United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Joseph J. Chester, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1675
Issued: December 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 28, 2015 appellant, through counsel, filed a timely appeal from a January 30,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 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
compensation benefits on March 6, 2007 pursuant to 5 U.S.C. § 8106(c).

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 30, 2015, the date of OWCP’s last decision, was
July 29, 2015. Since using July 30, 2015, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is July 28, 2015 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

On appeal counsel asserts that OWCP’s reasoning in finding that appellant refused
suitable work is illogical and not supported by the factual and medical record.
FACTUAL HISTORY
On November 9, 2005 appellant, then a 55-year-old flexible mail handler, filed a
traumatic injury claim (Form CA-1) alleging that on November 3, 2005 she injured her lower
back when she fell from a chair. She stopped work on the date of injury. OWCP initially
accepted lumbar and coccyx contusions. Appellant received appropriate continuation of pay and
wage-loss compensation. She briefly returned to work in December 2005, but subsequently
stopped work. Appellant returned to full-time light duty on January 23, 2006. On March 26,
2006 she began working six hours a day. Appellant stopped work on April 29, 2006 and did not
return.
Dr. Jon A. Levy, a Board-certified orthopedic surgeon, began treating appellant in
February 2006. An April 28, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated a disc herniation at L4-5. In a June 12, 2006 treatment note, Dr. Levy noted the
MRI scan study findings and advised that appellant could not work. Appellant also began pain
management with Dr. Edward Heres, Board-certified in anesthesiology and pain medicine, in
August 2006.
OWCP continued to develop the claim and in August 2006 referred appellant to
Dr. Stephen R. Bailey, Board-certified in orthopedic surgery, for a second-opinion evaluation. In
an August 16, 2006 report, Dr. Bailey noted examination findings. He commented that the MRI
scan findings were degenerative in nature and not related to the November 2005 employment
injury. Dr. Bailey concluded that appellant could work eight hours a day without restrictions.
OWCP found that a conflict in medical evidence had been created regarding appellant’s
diagnoses, what treatment was needed, and whether she could return to work, with or without
restrictions. On September 5, 2006 OWCP referred appellant to Dr. Yram J. Groff, a Boardcertified orthopedic surgeon, for an impartial evaluation. In an October 25, 2006 report,
Dr. Groff related a history that appellant was working sedentary duty for a left knee injury when
she fell from a high stool on November 3, 2005.3 He recorded appellant’s complaint of radiating
low back pain and current treatment. Dr. Groff noted his review of the medical record and
described physical examination findings. He diagnosed L4-5 disc herniation causing foraminal
narrowing which was the direct result of the November 3, 2005 employment injury. Dr. Groff
advised that she could work eight hours of sedentary to light duty daily, with sitting, walking,
standing, pushing, pulling, and lifting restricted to four hours each, and a 10-pound weight
restriction.
On December 7, 2006 the employing establishment offered appellant a full-time modified
position. The duties consisted of sitting in a chair and fixing damaged flat mail for six hours
daily and standing at a prep station to place mail, weighing no more than 10 pounds, into
containers.

3

The record does not indicate that appellant has an accepted knee injury.

2

By letter dated January 5, 2007, OWCP advised appellant that the position offered was
suitable. She was notified that if she failed to report to work and failed to demonstrate that the
failure was justified, pursuant to section 8106(c)(2) of FECA, her eligibility for compensation for
wage loss or a schedule award would be terminated. She was given 30 days to respond.
On January 14, 2007 appellant advised the employing establishment that she agreed to
accept the offered position, but she noted that she was scheduled to see her doctor on
February 10, 2007, and he would then release her to work. In a February 6, 2007 letter, she
informed the employing establishment that she was not scheduled to see her doctor until
February 22, 2007. The employing establishment forwarded the correspondence to OWCP.
Appellant did not respond.
In a letter dated February 15, 2007, OWCP advised appellant that her reasons for refusing
the offered position were not valid, and she was given an additional 15 days to accept. It noted
that the position offered was within the restrictions provided by Dr. Groff, and advised her that,
if it did not receive her written response within 15 days of that letter, or if she continued to refuse
the offer, a final decision would be rendered. In a February 21, 2007 response, appellant stated
that she was accepting the light-duty job but, as she had further treatment scheduled and would
not see the doctor until March 15, 2007, she could not return to work until March 17, 2007, “the
date my doctor will release me.”
On March 7, 2007 appellant telephoned OWCP, advising that she was returning to work
that day.
By decision dated March 7, 2007, OWCP terminated appellant’s wage-loss and schedule
award compensation benefits, effective March 6, 2007, finding that she had refused an offer of
suitable work. It found that the weight of medical evidence rested with the opinion of Dr. Groff
who provided an impartial medical evaluation.
In a letter dated March 2, 2007, received by OWCP on March 9, 2007, the employing
establishment informed appellant that she was required to report to work on March 7, 2007.
Appellant ultimately accepted the job offer on March 25, 2007 with a stipulation that she
could not stand at a station and prepare flat mail per restrictions. An employing establishment
time analysis (CA-7a) form for the period March 3 through 16, 2007 indicated that appellant
worked 5.25 hours on March 7, 2007 and left to go to physical therapy. Appellant worked eight
hours on March 8, 2007. She did not return until March 21, 2007, when she began working four
hours daily.4 Appellant began working six hours a day in May 2007. She was charged leave
without pay (LWOP) for the time she did not work.
Appellant timely requested a hearing before an OWCP hearing representative, which was
held on August 14, 2007. She testified that she returned to work on March 7, 2007 and
continued to work modified duty.
On June 4, 2007 Dr. Levy advised that conservative care had failed and recommended a
lumbar laminectomy and discectomy at L4-5. Dr. Morley Slutsky, an OWCP medical adviser,
4

Appellant occasionally worked up to eight hours daily. LWOP was verified for additional hours.

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advised that the requested surgery was medically necessary and appropriate for the accepted
conditions.5
By decision dated September 21, 2007, an OWCP hearing representative found that
Dr. Groff’s opinion was properly accorded special weight as the impartial examiner. He noted
that, although appellant returned to work on March 7, 2007, she did not return in a full-time
capacity, and Dr. Groff had advised that she could work modified duty eight hours daily. The
hearing representative affirmed the March 7, 2007 OWCP decision.
On December 4, 2007 Dr. Levy performed lumbar laminectomy and discectomy at L4-5.
On January 12, 2008 he performed lumbar exploration and microdiscectomy at L4-5 due to a
recurrent lumbar disc herniation. In reports dated April 21 and June 23, 2008, Dr. Levy
described appellant’s postsurgical care and condition and advised that she could not work.
On August 21, 2008 appellant requested reconsideration. She reiterated that she had
returned to work on March 7, 2007, and worked until she went to physical therapy, and on
March 8, 2007 worked a full eight hours. Appellant maintained that she could not work full time
due to scheduled physical therapy and injections.
On September 9, 2008 Dr. Levy advised that appellant continued to have severe lumbar
radicular pain and evidence of instability superimposed on a large synovial cyst. He advised
that, due to the magnitude of her pain, a lumbar exploration with excision of synovial cyst and
fusion at L4-5 was warranted. Dr. Levy continued to advise that appellant could not work.
On October 3, 2008 Dr. Slutsky, the OWCP medical adviser, advised that Dr. Levy
should be asked to provide objective evidence to support his assertion that there was instability
of the L4-5 disc space and a synovial cyst that required surgery. By letter dated October 8, 2008,
OWCP asked Dr. Levy to address its concerns. The surgery, scheduled for October 11, 2008,
was postponed.
On October 9, 2008 the employing establishment forwarded records of appellant’s clock
rings from March 2007. These indicated that she had worked 5.75 hours on March 7, 2007 and
eight hours on March 8, 2007, and then did not return to work until March 21, 2007, when she
began working four hours a day.
In a merit decision dated October 9, 2008, OWCP denied modification of the March 7,
2007 decision. It found that appellant’s partial return to work on March 7 and 8, 2007 did not
constitute acceptance of a suitable job. OWCP again noted that the offered position was within
the restrictions provided by the impartial medical examiner, Dr. Groff, who advised that
appellant could work eight hours of modified duty daily.
On October 5, 2009 appellant, through counsel, requested reconsideration.

5

OWCP informed Dr. Slutsky that the accepted conditions were contusion of buttock, contusion of back, and
displacement of lumbar intervertebral disc without myelopathy.

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Dr. Levy continued to recommend surgery.6 On February 2, 2009 Dr. Slutsky, the
OWCP medical adviser, agreed that the recommended surgical procedure was appropriate.
Dr. Levy performed lumbar laminectomy and fusion at L4-5 on February 23, 2010.
By decision dated May 5, 2010, OWCP reviewed the merits of appellant’s claim and
denied modification of the prior decisions. It continued to find that the weight of the medical
opinion evidence rested with Dr. Groff, the impartial medical examiner.
Dr. Levy continued to submit reports describing appellant’s postoperative progress.
On October 17, 2010 appellant filed a recurrence claim, stating that the recurrence of
disability occurred on December 10, 2009. On November 10, 2010 she accepted a sedentary
modified clerk position for six hours daily.7
Dr. Levy provided restrictions to appellant’s physical activity on October 25, 2010 and
on April 25, 2011 reported seeing appellant one year status postlumbar laminectomy and fusion.
He advised that she was doing reasonably well, working with modification, and was clinically
stable.
On February 22, 2011 OWCP accepted appellant’s recurrence claim and asked that she
submit Form CA-7 claims for compensation, if she lost time from work. Appellant thereafter
submitted a number of CA-7 claim forms. Following an inquiry by counsel on March 11, 2011
regarding the suitable work termination, on March 22, 2011 OWCP informed him that the
suitable work decision had not been rescinded, but that it had been notified that appellant
“returned to work and therefore she complied.”
On March 31, 2011 OWCP advised that, after careful review of appellant’s claim, it
corrected that she was not entitled to wage-loss compensation because she had refused an offer
of suitable employment. Appellant remained entitled to medical treatment.
Appellant, through counsel, requested reconsideration on May 5, 2011 and submitted
medical reports from Dr. Levy dated December 17, 2007 to October 27, 2008 in which he
described her condition.
In a merit decision dated August 12, 2011, OWCP denied modification of the prior
decisions. It noted that the medical evidence submitted did not indicate that appellant was
unable to perform the limited-duty job found suitable by the March 7, 2007 decision. OWCP
admitted that the March 22, 2007 letter included an unfortunate statement that appellant had
complied with the suitable work admonition but found that the fact that appellant returned to
work on March 7, 2007 did not constitute compliance with FECA requirements. It concluded
that the weight of the medical evidence continued to rest with the opinion of Dr. Groff, the
impartial medical examiner, regarding whether the position offered was suitable.
On July 23, 2012 appellant, through counsel, again requested reconsideration. She
submitted factual and medical evidence previously of record, and additional pain management
6

Dr. Levy also reported that appellant had nonwork-related knee replacement surgery in 2009.

7

Appellant also received pain management by Dr. Heres and his associates during this period.

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treatment notes from Dr. Heres dated December 19, 2011 to March 31, 2014 and from Dr. Levy
dated March 12, 2012 to April 28, 2014.
On May 22, 2014 OWCP referred appellant to Dr. Victoria M. Langa, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a June 11, 2014 report, Dr. Langa noted
her review of the medical record including diagnostic studies, appellant’s description of the
employment injury, and her complaints of constant left buttock discomfort and intermittent
radiating left-sided discomfort with numbness and tingling. She described appellant’s medical
and surgical treatment following the employment injury, and reported physical examination
findings. Back examination demonstrated tenderness over the left sciatic notch and no muscle
spasms with diminished lumbar spine range of motion. There were no motor or sensory deficits
in either lower extremity. Dr. Langa diagnosed chronic lumbar postlaminectomy syndrome
(failed back syndrome). In answer to specific OWCP questions, she opined that appellant had
long since reached maximum medical improvement, would indefinitely continue with chronic
lower back symptomatology, and would never return to a preinjury level. In an attached work
capacity evaluation, Dr. Langa advised that appellant had permanent restrictions and could work
eight hours of modified duty with walking and standing limited to one hour, no twisting,
bending, or stooping, and pushing, pulling, and lifting limited to 10 pounds for four to six hours
daily.
Dr. Heres and Dr. Levy continued to submit reports describing appellant’s current
condition and treatment.8
In a merit decision dated January 30, 2015, OWCP denied modification of the prior
decisions. It noted that the arguments counsel raised had previously been reviewed by OWCP in
prior decisions and that none of the recently submitted medical evidence discussed whether
appellant could perform the modified position offered to her in 2007.9
LEGAL PRECEDENT
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”10
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.11 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.12 To justify termination, OWCP must show that the
8

The record also includes additional lumbar MRI scans dated March 13, 2007, September 4, 2008, February 12,
2010, April 20, 2012, and May 22, 2014.
9

The position was actually offered appellant on December 7, 2006.

10

5 U.S.C. § 8106(c).

11

Joyce M. Doll, 53 ECAB 790 (2002).

12

20 C.F.R. § 10.517(a).

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work offered was suitable and that appellant was informed of the consequences of his refusal to
accept such employment.13 In determining what constitutes “suitable work” for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.14 The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by medical evidence.15
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.16
Section 8123(a) of FECA provides that, 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.17 The implementing regulations
state 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.18 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.19
ANALYSIS
In a March 7, 2007 decision, OWCP terminated appellant’s compensation, effective
March 6, 2007. It applied section 8106(c)(2) of FECA, a penalty provision, because she worked
in the offered position for only four to six hours a day and used LWOP for the remaining period.
In this case, the official day-by-day breakdown of hours found on the time and analysis
(CA-7a) forms show that after appellant accepted the modified job offer and returned to work on
March 7, 2007, the employing establishment granted LWOP, initially for four hours a day and
then for two hours daily in May 2007 when she began working six hours each day. The record
supports that the employing establishment examined appellant’s requests for LWOP and, taking
various factors into consideration, authorized her absence from duty.
13

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
14

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

15

Gayle Harris, 52 ECAB 319 (2001).

16

Federal (FECA) Procedure Manual, Part -- 2 Claims, Job Offers and Return to Work, Chapter 2.814.5 (June
2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
17

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

18

20 C.F.R. § 10.321.

19

V.G., 59 ECAB 635 (2008).

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As the Board held in the case Dawn L. Westmoreland,20 where the employing
establishment authorizes a claimant’s absence from duty, there is no basis for finding neglect of
suitable work under 5 U.S.C. § 8106(c)(2). The Board found no more neglect than if the
employing establishment had authorized the use of annual leave to cover the absences in
question.21
As the evidence fails to support OWCP’s application of 5 U.S.C. § 8106(c)(2), the Board
will reverse the January 30, 2015 decision denying modification of the termination of appellant’s
compensation.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective March 6, 2007 pursuant to 5 U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2015 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further action
consistent with this opinion of the Board.
Issued: December 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

56 ECAB 446 (2005); see also S.G., Docket No. 08-1992 (issued September 22, 2009).

21

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY, PACIFIC
FLEET SHIPYARD, Pearl Habor, HI, Employer
__________________________________________

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

Docket No. 11-55
Issued: September 13, 2011

Case Submitted on the Record

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

JURISDICTION
On October 8, 2010 appellant filed a timely appeal of a May 28, 2010 Office of Workers’
Compensation Programs’ (OWCP) schedule award decision. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than four percent impairment of his right upper
extremity and three percent impairment of his left upper extremity for which he received
schedule awards.
On appeal, appellant asked that the Board explain his impairment rating and requested a
lump sum for his medical benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 3, 1999 appellant, then a 46-year-old marine machinery mechanic, filed a
traumatic injury alleging that he injured his right shoulder on June 1, 1999 unloading his tools in
the performance of duty. OWCP accepted his claim for right shoulder strain and temporary
aggravation of cervical degenerative disc disease. On April 4, 2000 appellant underwent C3-4,
C5-6 and C6-7 microforaminotomy with some decompression of the lateral spinal cord as
authorized by OWCP.
Appellant underwent a magnetic resonance imaging (MRI) scan of his right shoulder on
May 1, 2001 which demonstrated degenerative arthritis involving the glenohumeral joint and
acromioclavicular (AC) joint with erosions on the humeral head and impingement of the
supraspinatus and degenerative changes of the AC joint. He underwent a cervical spine MRI
scan on November 26, 2001 which demonstrated chronic moderate foraminal narrowing at C4 on
the right and C7 on the right, with loss of cervical lordosis and mild disc bulge at C4-5, C5-6 and
C6-7.
OWCP authorized C3-7 cervical fusion on February 19, 2002. Dr. Bernard Robinson, a
Board-certified neurological surgeon, performed this surgery. Appellant returned to light-duty
work on March 17, 2003.
Appellant requested a schedule award on March 23, 2005. By decision dated May 20,
2005, OWCP denied his request for a schedule award stating that FECA does not provide for a
schedule award entitlement for neck or back injuries.
An MRI scan dated April 12, 2006 demonstrated moderate supraspinatus tendinitis with a
possible small undersurface tear and significant impingement upon the tendon by AC joint
hypertrophy, mild glenohumeral joint degenerative changes. Dr. Jerry Van Meter diagnosed
shoulder impingement and AC degenerative joint disease on April 21, 2008. An x-ray dated
April 21, 2008 demonstrated mild glenohumeral and AC degenerative changes.
Appellant requested a schedule award on October 1, 2008. OWCP requested that
appellant’s attending physician, Dr. Patricia Walcyk, an osteopath, provide an evaluation of
appellant’s permanent impairment. It referred appellant for a second opinion evaluation with
Dr. Thomas B. Grollman, a Board-certified orthopedic surgeon, on August 10, 2009 to determine
whether appellant had reached maximum medical improvement of the right shoulder and if so,
the extent of permanent impairment.
In a report dated September 28, 2009, Dr. Grollman examined appellant and reviewed the
medical history and statement of accepted facts. He reported appellant’s statement of constant
neck pain radiating to both shoulders and shoulder blades with intermittent headaches. Appellant
reported an average pain of 6 to 7 out of 10. He retired from the employing establishment in
November 2005. Dr. Grollman found that appellant had tenderness over the right anterior
shoulder and over both trapezia. He provided range of motion for appellant’s neck and
shoulders. Appellant demonstrated 40 degrees of shoulder extension, 150 degrees of shoulder
flexion, 130 degrees of abduction, 30 degrees of adduction, 80 degrees of external rotation and
90 degrees of internal rotation in the right shoulder. Dr. Grollman found no significant weakness

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on manual muscle testing, but appellant demonstrated loss of grip strength 80/80/75 on the right
compared to 100/100/90 on the left. He noted that deep tendon reflexes were plus two and
symmetrical with sensory examination to light touch intact in both upper extremities.
Dr. Grollman reported right infraspinatus shoulder girdle muscle atrophy, mild to moderate.
Appellant also demonstrated mild positive impingement test as well as a mildly positive
supraspinatus isolation test. Dr. Grollman diagnosed cervical spine degenerative disc disease
C3-7 with no definitive evidence of cervical radiculopathy. He noted that it was unclear whether
appellant’s right shoulder infraspinatus atrophy was cervical in origin or the result of
compression of the suprascapular nerve. Dr. Grollman also diagnosed right shoulder mild
impingement with MRI scan evidence of intact rotator cuff and degenerative changes and
chronic pain syndrome.
When asked by OWCP whether appellant’s accepted temporary aggravation of his
cervical condition had ceased, Dr. Grollman opined that appellant’s accepted employment injury
was a permanent aggravation of a preexisting cervical condition because it resulted in two
subsequent neck surgeries. He stated that appellant had reached maximum medical improvement
in 2004. Dr. Grollman further stated that appellant’s accepted cervical condition had not resulted
in any permanent impairment of the upper extremities, but did result in limited motion in the
right shoulder.
OWCP’s medical adviser reviewed this report on March 6, 2010 and diagnosed left
cervical decompression C3-7, anterior cervical fusion C3-7, chronic cervical radiculopathy, right
rotator cuff tendinitis and impingement syndrome. He found that appellant had one percent
permanent impairment of the upper extremity due to rotator cuff tendinitis and partial rotator cuff
tear.2 The medical adviser also found that appellant had one percent permanent impairment of
the right upper extremity due to residual problems with mild pain or impaired sensation from C5
and C6 cervical radiculopathy as well as one percent impairment due to mild pain and impaired
sensation from C7 radiculopathy resulting in three percent impairment of the right upper
extremity due to cervical radiculopathy. He concluded that appellant had four percent
impairment of the right upper extremity. The medical adviser also found three percent
impairment of the left upper extremity due to one percent impairment each due to mild pain from
C5, C6 and C7 radiculopathy. He found that appellant reached maximum medical improvement
on April 19, 2004.
By decision dated May 28, 2010, OWCP granted appellant a schedule award for four
percent impairment of the right upper extremity and three percent impairment of the left upper
extremity.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), 402,
Table 15-5.

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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 for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.5
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.7 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.8 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,9 no claimant is
entitled to such an award.10
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a

3

5 U.S.C. §§ 8101-8193, 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 411.

7

W.D., Docket No. 10-274 (issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975).

8

W.D., id.; William Edwin Muir, 27 ECAB 579 (1976).

9

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

10

W.D., supra note 7. Timothy J. McGuire, 34 ECAB 189 (1982).

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schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.12 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3.700 of its
procedures.13 Specifically, it will address lower extremity impairments originating in the spine
through Table 16-1114 and upper extremity impairment originating in the spine through Table
15-14.15
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
ANALYSIS
OWCP accepted appellant’s claim for right shoulder and cervical spine conditions.
Appellant requested a schedule award and OWCP referred him for a second opinion evaluation
with Dr. Grollman to determine the extent of his permanent impairment for schedule award
purposes. Dr. Grollman completed a report on September 28, 2009 including findings of
constant neck pain radiation to both shoulders. He listed appellant’s shoulder range of motion
and found loss of range of motion in the right shoulder. Dr. Grollman reported no significant
weakness on manual muscle testing, but loss of grip strength as well as right infraspinatus
shoulder girdle muscle atrophy. He diagnosed cervical spine degenerative disc disease C3-7
with no definitive evidence of cervical radiculopathy. Dr. Grollman stated that it was unclear
whether appellant’s right shoulder infraspinatus atrophy was cervical in origin or the result of
compression of the suprascapular nerve. He also diagnosed right shoulder mild impingement
with MRI scan evidence of intact rotator cuff and degenerative changes and chronic pain
syndrome. Dr. Grollman opined that appellant had reached maximum medical improvement and
stated that appellant’s accepted cervical condition had not resulted in any permanent impairment
of the upper extremities; but it did result in limitation of motion of the right shoulder. This
report does not comport with the standards of the sixth edition of the A.M.A., Guides.
Dr. Grollman did not provide an impairment rating and did not relate his findings to specific
11

W.D., id. Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 3, Exhibit 4 (January 2010).

13

Id. (Exhibits 1, 4).

14

A.M.A., Guides 533, Table 16-11.

15

Id. at 425, Table 15-14.

16

Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

5

provisions of the A.M.A., Guides. When OWCP refers a claimant for a second opinion
evaluation and the report does not adequately address the relevant issues, OWCP should secure
an appropriate report on the relevant issues.17
On March 6, 2010 OWCP’s medical adviser reviewed the medical evidence and
diagnosed left cervical decompression C3-7, anterior cervical fusion C3-7, chronic cervical
radiculopathy, right rotator cuff tendinitis and impingement syndrome as due to the accepted
employment injury. He accorded appellant one percent impairment upper extremity impairment
for residual problems with rotator cuff tendinitis and partial rotator cuff tear providing a single
citation to the A.M.A., Guides referencing the Shoulder Regional Grid: Upper Extremity
Impairments. The medical adviser did not apply the formula specified in the A.M.A., Guides
and did not offer any explanation for how he reached his impairment rating of one percent. The
Board is unable to determine how the medical adviser reached this aspect of appellant’s shoulder
impairment. The medical adviser did not mention appellant’s grade modifiers for functional
history, physical examination or clinical studies as required by the sixth edition of the A.M.A.,
Guides.
The medical adviser also found that appellant had three percent impairment of the
bilateral upper extremities due to residual problems with mild pain or impaired sensation from
C5, C6 and C7 cervical radiculopathy. He did not offer any citations to the A.M.A., Guides and
did not explain the basis for his impairment ratings. The Board is unable to determine from the
medical evidence in the record, the extent of appellant’s impairment for schedule award
purposes. The Board finds that the medical evidence does not contain a sufficiently reasoned
medical opinion as to the degree of permanent impairment to a scheduled member or function of
the body under the sixth edition of the A.M.A., Guides and must remand the case for further
development of the medical evidence and a detailed report which comports with the sixth edition
of the A.M.A., Guides in regard to appellant’s upper extremity impairments due to his cervical
and right shoulder conditions. After this and such further development as OWCP deems
necessary, OWCP shall issue an appropriate decision.
In regard to appellant’s specific questions on appeal, the Board agrees that the medical
evidence does not establish the basis for determining how his schedule award was calculated and
has remanded the case for clarification and additional development of this issue. In regard, to
appellant’s request for lump sum payment of his medical benefits, such a payment is not
contemplated under FECA and is not payable to appellant. Neither OWCP nor the Board has the
authority to enlarge the terms of FECA or to make an award of benefits under any terms other
than those specified in the statute.18

17

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder,
32 ECAB 863 (1981).
18

W.C., 59 ECAB 372 (2008).

6

CONCLUSION
The Board finds that the case is not in posture for decision as the medical evidence is not
sufficiently detailed and does not explain the extent of appellant’s permanent impairment in
terms of the sixth edition of the A.M.A., Guides.
ORDER
IT IS HEREBY ORDERED THAT May 28, 2010 decision of Office of Workers’
Compensation Programs is set aside and remanded for further development consistent with this
decision of the Board.
Issued: September 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE JUSTICE, FEDERAL
PENITENTIARY ALLENWOOD,
White Deer, PA, Employer
__________________________________________

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

Docket No. 07-1192
Issued: October 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 29, 2007 appellant, through counsel, timely appealed the October 23, 2006 and
March 20, 2007 merit decisions of the Office of Workers’ Compensation Programs granted
schedule awards for five percent impairment of the right thumb. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule award
ISSUE
The issue is whether appellant has more than a five percent impairment of his right
thumb.
FACTUAL HISTORY
On December 7, 2005 appellant, then a 36-year-old senior officer specialist, sustained
injury to his right thumb when it became twisted in the handcuffs of an inmate he was trying to
restrain. The Office accepted the claim for right thumb mallet finger.

In a March 3, 2006 report, Dr. David C. Napoli, appellant’s treating physician, diagnosed
right mallet thumb and stated that appellant had reached maximum medical improvement.
Range of motion was 25 degrees of flexion at the interphalangeal (IP) joint and 15 to 35 degrees
of hyperextension thumb IP joint. Grip strength was reported as 60 pounds on the right and 110
pounds on the left on the first attempt. On a second attempt appellant’s grip strength on the right
was 80 pounds which Dr. Napoli stated indicated “gross inconsistency of effort.” Dr. Napoli
reported “[p]inch strength is 5 pounds on the right versus 20 pounds on the left” but noted that
inconsistency of effort was demonstrated “when the device is turned over with the needle on the
bottom, it improves to 10 pounds on the right.” He opined that appellant did “not expect any
lasting strength deficit and, in fact, his deficit right now is effort dependent.”
On March 22, 2006 appellant filed a claim for a schedule award.
In an August 9, 2006 report, Dr. Thomas L. Martin1 noted that Dr. Napoli, appellant’s
treating physician, had left the practice and that he had never seen appellant. Based upon a
review of Dr. Napoli’s last note, Dr. Martin concluded that appellant reached maximum medical
improvement March 3, 2006. He advised that he had never used the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment2 and that
“[w]e do [not] do impairment ratings.” In calculating appellant’s impairment, Dr. Martin stated
that he used “the range of motion numbers that Dr. Napoli documented and placed them into the
Table, 16-1a for upper extremity impairment evaluation.” He stated that he did not understand
how the A.M.A., Guides worked, but “gave it my best estimate.” With respect to thumb flexion,
Dr. Martin determined that appellant had a 37 percent loss of range of motion for flexion. He
noted that appellant had a “-15 degrees of extension” for his right thumb and that appellant could
not “reach full extension, which would be 0.” In concluding, Dr. Martin stated that he was “lost
on how this can be converted into a percentage for the hand, for the upper extremity or for the
whole person.”
On September 1, 2006 the Office medical adviser concluded that appellant had a two
percent impairment of the right upper extremity. Using Figure 16-12, page 456 he opined that
appellant’s 15 degrees lack of extension to neutral with a normal extension of 30 degrees
represented a two percent impairment of his right thumb and the 25 degrees of hyperextension
and 55 degrees of flexion represented a four percent impairment of the right thumb, for a total six
percent impairment of the right thumb. The Office medical adviser then used Table 16-1, page
438 to find that a six percent impairment of the thumb represented a two percent impairment of
the hand. Utilizing Table 16-2, page 439 he found a two percent impairment of the hand resulted
in a two percent impairment of the right upper extremity.
By decision dated October 23, 2006, the Office issued appellant a schedule award for a
two percent permanent impairment of the right thumb. The period of the award ran from
December 7 to 17, 2005 and was 1.5 weeks.
In a letter dated December 26, 2006, appellant’s counsel requested reconsideration.
1

Dr. Martin is also a physician with SUN Orthopaedic Group.

2

A.M.A., Guides (5th ed.)

2

In a report dated January 15, 2007, Dr. Michael J. Platto, an examining Board-certified
physiatrist, diagnosed mallet finger injury with sensory disturbance and loss of range of motion.
A physical examination revealed 40 degrees flexion, -12 degrees extension, 42 degrees
metatarsophalangeal (MP) joint flexion, 40 degrees MP extension, no adduction deficit and 60
degrees radial abduction. Using Figure 16-12, page 456 he determined 40 degrees of flexion
corresponded to a three percent impairment and -12 degrees of flexion corresponded to a two
percent impairment. With respect to the MP joint, Dr. Platto utilized Figure 16-15, page 457 to
find a two percent impairment due to 42 degrees flexion and a zero percent impairment due to 40
degrees extension. Using Figure 16-19, page 460 he calculated that appellant had a 13 percent
impairment due to “Opposition lacked three centimeters.” Then adding together these
impairment ratings, Dr. Platto found that appellant had a 20 percent impairment of the right
thumb. Using Table 16-1, page 438 he determined that a 20 percent impairment of the right
thumb resulted in an 8 percent impairment of the hand. With respect to appellant’s sensory
disturbance, Dr. Platto found that he had a 50 percent impairment of the right thumb using Table
16-6, page 438 which corresponded to a 20 percent impairment of the right hand using
Table 16-1. In concluding, he found that appellant had a 28 percent impairment of the hand (20
percent plus 8 percent) which corresponded to a 25 percent impairment of the right upper
extremity according to Table 16-2, page 439.
On January 28, 2007 the Office medical adviser reviewed the reports of Dr. Napoli and
Dr. Martin and concluded that appellant had a six percent impairment of the right thumb as
“there do no[t] seem to be an[y] residuals extending into the hand or arm.” As appellant did not
have any “residuals extending into the right hand or upper extremity,” the Office medical adviser
concluded that the impairment rating should be limited to the thumb. He noted a two percent
impairment of the right upper extremity equaled 34.16 days, a two percent impairment of the
right arm equaled 43.68 days and a six percent impairment of the thumb equaled 31.50 days.
In a February 14, 2007 report, the Office medical adviser noted that the January 15, 2007
report by Dr. Platto did not change his January 28, 2007 rating. He recommended a six percent
impairment based on appellant’s loss of range of motion. The Office medical adviser stated “an
avulsion of the extensor tendon with a mallet thumb does not represent any injury to the nerves”
and thus, “there should be no anticipated sensory loss.” With respect to an impairment rating for
opposition loss, the Office medical adviser noted that appellant’s injury “does not affect the base
of the thumb or any muscles that would be involved in opposition” and thus no impairment
rating for opposition loss is appropriate.

3

By decision dated March 20, 2007, the Office awarded appellant an additional three
percent impairment for his right thumb, for a total five percent impairment of the right thumb.3
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing federal regulation5 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 (5th ed. 2001) as the uniform standard
applicable to all claimants.6 Effective February 1, 2001, the fifth edition of the A.M.A., Guides
is used to calculate schedule awards.7
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.8 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.9
ANALYSIS
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion between Dr. Platto, appellant’s examining physician, and the Office medical adviser.
On January 15, 2007 Dr. Platto diagnosed mallet finger injury with sensory disturbance
and loss of range of motion. Using Figure 16-12, page 456 he determined 40 degrees flexion
corresponded to a three percent impairment and -12 degrees of flexion corresponded to a two
percent impairment. With respect to the MP joint, Dr. Platto utilized Figure 16-15, page 457 to
find a two percent impairment due to 42 degrees flexion and a 0 percent impairment due to 40
degrees extension. Using Figure 16-19, page 460 he found a 13 percent impairment due to
“Opposition lacked three centimeters.” Then, Dr. Platto combined the impairment ratings which
3

On March 21, 2007 the Office received a revision to the January 28 and March 14, 2007 memoranda by the
Office medical adviser which concluded that appellant was entitled to a five percent impairment of the right thumb.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404(a).

7

20 C.F.R. § 10.404(a); see Thomas P. Lavin, 57 ECAB ___ (Docket No. 05-1229, issued February 3, 2006);
Jesse Mendoza, 54 ECAB 802 (2003).
8

5 U.S.C. § 8123(a).

9

Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

4

resulted in a 20 percent impairment of the right thumb. Using Table 16-1, page 438 he
determined that a 20 percent impairment of the right thumb resulted in an 8 percent impairment
of the hand. With respect to appellant’s sensory disturbance, Dr. Platto found that appellant had
a 50 percent impairment of the right thumb using Table 16-6, page 434 which corresponded to a
20 percent impairment of the right hand using Table 16-1. Dr. Platto found that appellant had a
28 percent impairment of the hand (20 percent plus 8 percent) which corresponded to a 25
percent impairment of the right upper extremity according to Table 16-2, page 439.
On January 28, 2007 the Office medical adviser reviewed the reports of Drs. Napoli and
Martin and opined that the impairment rating should be limited to the thumb as there were no
residuals extending into the right upper extremity or hand. In a February 14, 2007 report, the
Office medical adviser reviewed the January 15, 2007 report by Dr. Platto and found no change
from his January 28, 2007 report. He recommended a six percent impairment based on
appellant’s loss of range of motion. The Office medical adviser stated “an avulsion of the
extensor tendon with a mallet thumb does not represent any injury to the nerves” and thus, “there
should be no anticipated sensory loss.” With respect to an impairment rating for opposition loss,
the Office medical adviser noted that appellant’s injury “does not affect the base of the thumb or
any muscles that would be involved in opposition” and thus, no impairment rating for opposition
loss is appropriate. The Board finds that, as both physicians applied and explained their
respective applications of the fifth edition of the A.M.A., Guides in arriving at diverse
percentages of impairment, there is a conflict between Dr. Platto and the Office medical adviser
regarding the impairment to the thumb, including whether there is any sensory loss and whether
appellant has residuals extending into the right hand or right upper extremity.
The case will be remanded to the Office for referral of appellant to an impartial medical
specialist for a determination of impairment in accordance with the relevant standards of the
A.M.A., Guides.10 After such further development as the Office deems necessary, an appropriate
decision should be issued regarding the extent of appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision due to a conflict in the
medical evidence.

10

R.C., 58 ECAB ___ (Docket No. 06-1676, issued December 26, 2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 20, 2007 and October 23, 2006 are set aside and the case
remanded for further proceedings consistent with the above opinion.
Issued: October 1, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New Castle, PA,
Employer
__________________________________________

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

Docket No. 06-1865
Issued: January 30, 2007

Case Submitted on the Record

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

JURISDICTION
On August 9, 2006 appellant filed a timely appeal from a January 17, 2006 Office of
Workers’ Compensation Programs’ decision adjudicating his schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of his left leg.
FACTUAL HISTORY
On March 31, 1998 appellant, then a 42-year-old custodial group leader, filed a traumatic
injury claim alleging that he injured his back and left knee when he slipped in mud and fell. The
Office accepted his claim for a left knee strain and sprain and a lumbar sprain and strain.

Appellant returned to full duty on May 9, 1998. On May 17, 2005 he filed a claim for a schedule
award.1
In a December 6, 2004 report, Dr. James P. Dambrogio, an attending family practitioner,
found that appellant had a Grade 3 sensory deficit of his left leg which equaled a 60 percent
impairment according to Table 15-15 at page 424 of the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.2 He found a 15 percent
impairment of appellant’s left leg due to unilateral spinal nerve root impairment at L3, L4 and
L5, according to Table 15-18 at page 424. Dr. Dambrogio found an 8 percent impairment for 10
degrees of extension (flexion contracture), 8 percent for 4 degrees of varus deformity and 8
percent for 14 degrees of valgus deformity, according to Table 17-10 at page 537. He found a
seven percent impairment for gait derangement, according to Table 17-5 at page 529.
Dr. Dambrogio found a four percent impairment for a partial medial and lateral meniscectomy,
according to Table 17-33 at page 546. He found a four percent impairment due to pain, applying
Tables 18-4 and 18-5 at pages 576 and 580.3
On October 6, 2005 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
district medical adviser, found that appellant had a 13 percent impairment of his left leg,
including 10 percent for a “mild” loss of range of motion, according to Table 17-10 at page 537
of the A.M.A., Guides, 2 percent for pain, according to Table 18-1 at page 574, and 1.25 percent
for sensory radicular symptoms of the left S1 nerve root, according to Table 15-18 at page 424.4
He found that the 5 percent maximum for an S1 nerve root deficit, multiplied by 25 percent for
Grade 45 equaled a 1.25 percent impairment according to Tables 15-15 and 15-18 at page 424.
Dr. Berman found that a magnetic resonance imaging (MRI) scan indicated no nerve root
encroachment at the L3, L4 or L5 levels.6 No impairment at the L3-5 levels was established
based on the MRI scan and clinical findings. Dr. Berman noted that the cross-usage chart,
1

Appellant has separate claims accepted for thoracic and lumbar strains sustained on July 22, 1998 and a lumbar
strain and sprain and herniated disc sustained on May 24, 1999. He also has accepted claims for a finger laceration,
lateral epicondylitis and an anxiety reaction.
2

A.M.A., Guides (5th ed. 2001).

3

Dr. Dambrogio also found right leg impairment and penile erectile dysfunction impairment. However, the
Office has not accepted a right leg condition as related to the March 31, 1998 employment injury. Dr. Dambrogio
did not explain how any impairment for loss of sexual function was due to the accepted back or left leg condition.
See 20 C.F.R. § 10.404(a); Wade Baker, 54 ECAB 198 (2002).
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, 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).
5

Dr. Berman indicated that Grade 4 was consistent with Dr. Dambrogio’s examination findings, rather than
Grade 3.
6

Dr. Berman indicated that the MRI scan date was June 15, 1999. However, there is no MRI scan of record with
that date. It appears that Dr. Berman was referring to an August 4, 1998 MRI scan which notes mild to moderate
disc herniation at the L5 to S1 level with mild to moderate encroachment upon the neural foramina, right greater
than left.

2

Table 17-2 at page 526, precluded combination of range of motion impairment with gait
derangement or a diagnosis-based estimate (appellant’s medial and lateral meniscectomy).
By decision dated January 17, 2006, the Office granted appellant a schedule award for
37.44 weeks from December 6, 2004 to August 25, 2005 based on a 13 percent impairment of
the left leg.7
LEGAL PRECEDENT
The schedule award provision of the Act8 and its implementing regulation9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.10
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.11
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.12 The diagnosis-based method
may be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.13 The functional method is used for conditions when anatomic changes are
difficult to categorize or when functional implications have been documented, and includes
range of motion, gait derangement and muscle strength.14 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.15 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
7

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use, of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 13 percent equals 37.44 weeks of
compensation.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

20 C.F.R. § 10.404.

11

A.M.A., Guides 525.

12

Id.

13

Id.

14

Id. at Table 17-1.

15

Id. at 548, 555.

3

combination of methods that gives the most clinically accurate impairment rating.16 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.17
ANALYSIS
Dr. Dambrogio based his impairment rating, in part, on Chapter 15 of the A.M.A., Guides
which addresses impairment of the spine, rather than applying Chapter 17 which addresses lower
extremity impairment. He found that appellant had a Grade 3 sensory deficit of the left leg
which equaled a 60 percent impairment according to Table 15-15 at page 424 of the A.M.A.,
Guides. Dr. Dambrogio found a 15 percent impairment of the left leg due to unilateral spinal
nerve root impairment at L3, L4 and L5 according to Table 15-18 at page 424. Under the Act, a
schedule award is not payable for the loss or loss of use of any member of the body or function
that is not specifically enumerated in section 8107 of the Act or its implementing regulation.18
The back is specifically excluded from coverage of the schedule award provision of the Act.19
Although a schedule award may not be issued for an impairment to the back under the Act, such
an award may be payable for impairment of the lower extremities that is due to an employmentrelated back condition.20 Additionally, Chapter 15 provides for determination of impairment
based on the “whole person.” However, the Act does not provide for a schedule award based on
impairment of the whole person.21 For these reasons, it was inappropriate for Dr. Dambrogio to
evaluate the impairment of appellant’s left leg by using a section of the A.M.A., Guides
pertaining to the back.22 He should have used Chapter 17 in determining whether appellant had
any left leg impairment.23 Dr. Berman stated that appellant had a 1.25 percent impairment for
sensory radicular symptoms of the left S1 nerve root according to Table 15-18 at page 424.
However, as noted, Chapter 17 should be applied to a lower extremity impairment rating, not
Chapter 15.
Dr. Dambrogio’s evaluation of appellant’s left leg impairment included range of motion
impairment. He found an 8 percent impairment for 10 degrees of extension, 8 percent for 4
degrees of varus deformity and 8 percent for 14 degrees of valgus deformity, according to
Table 17-10 at page 537. However, 8 percent is the percentage provided in Table 17-10 for a
16

Id. at 526.

17

Id. at 527, 555.

18

See Leroy M. Terska, 53 ECAB 247 (2001).

19

5 U.S.C. § 8101(19); see also Vanessa Young, 55 ECAB 575 (2004).

20

Vanessa Young, supra note 19; Gordon G. McNeill, 42 ECAB 140 (1990).

21

Tania R. Keka, 55 ECAB 354 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

22

Guiseppe Aversa, supra note 21 (the Board found that the impartial medical specialist improperly used Chapter
15 in evaluating right leg impairment caused by a spinal injury).
23

The introduction to Chapter 17 at page 523 states that this chapter provides criteria for evaluating permanent
impairment of the lower extremities. A.M.A., Guides, 523, 525; see also 555, 17.3, Lower Extremity Impairment
Evaluation Procedure Summary and Examples.

4

whole person impairment rating. Table 17-10 provides for a 20 percent impairment for the lower
extremity for each of appellant’s three range of motion deficits, for a total range of motion
impairment of 60 percent.24 The district medical adviser stated that appellant had a 10 percent
impairment for a “mild” loss of range of motion, according to Table 17-10 at page 537.
However, he did not apply the range of motion measurements obtained by Dr. Dambrogio.
Applying the measurements for extension (flexion contracture) of 10 degrees, 4 degrees of varus
deformity and 14 degrees of valgus deformity to Table 17-10 equals a 20 percent impairment for
each of these range of motion impairments.
Dr. Dambrogio found a seven percent impairment for gait derangement, according to
Table 17-5 at page 529. He found a four percent impairment for a partial medial and lateral
meniscectomy, according to Table 17-33 at page 546 (diagnosis-based estimate). However, the
A.M.A., Guides cross-usage chart, Table 17-2 at page 526, precludes the combination of range of
motion impairment with gait derangement or a diagnosis-based estimate. As noted, an
impairment rating should be based on the rating method which yields the greater percentage of
impairment. As described above, appellant has a greater percentage of impairment due to loss of
range of motion than for gait derangement or diagnosis based estimate. Therefore, the range of
motion impairment rating method should be applied to appellant’s schedule award claim.
Regarding impairment due to pain, Dr. Dambrogio did not support, with medical
rationale, his calculation of a four percent impairment based on Chapter 18 of the A.M.A.,
Guides. Section 18.3b of Chapter 18 at page 571 of the fifth edition of the A.M.A., Guides
provides that “Examiners should not use this chapter to rate pain-related impairment for any
condition that can be adequately rated on the basis of the body and organ impairment rating
systems given in other chapters of the [A.M.A.,] Guides.”25 Dr. Dambrogio did not explain why
appellant’s pain-related impairment could not be adequately addressed by applying Chapter 17 of
the A.M.A., Guides which addresses lower extremity impairment, specifically section 17.2l,
“Peripheral Nerve Injuries” which states that, “[p]artial sensory and motor deficits should be
rated as in the upper extremity (Tables 16-10 and 16-11).” Table 16-10 explains the correct
method for calculating impairment due to sensory deficits or pain resulting from peripheral nerve
disorders. Dr. Dambrogio did not explain why application of Chapter 17 was not adequate to
calculate appellant’s impairment due to lower extremity pain, justifying application of Chapter
18 of the A.M.A., Guides. In turn, Dr. Berman incorporated the pain rating under Chapter 18
(but found a two percent impairment rather than the four percent found by Dr. Dambrogio)

24

The A.M.A, Guides provides that range of motion restrictions in multiple directions increase the impairment
and should be added to determine the total joint range of motion impairment. A.M.A., Guides 533, 17.2f “Range of
Motion.”
25

See also A.M.A., Guides at page 571; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700 Exhibit 4 (June 2003).

5

without providing an explanation of the policies incorporated in FECA Bulletin No. 01-05. The
Board finds that further development of the medical evidence is required regarding appellant’s
impairment due to sensory loss or pain.26
On remand, the Office should refer appellant, together with the case record and statement
of accepted facts, to an appropriate Board-certified specialist for an impairment evaluation based
on correct application of the A.M.A., Guides, fifth edition. After such further development as it
deems necessary, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is required.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2006 is set aside and the case is remanded for further
development consistent with this decision.
Issued: January 30, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

26

An impairment rating may include impairment based on range of motion and peripheral nerve injury. A.M.A,
Guides at 526, Table 17-2; see also the text at 552 which states, “Estimates for peripheral nerve impairments may be
combined with those for other types of lower extremity impairments, except those for muscle weakness, atrophy,
and gait derangement, using the Combined Values Chart (page 604). See cross-usage Table 17-2.”

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1584
Issued: January 15, 2013

Case Submitted on the Record

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

JURISDICTION
On July 18, 2012 appellant filed a timely appeal from a March 8, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) finding that he was not entitled to
continuation of pay and an April 12, 2012 merit decision 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.
ISSUES
The issues are: (1) whether appellant sustained an injury on September 6, 2011 in the
performance of duty; and (2) whether OWCP properly denied his request for continuation of pay.
FACTUAL HISTORY
On February 29, 2012 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim alleging that on September 6, 2011 he injured his right knee in the performance of duty.
1

5 U.S.C. § 8101 et seq.

He experienced a sharp right knee pain when he squatted on his leg reaching under a belt. The
employing establishment controverted continuation of pay as it had not received notice within
30 days of injury.
In a report dated February 27, 2012, Dr. Le H. Vu evaluated appellant for a September 6,
2011 leg injury.2 Appellant provided the history of injury as right knee pain after squatting down
and reaching for mail. Dr. Vu noted that appellant had aggravated his injury the day before the
evaluation while getting into a vehicle. He diagnosed knee pain and an unspecified sprain or
strain of the knee or leg. Dr. Vu found that appellant could work wearing a brace and with
restrictions of no lifting, pushing or pulling over 20 pounds.
In a March 5, 2012 progress report, Dr. Vu provided the same history of injury and
diagnoses. He found that appellant could perform modified employment wearing a knee brace.
By decision dated March 8, 2012, OWCP denied appellant’s request for continuation of
pay as he had not reported his injury within 30 days.
On March 8, 2012 OWCP requested that appellant submit additional factual and medical
information in support of his claim, including a detailed description of his work injury and any
history of previous symptoms.
In a letter dated March 2, 2012, the employing establishment controverted the claim as
appellant did not report the injury within six months and had worked his regular employment
without apparent difficulty until February 27, 2012.
On March 12, 2012 Dr. Zoran Vukcevic, a surgeon, rechecked appellant for an injury
dated September 6, 2011. He diagnosed an unspecified strain/sprain of the knee and leg.
Dr. Vukcevic noted that appellant had returned to his usual employment and found that he had
no impairment due to the injury.
By decision dated April 12, 2012, OWCP denied appellant’s traumatic injury on the
grounds that he did not establish fact of injury. It determined that the evidence did not establish
that the incident occurred at the time, place and in the manner alleged.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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

2

The qualifications of this physician cannot be determined.

3

Supra note 1.

2

employment injury.4 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.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.8
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.9 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.10 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements.12 However,
an employee’s statement regarding the occurrence of an employment incident is of great
probative force and will stand unless refuted by strong or persuasive evidence.13

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

See Louise F. Garnett, 47 ECAB 639 (1996).

10

See Betty J. Smith, 54 ECAB 174 (2002).

11

Id.

12

Linda S. Christian, 46 ECAB 598 (1995).

13

Gregory J. Reser, 57 ECAB 277 (2005).

3

ANALYSIS -- ISSUE 1
On February 29, 2012 appellant filed a claim alleging that on September 6, 2011 he
injured his right knee squatting down to reach under a belt. OWCP denied his claim after finding
that he did not demonstrate that the specific event occurred at the time, place and in the manner
alleged.
The initial question presented is whether appellant has established that the September 6,
2011 employment incident occurred as alleged. An injury does not have to be confirmed by
eyewitnesses in order to establish that an employee sustained an injury in the performance of
duty, but the employee’s statement must be consistent with the surrounding facts and
circumstances and his subsequent course of action.14 An employee has not met his burden of
proof when there are inconsistencies in the evidence sufficient to cast serious doubt on the
validity of his or her claim.15
The Board finds that appellant has not established the occurrence of the September 6,
2011 incident. Appellant did not report his alleged injury to the employing establishment until
February 29, 2012, almost six months later. He continued to perform his usual employment and
did not seek medical treatment until February 2012. While medical reports submitted in
February and March 2012 contain a history of injury consistent with appellant’s description of
the incident, in a report dated February 27, 2012, Dr. Vu also noted that appellant had aggravated
his knee condition getting into a vehicle the previous day. OWCP requested that he provide a
detailed description of the circumstances surrounding his work injury; however, he did not
respond to the request for information. As appellant did not provide the factual evidence
necessary to substantiate his claim, he has not met his burden of proof.16 He, therefore, has not
met his burden of proof to establish his claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file a
Form CA-1 within 30 days of the date of injury; and (3) begin losing time from work due to the
traumatic injury within 45 days of the injury.17

14

See Betty J. Smith, supra note 10.

15

See Linda S. Christian, supra note 12.

16

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

17

20 C.F.R. § 10.205(a)

4

ANALYSIS -- ISSUE 2
On February 29, 2012 appellant filed a claim for a traumatic injury allegedly sustained on
September 6, 2011. By decision dated March 8, 2012, OWCP denied his claim for continuation
of pay as he did not report the injury within 30 days. It further denied appellant’s traumatic
injury claim on April 12, 2012. As appellant has not established a work-related injury and did
not report the incident within 30 days, OWCP properly determined that he was not entitled to
continuation of pay.18
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
September 6, 2011 in the performance of duty or that he was entitled to continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the April 12 and March 8, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 15, 2013
Washington, DC

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

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

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

18

Id.; see also J.O., Docket No. 12-267 (issued June 11, 2012).

5