United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE NAVY, HUMAN
RESOURCES SERVICE CENTER -SOUTHWEST, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-298
Issued: February 24, 2014

Case Submitted on the Record

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

JURISDICTION
On November 25, 2013 appellant, through counsel, timely appealed the October 29, 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.
ISSUE
The issue is whether appellant sustained a recurrence of disability from October 3, 2011
to March 22, 2012.
FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 61-year-old former
administrative support assistant, injured her lower back lifting boxes at work on
1

5 U.S.C. §§ 8101-8193 (2006).

2

Docket No. 12-1034 (issued October 9, 2012).

September 5, 2000. OWCP accepted her claim for herniated lumbosacral disc, postlaminectomy
syndrome and lumbosacral intervertebral disc disorder/spondylosis.3
In May 2011, appellant returned to work as a part-time, limited-duty clerk and OWCP
compensated her based on a loss of wage-earning capacity (LWEC).4 On October 3, 2011 she
stopped work entirely and has not returned. Following her work stoppage, appellant continued to
receive regular compensation payments for partial disability in accordance with OWCP’s
previous LWEC determination. Effective March 23, 2012, the employing establishment
formally removed appellant because of her work-related disability. OWCP ultimately paid
wage-loss compensation for total disability retroactive to appellant’s March 23, 2012 removal.
Appellant seeks compensation for total disability (Form CA-7) for the period October 3,
2011 to March 22, 2012. She claimed that the employing establishment sent her home on
October 3, 2011 because it was no longer able to accommodate her work restrictions.
Appellant’s counsel argues that she is entitled to temporary total disability beginning October 3,
2011 due to the employing establishment’s withdrawal of her limited-duty clerk assignment.
The part-time, limited-duty clerk position appellant performed from May 9 to October 3,
2011 was based on limitations imposed by her treating physician, Dr. Jean-Jacques Abitbol, a
Board-certified orthopedic surgeon. In a January 17, 2011 work capacity evaluation (OWCP5c), Dr. Abitbol advised that appellant was able to work 4 hours per day with a 25-pound, 30minute lifting restriction. Appellant could also sit for 4 hours and walk and stand for 30 minutes
each. Additionally, Dr. Abitbol precluded all twisting and he limited her to 10 minutes of
kneeling and climbing.
The limited-duty clerk position description indicated that appellant would be assigned a
clerical position, sedentary in nature with no specific or unusual physical requirements. She was
expected to work four hours per day in an office environment and was allowed to sit and stand as
needed. The position description further indicated that appellant would be assigned simple tasks
of a nonrepetitive nature, such as answering the telephone, taking messages, greeting and
directing customers/visitors, assembling office material binders, reviewing correspondence,
shredding documents, ordering supplies and light typing. The limited-duty clerk position
description specifically incorporated Dr. Abitbol’s January 17, 2011 physical restrictions.
Moreover, appellant was allowed to change positions, move about and alter her activities

3

Appellant underwent OWCP-approved lumbar surgeries on March 20, 2002, November 14, 2004 and
June 19, 2006.
4

Appellant was formerly a full-time employee, so when she resumed part-time work (20 hours/week) on May 9,
2011, OWCP compensated her for what amounted to a 65 percent loss in wage-earning capacity. By decision dated
September 13, 2011, OWCP found that her actual earnings as a part-time clerk fairly and reasonably represented her
wage-earning capacity. When the case was last on appeal, the Board reversed OWCP’s finding that appellant’s
actual earnings as a part-time clerk fairly and reasonably represented her wage-earning capacity. The Board’s
October 9, 2012 decision is incorporated herein by reference. Since the prior appeal, OWCP has amended its
procedure manual to permit wage-earning capacity determinations based on part-time reemployment of former fulltime employees. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity
Based on Actual Earnings, Chapter 2.815.5c(1)(b) (June 2013).

2

throughout the day, as needed. The position description also included a diagram of appellant’s
workstation.5
Following her May 2011 return to work, appellant saw Dr. Abitbol on August 25 and
September 1, 2011. His progress reports did not reflect any particular changes in appellant’s
work status.
On September 6, 2011, appellant’s supervisor, Jorge Mercado, issued a letter of
reprimand for failure to adhere to her physical restrictions as outlined in Dr. Abitbol’s
January 17, 2011 OWCP-5c. Mr. Mercado identified three instances where appellant fell at
work. The first incident occurred on June 6, 2011 when she fell to the grounds due to numbness
in her legs. On June 17, 2011 appellant reportedly sat too long causing numbness in her legs.
When she stood up, she fell. The third incident occurred on July 21, 2011 when appellant bent
down to pick up official personnel folders and fell. Mr. Mercado indicated that on a number of
occasions appellant had been counseled to adhere to her noted physical limitations, but she
continued to work outside those limitations. He admonished appellant for working outside her
limitations and advised her that she was expected to comply with the work restrictions.
Mr. Mercado also instructed appellant to request assistance as necessary to accomplish her
assigned duties.
In a September 20, 2011 report, Dr. Abitbol reviewed appellant’s recent lumbar magnetic
resonance imaging (MRI) scan which revealed postlaminectomy changes from L4 to S1. He saw
no evidence of recurrent stenosis. Appellant’s prior x-rays showed her hardware to be in good
position and there was a solid fusion. Dr. Abitbol assured her that there was no new instability
or stenosis or adjacent changes in her lumbar spine. He advised appellant to continue with home
exercises and suggested a pain management consultation. Dr. Abitbol did not specifically
comment on her work status.
Dr. Franklin H. Dulin, a Board-certified physiatrist, examined appellant on
September 21, 2011. His involvement with her lumbar condition dated back as early as
October 2000. Dr. Dulin noted a history of a work-related back injury on September 5, 2000,
and three subsequent lumbar surgeries in 2002, 2004 and 2006. He also noted that, since
returning to modified work this past summer, appellant fell on at least three occasions.
Appellant’s work restrictions reportedly included no prolonged standing, walking or sitting and
she was to avoid repetitive bending and stooping. Additionally, Dr. Dulin noted a limited lifting
capacity of 25 pounds. Appellant’s recent falls at work were reportedly due to loss of balance
and loss of lower extremity muscle strength. She reported persistent back pain that complicated
her standing balance. Appellant also reported a loss of feeling/sensation at the bottom of her
feet, right greater than left. On physical examination, she exhibited poor tolerance for prolonged
standing and walking and poor standing balance. Dr. Dulin also noted appellant’s use of a
walker. Appellant was unable to balance herself with one leg or do deep knee bending and sitsquat. However, she was able to stand with stand-by-assist. There was also evidence of lower
extremity muscle weakness and loss of sensation. Dr. Dulin’s diagnoses included, inter alia,
history of lumbar disc injury from repetitive lifting and multilevel lumbar disc derangement with
lumbosacral nerve root injury, status postlumbar interbody fusion at L4-5, status post L5-S1
5

On March 25, 2011 OWCP advised appellant that it considered the part-time, limited-duty clerk position
suitable in accordance with Dr. Abitbol’s January 17, 2011 OWCP-5c.

3

fusion, residual chronic low back pain and bilateral lower extremity peripheral neuropathy at
L5-S1.
Dr. Dulin explained that appellant’s frequent falls were not surprising due to her
development of peripheral neuropathy secondary to severe scar formation at the surgical site
from repetitive lumbar spine procedures. All of appellant’s current symptomatology stemmed
from her September 5, 2000 work-related lumbar disc injury and being subjected to several
failed lumbar spine surgical procedures. As a result of the surgeries, she formed fibrotic scarring
and consequently developed peripheral neuropathy, numbness and weakness of her lower
extremity and loss of balance. Dr. Dulin indicated that appellant achieved maximum medical
improvement (MMI) and should be declared permanently disabled requiring a walker for safe
ambulation. He further indicated that appellant was totally incapable of performing her
designated job description. Dr. Dulin explained that appellant was always at risk of falling and
required a walker to maintain her balance. Appellant also needed to wear a back brace.
Appellant provided her supervisor a copy of Dr. Dulin’s September 21, 2011 report. She
met with Mr. Mercado on the morning of October 3, 2011 to discuss Dr. Dulin’s findings. Also
present was Teresa Salcedo, the department head, who reportedly told appellant there was no
way she could remain at work given Dr. Dulin’s finding that she was 100 percent disabled.
Appellant was to be placed on leave-without-pay (LWOP) status for at least 30 days, and
Ms. Salcedo reportedly encouraged her to resign. Appellant, however, expressed interest in
applying for retirement instead. After the meeting, she cleared her desk, packed her belongings
and departed around 9:30 a.m. Ms. Salcedo acknowledged that appellant had been placed in
LWOP status effective October 3, 2011 in order to accommodate her latest documented medical
condition.6
Regarding appellant’s need for a walker, Mr. Mercado indicated that she initially carried
a cane with her, but he never observed appellant actually depending on it to ambulate. On or
about August 16, 2011, appellant began bringing her walker to work and occasionally she would
only bring her cane. Based on Mr. Mercado’s observations, it did not appear that appellant used
either the walker or cane to support her weight. Appellant also claimed that the clerk position
required lifting in excess of 25 pounds. Mr. Mercado indicated that appellant had always been
assigned work within her restrictions. Her main assignment was to swipe a barcode pen across a
personnel file, then place the files in a basket so they could be filed later. Mr. Mercado’s
sampling of six personnel files revealed an average weight of 1 pound, 12 ounces per file.7
Dr. Abitbol saw appellant in follow up on October 20 and November 8, 2011. His
progress notes for those dates did not indicate a change in appellant’s work status.
In a December 20, 2011 report, Dr. Dulin reiterated that, due to a series of lumbar
surgeries, appellant developed marked scar formation about the nerve root and surgical site
resulting in peripheral neuropathy affecting the strength of her hip and leg muscles. As a
6

As noted, appellant was removed from service effective March 23, 2012 due to her medical disability.
Ms. Salcedo authored the February 10, 2012 notice of proposed separation which specifically referenced Dr. Dulin’s
September 21, 2011 findings. The proposal also noted appellant’s LWOP status effective October 3, 2011.
7

In a December 20, 2011 statement, the employing establishment indicated that the sample included personnel
files ranging in weight from 0.5 ounces to 3 pounds, 6 ounces.

4

consequence, her standing and walking balance deteriorated. Dr. Dulin noted that appellant had
not improved since his last examination. Appellant continued to use a cane to assist in balance
and walking and had poor tolerance for prolonged standing/walking and poor standing balance.
Regarding her ability to return to her previous occupation, Dr. Dulin explained that frequent
standing and walking as part of her job, placed appellant at potentially high risk of losing her
balance and falling due to her peripheral neuropathy. He recommended a different occupation;
one that did not require standing and walking. Otherwise, Dr. Dulin advised that appellant seek
early retirement.
An April 2, 2012 bilateral lower extremity electromyography and nerve conduction study
(EMG/NCV) revealed no evidence of peripheral neuropathy or compression neuropathy.
However, the needle EMG examination results were abnormal. The study showed evidence of
right L5-S1 subacute lumbosacral radiculopathy with a possibility of L4 nerve root involvement
on the right side. Correlation with lumbar imaging studies was recommended.
Dr. Abitbol’s follow-up treatment notes for October 2, 2012 included a diagnosis of low
back syndrome and postlaminectomy syndrome. There was no reported change in appellant’s
work status.
In a February 8, 2013 report, Dr. Dulin indicated that appellant was suffering from the
outcome of multiple failed back surgeries at L4-S1. Appellant currently experienced persistent
back pain, numbness of her legs -- left greater than right, weakness and burning pain to both legs,
indicative of lumbar spine radiculopathy. Her walking tolerance was limited to 25 to 30 feet
before having to pause and she was often aided by a cane. Dr. Dulin stated that appellant was
currently not working due to weakness of hips and lower extremity flexor/extensor muscles
affecting her balance and muscle strength for endurance. He advised that she needed to improve
in these areas in order to return to the open labor market. Because of persistent hip and low back
muscle cramps, compounded by continuing deep aching pain, appellant was unable to tolerate
prolonged sitting, standing or walking. Dr. Dulin also noted that she was limited to lifting 10
pounds.
In an April 12, 2013 decision, OWCP denied appellant’s claim for recurrence of
disability beginning October 3, 2011.8 Appellant timely requested a hearing.9
Dr. Jon P. Kelly, a Board-certified orthopedic surgeon and OWCP referral physician,
examined appellant on May 15, 2013. Appellant’s current complaints included constant low
back pain and daily episodes of lower extremity numbness of two hours’ duration. She was
reportedly using a walker and at times was able to walk with a cane. Even at home, appellant
could not walk unassisted and used the walls for support. Dr. Kelly noted a history of acute
herniated nucleus pulposus (HNP) at L5-S1. He also noted that appellant had been treated with
fusion but developed problems that ultimately necessitated another fusion with hardware from
L4 to the sacrum. The hardware was in good position and she was considered permanent and
stationary. Further medical treatment, including hardware removal and use of a pain stimulator
8

Appellant filed separate claims for her falls on June 6 and 17 and July 21, 2011. OWCP denied all three claims
(xxxxxx208, xxxxxx756 and xxxxxx986).
9

The hearing was conducted via telephone on August 13, 2013.

5

was recommended, but appellant reportedly declined preferring not to undergo additional
surgery. Dr. Kelly diagnosed lumbar spine HNP, lumbar spine degenerative disc disease,
spondylosis and history of failed back which required repeat surgery. He stated that appellant’s
balance problems were the result of deconditioning and obesity. Dr. Kelly did not identify any
focal weakness which could be attributed to any denervation as related to appellant’s back
condition. While her fused spine resulted in limited lumbar flexibility, Dr. Kelly nonetheless
believed appellant could work full time with restrictions. He also noted that she needed to lose
weight and suggested that she embark on a program of aerobic conditioning and muscle
strengthening within her physical parameters. Although appellant had undergone significant
surgery and had objective findings of impairment, Dr. Kelly found no reason to disqualify her for
any work that fit within defined parameters. Because of her age and the length of time she had
been off work, Dr. Kelly thought it unlikely she would return to the workforce.
In a separate work capacity evaluation (OWCP-5c), Dr. Kelly advised that appellant
reached MMI and was able to work eight hours per day with restrictions. Appellant could sit for
four hours and walk and stand for two hours each. She was precluded from squatting, kneeling,
climbing, bending/stooping and she could not operate a motor vehicle at work. However,
appellant could drive to/from work up to one hour. Also, Dr. Kelly imposed a two-hour
limitation on pushing, pulling and lifting with a 10-pound weight restriction.
By decision dated October 29, 2013, the hearing representative affirmed OWCP’s
April 12, 2013 decision. Appellant did not establish that her part-time, limited-duty clerk
position had been withdrawn effective October 3, 2011. There was also no proof that the
position had been changed prior to her work stoppage. Lastly, the hearing representative found
that appellant failed to demonstrate a change in her work-related condition that would have
prevented her from performing her limited-duty clerk position. Consequently, appellant was not
entitled to compensation for total disability during the period October 3, 2011 to March 22, 2012.
LEGAL PRECEDENT
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.10 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.11 A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties or other downsizing or
where an LWEC determination is in place.12

10

20 C.F.R. § 10.5(x).

11

Id.

12

Id.; 20 C.F.R. §§ 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences,
Chapter 2.1500.2 (June 2013).

6

Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.13
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence of disability is causally
related to the original injury.14 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.15 The physician’s opinion must be based on a complete and accurate factual and medical
history and supported by sound medical reasoning.16
ANALYSIS
Appellant indicated that the employing establishment sent her home on October 3, 2011
because there was no work within her restrictions. Counsel characterized the employing
establishment’s action as a withdrawal of appellant’s limited-duty clerk assignment. Generally, a
withdrawal of a light-duty assignment would constitute a recurrence of disability where the
evidence established continuing injury-related disability for regular duty.17 However, there is no
evidence that the employing establishment withdrew appellant’s limited-duty clerk assignment
on October 3, 2011. Granted, appellant was sent home on that day and placed on LWOP status.
This was not because of a withdrawal of her limited-duty assignment. It was merely an
acknowledgment of Dr. Dulin’s September 21, 2011 work restrictions. Dr. Dulin represented
that appellant’s recent spate of falls was due to surgery-related peripheral neuropathy and that
she was “totally incapable of performing her designated job description.” He further noted that
she was always at risk of falling. Consequently, appellant failed to establish a withdrawal of her
limited-duty assignment effective October 3, 2011. Also, the record does not establish that the
employing establishment altered the requirements of her modified-clerk assignment to exceed
her physical limitations. Appellant claimed that the clerk position required lifting in excess of
her 25-pound weight restriction, but Mr. Mercado disputed her allegation. Mr. Mercado noted
that she primarily handled personnel files, which she scanned and then placed in a cart for
refiling. His sampling of six personnel files revealed an average weight of one pound, 12 ounces
per file. Appellant has not substantiated her claim that she was required to lift in excess of her
25-pound restriction.
Appellant may also establish a recurrence of disability by demonstrating a change in the
nature and extent of her injury-related condition such that she could no longer perform her
13

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

14

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapters
2.1500.5a and 2.1500.6b (June 2013).
15

See S.S., 59 ECAB 315, 318-19 (2008).

16

Id. at 319.

17

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4)
(June 2013).

7

limited-duty clerk assignment. Counsel argued before the Branch of Hearings and Review that
Dr. Kelly’s May 15, 2013 report established that appellant was not employable, and therefore,
supported compensation for the period requested. Dr. Kelly did not specifically address
appellant’s work status for the period October 3, 2011 to March 22, 2012. Also, he indicated
that appellant was capable of working full time with restrictions as outlined in his March 15,
2013 OWCP-5c. Although Dr. Kelly expressed skepticism regarding appellant’s return to the
workforce, he clearly indicated that she was capable of working in some capacity. Therefore, his
report does not establish a change in the nature and extent of appellant’s injury-related condition
on or about October 3, 2011.
As noted, Dr. Abitbol provided the January 2011 work restrictions that formed the basis
of appellant’s part-time, limited-duty clerk assignment. Appellant returned to work in
May 2011, and none of Dr. Abitbol’s subsequent progress reports from August 2011 to
October 2012 reflect a change in her work status and does not support entitlement to total
disability compensation.
While Dr. Dulin’s September 21, 2011 report was the precipitating factor behind
appellant’s October 3, 2011 work stoppage, this evidence along with his subsequent reports does
not establish a change in the nature and extent of her injury-related condition. He attributed her
lower extremity complaints and loss of balance to peripheral neuropathy, which in turn was
purportedly due to fibrotic scarring from her multiple lumbar surgeries. Dr. Dulin did not
reference any electrodiagnostic studies at the time. Six months later, an April 2, 2012 bilateral
lower extremity NCV revealed no evidence of peripheral neuropathy or compression neuropathy.
On the contrary, Dr. Kelly noted in his May 15, 2013 report that he had not identified any
focal weakness which could be attributed to any denervation as related to appellant’s accepted
back condition. Unlike Dr. Dulin, Dr. Kelly attributed appellant’s balance problems to
deconditioning and obesity.
Dr. Dulin’s various reports also reflect an inaccurate or incomplete understanding of
appellant’s injury-related restrictions and her responsibilities as a part-time, limited-duty clerk.
In his September 21, 2011 report, he noted restrictions that included “no prolonged ... sitting”
and avoidance of “bending and stooping.” As to sitting, Dr. Abitbol indicated that appellant
could work a four-hour day and was able to sit for four hours. It is not clear what Dr. Dulin
meant by no prolonged sitting or that he knew that appellant’s limited-duty clerk position
allowed her to change positions and move about as needed. Also, Dr. Abitbol did not comment
on bending and/or stooping. The version of Form OWCP-5c he utilized did not even include
bending/stooping as an activity. Thus, it is unclear what information Dr. Dulin relied upon in
identifying appellant’s injury-related work restrictions. Moreover, his December 20, 2011 report
mischaracterized her job as involving “frequent standing and walking,” which reportedly placed
her at a potentially high risk of losing her balance and falling. Appellant’s limited-duty clerk
assignment actually included a 30-minute restriction on both walking and standing consistent
with Dr. Abitbol’s January 17, 2011 OWCP-5c.
The Board finds that the medical evidence of record does not establish a change in the
nature and extent of appellant’s injury-related condition such that she could no longer perform
her limited-duty clerk position as of October 3, 2011. As previously discussed, there is no

8

evidence that the employing establishment altered appellant’s limited-duty clerk position or
withdrew the position effective October 3, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.18
CONCLUSION
Appellant failed to establish a recurrence of disability for the period October 3, 2011 to
March 22, 2012.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

See 5 U.S.C. § 8128 (a); 20 C.F.R. §§ 10.605-10.607.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1246
Issued: December 20, 2013

Case Submitted on the Record

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

JURISDICTION
On April 30, 2013 appellant filed a timely appeal from a December 13, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his schedule
award claim and an April 16, 2013 nonmerit decision denying his request for an oral hearing.
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.
ISSUES
The issues are: (1) whether appellant sustained permanent impairment of an extremity
related to his accepted back injury; and (2) whether OWCP properly denied his request for an
oral hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 33-year-old border patrol agent, sustained a closed
fracture of thoracic vertebra at levels T4, T5, T6 and T8 without spinal cord injury. He was
thrown from an all-terrain vehicle in the performance of duty on June 14, 2010.2 Appellant
returned to full-time, regular-duty work without restrictions on April 25, 2012 based on the
April 25, 2012 report of Dr. Christopher C. Lai, an attending orthopedic surgeon.
On September 10, 2012 appellant filed a claim for a schedule award. He submitted an
April 25, 2012 report from Dr. Lai, who diagnosed multiple thoracic spinous processes fractures,
healed, low back pain and bilateral lower extremity radiculopathy. Appellant had persistent pain
in his upper back which was worse with standing or sitting for long periods of time. He was not
able to drive or walk for long periods of time and had occasional numbness and tingling in both
lower extremities when standing. Upon examination, appellant was tender to palpation
throughout the thoracic spinous process region and had slight limitation in range of motion.
Sensation of light touch was intact and equal bilaterally, reflexes were normal and equal
bilaterally and straight-leg raise was negative bilaterally. Dr. Lai stated that appellant had
multiple spinous process fractures of the thoracic spine which placed him in a class 1 impairment
rating under Table 17-3 (Thoracic Spine Regional Grid -- Spine Impairments)3 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (hereinafter, A.M.A., Guides). The functional history (GMFH)
adjustment was grade 2 as appellant had pain and symptoms with normal activities. His Physical
Examination (GMPE) adjustment was 0 as he had a negative straight-leg raise test, normal
reflexes, normal sensation and normal strength. Appellant’s clinical studies (GMCS) adjustment
was grade 1 as he had findings in support of his symptoms and computerized tomography (CT)
scans and x-rays which showed multiple spinous processes fractures. Dr. Lai concluded that
appellant fell into grade modifier 1 and had a net adjustment of 0 which was a four percent
permanent impairment of the whole person.4 He opined that appellant had reached a permanent
and stationary status.
On November 20, 2012 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed Dr. Lai’s April 25, 2012 report. He determined that appellant
had zero percent (no) impairment of the right or left lower extremity based on the sixth edition of
the A.M.A., Guides. Dr. Harris noted that Dr. Lai rated impairment based on Table 17-3 on page
568 of the A.M.A., Guides for mechanical low back pain, radiculopathy and documented spinal
pathology on diagnostic studies including magnetic resonance imaging (MRI) scan. He noted
that OWCP and FECA provided schedule awards only for the loss of use or impairment to the
lower extremities and not for the spine. Appellant had no objective evidence or documentation
of neurologic deficit in either lower extremity. He noted a zero percent permanent impairment of

2

On June 14, 2011 appellant filed a traumatic injury claim (Form CA-1) for a right eye injury allegedly sustained
in the performance of duty that same day.
3

A.M.A., Guides (6th ed., 2009) 567-69.

4

Id. at 587.

2

the lower extremities and noted that the date of maximum medical improvement was April 25,
2012, the date of Dr. Lai’s examination and report.
By decision dated December 13, 2012, OWCP denied appellant’s schedule award claim.
It found that the medical evidence did not establish a ratable impairment to a scheduled member.
In an appeal request form dated March 14, 2013, appellant requested an oral hearing
before an OWCP hearing representative. The request for an oral hearing was scanned on
March 19, 2013. The envelope in which the request was mailed is of record, but the date stamp
is not legible.
By decision dated April 16, 2013, OWCP denied appellant’s request for an oral hearing
finding that it was untimely filed because it was not made within 30 days of the December 13,
2012 decision. It exercised its discretion and further denied the request for the reason that the
relevant issue of the case could be addressed by requesting reconsideration and submitting
evidence not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim, including that he or she sustained an injury in the
performance of duty as alleged and that an employment injury contributed to the permanent
impairment for which schedule award compensation is alleged.5
The schedule award provision of FECA6 and its implementing regulations7 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 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 regulations as the
appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent

5

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

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

3

impairment, preexisting impairments of the body are to be included.10 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.11
A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.12 Neither FECA nor the complementing
federal regulations provide for the payment of a schedule award for the permanent loss of use of
the back or spine, a claimant is not entitled to such an award.13 However, as FECA makes
provision for 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, if
the medical evidence establishes impairment as a result of the employment injury.14
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.15
ANALYSIS -- ISSUE 1
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. OWCP accepted his claim for closed
fractures of thoracic vertebra at levels T4, T5, T6 and T8 without spinal cord injury. Under
FECA, appellant may not receive a schedule award for permanent impairment to his back or
spine.16 He may receive a schedule award, however, for any permanent impairment to his lower
extremities, provided the medical evidence establishes such impairment.17 The Board finds that
the medical evidence of record does not establish that appellant sustained permanent impairment
to either lower extremity due to the accepted back condition.
10

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedure provides that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
11

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

12

See Tania R. Keka, 55 ECAB 354 (2004).

13

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

14

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision 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.
15

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

16

5 U.S.C. supra note 13; Patricia J. Horney, 56 ECAB 256 (2005).

17

See George E. Williams, supra note 14.

4

On April 25, 2012 Dr. Lai, an attending orthopedic surgeon, rated a four percent whole
person impairment under Table 17-3 of the A.M.A., Guides. The Board notes that FECA does
not authorize schedule awards for impairment of the whole person, back or spine.18 OWCP’s
medical adviser reviewed Dr. Lai’s report on November 20, 2012 and found no evidence or
documentation of any neurologic deficit in either lower extremity. Dr. Harris properly
concluded that there was no medical evidence of impairment to the lower extremities resulting
from the accepted condition. Therefore, there was no ratable impairment of a scheduled member
under the sixth edition of the A.M.A., Guides.
Appellant has not established that he sustained any permanent impairment of his lower
extremities. The Board finds that he is not entitled to a schedule award as a result of his accepted
back injury. OWCP’s December 13, 2012 decision was proper under the facts of this case.19
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a representative of the
Secretary.”20
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”21 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.22 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.23 In such a case, it will determine whether
to grant a discretionary hearing and, if not, will so advise the claimant with reasons.24

18

See D.H., 58 ECAB 358 (2007). See also Thomas Martinez, 54 ECAB 623 (2003).

19

See J.D., Docket No. 13-627 (issued July 17, 2013).

20

5 U.S.C. § 8124(b)(1).

21

20 C.F.R. § 10.615.

22

Id. at § 10.616.

23

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

24

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

5

ANALYSIS -- ISSUE 2
Appellant had 30-calendar days from OWCP’s December 13, 2012 decision or until
January 14, 2013, to request an oral hearing. He filed a request for an oral hearing on March 14,
2013, which was more than 30 days after OWCP issued its December 13, 2012 decision.25
Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.26 The Board
notes that the envelope in which the request was mailed is of record, but the date stamp is not
legible.27 For this reason, the Board finds that the request was untimely. Because the application
was not timely filed, appellant was not entitled to an oral hearing as a matter of right under
section 8124(b)(1) of FECA.
Exercising its discretion to grant an oral hearing, OWCP denied appellant’s request on
the grounds that he could equally well address any issues in his case by requesting
reconsideration. Because reconsideration exists as an alternative appeal right to address the
issues raised by OWCP’s December 13, 2012 decision, the Board finds that OWCP did not abuse
its discretion in denying appellant’s untimely request for an oral hearing.28
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for bilateral lower
extremity impairment related to his accepted back injury. The Board further finds that OWCP
properly denied appellant’s request for an oral hearing as untimely.

25

Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. See 20 C.F.R. § 10.616(a); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the
postmark is not legible, the request will be deemed timely unless OWCP has kept evidence of date of delivery on the
record reflecting that the request is untimely. Id.
26

See William F. Osborne, 46 ECAB 198 (1994).

27

See T.B., Docket No. 12-244 (issued June 8, 2012) (where the Board found that OWCP properly denied the
claimant’s request for an oral hearing as he mailed an untimely request for a telephonic hearing and the envelope
containing the request, which was part of the case record, displayed an illegible postmark).
28

See Gerard F. Workinger, 56 ECAB 259 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2013 and December 13, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 20, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, J.F.K.
AIRPORT, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1276
Issued: March 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 21, 2019 appellant filed a timely appeal from a March 20, 2019 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 this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 20, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his bilateral lower extremities, warranting a schedule award.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 45-year-old import specialist, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained injuries to his knees, elbows, face, neck,
hands, fingers, shoulders, and lower back when he tripped on loose carpet tile and fell while in the
performance of duty. On August 9, 2007 OWCP accepted the claim for neck and lumbar sprains,
right shoulder contusion, and bilateral knee contusions. It paid appellant wage-loss compensation
on the supplemental rolls for the period July 29 to September 1, 2007, and on the periodic rolls as
of September 2, 2007.
Appellant returned to limited-duty work on June 1, 2009, working four hours per day. He
continued to receive wage-loss compensation based upon his wage-earning capacity.
On July 29, 2016 OWCP expanded the acceptance of the claim to include right shoulder
adhesive capsulitis.
On December 14, 2016 OWCP received a claim for compensation (Form CA-7) dated
December 1, 2016 requesting a schedule award.
In a report dated December 26, 2017, Dr. Craig Levitz, a Board-certified orthopedic
surgeon, opined that appellant had 20 percent permanent impairment of the right upper extremity
and 15 percent bilateral knee permanent impairment.
On January 5, 2018 OWCP referred the case record, along with a statement of accepted
facts (SOAF), to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as a district
medical adviser (DMA).
In a report dated January 19, 2018, Dr. Harris applied the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 to
the findings of Dr. Levitz and found five percent right upper extremity permanent impairment,
zero percent upper left extremity permanent impairment, two percent right lower extremity
permanent impairment, and zero percent left lower extremity permanent impairment.
In a letter dated April 4, 2018, OWCP referred appellant, along with a SOAF and the
medical record, to Dr. Leon Sultan, a Board-certified orthopedic surgeon, for a second opinion
regarding appellant’s employment-related conditions and any resulting permanent impairment.
The letter noted that the acceptance of the claim was expanded to include left finger contusion,
bilateral medial meniscus tears, bilateral traumatic lower leg arthropathy, bilateral post-traumatic

3

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

2

knee arthritis, thoracic or lumbosacral neuritis or radiculitis, left finger contusion, bilateral knee
medial meniscus tear, and acquired left trigger finger.
In a May 8, 2018 report, Dr. Sultan recounted appellant’s history of injury, reviewed his
medical history, and conducted a physical examination. Physical examination findings for
appellant’s knees were related as: no bilateral knee joint effusion; normal knee extension and
flexion; plus one bilateral patellofemoral joint crepitus; negative patellofemoral compression test;
negative bilateral Spring test; and negative bilateral McMurray’s test. Using the A.M.A., Guides,
Dr. Sultan found that appellant had six percent permanent impairment of the right upper extremity,
but opined that appellant’s subjective complaints in regard to his knees did not correspond with
his current objective findings. He did not provide an impairment rating for appellant’s bilateral
lower extremities.
In a June 8, 2018 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and
district medical adviser (DMA), related that he had reviewed the case record on January 10, 2018
at which time the established diagnoses included lumbar disc herniation L3-4, with protrusion L45, status post left knee arthroscopic chondroplasty and synovectomy, June 9, 2008, status post right
knee arthroscopic partial medial and lateral meniscectomy, chondroplasty, and synovectomy
May 20, 2010. He then noted that he had reviewed additional medical reports of record, including
Dr. Sultan’s May 8, 2018 report and he opined that appellant had 10 percent right lower extremity
permanent impairment, and 2 percent left lower extremity permanent impairment.4 In reaching
this impairment determination, the DMA found no impairment for the bilateral lower extremities
using a diagnosis of lumbar radiculopathy using Table 16-11, page 533 and Table 16-12, page 534.
He also related that appellant’s lumbar spine diagnoses did not allow permanent impairment to be
evaluated pursuant to the range of motion (ROM) method. Using Table 16-3, page 509 and a
diagnosis of partial lateral and medial right knee meniscectomy, the DMA determined that
appellant had 10 percent right lower extremity permanent impairment. He again noted that this
diagnosis did not allow an alternate rating based on loss of ROM. Next, the DMA determined that
appellant had two percent left lower extremity permanent impairment using Table 16-3, page 509
for residual problems postarthroscopic synovectomy. He again noted that this diagnosis did not
allow for an alternate ROM rating. The DMA also noted that Dr. Sultan had not provided
permanent impairment calculations for the lower extremities.
In a July 26, 2018 supplemental report, Dr. Sultan determined that appellant had zero
percent permanent impairment of the bilateral lower extremities. He again noted that appellant
had full extension and flexion of both knees, with patellofemoral joint crepitus on both sides, but
a negative patellofemoral compression test bilaterally. Using Table 16-3, Dr. Sultan assigned a
class zero for appellant’s bilateral knee condition, resulting in zero percent bilateral lower
extremity permanent impairment.
In an October 3, 2018 report, the DMA reviewed Dr. Sultan’s July 26, 2018 addendum and
concurred with his rating of zero percent permanent impairment of the bilateral lower extremities.
He found no bilateral lower extremity neurologic deficits consistent with lumbar radiculopathy.
Using Table 16-11, page 533 and Table 16-12, page 534, the DMA found zero percent bilateral
4
The DMA also determined that appellant had nine percent right upper extremity permanent impairment and one
percent left upper extremity permanent impairment.

3

lower extremity permanent impairment for the diagnosis of lumbar radiculopathy. He also
determined that appellant had zero percent bilateral lower extremity permanent impairment using
the diagnosis based impairment (DBI) method for appellant’s bilateral knee condition.
By decision dated November 1, 2018, OWCP granted appellant a schedule award for nine
percent permanent impairment of the right upper extremity, zero percent permanent impairment
for the left upper extremity, and zero percent permanent impairment for both lower extremities.
On January 14, 2019 appellant requested reconsideration of the November 1, 2018 decision
only with regard to the denial of a schedule award for permanent impairment of his bilateral lower
extremities.
In support of his request for reconsideration, appellant submitted a November 27, 2018
report from Dr. Levitz. Using a permanent impairment worksheet, Dr. Levitz determined that
appellant had seven percent right lower extremity permanent impairment and seven percent left
lower extremity permanent impairment based on a diagnosis of bilateral knee osteoarthritis. He
diagnosed bilateral post-traumatic knee osteoarthritis and provided examination findings. Physical
findings for appellant’s bilateral knees included no effusion, medial joint line patella tenderness
and crepitus, and negative McMurray’s, Apley’s test, and Lachman test. Dr. Levitz noted that
appellant had bilateral knee diagnoses of osteoarthritis, ratable under Table 16-3, page 511 of the
A.M.A., Guides. He explained that the mild impairment of each knee impairment fell into Class
1, and that each knee had a grade modifier for functional history (GMFH) of 1, a grade modifier
for physical examination (GMPE) of 1, a grade modifier for clinical studies (GMCS) of 2, and a
QuickDASH score of 25, which resulted in a grade C rating of, 7 percent permanent impairment
of each lower extremity, for a total bilateral lower extremity permanent impairment rating of 14
percent.
In a March 12, 2019 report, the DMA reviewed Dr. Levitz’ report and impairment rating
and found that no significant additional information had been provided which would change the
impairment rating provided in his October 3, 2018 report.
By decision dated March 20, 2019, OWCP denied modification of its prior decision,
finding that the evidence of record was insufficient to establish permanent impairment of
appellant’s bilateral lower extremities.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

4

Guides as the uniform standard applicable to all claimants.7 For decisions issued after May 1,
2009, the sixth edition is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 In determining impairment for the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the knee, the relevant portion of the leg for the present
case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.10 After the
class of diagnosis (CDX) is determined from the Knee Regional Grid (including identification of
a default grade value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS.
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Under
Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through a DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision.
In a June 8, 2018 report, the DMA related that he had reviewed the case record on
January 10, 2018 at which time the established diagnoses included lumbar disc herniation L3-4,
with protrusion L4-5; status post left knee arthroscopic chondroplasty and synovectomy, June 9,
2008; status post right knee arthroscopic partial medial and lateral meniscectomy, chondroplasty
and synovectomy May 20, 2010. He then noted that he had reviewed additional medical reports
of record, including Dr. Sultan’s May 8, 2018 report and he opined that appellant had 10 percent
right lower extremity permanent impairment, and 2 percent left lower extremity permanent
impairment. In reaching this impairment determination, the DMA found no impairment for the
bilateral lower extremities using a diagnosis of lumbar radiculopathy using Table 16-11, page 533
7

Id. at 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); id. at Chapter 2.808.6 (March 2017).
9

A.M.A., Guides, p. 3, section 1.3, the International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6th ed. 2009).
10

See Guides at 509-11 id.

11

Id. at 494-531.

12

Id. at 23-28.

13

See supra note 8 at Chapter 2.808.6(f) (March 2017).

5

and Table 16-12, page 534. He also related that appellant’s lumbar spine diagnoses did not allow
permanent impairment to be evaluated pursuant to the ROM method. Using Table 16-3, page 509
and a diagnosis of partial lateral and medial right knee meniscectomy, the DMA determined that
appellant had 10 percent right lower extremity permanent impairment. He again noted that this
diagnosis did not allow an alternate rating based on loss of ROM. Next, the DMA determined that
appellant had two percent left lower extremity permanent impairment using Table 16-3, page 509
for residual problems postarthroscopic synovectomy. He again noted that this diagnosis did not
allow for an alternate ROM rating.
In his July 26, 2018 supplemental report, Dr. Sultan utilized Table 16-3 and assigned a
class zero for appellant’s bilateral knee condition resulting in zero percent bilateral lower extremity
permanent impairment. He, however, never identified which diagnoses he applied to the DBI
methodology to determine his zero percent impairment rating.
In an October 3, 2018 report, the DMA then reviewed Dr. Sultan’s July 26, 2018
supplemental opinion. While the DMA had previously found 10 percent right lower extremity
permanent impairment, and 2 percent left lower extremity permanent impairment, he now
concurred with Dr. Sultan that appellant had zero percent bilateral lower extremity permanent
impairment. The DMA did not provide rationale explaining why Dr. Sultan’s July 26, 2018
supplemental report changed his opinion. In a March 12, 2019 report, October 3, 2018 reviewed
Dr. Levitz’ November 27, 2018 report and impairment rating, but found no significant additional
information which would change the impairment rating provided in his October 3, 2018 report.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 It has the obligation to see that justice is done.
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in the proper manner.15
Because the reports of the DMA lack rationale explaining his lowered impairment rating,
the Board finds that the opinion of the DMA requires clarification. The case is therefore remanded
to OWCP to obtain a supplemental report from the DMA regarding whether appellant has
permanent impairment of his bilateral lower extremities due to his accepted employment injury.
If Dr. Harris is unable to clarify or elaborate on his prior reports or if his supplemental report is
also vague, speculative, or lacking in rationale, OWCP must send the case record to a second DMA
for the purpose of obtaining a rationalized medical opinion on the issue.16 Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.

14

C.W., Docket No. 17-0791 (issued December 14, 2018); R.B., Docket No. 08-1662 (issued December 18, 2008).

15

C.W., id., see P.D., Docket No. 15-1111 (issued December 7, 2015).

16
See D.O., Docket No. 19-1729 (Issued November 3, 2020); S.R., Docket No. 17-1118 (issued April 5, 2018);
Harold Travis, 30 ECAB 1071, 1078 (1979).

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 20, 2019 is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1857
Issued: September 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2014 appellant filed a timely appeal from a May 27, 2014 merit decision
and a July 18, 2014 nonmerit 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 this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective May 21, 2014 as she no longer had any residuals
causally related to her accepted lumbar condition; and (2) whether it properly denied appellant’s
request for a review of the written record as untimely filed.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 7, 1998 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim alleging that she developed pain in her lower back and left leg from repetitively
lifting, moving, and sweeping mail. She first became aware of her condition on January 6, 1998
and realized that it resulted from her employment on February 3, 1998. OWCP accepted
appellant’s claim for low back strain with left-sided radiculopathy. Appellant stopped work on
January 6, 1998 and returned to limited duty on March 4, 1998. OWCP paid compensation
benefits.2
On January 11, 2000 OWCP granted appellant a schedule award for three percent of the
left lower extremity. The award ran for 8.64 weeks from March 4 to May 3, 1999.
Appellant retired from the employing establishment in 2001. She continued to receive
medical treatment from her treating physician, Dr. Robert A. Fox, a Board-certified neurologist.
OWCP paid medical benefits.
On November 22, 2013 OWCP referred appellant, together with a statement of accepted
facts (SOAF) and the medical record, to Dr. John H. Welborn, Jr., a Board-certified orthopedic
surgeon, for a second opinion examination to determine whether appellant continued to suffer
residuals of her accepted injuries and whether she required further medical treatment. In a
January 13, 2014 report, Dr. Welborn reviewed appellant’s history, including the SOAF and
medical records. He noted that OWCP accepted her January 6, 1998 claim for low back strain
with left-sided radiculopathy. Dr. Welborn reported that appellant began to work for the
employing establishment in 1968, worked modified duty beginning 1998, and retired in 2001.
He also stated that she had a history of cervical strain from a motor vehicle accident in 1988, left
leg pain since her stroke in 1993, and low back pain as a result of work-related injuries in 1976,
1983, and 1985. Dr. Welborn noted that appellant was diagnosed with preexisting spondylosis at
T11-12.
Upon examination of appellant’s lumbar spine, Dr. Welborn observed normal palpation
and tenderness. Range of motion was forward flexion to 90 degrees, hyperextension to 0
degrees, and right and left lateral bend to 30 degrees. Dr. Welborn reported that straight leg raise
testing was negative on the right and left. He related appellant’s continued complaints of low
back and left leg pain. Dr. Welborn diagnosed back strain and chronic low back pain. He stated
that these findings were established by appellant’s subjective symptoms only as there was no
recent diagnostic testing. Dr. Welborn reported that she did not have any symptoms that were
consistent with radiculopathy but she did have symptoms consistent with a stroke. He opined
that appellant’s low back pain was not medically connected to the accepted 1998 work-related
injury. Dr. Welborn concluded that appellant no longer suffered residuals of the work-related
injury and that she no longer needed further medical treatment.
On April 3, 2014 OWCP proposed to terminate appellant’s compensation and medical
benefits based on Dr. Welborn’s January 13, 2014 second opinion report. It determined that the
2

The record reveals that appellant has two previously accepted claims for left wrist tendinitis (File No.
xxxxxx977) and bilateral wrist tendinitis (File No. xxxxxx140).

2

weight of the medical evidence rested with Dr. Welborn who determined that appellant’s
employment-related injuries had resolved and that she no longer needed further medical
treatment for her accepted conditions.
Appellant submitted further reports from Dr. Fox dated February 19, 2013 to
March 11, 2014. Dr. Fox stated that he conducted a follow-up examination of appellant for a
January 6, 1998 work-related injury to her neck and upper and lower extremities. He related that
she continued to complain of pain in her upper and lower extremities. Dr. Fox reported that,
objectively, appellant had positive straight leg raising bilaterally and altered sensations in both
her hands, and distal lower extremities. He stated that she was capable of maintaining her
activities of daily living with medication and that she benefited from independent aqua therapy,
and land-based exercises. Along with the reports, appellant included a narrative statement
describing her complaints of continued left side, lower back, and bilateral hand pain, the
medication she was taking, and her various communications with OWCP.
In a letter dated April 26, 2014, appellant stated that she sustained a number of injuries
while in the performance of her duties that were permanent and stationary. She described in
detail her January 6, 1998 work-related injury and the medical treatment she received. Appellant
reported that in letters addressed to the claims examiner dated June 14 and 22, 2004, and June 30
and 13, 2005 why it was medically necessary for her to continue to receive pool therapy. She
explained that the pool therapy helped to reduce her lower back pain and mobility of all her
joints. Appellant submitted a January 13, 1999 modified job offer and a December 19, 2006
report by Dr. Fox.
By decision dated May 27, 2014, OWCP finalized the termination of appellant’s
compensation and medical benefits effective May 21, 2014. It determined that the weight of the
medical evidence rested with Dr. Welborn’s January 13, 2014 report which determined that
appellant’s employment-related injuries had resolved and that she no longer suffered residuals of
her accepted employment conditions.
In an appeal request form postmarked June 27, 2014 and received by OWCP on July 1,
2014, appellant requested a review of the written record. She resubmitted the April 26, 2014
letter; various claims for disability compensation dated January 6 to July 13, 1998, July 18 to
August 18, 2000, and October 17 to November 16, 2001; the January 6, 1998 occupational
disease claim form; a statement of accepted facts dated August 12, 1998; and various reports
from Dr. Fox dated April 21, 1998 to December 13, 2013.
In a decision dated July 18, 2014, OWCP denied appellant’s request for a review of the
written record. It noted that its last merit decision was issued on May 27, 2014, and her request
for a review of the written record was postmarked June 27, 2014. OWCP further indicated that it
had, in its discretion, carefully considered appellant’s request for a review of the written record
and had determined that the issue in this case could equally well be addressed by requesting
reconsideration from the district office and submitting evidence not previously considered which
established that she continued to suffer residuals of her accepted conditions.

3

LEGAL PRECEDENT -- ISSUE 1
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.3 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.4 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s January 6, 1998 occupational disease claim for lower back
strain with left-sided radiculopathy. It paid benefits for medical treatment. By decision dated
May 27, 2014, OWCP terminated appellant’s entitlement to compensation benefits based on the
January 13, 2014 second opinion report of Dr. Welborn who determined that appellant’s
accepted conditions had resolved and that she was no longer in need of further medical
treatment.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
disability compensation and medical benefits because Dr. Welborn’s opinion does not establish
that her work-related injuries had resolved and that she was no longer in need of medical
treatment for her work-related injuries.
OWCP referred appellant’s claim to Dr. Welborn for a second opinion examination to
determine whether appellant continued to suffer residuals of her accepted injuries and the
necessity of her medical treatment. In a January 13, 2014 report, Dr. Welborn provided an
accurate history of appellant’s work-related and nonwork-related injuries and noted that OWCP
accepted appellant’s January 6, 1998 claim for low back strain with left-sided radiculopathy.
Upon examination of appellant’s lumbar spine, he observed normal palpation and tenderness.
Range of motion was forward flexion to 90 degrees, hyperextension to 0 degrees, and right and
left lateral bend to 30 degrees. Dr. Welborn reported that straight leg raise testing was negative
on the right and left. He diagnosed back strain and chronic low back pain. Dr. Welborn stated
that appellant did not have any symptoms that were consistent with a radiculopathy, but she did
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
5

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

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
7

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

4

have symptoms consistent with a stroke. He concluded that appellant no longer suffered
residuals of the January 6, 1998 employment injury and that further medical treatment would not
improve her condition.
The Board finds that Dr. Welborn’s opinion lacks probative value to establish that
appellant no longer suffered residuals of her low back strain with left-sided radiculopathy.
Dr. Welborn opined that appellant’s accepted conditions had resolved and that her current low
back and left lower extremity pain was a result of her 1993 stroke. He did not, however, provide
any medical rationale for his conclusion. Dr. Welborn failed to explain how appellant’s current
symptoms were associated with her stroke and not her accepted back condition. The Board has
found that medical conclusions unsupported by medical rationale are of little probative value.8
Because Dr. Welborn did not provide a well-rationalized medical opinion that appellant’s low
back strain and left-sided radiculopathy had resolved, his report is insufficient to justify
termination of her compensation benefits.9
The Board notes that appellant submitted similar reports from Dr. Fox dated February 19,
2013 to March 11, 2014. Dr. Fox related that appellant continued to complain of pain in her
upper and lower extremities. He reported that objectively appellant had positive straight leg
raising bilaterally and altered sensations in both her hands and distal lower extremities. Dr. Fox
stated that appellant was capable of maintaining her activities of daily living with medication and
that she benefited from independent aqua therapy and land-based exercises.
In assessing medical evidence, the weight of medical evidence is determined by its
reliability, its probative value, and its convincing quality. The factors that comprise the
evaluation of medical opinion evidence include the opportunity for and thoroughness of physical
examination, the accuracy or completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.10 In this case, the Board finds that the medical evidence and rationale
supporting Dr. Welborn’s opinion is lacking. Accordingly, Dr. Welborn’s opinion has
diminished probative value and does not constitute the weight of medical opinion in determining
the extent of appellant’s employment-related injuries and need for further medical treatment.
Moreover, Dr. Fox has been appellant’s treating physician and has presented medical opinions
that appellant continued to suffer residuals of her low back condition and required medical
treatment.
For these reasons, the Board reverses OWCP’s May 27, 2014 decision and remands the
case for proper reinstatement of compensation benefits.

8

J.F., Docket No. 09-1061 (issued November 7, 2009); A.D., 58 ECAB 149 (2006).

9

See V.G., Docket No. 14-1571 (issued November 25, 2014).

10

Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s compensation benefits effective May 21, 2014. In light of the Board’s disposition on
the first issue, the second issue is moot.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 9, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND
SOUTHWEST, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-466
Issued: October 10, 2014

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 December 23, 2013 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs (OWCP) dated October 17 and September 19, 2013 denying
his traumatic injury claim. 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 appellant established that his lumbar condition was causally related
to the accepted July 24, 2013 employment incident.
On appeal appellant contends that his back injury was caused by the July 24, 2013
employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2013 appellant, then a 59-year-old dispatcher, filed a traumatic injury claim
alleging that he developed low back and right leg pain on that date when he fell into a chair that
had its settings changed without his knowledge. He stopped work that day.
In a July 26, 2013 attending physician’s report (Form CA-20), Dr. Parimal J. Soni, an
examining physician, diagnosed low back pain. He noted the injury occurred when appellant fell
back into a chair that had been lowered without his knowledge. Dr. Soni checked “yes” to the
question of whether the diagnosed condition was caused or aggravated by the identified incident
with no explanation.
In a July 26, 2013 progress note, Dr. Mark B. Kerner, a treating Board-certified
orthopedic surgeon, reported that appellant was status post laminectomy for an employment
injury sustained in October 2012. He noted that appellant was seen for back pain following
sitting into a chair at work on Wednesday. Appellant was unaware that the chair had been
readjusted so that it “caused him to fall and lurch with sudden onset of” right-sided back pain
radiating into his leg and buttocks. The physical examination revealed equivocal straight leg
raise, difficulty getting into and out of a chair and standing with a list. Based on appellant’s
symptoms, Dr. Kerner opined that appellant may have suffered an annular tear, if not a
significant disc herniation.
By letter dated August 12, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required to establish his claim and provided 30 days to provide such information.
In an August 30, 2013 report, Dr. Kerner noted that appellant fell while getting into his
chair at work on July 24, 2013 after it had been readjusted. Appellant reported a sudden onset of
pain in his right buttock, leg and back with a grabbing sensation in his right leg. Dr. Kerner
reviewed a magnetic resonance imaging (MRI) scan which showed a dramatic aseptic discitis in
the lumbar spine which he opined was a traumatic inflammatory injury. He related that in
October 2012 appellant underwent surgery for a laminectomy at L4-5, which was the level of his
current injury. Dr. Kerner diagnosed lumbar strain and postlaminectomy lumbar syndrome with
lumbar aseptic discitis. He related that the fall at work injured appellant’s back and exacerbated
his back and leg pain. Dr. Kerner attributed appellant’s current condition to the July 24, 2013
work incident.
By decision dated September 19, 2013, OWCP denied appellant’s claim. It found that he
failed to establish a diagnosed medical condition causally related to the accepted July 24, 2013
work incident.2
In a September 23, 2013 report, Dr. Kerner noted that an August 15, 2013 MRI scan
supported his diagnosis of lumbar spine post-traumatic aseptic discitis. He stated that appellant
was totally disabled due to severe back and leg pain.
2

The record also contains an identical decision denying appellant’s claim dated September 24, 2013. However,
the September 24, 2013 decision is unsigned while the September 19, 2013 decision is signed by both, the claims
examiner and supervisory claims examiner.

2

In a letter dated September 24, 2013, appellant requested reconsideration.
By decision dated October 17, 2013, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
3

The Board notes that, following the October 17, 2013 decision, OWCP received additional evidence. Appellant
also submitted new evidence with his appeal to the Board. However, the Board may only review evidence that was
in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176
(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

Supra note 1.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

See Elaine Pendleton, 40 ECAB 1143 (1989); K.K., Docket No. 13-1205 (issued December 13, 2013).

8

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

3

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 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.12
ANALYSIS
Appellant filed a traumatic injury claim attributing his back condition to falling in his
chair that had its settings changed without his knowledge. OWCP accepted that the incident
occurred as alleged on July 24, 2013.
OWCP denied appellant’s claim finding that the medical evidence was insufficient to
establish that his low back condition was caused or aggravated by his accepted work incident.
In a July 26, 2013 attending physician’s form Dr. Soni diagnosed low back and checked
“yes” to the question of whether injury had been caused or aggravated by the identified
employment activity. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “yes” to a form question, without explanation or rationale, that opinion
is of diminished probative value and is insufficient to establish a claim.13
The Board finds that the medical evidence submitted by Dr. Kerner generally supports
that he sustained an aggravation of his preexisting lumbar condition causally related to the
accepted July 24, 2013 incident.
Dr. Kerner’s reports noted that appellant had a preexisting condition for which he
underwent a laminectomy L4-5 in October 2012. He reviewed the MRI scan from 2012 with
that obtained in August 2013. Dr. Kerner noted an increased L4-5 contrast with small disc
protrusion. He diagnosed postlaminectomy syndrome of the lumbar spine with aseptic discitis
which he attributed to the July 24, 2013 work incident.
The Board finds that while Dr. Kerner’s reports are not sufficient to meet appellant’s
burden of proof to establish his claim with regard to an aggravation of his preexisting lumbar
condition, they raise a substantial inference between appellant’s claimed lumbar condition and
the employment injury of July 24, 2013. Dr. Kerner had a history of appellant’s preexisting
lumbar condition for which he underwent surgery in 2012. He had an accurate history of the
accepted July 24, 2013 incident accepted in this case. Moreover, Dr. Kerner contrasted the
diagnostic tests of 2012 with those obtained in 2013 on which he based a diagnosis of
postlaminectomy syndrome with aseptic discitis, noting a small disc protrusion at L4-5.

11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

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

13

D.D., 57 ECAB 734 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

4

Based on Dr. Kerner’s reports, the case will be remanded to OWCP for further
development of the medical evidence. It should prepare a statement of accepted facts and obtain
a rationalized medical opinion as to whether the July 24, 2013 incident caused or aggravated
appellant’s preexisting lumbar condition. Following this and such other development as it deems
necessary, OWCP 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 decisions of the Office of Workers’
Compensation Programs dated October 17 and September 19, 2013 are set aside and the case
remanded for further proceedings consistent with this decision of the Board.
Issued: October 10, 2014
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-310
Issued: August 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2008 appellant, through her attorney, filed a timely appeal from
May 21 and September 24, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award decisions.
ISSUE
The issue is whether appellant has more than a 23 percent permanent impairment of the
right upper extremity for which she received schedule awards.
FACTUAL HISTORY
This case is before the Board for the fourth time. In the initial appeal, the Board set aside
an August 22, 2001 decision after finding that appellant filed a timely request for
reconsideration. The Board affirmed a May 1, 2001 decision finding that she did not establish a

recurrence of disability on December 8, 2000 due to her June 1994 work injury.1 On appeal for
the second time, the Board set aside a February 22, 2006 decision denying appellant’s claim for
an increased schedule award.2 The Board instructed the Office to refer her for a second opinion
evaluation to accurately access the extent of her permanent impairment.
On appeal for the third time, the Board set aside a June 14, 2007 decision finding that
appellant had no more than a 23 percent permanent impairment of the right upper extremity and
a 6 percent permanent impairment of the left upper extremity.3 The Board found that
Dr. Alexander L. Lambert, II, a Board-certified orthopedic surgeon and Office referral
physician, provided inadequate clinical findings in finding appellant had a three percent bilateral
impairment due to loss of range of motion of the shoulders and failed to apply the proper
provisions of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides), in finding right and left upper extremity
impairments due to carpal tunnel syndrome. The Board further determined that Dr. Lambert did
not reference the A.M.A., Guides in concluding that appellant had a 10 percent impairment due
to arthritis of the AC joint on the right. The Board noted that the Office medical adviser
concurred with Dr. Lambert’s findings with the exception of the 10 percent impairment for AC
joint arthritis. The Board remanded the case for further development after concluding that
neither Dr. Lambert nor the Office medical adviser provided an impairment conforming to the
A.M.A., Guides. The findings of fact and conclusions of law from the prior decisions are hereby
incorporated by reference.
On remand the Office determined that a conflict in medical evidence existed between
Dr. Lambert and the Office medical adviser and referred appellant to Dr. William Fleming, a
Board-certified orthopedic surgeon, for resolution of the conflict. It requested that the impartial
medical examiner determine whether she was entitled to impairment due to AC joint
degenerative arthritis. Based on Dr. Fleming’s report, by decision dated May 21, 2008, the
Office found that appellant was not entitled to an increased schedule award. On June 2, 2008
appellant’s attorney requested reconsideration, arguing that Dr. Fleming could not serve as
impartial medical examiner as he had previously performed an examination.
On July 16, 2008 the Office referred appellant to Dr. Terry L. Whipple, a Board-certified
orthopedic surgeon, for an impartial medical examination. It noted that the issue was whether
appellant had more than the 23 percent impairment of the right upper extremity previously
awarded and described the disagreement between Dr. Lambert and the Office medical adviser
over whether she had an impairment due to AC joint arthritis.
In a report dated August 12, 2008, Dr. Whipple indicated that he understood that a
conflict existed regarding whether appellant was entitled to an award for right AC joint
1

Docket No. 02-273 (issued February 27, 2003). The Office accepted appellant’s claim for bilateral
epicondylitis, fibromyalgia, bilateral carpal tunnel syndrome, acromioclavicular (AC) joint arthritis, rotator cuff
tendinosis and right shoulder impingement syndrome. By decision dated March 6, 1995, it granted her a schedule
award for an 11 percent permanent impairment of the right upper extremity and a 6 percent permanent impairment
of the left upper extremity. On March 7, 2000 the Office granted appellant a schedule award for an additional 12
percent impairment of the right upper extremity.
2

Docket No. 06-879 (issued October 17, 2006).

3

Docket No. 07-1889 (issued January 29, 2008).

2

degenerative arthritis and would thus “concentrate my report on physical findings and any
appropriate physical impairment ratings of the acromioclavicular arthritis, per request.” He
determined that she was not entitled to an additional award for an impairment of the AC joint
arthritis as it was included in her impairment due to loss of range of motion under the A.M.A.,
Guides.4 Dr. Whipple thus concluded that appellant did not have more than a 23 percent
permanent impairment of the right upper extremity. He stated, “The original PPI [permanent
partial impairment] awards for her right and left upper extremities are unchallenged and need not
[be] recapitulated.”
On September 3, 2008 an Office medical adviser reviewed Dr. Whipple’s report and
concurred with his findings. By decision dated September 24, 2008, the Office denied
modification of its May 21, 2008 decision after finding that the medical evidence did not support
that appellant had more than a 23 percent permanent impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,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, 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.7 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.8
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.10 Accordingly, once the Office undertakes to develop the medical evidence
further, it has the responsibility to do so in the proper manner.11
9

ANALYSIS
By decision dated January 29, 2008, the Board remanded the case for the Office to
further develop the medical evidence. The Board found that Dr. Lambert, the Office referral
4

A.M.A., Guides 499.

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 (June 2003).

9

Vanessa Young, 55 ECAB 575 (2004).

10

Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

3

physician, did not properly apply the A.M.A., Guides in determining appellant’s impairment due
to loss of range of motion and carpal tunnel syndrome and did not explain his finding that she
had an impairment due to AC joint arthritis on the right side. The Board noted that the Office
medical adviser concurred with Dr. Lambert’s impairment evaluation except for the right AC
joint arthritis. The Board found that neither the Office medical adviser nor Dr. Lambert properly
applied the A.M.A., Guides and remanded the case for the Office to obtain an opinion in
accordance with the A.M.A., Guides.
On remand the Office found that a conflict in medical opinion existed between
Dr. Lambert and the Office medical adviser regarding whether appellant was entitled to an
additional impairment due to right AC joint arthritis. The record, however, did not contain a
conflict in medical evidence but instead, as found by the Board, lacked an opinion on her
impairment that comported with the A.M.A., Guides. Dr. Whipple, consequently, was a referral
physician rather than an impartial medical examiner. He provided an opinion that addressed
only whether appellant was entitled to an impairment for right AC joint arthritis rather than
determining the full extent of her right and left upper extremity impairments. Consequently, the
Office has not, as instructed by the Board, obtained an opinion sufficient to determine the extent
of appellant’s impairment of the upper extremities. The case will again be remanded for that
purpose.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 24 and May 21, 2008 are set aside and the case is
remanded for further proceedings in accordance with this opinion of the Board.
Issued: August 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MacDILL AIR FORCE BASE, FL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 10-1292
Issued: April 7, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 6, 2010 appellant, through her representative, filed an application for review of
an Office of Workers’ Compensation Programs’ decision dated December 30, 2009 which
denied modification of a decision denying her request for an additional schedule award.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to the Office. In the case of William A. Couch,1 the Board held
that, when adjudicating a claim, the Office is obligated to consider all evidence properly
submitted by a claimant and received by the Office before the final decision is issued. On
October 21, 2008 the Office granted appellant a schedule award for three percent impairment of
the left arm. In a letter dated October 19, 2009, appellant requested reconsideration. The record
indicates that, after the October 21, 2008 decision, appellant submitted additional evidence. This
included reports dated October 19 and 22, 2009 from Dr. Feroze A. Yusufji, appellant’s treating
physician. These documents were received by the Office on October 29 and 30, 2009
respectively. In its December 30, 2009 decision, the Office denied modification of the
October 21, 2008 decision and referenced the October 19, 2009 report from Dr. Yusufji but did
not note receipt or consideration of the October 22, 2009 report. The Office noted that “Dr.
Yusufji did not indicate that you had sustained a degree of impairment greater than the percent of
the left arm previously awarded.” However, Dr. Yusufji’s October 22, 2009 report opined that
1

41 ECAB 548 (1990).

appellant sustained six percent impairment under the American Medical Association, Guides to
the Evaluation of Permanent Impairment.
The Board finds that the Office, in its December 30, 2009 decision, did not review the
October 22, 2009 report from Dr. Yusufji that was received by the Office on October 30, 2009.
For this reason, the case will be remanded to the Office to enable it to properly consider all the
evidence submitted at the time of the December 30, 2009 decision. Following such further
development as the Office deems necessary, it shall issue an appropriate decision on the merits
of the claim.
IT IS HEREBY ORDERED THAT the December 30, 2009 decision of Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
proceedings consistent with this order of the Board.
Issued: April 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2