United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 15-225 

Issued: April 1, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 10, 2014 appellant, through her attorney, filed a timely appeal from the 

August 5, 2014 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant is entitled to a schedule award for her October 12, 1988 

injury-related back and right leg contusions. 

FACTUAL HISTORY 

On October 12, 1988 appellant, then a 33-year-old letter carrier, sustained a traumatic 

injury in the performance of duty when she was struck by a bicyclist and fell on her back. She 

returned to regular duty a few days later. OWCP accepted appellant’s claim for back and right 

leg contusions. 

 1

 5 U.S.C. § 8101 et seq.
2

Twenty-three years later, on September 7, 2011, appellant filed a schedule award claim. 

Dr. Arthur F. Becan, Jr., an orthopedic surgeon, related her history, including minimal bulging 

annuli at L3-4 and L4-5 in 1992. In 1995 appellant was found to have posterior spondylosis in 

the lower lumbar spine causing central canal encroachment, mild disc bulge posterolaterally on 

the right L5-S1, and mild disc bulge posterolaterally at L4-5 in the inferior neural foramen. In 

1996 she was found to have chronic L4 and L5 radiculopathy on the right. A study in 1999 

revealed degenerative disc disease and bulging of the L4-5 and L5-S1 disc spaces. 

Dr. Becan described his findings on examination and found that the work-related injury 

of October 12, 1988 was the competent producing factor for appellant’s current subjective and 

objective findings. He evaluated her and found that she had a 42 percent impairment of her right 

lower extremity and a 22 percent impairment of her left lower extremity. 

An OWCP medical adviser reviewed Dr. Becan’s evaluation and agreed with impairment 

ratings. He found, however, that Dr. Becan’s findings seemed “out of touch” with earlier 

medical reports in the file. The medical adviser noted that the examination was performed a 

couple of decades after the work injury and that there was a 12-year gap between Dr. Becan’s 

examination and the most recent examination in 1999. The 1999 examination revealed only 

subjective complaints. There were no sensory deficits, and there was no mention of any motor 

loss. This led the medical adviser to ask: “If the claimant had all the motor and sensory deficits 

that Dr. Becan found, when did they develop?” He also wondered why no one operated to 

decompress the involved nerve roots if severe deficits were present, and whether there were any 

medical reports since 1999. The medical adviser recommended a second opinion examination. 

OWCP found a conflict between Dr. Becan and the medical adviser. It referred 

appellant, together with the medical record and a statement of accepted facts, to Dr. Edward B. 

Krisiloff, a Board-certified orthopedic surgeon, for an impartial medical examination. 

Dr. Krisiloff saw appellant on October 8, 2013. He reviewed her medical record and the 

statement of accepted facts. Dr. Krisiloff related appellant’s history and current complaints. He 

described his findings on physical examination and noted that imaging studies revealed 

degenerative changes and minimal bulging of discs but no apparent significant encroachment on 

the neural elements. It was Dr. Krisiloff’s opinion that appellant had recovered from the 

accepted lower back contusion and right leg contusion within approximately 10 weeks of the 

October 12, 1988 work injury. Dr. Krisiloff found that appellant was currently suffering from a 

degenerative condition of her lower back, which was not the result of the work injury as the 

injury caused no fracture or herniated disc, and nerve studies were normal. Moreover, 

appellant’s degenerative condition currently showed no objective findings on examination. 

Dr. Krisiloff noted no evidence of neurologic deficit in 1988 and 1989, and no objective findings 
3

in 1996 and 1998. He concluded that the medical record and physical examination did not 

support an expansion of the claim to include any other medical condition. Dr. Krisiloff added: 

“If we are to take into account the claimant’s history of injury over 20 years ago, 

her radiographic studies and her nerve testing, we can state within a reasonable 

degree of medical probability that the claimant has no permanency of her lower 

extremities. The examination performed by Dr. Becan in 2011 and his 

determination of permanency is based entirely on subjective findings. In my 

opinion it therefore has no clinical validity. If we look at the weight of the 

medical evidence in this case it becomes quite clear.” 

In a decision dated January 31, 2014, OWCP denied appellant’s schedule award claim 

due to the lack of a measurable impairment. Appellant requested a hearing. 

By report dated June 6, 2014, Dr. Becan stood by his earlier report. He recalculated 

appellant’s impairment and found a 36 percent impairment of the right lower extremity and a 24 

percent impairment of the left lower extremity. Dr. Becan noted that motor strength should be 

graded from zero to five and sensory examination should be performed using Semmes-Weinstein 

monofilament testing. He added that Dr. Krisiloff did not indicate specific motor groups, nor did 

he grade motor strength or sensory deficits. 

In a decision dated August 5, 2014, an OWCP hearing representative affirmed the 

January 31, 2014 decision. She found that a conflict arose between Dr. Becan and the medical 

adviser on the issue of impairment. The hearing representative also found that Dr. Krisiloff, the 

impartial medical specialist, provided a reasoned opinion discussing the historical evidence of 

record. 

Counsel argues that OWCP should have expanded appellant’s claim to include lumbar 

radiculopathy and disc displacement early on in the claims process. He argues that it should 

have included in the statement of accepted facts that appellant sustained a recurrence of disability 

and was paid compensation for wage loss from 1995 through 1999, a period during which 

appellant was receiving treatment for radiculopathy. Counsel further argues that Dr. Krisiloff’s 

opinion cannot carry the weight of the evidence: Dr. Krisiloff’s physical examination was 

almost nonexistent, speculative, he did not identify what tests he performed or the muscle groups 

tested, and he made no reference to the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (6th ed. 2009). 

LEGAL PRECEDENT -- ISSUE 1 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.2

 Section 8107 provides that if there is 

permanent disability involving the loss or loss of use of a member or function of the body, the 

claimant is entitled to a schedule award for the permanent impairment of the scheduled member 

or function.3 A claimant seeking compensation under FECA has the burden to establish the 

 2 Id. at § 8102(a). 

3 Id. at § 8107(a). 
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essential elements of her claim by the weight of the reliable, probative, and substantial evidence.4

 

A claimant seeking a schedule award under section 8107, therefore, has the burden to establish 

that he or she sustained a permanent impairment of a scheduled member or function as a result of 

an injury sustained while in the performance of duty.5

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a back contusion and a right leg contusion when 

a bicyclist struck her on October 12, 1988, causing her to fall on her back. It has accepted no 

other medical condition as a result of the work injury. Counsel notes that OWCP accepted a 

recurrence of disability in 1995 and paid compensation for wage loss, but the Board has held that 

the payment of compensation does not, in and of itself, constitute acceptance of a particular 

condition or disability in the absence of evidence from OWCP indicating that a particular 

condition or disability has been accepted as work related.6

 Back right leg contusions are the only 

accepted injuries in the case. OWCP did not expand its acceptance to include degenerative disc 

disease of the lumbar spine, spondylosis, bulging discs, or radiculopathy. 

Accordingly, when appellant filed her schedule award claim, the issue presented was 

simply whether the accepted contusions had caused permanent impairment to a scheduled 

member of the body. Dr. Becan, the orthopedic surgeon, who examined appellant 23 years after 

the work injury, did not report that she continued to suffer from these contusions. He made no 

finding of contusion on physical examination, and he diagnosed no back or right leg contusion. 

Dr. Becan based his evaluation of impairment instead on motor and sensory nerve deficits 

stemming from a low back condition that was not accepted as an injury sustained in the 

performance of duty. 

Dr. Krisiloff, an orthopedic surgeon and independent medical examiner, reviewed 

appellant’s medical record and the statement of accepted facts. He found that she had recovered 

from the accepted lower back contusion and right leg contusion within approximately 10 weeks 

of the 1988 work incident. Dr. Krisiloff explained that appellant’s current symptoms arose from 

a degenerative condition of her lower back. He is not considered an impartial medical specialist 

on the issue of contusion-related residuals because there was no conflict on whether she 

continued to suffer from the soft-tissue injuries she sustained in 1988. Dr. Becan certainly never 

found that appellant did suffer from the soft-tissue injuries. Dr. Krisiloff nonetheless carries the 

weight of the medical opinion evidence as to permanent impairment because he addressed the 

issue directly, and his opinion is consistent with the nature of the accepted condition, appellant’s 

 4 Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein. 

5 See, e.g., Ernest P. Govednik, 27 ECAB 77 (1975) (no medical evidence that the employment injury caused the 

claimant to have a permanent loss of use of a lower extremity or any other member of the body specified in the 

schedule). 

6 M.C., Docket No. 12-64 (issued May 10, 2012); Gary L. Whitmore, 43 ECAB 441 (1993). 
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prompt return to regular duty, and her lack of continuing medical attention for the accepted 

contusions.7

As there is no evidence that the accepted contusions in October 1988 caused permanent 

impairment to a scheduled member of the body, the Board finds that appellant is not entitled to a 

schedule award. The Board will affirm OWCP’s August 5, 2014 decision on the issue of 

permanent impairment. 

Appellant may request a schedule award 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 is not entitled to a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 1, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 See e.g., J.B., Docket No. 10-1216 (issued March 2, 2011), where the Board found that OWCP improperly 

declared a conflict in medical opinion as neither the medical adviser, nor the second opinion physician provided a 

probative medical opinion using the A.M.A., Guides. Thus, the Board found that the physician identified as an 

impartial medical specialist was actually a second opinion physician whose opinion carried the weight of the 

medical evidence.