United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

London, OH, Employer

__________________________________________

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Docket No. 18-0050

Issued: March 26, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 8, 2017 appellant, through counsel, filed a timely appeal from a July 18, 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 to consider 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 met his burden of proof to establish permanent impairment

of his lower extremities warranting a schedule award.

FACTUAL HISTORY

On February 2, 2008 appellant, then a 35-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained a back injury due to factors of his federal 

employment. He stopped work on December 31, 2007 due to administrative issues.

3

On April 6, 2009 OWCP referred appellant to Dr. James H. Rutherford, a Board-certified 

orthopedic surgeon for a second opinion evaluation to determine whether appellant’s federal 

employment factors caused or aggravated his lumbar, bilateral knee, and left ankle conditions.

In an April 27, 2009 report, Dr. Rutherford, based upon a review of the statement of 

accepted facts (SOAF) and medical records and physical examination, opined that appellant 

sustained a lumbar sprain and temporary aggravation of his bilateral knee genu varum and 

temporary aggravation of left ankle degenerative joint disease due to his duties as a letter carrier. 

He opined that appellant required no further treatment for these conditions as he had no active 

symptoms from his diagnosed conditions.

By decision dated June 2, 2009, OWCP accepted appellant’s claim for lumbar sprain and 

temporary aggravation of his left ankle degenerative joint disease based on Dr. Rutherford’s 

April 27, 2009 report.

By letter dated June 9, 2009, OWCP requested that Dr. Rutherford clarify whether 

appellant sustained a temporary aggravation of a knee condition causally related to the factors of 

his federal employment. In a June 11, 2009 addendum and response, Dr. Rutherford related that 

appellant’s diagnoses of bilateral iliotibial band syndrome, capsulitis, and degenerative disease of 

the left knee were medically established and were temporarily aggravated by his federal 

employment. Dr. Rutherford opined that appellant’s work-related aggravation ceased as of 

March 1, 2008 and noted appellant’s last date of work exposure was December 21, 2007.

On June 25, 2010 appellant filed a claim for a schedule award (Form CA-7).4

By decision dated May 9, 2011, OWCP expanded acceptance of appellant’s claim to 

include temporary aggravation of bilateral iliotibial band syndrome and bilateral patellar capsulitis 

based on Dr. Rutherford’s June 11, 2009 addendum. 

 

3 On the reverse side of the form, appellant’s supervisor noted that appellant submitted the Form CA-2 after 

receiving a February 8, 2018 notice of proposed removal. The employing established removed appellant from 

employment effective February 22, 2008 due to unsatisfactory performance and improper conduct.

4 OWCP continued to address appellant’s claim for wage-loss compensation commencing February 4, 2008 in 

multiple decisions, however, OWCP did not further develop appellant’s schedule award claim until 2015. 
3

In a June 7, 2011 report, Dr. Brant Holtzmeier, an attending Board-certified osteopathic 

family practitioner, reviewed Dr. Rutherford’s reports and noted his disagreement with the 

diagnosis of temporary aggravation. He opined that appellant’s letter carrier duties caused a

substantial aggravation of appellant’s preexisting left ankle degenerative joint disease. 

Furthermore, Dr. Holtzmeier concluded that appellant sustained a more severe lumbar injury than 

the accepted lumbar sprain, which he explained was based on the persistence of appellant’s 

complaints. 

On January 26, 2015 appellant again filed a claim for a schedule award (Form CA-7). 

By development letter dated February 5, 2015, OWCP noted receipt of appellant’s 

schedule award claim and the accepted conditions. It informed him that based on Dr. Rutherford’s 

reports the accepted temporary aggravation of his accepted conditions had ceased over five years 

ago with a lumbar sprain as the only remaining unresolved condition. OWCP advised appellant 

as to the medical evidence necessary to support his schedule award claim and afforded him 30 

days to provide this information. No evidence was received.

By decision dated March 11, 2015, OWCP denied appellant’s claim as it found the 

evidence of record insufficient to establish a permanent impairment of a scheduled member as a 

result of his accepted employment injury.

In a letter dated March 18, 2015, appellant, through counsel, requested a telephonic hearing 

before an OWCP hearing representative, which was held on October 7, 2015.

On October 7, 2015 OWCP received a February 25, 2015 report, from Dr. Michael E. 

Hebrard, an examining Board-certified physiatrist, diagnosing lumbar sprain and strain, ankle and 

foot osteoarthritis, patellar tendinitis, and muscle, ligament, and fascia disorders. Medical and 

injury histories were detailed, objective testing reviewed, and physical examination findings 

provided. Dr. Hebrard opined that appellant’s federal employment aggravated his current 

disabling condition and concluded that appellant reached maximum medical improvement (MMI) 

as of February 25, 2015. Using the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides),5 he found seven percent left lower 

extremity permanent impairment and seven percent right lower extremity permanent impairment. 

In reaching this impairment rating, Dr. Hebrard used Table 16-3, page 509 and assigned a default 

grade C for class 1 impairment for mild motion deficits and grade modifiers. 

By decision dated November 12, 2015, an OWCP hearing representative vacated the 

March 11, 2015 decision and remanded the case to OWCP for referral to an impartial medical 

examiner to resolve the conflict in the medical opinion evidence between Dr. Rutherford, an 

OWCP referral physician, and Dr. Holtzmeier, a treating physician, as to whether appellant’s 

accepted knee and ankle conditions were permanently or temporarily aggravated. She indicated

that the issue of employment-related permanent impairment of either lower extremity related to 

the accepted knee and left ankle conditions are dependent on the resolution of that conflict. The 

hearing representative ordered that the impartial medical examiner comment on the nature of 

aggravation, whether temporary or permanent, and submit a permanent impairment award if 

 

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

indicated. On April 7, 2016 OWCP referred appellant to Dr. Howard Sturtz, a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion evidence as to whether appellant 

sustained a permanent a temporary aggravation of the accepted conditions, and thereby a ratable 

permanent impairment pursuant to the sixth edition of the A.M.A., Guides.6

In a July 5, 2016 report, Dr. Sturtz, based upon a review of the medical evidence, injury 

history, SOAF, and physical examination, diagnosed resolved lumbar strain, resolved temporary 

aggravation of bilateral knee chondromalacia, resolved temporary aggravation of left ankle 

degenerative arthritis, and right ankle pain. He noted that appellant last worked at the employing 

establishment on December 21, 2007. Dr. Sturtz summarized the findings from the medical 

reports, objective tests, and factual evidence he reviewed. A physical examination revealed a 

normal walking manner along with no evidence of either limping or favoring one leg over the 

other, no bilateral knee crepitus or effusion, and no tenderness or joint line instability. Based on 

the length of time from when appellant last worked, Dr. Sturtz opined that it was unreasonable for 

appellant to continue to have symptoms from the aggravation. He noted his agreement with

Dr. Rutherford that any aggravation was temporary and disagreed with Dr. Holtzmeier’s opinion 

that appellant sustained a permanent aggravation due to his repetitive work duties. Dr. Sturtz 

concluded that, based on the lack of any objective findings or credible diagnostic studies, the 

accepted employment injuries resolved with no permanent ratable impairment. 

By decision dated September 16, 2016, OWCP denied appellant’s claim as it found the 

evidence of record insufficient to establish a permanent impairment due to a scheduled member as 

a result of his accepted employment injury. 

In a letter dated September 26, 2017, appellant, through counsel, requested a telephonic 

hearing before an OWCP hearing representative, which was held on May 11, 2017.

By decision dated July 18, 2017, OWCP’s hearing representative affirmed the 

September 16, 2016 decision denying appellant’s claim for a schedule award. She found the 

special weight of the medical opinion evidence rested with the opinion of Dr. Sturtz, the impartial 

medical examiner, who concluded that appellant’s accepted conditions had resolved without

disability or permanent impairment.

LEGAL PRECEDENT

The schedule award provision of FECA7and its implementing regulations8set 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

 

6

Id.

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.
5

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for 

evaluating schedule losses.9 Effective May 1, 2009, OWCP adopted the sixth edition of the 

A.M.A., Guides as the appropriate edition for all awards issued after that date.

10

Not all medical conditions accepted by OWCP result in permanent impairment to a 

scheduled member.11 It is the claimant’s burden to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of an employment injury.12 OWCP 

procedures provide that, to support a schedule award, the file must contain competent medical 

evidence which shows that the impairment has reached a permanent and fixed state and indicates 

the date on which this occurred.13 An impairment description must be in sufficient detail so the 

claims examiner and others reviewing the file will be able to clearly visualize the impairment with 

its restrictions and limitations.14

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.”

15

 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.16 Where a case is referred to an impartial medical examiner for the purpose of resolving 

a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper 

factual and medical background must be given special weight.17

ANALYSIS

The Board finds that appellant has not established a permanent impairment of a scheduled 

member warranting a schedule award.

OWCP accepted appellant’s occupational disease claim for a temporary aggravation of left 

ankle degenerative joint disease, temporary aggravation of bilateral iliotibial band syndrome, and 

bilateral patellar capsulitis, and lumbar sprain. 

 

9

Id.

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

2.808.5a (February 2013); see also Part 3 -- Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

11 G.E., Docket No. 09-1412 (issued February 17, 2010); Thomas P. Lavin, 57 ECAB 353 (2006).

12 D.F., Docket No. 09-1463 (issued August 12, 2010); Tammy L. Meehan, 53 ECAB 130 (2001). 

13 See D.S., Docket No. 08-0885 (issued March 17, 2009); Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

14 C.A., Docket No. 13-0762 (issued April 1, 2014); Peter C. Belkind, 56 ECAB 580 (2005).

15 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

16 Bryan O. Crane, 56 ECAB 713 (2005).

17 V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).
6

Due to a conflict between Dr. Rutherford, an OWCP referral physician, and

Dr. Holtzmeier, a treating physician, regarding permanent aggravation of appellant’s preexisting 

left ankle degenerative joint disease and bilateral knee conditions, OWCP properly referred 

appellant to Dr. Sturtz as the impartial medical specialist, to resolve the conflict in medical 

opinion, pursuant to 5 U.S.C. § 8123(a).

In his July 5, 2016 report, Dr. Sturtz reviewed the medical records and the SOAF and 

discussed appellant’s employment duties, his medical history, and provided examination findings. 

He opined that appellant sustained a temporary aggravation of his preexisting bilateral knee 

chondromalacia and left ankle degenerative joint disease which had ceased. In support of this 

conclusion, Dr. Sturtz related that it was unreasonable for appellant to continue to be symptomatic

so many years following the accepted injury when there was a lack of any credible diagnostic 

studies or any credible objective findings to document residuals of the accepted conditions. 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.18 The Board finds Dr. Sturtz’s report to be sufficiently 

detailed and well-reasoned to resolve the conflict of medical opinion evidence and established that 

appellant sustained a temporary rather than a permanent aggravation of a preexisting condition, 

and that the temporary aggravation had ceased. Dr. Sturtz properly concluded that appellant was 

not entitled to a schedule award. The Board finds that his report is entitled to the special weight 

of the medical evidence, afforded an impartial medical examiner, with regard to whether appellant 

sustained a temporary or permanent aggravation and entitlement to a schedule award for 

employment-related permanent impairment.19

On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based on 

the findings and reasons stated above, the Board finds the attorney’s arguments are not 

substantiated.

Appellant may request a schedule award or increased schedule award at any time 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 met his burden of proof to establish permanent 

impairment of a scheduled member warranting a schedule award.

 

18 S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, supra note 15; Anna M. Delaney, 53 

ECAB 384 (2002).

19 Supra note 15. 
7

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated July 18, 2017 is affirmed.

Issued: March 26, 2018

Washington, DC

Christopher J. Godfrey, 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