United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-1825
Issued: October 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 25, 2007 nonmerit decision denying his request for further merit
review of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
December 15, 2006 decision which is within one year of appellant’s appeal, therefore, the Board
also has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained a permanent
impairment to a scheduled member and (2) whether the Office properly denied further merit
review of appellant’s claim.
FACTUAL HISTORY
On September 8, 1999 appellant, then a 46-year-old carrier, filed a traumatic injury claim
alleging that on June 15, 1999 his postal vehicle was hit in the rear causing a lower back

condition. On March 19, 2001 his claim was accepted for lumbar herniated nucleus pulposus
(HNP) L4-5. Appellant’s claim was subsequently also accepted for displacement of lumbar
intervertebral disc without myelopathy, lumbosacral spondylosis without myelopathy, disorders
of sacrum and pain in joint, pelvic region and thigh, left.
On July 17, 2006 appellant filed a claim for a schedule award. In a July 27, 2006 letter,
the Office asked his orthopedic surgeon, Dr. Steve Nolan, to render an impairment rating of
appellant’s lower extremities by using the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Dr. Nolan was asked to include in his report
the date of maximum medical improvement, objective findings, diagnosis of the condition and
percentage of impairment with an explanation of how it was calculated using the tables in the
A.M.A., Guides. In a separate letter, the Office informed appellant that the information was
needed from his physician to process his claim. It received a July 26, 2006 visit note from
Dr. Nolan who diagnosed lumbosacral pain with chronic pain secondary to failed back
syndrome. Dr. Nolan opined that there was good strength and sensation in both lower
extremities and noted that straight leg raising was equivocal on the right and negative on the left.
On September 8, 2006 the Office denied appellant’s claim for a schedule award on the
grounds that the evidence was insufficient to establish that appellant sustained a permanent
impairment of a scheduled member.
On October 24, 2006 appellant requested reconsideration. The Office received additional
information. In a September 13, 2006 letter, Dr. Nolan stated that appellant was having chronic
back pain radiating into both lower extremities and noted that straight leg raising caused pain
bilaterally. He also diagnosed lumbosacral pain secondary to failed back syndrome. In an
August 22, 2006 letter, Dr. Tova Alladice, a physiatrist, opined that appellant had reached
maximum medical improvement and that he had a five percent impairment based on the A.M.A.,
Guides, fourth edition. In her letter, she noted that appellant had continuing pain and weakness
in the left leg and that strength was slightly diminished in the left. In an August 30, 2006
medical evaluation report, Dr. Alladice diagnosed backache and opined that appellant reached
maximum medical improvement on August 8, 2006. In an October 9, 2006 report, Dr. Jesse S.
Hironymous, a chiropractor, opined that appellant had a 14 percent impairment of the lumbar
spine based on Table 75 of the fourth edition of the A.M.A., Guides. He noted appellant’s pain
in valsalva with pain running down the left leg as well as decreased sensation of the left lateral
thigh and increased sensation of the left medial leg. In an October 9, 2006 medical evaluation
report, Dr. Hironymous diagnosed “lumbar region” and opined that appellant had reached
maximum medical improvement on October 9, 2006. In an October 25, 2006 letter, Dr. Nolan
diagnosed lumbosacral pain secondary to failed back syndrome and stated that appellant had an
impairment rating of 14 percent of the whole body.
By December 15, 2006 merit decision, the Office denied modification of the prior
decision on the grounds that the evidence was insufficient to support permanent impairment of
appellant’s lower extremities.1

1

The December 15, 2006 decision states that there was no evidence of a “permanent impairment in excess of six
percent,” however, none of the Office’s prior decisions accepted an impairment.

2

On April 6, 2007 appellant requested reconsideration. The Office received additional
information from her physicians. In a December 6, 2006 letter, Dr. Nolan stated that appellant
had an impairment rating of 14 percent of the whole body. He noted that appellant still had pain
in his back with intermittent radiation to both lower extremities but good strength and sensation
in both legs. In a January 17, 2007 letter, Dr. Nolan stated that appellant’s impairment rating
was unchanged. On March 5, 2007 he concurred with the results, conclusion and whole person
impairment rating in the amended evaluation report from Dr. Scott Neuburger, a chiropractor,
who related to an evaluation on October 9, 2006. The amended report stated that it was for an
“impairment rating evaluation of the lumbar spine.” The report used the A.M.A., Guides fourth
edition in finding that appellant had a “lumbar spine whole person impairment” of 14 percent. In
a March 19, 2007 letter, Dr. Nolan stated that appellant had intermittent pain in both lower
extremities and an unchanged impairment rating.
In an April 25, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration on the grounds that there was no substantive legal questions or new and relevant
evidence submitted.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.3
No schedule award is payable for a member, organ or function of the body that is not
specified in the Act or in the implementing regulations.4 Because neither the Act nor the
regulation provide for the payment of a schedule award for permanent loss of use of the back,5
no claimant is entitled to such an award.6
Amendments to the Act modified the schedule award provisions to provide for an award
for permanent impairment to a member of the body covered by the schedule regardless of
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (2002). FECA Bulletin No. 01-05 issued January 29, 2001, provides that all claims
examiners and hearing representatives should begin using the fifth edition of the A.M.A., Guides effective
February 1, 2001. This bulletin does not contain a separate attachment of mutually exclusive tables that must be
used in lieu of the applicable tables in the fifth edition of the A.M.A., Guides.
4

Tania R. Keka, 55 ECAB 354 (2004). William Edwin Muir, 27 ECAB 579 (1976) (this principle applies equally
to body members that are not enumerated in the schedule provision as it read before the 1974 amendment and to
organs that are not enumerated in the regulations promulgated pursuant to the 1974 amendment).
5

Tania R. Keka, supra note 4. The Act itself specifically excludes the back from the definition of “organ.”
5 U.S.C. § 8101(19).
6

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

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whether the cause of the impairment originated in a scheduled or nonscheduled member. As the
schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originates in the spine.7
The Board has long held that a medical opinion regarding permanent impairment which
is not based upon the A.M.A., Guides, the standard adopted by the Office 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.8
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a back condition: lumbar HNP L4-5,
displacement of lumbar intervertebral disc without myelopathy, lumbosacral spondylosis without
myelopathy, disorders of sacrum and pain in joint, pelvic region and thigh, left. Although
appellant may not receive a schedule award for permanent impairment to his back, he may be
entitled to a schedule award for permanent impairment to his lower extremities if the accepted
back condition caused such impairment.
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. A schedule award is not payable for
the loss or loss of use, of a part of the body that is not specifically enumerated. Neither the Act
nor its implementing federal regulations provides for a schedule award for impairment to the
back or to the body as a whole. Furthermore, the back is specifically excluded from the
definition of “organ.”9 Appellant is only entitled to receive a schedule award if he establishes
that his back conditions caused impairment to a scheduled member of his body. The medical
evidence of record, however, does not establish that he has any permanent impairment to a
scheduled member due to his back conditions.
The Office received reports from Dr. Nolan dated July 26, September 13 and
October 25, 2006. In each of his reports, Dr. Nolan diagnosed lumbosacral pain secondary to
failed back syndrome. In his September 13, 2006 letter, he noted that appellant had chronic back
pain radiating into both lower extremities but did not explain how appellant’s back pain caused
an impairment to his lower extremities. In his October 25, 2006 letter, Dr. Nolan opined that
appellant had an impairment rating of 14 percent of the whole body. However, he failed to
explain how he calculated the impairment based on the tables in the A.M.A., Guides. Even if
Dr. Nolan had used the A.M.A., Guides schedule awards are not permitted for the body as a
whole,10 therefore, his opinion is not probative. The Office also received reports from
7

Rozella L. Skinner, 37 ECAB 398 (1986); see 5 U.S.C. § 8107(c)(2) (providing 288 weeks of compensation for
the complete loss of a leg).
8

Carolyn Sellers 50 ECAB 393 (1999).

9

James E. Mills, 43 ECAB 215 (1991).

10

5 U.S.C. § 8101(19).

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Dr. Alladice dated August 22 and 30, 2006, who opined that appellant had reached maximum
medical improvement and had a five percent impairment but failed to identify which part of the
body had the impairment. As stated previously, schedule awards are not permitted for the body
as a whole,11 therefore, Dr. Alladice’s opinion is not probative.
Two reports dated October 9, 2006 from Dr. Hironymous were also submitted. He is a
chiropractor. Section 8101(2) of the Act provides that the term “physician” includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.”12 As Dr. Hironymous is not considered a physician under the Act, his report is not a
proper basis for a schedule award.
Appellant did not submit any reports which established that he sustained a permanent
impairment to a specified member, organ or function of the body identified in the Act or
implemented regulations. The reports offer opinions as to percentage of permanent impairment
but only for the whole body which is not an identified member under the Act and not eligible for
a schedule award.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation:
The Secretary of Labor may review an award for or against payment of compensation at
any time on his own motion or on application. The Secretary, in accordance with the facts found
on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.
Under 20 C.F.R. § 10.606(b)(2), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law, by
advancing a relevant legal argument not previously considered by the Office or by constituting
relevant and pertinent new evidence not previously considered by the Office. Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of these three requirements the Office will deny the application for review without reviewing the
merits of the claim. Evidence that repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case.13
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
11

5 U.S.C. § 8101(19).

12

5 U.S.C. § 8101(2).

13

Eugene F. Butler, 36 ECAB 393 (1984).

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claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. A claim for an additional schedule award may
be based on new exposure to employment factors or on the progression of an employmentrelated condition, without new exposure, resulting in a greater permanent impairment.14
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the denial of his request for a schedule award. He
may obtain review of the merits of his claim by showing that the Office erroneously applied or
interpreted a specific point of law, by advancing a relevant legal argument not previously
considered by the Office; or by constituting relevant and pertinent new evidence not previously
considered by the Office. Appellant did not argue that the Office erroneously applied a point of
law nor did he advance a relevant legal argument not previously considered. He did submit
additional evidence with his reconsideration request. The issue is whether the evidence
submitted constitutes relevant and pertinent new evidence which would require a merit review by
the Office.
Appellant submitted reports from Dr. Nolan dated December 6, 2006 to
March 19, 2007. In the December 6, 2006 report, Dr. Nolan opined that appellant had an
impairment rating of 14 percent for the whole body but did not identify how he calculated the
percentage. On March 5, 2007 Dr. Nolan concurred with an amended evaluation report by
Dr. Neuburger which gave a “lumbar spine whole person impairment” rating of 14 percent. As
previously stated, the Act and the regulations do not provide schedule awards for impairment to
the body as a whole or for loss of use, of the back.15
Evidence that does not address the particular issue involved does not constitute a basis for
reopening a claim.16 The underlying issue with respect to appellant’s claim is whether he has a
permanent impairment to a scheduled member as identified by the Act or the regulations. None
of the reports submitted gave an impairment rating for a scheduled member, nor do they identify
how appellant’s accepted back conditions cause permanent impairment to a scheduled member.
While the evidence submitted by appellant was new in that the reports themselves had not
been previously reviewed by the Office, they were duplicative as they gave the same opinion and
same information as previously submitted reports. As the evidence put forth did not constitute
relevant and pertinent new evidence a merit review by the Office was not warranted.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award
and properly refused to reopen appellant’s case for further review of the merits of his claim.

14

Rose V. Ford, 55 ECAB 449 (2004); Linda T. Brown, 51 ECAB 115 (1999). This distinction is also made at
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7b (August 2002).
15

Tania R. Keka, note 5.

16

Betty A. Butler, 56 ECAB ___ (Docket No. 04-2044, issued May 16, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the April 25, 2007 and December 15, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 10, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-701
Issued: November 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 5, 2013 appellant, through his attorney, filed a timely appeal from a
January 14, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) that
denied his claim for a schedule award. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has a
permanent impairment due to the accepted conditions.
On appeal, appellant’s attorney asserts that the January 14, 2013 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 2, 2003 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim alleging that he injured his back when a chair he was sitting in at work collapsed. He
stopped work that day.2 OWCP accepted that appellant sustained back and neck strains, a back
contusion, post-traumatic headaches, an intervertebral disc disorder and displacement of a
cervical disc. Appellant received continuation of pay and compensation for disability.3
A March 3, 2004 electromyogram and nerve conduction velocity (EMG/NCV) study was
normal.
Appellant came under the care of Dr. Stephan C. Lange, a Board-certified
neurosurgeon. On August 25, 2006 Dr. Stephen F. Calderon, a Board-certified neurosurgeon and
an associate of Dr. Lange, performed a cervical fusion at C5-6 and anterior arthrodesis at C4-5.
Appellant returned to a modified processing clerk position on January 22, 2007.
On July 21, 2010 appellant filed a schedule award claim. In a March 4, 2010 report,
Dr. Lange noted appellant’s report of continued right-sided neck pain that radiated into the right
arm with weakness and numbness. Physical examination demonstrated limited neck range of
motion, 4/5 weakness in right grip versus the left and 5/5 strength in all other muscle groups.
Sensory examination demonstrated diminished pain over the dorsum of the right hand.
Dr. Lange indicated that he would rate appellant at 15 percent disability.
By letter dated November 4, 2010, OWCP informed appellant of the medical evidence
needed to support his claim for a schedule award. It requested a report by his physician in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).4 Appellant was provided impairment worksheets
for the upper and lower extremities, to provide his physician for an impairment rating.
In a November 11, 2010 report, Dr. Lange noted that appellant was concerned about right
arm atrophy. On evaluation and measurement, the circumference of the right arm was about
one-quarter inch less than the left. Dr. Lange recommended an upper extremity EMG/NCV
study that was obtained on December 3, 2010 and reported as normal. On December 11, 2010 he
completed an impairment evaluation. Dr. Lange advised that, under Table 17-2, Cervical Spine
Regional Grid, appellant had a class 3 impairment. He found a grade modifier of 2 for functional
history and no modifiers for physical examination and clinical studies. Dr. Lange then applied
the net adjustment formula and concluded that appellant had eight percent whole person
impairment based on the cervical spine.
In a March 31, 2011 report, Dr. Christopher R. Brigham, Board-certified in family and
occupational medicine and an OWCP medical adviser, reviewed the medical record. He found
that maximum medical improvement was reached on November 18, 2008, 84 months postinjury,
2

Appellant had a previous case before the Board, adjudicated by OWCP under file number xxxxxx207. In
Docket No. 98-154 (issued January 7, 2000), the Board remanded appellant’s case to OWCP for further
development as to whether he sustained an employment-related emotional condition in the performance of duty
causally related to an accepted employment factor.
3

In a September 21, 2006 decision, OWCP denied compensation for the dates June 15 to November 8, 2003. On
February 16, 2007 an OWCP hearing representative affirmed the September 21, 2006 decision.
4

A.M.A., Guides (6th ed. 2008).

2

when appellant last had active physical therapy treatment. Dr. Brigham noted that Dr. Lange did
not provide an impairment rating in accordance with OWCP regulations because he rated whole
person impairment and did not rate appellant’s extremities. He noted that OWCP had adopted
proposed tables outlined in the July/August 2009 The Guides Newsletter for rating impairment of
the upper or lower extremities caused by a spinal injury. To have a ratable impairment, there
must be sensory and/or motor deficits of the upper extremities. Dr. Brigham reviewed the
physical findings of Dr. Lange’s March 4, 2010 report. He stated that grip strength was not a
measure of strength associated with a cervical nerve root and Dr. Lange found 5/5 strength of all
other muscle groups. Therefore, appellant had no ratable impairment for motor loss. Regarding
Dr. Lange’s finding of diminished sensation over the dorsum of the right hand, it was innervated
by the C6, C7 and C8 nerve roots. As these nerves had not been operated on, the reliability of
appellant’s subjective complaint of sensory loss in the right hand was questionable, especially in
light of the normal EMG/NCV studies of March 3, 2004 and December 3, 2010. Dr. Brigham
concluded that appellant had no ratable upper extremity impairment due to the accepted cervical
condition.
By decision dated April 27, 2011, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence did not establish that he sustained any permanent impairment
to a scheduled member.
Appellant, through his attorney, timely requested a hearing, that was held on
July 26, 2011. At the hearing, he testified that he continued to have headaches, numbness and
weakness throughout his right arm and hand and had diminished right upper extremity strength.
The record was left open for 30 days. Nothing further was submitted.
In a September 6, 2011 decision, an OWCP hearing representative affirmed the April 27,
2011 decision.
On August 20, 2012 appellant requested reconsideration. He submitted an August 31,
2011 report from Dr. Karen M. Garvey, Board-certified in internal and occupational medicine,
who provided examination findings and an impairment evaluation. Dr. Garvey agreed that
maximum medical improvement was on November 18, 2008. On examination shoulder and
elbow strength were 4+/5 on the right and 5/5 on the left with right hand opposition of thumb
and index finger 4/5 and right thumb and third finger 4/5. All other hand opposition strength was
5/5. Dr. Garvey found decreased sensation to pain (pinwheel) and light touch in the distribution
of C4, C5 and C6 on right and normal sensation to pain and light touch in the C7-Tl distribution
of the right arm. The left arm had normal sensation to pain and light touch in corresponding
dermatomes. Dr. Garvey found that the mid-upper arm measured 13.5 inches on the right and 14
inches on the left and that the mid-forearm measured 8 inches on the right and 9 on the left.
In a November 1, 2011 report, Dr. Garvey advised that, following the tables outlined in
the July/August 2009 The Guides Newsletter, using Table 15-19, the nerves involved were
branches of the brachial plexus, including the axillary nerve at C5-6 with motor and sensory
involvement of the deltoid muscle and the musculocutaneous nerve at C5, C6 and C7 involving
motor and sensory involvement of the muscles of the upper arm and forearm. She found that
under Table 15-14, appellant had a rating of severity 1 mild sensory deficit due to distorted
superficial tactile sensibility and a severity 1 motor deficit based on strength measurements of
4/5. Dr. Garvey advised that appellant had a grade modifier of 1 for functional history because
pain symptoms occurred with strenuous and vigorous activity which required medications to
3

control. Because appellant’s sensory and motor involvement was limited to the C5 and C6
distribution with symptoms involving the shoulder, upper and lower arm, Table 15-20, brachial
plexus impairment, was appropriate. This had a default value for sensory impairment of three
percent and a nine percent default value for motor impairment. Dr. Garvey applied the net
adjustment formula and found that appellant had two percent sensory impairment and five
percent motor impairment which combined for six percent upper extremity impairment.
Dr. Morley Slutsky, an OWCP medical adviser Board-certified in occupational medicine,
provided a January 2, 2013 report. He advised that maximum medical improvement was reached
on August 31, 2011, the date of Dr. Garvey’s examination. Dr. Slutsky noted that Dr. Garvey
reported sensory and motor loss in the C4, C5 and C6 distribution but that Dr. Lange found
sensory loss in the C6, C7 and C8 distribution. The medical adviser stated that appellant’s
findings were variable, nonphysiologic and not supported by the objective, diagnostic testing
which included multiple upper extremity EMG/NCV tests which revealed no pathology coming
from the spine. Dr. Slutsky stated that appellant was found to have normal manual muscle
testing and nonphysiologic sensory findings, although immediately postsurgery his sensation was
intact. Using the July/August 2009 The Guides Newsletter and the sixth edition of the A.M.A.,
Guides, as there were no valid, reliable or objective findings upon which to rate an upper
extremity impairment. Dr. Slutsky concluded that, if further controversy existed, appellant could
be referred for a second opinion evaluation with an orthopedic surgeon or neurologist but that
any clinical findings would have to be supported by diagnostic testing before a rating would be
applied.
In a merit decision dated January 14, 2013, OWCP denied modification of the prior
decisions. Based on Dr. Slutsky’s opinion, if found no valid, reliable or objective basis to rate an
upper extremity impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 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.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition is to be used.9

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 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
9

FECA Bulletin No. 09-03 (issued March 15, 2009).

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Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.12 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in the July/August
2009 The Guides Newsletter.13 Specifically, it will address lower extremity impairments
originating in the spine through Table 16-11 and upper extremity impairment originating in the
spine through Table 15-14.14
ANALYSIS
The Board finds this case is not in posture for decision. The accepted conditions in this
case include intervertebral disc disorder and displacement of cervical disc. Appellant had
surgery on August 25, 2006. In a merit decision dated January 14, 2013, OWCP found that the
weight of the medical evidence rested with the opinion of Dr. Slutsky, the medical adviser and
denied appellant’s schedule award claim.
In a November 1, 2011 report, Dr. Garvey, an attending physician, advised that she
followed the tables outlined in the July/August 2009 The Guides Newsletter to conclude that
appellant had a total six percent upper extremity impairment due to motor and sensory loss. She
rated impairment of the cervical spine in terms of motor or sensory loss but did not address the
absence of electrodiagnostic support. Dr. Slutsky noted that EMG/NCS studies of June 18, 2003,
May 13, 2008 and December 3, 2010 were all reported as normal. Section 15.4f of the A.M.A.,
Guides provides that “if either motor weakness or sensory loss is present on examination … both
must be present on nerve conduction testing.”15 Dr. Garvey’s report is therefore of diminished
probative value and insufficient to establish entitlement to a schedule award.
Dr. Slutsky advised that there were no reliable physical findings upon which to base an
upper extremity rating. He also indicated, however, that it would be appropriate to refer
appellant for a second opinion evaluation with an orthopedic surgeon or neurologist. The Board
10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

Rozella L. Skinner, 37 ECAB 398 (1986).

13

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 8.

14

A.M.A., Guides, supra note 4 at 533 and 425 respectively.

15

Id. at 445.

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will set aside the January 14, 2013 decision and remand the case for OWCP to refer appellant for
an appropriate second opinion evaluation, as recommended by Dr. Slutsky.16 After such further
development as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision regarding the degree of
appellant’s right upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2013 decision of the Office of
Workers’ Compensation Programs is vacated and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: November 13, 2013
Washington, DC

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

16

See Peter C. Belkind, 56 ECAB 580 (2005) (proceedings under FECA are not adversarial in nature nor is
OWCP a disinterested arbiter; while a claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-389
Issued: May 23, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 6, 2013 appellant filed a timely appeal from an August 13, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation on August 28,
2013 as she refused suitable work under 5 U.S.C. § 8106(c)(2).

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant submitted new evidence. The Board may not consider new evidence for the first time on
appeal that was not before OWCP at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c).
Appellant may submit such evidence to OWCP accompanying a request for reconsideration.

FACTUAL HISTORY
This case was previously before the Board. On May 2, 2013 the Board issued an order
dismissing appeal from a November 8, 2012 OWCP decision denying modification of a
September 20, 2012 decision terminating her compensation benefits.3 The Board noted that
appellant requested that the appeal be dismissed as OWCP had resolved the issue.
Appellant a 44-year-old sales service/distribution clerk has an accepted occupational
disease claim for left shoulder and upper arm sprain; left wrist sprain; left rupture of the rotator
cuff; other affections of left shoulder region; and other specified disorder of bursae and tendons
in the left shoulder region. She received compensation benefits. Appellant’s disability
retirement benefits became effective May 9, 2013.
In an April 25, 2013 report, Dr. Andrew K. Lee, an attending Board-certified hand
surgeon, found that appellant reached maximum medical improvement and that she could return
to work with permanent restrictions for eight hours a day. Appellant was restricted from
reaching or lifting more than 15 pounds for eight hours. For four hours a day, she was restricted
from reaching above the shoulder with more than 15 pounds or pushing and pulling more than 50
pounds.
On May 3, 2013 the employing establishment provided appellant with a job offer as a
modified distribution clerk. The physical requirements of the position included: lifting items
less than 15 pounds three to four hours a day; fine manipulation eight hours a day; grasping
items four to six hours a day; and reaching above the shoulder one to two hours a day. Appellant
was to clear the registry cage in the afternoon for two to three hours a day; write second notices
on accountable items three to four hours a day; distribute SPRS to carriers in the afternoon one to
two hours per day; and scan SPRS in the afternoon one to two hours a day.
On May 7, 2013 appellant advised that she was approved for disability retirement.
In a letter dated May 15, 2013, OWCP informed appellant that the duties and physical
requirements of the modified distribution clerk position were found to be suitable to her
capabilities and the medical limitations provided by Dr. Lee. The position remained available to
her and she should return to the position or provide an explanation for refusing the position
within 30 days. OWCP advised appellant that, if she failed to return to the offered position or
failed to demonstrate that the failure was justified, her compensation would be terminated.
On April 10, 2013 appellant provided an undated letter from the employing establishment
with a handwritten note stating that she was no longer on the USPS payroll because of her
separation on March 18, 2013. She stated that she was separated from the employing
establishment on March 18, 2013 and was approved for disability retirement. Appellant advised
that she had one more semester to complete her studies and had enrolled for the fall semester
once she knew she was separated from the employing establishment. She noted complications
with her shoulder since her injury and stated that the job offer did not coincide with the hour she

3

Docket No. 13-351 (issued May 2, 2013).

2

bid on and would cause stress to her shoulder and wrist. Appellant stated that she wished to start
a new career.
OWCP also received March 11 and May 23, 2013 letters from the Office of Personnel
Management (OPM) approving her application for disability retirement; and a copy of the
modified job offer with appellant’s statement dated May 21, 2013 that “On March 18, 2013 I was
separated from the USPS and I was approved for retirement disability … start training for a new
career.” An SF-50 form listed that appellant was separated from the employing establishment on
March 18, 2013.
The record contains a memorandum of a May 4, 2013 telephone conversation between
appellant and OWCP. Appellant noted that she was approved for disability and confused by the
job offer. She was in college and would be working at an internship the coming summer.
Appellant would graduate college in one to two semesters.
On June 5, 2013 appellant requested a change of physicians from Dr. Lee to Dr. James
Key. She stated that Dr. Key has offices closer to her home, which was more convenient than
Dr. Lee’s office. On June 14, 2013 OWCP denied appellant’s request to change physicians as
she was under the care of a specialist and it appeared that the treatment had been appropriate.
By letter dated June 18, 2013, OWCP informed appellant that she had not provided
acceptable reasons for refusing the offered position. It allowed her 15 days to accept the position
prior to the termination of benefits.
On June 18, 2013 appellant elected OPM benefits effective May 9, 2013. In a July 8,
2013 letter, she noted that she received disability retirement benefits through OPM. Appellant
stated that she was not refusing the job offer, but chose to retire on disability as she was not able
to perform the work that was assigned.
In a July 17, 2013 report, Dr. James D. Key, a Board-certified orthopedic surgeon,
provided examination findings. He advised that appellant should continue with physical therapy.
On August 13, 2013 the employing establishment confirmed the job offer remained
available.
By decision dated August 13, 2013, OWCP terminated appellant’s monetary benefits
effective August 28, 2013 finding that she refused suitable employment. It noted that the
decision did not affect her medical benefits for the accepted conditions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.4 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or

4

See Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

secured for the employee is not entitled to compensation.5 Section 8106(c)(2) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.6
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.9
Determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work is available within the employee’s
demonstrated commuting area and the employee’s qualifications to perform such work.10
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.11
ANALYSIS
OWCP accepted appellant’s claim for left shoulder and upper arm sprain; left wrist
sprain; left rupture of the rotator cuff; other affections of left shoulder region; and other specified
disorder of bursae and tendons in the left shoulder region. Appellant stopped working on
March 18, 2013 and her disability retirement became effective May 9, 2013.
On May 3, 2013 the employing establishment provided appellant with a job offer as a
modified distribution clerk.
The determination of whether an employee has the physical ability to perform a modified
position offered by the employing establishment is primarily a medical question that must be
resolved by the medical evidence.12 The weight of the medical evidence in this case establishes
that appellant was capable of performing the modified distribution clerk position. In an April 25,
5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

See Joan F. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.517(a).

8

Id. at § 10.516.

9

See Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB
818 (1992).
10

20 C.F.R. § 10.500(b).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).
12

Robert Dickinson, 46 ECAB 1002 (1995).

4

2013 report, Dr. Lee opined that appellant reached maximum medical improvement. He found
her capable of working full time with permanent restrictions. For eight hours a day, appellant
could reach and lift no more than 15 pounds and, for four hours a day, she could reach above the
shoulder with no more than 15 pounds and push/pull no more than 50 pounds. The employing
establishment job offer is within the restrictions set forth by Dr. Lee. OWCP properly relied
upon the opinion of Dr. Lee in determining the offered position of distribution clerk was within
appellant’s restrictions and, thus, suitable. The position had physical requirements of lifting
items less than 15 pounds three to four hours a day and reaching above the shoulder one to two
hours a day, which were within Dr. Lee’s restrictions.
The Board further notes that OWCP complied with its procedural requirements in
advising appellant that the position was found suitable, providing her with the opportunity to
accept the position or provide her reasons for refusing the job offer and notifying her of the
penalty provision of section 8106(c).13
OWCP found that appellant refused an offer of suitable work and terminated her
entitlement to monetary compensation effective August 28, 2013. It noted that she had elected to
receive OPM disability retirement benefits and had separated from the employing establishment
on March 18, 2013. Appellant’s disability retirement became effective May 9, 2013, which was
after the date of the May 3, 2013 job offer. Under OWCP procedures, retirement is not
considered an acceptable reason for refusing an offer of suitable work.14 The evidence reflects
that appellant intended to complete college and train for a new career, not to return to work at the
employing establishment. She has not established a justifiable basis for refusing the offered
position. As the weight of the medical evidence established that appellant could perform the
duties of the offered position, she did not offer sufficient justification for refusing the position.
The employing establishment confirmed the job was open and available.
On appeal, appellant addressed why she did not return to work. She noted that her
physicians did not agree that she could perform work as found by Dr. Lee. The medical
evidence established that appellant could perform the duties of a modified distribution clerk. She
offered no valid reason for refusing the offered position. There is also no evidence to support
appellant’s assertion that the offered position was not within her medical restrictions.
OWCP met its burden of proof in this case to terminate appellant’s monetary
compensation benefits pursuant to 5 U.S.C. § 8106(c).
CONCLUSION
The Board finds that OWCP met its burden to terminate appellant’s compensation
effective August 28, 2013 on the grounds that she refused an offer of suitable work.

13

See Bruce Sanborn, 49 ECAB 176 (1997).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(c) (July 1997). See also Robert P. Mitchell, 52 ECAB 116 (2000) (where the claimant chose to
receive disability retirement benefits rather than accept a position offered by the employing establishment).

5

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-487
Issued: September 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2008 appellant filed a timely appeal from a June 6, 2008 merit decision
of the Office of Workers’ Compensation Programs affirming the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
April 11, 2007 on the grounds that she no longer had residuals of her July 25, 2005 employment
injury after that date.
FACTUAL HISTORY
The Office accepted that on July 25, 2005 appellant, then a 45-year-old mail carrier,
sustained a left knee sprain when she stood up after loading a mailbox with mail. She stopped
work for intermittent periods and received compensation.

On November 13, 2006 Dr. Steven J. Valentino, an osteopath and Board-certified
orthopedic surgeon, examined appellant upon referral by the Office. He described appellant’s
medical history and findings on examination. Dr. Valentino noted that she walked normally and
was able to heel and toe walk well. Appellant was able to squat and return to the erect posture
without difficulty. Her knees revealed an absence of synovitis, effusion or internal derangement.
Patellofemoral compression and inhibition tests were negative and anterior and posterior drawer
signs, varus and valgus stress testing and pivot shift testing were negative. Dr. Valentino noted
that appellant’s range of motion was full and that neurologic examination revealed that deep
tendon reflexes were intact. Appellant’s motor and sensory examinations were normal and there
were no pathologic reflexes. Dr. Valentino concluded that she had recovered from her accepted
work-related left knee sprain and that she no longer required ongoing supervised medical care.
He concluded that appellant no longer had residuals from the injury based on the normal physical
examination and the findings on diagnostic testing. It was Dr. Valentino’s opinion that any
restrictions she required were due to her underlying degenerative joint disease rather than the
July 25, 2005 employment injury.
In a March 8, 2007 letter, the Office advised appellant of its proposed termination of her
compensation. It noted that Dr. Valentino found that she no longer had residuals of her July 25,
2005 employment injury. The Office provided appellant 30 days to submit evidence contesting
the proposed termination.
Appellant submitted a February 28, 2007 treatment note and a February 7, 2007 work
restrictions form of Dr. Bruce Hopper, Jr., an attending Board-certified orthopedic surgeon, who
stated that he was treating appellant for degenerative joint disease of her right knee. In the
February 7, 2007 work restrictions form, Dr. Hopper noted that she required permanent
restrictions due to a “left knee strain/sprain.”
In an April 11, 2007 decision, the Office terminated appellant’s compensation benefits
effective April 11, 2007 on the grounds that she had no residuals of her July 25, 2005
employment injury. It found that the weight of medical evidence rested with Dr. Valentino.
Appellant requested reconsideration and submitted a March 26, 2008 report from
Dr. Hopper who asserted that she continued to have residuals of her July 25, 2005 employment
injury. Dr. Hopper indicated that she continued to have chronic pain syndrome in her left knee
and, because she was not in physical therapy within the first couple months after her injury, her
left knee tissues “pathologically remodeled in a dysfunctional manner and she now has chronic
pain with use of her left knee.” He advised that appellant’s preexisting right knee post-traumatic
osteoarthritis was aggravated by her left knee injury. Dr. Hopper provided a similar opinion in a
November 12, 2007 report.
The Office found a conflict in medical opinion between Dr. Valentino and Dr. Hopper
regarding whether appellant continued to have employment-related residuals. It referred her to
Dr. Zohar Stark, a Board-certified orthopedic surgeon, for an impartial medical examination.
On May 13, 2008 Dr. Stark discussed appellant’s July 25, 2005 injury and her medical
treatment, including the results of diagnostic testing. Physical examination revealed that
appellant was able to walk with a reciprocating heel/toe gait. Examination of her right knee,

2

which showed signs of prior surgery, showed no tenderness on palpation. Dr. Stark indicated
that the left knee did not reveal effusion or reduced quadriceps strength or mass. Range of
motion of the left knee was from 0 to 130 degrees of flexion with crepitation at the
patellofemoral joint but no tenderness over the joint lines. There were no sensory or motor
deficits in the lower extremities. Dr. Stark concluded that appellant’s July 25, 2005 left knee
sprain had resolved. He stated:
“There is no evidence that such pathology still exists. There is no objective
evidence that her ‘tissue pathologically remodeled in dysfunctional manner’ [and]
resulted in a chronic pain syndrome. Her chronic pain syndrome is related to her
chondromalacia patella, which is not related to the injury to her knee sustained on
July 25, 2005. [Appellant] has chondromalacia patella in both knees and
advanced degenerative joint disease of her right knee, which were not produced or
aggravated by the alleged injury of July 25, 2005. [She] did sustain severe
injuries to her right knee in 1983 and underwent open reduction internal fixation
of fracture of proximal tibia, which resulted in some mal-alignment as patient
does have valgus alignment of her right knee.
[Appellant] developed
degenerative joint disease in her knee and there is no connection between the
incident on July 25, 2005 and the degenerative joint disease of her right knee and
no connection between the chondromalacia of the patella in her left knee to the
incident in question.”1
In a June 6, 2008 decision, the Office affirmed its April 11, 2007 decision. It found that
the weight of the medical evidence rested with the well-rationalized opinion of Dr. Stark.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,2 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.3 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.4 It’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 After
termination or modification of compensation benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant who must establish
by the weight of the reliable, probative and substantial evidence that he or she had an
employment-related disability which continued after termination of compensation benefits.6
1

Dr. Stark recommended restrictions on walking, standing, squatting, climbing and kneeling due to her nonworkrelated degenerative knee disease.
2

5 U.S.C. §§ 8101-8193.

3

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

3

Section 8123(a) of the Act 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.”7 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.8
ANALYSIS
The Office accepted that appellant sustained a left knee sprain after loading a mailbox
with mail. It terminated appellant’s compensation benefits on April 11, 2007 based on the
November 13, 2006 report of Dr. Valentino, an osteopath and Board-certified orthopedic
surgeon, who served as an Office referral physician.
The Board finds that the Office properly relied on the well-rationalized opinion of
Dr. Valentino to terminate appellant’s compensation. Dr. Valentino concluded that appellant had
recovered from her accepted work-related left knee sprain of July 25, 2005 and found that she no
longer required ongoing supervised medical care. He provided medical rational for his opinion
by explaining that she had limited findings on physical examination and that the findings on
diagnostic testing did not show any residuals of the employment injury. Dr. Valentino advised
that any restrictions appellant required were due to her underlying degenerative joint disease
rather than the July 25, 2005 employment injury.9
Appellant subsequently submitted November 12, 2007 and March 26, 2008 reports in
which Dr. Hopper reiterated that she continued to have residuals of her July 25, 2005
employment injury.10 The Office properly determined that there was a conflict in the medical
opinion between Dr. Valentino and Dr. Hopper regarding whether appellant continued to have
residuals of her employment injury. In order to resolve the conflict, it properly referred her,

7

5 U.S.C. § 8123(a).

8

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

9

Appellant submitted a February 28, 2007 treatment note and a February 7, 2007 work restrictions form of
Dr. Hopper, an attending Board-certified orthopedic surgeon. The Office properly found that this evidence was of
limited probative value because the physician did not provide a thorough medical evaluation or opinion on causal
relation. See John D. Jackson, 55 ECAB 465 (2004).
10

Dr. Hopper noted that because appellant was not in physical therapy within the first couple months after her
injury, her left knee tissues “pathologically remodeled in a dysfunctional manner and she now has chronic pain with
use of her left knee.” He advised that appellant’s preexisting right knee post-traumatic osteoarthritis was aggravated
by her left knee injury.

4

pursuant to section 8123(a) of the Act, to Dr. Stark, a Board-certified orthopedic surgeon, for an
impartial medical examination and an opinion on the matter.11
The Board finds that the weight of the medical evidence then came to be represented by
the thorough, well-rationalized opinion of Dr. Stark, the impartial medical specialist selected to
resolve the conflict in the medical opinion. The report of Dr. Stark does not show that appellant
had employment-related residuals after April 11, 2007, the date her compensation was
terminated.
On May 13, 2008 Dr. Stark discussed appellant’s July 25, 2005 injury and her medical
treatment, including the results of diagnostic testing. Physical examination revealed that
appellant was able to walk with a reciprocating heel/toe gait. Examination of her right knee,
which showed signs of prior surgery, showed no tenderness on palpation. Dr. Stark indicated
that the left knee did not reveal effusion or reduced quadriceps strength or mass. Range of
motion of the left knee was from 0 to 130 degrees of flexion with crepitation at the
patellofemoral joint but no tenderness over the joint lines. There were no sensory or motor
deficits in the lower extremities. Dr. Stark concluded that appellant’s July 25, 2005 left knee
sprain had resolved. He explained that his opinion was supported by the limited findings on
examination and diagnostic testing. Dr. Stark also noted that appellant had chondromalacia
patella in both knees and advanced degenerative joint disease of her right knee, which were not
produced or aggravated by the July 25, 2005 injury.
On appeal, appellant’s attorney argued that Dr. Stark did not adequately explain why
appellant’s chondromalacia was not aggravated by the July 25, 2005 injury. The Board notes
that her claim had only been accepted for left knee sprain and that Dr. Stark explained that there
was no evidence on examination or diagnostic testing to show that the condition was
employment related. Appellant’s attorney also contended that Dr. Stark did not explain why he
recommended work restrictions; however, Dr. Stark stated that he provided such restrictions due
to appellant’s nonwork-related degenerative knee disease.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
April 11, 2007 on the grounds that she no longer had residuals of her July 25, 2005 employment
injury after that date.

11

On appeal, appellant’s attorney asserted that the referral to Dr. Stark was improper because three physicians
were bypassed to get to Dr. Stark due to the fact they could not give appointments within a reasonable amount of
time. Although appellant’s attorney made reference to the portion of Office procedure regarding selection of
impartial medical specialists, he did not cite any specific precedent showing that the Office’s method of selection
was improper.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 6, 2008 decision is affirmed.
Issued: September 2, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, CO, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-511
Issued: July 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 16, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 15, 2006 merit decision denying her claim for recurrence of
total disability on and after April 1, 2000. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
employment-related recurrence of total disability commencing April 1, 2000.
FACTUAL HISTORY
On February 25, 1992 appellant, then a 46-year-old machine clerk, filed an occupational
disease claim alleging that she sustained upper extremity conditions due to her repetitive work
duties. The Office accepted that she sustained a right elbow strain and bilateral wrist tendinitis
and paid compensation for periods of disability. Appellant began working in light-duty positions
at the employing establishment.

The Office terminated appellant’s compensation effective February 7, 1997 on the
grounds that she abandoned suitable work, but it later reversed this termination because it had
not adequately advised her regarding the consequences of abandoning limited duty.
On March 30, 2000 the employing establishment terminated appellant’s compensation for
failure to be in regular attendance and for taking unscheduled leave without pay.1 On June 11,
2001 appellant claimed that she sustained a recurrence of total disability as of April 1, 2000 due
to her accepted employment injuries.2
On July 7, 2000 Dr. Thomas E. Williamson-Kirkland, an attending Board-certified
physical medicine and rehabilitation physician, stated that appellant had pain complaints in her
hands that were “not very consistent,” that she showed pain behavior upon wrist flexion and
extension which was “quite outlandish” and that she had greater wrist motion than she exhibited
upon testing. Dr. Williamson-Kirkland indicated that appellant’s elbow range of motion was
normal and noted that each time he tried to test her muscle strength she “just gives up and quits.”
He stated that appellant was a “complex woman who has had years of confrontation with the
employing establishment, probably because of underperformance of her job.” Dr. WilliamsonKirkland recommended that appellant either increase her medications, continue working in a
more supportive environment or apply for disability retirement. He stated:
“I cannot really define whether [appellant] has a specific pathology at the
moment, except a mild arthritis around her elbows, but full range of motion. Her
wrist to me, look[s] more like this is a psychologically loose-induced dysfunction
and it is probably related to the stress at the [employing establishment] and the
stress and fear of being fired. I almost agree with the Group Health psychologist,
that this looks like a post-traumatic stress syndrome in which [appellant] has been
psychologically traumatized enough, at least in her mind, that she is extremely
afraid to go to work, extremely afraid to function, but on the other hand extremely
afraid not to. She has become very disabled at work and at home.”
On June 1, 2001 Dr. Anton Posch, an attending Board-certified family practitioner, stated
that appellant had reported that she had not experienced any improvement or worsening of her
medical condition in the past six months. He diagnosed bilateral wrist tendinitis, bilateral lateral
epicondylitis and triangular fibrocartilage complex tear of the left wrist. Dr. Posch indicated that
he would not recommend any work restrictions as appellant was not working at the time. In
several brief reports dated between July 2001 and December 2004, he provided similar
assessments of appellant’s condition.

1

At the time she stopped work, appellant was performing limited duties for the employing establishment which
did not require her to lift, push or pull more than a pound.
2

In several letters to the employing establishment, appellant suggested that she had a sleeping disorder due to
stress sustained at work. However, she did not file a claim with the Office for a work-related sleep disorder or
emotional condition.

2

In a May 30, 2002 decision, the Office denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained an employment-related
recurrence of total disability on or after April 1, 2000.
On May 30, 2002 Dr. John E. Nimlos, an attending Board-certified preventive medicine
physician, stated that appellant reported pain in her wrist and arms which was “excruciating,
constant and persistent.” Dr. Nimlos indicated that upon examination appellant exhibited full
range of bilateral elbow motion and limited range of bilateral wrist motion. He diagnosed
“bilateral wrist tendinitis and left [triangular fibrocartilage complex] tear, work related, with
permanent impairment” and “bilateral medial and lateral epicondylitis, also more probably than
not work related.” Dr. Nimlos provided permanent impairment ratings for appellant’s upper
extremities based on limited motion and sensory loss of the wrists and elbows.
On June 11, 2002 Dr. Nimlos diagnosed bilateral wrist tendinitis, left triangular
fibrocartilage complex tear and bilateral medial and lateral epicondylitis. He indicated that these
conditions were related to appellant’s work, which included “repeated awkward motions at
wrists” and repeated his conclusions regarding the permanent impairment of appellant’s upper
extremities.
In a June 13, 2003 decision, the Office denied appellant’s request for further review of
the merits of her claim.
On June 5, 2003 Dr. Nimlos stated that a review of appellant’s medical records revealed
that she first noted having a sleep disorder and reported stress from her work when she received
treatment in July 1997. He indicated that appellant had experienced anxiety and dizziness
episodes at work and stated that “these symptoms have remained and provoked problems in both
symptomatic complaints and inability to attend her work.”
On July 13, 2006 appellant requested reconsideration of her claim arguing that she
continued to have work-related disability after March 30, 2000. In an August 15, 2006 decision,
the Office affirmed its May 30, 2002 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.3

3

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

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ANALYSIS
The Office accepted that appellant sustained a right elbow strain and bilateral wrist
tendinitis. Appellant claimed that she sustained a recurrence of total disability on April 1, 2000
due to her accepted employment injuries. The Board finds that she did not submit sufficient
medical evidence to establish such a recurrence of total disability.
Appellant submitted a July 7, 2000 report in which Dr. Williamson-Kirkland, an
attending Board-certified physical medicine and rehabilitation physician, indicated that he could
not define whether she had a “specific pathology” but noted that appellant appeared to have mild
arthritis around her elbows despite having full range of motion. This report, however, is of
limited probative value on the relevant issue of the present case in that it does not contain an
opinion that appellant sustained a recurrence of total disability on or after April 1, 2000 due to her
accepted employment injuries.4 Moreover, Dr. Williamson-Kirkland did not provide any
indication that appellant’s arthritis was employment related. He suggested that she had some
form of emotional reaction to her work or a fear of losing her job which affected her physical
condition, but appellant has not filed a claim alleging a work-related emotional condition and the
evidence of record does not otherwise establish the existence of such a condition.5
In May and June 2002 reports, Dr. Nimlos, an attending Board-certified preventive
medicine physician, diagnosed bilateral wrist tendinitis, left triangular fibrocartilage complex
tear and bilateral medial and lateral epicondylitis and indicated that these conditions were related
to appellant’s repetitive work duties. He also provided permanent impairment ratings for
appellant’s upper extremities based on limited motion and sensory loss of the wrists and elbows.
Although he indicated that appellant had permanent residuals of her accepted employment
injuries, Dr. Nimlos did not provide a clear opinion that these conditions caused total disability
commencing April 1, 2000. At the time she stopped work, appellant was performing limited
duties at the employing establishment and Dr. Nimlos did not indicate that she could not perform
these duties. Moreover, the Office has not accepted that appellant sustained a work-related left
triangular fibrocartilage complex tear, bilateral medial epicondylitis or bilateral lateral
epicondylitis and Dr. Nimlos provided no explanation why these conditions might be related to
her work.6

4

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
5

Dr. Williamson-Kirkland did not identify which aspects of work at the employing establishment caused
appellant to experience stress and his assessment of her emotional state and ability to work appears to have been
based mostly on appellant’s complaints rather than any objective findings on examination or diagnostic testing.
6

In the later half of 2001, Dr. Posch, an attending Board-certified family practitioner, diagnosed these same
conditions, but he did not indicate that they were work related. In June 2003 Dr. Nimlos suggested that appellant
had disability due to a sleep disorder or an anxiety-related dizziness condition, but appellant has not filed any claim
alleging such work-related conditions.

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For these reasons, appellant has not shown that a change in the nature and extent of her
injury-related condition caused total disability. She also has not alleged or otherwise shown a
change in the nature and extent of her light-duty job requirements.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related recurrence of total disability on or after April 1, 2000.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 15, 2006 decision is affirmed.
Issued: July 23, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

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