United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.B., (widow of S.B.), Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WAINWRIGHT MEMORIAL MEDICAL 

CENTER, Walla Walla, WA, Employer

__________________________________________

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Docket No. 20-0994

Issued: August 9, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 9, 2020 appellant, through counsel, filed a timely appeal from a March 12, 2020

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 a schedule award, pursuant to the provisions of section 8107 of the 

Federal Employees’ Compensation Act,

3

(FECA) may be granted posthumously where maximum 

medical improvement of the injured member had not been reached during the lifetime of the 

employee.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On April 10, 2013 the employee, then a 45-year-old housekeeping aid supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on March 19, 2013 he injured his lower back 

when he lifted a desk while in the performance of duty. OWCP accepted his claim for left thoracic 

or lumbosacral neuritis and subsequently expanded the acceptance of his claim to include 

postlaminectomy syndrome. It paid the employee wage-loss compensation on the supplemental 

rolls for intermittent periods of total disability beginning February 5, 2016. 

The employee underwent several OWCP approved back surgeries and was intermittently 

on and off work.5 November 28, 2016 he returned to full-time, modified-duty work. The 

employee continued to receive medical treatment. 

On August 1, 2017 the employee filed a claim for compensation (Form CA-7) for a 

schedule award. 

Appellant submitted an August 22, 2016 report by Dr. Jason A. Dreyer, an osteopath who 

specializes in neurosurgery. Dr. Dreyer recounted the employee’s complaints of recurrent, severe 

low back pain. He noted improved sensory examination and motor examination and diagnosed 

status post L5-S1 fusion. 

In a development letter dated August 10, 2017, OWCP requested that the employee’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)

6

and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth 

 

3

Id. at § 8107.

4 Docket No. 19-0866 (issued September 17, 2019).

5 Appellant underwent L2-3 microdiscectomy with L3-4 laminectomy and decompression on October 28, 2014,

anterior lumbar interbody and posterolateral arthrodesis at L1-2, L2-3, and L3-4, posterior spinal instrumentation at 

L1-S1, laminectomies at L1-5 to S1 for compression on January 19, 2016, and hardware removal and revision with 

posterolateral fusion at L4-5, L5-S1 on August 22, 2016. 

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

Edition (July/August 2009) (The Guides Newsletter). It afforded him 30 days to submit additional 

medical evidence in support of his schedule award claim. 

OWCP received a July 11, 2017 report by Dr. Kyle Terry, a family medicine specialist, 

who indicated that the employee was evaluated for complaints of continued low back and left 

testicle pain. It also received a June 29, 2017 progress note by Dr. Michael Turner, a Boardcertified physical medicine and rehabilitation specialist, who indicated that the employee’s 

electromyography and nerve conduction velocity (EMG/NCV) study was normal. 

In an April 4, 2017 letter, Dr. John B. Hoehn, who specializes in family medicine, noted 

that the employee had reached maximum medical improvement (MMI). 

In an August 14, 2017 report, Dr. Craig Flinders, a Board-certified family medicine 

specialist, noted the employee’s complaints of chronic severe left testicle and low back pain. He 

discussed the employee’s history and noted that the employee only had minimal improvement in 

pain and function. Upon examination of the employee’s lumbar spine, Dr. Flinders observed 

moderate paraspinous tenderness in the same region and positive Patrick’s test bilaterally. He 

diagnosed degenerative joint disease with discogenic lumbar radiculopathy. 

An August 29, 2017 lumbar x-ray scan revealed stable changes of operative fusion 

extending from L1 through S1 and possible left renal calculus. 

OWCP also received a January 19, 2016 operative report, an August 22, 2016 operative 

report, laboratory test results dated August 28, 2017, thoracic transforaminal epidural steroid 

injection procedure reports dated September 28 and October 18, 2017, and an October 19, 2017 

work status note. 

A December 5, 2017 lumbar spine magnetic resonance imaging (MRI) scan report revealed 

progressive degenerative disc disease and mild retrolisthesis at T12-L1 with moderate central canal 

stenosis. 

In reports dated December 26, 2017 through February 13, 2018, Dr. Terry noted that the 

employee was doing better, but still had pain in his back and legs. He provided examination 

findings and noted decreased muscle tension throughout the bilateral lower thoracic and lumbar 

paraspinals. In a January 8, 2018 report, Dr. Terry indicated that the employee had asked about 

his impairment rating. He explained that Dr. Flinders had recommended another surgery before 

he could complete a report. Dr. Terry noted that, since the employee was still seeking curative 

medicine, he did not submit the employee findings. 

On February 16, 2018 OWCP advised the employee that it would not take additional action 

on his schedule award claim because the medical evidence of record demonstrated that his 

condition had not yet reached MMI. 

In a February 20, 2018 report, Dr. Flinders noted the employee’s complaints of left groin 

and testicle pain. He provided examination findings and diagnosed chronic low back pain status 

posterolateral interbody fusion at L1 to S1 for degenerative disc disease. 
4

On February 27, 2018 the employee underwent OWCP-authorized lumbar surgery. He 

stopped work and OWCP paid him wage-loss compensation on the supplemental rolls until he 

returned to part-time, limited-duty work on March 16, 2018. 

In a March 1, 2018 report, Dr. Andrew Park, a Board-certified family medicine specialist,

discussed the employee’s history of injury and noted the employee’s complaints of low back pain, 

left testicle pain, and numbness and pain in the left thigh. He provided examination findings and 

diagnosed lumbar radiculopathy, status post multiple surgeries. 

In a March 15, 2018 work capacity evaluation report (Form OWCP-5c), Dr. Flinders 

indicated that the employee could work part time with restrictions for four hours per day. 

By decision dated March 26, 2018, OWCP denied the schedule award claim, finding that 

the medical evidence of record was insufficient to demonstrate that the employee had reached 

MMI. It noted that the evidence of record demonstrated that he was still receiving medical 

treatment for his accepted condition. 

OWCP subsequently received a March 21, 2018 report by Dr. Park, who recounted that the 

employee still complained of left testicle pain after the February 27, 2018 surgery. Dr. Park

indicated that examination of the employee’s lumbar spine revealed decreased range of motion

(ROM) and mild tenderness in the lower paraspinal areas. He diagnosed lumbar radiculopathy, 

thoracolumbar radiculopathy, and myofascial pain syndrome. 

The employee continued to receive medical treatment from Dr. Flinders. In reports and a 

Form OWCP-5c dated March 20 through June 26, 2018, Dr. Flinders noted that the employee had 

recently undergone endoscopic discectomy surgery and continued to complain of back pain. Upon 

physical examination, he observed minimal tenderness and prominent trigger points in the 

interspinous ligament at T6-7. Dr. Flinders diagnosed postlaminectomy pain syndrome with 

chronic back pain, left T12 radicular pain, and myofascial pain. In a May 29, 2018 report, he 

recommended that the employee consider a trial of spinal cord stimulation for the employee’s 

chronic residual symptoms. In a June 26, 2018 report, Dr. Flinders recommended that the 

employee remain off work. 

In reports and OWCP-5c forms dated May 2 through June 1, 2018, Dr. Park recounted the 

employee’s complaints of increasing back pain and left testicle numbness and pain. He provided 

examination findings and diagnosed thoracolumbar radiculopathy, myofascial pain syndrome, and 

lumbar radiculopathy. Dr. Park noted that the employee could work full-time, limited duty. 

OWCP received emergency department hospital records dated June 19, 2018 and an urgent 

care report dated June 20, 2018, which revealed that the employee sought medical treatment for 

back pain and sciatica-like symptoms down the left leg. The employee was diagnosed with lumbar 

strain and left side sciatica. 

On August 7, 2018 appellant, the employee’s widow, notified OWCP that the employee 

had passed away on August 6, 2018 and provided a death certificate dated August 13, 2018. 

OWCP subsequently received reports dated July 3 and August 2, 2018, wherein Dr. Park 

noted that on March 9, 2013 the employee injured his back at work and discussed the numerous 
5

surgeries that he underwent. Dr. Park recounted the employee’s complaints of persisting low back 

pain, left testicle pain and numbness, and occasional sciatica-type pain radiating to the left leg. 

Upon physical examination of the employee’s back, he observed decreased range of motion and 

mild tenderness in the lower paraspinal area. Neurological examination revealed decreased and 

no sensation of L1 dermatome left groin and left thigh area. Dr. Park assessed thoracolumbar 

radiculopathy, myofascial pain syndrome, restless leg syndrome, and lumbar radiculopathy. 

OWCP received various medical reports dated from July 11, 2016 through February 2, 

2017 regarding the employee’s treatment for chronic lower back pain, lumbar disc disease, lumbar 

radiculitis, sleep apnea, fatigue, and restless leg syndrome. It also received a February 7, 2013 and 

December 1, 2016 sleep study note and testing report. On February 6, 2019 appellant, through 

counsel, requested reconsideration of the March 26, 2018 decision. Counsel alleged that the death 

of the employee placed him at MMI and that OWCP had a duty to develop the schedule award 

claim. 

By decision dated February 20, 2019, OWCP denied appellant’s request for 

reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a). 

Appellant filed an appeal to the Board. By decision dated September 17, 2019, the Board 

set aside OWCP’s February 20, 2019 nonmerit decision,7finding that counsel provided a new 

legal argument relevant to the employee’s schedule award claim. 

Appellant, through counsel, thereafter submitted a March 3, 2020 letter and requested an 

update from OWCP regarding the employee’s schedule award claim. 

By decision dated March 12, 2020, OWCP denied modification of the March 26, 2018 

schedule award decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA8and its implementing federal regulations9set 

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 

 

7 Supra note 3.

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.
6

the Board has concurred in such adoption.10 As of May 1, 2009, the sixth edition of the A.M.A., 

Guides, published in 2009, is used to calculate schedule awards.11

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.12 Before the A.M.A., Guides can be utilized, a description of 

impairment must be obtained from his or her physician. In obtaining medical evidence required 

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

of the 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, decrease 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.13

Section 8109(a) of FECA provides that if an individual has sustained disability 

compensable under section 8107(a), has filed a valid claim in his lifetime, and dies from a cause 

other than the injury before the end of the period specified by the schedule, the compensation 

specified by the schedule that is unpaid at his death, whether or not accrued or due at his death, 

shall be paid, under an award made before or after the death and for the period specified by the 

schedule, to designated surviving beneficiaries.14

OWCP procedures further provide that, if at the time of the claimant’s death a schedule 

award claim is being developed, but has not yet been paid, the claimant’s dependent(s) would be 

entitled to the entire payment of the award.15

ANALYSIS

The Board finds that this case is not in posture for decision.

In the instant case, the Board finds that OWCP erred in denying appellant’s schedule award 

claim based solely on its finding that the employee had failed to establish that he had reached 

MMI. The record reflects that the employee made a claim for a schedule award during his lifetime

and the claim was under development. OWCP initially denied the employee’s schedule award 

claim, finding that the evidence of record failed to establish that he had reached MMI. The 

 

10 Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB 

139 (2002). 

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 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).

13 K.F., Docket No. 18-1517 (issued October 9, 2019); A.T., Docket No. 18-0864 (issued October 9, 2018).

14 5 U.S.C. § 8109(a).

15 Supra note 11 at Chapter 2.808.7(a)(7) (February 2013).
7

employee subsequently passed away on August 6, 2018. On February 6, 2019 appellant, through 

counsel, requested reconsideration. By decision dated March 12, 2020, OWCP denied 

modification of the March 26, 2018 schedule award decision, finding that the medical evidence of 

record was insufficient to demonstrate that the employee had reached MMI. 

The Board has found that a disabled employee has the right to compensation for periods of 

temporary total or partial disability until MMI is reached. Upon reaching MMI, the evidence 

ordinarily permits a determination to be made as to the precise degree of permanent loss of use of

the schedule member of the body. However, the Board has held that, in cases involving 

posthumous schedule awards, precision often cannot be obtained. In those situations, schedule 

awards have been made in other jurisdictions where the evidence shows the extent of permanent 

impairment. Evidence based on conjecture, of course, would not meet the required standard of 

proof. However, where a physician, within a reasonable degree of medical certainty, is able to 

render an opinion as to the permanent loss of use of the injured member, such evidence should be 

given credence. Although in a particular case there may be a conflict as to the extent of the 

impairment, this would present a question of fact which, as in any other case, would be resolved 

by weighing the evidence.16

In its March 12, 2020 decision, OWCP summarily denied appellant’s schedule award claim 

without evaluating the medical evidence in the record to determine if the additional medical 

evidence supported a permanent impairment rating.

The Board notes that, prior to the employee’s death, he submitted reports by Dr. Park. In 

reports dated July 3 and August 2, 2018, Dr. Park described the March 9, 2013 employment injury 

and discussed the numerous surgeries that the employee underwent. He noted lumbar examination 

findings of decreased range of motion and mild tenderness in the lower paraspinal area. 

Neurological examination revealed decreased and no sensation of L1 dermatome left groin and 

left thigh area. Dr. Park diagnosed thoracolumbar radiculopathy, myofascial pain syndrome, 

restless leg syndrome, and lumbar radiculopathy. The Board notes that he provided lumbar 

examination findings and noted diminished sensation in appellant’s left lower extremity. Because

Dr. Park noted physical findings at the time of his last examination of the employee on July 3, 

2018, OWCP erred by not further developing the medical evidence for review of the employee’s 

permanent impairment to his left lower extremity due to his accepted lumbar injury in accordance 

with the A.M.A., Guides.17 

OWCP’s procedures provide that, if a claimant does not provide an impairment evaluation 

from his/her physician when requested and there is an indication of permanent impairment in the 

medical evidence of file, the claims examiner (CE) should refer the claimant for a second opinion 

 

16 Cheryl R. Holloway (Wryland R. Holloway), Docket No. 02-2153 (issued February 28, 2003). 

17 Id.
8

evaluation.18 The CE may also refer the case to the DMA prior to scheduling a second opinion 

examination.19 

The case shall, therefore, be remanded for OWCP to consider the existing medical evidence 

of record in order to determine whether any specific finding of permanent impairment can be 

identified when the A.M.A., Guides are applied to the predeath physical findings. OWCP should 

refer the results of Dr. Park’s reports to an OWCP medical adviser for calculation of the 

employee’s permanent impairment. Following this and other such further development as deemed 

necessary, OWCP shall issue a de novo merit decision regarding the posthumous schedule award 

claim.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings

consistent with this decision of the Board.

Issued: August 9, 2021

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

 

18 Supra note 11 at Chapter 2.808.6(d) (March 2017).

19 Id.