United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hinesburg, VT, Employer

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Docket No. 19-1117

Issued: October 21, 2019

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, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 26, 2019 

merit decision 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.

 

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

5 U.S.C. § 8101 et seq.
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 June 17, 2010 appellant, then a 66-year-old part-time flexible sales and service 

associate, filed an occupational disease claim (Form CA-2) alleging a right shoulder injury due to 

factors of his federal employment including sorting mail for four to six hours per day. OWCP 

accepted the claim for rotator cuff tear of the right shoulder. Appellant had stopped work on 

June 12, 2010 and OWCP paid him wage-loss compensation on the daily rolls effective June 17, 

2010, and on the periodic rolls effective December 19, 2010.

3

In December 2013 appellant returned to work as a part-time flexible sales and service 

associate and, by decision dated February 28, 2014, OWCP determined that his actual wages in 

this position fairly and reasonably reflected his wage-earning capacity.

4

On February 23, 2016 appellant filed a claim for a schedule award (Form CA-7) due to his 

accepted employment injury.

In a March 9, 2016 development letter, OWCP requested that appellant submit a rating 

report from an attending physician addressing whether he had permanent impairment of his right 

upper extremity under the standards of the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days 

to submit the requested evidence. Appellant did not submit a rating report within the allotted

period.

By decision dated June 6, 2017, OWCP denied appellant’s schedule award claim. It noted 

that he had not submitted a rating report as requested and found that the medical evidence of file 

failed to demonstrate a measurable permanent impairment. OWCP indicated that appellant’s claim 

was “denied because the requirements have not been met for entitlement to a schedule award.”

6

On January 2, 2018 appellant filed another claim for a schedule award (Form CA-7) due 

to his accepted employment injury. 

In a January 11, 2018 development letter, OWCP requested that appellant submit an 

impairment rating report from an attending physician addressing whether he had permanent 

impairment of his right upper extremity under the standards of the sixth edition of the A.M.A., 

 

3 On July 30, 2010 appellant underwent OWCP-authorized arthroscopic debridement of his right rotator cuff. 

4 The Board notes that the case record does not contain medical evidence produced after late-2013.

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

6 On June 15, 2017 appellant, through counsel, requested a telephonic hearing with a representative of OWCP’s 

Branch of Hearings and Review. Counsel later withdrew the hearing request on behalf of appellant. 
3

Guides. It afforded him 30 days to submit the requested evidence. Appellant did not submit a 

rating report within the allotted period.

By decision dated August 10, 2018, OWCP denied appellant’s schedule award claim, 

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

a scheduled member or function of the body. 

On August 16, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing, held on 

January 14, 2019, OWCP’s hearing representative granted counsel’s request to keep the record 

open for 30 days in order to provide appellant an opportunity to obtain and submit a permanent 

impairment rating report. Appellant did not submit such a report after the hearing.

By decision dated March 26, 2019, OWCP’s hearing representative denied modification of 

the August 10, 2018 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA7 and its implementing regulation8 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 to 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

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 afforded appellant the opportunity to submit a rating report evaluating permanent 

impairment under the standards of the sixth edition of the A.M.A., Guides.11 However, appellant 

did not submit such medical evidence. The Board finds that that the evidence in the case file does

not support granting appellant a schedule award for permanent impairment. Appellant has not met 

his burden of proof.

 

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010). 

11 See supra notes 9 and 10.
4

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

ORDER

IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 21, 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