United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.L., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Tacoma, WA, Employer

__________________________________________

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Docket No. 19-0214

Issued: May 23, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 November 6, 2018 appellant, through counsel, filed a timely appeal from a June 29, 

2018 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 employment-related 

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

award.

FACTUAL HISTORY

On May 21, 2003 appellant, a then 48-year-old seasonal tax resolution representative, filed 

a traumatic injury claim (Form CA-1) alleging that she sustained multiple injuries at work on 

May 19, 2003 when she fell from a stool and struck her head while in the performance of duty. 

OWCP accepted her claim, assigned OWCP File No. xxxxxx070, for neck strain, face and scalp 

contusions, right lateral epicondylitis, and thoracic/lumbar radiculitis.3 After several intermittent 

work stoppages, appellant stopped working for the employing establishment in 2005. She worked 

on a part-time basis in the private sector until June 2010 and she elected to receive Social Security 

Administration disability benefits commencing June 2010.

On May 31, 2014 appellant filed a claim for a schedule award (Form CA-7).

Appellant subsequently submitted an April 7, 2014 report from Dr. David Weiss, an 

osteopath Board-certified in clinical orthopedic surgery. Dr. Weiss determined that appellant had 

39 percent permanent impairment of her left lower extremity, 23 percent of her right lower 

extremity, 11 percent of her left upper extremity, and 4 percent of her right upper extremity based 

on the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).4

OWCP referred the case record to Dr. Kenneth D. Sawyer, a Board-certified orthopedic 

surgeon serving as an OWCP district medical adviser (DMA), to review both of appellant’s claims 

and provide an opinion regarding her permanent impairment rating and whether it is causally 

related to her accepted conditions. In a June 13, 2014 report, Dr. Sawyer opined that he could not 

resolve inconsistent findings of Dr. Weiss as compared to other examining physicians. Because 

of those inconsistencies, he disagreed with the impairment ratings of Dr. Weiss and recommended 

an independent medical examination. 

OWCP subsequently declared a conflict in the medical opinion evidence between

Dr. Weiss’ April 7, 2014 report and the June 13, 2014 report of DMA Dr. Sawyer. It referred 

appellant to Dr. Timothy Daly, a Board-certified orthopedic surgeon, for an impartial medical 

examination and an opinion regarding permanent impairment. 

Dr. Daly examined appellant on September 24, 2014 and, in a report of the same date, 

concluded that appellant had no ratable employment-related impairment. He explained that 

 

3 Appellant has a prior claim under OWCP File No. xxxxxx226, involving a September 6, 2001 traumatic injury 

accepted for neck, thoracic, and subscapularis muscle sprains/strains. OWCP has administratively combined OWCP 

File Nos. xxxxxx070 and xxxxxx226, and it has designated OWCP File No. xxxxxx070 as the master file.

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

appellant’s accepted employment injuries of contusion of the head, cervical strain, epicondylitis, 

and right shoulder strain had all resolved without any ratable impairment. Dr. Daly noted that 

there were no objective findings, with the exception of reflex deficit of the left ankle, upon which 

to rate permanent impairment, and that there was an absence of sensory deficits. After applying 

the sixth edition of the A.M.A., Guides, he noted his disagreement with the rating of Dr. Weiss, 

and concluded that there was no objective evidence of cervical, right or left upper extremity, or 

lower back impairment.

Dr. L. Jean Weaver, a DMA Board-certified in internal medicine and pulmonology, 

reviewed the medical evidence of record, including Dr. Daly’s report, and concluded that she 

concurred with his assessment.

By decision dated January 7, 2015, OWCP denied appellant’s schedule award claim, 

finding that the September 24, 2014 report of Dr. Daly, who found no permanent impairment

constituted the special weight of the medical evidence. 

Appellant subsequently requested a hearing, held before an OWCP hearing representative 

on June 25, 2015. By decision dated September 9, 2015, the hearing representative set aside the 

January 7, 2015 decision and remanded the case for a supplemental opinion from Dr. Daly. 

In a May 9, 2016 addendum report, Dr. Daly noted that the findings of Dr. Weiss were 

accurately reported by DMA Dr. Sawyer, but he was unable to review Dr. Weiss’ 2014 and 2015 

reports as requested because the reports had not been provided.

By decision dated December 6, 2016, a representative of OWCP’s Branch of Hearings and 

Review set aside the denial of appellant’s schedule award claim, finding that there was not a true 

conflict in the medical opinion evidence between the reports of Dr. Weiss and OWCP’s medical 

adviser. Rather, a new conflict in the medical opinion evidence existed between the opinions of

Dr. Weiss and Dr. Daly, now reduced from an impartial medical specialist to an OWCP referral 

physician. It therefore remanded the case to OWCP for referral to a new impartial medical 

specialist.

On remand OWCP referred appellant and the case record to Dr. St. Elmo Newton, III, a 

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

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

In a March 22, 2017 report, Dr. Newton found that appellant had no permanent impairment 

of a scheduled member or function of the body.

By decision dated April 10, 2017, OWCP denied appellant’s schedule award claim based 

on the opinion of Dr. Newton. 

Appellant subsequently requested an oral hearing, held on July 12, 2017. By decision 

dated August 24, 2017, OWCP’s hearing representative set aside the April 10, 2017 decision and 

remanded the case to OWCP for further development. He found that Dr. Newton was not qualified 

to serve as an impartial medical specialist due to his association with another physician involved 

in the present claim, and he remanded the case to OWCP for referral to a new impartial medical 

specialist.
4

On remand OWCP referred appellant and the case record to Dr. Josef K. Eichinger, a 

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

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

In a June 13, 2018 report, Dr. Eichinger noted appellant’s factual and medical history and 

reported the findings of the his physical examination conducted on May 25, 2018. He indicated 

that palpation revealed no areas of tenderness along the spinous processes from the cervicocranial 

junction to the top of the sacrum, or in the lumbar paraspinal musculature. Dr. Eichinger advised 

that the upper extremity examination revealed 5/5 strength in the bilateral upper extremities, 

including shoulder abduction, external and internal rotation, elbow flexion and extension, wrist 

flexion and extension, and finger and thumb flexion, extension, adduction, and abduction 

bilaterally. He indicated that sensory examination was intact in all dermatomal distributions about 

appellant’s bilateral upper extremities in all dermatomes. Dr. Eichinger noted that appellant’s 

lower extremity examination revealed 5/5 strength throughout her right lower extremity, including 

hip flexion, extension, adduction, and abduction, and knee flexion. Appellant’s left lower 

extremity had 5/5 strength when she gave full effort, but she demonstrated give way strength.

Dr. Eichinger advised that appellant’s right lower extremity sensation was intact in all dermatomal 

distributions with an intact ability to discriminate between sharp and dull touch. Appellant’s left 

lower extremity sensory examination was intact in all dermatomal distributions, but she 

demonstrated inconsistent ability to discriminate between sharp and dull touch. Dr. Eichinger 

noted that this was demonstrated both in the superficial peroneal nerve distribution and in the 

saphenous nerve distribution. He diagnosed neck strain (resolved), scalp contusion (resolved), 

right lateral epicondylitis (resolved), and unspecified thoracic/lumbar neuritis and radiculopathy 

present only by electromyogram (EMG) and unrelated to the May 19, 2003 accident.

Dr. Eichinger asserted that appellant demonstrated a nonphysiologic and inconsistent 

examination. Appellant had volitional weakness during the testing of her lower extremity strength, 

particularly the left lower extremity. Dr. Eichinger indicated that, although appellant had an EMG 

documenting left S1 radiculopathy and left tibial neuropathy, this would not explain the 

nonphysiologic global weakness she demonstrated during the examination of her left lower 

extremity. He noted that, with respect to appellant’s upper extremities, there was a lack of 

consistency between her ability to discriminate between sharp and dull, despite her two-point 

discrimination being five millimeters in all digits. There were no other objective findings in 

appellant’s upper extremities, as she demonstrated 5/5 strength when giving full effort. The 

degenerative findings noted in appellant’s cervical spine with multilevel spondylitic changes and 

degenerative discs, were preexisting and unrelated to the May 19, 2003 accident. Dr. Eichinger 

noted that, given the lack of consistency on multiple elements of appellant’s examination, no 

permanent impairment could be attributed to her preexisting conditions. Dr. Eichinger maintained 

that all of appellant’s accepted conditions had resolved and opined that she did not have any 

permanent impairment of her extremities under the sixth edition of the A.M.A., Guides. 

By decision dated June 29, 2018, OWCP determined that appellant did not establish 

employment-related permanent impairment of her extremities entitling her to schedule award 

compensation. It found that the special weight of the medical opinion evidence with respect to 

appellant’s permanent impairment rested with the June 13, 2018 report of Dr. Eichinger, the 

impartial medical specialist.
5

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulation,6set 

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 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated. With respect to the elbow, a relevant portion of the arm for the present case, reference 

is made to Table 15-4 (Elbow Regional Grid) beginning on page 398. After the class of diagnosis 

(CDX) is determined from the Shoulder Regional Grid (including identification of a default grade 

value), the net adjustment formula is applied using the grade modifier for functional history 

(GMFH), grade modifier for physical examination (GMPE), and grade modifier for clinical studies 

(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

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.10 However, a 

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

and/or lower extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment in The Guides Newsletter, Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides 

Newsletter).12 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 radiculopathy affecting the upper and/or lower 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

9 See A.M.A., Guides (6th ed. 2009) 398-411. Table 15-4 also provides that, if motion loss is present for a claimant 

who has lateral or medial epicondylitis, impairment may alternatively be assessed using section 15.7 (range of motion 

impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis-based impairment. 

Id. at 399, 475-78.

10 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

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

2.808.5c(3) (March 2017).

12 Id.
6

extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated 

in the Federal (FECA) Procedure Manual.13

Section 8123(a) of FECA provides in pertinent part: “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.”

14

 In situations where 

there exist 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 upon a proper factual background, must be 

given special weight.15

The medical management application (MMA) system provides for a rotation among 

potential impartial medical specialists from the American Board of Medical Specialties, including 

the medical boards of the American Medical Association, and those physicians Board-certified 

with the American Osteopathic Association.16 Upon proper entry of appointment information, the 

MMA system prompts the medical scheduler to prepare a Form ME023 (appointment notification 

report) for imaging into the case file.17

ANALYSIS

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

OWCP properly determined that there was a conflict in the medical opinion evidence 

between Dr. Weiss, an attending physician, and Dr. Daly, an OWCP referral physician, 

regarding whether appellant had permanent impairment of a scheduled member or function of 

the body.

18

 In order to resolve the conflict, OWCP properly referred appellant, pursuant to 

section 8123(a) of FECA, to Dr. Eichinger for an impartial medical examination.

19

 

13 Supra note 11 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

14 5 U.S.C. § 8123(a).

15 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

16 Supra note 11 at Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(a) (May 2013).

17 Supra note 11 at Chapter 3.500.5(h), (i). The ME023 serves as documentary evidence that the referee 

appointment was scheduled through the medical management application rotational system. Id.

18 See supra note 14. In an April 7, 2014 report, Dr. Weiss determined that appellant had 39 percent permanent 

impairment of her left lower extremity, 23 percent of her right lower extremity, 11 percent of her left upper extremity, 

and 4 percent of her right upper extremity based on the sixth edition of the A.M.A., Guides. In contrast, Dr. Daly, an 

OWCP referral physician, determined on September 24, 2014 that appellant had no permanent impairment under the 

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

19 On appeal counsel questions whether Dr. Eichinger was properly selected under the rotational method of selecting 

impartial medical specialists. However, he did not adequately identify any deficiencies in the selection process and 

the record contains a May 3, 2018 Form MEO23 showing that Dr. Eichinger was properly selected through the 

established MMA system. See supra notes 16 and 17.
7

In his June 13, 2018 report, Dr. Eichinger opined that appellant did not have any permanent 

impairment of a scheduled member or function of the body under the sixth edition of the A.M.A., 

Guides. However, the Board finds that Dr. Eichinger did not adequately explain this opinion in 

accordance with the relevant standards. In a situation where OWCP secures an opinion from an 

impartial medical examiner for the purpose of resolving a conflict in the medical evidence and the 

opinion from such examiner requires clarification and/or elaboration, OWCP has the responsibility 

to secure a supplemental report from the examiner for the purpose of correcting the defect in the 

original opinion.20

In his June 13, 2018 report, Dr. Eichinger opined that all of appellant’s accepted medical 

conditions stemming from her May 19, 2003 employment injury had resolved, including her leftsided thoracic and lumbar neuritis/radiculitis, right lateral epicondylitis, and neck strain. The 

Board notes, however, that Dr. Eichinger failed to adequately explain how and when those 

conditions had resolved. Dr. Eichinger acknowledged that prior diagnostic testing, including EMG 

testing, had shown that appellant had a left radiculopathy extending from her back into her left leg, 

but he did not adequately explain why this condition was not related to the accepted condition of 

lumbar neuritis/radiculitis.

Moreover, Dr. Eichinger did not provide any discussion of whether appellant had 

permanent impairment due to her September 6, 2001 employment injury which was accepted for

neck, thoracic, and subscapularis muscle sprains/strains. He noted that appellant exhibited some 

strength and sensory inconsistencies in her extremities and ostensibly provided an opinion that 

these inconsistencies showed that appellant had no permanent impairment stemming from her 

trunk into her extremities. However, Dr. Eichinger failed to provide any discussion of the relevant 

portion of the sixth edition of the A.M.A., Guides governing this type of permanent impairment. 

He did not discuss the standards of The Guides Newsletter, the above-described FECA-approved 

methodology which is premised on permanent impairment stemming from radiculopathies 

affecting the upper and/or lower extremities.21 In addition, with respect to appellant’s accepted 

right lateral epicondylitis condition, Dr. Eichinger failed to make any reference to Table 15-4 of 

the sixth edition of the A.M.A., Guides which primarily concerns calculating permanent 

impairment based on the most impairing diagnosis of a given upper extremity.22

For the above-described reasons, the opinion of Dr. Eichinger requires clarification. 

Therefore, in order to resolve the continuing conflict in the medical opinion evidence, the case will 

be remanded to OWCP for referral of the case record, a statement of accepted facts, and, if 

necessary, appellant, to Dr. Eichinger for a supplemental report regarding whether appellant has 

permanent impairment of her extremities. If Dr. Eichinger is unable to clarify or elaborate on his 

original report or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP 

must submit the case record and a detailed statement of accepted facts to a second impartial specialist 

 

20 S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

21 See supra notes 11 through 13.

22 See supra note 9. Table 15-4 also allows for calculation of permanent impairment based on range of motion 

deficits of the elbow in certain circumstances, including the instance when the claimant has a diagnosis of lateral 

epicondylitis. Id. 
8

for the purpose of obtaining his rationalized medical opinion on the issue.23 After carrying out such 

development, OWCP shall issue a de novo decision on this matter.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded to OWCP for further action 

consistent with this decision.

Issued: May 23, 2019

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

 

23 Harold Travis, 30 ECAB 1071, 1078 (1979).