United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Des Moines, IA, Employer

__________________________________________

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Docket No. 17-1845

Issued: February 16, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 29, 2017 appellant, through counsel, filed a timely appeal from an August 1, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish more than 12 

percent permanent impairment of her left upper extremity and more than 9 percent permanent 

impairment of her left lower extremity, for which she previously received schedule awards.

FACTUAL HISTORY

On November 6, 1999 appellant, then a 40-year-old clerk, filed an occupational disease 

claim (Form CA-2), assigned OWCP File No. xxxxxx382, alleging that she sustained back and 

neck problems due to performing her work duties, including putting mail in sacks and pulling 

sacks weighing up to 100 pounds.3 OWCP accepted her claim for pelvic region pain, left lower 

limb pain, aggravation of lumbosacral spondylosis without myelopathy, aggravation of lumbar 

disc displacement without myelopathy, lumbar sprain, lumbago, chest pain, aggravation of a 

herniated C6-7 disc and cervical sprain. Appellant began working in a limited-duty position in 

October 1999 without wage loss, and received compensation from OWCP for later periods of 

work stoppage.4

On July 10, 2008 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to her accepted conditions. By decision dated November 20, 2008, OWCP 

denied her schedule award claim because she had failed to submit medical evidence establishing 

permanent impairment of a scheduled member. 

On January 5, 2011 appellant again filed a claim for compensation seeking a schedule 

award due to her accepted conditions.

In an October 1, 2010 report, Dr. Stephen Wilson, an attending Board-certified 

orthopedic surgeon, determined that appellant had 24 percent permanent impairment of her right 

lower extremity and 10 percent permanent impairment of her left lower extremity under the 

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

Permanent Impairment (A.M.A., Guides).5

In March 2011 OWCP referred the case to an OWCP medical adviser who determined on 

March 27, 2011 that appellant did not have a diagnosed work-related condition that would cause 

the permanent impairment found by Dr. Wilson. 

 

3 Appellant indicated that she first became aware of her claimed condition on October 19, 1999. OWCP 

previously accepted that she sustained several conditions under separate claim numbers: traumatic cervical strain on 

February 28, 1994 (OWCP File No. xxxxxx157), a traumatic cervical strain on May 16, 1995 (OWCP File No. 

xxxxxx771), occupational displacement of cervical intervertebral disc without myelopathy and lumbosacral 

spondylosis without myelopathy sustained by March 18, 1997 (OWCP File No. xxxxxx753), traumatic lumbar strain 

on April 15, 1997 (OWCP File No. xxxxxx332), and traumatic cervical and lumbar strains on October 31, 1997 

(OWCP File No. xxxxxx871). The files for all of appellant’s claims (including OWCP File No. xxxxxx382) have 

been administratively combined into OWCP File No. xxxxxx753, which has been designated as the master file.

4 OWCP paid appellant wage-loss compensation on the daily rolls beginning June 8, 2002. 

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

In June 2011 OWCP referred appellant to Dr. Peter D. Wirtz, a Board-certified 

orthopedic surgeon, for a second opinion who determined in reports dated July 18 and 25, 2011

that appellant had nine percent permanent impairment of her left lower extremity. On August 5, 

2011 an OWCP medical adviser concurred with this finding.

By decision dated August 11, 2011, OWCP granted appellant a schedule award for nine 

percent permanent impairment of her left lower extremity. The award ran for 25.92 weeks from 

July 18, 2011 to January 15, 2012.

On October 9, 2012 appellant filed a claim for compensation seeking an increased 

schedule award due to her accepted conditions. 

In an August 26, 2013 report, Dr. Neil Allen, an attending Board-certified internist and 

neurologist, determined that appellant had 23 percent permanent impairment of her left upper 

extremity and 17 percent permanent impairment of her left lower extremity under the standards 

of the sixth edition of the A.M.A., Guides. He made reference to The Guides Newsletter, 

“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009) in 

calculating his impairment ratings.6

OWCP again referred appellant to Dr. Wirtz for an opinion regarding the extent of her 

permanent impairment. By report dated November 5, 2013, Dr. Wirtz opined that appellant had 

zero percent permanent impairment of her upper and lower extremities based upon sensory and 

motor findings. On November 29, 2013 an OWCP medical adviser concurred with Dr. Wirtz’

findings.

By decision dated January 31, 2014, OWCP denied appellant’s claim for increased 

schedule award compensation based on the opinions of Dr. Wirtz and OWCP’s medical adviser.

OWCP again referred appellant’s claim to OWCP’s medical adviser. On March 19, 2014

the medical adviser determined that appellant had 12 percent permanent impairment of her left 

upper extremity under the sixth edition of the A.M.A., Guides.

On April 10, 2014 OWCP made a preliminary determination that appellant received an 

overpayment of compensation because the previous schedule award for nine percent permanent 

impairment of the left lower extremity was not based upon permanent impairment due to the 

accepted claim.

In an August 22, 2014 decision, OWCP granted appellant a schedule award for 12 

percent permanent impairment of her left upper extremity. The award ran for 37.44 weeks from 

November 6, 2013 to July 26, 2014. 

Appellant requested a telephonic hearing with a representative of OWCP’s Branch of 

Hearings and Review and such a hearing was held on August 1, 2014. In an October 9, 2014

decision, the hearing representative set aside the August 22, 2014 schedule award decision, 

finding that there was a conflict in the medical opinion evidence, regarding permanent 

 

6 See infra notes 14 and 15.
4

impairment, between the government physician, Dr. Wirtz, and the attending physician,

Dr. Allen, which required referral of appellant to an impartial medical specialist. The case was 

remanded to OWCP for that purpose.7

On remand, OWCP referred appellant and the case record to Dr. Chris A. Cornett, a 

Board-certified orthopedic surgeon, for an impartial medical examination and opinion on 

appellant’s permanent impairment under the standards of the sixth edition of the A.M.A., Guides. 

OWCP provided Dr. Cornett with a July 16, 2015 statement of accepted facts (SOAF).

By report dated September 30, 2015, Dr. Cornett discussed the history of injury and 

reported appellant’s complaints of bilateral shoulder and arm pain, numbness in the fingers and 

toes, neck pain, low back pain, bilateral lower extremity pain with tingling and tremors, 

decreased sleep, and not being able to sit for long periods. Upon physical examination on 

September 30, 2015, he reported that appellant had a slow gait but was able to walk on her heels 

and toes. Appellant had decreased thoracolumbar flexion and extension limited by pain, and 

positive Waddell’s signs including pain beyond what would be expected in the examination. 

Dr. Cornett reported that appellant had diffuse weakness secondary to pain in the upper and 

lower extremities. He posited that there was no evidence in appellant’s chart or history “of any 

direct injury other than a report of repetitive motion causing her problems” and asserted that “her 

claim was filed much later after the original reported time of injury which would have been 

1997.” Dr. Cornett noted that appellant had some pain out of proportion to what would be 

expected with consistent anatomic and neurologic principles and noted that there are no focal or 

specific motor or sensory deficits that he could determine upon examination. He concluded that 

appellant did not have any impairment to the upper or lower extremities based on his physical 

examination and history taken and his review of her extensive medical records.

In April 2016 OWCP then referred the claim to Dr. Cornett for a supplemental opinion 

regarding whether appellant’s accepted medical conditions had resolved and whether she had 

permanent impairment. By report dated August 10, 2016, Dr. Cornett indicated that any 

condition that would have been aggravated by appellant’s work would have reverted to baseline 

within six months of the original aggravation. He noted, “However, I think it is difficult to state 

that all of those above issues were caused by work or even aggravated by work.” Dr. Cornett 

indicated that he was not changing the opinion expressed in his September 30, 2015 report that 

appellant did not have any permanent impairment in her upper or lower extremities. 

By decision dated October 3, 2016, OWCP determined that appellant did not meet her

burden of proof to establish more than 12 percent permanent impairment of her left upper 

extremity and 9 percent permanent impairment of her left lower extremity, for which she 

received schedule awards.

Appellant, through counsel, requested a hearing with a representative of OWCP’s Branch 

of Hearings and Review and such a hearing was held on May 17, 2017. She submitted an 

 

7 The hearing representative indicated that it was premature to consider whether an overpayment occurred. The 

record contains a March 9, 2015 decision in which the OWCP hearing representative also set aside OWCP’s 

August 22, 2014 schedule award decision. It is unclear from the record why this decision was issued.
5

additional medical report, dated February 2, 2017, in which Dr. Allen disagreed with

Dr. Cornett’s assertions.8

In an August 1, 2017 decision, OWCP’s hearing representative affirmed OWCP’s 

October 3, 2016 decision. She determined that appellant had not established entitlement to 

additional schedule award compensation.

LEGAL PRECEDENT

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.9 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the American Medical Association, Guides to the

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule 

losses.10 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).11

Neither FECA nor its implementing regulations provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole.12 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.13 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment.14 It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

ratings for the spine. The FECA-approved methodology is premised on evidence of 

 

8 Dr. Allen determined that appellant had 23 percent permanent impairment of her left upper extremity and 19 

percent permanent impairment of her left lower extremity under the standards of the sixth edition of the A.M.A., 

Guides. He had previously found 17 percent permanent impairment of appellant’s left lower extremity.

9 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg an employee shall receive 288 weeks’

compensation. 5 U.S.C. § 8107(c)(2). With respect to a total or 100 percent loss of use of an arm, an employee 

shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

10 20 C.F.R. § 10.404. 

11 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

12 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

13 Supra note 11 at Claims, Chapter 2.808.5c(3).

14 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
6

radiculopathy affecting the upper and/or lower extremities. The appropriate tables for rating 

spinal nerve extremity impairment are incorporated in the procedure manual.15

FECA provides that, if there is disagreement between an OWCP-designated physician 

and the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.16 For a conflict to arise the opposing physicians’ viewpoints must be of virtually 

equal weight and rationale.17 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well-reasoned and based upon a proper factual background, must be given special 

weight.18

ANALYSIS

OWCP accepted that appellant sustained multiple cervical, back, and lower extremity 

conditions both of a traumatic and occupational nature. In an August 11, 2011 decision, it

granted appellant a schedule award for nine percent permanent impairment of her left lower 

extremity. In an August 22, 2014 decision, OWCP granted appellant a schedule award for 12 

percent permanent impairment of her left upper extremity. Appellant claimed entitlement to 

additional schedule award compensation, but OWCP denied her claim in several decisions, 

including an August 1, 2017 decision of an OWCP hearing representative.

The Board finds that the case is not in posture for decision regarding whether appellant 

has met her burden of proof to establish more than 12 percent permanent impairment of her left 

upper extremity and more than 9 percent permanent impairment of her left lower extremity, for 

which she received schedule awards.

The Board notes that OWCP properly referred appellant to Dr. Cornett, the impartial 

medical specialist, in order to resolve a conflict in the medical evidence regarding the extent of 

appellant’s permanent impairment.19 However, the Board finds that the opinion of Dr. Cornett 

does not have sufficient probative value to resolve the conflict in the medical opinion evidence. 

In his September 30, 2015 and August 10, 2016 reports, Dr. Cornett provided opinions that were 

not in keeping with the statement of accepted facts. OWCP provided Dr. Cornett with a 

statement of accepted facts to use as a frame of reference in forming his independent opinion. 

The statement of accepted facts made clear that OWCP had accepted appellant’s claim for 

numerous conditions. As a medical professional, Dr. Cornett is entitled to reject such conditions, 

but if he does so without convincing medical rationale, his opinion has little probative or 

 

15 See supra note 11 at Chapter 3.700, Exhibit 4.

16 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on 

behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).

17 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

18 Gary R. Sieber, 46 ECAB 215, 225 (1994).

19 OWCP properly found that here was a conflict regarding permanent impairment in the medical opinion 

evidence between the government physician, Dr. Wirtz, and the attending physician, Dr. Allen, which required 

referral of appellant to an impartial medical specialist. See supra notes 16 through 18. 
7

evidentiary value.20 OWCP’s procedures provide that, when the impartial medical specialist 

does not use the statement of accepted facts as the framework in forming his or her opinion, the 

probative value of the opinion is diminished or negated altogether.21 

The Board notes that Dr. Cornett indicated in his reports that he did not accept all of the 

conditions listed in the statement of accepted facts as valid employment conditions. Dr. Cornett

did not provide any notable rationale for this ostensible opinion. In his September 30, 2015 

report, he posited that there was no evidence in appellant’s chart or history “of any direct injury 

other than a report of repetitive motion causing her problems.” In his August 10, 2016 report,

Dr. Cornett noted that any condition that would have been aggravated by appellant’s work would 

have reverted to baseline within six months of the original aggravation. He further indicated, 

“However, I think it is difficult to state that all of those above issues were caused by work or 

even aggravated by work.” Given his failure to acknowledge all the accepted employment 

conditions without adequate explanation, Dr. Cornett’s opinion that appellant had no permanent 

impairment is of limited probative value.22 His opinion on permanent impairment is of limited

probative value for the further reason that he did not make any notable reference to the relevant 

standards for evaluating permanent impairment, including the sixth edition of the A.M.A., 

Guides and The Guides Newsletter.

23

 The Board has held that an opinion on permanent 

impairment is of limited probative value if it is not derived in accordance with the standards 

adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses.24

Given Dr. Cornett’s failure to resolve the conflict regarding permanent impairment in the 

medical opinion evidence, there is an outstanding conflict on this matter.25 In order to resolve 

the continuing conflict in the medical opinion evidence, the case will be remanded to OWCP for 

referral of appellant and the case record to a new impartial specialist for examination and an 

opinion regarding appellant’s permanent impairment under the relevant standards.26 After such 

further development as OWCP deems necessary, a de novo decision shall be issued regarding the

extent of appellant’s permanent impairment.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

20 See also G.W., Docket No. 15-1646 (issued September 1, 2016); P.B., Docket No. 08-1024 (issued 

January 7, 2009). 

21 Supra note 11 at Chapter 3.600.3(10) (October 1990).

22 See supra notes 20 and 21.

23 See supra notes 13 through 15.

24 See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the 

standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little 

probative value in determining the extent of a claimant’s permanent impairment).

25 See supra note 18.

26 Harold Travis, 30 ECAB 1071 (1979).
8

ORDER

IT IS HEREBY ORDERED THAT the August 1, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.

Issued: February 16, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board