United States Department of Labor

Employees’ Compensation Appeals Board

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D.P., Appellant

and

DEPARTMENT OF THE AIR FORCE, NELLIS 

AIR FORCE BASE, NV, Employer

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Docket No. 20-1330

Issued: February 19, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 8, 2020 appellant filed a timely appeal from an April 9, 2020 merit decision of the 

Office of Workers’ Compensation Programs (OWCP).1 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 The Board notes that, during the pendency of this appeal, OWCP issued a December 14, 2020 decision, which 

denied appellant’s claim for a schedule award. The Board and OWCP may not simultaneously exercise jurisdiction 

over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see J.C., Docket No. 19-1849, n.2 (issued November 17, 

2020); Arlonia B. Taylor, 44 ECAB 591 (1993) (Member, Groom concurring in part and dissenting in part); Russell E. 

Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s December 14, 

2020 decision is set aside as null and void.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that appellant submitted additional evidence on appeal. 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 her burden of proof to establish permanent 

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

FACTUAL HISTORY

This case has previously been before the Board on different issues.

4

 The facts and 

circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The 

relevant facts are as follows.

On December 16, 1987 appellant, then a 32-year-old intermittent store worker, filed a 

traumatic injury claim (CA-1) alleging that on November 7, 1987 she injured her low back while 

lifting a case of vinegar while in the performance of duty.

5

 She stopped work on November 8, 

1987 and returned-to-modified duty on December 15, 1987. OWCP accepted appellant’s claim 

for low back strain. Appellant filed claims for intermittent periods of disability for which OWCP 

paid her wage-loss compensation on the supplemental rolls beginning December 23, 1987. 

On October 20, 1993 appellant accepted a modified-position job offer as a store worker on 

an intermittent work schedule. By decision dated November 10, 1993, OWCP reduced her wageloss compensation benefits to zero based on her actual wages as a store worker. It reissued the 

decision on January 31, 1994. 

Appellant resigned from federal employment, effective January 3, 1994.6 

On February 3, 2020 appellant filed a claim for a schedule award (Form CA-7). 

In a March 6, 2020 development letter, OWCP requested that appellant’s treating physician 

submit an impairment evaluation report in accordance with the sixth edition of the American 

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

7

 It 

afforded her 30 days to submit additional medical evidence in support of her schedule award claim. 

In an April 9, 2020 decision, OWCP denied appellant’s schedule award claim, finding that 

the medical evidence of record was insufficient to establish that she sustained a permanent 

impairment due to her accepted employment-related low back sprain. 

 

4 Docket No. 92-1253 (issued March 23, 1993); Docket No. 97-2321 (issued December 14, 1999); Docket No. 

12-1364 (issued September 12, 2012), petition for recon. denied, Docket No. 12-1364 (issued February 19, 2013).

5 OWCP assigned the present claim OWCP File No. xxxxxx263. Appellant has a prior claim for an April 12, 1987 

alleged low back injury which OWCP assigned OWCP File No. xxxxxx649. On April 7, 1988 OWCP 

administratively combined OWCP File No. xxxxxx263 with OWCP File No. xxxxxx649, designating OWCP File No. 

xxxxxx263 as the master file. 

6 Appellant continued to receive medical treatment and filed several notices of recurrences (Form CA-2a) claiming 

that she sustained recurrences of disability on October 11, 1996, February 23, 2001, and August 24, 2009. OWCP 

subsequently denied these claims. 

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

LEGAL PRECEDENT

The schedule award provision of FECA8and its implementing federal regulations,9set 

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. FECA, 

however, does not specify the manner in which the percentage of loss of a member shall be 

determined. For consistent results and to ensure equal justice, the Board has authorized the use of 

a single set of tables so that there may be uniform standards applicable to all claimants.10 For 

schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the 

A.M.A., Guides, published in 2009.11 The Board has approved the use by OWCP of the A.M.A., 

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.12 

A claimant has the burden of proof under FECA to establish permanent impairment of a 

scheduled member or function of the body as a result of his or her employment injury entitling 

him or her to a schedule award.13 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 maximum medical 

improvement), 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.14 Its 

procedures further provide that, if a claimant has not submitted a permanent impairment 

evaluation, it should request a detailed report that includes a discussion of how the impairment 

rating was calculated.15 If the claimant does not provide an impairment evaluation, and there is no 

indication of permanent impairment in the medical evidence of file, the claims examiner may 

proceed with a formal denial of the award.16

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.

 

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.

10 Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

12 D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961). 

13 See M.G., Docket No. 19-0823 (issued September 17, 2019); D.F., Docket No. 18-1337 (issued February 11, 

2019); Tammy L. Meehan, 53 ECAB 229 (2001).

14 Supra note 11 at Chapter 2.808.5 (March 2017).

15 Id. at Chapter 2.808.6(a) (March 2017).

16 Id. at Chapter 2.808.6(c) (March 2017).
4

On February 3, 2020 appellant filed a claim for a schedule award. No medical evidence 

was received in support of her schedule award claim. In a March 6, 2020 development letter, 

OWCP requested a medical opinion from her treating physician regarding the extent of her 

permanent impairment in accordance with the A.M.A., Guides. Appellant, however, did not 

submit the requested evidence.

As noted above, if the claimant does not provide an impairment evaluation and there is no 

indication of permanent impairment in the medical evidence of file, the claims examiner may 

proceed with a formal denial of the award.17 Because appellant did not submit medical evidence 

to establish permanent impairment of a scheduled member or function of the body, in accordance 

with the sixth edition of the A.M.A., Guides, she has not met her burden of proof to establish her 

schedule award claim.18 

On appeal, appellant argues that OWCP erroneously closed her claim and denied her 

multiple recurrence of disability claims. The Board notes, however, that it only has jurisdiction to 

review the April 9, 2020 OWCP decision denying her request for a schedule award.19 As explained 

above, 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 November 7, 1987 

employment injury, warranting a schedule award.

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 her burden of proof to establish permanent 

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

 

17 Id. 

18 See T.M., Docket No. 19-1126 (issued September 22, 2020).

19 The Board notes that the appellant has filed occupational disease and recurrence of disability claims on 

February 19, 2020, however, as OWCP has not adjudicated these claims, the Board does not have jurisdiction to 

review these claims. 5 U.S.C. § 8101; 20 C.F.R. §§ 501.2(c) and 501.3.
5

ORDER

IT IS HEREBY ORDERED THAT the April 9, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: February 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board