United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
East Orange, NJ, Employer
__________________________________________

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

Docket No. 12-884
Issued: April 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2012 appellant, through her attorney, filed a timely appeal from a
December 15, 2011 merit decision of the Office of Workers’ Compensation Programs’ (OWCP)
hearing representative which denied authorization for spinal surgery. 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 this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
spinal surgery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 9, 2008 appellant, then a 50-year-old nursing assistant,
sustained injuries to her neck and lower back when she turned to change a patient and
experienced pain in her back. She stopped work on January 10, 2008. Appellant’s claim was
accepted for lumbosacral sprain and cervical spasm and expanded to include cervical and lumbar
disc herniation. She returned to light duty and worked intermittently until she stopped work
again on March 21, 2011.2
On February 5, 2010 appellant submitted a request to undergo a lumbar laminectomy. In
a February 20, 2010 report, the district medical adviser noted that he reviewed the medical
records, including the statement of accepted facts. He noted that a May 13, 2008 magnetic
resonance imaging (MRI) scan revealed herniations at C5 and C6 with subligamentous
herniations and an annular tear at the L4-5 segment. The district medical adviser concluded that
appellant suffered from severe lumbosacral radiculopathy and reported that the requested
surgical procedures were reasonable and appropriate under the circumstances. On February 24,
2010 OWCP approved the request for laminectomy surgery, low back disc surgery and spinal
disc surgery. It was scheduled for March 10, 2010. In a March 8, 2010 report, Dr. Sanford
Fineman, a Board-certified neurosurgeon, noted that he rescheduled appellant’s surgery for the
end of April because she requested to postpone surgery until she finished nursing school.
In a January 10, 2011 report, Dr. Allen S. Glushakow, a Board-certified internist, noted a
date of injury of January 8, 2008 and related appellant’s complaints of numbness in her left arm,
neck and back pain and left-sided sciatica. Upon examination, he observed cervical tenderness,
lumbosacral tenderness with some guarding and decreased sensation over the left leg compared
to the right. No spasms in the neck were noted. Straight leg test was positive to 45 degrees on
the left and 50 degrees on the right. Dr. Glushakow also reported decreased sensation over the
left leg compared to the right and left ankle dorsiflexors weaker on the left than the right. He
reviewed an MRI scan report and noted herniated disc at L4-5 with pressure on the foramen.
Dr. Glushakow wanted to schedule endoscopic back surgery at L4-5 on the left.
On January 21, 2011 appellant submitted a request for authorization for decompression of
spinal cord, injection for spinal disc, injection of foramen epidural shots, and removal of part of
the lumbar vertebra.
On January 27, 2011 OWCP referred appellant’s claim to a district medical adviser to
determine whether the requested procedures were causally related to and medically necessary to
treat her accepted conditions. In a February 5, 2011 report, Dr. Andrew A. Merola, a Boardcertified orthopedic surgeon and district medical adviser, approved the procedures for
decompression of spinal cord (procedural code 63056) and foramen epidural injections but did
not authorize removal of part of her lumbar vertebra (procedural code 22102). He indicated that
procedure No. 22102 for removal of part of the lumbar vertebra was part of procedure No. 63056
2

On March 28, 2011 appellant filed a recurrence claim alleging that on March 21, 2011 she sustained a
recurrence of her neck and back conditions when she was unable to lift, bend or push. Because OWCP had not
issued a decision regarding her recurrence claim before the filing of this appeal, the Board does not have jurisdiction
over the recurrence issue in this case.

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for decompression of the spinal cord. The medical adviser stated that the procedure for removal
of part of the lumbar vertebra was not standard treatment for lumbar radiculopathy. He
explained that this procedure was already taken into consideration under procedure No. 63056
for spinal decompression. The medical adviser opined that removal of the part of the lumbar
vertebra was an attempt to unbundle codes and procedures.
On March 4, 2011 OWCP authorized appellant’s request for decompression of the spinal
cord and foraminal epidural injections. It also informed appellant that the district medical
adviser did not authorize surgery for removal of part of the lumbar vertebra and advised her that
she had 30 days to respond to the district medical adviser’s report.
In a March 22, 2011 report, Dr. Glushakow noted a date of injury of January 8, 2008 and
related appellant’s complaints of severe neck and back pain and numbness in the left arm. Upon
examination, he observed cervical tenderness, marked limitation in range of motion in her neck,
and marked lumbosacral tenderness and spasm. The compression test was negative.
Dr. Glushakow diagnosed lumbar radiculopathy with herniated disc. He indicated that he
wanted to schedule endoscopic surgery at L4-5 in the left.
In a March 29, 2011 attending physician’s report, Dr. Glushakow noted appellant’s
diagnoses of lumbar radiculopathy and herniated lumbar disc. He requested endoscopic surgery
and indicated that he was waiting for approval. Dr. Glushakow authorized appellant to remain
off work until April 26, 2011.
In an April 14, 2011 report, Dr. Merola provided an accurate history of injury and
reviewed appellant’s records, including the statement of accepted facts. He noted that
Dr. Glushakow’s March 2011 report indicated that he wanted to perform a foraminotomy and
transforaminal steroid injection along with the other surgical procedures previously requested.
Dr. Merola reported that a foraminotomy was part of transforaminal decompression of the
neurological elements and was irrelevant. He explained that he found no intrinsic bony lesions
and neurological compression.
On April 21, 2011 OWCP found that a conflict in medical opinion existed between
appellant’s treating physician and the district medical adviser regarding whether removal of part
of the lumbar vertebra (procedure 22102) was medically necessary to treat appellant’s accepted
conditions. It noted OWCP authorized procedures for decompression of the spinal cord
(procedure 63056) and foramen epidural injections (procedure 64483).
In a May 27, 2011 report, Dr. Howard M. Pecker, a Board-certified orthopedic surgeon
and impartial medical examiner, provided an accurate history of injury regarding the January 9,
2008 employment incident and related appellant’s complaints of neck and back pain every day.
Examination of the cervical spine revealed right and left rotation to 60 degrees, extension to 40
degrees and flexion to 45 degrees. No discrete spinous process, transverse process tenderness
and paravertebral spasms were noted. Examination of the upper extremities revealed decreased
sensation throughout the left upper extremity to pinprick including the chest, back, left side of
the neck and left side of her entire face. No hyperreflexia, wasting or asymmetry was found.
Upon examination of the lumbar spine, Dr. Pecker observed light palpation on the entire left side
of the back and flank area, but no discrete spinous process tenderness, paravertebral spasm or

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discrete flank tenderness. Forward bending was to 60 degrees and right and left bending was to
30 degrees. Dr. Pecker noted that there were no positive neurological findings. He diagnosed
degenerative disc disease of the cervical and lumbar spine. Dr. Pecker reported that decrease in
sensation to pinprick of the entire left side of the body was a medical impossibility for
degenerative disc problems and was a sign of symptom magnification. He explained that
appellant’s subjective complaints, physical examination and MRI scan findings did not match.
Dr. Pecker concluded that removal of part of the lumbar vertebra was not medically necessary
for the accepted conditions of lumbosacral sprain, cervical spasm, displacement of cervical
intervertebral disc and displacement of lumbar intervertebral disc. He stated that decompression
of the spinal cord and injection of the foramen epidural were also not indicated for appellant as
appellant had no neurologic deficits, had no evidence of spinal instability and showed signs of
symptom magnification.
In a decision dated June 14, 2011, OWCP denied authorization for appellant to undergo
spinal surgery (codes 22102, 63056 and 64483) based on Dr. Pecker’s impartial medical
examiner report which established that the surgical procedures were not medically necessary. It
determined that Dr. Pecker’s report constituted the weight of the medical evidence and properly
resolved the conflict in medical opinion.
On June 20, 2011 appellant, through counsel, submitted a request for an oral hearing,
which was held on October 11, 2011. She was represented by counsel, Thomas Uliase.
Appellant provided an accurate history of the January 9, 2008 employment injury and related her
medical treatment. She stated that she was seen in the emergency room and authorized to return
to light duty after a few days off. Appellant noted that Dr. Glushakow recommended back
surgery and authorized her to remain off work until she had back surgery. Appellant’s counsel
alleged that Dr. Pecker’s impartial medical examination created a conflict in medical opinion as
he believed that no surgery was needed but the district medical adviser authorized the other two
surgical procedures for spinal decompression and epidural injections. He further alleged that
there were many deficiencies with Dr. Pecker’s impartial medical examiner report because the
statement of accepted facts (SOAF) failed to mention that appellant’s back surgery was approved
on February 24, 2010 and March 4, 2011. Accordingly, appellant’s counsel alleged that
Dr. Pecker’s report was based upon an improper or inappropriate factual and medical history and
OWCP should refer appellant’s case to a new impartial medical examiner.
In a July 5, 2011 report, Dr. Glushakow related appellant’s complaints of progressive
sciatica and inability to clean her house and perform activities of daily living. Upon examination
he observed less cervical tenderness and spasm and range of motion restricted by 15 percent.
Examination of the back revealed marked lumbosacral tenderness and spasm. Flexion was
present only in the 50 degrees. Lateral rotation, flexion and extension were decreased by 33
percent. Straight leg raise was positive at 50 degrees on the left and 55 degrees on the right.
Dr. Glushakow diagnosed herniated lumbar disc at L4-5 with radiculopathy and cervical
radiculitis. He opined that appellant needed endoscopic surgery and strongly protested
OWCP’s decision denying authorization of surgery. Dr. Glushakow stated that performing a
foraminotomy was an integral part of the procedure in order to take the pressure of the L5 nerve
and reported that procedure 22102 was necessary because it required extra instrumentation.

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In an August 26, 2011 report, Dr. Glushakow noted appellant’s January 9, 2008
employment injury and provided a history of her medical treatment. He stated that he requested
endoscopic surgery, specifically codes 63056, 62290, 372295, 64483 and 22102, but the code for
22102 was not authorized. Dr. Glushakow explained that appellant still had neurologic
symptoms and the endoscopic surgery was essential for relief of her pain.
In reports dated October 4 and November 1, 2011, Dr. Glushakow stated that appellant
was unable to work due to left-sided sciatica. He observed less cervical tenderness and spasm
and noted that appellant’s range of motion in her neck was restricted by 12 percent. Spurling’s
test was positive and straight leg raise testing was positive at 45 degrees on the left and 50
degrees on the right. Examination of the back revealed flexion present to 60 degrees.
Dr. Glushakow also observed decreased sensation over the lateral aspect of the left ankle. He
diagnosed herniated lumbar disc, L4-L5 with radiculopathy and cervical radiculitis.
By decision dated December 15, 2011, an OWCP hearing representative affirmed the
June 14, 2011 decision denying appellant’s request for spinal surgery. It determined that
Dr. Pecker’s impartial medical examiner’s report properly represented the weight of the medical
evidence.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening in the amount of monthly compensation.3 In interpreting the section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.4 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.5 Abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.6
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.7 In cases
3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

W.T., Docket No. 08-812 (issued April 3, 2009); A.O., Docket No. 08-580 (issued January 28, 2009).

5

D.C., 58 ECAB 629 (2007); Mira R. Adams, 48 ECAB 504 (1997).

6

L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).

7

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

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where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.8
ANALYSIS
OWCP accepted that appellant sustained a lumbosacral sprain, cervical spasm, and
cervical and lumbar disc herniations. In a January 10, 2011 report, Dr. Glushakow, appellant’s
treating physician, conducted an examination and recommended appellant undergo endoscopic
back surgery at L4-5 on the left to treat her disc herniations. On January 21, 2011 appellant
submitted a request for authorization for decompression of spinal cord, injections for spinal disc
and epidural shots and removal of part of the lumbar vertebra. In a February 5, 2011 report,
Dr. Merola, the district medical adviser, approved the procedures for decompression of spinal
cord and spinal injections but did not authorize the procedure for removal of part of the lumbar
vertebra. He disagreed with Dr. Glushakow’s findings and explained that removal of part of the
lumbar vertebra, procedure No. 22102, was part of the procedure for decompression of the spinal
cord, procedure No. 63056. On March 4, 2011 OWCP approved appellant’s request for
decompression of the spinal cord and spinal injections. On April 21, 2011 it found that there was
a conflict in medical opinion between Drs. Glushakow and Merola regarding whether removal of
part of the lumbar vertebra, procedure No. 22102, was medically necessary to treat appellant’s
accepted conditions. OWCP referred appellant to Dr. Pecker, the impartial medical examiner, to
resolve this conflict.
In a May 27, 2011 report, Dr. Pecker reviewed appellant’s medical history and conducted
an examination. He disagreed with appellant’s treating physician and stated that her subjective
complaints, physical examination and MRI scan findings did not match. Dr. Pecker concluded
that removal of part of the lumbar vertebra was not medically necessary for the accepted
conditions of lumbosacral sprain, cervical spasm, and displacement of cervical and lumbosacral
intervertebral discs and stated that decompression of the spinal cord and spinal injections were
also not indicated for appellant. The Board finds that OWCP properly found that Dr. Pecker’s
referee opinion constituted the weight of the medical evidence to establish that removal of part of
the lumbar vertebra was not medically necessary to treat appellant’s accepted conditions. He
reviewed appellant’s records, including the statement of accepted facts and conducted an
examination. Dr. Pecker did not find any positive neurological findings and determined that
decrease in sensation to pinprick of the entire left side of the body was a medical impossibility
for degenerative disc problems and was a sign of symptom magnification. His opinion is
sufficiently probative, rationalized and based upon a proper factual background. Thus, OWCP
properly accorded his opinion the special weight of an impartial medical examiner.9 Based on
Dr. Pecker’s referee medical opinion, OWCP did not abuse its discretionary authority by denying
appellant’s request for removal of part of the lumbar vertebra.
Following the June 14, 2011 decision, appellant requested an oral hearing and submitted
additional medical reports from Dr. Glushakow. He provided examination findings and stated
8

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

9

Supra note 8; see also Gary R. Seiber, 46 ECAB 215 (1994).

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that endoscopic surgery was essential to relieve appellant’s back pain and neurologic symptoms.
Dr. Glushakow explained that a foraminotomy was an integral part of the procedure to take
pressure off the L5 nerve. He did not, however, further address why the surgical procedure was
medically warranted in light of the findings of Dr. Pecker.
The Board finds that
Dr. Glushakow’s opinion is not sufficient to negate Dr. Pecker’s impartial medical examiner
report as the special weight of the medical evidence because Dr. Glushakow does not provide
adequate medical rationale in support of his opinion that spinal surgery was necessary to treat
appellant’s accepted medical conditions.10
The Board notes, however, that OWCP previously authorized appellant’s request for
decompression of spinal cord and spinal injections on March 4, 2011. At the time appellant was
referred to Dr. Pecker for the impartial medical evaluation no conflict existed in the medical
opinion evidence regarding the necessity for these procedures. In decisions dated June 14 and
December 15, 2011, OWCP denied authorization for removal of part of the lumbar vertebra, as
well as decompression of the spinal cord and spinal injections, based upon Dr. Pecker’s report as
an independent medical examiner resolving a conflict. Dr. Pecker stated that all these procedures
were not medically necessary as appellant had no spinal instability and had no neurologic
deficits. His report was a second opinion rejecting the medical necessity for decompression of
the spinal cord and spinal injections. Dr. Pecker’s report did not resolve a conflict in the medical
evidence, but rather created a conflict as to whether these procedures were medically necessary.
Thus, the Board finds that OWCP improperly found in its December 15, 2011 decision that the
surgical procedures for decompression of the spinal cord and spinal injections should be denied.
Accordingly, the December 15, 2011 decision should be affirmed, as modified.
On appeal, appellant alleges that Dr. Pecker’s impartial medical examination report
should not constitute the weight of the medical evidence because it was based on an inaccurate
statement of accepted facts. He stated that the SOAF should have been amended to include the
fact that the district medical adviser recommended expanding the claim to include lumbar
radiculopathy. The Board finds, however, that while the district medical adviser may have
recommended the expansion of appellant’s claim, OWCP did not formally accept her claim for
lumbar radiculopathy. Accordingly, Dr. Pecker based his opinion on proper factual background.
He properly reviewed appellant’s history and noted the conditions for which her claim was
accepted. Accordingly, Dr. Pecker’s opinion was based on an accurate history and appellant has
not submitted sufficient evidence to demonstrate that Dr. Pecker’s impartial medical examination
should not be entitled to special weight. Thus, the Board finds that OWCP did not abuse its
discretion in denying authorization for removal of partial lumbar vertebra.
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.

10

See R.M., Docket No. 12-332 (issued June 20, 2012).

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CONCLUSION
The Board finds that OWCP did not abuse its discretion to deny authorization for partial
removal of the lumbar vertebra, but should not have denied appellant’s request for
decompression of spinal cord and spinal injections.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: April 2, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 08-370
Issued: October 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 9, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated October 2, 2007, finding that she was not entitled
to a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has any permanent impairment of a scheduled member
entitling her to a schedule award.

FACTUAL HISTORY
This case has been before the Board on four occasions.1 On July 12, 2000 appellant, then
a 39-year-old clerk, filed a traumatic injury alleging that a rest bar collapsed while she was
sitting on it injuring her low back. The Office initially denied appellant’s claim on February 14,
April 7 and June 5, 2000. The Board affirmed the June 5, 2000 decision on July 12, 2001.2 The
Office accepted appellant’s claim for lumbar strain on August 7, 2000. It authorized
compensation benefits on July 13, 2001. The Office accepted the additional conditions of
bilateral sprain of the hip and thigh and aggravation of lumbar degenerative disc disease as
related to appellant’s employment injury. By decision dated July 20, 2001, it terminated
appellant’s compensation benefits only. Appellant repeatedly requested reconsideration of this
decision and the Office denied modification on September 25, 2001, December 11, 2001 and
March 13, 2002. She appealed these decisions to the Board and in a decision dated May 6, 20033
the Board reversed the July 20, 2001 termination finding that the Office had not submitted
sufficient medical evidence to meet its burden of proof to terminate appellant’s compensation
benefits. In a decision dated January 16, 2007, the Board affirmed the Office’s April 18, 2006
decision terminating appellant’s compensation benefits effective December 25, 2005.4 The
Office on April 6, 2006 determined that appellant had forfeited her compensation benefits for the
period July 13, 2004 to August 27, 2005 in the amount of $18,031.15. It ruled that appellant had
received an overpayment in this amount for which she was at fault on September 15, 2006 and
affirmed this decision on reconsideration on December 18, 2006. Appellant requested
reconsideration of this decision and the Office declined to reopen appellant’s claim for
consideration of the merits on May 9, 2007. The Board reviewed these decisions at appellant’s
request and by decision dated May 19, 2008 affirmed the September 15 and December 18, 2006
overpayment decisions as well as the May 9, 2007 nonmerit decision of the Office.5 The facts
and circumstances of the case as set out in the Board’s prior decisions are adopted herein by
reference.
In a report dated August 5, 2005, Dr. Ronnie D. Shade, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and evaluated her back pain radiating to her left
lower extremity for schedule award purposes. He noted that appellant reported mild to moderate
back pain. She demonstrated decreased muscle strength in the left extensor hallicus longus,
extensor digitorum and tibealis anterior. Dr. Shade diagnosed lumbar disc degeneration and
lumbar strain/sprain. He opined that appellant had reached maximum medical improvement on

1

Appellant also appealed a separate claim for an emotional condition which the Office denied on June 5, 2007
and September 8, 2006. The Board affirmed these decisions on December 28, 2007. Docket No. 07-1724 (issued
December 28, 2007).
2

Docket No. 01-79 (issued July 12, 2001).

3

Docket No. 02-1373 (issued May 6, 2003).

4

Docket No. 06-1259 (issued January 16, 2007).

5

Docket No.07-1557 (issued May 19, 2008).

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July 29, 2005. Dr. Shade concluded that appellant had 11 percent impairment of the left lower
extremity due to a Grade 4 impairment of the peroneal nerve.6
Appellant requested a schedule award on March 15, 2007. The District medical adviser
reviewed Dr. Shade’s report on April 25, 2007 and found that this report did not conform with
the A.M.A., Guides. He noted that Dr. Shade did not base appellant’s impairment rating on the
appropriate chapter of the A.M.A., Guides.7 The district medical adviser recommended that the
Office obtain a report from a second opinion physician.
In a report dated August 15, 2007, Dr. Richard N. Brown, a physician Board-certified in
physical medicine and rehabilitation, noted appellant’s history of injury. Appellant’s symptoms
included numbness and weakness in the left leg. Dr. Brown reviewed x-rays of appellant’s spine
and hips and found slight disc space narrowing at L5-S1. He examined nerve conduction studies
and found that these tests were normal. On physical examination Dr. Brown found no evidence
of neuropathy or radiculopathy of the left leg. He diagnosed bilateral greater trochanteric
bursitis. Dr. Brown listed appellant range of motion on the right as 74 degrees of flexion,
0 degrees of extension, 30 degrees of abduction, 20 degrees of adduction, 20 degrees of internal
rotation and 20 degrees of external rotation. On the left appellant demonstrated 70 degrees of
flexion, 0 degrees of extension, 20 degrees of abduction, 15 degrees of adduction, 20 degrees of
internal rotation and 20 degrees of external rotation. Dr. Brown concluded that appellant had
loss of range of motion in her hips of 10 percent on the left and 5 percent on the right.
The District medical adviser reviewed this report on September 10, 2007 and found that
impairments due to sprains and strains were not considered permanent and could not form the
basis for a schedule award. He further found that Dr. Brown’s report did not support a schedule
award due to injury of the spine resulting in impairment of the lower extremity as there was no
evidence of radiculopathy in the lower extremities. The district medical adviser stated, “There is
not any probative medical evidence that justifies impairment award of the lower extremities.”
By decision dated October 2, 2007, the Office denied appellant’s claim for a schedule
award finding that the medical evidence did not support permanent impairment of a scheduled
member.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulation9 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
6

Dr. Shade cited to Tables 17-35, page 549 and 16-11, page 484 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) pertaining to the lower and upper extremities
respectively.
7

A.M.A., Guides, 5th ed, 423-25, Tables 15-15 and 15-18 (2000).

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404 (1999).

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the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.10 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.11
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
claimant is entitled to such an award.12 However, 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 originated in the spine.13
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.14
ANALYSIS
The Office accepted that appellant sustained a lumbar strain, bilateral sprain of the hip
and thigh and aggravation of lumbar degenerative disc disease as a result of her July 12, 2000
traumatic injury claim. Appellant requested a schedule award and submitted a report from
Dr. Shade, a Board-certified orthopedic surgeon, who found that appellant had 11 percent
impairment of the left lower extremity based on impairment of the peroneal nerve due to her
accepted back condition.
As noted above, appellant is not entitled to a schedule award due to any permanent
impairment of her spine, as this is not a scheduled member. However, to the extent that the
weight of the medical evidence establishes that her back injuries resulted in any permanent
impairment of her lower extremity, she may receive a schedule award. As appellant’s accepted
employment injury was to her spine, any permanent impairment resulting from this condition
should be evaluated in accordance with the A.M.A., Guides chapter addressing the spine,
Chapter 15.15 The Office medical adviser properly found that Dr. Shade had not properly
10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
12

George E. Williams, 44 ECAB 530, 533 (1993).

13

Id.

14

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

15

A.M.A., Guides 423-26.

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applied the A.M.A., Guides to his findings on examination and requested that the Office refer
appellant for a second opinion evaluation.
Dr. Brown, a physician Board-certified in physical medicine and rehabilitation, examined
appellant and found that he had no symptoms of radiculopathy during physical examination or
diagnostic testing. He diagnosed bilateral greater trochanteric bursitis. As found by the Office
medical adviser, this report does not support a permanent impairment of the lower extremity due
to spinal injury.
The Board finds that there is an unresolved conflict of medical opinion evidence
regarding appellant’s left lower extremity impairment. Appellant’s attending physician,
Dr. Shade found evidence of nerve impairment in the form of radiculopathy impacting her left
lower extremity, but failed to properly apply the A.M.A., Guides to his findings. The Office’s
second opinion physician, Dr. Brown, found that appellant had no radiculopathy and therefore no
permanent impairment of her lower extremity due to her spine injury.16 The Act provides that if
there is a 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.17 The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion
physician of an Office medical adviser or consultant, the Office shall appoint a third physician to
make an examination. This is called a referee examination and the Office will select a physician
who is qualified in the appropriate specialty and who has had no prior connection with the case.18
On remand, the Office should refer appellant, a statement of accepted facts and a list of
specific questions to an appropriate Board-certified physician to determine the extent of any
permanent impairment of her lower extremities due to her accepted employment injuries. After
this and such other development as the Office deems necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that there is an unresolved conflict of medical opinion evidence
regarding the nature and extent of appellant’s permanent impairment due to her accepted
employment injuries requiring referral to an impartial medical examiner and a de novo decision.

16

The Board notes that as found by the Office, appellant is only entitled to a schedule award for permanent
impairment of a scheduled member, not for a temporary impairment due to a condition such as transient sprains,
strains, tendinitis or bursitis.
17

5 U.S.C. §§ 8101-8193, 8123.

18

20 C.F.R. § 10.321.

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: October 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0153
Issued: May 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 25, 2018 appellant, through counsel, filed a timely appeal from a May 2, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral knee
osteoarthritis causally related to the accepted factors of his federal employment.

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.

FACTUAL HISTORY
On January 19, 2016 appellant, then a 62-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed osteoarthritis in his left knee and bursitis in
his right hip as a result of standing eight hours per day, pushing, pulling, bending, and climbing,
while in the performance of duty. He indicated that he first became aware of his claimed condition
in 2004 and first realized it was caused or aggravated by his federal employment in June 2013.
In a development letter dated February 5, 2016, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish his claim. It advised him of the type
of factual and medical evidence needed and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the necessary evidence. No response was received.
By decision dated April 13, 2016, OWCP found that the noted employment factors
occurred as alleged, but denied appellant’s occupational disease claim, finding that the medical
evidence submitted was insufficient to establish a diagnosed medical condition in connection with
the accepted employment factors.
Appellant, through counsel, requested reconsideration on April 12, 2017. Along with his
request, he submitted a report dated March 16, 2017 from Dr. Derek L. Reinke, a Board-certified
orthopedic surgeon. Dr. Reinke indicated that appellant first presented with left knee pain and
diagnosed medial compartment arthritis of the left knee in 2006 which resulted in a high tibial
osteotomy which was fully successful. He noted an x-ray examination performed on
November 20, 2012 demonstrated advanced medial compartment arthritis bilaterally, which was
confirmed with clinical examination and magnetic resonance imaging (MRI) scan. Dr. Reinke
opined that appellant probably had varus alignment congenitally, which possibly made him more
susceptible to developing osteoarthritic knees. He further noted that appellant’s performance of
his job at the employing establishment required him to stand, walk, and frequently bend and stoop
and over many years had contributed to the bilateral osteoarthritis. Dr. Reinke explained that
appellant’s work activity “would provide” repetitive cartilage stress that, coupled with the factor
of aging, “more likely than not contributed to the worsening of his arthritis.”
By decision dated May 23, 2017, OWCP modified its April 13, 2016 decision, finding that
the medical evidence provided a diagnosed condition, but the claim remained denied because the
medical evidence of record was insufficient to establish causal relationship between the accepted
factors of appellant’s federal employment and his diagnosed conditions. It noted that Dr. Reinke
had not explained with medical rationale how or why his work factors caused or contributed to his
diagnosed conditions.
Appellant, through counsel, requested reconsideration on January 17, 2018 and submitted
a report dated January 4, 2018 from Dr. Reinke. Supplementing his March 16, 2017 report,
Dr. Reinke explained that appellant’s job requirements -- repetitive standing, pushing, pulling,
climbing, and bending eight hours per day -- contributed to his bilateral knee osteoarthritis. He
explained that osteoarthritis of the knees is a repetitive stress injury which is usually the result of
the type of job a person has, typically including a lot of activity that puts stress on the joint such
as kneeling, squatting, or lifting. Dr. Reinke acknowledged that age is also a factor as age affects
the ability of cartilage to heal and that ability decreases as a person gets older. He explained that
appellant’s symptoms increased regarding his complaints of pain and such a worsening of
symptoms is consistent with the x-rays of both knees that demonstrated a progression of the
2

advance of the medial compartment arthritis bilaterally. Dr. Reinke explained that as repetitive
motions wear down protective cartilage at the knee joints, causing bones to rub together, and cause
pain and inflammation. He explained that these actions were the pathophysiologic process
involved in appellant’s osteoarthritis and the forces were sufficiently severe to have led to the need
for bilateral knee replacements.
By decision dated May 2, 2018, OWCP denied appellant’s claim, finding that causal
relationship had not been established. It noted that Dr. Reinke opined that appellant’s work factors
contributed to the diagnosed conditions of bilateral osteoarthritis, but offered no definitive opinion
indicating that factors of his federal employment caused or aggravated his bilateral knee
osteoarthritis.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence required to establish causal
relationship is rationalized medical opinion evidence.7 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

3

In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.9
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim appellant submitted medical reports from his attending physician,
Dr. Reinke. In his March 16, 2017 report, Dr. Reinke opined that appellant’s repetitive standing,
pushing, pulling, climbing, and bending at work caused a worsening of appellant’s symptoms
consistent with a progression of the advance of medial compartment arthritis bilaterally. He
acknowledged appellant’s prior history of a knee injury in 2006 and noted that appellant had
returned to full-duty employment working 8 to 10 hours per day performing repetitive tasks as a
mail carrier. Dr. Reinke explained that appellant’s work activity “would provide” repetitive
cartilage stress that, coupled with the factor of aging, “more likely than not contributed to the
worsening of his arthritis.”
On January 4, 2018 Dr. Reinke provided a supplemental statement in which he addressed,
to a reasonable degree of medical certainty, his opinion on whether appellant’s employment duties
had caused, contributed to, or aggravated appellant’s diagnosed condition of osteoarthritis. He
accurately reported the history of injury, appellant’s prior medical history, and the accepted
employment factors including repetitive standing, pushing, pulling, climbing, and bending for
eight hours a day. Dr. Reinke explained that osteoarthritis of the knees is a repetitive stress injury
which is usually the result of the type of job a person has, typically including a lot of activity that
puts stress on the joint such as kneeling, squatting, or lifting. He acknowledged that age is also a
factor as it affects the ability of cartilage to heal and that ability decreases as a person gets older.
Dr. Reinke explained that as repetitive motions wear down protective cartilage at the knee joints,
causing bones to rub together, and cause pain and inflammation. He explained that these actions
were the pathophysiologic process involved in appellant’s osteoarthritis
Accordingly, the Board finds that Dr. Reinke provided an affirmative opinion on causal
relationship. The Board further finds that Dr. Reinke’s reports, when read together, identified
employment factors which appellant claimed caused his condition, identified findings upon
examination, and explained how the identified employment factors, specifically the repetitive
high-impact work activities, had aggravated appellant’s right knee osteoarthritis. The Board finds
that Dr. Reinke’s opinion, while not sufficiently rationalized to meet appellant’s burden of proof,
is sufficient, given the absence of any opposing medical evidence, to require further development
of the record.10
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

10

See J.G., Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See
also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4

responsibility in the development of the evidence.11 OWCP has an obligation to see that justice is
done.12
The case will be remanded to OWCP for further action consistent with this decision. On
remand, after such further development of the medical record as OWCP deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: May 13, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

11

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
12

See B.C., Docket No. 15-1853 (issued January 19, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Warren, MI, Employer
__________________________________________

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

Docket No. 13-112
Issued: November 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 19, 2012 appellant filed a timely appeal from a September 20, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) denying his reconsideration request
on the basis that it was untimely filed and failed to present clear evidence of error. Because
more than 180 days elapsed since the most recent merit decision dated October 2, 2009 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of his case but has
jurisdiction over the nonmerits pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the basis that it was not timely filed and did not establish clear evidence of error.
On appeal, appellant argued the merits of his claim.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2007 appellant, then a 54-year-old police officer, filed an occupational
disease claim (Form CA-2) alleging that he sustained hearing loss due to noise exposure during
the course of his federal employment. He resigned from the employing establishment effective
May 12, 2007.
By decision dated April 20, 2009, OWCP accepted the claim for sensorineural hearing
loss, left ear.
OWCP referred appellant to an audiologist to determine the nature and extent of his
employment-related hearing loss. In a September 12, 2009 report, its audiologist found that he
had no ratable hearing loss and listed a date of maximum medical improvement of May 17, 2001.
By decision dated October 2, 2009, OWCP found that appellant’s hearing loss was not
severe enough to be considered ratable and he was not entitled to a schedule award.
On January 23, 2012 appellant’s Senator forwarded correspondence pertaining to
appellant’s hearing loss claim. The Senator noted that appellant had undergone recent hearing
loss tests. On February 2, 2012 OWCP responded that appellant should submit any current
medical reports to the district office for consideration of a schedule award. By letter dated
June 11, 2012, a senior claims examiner requested that appellant submit all audiometric testing
he had received in past years. The record reflects that appellant submitted materials pertaining to
audiometric testing obtained at the Department of Veterans Affairs on December 10, 2011 and
treatment on January 11, 2012. He also submitted previous audiometric tests from the
employing establishment. In an August 28, 2012 letter, appellant advised the district office that
he had submitted 28 pages to OWCP in response to the June 11, 2012 correspondence but had
not received a decision.
By decision dated September 20, 2012, OWCP denied appellant’s reconsideration request
on the basis that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
The Board has long recognized that if a claimant’s employment-related hearing loss
worsens in the future, he or she may apply for an additional schedule award for any increased
permanent impairment.2 The Board has also recognized that a claimant may be entitled to a
schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if
causal relationship is supported by the medical evidence of record.3
In Kenneth W. Morgan,4 the Board noted that, in general, a noise-induced sensorineural
hearing loss does not progress after exposure to hazardous occupational noise ceases. However,
2

See Paul R. Reedy, 45 ECAB 488 (1994).

3

See Adelbert E. Buzzell, 34 ECAB 96 (1982); see also supra note 2.

4

28 ECAB 569 (1977).

2

the Board did not enunciate this principle as a general rule but based the particular decision on
the opinions of the medical specialists of record. In Adelbert E. Buzzell,5 the Board cautioned
against an OWCP medical adviser providing a blanket unrationalized statement that hearing loss
does not progress following the cessation of hazardous noise exposure.6
ANALYSIS
The Board finds that OWCP improperly refused to reopen appellant’s claim for further
consideration of the merits under 5 U.S.C. § 8128(a) on the basis that it was not timely filed
within the one-year time limitation period set forth in 20 C.F.R. § 10.607(a) and did not establish
clear evidence of error.7
OWCP accepted that appellant sustained sensorineural hearing loss in the left ear causally
related to his history of noise exposure at the employing establishment. By decision dated
October 2, 2009, it found that he was not entitled to a schedule award on the basis that his
hearing loss was nonratable. Subsequently, appellant submitted a November 4, 2009 appeal
request form and audiograms from the employing establishment dated January 10, 1997 through
December 10, 2011.
As in Paul R. Reedy, the September 20, 2012 decision, treated appellant’s claim as a
request for reconsideration. The Board finds, however, that he was not seeking reconsideration
of the previous determination that his hearing loss was nonratable, but submitted new evidence
contending an increased hearing loss. OWCP’s procedure manual states that if a claimant is
seeking an increased schedule award due to increased impairment and/or additional exposure,
but not contesting the decision or prior award, this should not be treated as a reconsideration
request and OWCP should develop the issue of entitlement to an additional award.8 The Board
has long recognized that if a claimant’s employment-related hearing loss worsens in the future,
he or she may apply for an additional schedule award for any increased permanent impairment.9
The Board has also recognized that a claimant may be entitled to an award for an increased
hearing loss, even after exposure to hazardous noise has ceased, if causal relationship is
supported by the medical evidence of record.10
OWCP did not adjudicate appellant’s entitlement to a schedule award for his claimed
increased hearing loss. The Board finds that the case is not in posture for decision. On remand,
5

Supra note 3. See also Armando Bello, 34 ECAB 1739 (1983) (the Board does not take positions on medical
questions of general application, but relies on the medical evidence in each case).
6

See J.R., Docket No. 08-1008 (issued September 11, 2008). The Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.4(b)(3) notes that if the progression of a noise-induced hearing loss is to
be denied, OWCP’s medical adviser must provide a well-rationalized opinion.
7

See supra note 2.

8

The Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b).

9

Supra note 2.

10

Supra note 3.

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OWCP should obtain a rationalized medical opinion on the issue of causal relationship and issue
a de novo decision on appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: November 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF THE NAVY, AVIATION
SUPPLY OFFICE, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-470
Issued: September 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2009 appellant, through his representative, filed a timely appeal from the
October 7 and December 2, 2009 merit decisions of the Office of Workers’ Compensation
Programs, which applied a 1989 pay rate to his 2009 schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant is entitled to a recurrent pay rate for his schedule award.
FACTUAL HISTORY
On July 26, 1989 appellant, then a 41-year-old carpenter, sustained an injury in the
performance of duty when he felt pain in his right wrist while hammering plastic anchors and
molly bolts into a cinderblock wall. The Office accepted his claim for right wrist tendinitis and
traumatic arthropathy. Appellant received compensation based on an effective pay rate date of
October 6, 1989, the date disability began.

On January 16, 1990 appellant underwent a proximal row carpectomy. He returned to
limited duty on January 29, 1990. On August 1, 1990 the attending physician noted:
“[Appellant] is performing his regular work activities without significant limitations. Minimal
pain. No swelling. At this time [appellant] is discharged from follow up with an excellent result
from his surgical procedure.”
The medical evidence indicates that the surgery served appellant very well in terms of
mobility and function for 14 years. But appellant developed some increased discomfort in 2004.
On June 14, 2005 he underwent arthrodesis of his right wrist with insertion of a plate. On
September 5, 2006 appellant underwent authorized surgery to remove the hardware. The
surgeon certified that he was disabled for work following the hardware removal.
The Office determined that appellant sustained a new period of total disability due to his
right wrist injury and was entitled to compensation for temporary total disability following the
September 5, 2006 surgery. It paid compensation based on an effective pay rate date of
October 6, 1989.
On October 7, 2009 the Office issued a schedule award for a 30 percent impairment of
appellant’s right upper extremity. It based the award on an effective pay rate date of October 6,
1989, the date disability began.
Appellant’s representative requested reconsideration and argued that appellant was
entitled to a recurrent pay rate effective September 5, 2006 because the record clearly established
a recurrence of disability when he underwent surgery. The representative noted that he had
returned to work full time for many years following his 1989 work injury and that authorized
surgery to remove hardware from his wrist represented an accepted recurrence of disability.
On December 2, 2009 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision. It noted that disability began on October 6, 1989 and that he
returned to a full-time limited-duty position on January 29, 1990, a position made available to
accommodate his right wrist partial disability. The Office added that, while performing this
limited-duty position, appellant suffered a left knee injury on April 22, 2002, which the Office
accepted under OWCP File No. xxxxxx204. Appellant stopped work for that injury on
August 19, 2002 and did not return. The Office explained that he was receiving compensation
for a constructed loss of wage-earning capacity for his left knee injury when it determined that he
was entitled to temporary total disability for his September 5, 2006 right wrist surgery.
The Office found that no work stoppage associated with the recurrence of appellant’s
right wrist disability and no pay rate associated with recurrence of disability in September 2006
“because [he] was not working.” It concluded that the correct pay rate was the date disability
began because that was the date appellant stopped work as a result of right wrist disability.
Appellant’s representative argues on appeal that the Office recognizes a recurrence on
September 5, 2006 but has not undertaken to calculate a recurrent pay rate for the schedule
award. “As appellant had returned to work full time for more than six months after October 6,
1989, he was entitled to a [r]ecurrent rate for the September 5, 2006 [r]ecurrence.”

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.2
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3
“Pay rate for compensation purposes” means the employee’s pay, as determined under
5 U.S.C. § 8114, at the time of injury, the time disability begins or the time compensable
disability recurs if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is greater, except as
otherwise determined under 5 U.S.C. § 8113 with respect to any period.4
The Board has defined “regular” employment as “established and not fictitious, odd-lot
or sheltered” and has contrasted it with a job “that was created especially for [appellant].” The
duties of regular employment are covered by a specific job classification and such duties would
have been performed by another employee if the claimant did not perform them. The test is not
whether the tasks the claimant performed during his limited duty would have been done by
someone else, but instead whether he occupied a regular position that would have been
performed by another employee.5
ANALYSIS
Not all recurrences of disability entitle an employee to a recurrent pay rate. Only if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States can the Office consider the employee’s pay rate at the time
compensable disability recurs.
There appears to be no dispute that, compensable disability recurred on or about
September 5, 2006, when appellant underwent surgery to remove the hardware in his right wrist.
The Office determined that he sustained a new period of total disability due to his July 26, 1989
right wrist injury and was entitled to compensation for temporary total disability following the
September 5, 2006 surgery. Whether appellant is entitled to a recurrent pay rate, however,
1

5 U.S.C. § 8102(a).

2

20 C.F.R. § 10.5(f).

3

Id. at § 10.5(x).

4

Id. at § 10.5(s); 5 U.S.C. § 8101(4) (“monthly pay” defined).

5

Jeffrey T. Hunter, 52 ECAB 503 (2001).

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depends on whether this recurrence began more than six months after he had resumed regular
full-time employment with the United States.
Appellant’s representative argues that “appellant had returned to work full time for more
than six months after October 6, 1989.” But the employment to which appellant returned must
be “regular.” The Office indicated that he returned to work in a limited-duty capacity on
January 29, 1990 and continued to work in this limited-duty position until he stopped work in
2002 for an unrelated left knee injury. “[Appellant] stopped working a limited-duty position,
designed to accommodate the limitation which resulted from the right wrist partial disability, to
undergo treatment for a left knee condition that is an unrelated injury accepted under another
claim.”
If appellant never returned to regular employment after October 6, 1989, the date
disability began, he is not entitled to a recurrence pay rate. The record shows that he returned to
limited duty on January 29, 1990. But on August 1, 1990 the attending physician reported that
appellant was performing his regular work activities without significant limitations. Indeed, the
attending physician discharged him from follow up with excellent result from his surgical
procedure.
The Board finds that the record raises a substantial question of whether appellant
resumed regular full-time employment with the United States. Because there is insufficient
evidence to support a finding in the matter, the Board will set aside the Office’s October 7 and
December 2, 2009 decisions on the issue of pay rate and will remand the case for further
development. After such further development as may be necessary to resolve the matter, the
Office shall issue an appropriate final decision on the pay rate to which appellant is entitled for
his October 7, 2009 schedule award.
The Office also argued that there was no work stoppage associated with the September 5,
2006 right wrist surgery because appellant was already off work for his left knee injury. It cited
no authority for the proposition that a recurrent pay rate requires an attendant work stoppage.
Because disability is defined in terms of incapacity to earn and recurrence of disability is defined
in terms of an inability to work, the Board is not persuaded that a work stoppage is necessary for
appellant to be entitled to a recurrent pay rate. Appellant sustained a new period of total
disability due to his right wrist injury and received compensation for temporary total disability
without a work stoppage. So the only issue would appear to be whether this compensable
disability recurred more than six months after he resumed regular full-time employment with the
United States.
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development of the
evidence is warranted to determine whether appellant returned to regular full-time employment
with the United States for purposes of establishing a recurrent pay rate.

4

ORDER
IT IS HEREBY ORDERED THAT the December 2 and October 7, 2009 decisions of
the Office of Workers’ Compensation Programs are set aside on the issue of pay rate. The case
is remanded for further action consistent with this opinion.
Issued: September 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
S.R., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Lancaster, PA, Employer
)
___________________________________________ )
Appearances:
Thomas Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-539
Issued: June 14, 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 December 19, 2006 appellant filed a timely appeal from a July 17, 2006 Office of
Workers’ Compensation Programs’ hearing representative’s decision, which affirmed the
Office’s January 26, 2006 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a seven percent permanent impairment of
his left upper extremity for which he received a schedule award.
FACTUAL HISTORY
On May 4, 2000 appellant, then a 42-year-old letter carrier, filed an occupational disease
claim alleging that he carried his mailbag weighing 35 pounds on one side of his body and it
caused him to have radiculopathy of the left arm. He alleged that he realized the disease was
caused or aggravated by his employment on February 24, 2000. Appellant did not initially stop

work. The Office accepted his claim for aggravation of cervical radiculopathy and appropriate
compensation was provided.1
The Office received several diagnostic reports which included electrodiagnostic studies
dated October 31, 2000 read by Dr. Ernest M. Baran, a Board-certified physiatrist, who noted
that appellant had diffuse left brachial plexopathy and left cervical plexopathy. A March 23,
2000 electromyography (EMG) scan read by Dr. Donald M. McCarren, a Board-certified
neurologist, revealed left C7-8 radiculopathy and no electrical evidence of brachial plexopathy.
A magnetic resonance imaging (MRI) scan dated March 31, 2000, read by Dr. F. Joshua Barnett,
a Board-certified diagnostic radiologist, revealed degenerative changes of the cervical spine at
C3-4 and a disc protrusion at C3-4.
In a report dated July 29, 2004, Dr. Nicholas Diamond, an osteopath, noted appellant’s
history of injury and treatment and utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A., Guides). He provided
examination findings for loss of range of motion, grip strength deficit and sensory deficit
involving the C6, C7 and C8 nerve roots and pain. Dr. Diamond’s findings for range of motion
included a 1 percent impairment for left shoulder flexion and abduction,2 left grip strength deficit
of 10 percent,3 sensory deficit of 6 percent for the left C6 nerve root,4 sensory deficit of 6 percent
for the left C7 nerve root5 and a sensory deficit of 6 percent for the left C8 nerve root.6 He
determined that appellant had an impairment of 26 percent of the left upper extremity.
In a report dated November 8, 2004, an Office medical adviser noted appellant’s history
of injury and treatment and utilized the A.M.A., Guides. He provided findings for range of
motion and sensory deficit/pain. They included two percent for range of motion for shoulder
flexion and abduction.7 The Office medical adviser noted that the C6 nerve root was not
involved and referred to the EMG findings which revealed radiculopathy at C7 and C8 but not
C6. He also referred to section 16.8a of the A.M.A., Guides and noted that impairments due to
decreased strength could not be rated in the presence of decreased motion.8 The Office medical
adviser determined that appellant had a seven percent impairment of the left upper extremity.
On November 18, 2004 appellant claimed a schedule award.

1

The record reflects that appellant stopped his federal employment in July 2002.

2

A.M.A., Guides 476, Figure 16-40 and 477, Figure 16-43.

3

Id. at 509, Figure 16-34.

4

Id. at 476, Figure 16-40.

5

Id.

6

Id.

7

See supra note 1.

8

A.M.A., Guides 424, Table 15-15 and 15-17.

2

On December 7, 2004 the Office granted appellant a schedule award for a seven percent
impairment of the left upper extremity. The award covered a period of 21.84 weeks from July 29
to December 28, 2004.
By letter dated December 9, 2004, appellant’s representative requested a hearing.
On September 13, 2005 the Office hearing representative determined that the case was
not in posture for hearing. The Office hearing representative determined that an unresolved
conflict remained between Dr. Diamond and the Office medical adviser regarding the nature and
extent of appellant’s left upper extremity impairment. In particular she noted that the physicians
disagreed with regard to whether the evidence supported the presence of sensory deficit or pain
involving the nerve root at C6. The Office hearing representative remanded the case, for referral
to an appropriate Board-certified specialist for an impartial medical evaluation to resolve the
conflict.
By letter dated September 22, 2005, appellant’s representative requested that appellant be
allowed the opportunity to participate in the selection of the impartial medical adviser.
In a September 30, 2005 letter, the Office advised appellant’s representative that selection
of the impartial medical specialist was made on a strict rotational basis using appropriate medical
directories. The Office informed appellant and his representative that, once the selection was
made, they would be advised of the time, date and place of the examination and allowed the
opportunity to inform the Office of any disagreement and to provide any evidence in support
thereof.
On December 12, 2005 the Office referred appellant along with a statement of accepted
facts and the medical record to Dr. Edward Resnick, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion between Dr. Diamond and the
Office medical adviser regarding the resolution of appellant’s accepted condition and work
restrictions.
On December 20, 2005 appellant’s representative requested a copy of the letter and the
statement of accepted facts sent to Dr. Resnick and the reports which were referred to him.
In a January 3, 2006 report, Dr. Resnick noted appellant’s history of injury and treatment
and conducted an examination. He noted that all cervical motions were smooth and painless and
that appellant did not have any tenderness in the cervical, trapezius, thoracic or shoulder area.
Dr. Resnick also found that appellant had full range of motion of the thoracic and lumbar spine
in all directions. He stated that examination of appellant’s arms was negative with full motion of
all joints and with negative neurological testing including deep tendon reflexes, motor power and
pinprick sensation throughout both upper extremities. Dr. Resnick explained that appellant had
full, unrestricted, symmetrical range of motion of all joints of both arms, particularly including
all ranges of motion of both shoulders. He noted that appellant’s motions were painless.
Appellant’s pinprick sensation, deep tendon reflexes and motor power were all normal,
symmetrical and equal in both arms. Dr. Resnick also noted that he had reviewed diagnostic
reports which included an EMG/NCV on October 31, 2000 which contained findings consistent

3

with incomplete sensory involvement of the left brachial plexus and suggestion of possible
cervical sensory radiculopathy. He also advised that an MRI scan of the cervical spine revealed
degenerative changes at C3-4 and C4-5. Dr. Resnick noted that there did not appear to be any
significant cord or root impingement and determined that appellant had a negative objective
orthopedic examination. He noted that appellant had probable cervical disc degenerative
syndrome with left cervical radiculopathy which was inactive. Dr. Resnick noted that appellant
complained of a “constant discomfort” but that he was not under active treatment and selfmedicated. He also noted that appellant currently worked as a security guard and worked as a
bus driver in 2004. Dr. Resnick explained that appellant’s physical examination did not reveal
any significant physical impairment and noted that appellant’s complaints were purely
subjective. He added that appellant’s symptoms “may be compatible with an underlying disc
degenerative syndrome.” Dr. Resnick added that, “[i]f there was any exacerbation or
aggravation of such a syndrome in connection with this man’s prior occupation of later carrier, in
my opinion this has cleared by this time and I see no present evidence of either aggravation or
exacerbation.” He opined that appellant reached maximum medical improvement in 2004 and
was capable of full-time work. Dr. Resnick concluded that, “in the absence of objective physical
findings,” appellant had no physical impairment of the left arm.
By decision dated January 26, 2006, the Office found that appellant was not entitled to an
increased schedule award as the weight of the medical evidence rested with Dr. Resnick, who
found that appellant did not have objective findings supporting physical impairment.
By letter dated January 30, 2006, appellant’s representative requested a hearing, which
was held on May 26, 2006.9
By decision dated July 17, 2006, the Office hearing representative affirmed the Office’s
January 26, 2006 decision. The Office hearing representative noted that Dr. Resnick’s opinion
constituted the weight of the evidence. The hearing representative also noted that the evidence
supported that Dr. Resnick was properly selected as an impartial medical examiner in accordance
with the Office selection process.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act10 set forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.11 The Act, however, does not specify the manner by which the
9

During the hearing appellant’s representative alleged that he could not determine whether the impartial medical
examiner was properly selected. He also alleged that his report should not carry the weight because he did not show
any measurements for range of motion. Appellant’s representative also alleged that the physician relied upon a
report which he described as an “EMG/NCV” study of October 31, 2000. However, he noted that it was in fact a
“somoto sensory evoked potential testing” report dated October 31, 2000. Appellant’s representative also noted that
there was an EMG study which was done on March 23, 2000, which reflected abnormal results and evidence of C78 radiculopathy on the left side.
10

5 U.S.C. §§ 8101-8193.

11

5 U.S.C. § 8107.

4

percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.12 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.13
Furthermore, the Federal Employees’ Compensation Act14 provides that, if there is
disagreement between the physician making the examination for the Office and the employee’s
physician, the Office shall appoint a third physician who shall make an examination.15 In cases
where the Office has referred appellant to an impartial medical examiner to resolve a conflict in
the medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.16
ANALYSIS
Appellant’s claim was accepted for aggravation of cervical radiculopathy. After the
Office paid appellant a schedule award for seven percent impairment of the left arm, based on
the report of an Office medical adviser, the Office determined that a conflict of medical opinion
existed between Dr. Diamond, appellant’s treating physician, who opined that appellant had an
impairment of 26 percent to the left upper extremity and the Office medical adviser. Therefore,
the Office properly referred appellant to an impartial medical examiner, Dr. Resnick, a Boardcertified orthopedic surgeon.
In a January 3, 2006 report, Dr. Resnick determined that all cervical motions were
smooth and painless, that appellant did not have any tenderness in the cervical, trapezius,
thoracic or shoulder area and that appellant had painless and full unrestricted range of motion of
the thoracic and lumbar spine and all joints of both upper extremities and both shoulders in all
directions. He also found that neurological testing was negative, which included deep tendon
reflexes, motor power and pinprick sensation throughout both arms. Dr. Resnick also noted that
he had reviewed diagnostic reports including an EMG/NCV on October 31, 2000, which showed
an incomplete sensory involvement of the left brachial plexus and possible cervical sensory
radiculopathy as well as an MRI scan of the cervical spine which showed degenerative changes
at C3-4 and C4-5 with significant cord or root impingement. He concluded that appellant’s
orthopedic examination was negative and that he had probable cervical disc degenerative
syndrome with left cervical radiculopathy which was inactive. Dr. Resnick noted that appellant
complained only of a “constant discomfort” but that he was not under active treatment and selfmedicated and that appellant’s physical examination did not reveal any significant physical
impairment and noted that appellant’s complaints were purely subjective. He noted that
appellant’s symptoms “may be compatible with an underlying disc degenerative syndrome.”
12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

14

5 U.S.C. §§ 8101-8193, 8123(a).

15

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

16

Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

Dr. Resnick opined “in the absence of objective physical findings,” appellant had no physical
impairment of the left arm.
The Board finds that Dr. Resnick’s January 3, 2006 report is sufficiently well rationalized
and based upon a proper factual background such that it is entitled to special weight in
establishing that appellant did not have any greater impairment. He provided an extensive
review of appellant’s medical history, reported his examination findings and determined that
there were no objective findings to correspond with appellant’s subjective complaints.
Dr. Resnick found no objective evidence of any work-related impairment. He gave a reasoned
opinion that despite a myriad of subjective complaints there were no current objective findings of
residuals of the accepted work injury. Dr. Resnick answered questions posed by the Office and
reiterated that his examination and review of the medical records provided no objective basis on
which to reveal any significant physical impairment and advised that appellant’s complaints were
purely subjective. In these circumstances, the Office properly accorded special weight to the
impartial medical examiner’s January 3, 2006 findings.
When an impartial medical examiner is asked to resolve a conflict in medical evidence,
his opinion, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.17 The Board finds that Dr. Resnick’s report represents the weight of the
medical evidence and established that appellant did not have any objective findings and he was
not entitled to a greater impairment.
Accordingly, the Board finds that the evidence supports that appellant has no more than
seven percent permanent impairment of the left upper extremity.
On appeal, appellant’s representative asserted that Dr. Resnick’s report was insufficient
to be entitled to carry the special weight of the evidence as his report incorrectly referred to an
EMG as being performed on October 31, 2000 when it was actually performed on March 23,
2000 and failed to note the report. However, the record does not reflect that Dr. Resnick’s report
was incorrect. While he may have inadvertently referred to the date or title of the diagnostic
report, he properly referred to and noted the findings contained therein. The Board finds that this
argument is without merit. Likewise, appellant’s argument that Dr. Resnick’s report was flawed
because he did not reference the A.M.A., Guides, is also without merit since Dr. Resnick opined
that appellant had no objective physical findings on which to base any permanent impairment.
As appellant’s physical examination was normal, there would be no need to apply specific
provisions of the A.M.A., Guides.
Appellant’s representative also asserted that the Office failed to select a referee physician
in accordance with the independent rotational selection process. However, he submitted no
evidence to support his assertion that any particular aspect of the selection created bias. The
Board has held that an impartial medical specialist properly selected under the Office’s rotational
procedures will be presumed unbiased and the party seeking disqualification bears the substantial
burden of proving otherwise; mere allegations are insufficient to establish bias.18 Appellant’s
17

See footnote 13 supra.

18

See William Fidurski, 54 ECAB 146 (2002).

6

mere allegation that Dr. Resnick was not properly selected does not establish the fact. Therefore,
the Board finds this argument to be without merit.
CONCLUSION
The Board finds that appellant has no more than a seven percent impairment of the left
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 17, 2006 is hereby affirmed.
Issued: June 14, 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

7