United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.H., Appellant

and

U.S. POSTAL SERVICE, ATLANTA 

PROCESSING & DISTRIBUTION CENTER, 

Atlanta, GA, Employer

__________________________________________

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Docket No. 20-0562

Issued: August 6, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 15, 2020 appellant filed a timely appeal from an October 15, 2019 merit 

decision and a December 23, 2019 nonmerit decision of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUES

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

impairment of his right upper extremity, warranting a schedule award; and (2) whether OWCP 

properly denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b) as untimely 

filed.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 26, 2004 appellant, then a 46-year-old mail handler, filed a traumatic injury claim 

(Form CA-1) alleging that on July 24, 2004 he fractured his right wrist while in the performance 

of duty. He explained that he was pushing down trash into a trash can when he slipped and fell on 

his right hand. Appellant stopped work on July 27, 2004.

On July 29, 2004 appellant underwent an open reduction internal fixation surgery 

performed by Dr. Jim Roderique, a Board-certified orthopedic surgeon.

OWCP accepted appellant’s claim on August 20, 2004 for a fracture of the right distal 

radius.

In a September 6, 2004 medical report, Dr. Roderique evaluated appellant’s right wrist 

following his July 29, 2004 surgery. He explained that appellant would continue rehabilitation 

and that he did not expect him to reach maximum medical improvement (MMI) before six months 

following his injury. Dr. Roderique noted that he expected that appellant would return to work in 

the next few weeks, long before he reached MMI.

In a September 23, 2004 report of termination of disability and/or payment (Form CA-3),

appellant’s supervisor indicated that he returned to full-duty work with no restrictions on 

September 22, 2004.

In an October 28, 2004 medical report, Dr. Roderique noted that appellant was able to 

return to work without restrictions on September 22, 2004 and checked a box marked “Yes” to 

indicate his belief that appellant had a permanent disability. In accordance with the fifth edition 

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

(A.M.A., Guides),2 he opined that appellant sustained 19 percent permanent impairment of his 

right upper extremity.

On July 22, 2019 appellant filed a claim for a schedule award (Form CA-7).

In an August 29, 2019 development letter, OWCP requested that appellant submit an 

impairment evaluation from his attending physician addressing whether he had reached MMI and 

evaluating the extent of permanent impairment, if any, in accordance with the sixth edition of the 

A.M.A., Guides.

3

 It afforded him 30 days to submit the necessary evidence. Appellant did not 

submit additional evidence within the time allotted.

By decision dated October 15, 2019, OWCP denied appellant’s claim for a schedule award

as the medical evidence was insufficient to establish permanent impairment to a scheduled 

member. It noted that he had not responded to its August 29, 2019 request for medical evidence, 

including an impairment evaluation. OWCP concluded, therefore, that the requirements had not 

been met to establish entitlement to a schedule award.

 

2 A.M.A., Guides (5th ed. 2001).

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

On a request form dated and postmarked November 25, 2019, appellant requested an oral 

hearing before a representative of OWCP’s Branch of Hearings and Review.

By decision dated December 23, 2019, OWCP’s Branch of Hearings and Review denied 

appellant’s hearing request. It found that the request was untimely filed as it had a carrier’s mark 

of November 25, 2019, more than 30 days after its October 15, 2019 merit decision. After 

exercising its 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 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. 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 under the law for all claimants, OWCP has adopted the A.M.A., 

Guides as the uniform standard applicable to all claimants and the Board has concurred in such 

adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.7

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

member or function of the body as a result of an employment injury.8 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.

9

 

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.10 If the claimant does not provide an impairment evaluation and there is no 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7 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).

8 T.K., Docket No. 19-1222 (issued December 2, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

9 Supra note 7 at Chapter 2.808.5 (March 2017).

10 Id. at Chapter 2.808.6(a) (March 2017).
4

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

proceed with a formal denial of the award.11

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his right upper extremity, warranting a schedule award.

In his October 28, 2004 medical report, Dr. Roderique opined that appellant had 19 percent 

permanent impairment of the right upper extremity due to his wrist fracture. However, he utilized 

the fifth edition of the A.M.A., Guides in reaching his impairment rating, and thus his opinion is 

of diminished probative value.12 

The Board finds that the medical evidence of record does not describe the right upper 

extremity impairment in sufficient detail so that it can be visualized on review, and does not 

compute the percentage of impairment in accordance with the most recent edition of the A.M.A., 

Guides,

13 the sixth edition. On August 29, 2019 OWCP requested that appellant submit a medical 

opinion addressing whether he had reached MMI and the extent of permanent impairment; 

however, appellant did not provide such a rating. Accordingly, the Board finds that he has not met 

his burden of proof to establish his schedule award claim.14

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.

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 issuance 

of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”

15

 

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.16 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 

 

11 Id. at Chapter 2.808.6(c).

12 S.J., Docket No. 16-1162 (issued February 8, 2017) (a medical opinion not based on the appropriate edition of 

the A.M.A., Guides is of diminished probative value in determining the extent of permanent impairment).

13 C.T., Docket No. 18-0257 (issued May 21, 2019).

14 D.F., Docket No. 18-1337 (issued February 11, 2019).

15 5 U.S.C. § 8124(b)(1).

16 20 C.F.R. §§ 10.616, 10.617.
5

postmark or other carrier’s date marking and before the claimant has requested reconsideration.17 

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.

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for an oral hearing as 

untimely filed pursuant to 5 U.S.C. § 8124.

OWCP’s regulations provide that the request for an oral hearing must be made within 30 

days of the date of the decision for which a review is sought. Because appellant’s hearing request 

was postmarked November 25, 2019, it postdated OWCP’s October 15, 2019 decision by more 

than 30 days and, therefore, is untimely. Appellant was therefore not entitled to an oral hearing as 

a matter of right.18

OWCP, however, has the discretionary authority to grant the request and it must exercise 

such discretion.19 The Board finds that, in the December 23, 2019 decision, OWCP’s Branch of 

Hearings and Review properly exercised discretion by determining that the issue in the case could 

be equally well addressed through a request for reconsideration before OWCP, along with the 

submission of additional evidence.

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

abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable 

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

from established facts.20 In this case, the evidence of record does not indicate that OWCP abused 

its discretion by denying appellant’s request for an oral hearing. Accordingly, the Board finds that 

OWCP properly denied his request for an oral hearing pursuant to 5 U.S.C. § 8124(b).

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of the right upper extremity, warranting a schedule award. The Board further finds 

that OWCP properly denied his request for an oral hearing as untimely filed pursuant to 5 U.S.C. 

§ 8124(b).

 

17 Id. at § 10.616(a).

18 See P.C., Docket No. 19-1003 (issued December 4, 2019).

19 Id.

20 Id.
6

ORDER

IT IS HEREBY ORDERED THAT the December 23, 2019 and October 15, 2019 

decisions of the Office of Workers’ Compensation Programs are affirmed.

Issued: August 6, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board