United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.T., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Shreveport, LA, Employer

__________________________________________

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Docket No. 22-0128

Issued: February 15, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 4, 2021 appellant filed a timely appeal from a May 14, 2021 merit decision 

and a November 4, 2021 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.2

ISSUES

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

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

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the November 4, 2021 merit decision, OWCP received additional 

evidence. 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

(2) whether OWCP properly determined that appellant abandoned his request for a telephonic 

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

FACTUAL HISTORY

On March 30, 2020 appellant, then 51-year-old deputy marshal, filed a traumatic injury 

claim (Form CA-1) alleging that on March 26, 2020 he injured his left knee while in the 

performance of duty. He noted that he was running on a treadmill in the gym when he developed 

left knee pain. Appellant did not stop work. OWCP accepted the claim for left knee medial 

meniscus tear, left knee pain, and left knee unilateral primary osteoarthritis. Appellant underwent 

authorized left knee arthroscopic surgery, which was performed on September 17, 2020. 

On November 23, 2020 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. 

In a development letter dated January 4, 2021, OWCP requested that appellant submit a 

report from a physician addressing whether he had reached maximum medical improvement 

(MMI) and rating any employment-related permanent impairment in accordance with the sixth 

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

(A.M.A., Guides).

3

 It indicated that, to date, no medical evidence had been received in support of 

his claim for a schedule award. OWCP advised that, if appellant’s physician was unable or 

unwilling to provide the required report, to notify OWCP in writing and if his case met the essential 

elements for a schedule award claim, he would be scheduled to be seen by a second opinion 

specialist. It afforded him 30 days to submit additional medical evidence in support of his schedule 

award claim. OWCP noted that, if the requested medical evidence was not received within 30 

days from the date of the letter, a decision would be made based on the evidence in the file. No

further evidence regarding a schedule award was received.

OWCP received a series of physical therapy sessions reports commencing on 

January 12, 2021. 

By decision dated May 14, 2021, OWCP denied appellant’s schedule award claim, finding 

that the medical evidence of record was insufficient to establish that he had reached MMI and that 

he had sustained permanent impairment of a scheduled member or function of the body, in 

accordance with the A.M.A., Guides, warranting a schedule award. 

On June 15, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

In a September 8, 2021 letter, an OWCP hearing representative notified appellant that a 

telephonic hearing was scheduled for October 20, 2021 at 12:00 p.m. “Eastern Time.” The hearing 

representative provided appellant a toll-free telephone number and passcode to access the hearing. 

OWCP’s hearing representative mailed the notice of hearing to his last known address. Appellant 

did not appear for the hearing by telephone at the appointed time. 

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

By decision dated November 4, 2021, OWCP determined that appellant abandoned his

request for a telephonic hearing. It noted that an oral hearing was scheduled to be conducted by 

telephone on October 20, 2021 and that he received written notification of the hearing 30 days in 

advance of the hearing. OWCP found that appellant failed to appear for the hearing, and that there 

was no indication in the file that he contacted OWCP either prior to, or subsequent to, the 

scheduled hearing to explain his failure to appear. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provision of FECA,4and its implementing federal regulations,

5

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 loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. 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. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.6 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.

7

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF): A Contemporary Model of Disablement.

8

 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers 

based on functional history (GMFH), physical examination (GMPE), and clinical studies 

(GMCS).

9

 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).

10

 

Evaluators are directed to provide reasons for their impairment choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.

11

4 Supra note 1.

5 20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

7 B.W., Docket No. 21-0174 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 

12 ECAB 348 (1961).

8 A.M.A., Guides (6th ed. 2009), p.3, section 1.3.

9

Id. at 494-531.

10 Id. at 521.

11 B.W., supra note 7; R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued 

April 1, 2011).
4

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

member or function of the body as a result of an employment injury.12 OWCP’s 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 that 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.

13

 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.14 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.15

ANALYSIS -- ISSUE 1

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

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

OWCP accepted the claim for left knee medial meniscus tear, left knee pain, and left knee 

unilateral primary osteoarthritis due to the March 26, 2020 employment injury. On November 23, 

2020 appellant filed a claim for a schedule award.

OWCP, on January 4, 2021 requested that appellant submit a permanent impairment 

evaluation from his physician addressing the date of MMI and extent of any employment-related 

permanent impairment using the A.M.A., Guides. Appellant did not, however, submit any medical 

evidence establishing permanent impairment.

As noted above, appellant must submit an evaluation from a physician that supports a

finding that appellant has reached MMI, and which includes a description of impairment 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.16 As he has not submitted 

any medical evidence supporting permanent impairment of a scheduled member or function of the 

body due to his accepted employment conditions, the Board finds that he has not met his burden 

of proof.

12 J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

13 Supra note 6 at Chapter 2.808.5 (March 2017).

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

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

16 See J.P. supra note 12; D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued 

March 13, 2018); C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued 

January 7, 2014).
5

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.

LEGAL PRECEDENT -- ISSUE 2

A claimant who has received a final adverse decision by OWCP may obtain a hearing by 

writing to the address specified in the decision within 30 days of the date of the decision for which 

a hearing is sought.

17

 Unless otherwise directed in writing by the claimant, OWCP’s hearing 

representative will mail a notice of the time and place of the hearing to the claimant and any 

representative at least 30 days before the scheduled date.

18

 OWCP has the burden of proving that 

it was properly mailed to the claimant and any representative of record.

19

A claimant who fails to appear at a scheduled hearing may request in writing, within 10 

days after the date set for the hearing, that another hearing be scheduled. Where good cause for 

failure to appear is shown, another hearing will be scheduled, and conducted by teleconference.

20

 

The failure of the claimant to request another hearing within 10 days, or the failure of the claimant 

to appear at the second scheduled hearing without good cause shown, shall constitute abandonment 

of the request for a hearing.

21

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly determined that appellant abandoned his request for 

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

Following OWCP’s May 14, 2021 decision denying appellant’s request for a schedule 

award, he filed a timely request for an oral hearing before a representative of OWCP’s Branch of 

Hearings and Review. In a September 8, 2021 letter, OWCP’s hearing representative notified him

of a scheduled a telephonic hearing for October 20, 2021 at 12:00 p.m. EST. OWCP’s hearing 

representative properly mailed the notice to appellant’s last known address. The Board has held 

that, absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course 

of business is presumed to have been received. This is called the mailbox rule.22 Appellant failed 

to call-in for the scheduled hearing using the provided telephone number. He did not request a 

17 20 C.F.R. § 10.616(a).

18 Id. at 10.617(b).

19 L.T., Docket No. 20-1539 (issued August 2, 2021); V.C., Docket No. 20-0798 (issued November 16, 2020);

A.R., Docket No. 19-1691 (issued February 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); Michelle R. 

Littlejohn, 42 ECAB 463 (1991).

20 Supra note 13 at § 10.622(f).

21 Id.; supra note 6 at Chapter 2.1601.6 (October 2011); see also L.T., supra note 19; K.H., Docket No. 20-1198 

(issued February 8, 2021); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No. 18-0533 (issued 

August 27, 2018).

22 See L.T., id.; V.C., supra note 19; C.Y., Docket No. 18-0263 (issued September 14, 2018).
6

postponement or provide an explanation to OWCP for failure to appear for the hearing within 10 

days of the scheduled hearing. As appellant did not request a postponement, did not called in to 

the scheduled hearing, or provide notification to OWCP’s Branch of Hearings and Review within 

10 days of the scheduled hearing explaining his failure to appear, the Board finds that he

abandoned his request for a telephonic hearing.

23

CONCLUSION

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

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

Board further finds that OWCP properly determined that he abandoned his request for a telephonic 

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

ORDER

IT IS HEREBY ORDERED THAT November 4 and May 14, 2021 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: February 15, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

23 See supra note 21; see also R.S., Docket No. 15-1358 (issued December 4, 2015).