United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.J., Appellant

and

DEPARTMENT OF JUSTICE, EXECUTIVE 

OFFICE FOR IMMIGRATION REVIEW, 

Irving, TX, Employer

__________________________________________

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Docket No. 18-1615

Issued: March 5, 2019

Appearances: Case Submitted on the Record

Debra Hauser, 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 August 22, 2018 appellant, through counsel, filed a timely appeal from an April 19, 

2018 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 her burden of proof to establish permanent 

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

FACTUAL HISTORY

On September 28, 2014 appellant, then a 48-year-old legal assistant, filed an occupational 

disease claim (Form CA-2) alleging that she developed hip pain, pelvic pain, muscle fatigue, and 

weakness as a result of performing her daily duties of pushing and pulling volumes of court cases 

in excess of 150 files for weekly court proceedings and pushing a cart in excess of 50 pounds.

Appellant was treated by Dr. Ho Bing Patrick Oei, a Board-certified rheumatologist, on

August 8 and September 18, 2014, who noted that appellant had a history of unspecified 

connective tissue disease characterized by muscle weakness, positive antinuclear antibodies

(ANA), persistently elevated creatine phosphokinase (CPK), osteoarthrtis of the left hip, 

degenerative spine disease of the cervical and lumbar spine, and fibromyalgia. Dr. Oei diagnosed 

unspecified diffuse connective tissue disease, fibromyalgia, myalgia, paresthesia, and 

hyperesthesia. He opined that, although appellant had preexisting conditions of unspecified 

connective tissue disease, osteoarthritis of the spine and hip, and fibromyalgia, her conditions were 

exacerbated due to the stressful nature of her job. Dr. Oei opined that the impact of performing 

her duties as a legal assistant caused an aggravation and exacerbation of unspecified connective 

tissue disease, degenerative spine disease, osteoarthritis of her hip, and fibromyalgia. 

By decision dated January 20, 2016, OWCP accepted appellant’s claim for the conditions 

of aggravation of systemic involvement of connective tissue, unspecified.

On March 1, 2017 appellant filed a claim for a schedule award (Form CA-7). She 

submitted a January 18, 2017 report from Dr. Helsten who noted her history of a work-related 

condition and reviewed the medical record. Dr. Helsten noted examination findings of severe 

distress with a pain level of 8 on a scale of 1 to 10, severe tenderness throughout her neck and 

upper back, severe tenderness to the lumbar spine, normal sensation in the fingers of both hands, 

weak grip in both hands bilaterally, normal ambulation, and severe tenderness to her right elbow, 

and bilateral wrists, hips, and knees. He diagnosed aggravation of connective tissue disease. 

Dr. Helsten noted that appellant reached maximum medical improvement on January 18, 2017. 

He noted the Pain Disability Questionnaire (PDQ) score was 95. Dr. Helsten rated appellant’s 

condition using the pain-related impairment system referenced in Chapter 3 of the American 

Medical Association, Guides to the Evaluation of Permanent (A.M.A., Guides).

3

 He noted that 

appellant had diffuse pain throughout her neck, back, and all four extremities. Dr. Helsten noted 

that appellant’s PDQ score of 95 would provide for a one percent whole person impairment 

pursuant to the A.M.A., Guides, however, because multiple areas were involved he assigned three

percent whole person impairment based on chronic ongoing severe pain.

 

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

In a March 25, 2017 report, an OWCP district medical adviser (DMA) opined that 

appellant had not sustained an impairment due to the accepted condition. He indicated that

Dr. Helsten rated appellant for chronic pain using the pain chapter which was not allowed by 

OWCP. The DMA noted that appellant had diffuse pain with no objective end organ damage. He 

indicated that Dr. Oei diagnosed fibromyalgia. The DMA referenced the pain chapter of the 

A.M.A., Guides on page 36, which provides “some conditions are associated with severe pain, but 

are not amenable to conventional impairment ratings because they are not associated with 

unequivocal objective factors. In these conditions, it is not possible to make impairment ratings 

on the basis of objective factors. Common examples include headache disorders and 

fibromyalgia.” The DMA further noted that page 447 of the A.M.A., Guides provides that,

although there are real symptoms in fibromyalgia syndrome, these conditions do not typically rise 

to the level of ratable impairment. Therefore, he noted that there was no impairment for 

fibromyalgia as it was “not possible to make impairment ratings on the basis of objective factors.” 

With regard to the unspecified connective tissue disease, Dr. Helsten noted generalized weakness, 

positive ANA, and persistently elevated CPK, but noted that these were nonspecific findings and 

there was no specific objective anatomical basis upon which to rate appellant. With regard to the 

neck and upper back, Dr. Oei’s August 8, 2014 report noted x-rays on May 9, 2014 revealed 

degenerative cervical spine disease at C5-6 and C6-7, with no evidence of upper extremity sensory 

or motor deficits related to the cervical spine and upper back. With regard to myositis, he found 

no objective evidence of myositis on muscle biopsy, as such there would be no basis for an 

impairment for this condition as there is no objective anatomical deficits related to the condition.

By decision dated May 5, 2017, OWCP denied appellant’s claim for a schedule award.

On February 20, 2018 appellant, through counsel, requested reconsideration. In a report 

dated May 17, 2017, Dr. Helsten explained that Chapter 3 of the A.M.A., Guides provided for a 

rating of permanent impairment due to chronic pain if there is no specific diagnosis elsewhere in 

the A.M.A., Guides. Specifically, he noted the A.M.A., Guides recommend using the PDQ in 

which appellant scored 95. Dr. Helsten indicated that the statutory provision provided impairment 

ratings due to pain.

In a March 28, 2018 report, a DMA reviewed Dr. Helsten’s May 17, 2017 report. He noted 

that Dr. Helsten had failed to provide valid range of motion measurements pursuant to the criteria 

in the A.M.A., Guides. The medical adviser referenced FECA Bulletin No. 09-03 (March 15, 

2009), Pain, which provided for a maximum of three percent impairment rating for nonspecific 

pain that cannot be attributed to a condition addressed elsewhere in the A.M.A., Guides. With 

regard to the diagnosed fibromyalgia, he noted findings of diffuse pain with no objective end organ 

damage. The DMA advised that there was no impairment for fibromyalgia as it was not possible 

to make impairment ratings on the basis of objective factors. He further noted that subjective 

concerns (fatigue, difficulty concentrating, pain) if not accompanied by clinical signs are generally 

not given separate impairment ratings. The DMA indicated that Dr. Helsten rated appellant for 

chronic pain related to nonobjective conditions. Dr. Helsten determined a PDQ score of 95, noting 

that pursuant to Table 3-1, page 40, this would equate to one percent whole person impairment 

and because multiple areas were involved he assigned three percent whole person impairment. 

The DMA noted that this rating was inconsistent with the A.M.A., Guides and therefore he found 

no basis upon which to assign a rating of permanent impairment.
4

By decision dated April 19, 2018, OWCP denied modification of the May 5, 2017 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set 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, 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.6 The effective date of the sixth edition of the A.M.A., Guides is 

May 1, 2009.7

It is well established that, in determining the amount of a schedule award for a member of 

the body that sustained an employment-related permanent impairment, preexisting impairments of 

the body are to be included.8 A schedule award is not payable under section 8107 of FECA for an 

impairment of the whole person.9 A schedule award is also not payable for a member, function, 

or organ of the body not specified in FECA or in the implementing regulations.10

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the percentage of permanent impairment 

using the A.M.A., Guides.

11

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. 

 

4

Id. at § 8107.

5 20 C.F.R. § 10.404. 

6

Id. 

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

2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

8

Id. at Chapter 3.700.3(a)(3) (January 2010). See also Raymond E. Gwynn, 35 ECAB 247, 253 (1983).

9 See Gordon G. McNeill, 42 ECAB 140, 145 (1990). 

10 See Tania R. Keka, 55 ECAB 354 (2004). 

11 See supra note 7 at Chapter 2.808.6(f) (February 2013); see also Tommy R. Martin, 56 ECAB 273 (2005). .
5

OWCP accepted that appellant developed an aggravation of systemic involvement of 

connective tissue due to her employment duties. On March 1, 2017 appellant filed a claim for a 

schedule award. 

In support of her claim appellant submitted reports by Dr. Helsten which provided ratings 

of permanent impairment. The Board has reviewed Dr. Helsten’s reports dated January 18 and 

May 17, 2017, and finds that Dr. Helsten has not adequately explained how his opinion as to the 

extent of permanent impairment was reached in accordance with the relevant standards of the 

A.M.A., Guides.

12

 In his reports, Dr. Helsten rated appellant’s condition using the pain-related 

impairment system referenced in Chapter 3 of the A.M.A., Guides. He noted that appellant had 

diffuse pain throughout her neck, back, and all four extremities. Dr. Helsten noted that appellant’s 

PDQ score of 95 would provide for a one percent whole person impairment pursuant to the A.M.A., 

Guides, however, because multiple areas were involved he assigned three percent whole person 

impairment based on chronic ongoing severe pain. However, his findings were nonspecific and 

there was no objective anatomical basis upon which to rate appellant. Therefore, the Board finds 

that Dr. Helsten did not properly follow the A.M.A., Guides. An attending physician’s report is 

of little probative value when the A.M.A., Guides were not properly followed.13 Therefore the 

reports of Dr. Helsten are insufficient to establish appellant’s claim for a schedule award. 

The DMA properly utilized the findings in Dr. Helsten’s January 18 and May 17, 2017

reports, and correlated them to specific provisions in the A.M.A., Guides. He noted that appellant 

had diffuse pain with no objective end organ damage. The DMA indicated that appellant had been 

diagnosed with fibromyalgia, but page 36 of the A.M.A., Guides, provides that some conditions,

such as fibromyalgia, are associated with severe pain are not amenable to conventional impairment 

ratings because they are not associated with unequivocal objective factors. In these conditions, it 

is not possible to make impairment ratings on the basis of objective factors. The DMA further 

noted that page 447 of the A.M.A., Guides provides that, although there are real symptoms in 

fibromyalgia syndrome, these conditions do not typically rise to the level of ratable impairment. 

Therefore, he noted that there was no impairment for fibromyalgia absent objective factors. 

Appellant has submitted no medical evidence in conformance with the sixth edition of the 

A.M.A., Guides, addressing whether she has employment-related permanent impairment of a

scheduled member or function of the body. Thus, the Board finds that the medical evidence of 

record is insufficient to establish permanent impairment of a scheduled member or function of the 

body causally related to the accepted conditions. Consequently, appellant has not met her burden 

of proof.

Appellant may request a schedule award or an increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

 

12 See Tonya R. Bell, 43 ECAB 845, 849 (1992).

13 See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not 

explaining how the A.M.A., Guides are utilized is of little probative value).
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 April 19, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 5, 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