United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Denver, CO, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0771

Issued: January 31, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On February 28, 2018 appellant filed a timely appeal from a September 20, 2017 merit 

decision and a December 19, 2017 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP).1 The Board assigned Docket No. 18-0771. OWCP adjudicated the claim 

under OWCP File No. xxxxxx900.2

On February 10, 1997 appellant, then a 46-year old nurse, filed an occupational disease 

claim (Form CA-2) alleging that her exposure to fumes from paints, cleaning materials, and a 

construction environment, while in the performance of duty, caused respiratory problems. On 

June 9, 2001 OWCP accepted appellant’s claim for allergic rhinitis and chronic sinusitis. It later 

expanded acceptance of the claim to include extrinsic asthma; other diseases of vocal cords;

 

1 Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 19, 2018, 

the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be 

addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 18-0771 (issued 

July 19, 2018).

2

In a subsidiary file adjudicated under File No. xxxxxx600, OWCP accepted aggravation of preexisting manic 

depressive illness and post-traumatic stress disorder. Under that claim appellant received medical benefits and wageloss compensation commencing September 1, 1999. 
2

chronic asthma; chronic frontal, ethmoidal, and sphenoidal sinusitis; other chronic sinusitis;

chronic obstructive asthma; and other diseases of nasal cavity and sinuses. 

On August 25, 2015 appellant filed a claim for a schedule award (Form CA-7). She 

submitted an October 19, 2015 report in which Dr. Douglas A. Swift, Board-certified in 

occupational medicine, described his review of medical records including test results dating from 

November 14, 2008 to November 17, 2014. Dr. Swift advised that, in accordance with the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(hereinafter A.M.A., Guides),3 under Table 5-5, Asthma, appellant had a class 2 whole person 

permanent impairment of 17 percent. 

OWCP referred the claim to a district medical adviser (DMA) to review the schedule award 

claim. In a January 24, 2016 report, Dr. Albert A. Rizzo, Board-certified in internal medicine and 

pulmonary disease serving as a DMA, noted his review of the record, including a November 18, 

2015 statement of accepted facts, test results, and Dr. Swift’s report. Dr. Rizzo reported that 

appellant was maintained on chronic-inhaled corticosteroids and had a post-bronchodilator forced 

expiratory volume in one second (FEV1) of 85 percent, as shown in a November 2014 pulmonary 

function study. He advised that treatment had normalized her pulmonary function and indicated 

that, based on Table 5-4 and Table 5-5, the FEV1 result placed her in class 0. The DMA also 

indicated that Table 5-5 could not be used to determine impairment in the absence of airflow 

limitation which, he indicated, described appellant, finding that although she was hyperresponsive, she had normal pulmonary function with treatment as shown on a on a November 17, 

2014 post-bronchodilator which demonstrated FEV1 of 85 percent predicted. He found that

appellant had a class 0 impairment for her respiratory status. Therefore, the DMA concluded that 

appellant had a total of zero percent respiratory permanent impairment. 

By decision dated April 19, 2016, 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 May 13, 2016 appellant requested a hearing before an OWCP hearing representative 

and submitted additional medical evidence. By decision dated March 29, 2017, the hearing 

representative affirmed the denial of appellant’s schedule award claim, finding that the weight of 

the medical evidence rested with the opinion of Dr. Rizzo.

On April 12 and September 11, 2017 appellant requested reconsideration. By merit 

decisions dated July 5 and September 20, 2017, OWCP denied modification of the prior decisions.

Appellant again requested reconsideration on October 12, 2017 and submitted additional 

medical evidence. By nonmerit decision dated December 19, 2017, OWCP denied review of the 

merits of her claim. It found the evidence submitted was irrelevant or immaterial and of no bearing 

on the issue of whether she established permanent impairment to a scheduled member.

The Board finds this case is not in posture for decision. Pursuant to 20 C.F.R. 

§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was 

 

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

before OWCP at the time of its final decision. Decisions on claims are based on the written record, 

which may include forms, reports, letters, and other evidence of various types such as photographs, 

videotapes, or drawings.4 Evidence may not be incorporated by reference, and evidence from 

another claimant’s case file may not be used.5 All evidence that forms the basis of a decision must 

be in that claimant’s case record.6

Both Dr. Swift, who provided an October 19, 2015 impairment evaluation for appellant 

and Dr. Rizzo, an OWCP medical adviser, referenced a November 17, 2014 pulmonary function 

study. In his March 29, 2017 decision, the hearing representative also referenced a November 17, 

2014 pulmonary function study. He relied on this medical evidence in affirming the denial of

appellant’s schedule award claim. A report summarizing the findings of the November 17, 2014 

pulmonary function study is not found in the case record before the Board in this appeal. Due to 

this oversight, the Board is not in a position to make an informed decision regarding appellant’s 

schedule award claim.7

As the record lacks sufficient evidence for the Board to render an informed decision, the 

case shall be remanded to OWCP for further development. As noted, all evidence that forms the 

basis of a decision must be included in the case record.8 After OWCP has developed the record 

consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s 

schedule award claim.9

 

4 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a 

(June 2011).

5

Id.

6

Id.

7 See L.W., Docket No. 17-0526 (issued May 12, 2017).

8

Id.

9 See D.G., Docket No. 17-1098 (issued October 26, 2017).
4

IT IS HEREBY ORDERED THAT the December 19 and September 20, 2017 decisions 

of the Office of Workers’ Compensation Programs are set aside and the case remanded to OWCP 

for further proceedings consistent with this order of the Board.

Issued: January 31, 2019

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