United States Department of Labor

Employees’ Compensation Appeals Board

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M.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Clearwater, FL, Employer

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Docket No. 19-0540

Issued: August 8, 2019

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On January 11, 2019 appellant filed a timely appeal from a January 8, 2019 merit decision1

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.3

 

1 Appellant’s AB-1 form notes that he is appealing from a December 18, 2018 purported decision. The only 

document of record dated December 18, 2018 was a recurrence development letter. As this correspondence is not a 

final adverse decision of OWCP, the Board does not have jurisdiction to consider the merits of appellant’s recurrence 

claim. See 20 C.F.R. § 501.2(c). The only OWCP decision over which the Board may take jurisdiction is the 

January 8, 2019 schedule award decision. 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that, following the January 8, 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.
2

ISSUE

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

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

FACTUAL HISTORY

On October 11, 2017 appellant, then a 41-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 10, 2017 he injured his lower back as a result of an 

automobile accident while in the performance of duty. After an initial denial, OWCP accepted the 

claim by decision dated March 6, 2018 for lumbar and cervical strains, lumbar and cervical bulging 

discs, and left foot strain and sprain. It also paid wage-loss compensation retroactive to 

November 25, 2017 because the employing establishment had been unable to accommodate 

appellant’s limited-duty work restrictions.

In a work capacity evaluation dated April 6, 2018, Dr. Jonathan Yousef, a Board-certified 

family practitioner, recommended temporary sedentary work restrictions. The employing 

establishment informed OWCP on April 30, 2018 that it could not accommodate limited-duty 

work within appellant’s restrictions. OWCP paid appellant wage-loss compensation on the 

periodic compensation rolls beginning April 29, 2018. 

On June 8, 2018 appellant filed a claim for a schedule award (Form CA-7). 

In a work capacity evaluation dated June 8, 2018, Dr. Yousef recommended permanent 

work restrictions of no sitting more than 30 minutes per day, no walking, pushing, pulling, or 

squatting more than 4 hours per day, no twisting more than 5 hours per day, and no lifting more 

than 6 hours per day. In a report of the same date, he followed up with appellant for his injury 

resulting from the motor vehicle accident of October 10, 2017. Dr. Yousef noted that the sudden 

impact created forces that damaged soft tissue structures in the lumbar and cervical spine, as 

demonstrated by magnetic resonance imaging (MRI) scan results revealing bulging discs in his 

lumbar and cervical spine. He diagnosed cervical disc displacement, segmental and somatic 

dysfunction of the lumbar region, intervertebral disc displacement of the lumbar region, 

contracture of muscle, low back pain, sprain of the ligaments of the lumbar spine, and left foot 

pain. Dr. Yousef stated that, in regards to the medical care he provided, appellant had reached 

maximum medical improvement (MMI). He also noted that he would defer to appellant’s 

neurosurgeon regarding an impairment rating.

On July 25, 2018 appellant returned to full-time modified-duty work at the employing 

establishment.

Appellant resubmitted his schedule award claim on August 28, 2018.

In a development letter dated September 7, 2018, OWCP requested that appellant provide 

an impairment rating in accordance with the sixth edition of the American Medical Association, 
3

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded him 30 days 

to submit the requested information. 

In a report dated September 19, 2018, Dr. Yousef again stated that appellant was at 

maximum medical improvement, further recommending that appellant revisit his neurosurgeon to 

see if he would like to reconsider surgical options. Appellant stated that he would like to consider 

neck surgery. 

In a work capacity evaluation dated December 19, 2018, Dr. Jorge Inga, a Board-certified 

neurosurgeon, checked a box indicating that appellant had not reached MMI.

By decision dated January 8, 2019, OWCP denied appellant’s schedule award claim, 

finding that he had not reached MMI. 

LEGAL PRECEDENT

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proof to establish that the condition for which a schedule award is 

sought is causally related to his or her employment.5

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.6 FECA, however, 

does not specify the manner by which the percentage loss of a member, function, or organ shall be 

determined. To ensure consistent results and equal justice for all claimants under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants.7 The 

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for 

evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in accordance 

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

9

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether the 

cause of the impairment originated in a schedule or nonscheduled member. Therefore, as the 

 

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

5 L.C., Docket No. 15-1671 (issued May 24, 2016); Veronica Williams, 56 ECAB 367 (2005).

6 5 U.S.C. § 8107.

7 L.C., supra note 5; Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8 20 C.F.R. § 10.404.

9 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); 

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

2.808.5a (March 2017).

10 L.C., supra note 5; Pamela J. Darling, 49 ECAB 286 (1998).
4

schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the impairment 

originated in the spine.11

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal neve injuries as impairment of the extremities. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) offers 

an approach to rating spinal nerve impairments consistent with sixth edition methodology.12 

OWCP has adopted this approach for rating impairment to the upper or lower extremities caused 

by a spinal injury.13

ANALYSIS

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

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

accepted his claim for lumbar and cervical strain, lumbar and cervical bulging discs, left foot strain 

and left foot sprain. On June 8, 2018 appellant filed a claim for a schedule award. In a work 

capacity evaluation dated December 19, 2018, Dr. Inga checked a box indicating that appellant 

had not reached MMI. By letter dated December 21, 2018, Dr. Yousef stated that appellant was 

scheduled for surgery on January 14, 2019 with Dr. Inga. On December 26, 2018 appellant 

requested authorization for cervical spinal fusion.

It is well established that a schedule award cannot be determined and paid until a claimant 

has reached MMI.

14

 The medical record indicates that appellant was still actively treating with

Dr. Inga, as of December 21, 2018, who also noted that appellant had not yet reached MMI in a 

work capacity evaluation dated December 19, 2018. The Board finds that, as appellant did not 

submit medical evidence indicating that he had reached MMI, he has not met his burden of proof 

to establish a claim for a schedule award.15

CONCLUSION

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

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

 

11 L.C., supra note 5; Thomas J. Englehart, 50 ECAB 319 (1999).

12 L.C., supra note 5; L.J., Docket No. 10-1263 (issued March 3, 2011).

13 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

14 L.C., supra note 5; D.H., Docket No. 13-1642 (issued January 7, 2014).

15 Id.
5

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board