United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

White Plains, NY, Employer

__________________________________________

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Docket No. 17-1831

Issued: February 6, 2018

Appearances: Case Submitted on the Record

Rita H. Patrick, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 29, 2017 appellant, through her representative, filed a timely appeal from a 

May 16, 2017 merit decision and a July 27, 2017 nonmerit 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

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish permanent 

impairment of a scheduled member, warranting a schedule award; and (2) whether OWCP 

properly denied appellant’s request for an oral hearing as untimely filed pursuant to 5 U.S.C. 

§ 8124. 

On appeal appellant’s representative contends that, although appellant was given a 

30-day time period to submit evidence in support of her schedule award claim, she was slightly 

confused with the process. She asks the Board to reverse the denial of appellant’s schedule 

award claim and allow appellant an opportunity to pursue her claim.

FACTUAL HISTORY

On December 6, 2015 appellant, then a 50-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, she had swelling in her right foot when she accidently 

stepped on plastic wrap and fell down onto the floor. She stopped work on the date of injury. 

OWCP accepted the claim for right ankle fibula fracture. On May 14, 2016 appellant returned to 

full-time, regular-duty work with no restrictions. 

On April 10, 2017 appellant filed a claim for a schedule award (Form CA-7). She did not 

submit any additional evidence. 

By letter dated April 11, 2017, OWCP advised appellant of the deficiencies of her claim 

and requested that she submit a medical report from her physician assessing her permanent 

impairment based on the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment3(A.M.A., Guides) and establishing the date on which she 

reached maximum medical improvement (MMI). Appellant was afforded 30 days to submit the 

requested information. No response was received. 

In a May 16, 2017 decision, OWCP denied appellant’s claim for a schedule award as the 

evidence of record was insufficient to establish permanent impairment of a scheduled member or 

function of the body. It noted that she did not respond to the April 11, 2017 development letter.

OWCP received a May 18, 2017 progress note from Dr. Eric M. Spencer, a Boardcertified orthopedic surgeon, who examined appellant and diagnosed chronic right ankle sprain, 

one and one-half years status post right distal fibular fracture. 

In an appeal request form dated and postmarked June 29, 2017 and received by OWCP 

on July 7, 2017, appellant requested an oral hearing before an OWCP hearing representative. 

By decision dated July 27, 2017, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request. It found that it was untimely filed as it was postmarked on 

June 29, 2017, more than 30 days after its May 16, 2017 merit decision. After exercising its 

 

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

discretion, OWCP further found that the issue in the case could equally well be addressed 

through the reconsideration process.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA and its implementing regulations 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.4 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, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5

It is the claimant’s burden of proof to establish a permanent impairment of the scheduled 

member or function as a result of an employment injury.6 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.

7

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability and Health (ICF). 

For lower extremity impairments, the evaluator identifies the impairment Class of Diagnosis 

(CDX) condition, which is then adjusted by grade modifiers based on Functional History 

(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).8 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Evaluators are directed to 

provide reasons for their impairment rating choices, including choices of diagnoses from 

regional grids, and calculations of modifier scores.10

Before the A.M.A., Guides can be utilized, a description of permanent impairment must 

be obtained from the claimant’s physician. In obtaining medical evidence required for a 

schedule award, the evaluation made by the attending physician must include a description of the 

 

4 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

6 Tammy L. Meehan, 53 ECAB 229 (2001).

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

Chapter 2.808.5 (February 2013).

8 Supra note 3 at 493-531.

9

Id. at 521.

10 R.V., Docket No. 10-1827 (issued April 1, 2011).
4

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, decreases 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.11

ANALYSIS -- ISSUE 1

OWCP accepted appellant’s claim for right ankle fibula fracture as a result of a 

December 6, 2015 employment injury. Appellant stopped work on the date of injury and 

returned to full-time regular-duty work without restrictions on May 14, 2016. On April 10, 2016 

she filed a claim for a schedule award (Form CA-7). By decision dated May 16, 2017, OWCP 

denied appellant’s schedule award claim finding that she had failed to submit an impairment 

evaluation to establish a permanent impairment resulting from her work injury. 

The Board finds that appellant has not submitted any evidence of permanent impairment 

to a scheduled member, warranting a schedule award. By letter dated April 11, 2017, OWCP 

informed her of the type of evidence necessary to establish her schedule award claim and 

specifically requested that she submit an impairment evaluation from her attending physician in 

accordance with the sixth edition of the A.M.A., Guides. It afforded appellant 30 days for a 

response. Appellant did not submit the requested evidence prior to the issuance of OWCP’s

May 16, 2017 decision. As she has not submitted medical evidence sufficient to establish 

permanent impairment of a scheduled member related to the December 6, 2015 employment 

injury, appellant has failed to meet her burden of proof.

On appeal appellant’s representative contends that, although appellant was given a 

30-day time period to submit evidence in support of her schedule award claim, she was slightly 

confused with the process. She asks the Board to reverse the denial of appellant’s schedule 

award claim and allow appellant an opportunity to pursue her claim. The Board notes that it is 

appellant’s burden of proof to establish permanent impairment of a scheduled member as a result 

of an employment injury.12 Appellant did not submit such evidence and thus, OWCP properly 

denied her schedule award claim.13

Appellant may, however, 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.

LEGAL PRECEDENT -- ISSUE 2

Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with 

a decision of the Secretary is entitled, on request made within 30 days after the date of the 

 

11 D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).

12 Supra note 6.

13 L.F., Docket No. 10-0343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010). 
5

issuance of the decision, to a hearing on his or her claim before a representative of the 

Secretary.14 Sections 10.617 and 10.618 of the federal regulations implementing this section of 

FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the 

written record by a representative of the Secretary.15 A claimant is entitled to a hearing or 

review of the written record as a matter of right only if the request is filed within the requisite 

30 days as determined by postmark or other carrier’s date marking and before the claimant has 

requested reconsideration.16 Although there is no right to a review of the written record or an 

oral hearing if not requested within the 30-day time period, OWCP may within its discretionary 

powers grant or deny appellant’s request and must exercise its discretion.17 OWCP procedures 

require that it exercise its discretion to grant or deny a hearing when the request is untimely or 

made after reconsideration under section 8128(a).18

ANALYSIS -- ISSUE 2

A request for a hearing or review of the written record must be made within 30 days after 

the date of the issuance of a final OWCP decision. Appellant’s hearing request was dated and 

postmarked on June 29, 2013, more than 30 days after the issuance of OWCP’s May 16, 2017

decision. Because the postmark date was more than 30 days after the date of OWCP’s May 16, 

2017 decision, the Board finds that the request was untimely filed and she was not entitled to an 

oral hearing as a matter of right.19

The Board further finds that OWCP properly exercised its discretion in denying 

appellant’s request for a hearing by determining that the issue in the case could be addressed 

equally as well by requesting reconsideration and submitting new evidence relevant to the issue 

at hand.20 The Board has held that the only limitation on OWCP’s authority is reasonableness 

and an abuse of discretion is generally shown through proof of manifest error, clearly 

unreasonable exercise of judgment, or actions taken which are contrary to both logic and 

probable deduction from established facts.21 In this case, the evidence of record does not 

indicate that OWCP abused its discretion in its denial of appellant’s request for an oral hearing. 

 

14 5 U.S.C. § 8124(b)(1).

15 20 C.F.R. §§ 10.616, 10.617.

16 Id. at § 10.616(a).

17 Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

18 See R.T., Docket No. 08-0408 (issued December 16, 2008); supra note 7 at Part 2 -- Claims, Hearings and 

Review of the Written Record, Chapter 2.1601.2(a) (October 2011).

19 The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review 

commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).

20 M.H., Docket No. 15-0774 (issued June 19, 2015).

21 Daniel J. Perea, 42 ECAB 214, 221 (1990).
6

Accordingly, the Board finds that OWCP properly denied her request for a hearing as untimely 

filed under section 8124.

22

CONCLUSION

The Board finds that appellant has failed to meet her burden of proof to establish 

permanent impairment of a scheduled member, warranting a schedule award. The Board further 

finds that OWCP properly denied her request for an oral hearing as untimely filed pursuant to 5 

U.S.C. § 8124. 

ORDER

IT IS HEREBY ORDERED THAT the July 27 and May 16, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

22 R.P., Docket No. 16-0554 (issued May 17, 2016).