United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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

Docket No. 12-1858
Issued: February 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 6, 2012 appellant, through his attorney, filed a timely appeal from a
June 12, 2012 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.
ISSUE
The issue is whether appellant has more than a 12 percent right arm permanent
impairment.
FACTUAL HISTORY
On January 26, 2009 appellant, then a 64-year-old custodian, filed an occupational claim
(Form CA-2) alleging a shoulder injury causally related to moving boxes earlier that month. On

1

5 U.S.C. § 8101 et seq.

October 7, 2010 OWCP accepted the claim for right shoulder strain and cervical radiculopathy.
Appellant subsequently claimed a schedule award for permanent impairment.
In a report dated April 1, 2011, Dr. Irwin Moskowitz, a Board-certified orthopedic
surgeon, provided a history and results on examination. With respect to right shoulder range of
motion, he reported 160 degrees of flexion, 100 degrees abduction, 65 degrees external rotation
and 45 degrees internal rotation. Dr. Moskowitz noted hypesthesia in the digits consistent with a
C6, C7 and C8 radiculopathy. As to permanent impairment, he applied Table 15-34 (shoulder
range of motion) of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Moskowitz found a three percent
impairment for loss of flexion and abduction and six percent for loss of internal rotation. In
addition, he found a one percent impairment based on a QuickDASH score of 47.2
Dr. Moskowitz applied Table 15-21 for peripheral nerve impairments, identifying the axillary
nerve (C6) and the radial nerve (C7 and 8) and finding an additional one percent for each nerve,
resulting in a 15 percent right arm impairment.
In a report dated August 4, 2011, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and an OWCP medical adviser, opined that appellant’s right arm impairment was 12
percent. The medical adviser found that application of the range of motion table (Table 15-34)
resulted in a 10 percent arm impairment. An additional one percent was found due to the
QuickDASH score. Dr. Berman disagreed with Dr. Moskowitz with respect to a peripheral nerve
impairment. He stated that only a C6 impairment was warranted based on electromyogram
(EMG) and magnetic resonance imaging (MRI) scan results. Under the A.M.A., Guides
Newsletter (July/August 2009) (The Guides Newsletter), the C6 nerve impairment was one
percent.
By decision dated November 30, 2011, OWCP granted a schedule award for a 12 percent
right arm permanent impairment. The period of the award was 37.44 weeks from April 1, 2011.
In a letter dated December 5, 2011, appellant, through his representative, requested a
hearing before an OWCP hearing representative. A hearing was held on March 27, 2012.
By decision dated June 12, 2012, the hearing representative found the evidence did not
establish more than a 12 percent right arm permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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
2

QuickDASH refers to Disabilities of the Arm, Shoulder and Hand, a functional assessment methodology
discussed in the A.M.A., Guides.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

2

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.5 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For schedule awards issued after May 1,
2009, the impairment is evaluated under the sixth edition.7 As to peripheral nerve impairments
to the upper or lower extremities resulting from spinal injuries, OWCP’s procedures indicate that
The Guides Newsletter “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) is to be applied.8
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.9 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.10
ANALYSIS
In the present case, there are two probative medical reports with respect to a right arm
permanent impairment. Dr. Moskowitz examined appellant and found that he had a 15 percent
right arm impairment under the A.M.A., Guides. Dr. Berman found that appellant had a 12
percent impairment. While OWCP found the medical adviser’s report to represent the weight of
the evidence, the reports are of similar probative value on the issue.
With respect to application of Table 15-34, Dr. Moskowitz reported 160 degrees of
shoulder flexion, 100 degrees abduction, 65 degrees external rotation and 45 degrees internal
rotation. According to Table 15-34, there is no impairment for external rotation, a three percent
arm impairment for flexion and three percent for abduction.11 As noted by an OWCP medical
adviser, Dr. Moskowitz incorrectly found a six percent impairment for internal rotation, as 45
degrees results in a four percent arm impairment under Table 15-34.12
5

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

6

20 C.F.R. § 10.404 (1999).

7

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

8

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Newsletter is included as Exhibit 4.
9

5 U.S.C. § 8123.

10

20 C.F.R. § 10.321 (1999).

11

A.M.A., Guides 475, Table 15-34.

12

Id.

3

Since the loss of range of motion impairment is less than 12 percent, under Table 15-35
the grade modifier is one.13 This may be adjusted by the functional history as provided under
Table 15-36 and the QuickDASH score of 47 results in a net modification of +.5 percent.14 Both
Dr. Moskowitz and the medical adviser provided an additional one percent based on the
functional history adjustment.
The disagreement between Dr. Moskowitz and the medical adviser occurs over whether a
peripheral nerve impairment for the C7 or C8 nerve root was appropriate. The medical adviser
stated that the diagnostic tests showed a C6 radiculopathy only and that nerve root should be
considered.15 Dr. Moskowitz examined appellant and noted hypesthesias that were consistent
with C6, C7 and C8 radiculopathy. The case will be remanded for resolution of the conflict on
this issue.
An OWCP medical adviser correctly noted that The Guides Newsletter
(July/August 2009) is the appropriate method for evaluating peripheral neuropathies under
FECA. The Newsletter provides separate impairments for C6, C7 and C8.16 The Board notes
that the medical adviser did not explain how the Newsletter was applied for a C6 nerve
impairment. According to the table provided in the Newsletter, the default value of one percent
may be adjusted (up to an additional one percent based on functional history and clinical studies)
for mild sensory deficit, but the medical adviser applied the default value without further
explanation.
Pursuant to 5 U.S.C. § 8123(a), the case will be remanded for selection of a referee
physician and referral for a rationalized medical opinion on the issue presented. The referee
physician should explain whether a C7 or C8 impairment exits, identify the applicable tables for
rating impairment and apply the tables and Newsletter as warranted.17 After such further
development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case must be remanded for resolution of a conflict in the medical
evidence.

13

Id. at 477, Table 15-35.

14

A QuickDASH score of 47 is a grade modifier 2 under Table 15-7, resulting in a net modifier of 1 (2-1) under
Table 15-36. According to Table 15-36 the impairment is thus 5 percent of 10 percent or .5 percent.
15

There is an EMG report dated January 28, 2011 stating that the findings were suggestive of a C6 radiculopathy.
The report also generally noted a mild sensory peripheral neuropathy.
16

The Guides Newsletter (July/August 2009), Proposed Table 1. According to Proposed Table 1, there is a
maximum of two percent for mild sensory deficit in the C6 nerve root and a maximum of one percent each for
C7 and C8 for mild sensory deficit.
17

The Board notes that, while an OWCP medical adviser may review a referee’s report, it is referee who must
properly resolve the conflict, not the medical adviser. Thomas J. Fragale, 55 ECAB 619 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2012 is set aside and the case remanded for action
consistent with this decision of the Board.
Issued: February 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 11-294
Issued: September 8, 2011

Case Submitted on the Record

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

JURISDICTION
On November 11, 2010 appellant, through her representative, filed a timely appeal from
the May 28 and August 25, 2010 merit decisions of the Office of Workers’ Compensation
Programs (OWCP), which denied separate recurrence claims. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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’s August 24, 1992 employment injury caused a recurrence
of disability for work beginning May 7, 2001 or November 14, 2008.
FACTUAL HISTORY
On August 24, 1992 appellant, then a 32-year-old letter carrier, sustained an injury in the
performance of duty when her left knee struck the bumper of her postal vehicle. She declined
1

5 U.S.C. § 8101 et seq.

medical attention and did not stop work at that time. OWCP accepted her claim for left knee
strain. It later accepted right hip contusion and lumbosacral strain.2 Appellant received
compensation for wage loss and a schedule award for permanent impairment of both lower
extremities due to her back condition.3
Appellant filed a claim for compensation alleging that her August 24, 1992 employment
injury caused a recurrence of disability from May 7 to 29, 2001. Her orthopedic surgeon,
Dr. Thomas Grotz, supported total disability beginning May 7, 2001 as a result of prolonged
sitting. He found that appellant had not recovered from her initial condition, which was prone to
recurrence. Dr. Thomas Dorsey, an orthopedic surgeon and OWCP referral physician, disagreed.
He found that appellant had no significant anatomic findings in her lumbar spine or right hip on
examination, and he noted there was no medical evidence to support that she had any recurrence
related to those areas in May 2001.
To resolve the conflict, OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. Harry A. Khasigian, a Board-certified orthopedic surgeon,
who examined appellant on July 28, 2010. Dr. Khasigian noted her complaints and related the
history of her 1992 employment injury. He described his findings on physical examination and
reviewed diagnostic tests. Dr. Khasigian diagnosed mild lumbar spondylosis with mild
degenerative disc disease and neural foraminal narrowing without radiculopathy. He also
diagnosed right patellofemoral and lateral compartment joint space narrowing and
chondromalacia without meniscal tear, as well as chronic patellofemoral arthrosis secondary to
postural patellar subluxation and secondary chondromalacia due to postural abnormalities.
Dr. Khasigian noted that the August 24, 1992 employment injury caused a mild contusion
of the left and right knees and a lumbar spine strain with sclerotomal pain to the right iliac crest.
He noted that appellant had minimal findings when evaluated at the emergency room, was
subsequently seen by a rheumatologist and orthopedist with essentially normal examination “and
her condition resolved.” Dr. Khasigian explained that appellant underwent a significant amount
of medical treatment unrelated to her minor injury: “Falling forward is not an injurious situation
for the lumbar spine and her treatment, evaluation and x-rays at the time did not reveal any
structural abnormalities and a few months postinjury her examinations are reported as normal in
the records.” He found that the panorama of treatment and repeat evaluations did not appear to
have any medically reasonable association with her initial minor work injuries.
Dr. Khasigian explained that appellant, who was tall and thin with valgus knees, was
predisposed over the years to patellofemoral arthrosis. He found her degenerative disc disease to
be genetic and unrelated to falling forward on hands and knees in 1992. Dr. Khasigian found
2

Appellant stated after the fact that the incident caused her to fall forward to the ground and land on her hands
and knees. The acting supervisor to whom she reported the injury and a superintendent who was present at the time
both confirmed that appellant mentioned nothing about falling down. In 1994 an OWCP hearing representative
accepted as factual, based on appellant’s testimony, that appellant had indeed fallen to the ground on
August 24, 1992.
3

Appellant sustained a second injury on May 31, 1994 while pulling down a route. OWCP accepted that claim
for cervical strain, right shoulder strain, right shoulder impingement and cervical disc herniation. OWCP File No.
xxxxxx429. That claim is not before the Board on this appeal.

2

that appellant’s current diagnoses would be present in the absence of the 1992 injuries because
she had a relatively benign work history subsequently, which would not have aggravated her
conditions.
Dr. Khasigian concluded that appellant no longer suffered residuals of the injuries to her
left knee, right hip or low back. Responding to questions posed by OWCP, he repeated that her
1992 injuries were minor or simple conditions of minor tissue injury that resolved within three to
six weeks. They resulted in no permanent disability and had no basis for future residuals. There
were no bony abnormalities. Specialists had noted normal examinations with no basis for
appellant’s elevated subjective complaints. Appellant’s current presentation showed no
condition that was trauma related.
On the issue of disability beginning May 7, 2001, Dr. Khasigian explained that the three
accepted medical conditions were short-lived and would not have been present after three to six
weeks from their onset in 1992. As appellant’s continued treatment appeared to have no
reasonable medical basis subsequent to that time frame, there appeared to be no basis relative to
her minimal conditions for total disability beginning May 7, 2001.
In a decision dated August 25, 2010, OWCP denied appellant’s claim that she sustained a
recurrence of disability beginning May 7, 2001. It found that the opinion of Dr. Khasigian, the
impartial medical specialist, was entitled to special weight and established no disability
beginning May 7, 2001 relative to the accepted injuries to the left knee, right hip or low back.
On June 25, 2007 appellant accepted, under protest, a permanent limited-duty job offer.
She never returned to work and remained on leave-without-pay status. On July 16, 2008
appellant was issued a Notice of Proposed Separation/Disability after being in a leave-withoutpay status for 365 days. Effective December 4, 2008, she was separated due to her physical
inability to meet the demands of her position, according to a notification of personnel action.4
On February 6, 2009 appellant filed a claim alleging that her August 24, 1992 employment
injury caused a recurrence of disability, as her employer withdrew her limited-duty position on
November 14, 2008.
In a decision dated May 28, 2010, OWCP denied appellant’s recurrence claim. It found
that she did not meet her burden to establish that the employer withdrew a light-duty assignment
made specifically to accommodate her work restrictions.
On appeal, appellant argues that Dr. Khasigian based his opinion predominantly on
medical data received after the conflict and not on the medical data OWCP received prior to that
that date. She argues that Dr. Khasigian failed to address her permanent impairment rating and
that his opinion that she suffered only soft-tissue injuries tends to conflict with OWCP’s
determination of the accepted conditions. With respect to her later recurrence claim, appellant
argues that an injury on June 22, 2007 (OWCP File No. xxxxxx666) prevented her from being

4

On November 3, 2008 the employer verified that appellant was separated effective November 15, 2008 “as she
has been absent without leave for more than 365 days.” The employer stated there was no nonaccommodation issue
relative to any accepted work injury.

3

able to drive as required by her postal vision coordinator position, which was assigned to her
under OWCP File No. xxxxxx429.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of her duty.5 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.6
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. This term 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 her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed her established physical
limitations.7
The employee has the burden of establishing by the weight of reliable, probative and
substantial evidence that the recurrence of disability is causally related to the original injury.8
When a claimant stops work for reasons unrelated to the accepted employment injury, there is no
disability within the meaning of FECA.9
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.10 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11

5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Id. § 10.5(x).

8

Id. § 10.104(b).

9

J.S., Docket No. 10-2104 (issued June 6, 2011) at n.8.

10

5 U.S.C. § 8123(a).

11

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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ANALYSIS
Appellant appealed OWCP’s August 25, 2010 decision denying her claim that the
August 24, 1992 employment injury caused a recurrence of disability beginning May 7, 2001.
She sustained injuries in the performance of duty on August 24, 1992 when her left knee struck
the bumper of her postal vehicle. Appellant would later claim that this incident caused her to fall
forward onto her hands and knees. OWCP accepted her claim for left knee strain, right hip
contusion and lumbosacral strain. The question for determination is whether the accepted strains
and contusion in 1992 caused a recurrence of disability for work beginning May 7, 2001.
To resolve a conflict between appellant’s orthopedic surgeon, Dr. Grotz, and the OWCP
referral orthopedic surgeon, Dr. Dorsey, OWCP properly referred appellant to an impartial
medical specialist. OWCP provided Dr. Khasigian, a Board-certified orthopedic surgeon, with
appellant’s case record and a statement of accepted facts so he could base his opinion on a proper
factual and medical history. Having related appellant’s history and complaints, and having
examined her and reviewed her medical records, it was Dr. Khasigian opinion that the injuries of
August 24, 1992 were minor soft-tissue injuries that resolved within three to six weeks. To
support this view, he pointed to minimal findings at the emergency room and essentially normal
examinations when appellant later saw a rheumatologist and an orthopedist. Appellant’s
treatment, evaluation and x-rays revealed no structural abnormalities, and a few months
postinjury her examinations were normal. Dr. Khasigian added that falling forward was not an
injurious situation for the lumbar spine and that her current presentation showed no condition
that was trauma related.
As the three accepted medical conditions would not have been present after three to six
weeks from their onset in 1992, Dr. Khasigian concluded that there appeared to be no basis
relative to those conditions for total disability beginning May 7, 2001. The Board finds that
Dr. Khasigian based his opinion on a proper factual and medical background. The Board further
finds that his opinion is sufficiently well reasoned that it must be accorded special weight in
resolving the conflict. Dr. Khasigian supported his opinion with an explanation that was sound,
rational and logical. Accordingly, as the weight of the medical opinion evidence fails to
establish that the August 24, 1992 employment injury caused a recurrence of disability for work
beginning May 7, 2001, the Board finds that appellant has not met her burden of proof. The
Board will affirm OWCP’s August 24, 2010 decision.
Appellant also appeals OWCP’s May 28, 2010 decision denying her claim that the
August 24, 1992 employment injury caused a recurrence of disability beginning
November 14, 2008. She claimed that her employer had withdrawn her limited-duty position.
Although a withdrawal of light duty can form the basis of a recurrence claim, the assignment
withdrawn must have been made specifically to accommodate the employee’s physical
limitations due to her work-related injury or illness. Here, the record does not show that the
permanent light-duty job offer that appellant accepted under protest on June 25, 2007 was made
specifically to accommodate her August 24, 1992 employment injury. Indeed, the weight of the
medical opinion evidence establishes that appellant’s August 24, 1992 employment injury was
short-lived and long resolved, leaving no residuals of the accepted left knee strain, right hip
contusion or lumbosacral strain. If appellant were separated for being absent without leave for
more than 365 days, then her absence from work was unrelated to her 1992 employment injury.

5

If she were separated for her physical inability to meet the demands of her position, then the
weight of the medical evidence does not support a causal connection to the minor soft-tissue
injuries she sustained on August 24, 1992. As Dr. Khasigian explained, appellant currently
suffers from conditions unrelated to her 1992 employment injury, including mild lumbar
spondylosis with mild degenerative disc disease and neural foraminal narrowing without
radiculopathy, right patellofemoral and lateral compartment joint space narrowing and
chondromalacia without meniscal tear, as well as chronic patellofemoral arthrosis secondary to
postural patellar subluxation and secondary chondromalacia due to postural abnormalities. Any
disability for work caused by these medical conditions does not establish a recurrence as that
term is defined.
The Board therefore finds that appellant has not met her burden of proof to establish that
the August 24, 1992 employment injury caused a recurrence of disability beginning
November 14, 2008. The Board will affirm OWCP’s May 28, 2010 decision.
Appellant argues on appeal that Dr. Khasigian based his opinion predominantly on
medical data received after the creation of the conflict, but his report clearly relies on the medical
evidence contemporaneous to the August 24, 1992 employment injury. It was appellant’s early
treatment, evaluations and x-rays that confirmed the mild nature of her soft-tissue injuries.
Dr. Khasigian concluded that her injuries resolved only a few months after onset because her
examinations at that time were normal. He did not discuss appellant’s permanent impairment
ratings, but this does not diminish the probative value of his opinion so much as it calls into
question the merits of appellant’s schedule award. To be clear, OWCP accepted, and the weight
of the medical opinion establishes, that the August 24, 1992 injury caused only soft-tissue
injuries: a left knee strain, a right hip contusion and a lumbosacral strain. How these soft-tissue
injuries caused permanent impairment to both of appellant’s lower extremities is not before the
Board on this appeal, so the Board will not review the merits of her schedule award.
As for her later recurrence claim, appellant argues that an injury on June 22, 2007
(OWCP File No. xxxxxx666) prevented her from being able to drive as required by her postal
vision coordinator position, which was assigned to her under OWCP File No. xxxxxx429. Those
claims are not material to the issue under consideration. On February 6, 2009 appellant filed a
claim alleging that her August 24, 1992 employment injury caused a recurrence of disability on
November 14, 2008. She has not met her burden to establish that claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
August 24, 1992 employment injury caused a recurrence of disability for work beginning May 7,
2001 or November 14, 2008.

6

ORDER
IT IS HEREBY ORDERED THAT the August 25 and May 28, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 8, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
J.V., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 18-1052
Issued: November 8, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 26, 2018 appellant filed a timely appeal from a December 6, 2017 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 13 percent
permanent impairment of his right upper extremity for which he previously received a schedule
award, and whether he has established permanent impairment of his left upper extremity.
FACTUAL HISTORY
On December 17, 2013 appellant, then a 56-year-old cargo scheduler, filed an occupational
disease claim (Form CA-2) alleging that he sustained arthritis at the base of his thumbs due to
1

5 U.S.C. § 8101 et seq.

tightening cargo nets for over 30 years.2 He did not stop work, but the employing establishment
indicated that it had modified his job duties. OWCP accepted the claim for bilateral localized
primary osteoarthritis of the hands.
On May 7, 2015 appellant underwent an arthroplasty of the carpometacarpal (CMC) joint
of the right thumb and a right one bone carpectomy and hemitrapezoidectomy. He stopped work
on May 7, 2015 and returned to work on July 20, 2015.
Appellant, on November 25, 2015, filed a claim for a schedule award (Form CA-7). By
letter dated December 3, 2015, OWCP advised him that the medical evidence of record was
insufficient to establish that he had reached maximum medical improvement (MMI).
On January 15, 2016 Dr. Chunbo C. Cai, a Board-certified physiatrist, requested a copy of
the letter from OWCP asking for an opinion regarding whether appellant had reached MMI. In a
February 1, 2016 response, OWCP requested that Dr. Cai submit an impairment evaluation
addressing whether appellant had reached MMI and providing a permanent impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).3
In a report dated February 18, 2016, Dr. Cai advised that she did not perform impairment
ratings using the sixth edition of the A.M.A., Guides. She opined that appellant had reached MMI
on January 28, 2016. Dr. Cai diagnosed osteoarthritis of the bilateral right first CMC joint. She
found full strength of both wrists and measured range of motion of the wrists and thumbs
bilaterally.4
On April 19, 2016 appellant advised OWCP that his physician did not perform ratings of
permanent impairment using the sixth edition of the A.M.A., Guides and requested referral for an
impairment evaluation.
OWCP, on August 5, 2016, referred him to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of permanent
impairment of the upper extremities.
Dr. Swartz, in a September 6, 2016 impairment evaluation, noted that appellant complained
of difficulty climbing ladders and ratcheting loads due to his thumb condition. He noted that the
surgery on his right thumb had resulted in decreased motion as opposed to the left thumb.
Dr. Swartz discussed appellant’s complaints of some numbness at the base of the right thumb
around a branch of the radial nerve and pain at the base of both thumbs as demonstrated on a pain
2

OWCP previously accepted that appellant sustained a right foot contusion on September 9, 2003 under File No.
xxxxxx622.
3

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

4

Dr. Cai measured range of motion of the wrists bilaterally as 60 degrees flexion, 50 degrees extension, 20 degrees
radial deviation, and 30 degrees ulnar deviation. She measured motion at the right CMC joint of the thumb as 15
degrees flexion, 20 degrees extension, 70 degrees adduction, and 0 degrees abduction and at the left CMC joint as 15
degrees flexion, 15 degrees extension, 70 degrees adduction, and 0 degrees abduction.

2

drawing. He diagnosed an interposition arthroplasty of the CMC joint of the right thumb for
osteoarthritis, left thumb osteoarthritis at the CMC joint, a right hemitrapezoidectomy for
osteoarthritis of the right wrist scaphotrapezial joint, and status post arthroplasty of the
scaphotrapezial joint of the right wrist. On examination, Dr. Swartz measured abduction of the
CMC joint of the thumbs as 40 degrees on the right and 50 degrees on the left, flexion of the
metacarpophalangeal (MP) joint of the thumbs as 30 degrees on the right and 70 degrees on the
left, and flexion at the interphalangeal (IP) joint of the thumbs as 60 degrees on the right and 70
degrees on the left. On adduction, he found that appellant’s right thumb missed the ulnar border
by two centimeters and his left thumb missed the ulnar border by one and a half centimeters.
Dr. Swartz measured eight centimeters of right and left thumb opposition. He found hypoesthesias
near the scar over the right thumb and right radial wrist and normal left thumb and wrist sensation.
Dr. Swartz measured range of motion of the wrists as 40 degrees palmar flexion on the right and
60 degrees on the left, 40 degrees dorsiflexion on the right and 60 degrees on the left, 15 degrees
radical deviation on the right and 20 degrees on the left, and 20 degrees ulnar deviation on the right
and 30 degrees on the left.
Dr. Swartz determined that, according to Table 15-2 on page 393 of the A.M.A., Guides,
he should rate appellant’s right thumb impairment using the range of motion (ROM) methodology
given the findings on examination of motion loss. He found that 40 degrees abduction yielded two
percent impairment of the digit, adduction of two centimeters yielded no impairment, and
opposition of eight centimeters yielded no impairment. Dr. Swartz further determined that 30
degrees flexion at the MP joint yielded four percent impairment and 60 degrees IP joint flexion
yielded one percent impairment. He combined the impairment values to find seven percent right
thumb impairment, or three percent right upper extremity permanent impairment. Dr. Swartz
found no change with the application of grade modifiers. He further determined that, for the right
wrist, 40 degrees extension yielded three percent permanent impairment, 40 degrees flexion
yielded three percent impairment, 15 degrees radial deviation yielded two percent impairment, and
20 percent ulnar deviation yielded two percent impairment, which he added to find 10 percent right
upper extremity impairment. Dr. Swartz combined the impairment ratings to find a total right
upper extremity permanent impairment of 13 percent.
For the left thumb, Dr. Swartz determined that 50 degrees abduction yielded no
impairment, one and a half centimeters of adduction yielded no impairment, eight centimeters of
opposition yielded no impairment, 70 degrees of MP joint flexion yielded no impairment, and 70
degrees IP joint flexion yielded no impairment. He thus found that appellant had no permanent
impairment of the left upper extremity due to loss of range of motion. Regarding a diagnosisbased impairment (DBI) estimate, Dr. Swartz determined that appellant had no instability of the
CMC joint and thus no permanent impairment using Table 15-2 of the A.M.A., Guides.
An OWCP medical adviser reviewed the evidence on October 24, 2016. He concurred
with Dr. Swartz’ finding that appellant had 13 percent right upper extremity impairment and no
impairment of the left upper extremity. The medical adviser determined that Dr. Swartz properly
used the ROM methodology as directed by the wrist regional grid at Table 15-3 and the digit
regional grid at Table 15-2 in the absence of normal motion.
By decision dated December 20, 2016, OWCP granted appellant a schedule award for 13
percent permanent impairment of his right upper extremity. It determined that he had no

3

impairment of his left upper extremity. The period of the award ran for 283.92 days5 from
September 6, 2016 to July 16, 2017.
On September 15, 2017 appellant requested reconsideration. In a September 9, 2017
statement, he advised that he experienced reduced motion, pain with movement, stiffness, and
difficulty grasping and holding items in both thumbs equally. Appellant maintained that he had
retired due to his injury and his physician determined that he was totally disabled.
In a February 2, 2017 work status report, Dr. Richard George Lasslo, Board-certified in
family medicine, found that appellant was disabled from work due to “blindness, hand pain, and
psychological symptoms.”
By decision dated December 6, 2017, OWCP denied modification of its December 20,
2016 decision. It found that Dr. Lasslo did not address the extent of appellant’s permanent
impairment.
On appeal appellant asserts that he has problems with both thumbs and had to retire due to
his injury which resulted in a loss of income. He notes that his physician found that he was
permanently disabled. Appellant relates that he has not found a physician in his area who will
perform the necessary impairment evaluation.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
The sixth edition requires identifying the impairment class of diagnosis (CDX) condition,
which is then adjusted by grade modifiers based on functional history (GMFH), physical

5
The decision incorrectly provides that the schedule award ran for 283.92 weeks of compensation. Pursuant to 5
U.S.C. § 8107(c)(1), a total loss of use of an arm (100 percent permanent impairment) provides for 312 weeks of
compensation. Thus, 13 percent permanent impairment of an arm is equivalent to 40.56 weeks of compensation (312
weeks x 13 percent) or 283.92 days as provided in the December 20, 2016 schedule award.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

4

examination (GMPE), and clinical studies (GMCS).10 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating upper extremity impairments.14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original).15
ANALYSIS
The Board finds that the case is not in posture for decision.
In a report dated September 6, 2016, Dr. Swartz found that appellant’s right thumb
impairment should be calculated using the ROM methodology as Table 15-2 of the A.M.A.,
Guides, the digit regional grid, provided a rating for a joint impairment of the thumb only if there
10

A.M.A., Guides 494-531.

11

Id. at 461.

12

Id. at 473.

13

Id. at 474.

14

FECA Bulletin No. 17-06 (issued May 8, 2017).

15

Id.

5

is normal range of motion. As he did not have normal motion, Dr. Swartz properly rated
appellant’s right thumb impairment using the ROM methodology set forth at Table 15-30 on page
468. He further found normal range of motion of the left thumb and no impairment of the CMC
joint under Table 15-2. Dr. Swartz concluded that appellant had three percent right upper
extremity impairment due to loss of motion of the right thumb and no impairment of the left thumb.
He also rated appellant’s right wrist using the range of motion method. Table 15-3, the wrist
regional grid, provides ratings for a wrist arthroplasty with normal motion or for unstable or
infected results, and indicates as an alternative rating the impairment using the ROM method. An
OWCP medical adviser reviewed Dr. Swartz’ opinion and concurred with his use of the ROM to
rate the impairment of the right wrist and thumb.
As noted, FECA Bulletin No. 17-06 indicates that in measuring range of motion, the
evaluator should obtain three independent measurements and the greatest measurement used to
determine the extent of impairment.16 The record does not establish that Dr. Swartz obtained three
measurements prior to rating the extent of appellant’s permanent impairment. FECA Bulletin No.
17-06 provides that the CE should instruct the physician to obtain three independent
measurements.
On remand OWCP should obtain a supplemental report from Dr. Swartz containing three
independent range of measurements for the thumbs and right wrist pursuant to FECA Bulletin No.
17-06. After such further development as deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s entitlement to a schedule award for a permanent impairment of the upper
extremities.17
CONCLUSION
The Board finds that the case is not in posture for decision.

16

Id.

17

See J.F., Docket No. 17-1726 (issued March 12, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 8, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, PROCESSING
)
& DISTRIBUTION CENTER, Milwaukee, WI,
)
Employer
)
__________________________________________ )
R.P., Appellant

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

Docket No. 10-1238
Issued: January 5, 2011

Case Submitted on the Record

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

JURISDICTION
On March 31, 2010 appellant filed a timely appeal from the March 11, 2010 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 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 has more than two percent impairment to his left upper
extremity.
FACTUAL HISTORY
On November 16, 2005 appellant, then a 49-year-old flat sorter clerk, filed an
occupational disease claim alleging that he injured his left elbow and hand due to repetitive work
activities. The Office accepted his claim for left lateral epicondylitis. Appellant also has a claim

accepted for left medial epicondylitis and left cubital tunnel syndrome.1 On September 2, 2009
he underwent surgery for his accepted left cubital tunnel syndrome and left medial epicondylitis
and for nonwork-related left carpal tunnel syndrome performed by Dr. Steven I. Grindel, a
Board-certified orthopedic surgeon.2 On December 8, 2009 appellant filed a claim for a schedule
award.
On December 8, 2009 Dr. Grindel released appellant to full-time work with no
restrictions. He noted that there was some left palm discomfort and numbness along the
posterior/medial left elbow. There was no left hand intrinsic atrophy. Appellant was able to
make a full fist. Dr. Grindel opined that he had two percent left wrist impairment and two
percent left elbow impairment due to scarring and some pain with use.
By letter dated December 21, 2009, the Office asked appellant to provide a report and
impairment rating from his physician based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (the A.M.A., Guides), including
a description of all pertinent objective findings such as decreased strength or sensory changes, a
description of subjective complaints and a recommended percentage of impairment. The report
was to include an explanation of how the impairment percentage was determined with reference
to applicable tables in the A.M.A., Guides. A permanent impairment worksheet was provided
for the physician to complete and sign.
On February 2, 2010 appellant submitted a copy of the Office’s December 21, 2009 letter
on which a physician, apparently Dr. Grindel,3 made brief comments next to the list of
information that the impairment rating report should contain. He noted a December 8, 2009 date
of maximum medical improvement, “none” as to decreased range of motion, “pain, weakness
[and] slight decreased sensation” as to pertinent objective findings and “see above” regarding a
description of subjective complaints. As to the recommended percentage of left upper extremity
impairment, the response stated: “two percent [left] wrist [and] two percent [left] elbow.” There
was no narrative report or completed impairment worksheet. There was no reference to the
A.M.A., Guides sixth edition.
On March 3, 2010 Dr. Neil Ghodadra, an orthopedic surgeon and an Office medical
adviser, noted that the Office had accepted left lateral and medial epicondylitis. He stated that
“Dr. Lawrence and others submitted notes to the medical narrative.”4 Dr. Ghodadra found that
appellant had two percent left upper extremity impairment based on Table 15.4 at page 399 of

1

In 2009 the Office accepted appellant’s claim for left medial epicondylitis and left cubital tunnel syndrome
under subfile number xxxxxx547.
2

Left carpal tunnel syndrome has not been accepted by the Office as a work-related condition.

3

The signature is illegible.

4

There is only one report from Dr. Lawrence. It is dated November 15, 2005, four years prior to appellant’s
schedule award claim.

2

the sixth edition of the A.M.A., Guides (one percent for left lateral epicondylitis symptoms and
one percent for left medial epicondylitis).5
By decision dated March 11, 2010, the Office granted appellant a schedule award for
two percent left upper extremity impairment. The award ran for 6.24 weeks from December 18,
2009 to January 30, 2010.6
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 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 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.9
It is well established that proceedings under the Act are not adversarial in nature, and,
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.10 The Office has an obligation to see that
justice is done.11 Once the Office undertakes development of the record, it has the responsibility
to do so in a proper manner.12

5

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010) (after obtaining all necessary medical evidence, the file should be routed to an
Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified, especially
when there is more than one evaluation of the impairment present).
6

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 2 percent equals 6.24 weeks of
compensation. Subsequent to the March 11, 2010 Office decision, additional evidence was associated with the file.
The Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision.
See 20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

See 20 C.F.R. § 10.404; FECA Bulletin No. 9-03, issued March 15, 2009 (providing for use of the sixth edition
of the A.M.A., Guides effective May 1, 2009).
10

See Udella Billups, 41 ECAB 260 (1989).

11

John J. Carlone, 41 ECAB 354 (1989).

12

See Henry G. Flores, Jr., 43 ECAB 901 (1992).

3

ANALYSIS
The Board finds that this case is not in posture for decision.
On a copy of the Office letter sent to appellant that explained the medical evidence
needed for a schedule award, a physician noted a December 8, 2009 date of maximum medical
improvement. He wrote “none” regarding decreased range of motion, “pain, weakness [and]
slight decreased sensation” regarding pertinent objective findings and “see above” regarding a
description of subjective complaints. As to the recommended percentage of left upper extremity
impairment, two percent was provided for both the wrist and elbow. There was no narrative
explanation of how the rating was made under the A.M.A., Guides, sixth edition.
Dr. Ghodadra indicated that the Office had accepted left lateral and medial epicondylitis.
He noted that Dr. Lawrence and others submitted notes to the medical narrative. Dr. Ghodadra
did not mention Dr. Grindel. He found that appellant had two percent left upper extremity
impairment based on Table 15.4 of the sixth edition of the A.M.A., Guides (one percent for left
lateral epicondylitis symptoms and one percent for left medial epicondylitis). He did not
mention appellant’s accepted left cubital tunnel syndrome. The Office medical adviser did not
adequately explain how he determined appellant’s left upper extremity impairment in light of the
fact that there was no comprehensive narrative report from an examining physician containing a
description of pertinent objective findings such as decreased strength or sensory changes, a
description of subjective complaints and a recommended percentage of impairment. As noted,
the handwritten comments on the Office’s letter did not include an explanation of how the
impairment percentage was determined with reference to applicable tables in the A.M.A., Guides
sixth edition or a completed and signed impairment worksheet. Dr. Ghodadra did not explain
how he determined one percent impairment for left lateral epicondylitis and one percent for left
medial epicondylitis in light of the fact that Table 15-4 at page 399 provides for a range of 1 to
13 percent for a Class 1 impairment due to lateral or medial epicondylitis. Due to these
deficiencies, Dr. Ghodadra’s impairment determination is not sufficient to establish appellant’s
left upper extremity impairment.
The Board will remand the case to the Office for further medical development. The
Office should refer appellant to an appropriate medical specialist for evaluation of his left upper
extremity impairment. The Office should provide the physician with a list of appellant’s
accepted left upper extremity conditions, a statement of accepted facts and the case record. The
physician should be asked to provide an explanation of appellant’s left upper extremity
impairment with reference to applicable sections and tables in the A.M.A., Guides. After such
further development as the Office deems necessary, it shall issue a de novo decision on the extent
of permanent impairment to appellant’s left arm.
CONCLUSION
The Board finds that this case is not in posture for a decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2010 is set aside. The case is remanded to the Office
for further action consistent with this decision of the Board.
Issued: January 5, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Glendale, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-902
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant timely appealed the January 12, 2010 merit decision of
the Office of Workers’ Compensation Programs, which affirmed her schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule
award claim.
ISSUE
The issue is whether appellant has greater than 10 percent impairment of the left lower
extremity.
FACTUAL HISTORY
Appellant, a 33-year-old letter carrier, sustained a left foot sprain on January 27, 2000
(xxxxxx469). She ultimately returned to work and sustained another left lower extremity injury
on December 11, 2000. The Office accepted a left foot strain (xxxxxx718). The two claims
were subsequently combined, and the December 11, 2000 traumatic injury claim was designated

the master file. Appellant received compensation for intermittent lost wages. In January 2009,
she requested a schedule award.
In a report dated January 8, 2009, Frank P. Silver, M.D., found 30 percent impairment of
the left lower extremity. The overall rating included five percent impairment for loss of motion
of the left great toe. According to Dr. Silver, appellant did not have any motion deficits with
respect to her left ankle. He also found impairment due to dysesthesia (2.5 percent), motor
deficit (21 percent) and sensory deficit (2.5 percent) involving the peroneal nerve.1
The Office referred appellant’s file to a medical adviser, Dr. Amon Ferry. In a report
dated February 18, 2009, Dr. Ferry found 13 percent impairment of left lower extremity. He
attributed 10 percent impairment for ankylosis of the great toe in full extension. Dr. Ferry also
found three percent impairment for pain in the distribution of the superficial peroneal nerve. In
explaining the difference between his impairment rating and that of Dr. Silver, he noted that
under the A.M.A., Guides (5th ed. 2001) decreased strength cannot be rated in the presence of
decreased motion, painful conditions, deformities or absence of parts that prevent effective
application of maximal force in the region being evaluated.2 As such, Dr. Silver’s rating for
weakness (21 percent) of the peroneal nerve in the presence of pain and decreased motion was
inappropriate.
In June 2009, the Office referred the record back to Dr. Ferry to rate appellant’s left
lower extremity impairment under the sixth edition of the A.M.A., Guides (2008).3
In a report dated June 10, 2009, Dr. Ferry found a combined 10 percent impairment of the
left lower extremity. He found seven percent impairment for ankylosis of the great toe in full
extension, citing Table 16-19, A.M.A., Guides 549. Dr. Ferry found an additional three percent
impairment for a Class 1, Grade C sensory deficit in the distribution of the superficial peroneal
nerve. He referenced Table 16-12, A.M.A., Guides 534 in support of the three percent peripheral
nerve impairment. Dr. Ferry again found no impairment for weakness.4
In a decision dated July 1, 2009, the Office granted a schedule award for 10 percent
impairment of the left lower extremity. The award covered a period of 28.8 weeks beginning
January 8, 2009.
Appellant requested a hearing, which was held on November 13, 2009.
1

While Dr. Silver stated that his rating was based on the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2001), he did not identify the particular tables he relied upon in
calculating appellant’s 30 percent impairment.
2

Dr. Ferry referenced “Paragraph 1, pg. 508,” which is part of section 16.8, “Strength Evaluation,” pertaining to
impairments of the upper extremity particularly with respect to grip and pinch strength. A.M.A., Guides 507-08 (5th
ed. 2001).
3

The latest edition of the A.M.A., Guides is applicable to all schedule awards issued on or after May 1, 2009.

4

As in his previous report, the district medical adviser noted that decreased strength cannot be rated in the
presence of decreased motion, painful conditions, deformities or absence of parts that prevent effective application
of maximal force in the region being evaluated.

2

By decision dated January 12, 2010, an Office hearing representative affirmed the July 1,
2009 schedule award for 10 percent impairment of the left leg.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009,
schedule awards are determined in accordance with the sixth edition of the A.M.A.,
Guides (2008).7
ANALYSIS
The Board finds that the case is not in posture for decision. Dr. Ferry’s June 10, 2009
impairment rating does not provide a clear rationale for the percentage of impairment specified.
The procedure manual provides that, after obtaining all necessary medical evidence, the Office
shall refer the case record to its medical adviser for an opinion concerning the nature and
percentage of impairment.8 The procedure manual further provides that the percentage should be
computed in accordance with the A.M.A., Guides (6th ed. 2008).9 In this instance, the Office
properly forwarded the medical record, including Dr. Silver’s January 8, 2009 impairment rating,
to the Office medical adviser for review. Dr. Silver rated appellant under the fifth edition of the
A.M.A., Guides; however, his January 8, 2009 report did not include any specific reference to
the tables of the A.M.A., Guides that supported his rating of 30 percent impairment of the left
lower extremity. Dr. Ferry found 13 percent impairment of the left lower extremity under the
fifth edition of the A.M.A., Guides.
The Board notes that as of May 1, 2009 implementation of the sixth edition of the
A.M.A., Guides became applicable to evaluation of all schedule award claims. Appellant
suggests that the Office intentionally delayed processing her January 22, 2009 schedule award.
The Board finds nothing in the record that substantiates her allegation. The Office received
appellant’s claim, including Dr. Silver’s report, on January 30, 2009. It referred the record to
Dr. Ferry who submitted an impairment rating that the Office received on March 2, 2009. Why
5

For total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2006).
6

5 U.S.C.

20 C.F.R. § 10.404 (2010).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6d (January 2010).
9

Id. at Chapter 2.808.6d(1).

3

the Office was unable to process the claim before May 1, 2009 is unclear; however, a two-month
delay in processing a schedule award is not evidence of malfeasance on the part of the Office.
The Board notes that it was characterized as an “oversight” to appellant during a June 11, 2009
telephone contact.
The Office was obtained another report from Dr. Ferry based on review of the sixth
edition of the A.M.A., Guides.10 This latter report did not adequately explain Dr. Ferry’s
application of the sixth edition of the A.M.A., Guides (2008). As noted, he found 10 percent
impairment of the left lower extremity due to loss of motion in the great toe (7 percent) and
sensory deficit (3 percent) involving the superficial peroneal nerve. In addition to sensory
deficit, Dr. Silver found a significant motor deficit/weakness (21 percent) involving the peroneal
nerve. Dr. Ferry did not award impairment for motor deficit/weakness. In the June 10, 2009
report, the Office medical adviser explained that decreased strength cannot be rated in the
presence of decreased motion, painful conditions, citing to “Paragraph 1, pg. 508.” However, the
sixth edition of the A.M.A., Guides does not include such information at page 508. That
particular page is one of several pages pertaining to the “Foot and Ankle Regional Grid (LEI),”
Table 16-2. While the above-quoted passage appears at page 508 of the fifth edition of the
A.M.A., Guides, the Office specifically instructed Dr. Ferry to apply the sixth edition of the
A.M.A., Guides. The updated report of the Office medical adviser did not provide appropriate
references to the current edition of the A.M.A., Guides.11
Further, Dr. Ferry did not offer any explanation for his left great toe loss of motion rating.
He simply stated that appellant was awarded seven percent impairment for ankylosis of the great
toe in full extension (Table 16-19, pg 549). Under the sixth edition of the A.M.A., Guides,
diagnosis-based impairment is the primary method of evaluation for the lower limb.12
Alternative approaches are also provided for calculating impairment for peripheral nerve deficits
and range of motion.13 However, range of motion is primarily used as a physical examination
adjustment factor under the diagnosis-based approach and is “only used to determine actual
impairment values when it is not possible to otherwise define impairment.”14 Dr. Ferry did not
explain why the diagnosis-based impairment method for evaluating the lower limb was not
utilized in this instance. Moreover, the Board notes that Dr. Ferry’s reference to Table 16-19,
“Great Toe Impairments,” appears not to support his finding of seven percent left lower
extremity impairment. The identified table provides for two percent lower extremity impairment
10

Id. at Chapter 2.808.6a.

11

One of the fundamental principles of the 6th edition of the A.M.A., Guides is that range of motion and strength
measurement techniques should be assessed carefully in the presence of apparent self-inhibition secondary to pain or
fear. See Table 2-1, A.M.A., Guides 20. Additionally, with respect to measuring motor deficits and loss of power,
section 16.4a provides: “Individuals whose performance is inhibited by pain or the fear of pain are not good
candidates for manual muscle testing.” A.M.A., Guides 532-33.
12

Section 16.2, A.M.A., Guides 497.

13

Id.

14

Id. Section 16.7, “[r]ange of [m]otion [i]mpairment,” provides that “[t]his section is to be used as a stand-alone
rating when other grids refer ... to this section or no other diagnosis-based sections of [Chapter 16] are applicable for
impairment rating of a condition.” A.M.A., Guides 543.

4

for extension of 15 degrees to 30 degrees, and five percent impairment for extension of 0 degrees
to 9 degrees.15 Dr. Silver’s January 8, 2009 examination revealed 0 degrees extension, which
would appear to represent only five percent impairment under Table 16-19. It is not readily
apparent from either the A.M.A., Guides or Dr. Ferry’s June 10, 2009 report how appellant’s
ankylosis of the great toe in full extension represents seven percent impairment under
Table 16-19.
Dr. Ferry also failed to explain his rating of three percent impairment for a Class 1, Grade
C sensory deficit of the superficial peroneal nerve. He cited Table 16-12, A.M.A., Guides 534.
Section 16.4b, “Neurological Grading and Severity Determination,” outlines the process for
classifying the severity of sensory and/or motor deficit under Table 16-11, A.M.A., Guides 533.
Dr. Ferry did not reference Table 16-11. Once the severity of the sensory and/or motor deficit is
determined under Table 16-11, the findings are applied to Table 16-12, “Peripheral Nerve
Impairment,” to determine the percentage impairment of the lower extremity. Dr. Ferry’s
June 10, 2009 report provided insufficient discussion as to how the three percent impairment was
derived. There was no reference to any physical examination findings that might otherwise
support his finding of a Class 1, Grade C sensory deficit. Under Table 16-12, the range of
impairment for the superficial peroneal nerve is 0 to 5 percent. Dr. Ferry merely concluded
without adequate explanation that appellant had three percent impairment.
The procedure manual provides that the Office medical adviser should provide rationale
for the percentage of impairment specified.16 Providing such medical reasoning is especially
important when more than one impairment evaluation method is present.17 Accordingly, the
January 12, 2010 decision will be set aside and the case remanded to the Office to obtain a
supplemental report from the medical adviser. After such further development as the Office
deems necessary, it should issue an appropriate decision regarding appellant’s entitlement to a
schedule award for impairment of the left lower extremity.
CONCLUSION
The case is not in posture for decision on the extent of permanent impairment to
appellant’s left leg.

15

A.M.A., Guides 549, Table 16-19.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6d(1).
17

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: January 7, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Smithtown, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1509
Issued: April 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 19, 2016 appellant, through counsel, filed a timely appeal from a March 8, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical effective June 9, 2015.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 26, 2012 appellant, then a 36-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) for a right shoulder injury due to feeling a sharp “pop” in his shoulder after picking
up his shoulder bag. Appellant stopped work on the date of injury and returned to work with
restrictions on August 14, 2012. By decision dated September 17, 2012, OWCP accepted
appellant’s claim for a sprain of the right rotator cuff. On February 28, 2013 it accepted a claim
of recurrence of appellant’s condition based on a surgical procedure to treat the accepted
condition on February 8, 2013. He received wage-loss compensation.
On June 20, 2013 OWCP referred appellant for a second opinion examination with
Dr. Leon Sultan, a Board-certified orthopedic surgeon, in order to determine whether the workrelated injury had resolved and whether he continued to be disabled from employment.
In a report dated July 18, 2013, Dr. Sultan opined that appellant’s right shoulder
condition had not yet fully resolved. He noted that appellant was not yet ready to return to full
unrestricted work activity as a letter carrier, but that he could return to work with restrictions.
On August 7, 2013 appellant accepted a modified city carrier position with physical
restrictions.
On September 26, 2013 OWCP instructed appellant to attend a follow-up appointment
with Dr. Sultan to determine whether his work-related injury had resolved and whether he was
capable of working full duty at his preinjury position. It sent Dr. Sultan a statement of accepted
facts (SOAF), which noted that appellant had returned to work with restrictions on
August 12, 2013. OWCP noted that appellant was bitten by a dog during delivery on August 16,
2013, which was pending review under File No. xxxxxx590. Appellant returned to work full
time with a 15-pound weight bearing restriction on September 10, 2013.
In a report dated October 8, 2013, Dr. Sultan examined appellant and noted that
appellant’s orthopedic examination in regard to his right shoulder revealed well-healed surgical
scars with intact shoulder motion without any clinical signs of impairment or instability. He
noted that appellant was unable to confirm any residual right shoulder or right upper arm muscle
atrophy. Dr. Sultan concluded that appellant’s right shoulder condition was clinically resolved
and he was capable of returning to regular work activity without restrictions.
In a note dated October 16, 2013, Dr. Sandra J. Iannotti, a Board-certified orthopedic
surgeon, noted that appellant should continue to work light duty with no lifting greater than 15
pounds, and that he should also continue with these restrictions for three months until he was a
full year post operation. She noted that on examination he had elevation to 170 degrees, good
internal and external rotation, but was still sore past 140 degrees and weak on testing.
On January 30, 2014 Dr. Iannotti reported that appellant should continue with restrictions
of no lifting greater than 15 pounds, because he should not reach repetitively behind himself to
grab mail. She noted that this motion would irritate the repair, so that this restriction should be
permanent. On examination Dr. Iannotti noted that appellant’s range of motion was still not full,
but improved to 175 degrees of motion with less soreness.

2

In a note dated February 26, 2014, Dr. Iannotti reported that appellant could return to
work full time, at full duty, with the exception of a permanent restriction of no carrying more
than 15 pounds on a regular basis or 35 pounds on an intermittent basis. On examination she
noted elevation at 175 degrees with slightly more stiffness than her prior examination.
On April 23, 2014 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits, finding that the weight of the medical evidence established that he no longer
had continuing residuals of his accepted work-related condition. It based its proposed
termination on Dr. Sultan’s October 8, 2013 report, noting that appellant had not submitted any
contemporaneous medical reports on the issue of continued residuals that were legibly signed by
a physician. OWCP further noted that even if the unsigned reports were from physicians, they
were not sufficiently well reasoned. It held the case record open for 30 days for the submission
of additional evidence.
In an addendum report dated April 29, 2014, Dr. Sultan opined that there were no
additional conditions related to appellant’s right shoulder or rotator cuff that should be accepted
by OWCP.
By decision dated June 4, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective June 2, 2014, based upon Dr. Sultan’s October 8, 2013 and
April 29, 2014 reports.
In a note dated June 5, 2014, Dr. Iannotti reported that appellant’s work restrictions
should continue and that he should be allowed to take off one to two days from work when his
postoperative shoulder injury was aggravated.
On June 3, 2015 appellant, through counsel, requested reconsideration of OWCP’s
June 4, 2014 termination decision. Counsel argued that the decision should be vacated because
he had not been sent a copy of the notice of proposed termination. He further argued that there
was an unresolved conflict of medical opinion between appellant’s treating physician and
Dr. Sultan.
By decision dated June 9, 2015, OWCP vacated its prior termination decision dated
June 4, 2014. It noted that it had failed to provide counsel of record with a copy of the notice of
proposed termination. On the same day OWCP issued an updated termination decision
superseding its prior decision and terminating appellant’s wage-loss compensation and medical
benefits effective June 9, 2015. Counsel for appellant was not served a copy of the June 9, 2015
revised decision.
In a note dated June 1, 2015, Dr. Iannotti diagnosed status post large full-thickness
rotator cuff repair in a very active job. She noted that he had reached maximum medical
improvement (MMI) with some stiffness, and rendered a percentage of permanent impairment.
On examination Dr. Iannotti noted that appellant had 165 degrees of forward elevation compared
to 180 degrees on the left, extension of 30 degrees compared to 50 degrees on the left, abduction
of 120 degrees compared to 180 degrees, adduction of 40 degrees compared to 50 degrees,
external rotation at 90 was 45 degrees compared to 90 degrees, and internal rotation at 90 was 20

3

degrees compared to 90 degrees. She also noted that appellant had reasonably slightly-decreased
strength to rotator cuff testing.
In a narrative report dated June 5, 2015, Dr. Iannotti reviewed appellant’s case history
and rendered a rating of permanent impairment. She noted that appellant’s accepted condition
was permanent and had reached MMI. Dr. Iannotti explained that appellant had some residual
loss of motion and residual weakness. Appellant was at risk for aggravating his symptoms with
overuse and at a high risk for a retear as his repaired cuff is not as strong as a normal rotator cuff
would be. Dr. Iannotti also related that he continued working full duty with a permanent
restriction of no carrying greater than 15 pounds on a regular basis and 35 pounds on an
intermittent basis.
On December 9, 2015 appellant, through counsel, requested reconsideration. Counsel
argued that OWCP failed to resolve a conflict in medical opinion between Dr. Iannotti and
Dr. Sultan and that OWCP had failed to follow proper procedure by issuing a notice of proposed
termination before issuing its June 9, 2015 decision.
By decision dated March 8, 2016, OWCP reviewed the merits of appellant’s claim and
affirmed its June 9, 2015 decision. It noted that “permanent impairment ratings are not the issue,
but rather partial disability which [Dr. Iannotti] does not reasonably explain in her report.”
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, OWCP must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.5
OWCP procedures indicate that a pretermination is not required if a claimant has returned
to work and has received compensation payments for less than one year.6 The procedures
indicate that a notice is required if medical benefits are terminated based upon the opinion of a
second opinion or referee examiner, as opposed to the treating physician.7

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Id.; Leonard M. Burger, 51 ECAB 369, 369 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1440.4.a(2), (3)
(February 2013); see D.D., Docket No. 13-1940 (issued August 4, 2014).
7

Id. at Chapter 2.1440.4.b(2) (February 2013).

4

ANALYSIS
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s wage-loss compensation and medical benefits.
In his December 9, 2015 request for reconsideration, counsel argued that he was not
properly served by OWCP with a pretermination notice despite his representation of appellant at
that time. Appellant’s termination of medical benefits was based on the second opinion report of
Dr. Sultan. As such, a pretermination notice was required to terminate his medical benefits.8
While OWCP vacated the June 4, 2014 termination decision on June 9, 2015 because it
had failed to provide appellant’s counsel with a copy of the notice of proposed termination,
OWCP then, on that same day, again terminated appellant’s compensation benefits without a
pretermination notice.9 Counsel has therefore never been provided a pretermination notice in
this case.
As OWCP did not send a pretermination notice to counsel prior to its June 9, 2015
decision, OWCP did not meet its burden of proof to terminate appellant’s compensation benefits,
and the termination of compensation benefits is reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective June 9, 2015.

8

Id.

9

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2016 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action
consistent with this opinion of the Board.
Issued: April 3, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6