United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

EDWARD P. BOLAND VA MEDICAL 

CENTER, Leeds, MA, Employer

__________________________________________

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Docket No. 23-0456

Issued: October 2, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 15, 2023 appellant filed a timely appeal from a January 11, 2023 merit 

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.

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 February 10, 2006 appellant, then a 49-year-old social worker, filed an occupational 

disease claim (Form CA-2) alleging that she developed bronchitis and nausea and began to feel ill 

1

5 U.S.C. § 8101 et seq.
2

due to factors of her employment when she was deployed to a VA medical shelter in Waco, TX. 

She noted that she first became aware of her condition and realized its relationship to her federal 

employment on October 24, 2005. OWCP accepted appellant’s claim for bilateral asthmatic 

bronchitis. 

On May 14, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a development letter dated May 19, 2020, OWCP requested that appellant submit a 

detailed narrative medical report from her treating physician based upon a recent examination 

including a date of maximum medical improvement (MMI), the diagnosis upon which the 

impairment rating was based, a detailed description of any preexisting impairment, and a final 

rating of the permanent impairment and discussion of the rationale for calculation of the 

impairment, with references to the applicable criteria and tables of the sixth edition of the 

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

Guides).2 It afforded her 30 days to submit the requested information.

OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF) 

and the medical record, to Dr. Michael Teiger, a Board-certified internist specializing in 

pulmonary disease, for a second opinion examination in order to determine whether she had 

permanent impairment of a scheduled member or function of the body due to her accepted injury 

in accordance with the A.M.A., Guides. 

In a February 25, 2021 report, Dr. Teiger reviewed the SOAF and noted the accepted 

condition of bilateral bronchitis. He reported that appellant still complained of frequent bouts of 

shortness of breath, wheezing, a cough productive of clear secretions, and troubling chest tightness

and approximately three attacks of asthma per year. Dr. Teiger also noted appellant’s current 

medication of fluticasone 500/50, and nebulized albuterol taken as needed. On examination of 

appellant’s lungs, he noted normal breath sounds on both the left and right side and no rhonchi or 

wheezing. Dr. Teiger indicated that a pulmonary function test (PFT) performed that day 

demonstrated that appellant had a prebronchondilator forced vital capacity (FVC) of 3.67L or 93 

percent of predicted, a forced expiratory volume in one second (FEV1) of 2.55L or 84 percent of 

predicted, and a ratio of FEV1 to FVC of 90 percent of predicted. The PFT further revealed that 

total lung capacity (TLC) was 5.46L or 90 percent and a diffusion capacity (single breath capacity) 

was 92 percent of predicted. Dr. Teiger reported that the findings were consistent with mild 

bronchial asthma. He opined that appellant’s present condition was a continuation of her 

employment-related asthmatic bronchitis with frequent exacerbations. Dr. Teiger noted that 

appellant had reached maximum medical improvement (MMI) as of that date. He referenced the 

A.M.A., Guides and determined that appellant had a Class 2 impairment with a severity of “D,”

which resulted in 20 percent permanent impairment of the whole person.

OWCP subsequently referred the case record to Dr. David I. Krohn, a Board-certified 

internist serving as a district medical adviser (DMA), for an opinion regarding appellant’s 

permanent impairment.

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

In a May 6, 2021 report, Dr. David I. Krohn, a Board-certified internist serving as a district 

medical adviser (DMA), reviewed the medical record, including Dr. Teiger’s February 25, 2021 

second opinion report, and noted that appellant’s claim was accepted for bilateral asthmatic 

bronchitis. He reported that in order to objectively substantiate the diagnosis of asthma, appellant 

should be formally tested with methacholine challenge. Utilizing the sixth edition of the A.M.A., 

Guides, the DMA referenced Table 5-4 (Pulmonary Dysfunction), page 88, and Table 5-5 

(Asthma), page 90, and reported that the pulmonary function tests in each table correlated with a 

Class 0 or a zero percent whole person permanent impairment. He noted his disagreement with

Dr. Teiger’s impairment rating and indicated that for Table 5-4 and Table 5-5, objective tests were 

the key factor that served as the basis for any impairment rating.

On August 3, 2021 OWCP requested that Dr. Teiger review the May 6, 2021 DMA report 

and provide a supplemental opinion on whether appellant had permanent impairment of a 

scheduled member or function of the body due to her accepted injury in accordance with the 

A.M.A., Guides. In an April 26, 2022 report, Dr. Teiger indicated that he reevaluated appellant in 

light of a recent DMA report. He reported that appellant had active issues of bronchial asthma and 

recurrent episodes of asthmatic bronchitis exacerbation. Dr. Teiger indicated that he disagreed 

with the DMA’s opinion of zero percent permanent impairment and explained that one normal 

pulmonary study was not reflective of appellant’s overall condition that required daily use of the 

bronchodilator inhalers. He referred to Table 5-5 of the A.M.A., Guides and determined that 

appellant was a Class 2 impairment based on clinical parameters and medication requirement of 

daily usage of high dose fluticasone inhaler. Dr. Teiger again found that appellant had 20 percent 

whole person permanent impairment.

OWCP forwarded Dr. Teiger’s February 25, 2021 and April 26, 2022 reports to Dr. Alan J. 

Goodman, a Board-certified internist specializing in allergy and immunology and serving as a 

DMA. In an August 5, 2022 report, the DMA reviewed the SOAF and noted that appellant’s claim 

was accepted for bilateral bronchitis. He discussed appellant’s medical records and reported that 

appellant had chronic asthma that required treatment with moderate dose inhaled corticosteroids. 

Referring to page 87 of the A.M.A., Guides, the DMA explained that the controlling factor in 

determination of permanent impairment was based on the key factors from objective tests. He 

reported that PFTs performed on October 10, 2006 and February 23, 2021 showed measurements 

of FVC, FEV1, FEV1/FVC, and DLCO within normal limits. Utilizing Table 5-4 and Table 5-5, 

the DMA determined that appellant was a Class 0, which translated to zero percent permanent

impairment. He explained that non-key factors, such as daily use of steroids, could move the 

claimant within a class, but the A.M.A., Guides did not permit moving from the initial impairment 

class. The DMA indicated that while appellant had asthma, it did not rise to the level of permanent 

impairment as required by the A.M.A., Guides.

In an October 31, 2022 supplemental report, Dr. Teigerreiterated that appellant had a Class 

2 impairment due to her chronic and symptomatic asthma, which resulted in 20 percent whole 

person permanent impairment. He noted his disagreement with the August 5, 2022 DMA report 

and explained that while objective tests were key factors, the A.M.A., Guides did not state that 

they should be the only factor used to determine permanent impairment. Dr. Teiger reported that 

Table 5-4 and Table 5-5 on pages 88 and 90, respectively, used both clinical parameters, as well 

as medication usage, as co-determinants to assess permanent impairment.
4

In a December 3, 2022 report, Dr. Goodman, the DMA indicated that after reviewing

Dr. Teiger’s recent October 31, 2022 report, he would continue to rate appellant at zero percent 

permanent impairment according to the A.M.A., Guides. He reported that OWCP’s procedures 

indicated that for lung impairment, the class of respiratory impairment should first be established 

following the A.M.A., Guides. The DMA included an excerpt, which noted that “[w]hile [a]

pulmonary function varies from day to day and from environment to environment, impairment 

exists for compensation purposes when the pulmonary function testing reveals Class 1 or greater 

impairment severity as defined by the A.M.A., Guides.” He explained that based on this criterion, 

it was mandatory to consider PFT as the determination of impairment. The DMA noted that 

appellant was a Class 0 impairment for normal measurements of FVC, FEV1, FEV1/FVC, and 

DLCO. He also noted his disagreement with Dr. Teiger’s impairment rating based on medication 

and further explained that non-key factors, such as medication use, were used in determining 

permanent impairment by moving a claimant within a class. The DMA referred to page 89 of the 

A.M.A., Guides and the clinical scenarios in Section 5.11, page 93, which demonstrated that 

medication use was a factor in the impairment ratings after the PFT was utilized to determine class 

impairment. He again concluded that while appellant still had asthma, which required medication 

use, it did not rise to the level of permanent impairment as defined by the A.M.A., Guides. The 

DMA concluded that his initial impairment of zero percent permanent impairment of the whole 

person remained unchanged. 

By decision dated January 11, 2023, 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 due to her accepted pulmonary condition. It found 

that the weight of the medical evidence rested with opinion of the DMA.

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing regulations4 set 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.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

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

2.808.5 (a) (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
5

No schedule award is payable for a member, function, or organ of the body that is not 

specified in FECA or in the implementing regulations.7 The list of schedule members includes the 

eye, arm, hand, fingers, leg, foot, and toes. Additionally, FECA specifically provides for 

compensation for loss of hearing and loss of vision. 8 By authority granted under FECA, the 

Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx, 

lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina, and skin. 9 Neither FECA nor 

the regulations provided for the payment of a schedule award for the permanent loss of use of the 

back or the body as a whole.10 Compensation for total loss of use of a single lung is 156 weeks.11

Although FECA does not specifically provide for compensation for whole person 

impairment, the measurement of lung function warrants special consideration. Table 5 -4, 

Pulmonary Dysfunction, A.M.A., Guides page 88, provides whole person impairment ratings 

based on a designated class (0-4) of impairment. Depending on the assigned class, the range of 

whole person impairment due to pulmonary dysfunction is 0 to 65 percent. OWCP procedures 

provide that lung impairment should be evaluated in accordance with the A.M.A., Guides insofar 

as possible. It further provides that schedule awards are based on the loss of use of both lungs and 

the percentage for the particular class of whole person respiratory impairment will be multiplied 

by 312 weeks (twice the award for loss of function of one lung) to obtain the number of weeks 

payable.12

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

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.13 

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.

In reports dated February 25, 2021 and April 26, 2022, Dr. Teiger, an OWCP referral 

physician, reviewed the SOAF and noted the accepted condition of bilateral bronchitis. He 

provided examination findings and indicated that a PFT demonstrated that appellant had a FVC of 

7 R.C., Docket No. 21-1332 (issued July 1, 2022); W.C., 59 ECAB 372, 375-75 (2008); Anna V. Burke, 57 ECAB 

521, 523-24 (2006).

8

Supra note 3 § 8107(c)(13) and (14).

9

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(b).

10 Id. at § 8107(c); id. at § 10.404(a); see J.C., Docket No. 21-0426 (issued October 12, 2021); Jay K. Tomokiyo, 

51 ECAB 361, 367 (2000).

11 20 C.F.R. § 10.404(b).

12 Supra note 6 at Chapter 2.808.5c(1); id. at Chapter 3.700.4d(1)(c).

13 See supra note 6 at Chapter 2.808.6(f) (March 2017). R.M., Docket No. 18-1313 (issued April11, 2019); C.K., 

Docket No. 09-2371 (issued August 18, 2010).
6

3.67L or 93 percent of predicted, a FEV1 of 2.55L or 84 percent of predicted, and a ratio of FEV1

to FVC of 90 percent of predicted. Dr. Teiger referenced the A.M.A., Guides and determined that 

appellant was a Class 2 impairment with a severity of “D” based on clinical parameters and 

medication requirement of daily usage of high dose fluticasone inhaler, which translated to 20 

percent whole person permanent impairment. 

OWCP forwarded Dr. Teiger’s February 25, 2021 and April 26, 2022 reports to

Dr. Goodman, a DMA. In an August 5, 2022 report, the DMA noted that appellant’s claim was 

accepted for bilateral bronchitis and discussed appellant’s medical records. He explained that page 

87 of the A.M.A., Guides noted that the controlling factor in determination of permanent 

impairment was based on the key factors from objective tests. He reported that PFTs performed 

on October 10, 2006 and February 23, 2021 showed measurements of FVC, FEV1, FEV1/FVC, 

and DLCO within normal limits. Utilizing Table 5-4 and Table 5-5, the DMA determined that 

appellant was a Class 0 impairment, which translated to zero percent permanent impairment. 

In an October 31, 2022 supplemental report, Dr. Teiger reiterated that appellant had a Class 

2 impairment due to her chronic and symptomatic asthma, which resulted in 20 percent whole 

person permanent impairment. He explained that while objective tests were key factors, they 

should not be the only factor used to determine permanent impairment. 

In a December 3, 2022 report, the DMA noted his disagreement with Dr. Teiger’s recent 

October 31, 2022 report. He reported that it was mandatory to consider PFT when determining 

the class of permanent impairment and referred to OWCP procedures and the A.M.A., Guides. 

The DMA concluded that his initial impairment rating of zero percent remained unchanged. 

As noted above, OWCP’s procedures provide that, after obtaining all necessary medical 

evidence, the file should be routed to OWCP’s DMA for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the DMA providing 

rationale for the percentage of impairment specified.14 Its procedures further provide that if the 

DMA disagrees with the second opinion doctor’s impairment rating, the claims examiner should 

seek clarification or a supplemental report from the second opinion examiner. 15 After receiving 

clarification, the claims examiner should refer the case back to the DMA for review. 16 The Board 

finds that in accordance with its procedures, OWCP properly sought clarification from Dr. Teiger, 

the second opinion examiner, after the DMA disagreed with his impairment rating and referred

Dr. Teiger’s October 31, 2022 supplemental report back to the DMA for review.

In this case, the DMA properly applied appellant’s PFT findings to determine the proper 

class of diagnosis in accordance with the A.M.A., Guides. He noted that PFTs performed on 

October 10, 2006 and February 23, 2021 showed measurements of FVC, FEV1, FEV1/FVC, and 

DLCO within normal limits, which translated to a Class 0 under Table 5-4 and Table 5-5. The 

DMA further explained that non-key factors, such as medication use, could not be used to move a 

14 Id. 

15 FECA Procedure Manual, id., at Chapter 2.808.6(f)(2) (March 2017). 

16 Id. 
7

claimant’s impairment in Class 0. He properly concluded that appellant had no ratable impairment 

under the A.M.A., Guides due to her accepted lung condition. As appellant’s test results, the key 

factor, placed her at zero percent of the whole person permanent impairment, she has not met her 

burden of proof.

17

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 permanent 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. 

ORDER

IT IS HEREBY ORDERED THAT the January 11, 2023 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 2, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

17 G.H., Docket No. 22-0890 (issued January 9, 2023).