United States Department of Labor

Employees’ Compensation Appeals Board

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D.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer

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Docket No. 19-0314

Issued: September 18, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On November 28, 2018 appellant, through counsel, filed a timely appeal from a July 2, 

2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as No. 19-0314. 

On March 31, 2010 appellant, then a 53-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained injuries on March 29, 2010 while moving trays from 

the ground onto a skid while in the performance of duty. OWCP accepted the claim for 

lumbosacral radiculopathy. Appellant stopped work following the injury and has not returned. 

On August 21, 2013 appellant filed a claim for a schedule award (Form CA-7). By decision 

dated September 11, 2014, OWCP issued him a schedule award for nine percent permanent left 

lower extremity and zero percent permanent impairment to the right lower extremity. 

 

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

On September 16, 2014 appellant, through counsel, requested a hearing before an OWCP 

hearing representative, which was held by videoconference on February 26, 2015. By decision 

dated June 3, 2015, an OWCP hearing representative set aside OWCP’s September 11, 2014 

decision. OWCP was directed to have Dr. William Dinenberg, a Board-certified orthopedic 

surgeon, acting as OWCP’s second opinion physician, address permanent impairment of the lower 

extremities including preexisting impairments to the scheduled members.

In August 27 and September 7, 2015 reports, Dr. Dinenberg opined that appellant had five 

percent permanent impairment of the left lower extremity due to L5 motor nerve impairment under 

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition

(July/August 2009) ( The Guides Newsletter)2, but no permanent impairment of the right lower 

extremity. He noted that his examination findings of the lower extremities were supported by the 

2014 diagnostic testing which demonstrated a left-sided radiculopathy related to the L5 nerve only. 

Dr. Dinenberg found no sensory findings on examination and, thus, a left-sided impairment was 

rated on the L5 motor nerve only. In a January 13, 2016 report, Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as the district medical adviser (DMA), opined that maximum 

medical improvement (MMI) was reached August 27, 2016 and that the medical evidence did not 

support an increased schedule award.

By decision dated July 20, 2016, OWCP issued a de novo decision for nine percent 

permanent impairment of left lower extremity and zero percent permanent impairment of the right 

lower extremity. It noted that appellant was not entitled to an additional schedule award greater 

than that awarded on September 11, 2014. On November 15, 2017 appellant, through counsel, 

requested reconsideration. By decision dated January 30, 2018, OWCP denied modification of its 

July 20, 2016 decision.

On March 6, 2018 counsel again requested reconsideration. He submitted a copy of a 

September 22, 2017 electromyogram and nerve conduction velocity (EMG/NCV) study which 

revealed the existence of bilateral L4 and L5 radiculopathies.

In a June 1, 2018 report, Dr. Morley Slutsky, Board-certified in occupational medicine and 

serving as DMA, reviewed the latest statement of accepted facts (SOAF) dated July 1, 2015, which 

noted the acceptance of a lumbosacral radiculopathy, and appellant’s medical record, including 

the September 22, 2017 EMG/NCV testing. He opined that MMI was reached on 

August 27, 2018.

3

 The DMA concluded, based on all the medical evidence provided, that 

appellant had normal lower extremity sensation. Utilizing the findings in Dr. Dinenberg’s 

August 27, 2015 impairment evaluation and The Guides Newsletter, the DMA opined that there 

was no basis for a right lower extremity impairment as there were no right lower extremity sensory 

or motor deficits related to the lumbar spine. For the left lower extremity, the DMA found that 

appellant had zero percent impairment due to normal lower extremity sensation and five percent 

 

2 For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, OWCP’s 

procedures indicate that The Guides Newsletter is to the applied. See Federal (FECA) Procedure Manual, Part 3 --

Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

3 This appears to be a typographical error and should read as August 27, 2015 based on the DMA’s review of

Dr. Dinenberg’s August 27, 2015 report. 
3

left lower extremity impairment based on the mild left L5 weakness Dr. Dinenberg had reported

and confirmed by the September 22, 2017 EMG/NCV study. The DMA noted that, as appellant 

had a prior left lower extremity award of nine percent impairment for the same nerve root, there 

was not a greater extent of permanent impairment for schedule award purposes.

By decision dated July 2, 2018, OWCP denied modification of its January 30, 2018 

decision. The weight of the medical evidence was given to Dr. Slutsky’s June 1, 2018 DMA 

report.

Having reviewed the case record, the Board finds that this case must be remanded to 

OWCP. Appellant’s claim was accepted for a lumbosacral radiculopathy. The September 22, 

2017 EMG/NCV test revealed the existence of bilateral L4 and L5 radiculopathies, but in his

June 1, 2018 report the DMA only indicated that it confirmed the existence of a left L5 

radiculopathy. No mention was made of the bilateral radiculopathies of L4 or the right-sided 

radiculopathy of L5 and whether such conditions were preexisting or subsequently acquired 

conditions with respect to the March 29, 2010 employment incident. The Board has long held that 

only preexisting and not subsequently-acquired conditions are to be included in schedule award 

determinations.4 Furthermore, the DMA performed his impairment opinion based on

Dr. Dinenberg’s August 27, 2015 impairment evaluation as it was the most recent impairment 

evaluation of record. However, Dr. Dinenberg’s evaluation predated the September 22, 2017 

EMG/NCV test. As OWCP did not request clarification from its DMA regarding the extent of 

appellant’s left lower extremity and right lower extremity permanent impairment related to the 

March 29, 2010 employment injury based on the September 22, 2017 EMG/NCV test, the case 

must be remanded to OWCP for further development of the medical evidence.

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence.5 It also has an 

obligation to see that justice is done.6 In this case, OWCP failed to properly develop the evidence 

following the DMA’s June 1, 2018 report. As such, the Board will remand the case to OWCP for 

additional development of appellant’s claim for an additional schedule award. Following this and 

any other further development deemed necessary, OWCP shall issue an appropriate decision on 

appellant’s claim.7 Accordingly,

 

4 See D.G., Docket No. 16-1855 (issued August 28, 2017); Peter C. Belkind, 56 ECAB 580 (2005).

5 See A.G., Docket No. 19-0153 (issued May 13, 2019); A.P., Docket No. 17-0813 (issued January 3, 2018);

Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

6 C.M., Docket No. 17-1977 (issued January 29, 2019); B.C., Docket No. 15-1853 (issued January 19, 2016); 

William J. Cantrell, id.

7 See A.J., Docket No. 18-0727 (issued February 21, 2019); G.S., Docket No. 16-0908 (issued October 26, 2017). 
4

IT IS HEREBY ORDERED THAT the July 2, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further development consistent 

with this order of the Board.

Issued: September 18, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board