United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, PORTAGE POST 

OFFICE, Portage, IN, Employer

__________________________________________

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Docket No. 21-0805

Issued: July 19, 2023

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On May 3, 2021 appellant, through counsel, filed a timely appeal from a January 20, 2021 

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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance 

of her claim to include additional conditions as causally related to her accepted employment injury; 

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

and (2) whether appellant has met her burden of proof to establish permanent impairment of a 

scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On August 20, 1987 appellant, then a 45-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she sustained a low back injury due to performing repetitive work tasks, 

including lifting sacks of mail, pushing all-purpose containers, and carrying trays of mail over the 

course of 23 years. She noted that she first became aware of her condition and realized its relation 

to her federal employment on May 12, 1987. Appellant stopped work on May 13, 1987 and 

returned to light-duty work on July 21, 1987. OWCP accepted her claim for acceleration/

aggravation of both cervical herniated disc at C3-4 and lumbar degenerative disc disease. On 

November 25, 1988 appellant underwent OWCP-authorized surgery, including discectomy at 

C3-4. She had intermittent periods of total and partial disability after the surgery, and retired from 

the employing establishment effective October 1, 1992.

In a December 30, 2011 report, Dr. Swathi Mothkur, a Board-certified physiatrist, 

determined that appellant sustained several conditions related to the accepted employment injury 

other than those already accepted by OWCP, including work-related bilateral knee and hip 

arthritis, bilateral carpal tunnel syndrome, and bilateral chronic radiculopathy from spinalstenosis. 

She determined that appellant had 17 percent permanent impairment due to lumbar spinal stenosis 

with radiculopathy, 17 percent permanent impairment due to cervical stenosis, disc herniation and 

radiculopathy, and 16 percent permanent impairment due to bilateral hip arthritis, resulting in 42 

percent permanent impairment of the whole person.

On May 14, 2012 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. She also asserted that the acceptance of her claim should be expanded to include conditions 

causally related to her accepted injury other than those already accepted by OWCP. 

On July 20, 2012 OWCP received a May 4, 2012 report wherein Dr. Mothkur opined that 

appellant had 17 percent permanent impairment of her whole person and 42 percent permanent 

impairment of her right lower extremity due to chronic radiculopathy.

On August 14, 2012 OWCP referred appellant and the case record, along with an 

August 14, 2012 statement of accepted facts (SOAF) and a series of questions, for a second opinion 

examination and evaluation with Dr. Alan Brecher, a Board-certified orthopedic surgeon. It

requested that Dr. Brecher provide an opinion regarding appellant’s permanent impairment under 

the standards of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).3 OWCP also requested that he provide an opinion regarding 

appellant’s assertion that it should expand the acceptance of her claim to include conditions 

causally related to her accepted injury other than those already accepted.

In a November 14, 2012 report, Dr. Brecher concluded that appellant had two percent 

permanent impairment of her whole person based on her responses to a pain disability 

questionnaire. He also found that the acceptance of her claim should not be expanded to include

additional conditions as causally related to her accepted employment injury.

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

OWCP found that there was a conflict in the medical opinion evidence between the 

attending physician, Dr. Mothkur, and its referral physician, Dr. Brecher, regarding both the 

expansion and schedule award issues. It referred appellant and the case record, along with a SOAF 

and a series of questions, to Dr. Gregory Primus, a Board-certified orthopedic surgeon, for an 

impartial examination/evaluation of both the expansion and schedule award issues. 

In a May 15, 2014 report, Dr. Primus, serving as the impartial medical examiner (IME)

found that the acceptance of appellant’s claim should not be expanded to include conditions 

causally related to her accepted injury other than those already accepted by OWCP. He also found 

that she was not entitled to a schedule award. By separate decisions, both dated August 14, 2014, 

OWCP denied appellant’s expansion and schedule award claims, based on the opinion of

Dr. Primus. 

On September 12, 2014 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

March 23, 2015. 

By decision dated June 4, 2015, OWCP’s hearing representative set aside OWCP’s 

August 14, 2014 decisions and remanded the case to OWCP for referral of appellant to a new IME. 

The hearing representative found that the opinion of Dr. Primus did not contain sufficient medical 

rationale to constitute the special weight of the medical evidence on the expansion and schedule 

award issues.

OWCP then engaged in a period of extensive development whereby it referred appellant to 

two additional IMEs. By decisions dated August 31, 2017 and May 1, 2019, it found deficiencies 

with the evaluations conducted by these IMEs and remanded appellant’s case for further 

development.

On June 17, 2019 OWCP referred appellant and the case record, along with a SOAF and 

series of questions, for an impartial medical examination and evaluation with Dr. Julie Wehner, a 

Board-certified orthopedic surgeon. It requested that she address both the expansion and schedule

award issues. The referral was made in accordance with the instructions of OWCP’s May 1, 2019 

decision.

In a July 9, 2019 report, Dr. Wehner discussed appellant’s factual and medical history, 

noting the treatment for her accepted cervical and lumbar conditions. She reported physical 

examination findings, which included 4+/5 motor strength and intact sensation in the upper 

extremities. Appellant exhibited mildly decreased range of motion (ROM) of the shoulders and 

some limitations upon ROM of the hips. Dr. Wehner provided a discussion in which she 

concluded that appellant did not sustain any conditions causally related to her accepted 

employment injury other than those already accepted. She maintained that she did not find any 

evidence that appellant sustained bilateral traumatic arthritis of the shoulders related to the 

accepted employment injury. Dr. Wehner advised that this opinion was based on the fact that there 

was no documented work-related traumatic episode to appellant’s shoulders, there was no 

diagnostic test result indicating decreased articular cartilage, the clinical examination showed only 

a mild decrease in shoulder ROM without much pain, and there was no mention prior to 1992 of 

any type of shoulder problem. She further opined that appellant’s present clinical examination did 

not support a current diagnosis of bilateral traumatic arthritis of the shoulders. Dr. Wehner 

asserted that appellant might have some type of nonwork-related rotator cuff tendinitis, which was 
4

not an unusual condition for an individual of her age. She noted that she did not elicit any specific 

pain with palpation of appellant’s lateral epicondyles or pain with resisted dorsiflexion of her 

wrists. Dr. Wehner advised that the diagnostic testing of record did not document tendinitis of the 

extensor carpi radialis tendons. She maintained that there was nothing in the medical records that 

documented a diagnosis, an evaluation, or any type of treatment for lateral epicondylitis of the 

elbows prior to 1992. Appellant’s present clinical examination did not indicate bilateral 

epicondylitis of the elbows and the medical records did not show that appellant had such a workrelated condition.

Dr. Wehner further advised that appellant did not have any pain with palpation over the 

medial epicondyles or pain with resisted palmar flexion of the wrists. She indicated that diagnostic 

testing in the case record did not document any type of tendinitis and appellant did not receive a

diagnosis of medial epicondyle of the elbows prior to 1992. There was nothing in the medical 

records to indicate a diagnosis, an evaluation, or any type of treatment for bilateral epicondylitis 

in connection with the accepted employment conditions. Dr. Wehner maintained that there was

no finding of bilateral medial epicondylitis on the present examination or in the medical records. 

She concluded that appellant did not sustain such a work-related injury. Dr. Wehner further 

indicated that appellant did not presently have a positive Tinel’s sign in her elbows. She did not 

have an electromyogram/nerve conduction velocity (EMG/NCV) study that was positive for 

cubital tunnel. Dr. Wehner noted that appellant did not receive a diagnosis of cubital tunnel prior 

to 1992. There was no finding that appellant had bilateral cubital tunnel with ulnar nerve 

impingement at the elbows based on the present clinical examination. Dr. Wehner maintained that 

there were no medical facts to support the diagnosis of cubital tunnel syndrome with ulnar nerve 

impingement at the elbows as a work-related injury. There was no finding on the present 

examination of any symptoms indicative of radial tunnel syndrome such as pain with resisted wrist 

extension or finger extension. Dr. Wehner noted that there was no mention prior to 1992 of any 

pain in appellant’s forearms. There was no documentation of diagnosis or treatment of bilateral 

radial tunnel syndrome, and there was no x-ray study in the case record to confirm such a diagnosis. 

Dr. Wehner advised that there was no evidence of bilateral radial tunnel syndrome. She 

did not find any evidence in the medical records to indicate that appellant had incurred bilateral 

radial tunnel syndrome as a result of her occupational activities prior to 1992. There were no 

complaints of specific hand and wrist swelling, pain, or disuse prior to 1992 while she was 

working. Dr. Wehner advised that there was no documentation of any diagnosis of tendinitis of 

the hands and wrists, or any testing for this condition. In addition, there was no indication in the 

medical records that appellant had bilateral tendinitis of the hands and wrists which was causally 

related to an injury at work around May 12, 1987, or which was sustained as an occupational 

disease. Dr. Wehner further indicated that there was no indication that appellant was complaining 

of carpal tunnel symptoms, such as numbness in her thumbs, or index and middle fingers. 

Moreover, appellant did not have a positive Tinel’s or Phalen’s sign, or a positive EMG/NCV 

study prior to her retirement in 1992. Dr. Wehner advised that there was no medical indication 

that appellant received a diagnosis of carpal tunnel syndrome related to an injury at work around

May 12, 1987, or that she sustained the condition as an occupational disease. She indicated that 

there was no indication of trauma to appellant’s knees or that appellant was complaining of hip 

disease or limited hip ROM prior to 1992. In addition, there were no x-ray findings of hip arthritis 

prior to 1992. Dr. Wehner advised that appellant’s hip arthritis was consistent with diffuse 

idiopathic skeletal hyperostosis (DISH), a disease of genetic origin, which was not causally related 

to activities at work, and that her knee arthritis was consistent with a normal, nonwork-related

degenerative condition.
5

Dr. Wehner then conducted an evaluation of permanent impairment of appellant’s 

extremities. She noted that, with regard to the right upper extremity and the accepted cervical 

herniated disc at C3-4, she was using Table 15-21 on page 436 of The Guides Newsletter, Rating 

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

Newsletter), which was a supplemental publication of the sixth edition of the A.M.A., Guides.

Dr. Wehner advised that there was no motor or sensory loss in the upper extremities upon her 

physical examination. She noted that, based on Table 15-14 on page 425, this constituted severity 

of 0. There was no specific peripheral nerve related to the C3-4 level, but the C3 and C4 nerve 

roots did contribute to the trapezius and dorsal scapar nerve. Dr. Wehner indicated, however, that 

there was no specific weakness noted in these muscle groups. Therefore, the impairment rating 

from the peripheral nerve basis was zero. Dr. Wehner advised that, with regard to the left upper 

extremity and the accepted cervical herniated disc at C3-4, she used The Guides Newsletter, Table 

15-21 on page 436. There was no motor or sensory loss in the upper extremities upon physical 

examination and, based on Table 15-14 on page 425, this constituted severity of 0. Dr. Wehner

noted that there was no specific peripheral nerve related to the C3-4 level, but the C3 and C4 nerve 

roots did contribute to the trapezius and dorsal scapar nerve. However, there was no specific 

weakness noted in these muscle groups. Dr. Wehner advised that, therefore, the impairment rating 

from the peripheral nerve basis was zero. 

With regard to the right lower extremity and the accepted permanent aggravation of lumbar 

degenerative disc disease, Dr. Wehner used the sixth edition of the A.M.A., Guides, Table 15-21 

on page 436. She noted that there was sensory loss in the lower extremities upon physical 

examination. Based on Table l5-14 on page 425, this constituted severity of 0. Dr. Wehner 

indicated that appellant had some global weakness due to difficulty giving full effort due to the 

significant edema in her legs. She advised that there was no neurologic weakness and no specific 

weakness due to disc degeneration. Therefore, the impairment rating from the peripheral nerve 

basis was zero. 

Dr. Wehner indicated that, with regard to the left lower extremity and the accepted 

permanent aggravation of lumbar degenerative disc disease, she used The Guides Newsletter, 

Table 15-21 on page 436. There was sensory loss in the lower extremities upon physical 

examination and, based on Table 15-14 on page 425, this constituted severity of 0. Dr. Wehner 

noted that appellant had some global weakness due to difficulty giving full effort due to the 

significant edema in her legs. This was no neurologic weakness and there was no specific 

weakness due to disc degeneration. Dr. Wehner found that, therefore, the impairment rating from 

the peripheral nerve basis was zero.

In a September 14, 2019 report,Dr. Jovito Estaris, a Board-certified occupational medicine 

specialist serving as an OWCP district medical adviser (DMA), expressed his agreement with

Dr. Wehner’s opinion on the expansion and schedule award issues.

By two separate decisions dated September 18, 2019, OWCP denied appellant’s expansion 

and schedule award claims based on the opinion of Dr. Wehner. On October 2, 2019 appellant, 

through counsel, requested a hearing before a representative of OWCP’s Branch of Hearings and 

Review. A hearing was held on February 14, 2020. By decision April 30, 2020, OWCP’s hearing 

representative set aside the September 18, 2019 decisions and remanded the case to OWCP for 

further development, to be followed by issuance of a de novo decision on the expansion and 

schedule award issues. The hearing representative determined that Dr. Wehner needed to be 

provided additional medical documents.
6

On June 23, 2020 OWCP requested that Dr. Wehner clarify her July 9, 2019 report. Per 

OWCP’s hearing representative’s instructions, it provided her with a number of medical 

documents, which had not been previously available to her.

In a supplemental report dated June 25, 2020, Dr. Wehner advised that appellant had an 

underlying condition called ossification of the posterior spinal longitudinal ligament of the cervical 

spine, which was genetic and was not caused by work duties. She explained that individuals with 

this condition had a natural course of worsening over time regardless of their daily activities. 

Appellant also had an underlying condition called DISH, which had a natural course of worsening 

over time regardless of daily activities. Dr. Wehner addressed the timeline of appellant’s 

symptoms and noted, “The development of symptoms in other body regions by [appellant] does 

not indicate causation merely because they came after she worked. She has been retired over 28 

years, and the development of musculoskeletal complaints is no longer related to activities 25 years 

ago.” Dr. Wehner provided a description of the calculation of appellant’s permanent impairment

which was similar to that contained in her July 9, 2019 report.

By decision dated July 23, 2020, OWCP found that appellant did not meet her burden of 

proof to expand the acceptance of her claim to include additional conditions causally related to her 

accepted employment injury. By separate decision dated July 23, 2020, it found that she did not 

meet her burden of proof to establish permanent impairment of a scheduled (listed) member or 

function of the body, warranting a schedule award.

On August 21, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. A hearing was held on November 12, 2020. 

By decision dated January 20, 2021, OWCP’s hearing representative affirmed the July 23, 

2020 decision. The hearing representative determined that Dr. Wehner served as an OWCP 

referral physician, rather than as an impartial medical specialist, and found that hersecond opinion 

evaluation represented the weight of the medical opinion evidence with respect to appellant’s 

expansion and schedule award claims. The hearing representative found that a conflict in the 

medical opinion evidence was not created regarding the expansion and schedule award issues due 

to the fact that the opinion of Dr. Brecher, an OWCP referral physician, was of limited probative 

value because the SOAF provided to him did not adequately describe appellant’s work history.

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that, a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.4 The medical evidence required to establish causal 

relationship between a specific condition, and the employment injury is rationalized medical 

opinion evidence. The opinion of the physician must be based on a complete factual and medical 

background of the claimant, must be one of reasonable medical certainty, and must be supported 

4

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004). 
7

by medical rationale explaining the nature of the relationship between the diagnosed co ndition and 

the specific employment factors identified by the claimant. 5

The Board has held that when the medical evidence supports an aggravation or acceleration 

of an underlying condition precipitated by working conditions or injuries, such disability is 

compensable.6 However, the normal progression of untreated disease cannot be stated to constitute 

“aggravation” of a condition merely because the performance of normal work duties reveals the 

underlying condition.7

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include additional conditions as causally related to her accepted May 12, 1987 

employment injury.

In a July 9, 2019 report, Dr. Wehner discussed appellant’s factual and medical history, 

reported physical examination findings, and provided a discussion in which she concluded that 

appellant did not sustain any conditions causally related to her accepted employment injury other 

than those already accepted. She maintained that she did not find any evidence that appellant 

sustained bilateral traumatic arthritis of the shoulders related to the accepted employment injury. 

Dr. Wehner advised that this opinion was based on the fact that there was no documented workrelated traumatic episode to appellant’s shoulders, there was no diagnostic test result indicating 

decreased articular cartilage, the clinical examination showed only a mild decrease in shoulder 

ROM without much pain, and there was no mention prior to 1992 of any type of shoulder problem. 

She further opined that appellant’s present clinical examination did not support a current diagnosis 

of bilateral traumatic arthritis of the shoulders. Dr. Wehner asserted that appellant might have 

some type of nonwork-related rotator cuff tendinitis, which was not an unusual condition for an 

individual of her age. She noted that she did not elicit any specific pain with palpation of 

appellant’s lateral epicondyles or pain with resisted dorsiflexion of her wrists. Dr. Wehner advised 

that the diagnostic testing of record did not document tendinitis of the extensor carpi radialis 

tendons. She maintained that there was nothing in the medical records that documented a 

diagnosis, an evaluation, or any type of treatment for lateral epicondylitis of the elbows prior to 

1992. Appellant’s present clinical examination did not indicate bilateral epicondylitis of the 

elbows and the medical records did not show that appellant had such a work-related condition.

Dr. Wehner further advised that appellant did not have any pain with palpation over the 

medial epicondyles or pain with resisted palmar flexion of the wrists. She indicated that diagnostic 

testing in the case record did not document any type of tendinitis and appellant did not rec eive a 

diagnosis of medial epicondyle of the elbows prior to 1992. There was nothing in the medical 

records to indicate a diagnosis, an evaluation, or any type of treatment for bilateral epicondylitis 

in connection with the accepted employment conditions. Dr. Wehner maintained that there was 

no finding of bilateral medial epicondylitis on the present examination or in the medical records. 

She concluded that appellant did not sustain such a work-related injury. Dr. Wehner further 

5

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6 C.H., Docket No. 17-0488 (issued September 12, 2017).

7

Id.
8

indicated that appellant did not presently have a positive Tinel’s sign in her elbows. She did not 

have an EMG/NCV study that was positive for cubital tunnel. Dr. Wehner noted that appellant 

did not receive a diagnosis of cubital tunnel prior to 1992. There was no finding that appellant had 

bilateral cubital tunnel with ulnar nerve impingement at the elbows based on the present clinical 

examination. Dr. Wehner maintained that there were no medical facts to support the diagnosis of 

cubital tunnel syndrome with ulnar nerve impingement at the elbows as a work-related injury. 

There was no finding on the present examination of any symptoms indicative of radial tunnel 

syndrome such as pain with resisted wrist extension or finger extension. Dr. Wehner noted that 

there was no mention prior to 1992 of any pain in appellant’s forearms. There was no 

documentation of diagnosis or treatment of bilateral radial tunnel syndrome, and there was no 

x-ray study in the case record to confirm such a diagnosis. 

Dr. Wehner advised that there was no evidence of bilateral radial tunnel syndrome. She 

did not find any evidence in the medical records to indicate that appellant had incurred bilateral 

radial tunnel syndrome as a result of her occupational activities prior to 1992. There were no 

complaints of specific hand and wrist swelling, pain, or disuse prior to 1992 while she was 

working. Dr. Wehner advised that there was no documentation of any diagnosis of tendinitis of 

the hands and wrists, or any testing for this condition. In addition, there was no indication in the 

medical records that appellant had bilateral tendinitis of the hands and wrists, which was causally 

related to an injury at work around May 12, 1987, or which was sustained as an occupational 

disease. Dr. Wehner further indicated that there was no indication that appellant was complaining 

of carpal tunnel symptoms, such as numbness in her thumbs, or index and middle fingers. 

Moreover, appellant did not have a positive Tinel’s or Phalen’s sign, or a positive EMG/NCV 

study prior to her retirement in 1992. Dr. Wehner advised that there was no medical indication 

that appellant received a diagnosis of carpal tunnel syndrome related to an injury at work around 

May 12, 1987, or that she sustained the condition as an occupational disease. She indicated that 

there was no indication of trauma to appellant’s knees or that appellant was complaining of hip 

disease or limited hip ROM prior to 1992. In addition, there were no x-ray findings of hip arthritis 

prior to 1992. Dr. Wehner advised that appellant’s hip arthritis was consistent with DISH, a 

disease of genetic origin, which was not causally related to activities at work, and that her knee 

arthritis was consistent with a normal, nonwork-related degenerative condition.

In a supplemental report dated June 25, 2020, Dr. Wehner further found that appellant did 

not sustain a cervical condition causally related to the accepted employment conditions. She 

provided medical rationale for this determination by explaining that appellant had an underlying 

condition called ossification of the posterior spinal longitudinal ligament of the cervical spine,

which was genetic and was not caused by work duties. Dr. Wehner explained that individuals with 

this condition had a natural course of worsening over time regardless of their daily activities. 

Appellant also had an underlying condition called DISH, which had a natural course of worsening 

over time regardless of daily activities. Dr. Wehner addressed the timeline of appellant’s 

symptoms and noted, “The development of symptoms in other body regions by [appellant] does 

not indicate causation merely because they came after she worked. [Appellant] has been retired 

over 28 years, and the development of musculoskeletal complaints is no longer related to activities 

25 years ago.”

The Board finds that the hearing representative properly determined in the January 20, 

2021 decision thatDr. Wehner served as an OWCP referral physician with respect to the expansion 

issue, rather than as an IME, and properly found that her second opinion evaluation represented 

the weight of the medical opinion evidence with respect to the expansion issue. As the medical 
9

evidence of record is insufficient to any additional conditions as causally related to her accepted 

employment injury, the Board finds that she has not met her burden of proof. 

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

The schedule award provisions of FECA,8 and its implementing federal regulation,9 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. 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.10 As of May 1, 2009, the

sixth edition of the A.M.A., Guides is used to calculate schedule awards.11 A claimant has the 

burden of proof under FECA to establish permanent impairment of a scheduled member or 

function as a result of his or her employment injury entitling him or her to a schedule award.12

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. 13 However, a 

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

and/or lower extremities.14 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a 

supplemental publication of the sixth edition of the A.M.A., Guides. 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 extremities. The appropriate tables for rating spinal nerve 

extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 15

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10 Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and 

Exhibit 1 (January 2010).

12 M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued December 31, 2018).

13 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); 

Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

14 Supra note 11 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)

(March 2017).

15 Supra note 11 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).
10

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to establish permanent 

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

The Board finds that the hearing representative properly determined in the January 20, 

2021 decision that Dr. Wehner served as an OWCP referral physician with respect to the schedule 

award issue, rather than as an impartial medical specialist, and properly found that her second 

opinion evaluation represented the weight of the medical opinion evidence with respect to the 

schedule award issue.

In her July 9, 2019 report, Dr. Wehner noted that, with regard to the right upper extremity 

and the accepted cervical herniated disc at C3-4, she was using The Guides Newsletter, Table 15-

21 on page 436. She advised that there was no motor or sensory loss in the upper extremities on 

her examination. Dr. Wehner indicated that, based on Table 15-14 on page 425, this constituted 

severity of 0. There was no specific peripheral nerve related to the C3-4 level, but the C3 and C4 

nerve roots did contribute to the trapezius and dorsal scapar nerve. Dr. Wehnerindicated, however, 

that there was no specific weakness noted in these muscle groups. Therefore, the impairment 

rating from the peripheral nerve basis was zero. Dr. Wehner advised that, with regard to the left 

upper extremity and the accepted cervical herniated disc at C3-4, she used The Guides Newsletter, 

Table 15-21 on page 436. There was no motor or sensory loss in the upper extremities upon 

physical examination and, based on Table 15-14 on page 425, this constituted severity of 0. Dr. 

Wehner noted that there was no specific peripheral nerve related to the C3-4 level, but the C3 and 

C4 nerve roots did contribute to the trapezius and dorsal scapar nerve. However, there was no 

specific weakness noted in these muscle groups. Dr. Wehner advised that, therefore, the 

impairment rating from the peripheral nerve basis was zero. 

With regard to the right lower extremity and the accepted permanent aggravation of lumbar 

degenerative disc disease, Dr. Wehner used the sixth edition of the A.M.A. Guides, Table 15-21 

on page 436. She noted that there was sensory loss in the lower extremities upon physical 

examination. Based on Table l5-14 on page 425, this constituted severity of 0. Dr. Wehner 

indicated that appellant had some global weakness due to difficulty giving full effort due to the 

significant edema in her legs. She advised that there was no neurologic weakness and no specific 

weakness due to disc degeneration. Therefore, the impairment rating from the peripheral nerve 

basis was zero. Dr. Wehner indicated that, with regard to the left lower extremity and the accepted 

permanent aggravation of lumbar degenerative disc disease, she used The Guides Newsletter, and 

the A.M.A., Guides, Table 15-21 on page 436. There was sensory loss in the lower extremities 

upon physical examination and, based on Table 15-14 on page 425, this constituted severity of 0. 

She noted that appellant had some global weakness due to difficulty giving full effort due to the 

significant edema in her legs. This was not a neurologic weakness and there was no specific 

weakness due to disc degeneration. Dr. Wehner found that, therefore, the impairment rating from 

the peripheral nerve basis was zero. In a supplemental June 25, 2020 report, she provided a 

description of the calculation of appellant’s permanent impairment, which was similar to that 

contained in her July 9, 2019 report.

As the medical evidence of record is insufficient to establish permanent impairment of a 

scheduled member or function of the body, the Board finds that appellant has not met her burden 

of proof to establish her schedule award claim.
11

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include additional conditions as causally related to her accepted employment injury. 

The Board further finds that appellant has not met her burden of proof to establish pe rmanent 

impairment of a scheduled member, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the January 20, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board