United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-0992 

Issued: August 11, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 30, 2015 appellant filed a timely appeal from a January 27, 2015 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 established permanent impairment causally related to 

his accepted March 27, 2006 employment injury. 

FACTUAL HISTORY 

On April 3, 2006 appellant, then a 47-year-old mail clerk, filed a traumatic injury claim 

alleging that on March 27, 2006 he experienced lower neck pain when throwing letters. He 

 1

 5 U.S.C. § 8101 et seq.
2

stopped work on April 4, 2006 and returned on April 6, 2006.2

 OWCP accepted appellant’s 

claim for neck sprain. Appellant continued to receive medical treatment for his accepted 

condition. 

On December 11, 2012 appellant requested a schedule award. 

In a February 29, 2012 magnetic resonance imaging (MRI) scan report of the cervical 

spine, Dr. George G. Kuritza, a Board-certified diagnostic radiologist, reviewed and observed 

minimal posterior annular disc bulges, measuring approximately two millimeters (mm), noted to 

slightly indent the thecal sac without significant spinal stenosis nor significant neuroforaminal 

narrowing. He reported that the remainder of the cervical spine appeared unremarkable and 

revealed no fractures or significant subluxations. 

By letter dated December 12, 2012, OWCP advised appellant that the medical evidence 

was insufficient to establish his claim for a schedule award. It requested that he submit medical 

evidence that included an impairment rating in accordance with the sixth edition of the A.M.A., 

Guides and a statement that his condition had reached maximum medical improvement. 

Appellant submitted April 2 and November 19, 2012 reports of Dr. Anatoly M. Rozman, 

Board-certified in physical medicine and rehabilitation. Dr. Rozman reported that appellant 

suffered from neck pain related to work activities since 2006, but that appellant had reached 

maximum medical improvement as of July 16, 2012. Upon examination of appellant’s neck, he 

observed pain to palpation over the cervical paraspinal muscles with mild spasm and a couple of 

trigger points on palpation of the cervical paraspinal muscles. Dr. Rozman found that range of 

motion was mildly decreased on extension by 20 percent, but was otherwise unremarkable. 

Spurling maneuver, Hoffman test, Adson maneuver, and impingement sign were negative. 

Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides), Table 17-2, page 564, Dr. Rozman determined that 

appellant was class 1 impairment for cumulative history of cervical sprain injury with continued 

complaints of axial and nonradicular pain. He also referred to Table 17-7 for Physical 

Examination (GMPE) and Table 17-9 for Clinical Studies (GMCS) adjustments and noted grade 

modifiers of zero. Dr. Rozman stated that Table 17-6 for Functional History (GMFH) 

adjustment resulted in grade modifier of 2. Thus, he concluded that appellant had a permanent 

impairment of two percent whole person impairment. 

Appellant was referred to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine the nature and extent of his accepted employment 

conditions, including his accepted neck strain. In a report dated June 30, 2013, Dr. Brecher 

 2

 The record reveals that appellant has multiple active cases before OWCP. Appellant has three previously 

accepted occupational disease claims, combined under master File No. xxxxxx768, for conditions of right lateral 

epicondylitis, left shoulder sprain, adhesive capsulitis of the right shoulder, and right shoulder bursitis. He received 

a schedule award for two percent impairment of his right upper extremity under File No. xxxxxx768 on 

April 4, 2000. OWCP also accepted a June 9, 2004 occupational disease claim for aggravation of right thumb 

osteoarthritis (File No. xxxxxx180) and a December 30, 2012 occupational disease claim for herniated lumbar disc 

(File No. xxxxxx165). On August 5, 2012 appellant filed an occupational disease claim (File No. xxxxxx958) 

alleging that he sustained right knee problems as a result of standing and dispatching heavy equipment containing 

large volumes of mail as associated with his mail processing clerk duties. He stopped work. 
3

related that based upon his examination findings, as well as electromyogram and MRI scans, 

appellant had no clear ongoing neck or back condition. 

On January 6, 2014 OWCP found a conflict in medical evidence and referred appellant’s 

cases to Dr. Jaroslaw B. Dzwinyk, a Board-certified orthopedic surgeon and impartial medical 

examiner, for a referee examination. 

In his April 28, 2014 report, Dr. Dzwinyk related appellant’s history regarding his 

various claims and accepted injuries and noted that he reviewed extensive documentation 

regarding his work-related injuries. He stated that appellant continued to complain of persistent 

symptoms associated with all of his work-related conditions, including pain and stiffness in his 

right elbow, significant pain in the left shoulder, persistent pain in his neck and lower back, and 

exacerbation of right knee, lower leg, and ankle pain with most weight bearing activities. Upon 

examination of the neck, Dr. Dzwinyk observed no spasm or spinous process tenderness. He 

stated that range of motion of the neck was voluntarily restricted to 50 percent of normal in all 

directions. Dr. Dzwinyk stated that there were no documented injuries or diagnostic tests to 

support any type of injury to appellant’s neck and lower back. He opined that any ongoing 

symptoms in the neck or lower back were attributable to preexisting and degenerative conditions, 

rather than to any occupational injury or work-related condition. 

In a March 7, 2014 MRI scan of the cervical spine, Dr. Kuritza stated that when 

compared to the February 29, 2012 MRI scan appellant continued to demonstrate two-millimeter

annular disc bulges at the C3-4, C4-5, C5-6, C6-7, and C7-T1 levels. He noted that the rest of 

the cervical spine appeared stable and unremarkable with no abnormal contrast-enhancing 

lesions. 

On January 20 and April 8, 2014 appellant provided handwritten statements requesting 

that his accepted neck sprain condition be changed to reflect the conditions according to the 

February 29, 2012 and March 7, 2014 MRI scan reports. 

In a May 2, 2014 report, Dr. Rozman stated that appellant’s condition had not changed 

since the last examination. He recommended a follow-up examination in two months. 

In a decision dated January 27, 2015, OWCP denied appellant’s schedule award claim 

finding that the evidence was insufficient to establish that he sustained a permanent impairment 

of the neck causally related to his employment injury. 

LEGAL PRECEDENT 

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his employment.3

 

 3 Veronica Williams, 56 ECAB 367 (2005). 
4

The schedule award provision of FECA4

 and its implementing regulations 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. The 

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

A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule 

losses.5

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

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.6

 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.7

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decade has offered an 

alternative approach to rating spinal nerve impairments.8 OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables outlined in a 

July/August 2009 The Guides Newsletter.9

Section 8123(a) of FECA provides, if there is a 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.10 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 

 4

 5 U.S.C. §§ 8101-8193. 

5

 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

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

8 Rozella L. Skinner, 37 ECAB 398 (1986). 

9

 FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700, Exhibit 1, n.5 (January 2010); The Guides Newsletter is included as Exhibit 4. 

10 5 U.S.C. § 8123(a). 
5

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

given special weight.11

ANALYSIS 

OWCP accepted that on March 27, 2006 appellant sustained a neck sprain in the 

performance of duty. On December 11, 2012 appellant requested a schedule award. In a 

decision dated January 27, 2015, OWCP denied his claim for a schedule award based on the 

April 28, 2014 report of Dr. Dzwinyk, the impartial medical examiner, who determined that 

appellant did not have any ongoing neck or lower extremity symptoms causally related to the 

March 27, 2006 employment injury. The Board finds that appellant has not established a 

permanent impairment in accordance with the sixth edition of the A.M.A., Guides. 

On January 6, 2014 OWCP referred appellant to Dr. Dzwinyk as an impartial medical 

examiner in order to resolve a conflict in medical evidence. In an April 28, 2014 report, 

Dr. Dzwinyk accurately described appellant’s history and noted that he had reviewed extensive 

documentation regarding appellant’s work-related injuries. Upon examination of the neck, he 

observed no spasm or spinous process tenderness. Dr. Dzwinyk stated that there were no 

documented objective findings or diagnostic tests to support any type of injury to appellant’s 

neck and lower back. He reported that neurological examination demonstrated normal strength 

to manual testing throughout all muscle groups of both the upper and lower extremities. 

Dr. Dzwinyk opined that any ongoing symptoms in the neck or lower back were attributable to 

preexisting and degenerative conditions, rather than to any occupational injury or work-related 

condition. 

The Board finds that Dr. Dzwinyk provided a well-rationalized report based on a proper 

factual and medical history and is, therefore, entitled to the special weight due to an impartial 

medical specialist. Dr. Dzwinyk reviewed the medical record and accurately summarized the 

relevant medical history. He also conducted a thorough physical examination and provided 

findings on examination. 

The Board notes that absent any evidence of radiculopathy, there is no basis for rating 

spinal or cervical nerve extremity impairment under FECA.12 Dr. Dzwinyk reported that 

appellant’s ongoing neck symptoms were not related to his accepted neck sprain. Furthermore, 

he did not find any impairment to appellant’s upper or lower extremities due to radiculopathy, 

related to his accepted neck condition. Because there is no medical evidence to demonstrate that 

appellant sustained any impairment to his upper or lower extremities as a result of his accepted 

cervical sprain, the Board finds that OWCP properly denied appellant’s claim for a schedule 

award. 

Following Dr. Dzwinyk’s April 28, 2014 impartial medical report, appellant submitted a 

March 7, 2014 MRI scan report of the cervical spine that showed disc bulges and a May 2, 2014 

report by Dr. Rozman. None of these reports provided a medical opinion to establish that 

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

12 Supra note 8. 
6

appellant sustained a permanent impairment to his upper or lower extremities causally related to 

the accepted March 7, 2006 neck injury. 

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. 

CONCLUSION 

The Board finds that appellant has not established a permanent impairment causally 

related to his March 27, 2006 employment injury. 

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 11, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board