance of duty. She stopped work on June 28, 1995 and returned to 

regular duty on July 3, 1995. OWCP accepted the claim for right shoulder strain and muscle strain 

of the neck on September 10, 1999.

On June 20, 2007 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated May 4, 2009, OWCP requested that appellant provide an 

impairment rating in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6 It afforded her 30 days to 

submit the requested information. 

In response, appellant submitted a June 2, 2009 report from Dr. Tejaswini Shah, Boardcertified in physical medicine and rehabilitation. Dr. Shah diagnosed cervical radiculopathy, left 

carpal tunnel syndrome, ulnar nerve dysfunction at the left elbow, and headache. She opined that 

these conditions were a direct result of the June 28, 1995 injury, and that appellant no longer could 

perform her duties as a letter carrier.

In a September 2, 2009 letter, OWCP requested that Dr. Shah provide a permanent

impairment rating of appellant’s right upper extremity due to appellant’s accepted employmentrelated conditions, using the sixth edition of the A.M.A., Guides.

 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that appellant submitted additional evidence on appeal. However, the Board’sRules 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 Docket No. 08-2389 (issued April8, 2009).

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

In response, Dr. Shah submitted a September 16, 2009 report repeating the findings from 

her June 2, 2009 report. 

On March 2, 2010 OWCP again asked Dr. Shah to provide an impairment rating using the 

sixth edition of the A.M.A., Guides. No response was received.

By letter dated January 31, 2014, OWCP advised appellant that current medical evidence 

was needed to establish her schedule award claim. It again requested that she obtain an impairment 

rating from a treating physician which addressed the date of maximum medical improvement and 

provided a detailed description of permanent impairment due to the accepted conditions utilizing 

the sixth edition of the A.M.A., Guides. 

In a February 20, 2014 memorandum of telephone call, counsel explained that appellant 

was unable to obtain an impairment rating from a physician. Subsequently, OWCP was informed 

that appellant would obtain an impairment rating and therefore an extension of time was granted.

In an April 23, 2014 memorandum of telephone call, counsel indicated that appellant could 

not find a provider who would accept workers’ compensation claimants. OWCP explained that it 

could not provide guidance in selecting a physician, but a second opinion examination could be 

scheduled.

A May 7, 2014 memorandum of telephone call indicated that appellant was unable to find 

a physician and requested that OWCP schedule a second opinion examination. OWCP indicated 

that it would notify her when the second opinion was scheduled. 

By decision dated June 28, 2017, OWCP denied appellant’s schedule award claim, finding 

that appellant had not submitted medical evidence to establish a permanent impairment of a 

scheduled member or function of the body, due to her accepted employment injury, which 

supported a schedule award. It indicated that she requested that OWCP arrange a second opinion 

examination to obtain a rating, however, they did not receive any reports containing medical 

information requested.

OWCP thereafter received an April 27, 2011 report from Dr. Randall Updegrove, Boardcertified in occupational medicine, who opined that appellant could not perform the full duties of 

a postal worker due to cervical herniated discs, carpal tunnel syndrome, and ulnar dysfunction.

In a letter dated July 14, 2017, counsel submitted arguments related to appellant’s accepted 

conditions. He noted that the Office of Personnel Management found that she was disabled due to 

herniated discs, carpal tunnel syndrome, and ulnar dysfunction. Counsel explained that Dr. Shah 

declined to provide an impairment rating, despite being furnished with a copy of the A.M.A., 

Guides. He also noted that Dr. Updegrove declined to provide an impairment rating. Counsel

argued that appellant was unable to locate a physician to render an impairment rating and requested 

OWCP’s assistance. 

On July 21, 2017 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on November 20, 2017. She testified that she was unable to obtain 

a permanent impairment rating and requested OWCP’s assistance to schedule a permanent 

impairment evaluation. 
4

Following the hearing, appellant submitted a report dated November 10, 2017 from

Dr. Joseph Russo, a Board-certified plastic surgeon. Dr. Russo diagnosed left ulnar nerve 

dysfunction; cervical disc herniation; cervical disc degeneration at C4-5, C5-6, and C6-7;

osteophyte of vertebrae; and right shoulder impingement syndrome. He opined that appellant’s 

ulnar nerve dysfunction, right shoulder pain, cervical spine degeneration, and bulging and 

herniated cervical discs were caused by her job as a mail carrier. 

By decision dated January 30, 2018, OWCP’s hearing representative affirmed the June 28, 

2017 decision. She found that appellant had not submitted medical evidence from a physician as 

to permanent impairment, if any. 

LEGAL PRECEDENT

The schedule award provisions of FECA,7 and its implementing federal regulations,8 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.9 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

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.11 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.12 

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 

 

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10 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).

11 See I.T., Docket No. 18-1049 (issued December 31, 2018).

12 A.T., Docket No. 18-0864 (issued October 9, 2018).
5

the impairment rating was calculated.”

13

 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.”

14

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.

OWCP accepted appellant’s claim for right shoulder strain and muscle strain of the neck 

as a result of her June 28, 1995 employment injury. On June 20, 2007 appellant filed a claim for 

a schedule award. 

On multiple occasions OWCP requested that appellant submit a report from her treating 

physician, which provided a rating of her permanent impairment, resulting from her accepted 

employment-related conditions, utilizing the sixth edition of the A.M.A., Guides.

In response, appellant submitted a June 2, 2009 report from Dr. Shah, an April 27, 2011 

report from Dr. Updegrove, and a November 10, 2017 report from Dr. Russo. However, these

physicians did not address the issue of whether appellant had a permanent impairment due to the 

accepted conditions. 

As noted, appellant must submit an evaluation from a physician that includes a description 

of impairment 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.15 She has 

failed to submit medical evidence supporting permanent impairment due to her accepted 

employment injury and thus, she has not met her burden of proof.16

Although counsel continues to assert that OWCP should have developed the medical 

evidence and scheduled a second opinion examination, the decision to refer a case for a second 

opinion examination rests wholly with an OWCP claims examiner.17

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.

 

13 Supra note 10 at Chapter 2.808.6(a) (March 2017).

14 Id. at Chapter 2.808.6(c).

15 See B.V., Docket No. 17-0656 (issued March 13, 2018).

16 See P.L., Docket No. 13-1592 (issued January 7, 2014).

17 See supra note 10 at Chapter 3.500.3(a) (June 2015).
6

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.

ORDER

IT IS HEREBY ORDERED THAT the January 30, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 9, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board