United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

DEPARTMENT OF THE ARMY, INDIVIDUAL 

MOBILIZATION AUGMENTATION 

HEADQUARTERS, Fort Dix, NJ, Employer 

__________________________________________ 

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Docket No. 15-227 

Issued: May 12, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 10, 2014 appellant, through counsel, filed a timely appeal from an 

August 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award 

determination. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish permanent 

impairment due to his accepted work-related injuries. 

FACTUAL HISTORY 

This case has previously been on appeal before the Board on several occassions. In a 

May 12, 2010 decision, the Board found that the case was not in posture for a decision regarding 

whether appellant was entitled to a schedule award due to an unresolved conflict in the medical 
2

evidence.1

 The Board directed OWCP to refer appellant to an impartial medical specialist. In an 

April 13, 2012 decision, the Board found that the case was not in posture for decision as the 

conflict in the medical evidence remained unresolved.2

 The Board remanded the case for OWCP 

to secure a supplemental report from the impartial medical examiner, Dr. David A. Bundens, 

Board-certified in orthopedic surgery. The Board found that OWCP improperly indicated that 

OWCP medical adviser’s opinion represented the weight of the medical evidence. The Board 

noted that, to properly resolve the conflict of medical opinion, the impartial medical specialist 

should provide a reasoned opinion regarding the extent of permanent impairment. The Board set 

aside the February 23, 2011 decision and remanded the case for OWCP to request a 

supplemental report from Dr. Bundens regarding whether appellant had work-related permanent 

impairment in his arms or legs attributable to his accepted conditions.3

 The facts and history 

contained in the prior appeals are incorporated herein by reference. 

In a May 15, 2012 letter, OWCP referred Dr. Bundens to his June 22, 2010 report, which 

rated spinal impairment, and asked that he clarify whether appellant had any ratable impairment 

of the arms or legs attributable to his accepted conditions. It requested that he utilize the 

American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 

2008) (A.M.A., Guides). 

In a May 23, 2012 report, Dr. Bundens explained that, as noted in his previous report, 

appellant was neurologically normal in the upper and lower extremities. He opined that this was 

the reason he did not give a percentage for the upper or lower extremities, and why no 

impairment was found. Dr. Bundens opined that appellant’s primary problem was within the 

cervical, thoracic, and lumbar spine. He further noted that his report “stands as dictated.” 

On August 17, 2012 OWCP denied appellant’s claim for a schedule award. 

On August 22, 2012 appellant’s counsel requested a hearing, which was held on 

November 13, 2012. OWCP received a copy of a March 14, 2006 report from Dr. David Weiss, 

an orthopedic surgeon, in which he had examined appellant, but the report was updated on 

November 19, 2010 under the A.M.A., Guides. Dr. Weiss opined that appellant had an 

impairment of 15 percent to both the right and left lower extremities. 

By decision dated January 29, 2013, an OWCP hearing representative set aside the 

August 17, 2012 decision. She found that the impartial medical specialist was provided with an 

inaccurate statement of accepted facts as not all accepted conditions were listed. The hearing 

representative directed that OWCP prepare a new statement of accepted facts and obtain a 

supplemental opinion from Dr. Bundens. 

 1

 Docket No. 09-1290 (issued May 12, 2010). 

2

 Docket No. 11-1485 (issued April 13, 2012). 

3

 OWCP accepted appellant’s claim for a lumbar sprain, lumbar radiculitis, and permanent aggravation of these 

conditions. Appellant also has an accepted claim for a contusion to his buttocks and low back strain. This claim 

was doubled into the present claim. 
3

By letter dated February 5, 2013, OWCP provided Dr. Bundens with an updated 

statement of accepted facts and asked that he provide an opinion on impairment causally related 

to the accepted conditions. 

In a report dated April 3, 2013, Dr. Bundens advised that he had reviewed the new 

statement of accepted facts. He advised that he saw nothing new that would change his opinion. 

Dr. Bundens reiterated that appellant sustained an injury to his spine, but that his “findings, 

percentages, etc. remained unchanged.” 

By decision dated May 29, 2013, OWCP denied appellant’s claim for a schedule award. 

It found that the evidence did not establish a ratable impairment. On June 3, 2013 appellant’s 

counsel requested a hearing. 

In an August 2, 2013 decision, an OWCP hearing representative set aside the May 29, 

2013 decision. She found that OWCP failed to forward Dr. Bundens’ most recent supplemental 

report to an OWCP medical adviser for review prior to the issuance of its final decision. The 

hearing representative directed that OWCP have its medical adviser verify that Dr. Bundens 

properly arrived at his conclusion regarding permanent impairment. 

On August 19, 2013 OWCP referred the updated statement of accepted facts and the 

reports from Dr. Bundens to an OWCP medical adviser for an opinion on whether Dr. Bundens 

had properly applied the A.M.A., Guides, in determining permanent impairment. 

In an August 26, 2013 report, an OWCP medical adviser reviewed the reports of 

Dr. Bundens and concurred with him that there was no basis for finding permanent impairment 

under the A.M.A., Guides. 

In a November 25, 2013 decision, OWCP denied appellant’s claim for a schedule award. 

On December 2, 2013 appellant’s counsel requested a video hearing, which was held on 

May 22, 2014. He argued that Dr. Bundens did not complete any neurologic testing. 

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

November 25, 2013 decision finding that Dr. Bundens’ opinion represented the weight of the 

medical evidence. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4

 and 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. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 
4

the A.M.A., Guides as the uniform standard applicable to all claimants.6

 For decisions issued 

after May 1, 2009, the sixth edition will be used.7

 

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8

 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether 

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.9

 A schedule award is not payable for an impairment of the 

whole body.10 

Section 8123(a) of FECA11 provides, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician, who shall make an examination.12 In situations where there are 

opposing medical reports of virtually equal weight and rationale and the case is referred to an 

impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.13 

ANALYSIS 

The evidence of record is insufficient to establish that permanent impairment in 

accordance with the sixth edition of the A.M.A., Guides. 

In the most recent appeal, the Board remanded the case for OWCP to obtain a 

supplemental report from the impartial medical specialist, Dr. Bundens, regarding whether 

appellant had a ratable impairment in his arms or legs attributable to his accepted conditions.14 

 6 Id. at § 10.404. 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 

8 Pamela J. Darling, 49 ECAB 286 (1998). 

9 Thomas J. Engelhart, 50 ECAB 319 (1999). 

10 N.M., 58 ECAB 273 (2007). 

11 5 U.S.C. §§ 8101-8193. 

12 Id. at § 8123(a). 

13 Barbara J. Warren, 51 ECAB 413 (2000). 

14 See I.H., Docket No. 08-1352 (issued December 24, 2008) (when OWCP secures an opinion from an impartial 

medical specialist for the purpose of resolving a conflict in the medical evidence and the opinion from the specialist 

requires clarification or elaboration, it has the responsibility to secure a supplemental report from the specialist for 

the purpose of correcting a defect in the original report). 
5

On remand, in a letter dated May 15, 2012, OWCP requested that Dr. Bundens provide a 

supplemental report with an opinion as to whether appellant had a ratable impairment to his arms 

or legs attributable to his accepted conditions. In a May 23, 2012 report, Dr. Bundens responded 

that he explained that appellant was neurologically normal in the upper and lower extremities 

and that was the reason he did not give a percentage for the upper or lower extremities, and why 

no award was granted. He opined that appellant’s primary problem was within the cervical, 

thoracic, and lumbar spine. Dr. Bundens further advised that there were no changes in his 

opinion. 

In an April 13, 2013 supplemental report, Dr. Bundens reviewed a new statement of 

accepted facts and advised that his opinion on permanent impairment remained unchanged. The 

Board finds that the impartial medical specialist explained why appellant did not qualify for an 

impairment rating and his report is entitled to special weight.15 In an August 26, 2013 report, 

OWCP medical adviser reviewed the reports of Dr. Bundens and agreed that he had accurately 

applied the A.M.A., Guides in reaching his conclusion on impairment. Consequently, the 

medical evidence does not establish that appellant sustained a permanent impairment to a 

scheduled member of the body. 

Subsequent to the most recent appeal, appellant submitted a November 19, 2010 report 

from Dr. Weiss, who advised that he updated his March 14, 2006 report, without an updated 

medical examination, to reflect use of the current edition of the A.M.A., Guides.

16 He opined 

that appellant has an impairment of 15 percent to both the right and left lower extremities. 

However, as Dr. Weiss had been on one side of the conflict in the medical opinion that the 

impartial medical specialist resolved, the treating physician’s reports were insufficient to 

overcome the special weight accorded the impartial specialist or to create a new medical 

conflict.17

On appeal, appellant’s counsel argued that the impartial medical examiner’s report was 

vague, speculative, or unrationalized. He also argued that Dr. Weiss provided new findings and 

asserted that Dr. Bundens only performed one medical examination on June 22, 2010 and 

provided no proof of a neurological examination. Counsel argued that his report could not carry 

the weight of the evidence and a new impartial medical examination was needed. However, as 

found above, Dr. Bundens explained why he determined no impairment was warranted, noting 

that appellant’s neurological examination was normal in the arms and legs. Additionally, 

Dr. Weiss, as noted above, was on one side of the conflict and is not sufficient to create a new 

conflict. 

Appellant may request a schedule award or increased 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 

 15 See supra note 13. 

16 Although Dr. Weiss noted a report updated to reflect the sixth edition of the A.M.A., Guides, there is no 

indication that he conducted a new examination contemporaneous with his updated report. 

17 See supra note 13. See also Alice J. Tysinger, 51 ECAB 638 (2000). 
6

CONCLUSION 

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

impairment due to his accepted work-related injuries. 

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: May 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board