United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Tacoma, WA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0214
Issued: May 23, 2019

Case Submitted on the Record

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

JURISDICTION
On November 6, 2018 appellant, through counsel, filed a timely appeal from a June 29,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish employment-related
permanent impairment of a scheduled member or function of the body, warranting a schedule
award.
FACTUAL HISTORY
On May 21, 2003 appellant, a then 48-year-old seasonal tax resolution representative, filed
a traumatic injury claim (Form CA-1) alleging that she sustained multiple injuries at work on
May 19, 2003 when she fell from a stool and struck her head while in the performance of duty.
OWCP accepted her claim, assigned OWCP File No. xxxxxx070, for neck strain, face and scalp
contusions, right lateral epicondylitis, and thoracic/lumbar radiculitis.3 After several intermittent
work stoppages, appellant stopped working for the employing establishment in 2005. She worked
on a part-time basis in the private sector until June 2010 and she elected to receive Social Security
Administration disability benefits commencing June 2010.
On May 31, 2014 appellant filed a claim for a schedule award (Form CA-7).
Appellant subsequently submitted an April 7, 2014 report from Dr. David Weiss, an
osteopath Board-certified in clinical orthopedic surgery. Dr. Weiss determined that appellant had
39 percent permanent impairment of her left lower extremity, 23 percent of her right lower
extremity, 11 percent of her left upper extremity, and 4 percent of her right upper extremity based
on the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4
OWCP referred the case record to Dr. Kenneth D. Sawyer, a Board-certified orthopedic
surgeon serving as an OWCP district medical adviser (DMA), to review both of appellant’s claims
and provide an opinion regarding her permanent impairment rating and whether it is causally
related to her accepted conditions. In a June 13, 2014 report, Dr. Sawyer opined that he could not
resolve inconsistent findings of Dr. Weiss as compared to other examining physicians. Because
of those inconsistencies, he disagreed with the impairment ratings of Dr. Weiss and recommended
an independent medical examination.
OWCP subsequently declared a conflict in the medical opinion evidence between
Dr. Weiss’ April 7, 2014 report and the June 13, 2014 report of DMA Dr. Sawyer. It referred
appellant to Dr. Timothy Daly, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion regarding permanent impairment.
Dr. Daly examined appellant on September 24, 2014 and, in a report of the same date,
concluded that appellant had no ratable employment-related impairment. He explained that
3

Appellant has a prior claim under OWCP File No. xxxxxx226, involving a September 6, 2001 traumatic injury
accepted for neck, thoracic, and subscapularis muscle sprains/strains. OWCP has administratively combined OWCP
File Nos. xxxxxx070 and xxxxxx226, and it has designated OWCP File No. xxxxxx070 as the master file.
4

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

2

appellant’s accepted employment injuries of contusion of the head, cervical strain, epicondylitis,
and right shoulder strain had all resolved without any ratable impairment. Dr. Daly noted that
there were no objective findings, with the exception of reflex deficit of the left ankle, upon which
to rate permanent impairment, and that there was an absence of sensory deficits. After applying
the sixth edition of the A.M.A., Guides, he noted his disagreement with the rating of Dr. Weiss,
and concluded that there was no objective evidence of cervical, right or left upper extremity, or
lower back impairment.
Dr. L. Jean Weaver, a DMA Board-certified in internal medicine and pulmonology,
reviewed the medical evidence of record, including Dr. Daly’s report, and concluded that she
concurred with his assessment.
By decision dated January 7, 2015, OWCP denied appellant’s schedule award claim,
finding that the September 24, 2014 report of Dr. Daly, who found no permanent impairment
constituted the special weight of the medical evidence.
Appellant subsequently requested a hearing, held before an OWCP hearing representative
on June 25, 2015. By decision dated September 9, 2015, the hearing representative set aside the
January 7, 2015 decision and remanded the case for a supplemental opinion from Dr. Daly.
In a May 9, 2016 addendum report, Dr. Daly noted that the findings of Dr. Weiss were
accurately reported by DMA Dr. Sawyer, but he was unable to review Dr. Weiss’ 2014 and 2015
reports as requested because the reports had not been provided.
By decision dated December 6, 2016, a representative of OWCP’s Branch of Hearings and
Review set aside the denial of appellant’s schedule award claim, finding that there was not a true
conflict in the medical opinion evidence between the reports of Dr. Weiss and OWCP’s medical
adviser. Rather, a new conflict in the medical opinion evidence existed between the opinions of
Dr. Weiss and Dr. Daly, now reduced from an impartial medical specialist to an OWCP referral
physician. It therefore remanded the case to OWCP for referral to a new impartial medical
specialist.
On remand OWCP referred appellant and the case record to Dr. St. Elmo Newton, III, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
In a March 22, 2017 report, Dr. Newton found that appellant had no permanent impairment
of a scheduled member or function of the body.
By decision dated April 10, 2017, OWCP denied appellant’s schedule award claim based
on the opinion of Dr. Newton.
Appellant subsequently requested an oral hearing, held on July 12, 2017. By decision
dated August 24, 2017, OWCP’s hearing representative set aside the April 10, 2017 decision and
remanded the case to OWCP for further development. He found that Dr. Newton was not qualified
to serve as an impartial medical specialist due to his association with another physician involved
in the present claim, and he remanded the case to OWCP for referral to a new impartial medical
specialist.
3

On remand OWCP referred appellant and the case record to Dr. Josef K. Eichinger, a
Board-certified orthopedic surgeon, for an impartial medical examination and opinion regarding
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
In a June 13, 2018 report, Dr. Eichinger noted appellant’s factual and medical history and
reported the findings of the his physical examination conducted on May 25, 2018. He indicated
that palpation revealed no areas of tenderness along the spinous processes from the cervicocranial
junction to the top of the sacrum, or in the lumbar paraspinal musculature. Dr. Eichinger advised
that the upper extremity examination revealed 5/5 strength in the bilateral upper extremities,
including shoulder abduction, external and internal rotation, elbow ﬂexion and extension, wrist
ﬂexion and extension, and ﬁnger and thumb ﬂexion, extension, adduction, and abduction
bilaterally. He indicated that sensory examination was intact in all dermatomal distributions about
appellant’s bilateral upper extremities in all dermatomes. Dr. Eichinger noted that appellant’s
lower extremity examination revealed 5/5 strength throughout her right lower extremity, including
hip ﬂexion, extension, adduction, and abduction, and knee ﬂexion. Appellant’s left lower
extremity had 5/5 strength when she gave full effort, but she demonstrated give way strength.
Dr. Eichinger advised that appellant’s right lower extremity sensation was intact in all dermatomal
distributions with an intact ability to discriminate between sharp and dull touch. Appellant’s left
lower extremity sensory examination was intact in all dermatomal distributions, but she
demonstrated inconsistent ability to discriminate between sharp and dull touch. Dr. Eichinger
noted that this was demonstrated both in the superficial peroneal nerve distribution and in the
saphenous nerve distribution. He diagnosed neck strain (resolved), scalp contusion (resolved),
right lateral epicondylitis (resolved), and unspecified thoracic/lumbar neuritis and radiculopathy
present only by electromyogram (EMG) and unrelated to the May 19, 2003 accident.
Dr. Eichinger asserted that appellant demonstrated a nonphysiologic and inconsistent
examination. Appellant had volitional weakness during the testing of her lower extremity strength,
particularly the left lower extremity. Dr. Eichinger indicated that, although appellant had an EMG
documenting left S1 radiculopathy and left tibial neuropathy, this would not explain the
nonphysiologic global weakness she demonstrated during the examination of her left lower
extremity. He noted that, with respect to appellant’s upper extremities, there was a lack of
consistency between her ability to discriminate between sharp and dull, despite her two-point
discrimination being five millimeters in all digits. There were no other objective ﬁndings in
appellant’s upper extremities, as she demonstrated 5/5 strength when giving full effort. The
degenerative ﬁndings noted in appellant’s cervical spine with multilevel spondylitic changes and
degenerative discs, were preexisting and unrelated to the May 19, 2003 accident. Dr. Eichinger
noted that, given the lack of consistency on multiple elements of appellant’s examination, no
permanent impairment could be attributed to her preexisting conditions. Dr. Eichinger maintained
that all of appellant’s accepted conditions had resolved and opined that she did not have any
permanent impairment of her extremities under the sixth edition of the A.M.A., Guides.
By decision dated June 29, 2018, OWCP determined that appellant did not establish
employment-related permanent impairment of her extremities entitling her to schedule award
compensation. It found that the special weight of the medical opinion evidence with respect to
appellant’s permanent impairment rested with the June 13, 2018 report of Dr. Eichinger, the
impartial medical specialist.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulation,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the elbow, a relevant portion of the arm for the present case, reference
is made to Table 15-4 (Elbow Regional Grid) beginning on page 398. After the class of diagnosis
(CDX) is determined from the Shoulder Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the grade modifier for functional history
(GMFH), grade modifier for physical examination (GMPE), and grade modifier for clinical studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.10 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides
Newsletter).12 It was designed for situations where a particular jurisdiction, such as FECA,
mandated ratings for extremities and precluded ratings for the spine. The FECA-approved
methodology is premised on evidence of radiculopathy affecting the upper and/or lower

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8
Federal (FECA) Procedure Manual, Part 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).
9

See A.M.A., Guides (6th ed. 2009) 398-411. Table 15-4 also provides that, if motion loss is present for a claimant
who has lateral or medial epicondylitis, impairment may alternatively be assessed using section 15.7 (range of motion
impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis-based impairment.
Id. at 399, 475-78.
10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5c(3) (March 2017).
12

Id.

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extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated
in the Federal (FECA) Procedure Manual.13
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”14 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.15
The medical management application (MMA) system provides for a rotation among
potential impartial medical specialists from the American Board of Medical Specialties, including
the medical boards of the American Medical Association, and those physicians Board-certified
with the American Osteopathic Association.16 Upon proper entry of appointment information, the
MMA system prompts the medical scheduler to prepare a Form ME023 (appointment notification
report) for imaging into the case file.17
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Weiss, an attending physician, and Dr. Daly, an OWCP referral physician,
regarding whether appellant had permanent impairment of a scheduled member or function of
the body.18 In order to resolve the conflict, OWCP properly referred appellant, pursuant to
section 8123(a) of FECA, to Dr. Eichinger for an impartial medical examination.19
13

Supra note 11 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

14

5 U.S.C. § 8123(a).

15

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
16

Supra note 11 at Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(a) (May 2013).

17

Supra note 11 at Chapter 3.500.5(h), (i). The ME023 serves as documentary evidence that the referee
appointment was scheduled through the medical management application rotational system. Id.
18

See supra note 14. In an April 7, 2014 report, Dr. Weiss determined that appellant had 39 percent permanent
impairment of her left lower extremity, 23 percent of her right lower extremity, 11 percent of her left upper extremity,
and 4 percent of her right upper extremity based on the sixth edition of the A.M.A., Guides. In contrast, Dr. Daly, an
OWCP referral physician, determined on September 24, 2014 that appellant had no permanent impairment under the
sixth edition of the A.M.A., Guides.
19

On appeal counsel questions whether Dr. Eichinger was properly selected under the rotational method of selecting
impartial medical specialists. However, he did not adequately identify any deficiencies in the selection process and
the record contains a May 3, 2018 Form MEO23 showing that Dr. Eichinger was properly selected through the
established MMA system. See supra notes 16 and 17.

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In his June 13, 2018 report, Dr. Eichinger opined that appellant did not have any permanent
impairment of a scheduled member or function of the body under the sixth edition of the A.M.A.,
Guides. However, the Board finds that Dr. Eichinger did not adequately explain this opinion in
accordance with the relevant standards. In a situation where OWCP secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and the
opinion from such examiner requires clarification and/or elaboration, OWCP has the responsibility
to secure a supplemental report from the examiner for the purpose of correcting the defect in the
original opinion.20
In his June 13, 2018 report, Dr. Eichinger opined that all of appellant’s accepted medical
conditions stemming from her May 19, 2003 employment injury had resolved, including her leftsided thoracic and lumbar neuritis/radiculitis, right lateral epicondylitis, and neck strain. The
Board notes, however, that Dr. Eichinger failed to adequately explain how and when those
conditions had resolved. Dr. Eichinger acknowledged that prior diagnostic testing, including EMG
testing, had shown that appellant had a left radiculopathy extending from her back into her left leg,
but he did not adequately explain why this condition was not related to the accepted condition of
lumbar neuritis/radiculitis.
Moreover, Dr. Eichinger did not provide any discussion of whether appellant had
permanent impairment due to her September 6, 2001 employment injury which was accepted for
neck, thoracic, and subscapularis muscle sprains/strains. He noted that appellant exhibited some
strength and sensory inconsistencies in her extremities and ostensibly provided an opinion that
these inconsistencies showed that appellant had no permanent impairment stemming from her
trunk into her extremities. However, Dr. Eichinger failed to provide any discussion of the relevant
portion of the sixth edition of the A.M.A., Guides governing this type of permanent impairment.
He did not discuss the standards of The Guides Newsletter, the above-described FECA-approved
methodology which is premised on permanent impairment stemming from radiculopathies
affecting the upper and/or lower extremities.21 In addition, with respect to appellant’s accepted
right lateral epicondylitis condition, Dr. Eichinger failed to make any reference to Table 15-4 of
the sixth edition of the A.M.A., Guides which primarily concerns calculating permanent
impairment based on the most impairing diagnosis of a given upper extremity.22
For the above-described reasons, the opinion of Dr. Eichinger requires clarification.
Therefore, in order to resolve the continuing conflict in the medical opinion evidence, the case will
be remanded to OWCP for referral of the case record, a statement of accepted facts, and, if
necessary, appellant, to Dr. Eichinger for a supplemental report regarding whether appellant has
permanent impairment of her extremities. If Dr. Eichinger is unable to clarify or elaborate on his
original report or if his supplemental report is also vague, speculative, or lacking in rationale, OWCP
must submit the case record and a detailed statement of accepted facts to a second impartial specialist
20

S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

21

See supra notes 11 through 13.

22

See supra note 9. Table 15-4 also allows for calculation of permanent impairment based on range of motion
deficits of the elbow in certain circumstances, including the instance when the claimant has a diagnosis of lateral
epicondylitis. Id.

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for the purpose of obtaining his rationalized medical opinion on the issue.23 After carrying out such
development, OWCP shall issue a de novo decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further action
consistent with this decision.
Issued: May 23, 2019
Washington, DC

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

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

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

23

Harold Travis, 30 ECAB 1071, 1078 (1979).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., claiming as widow of C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Falmouth, MA, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-890
Issued: November 3, 2010

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 3, 2010 appellant filed a timely appeal from a September 30, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for survivor
benefits. 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 established that the employee’s death was causally
related to his federal employment.

FACTUAL HISTORY
On December 14, 2008 appellant filed a claim for survivor benefits alleging that the
death of her 89-year-old husband on December 3, 2008 was causally related to his accepted 1974
employment injury. The Office accepted that the employee sustained an acute myocardial
infarction on May 27, 1974 resulting from the performance of his federal employment. The
employee’s preexisting arteriosclerosis condition was not accepted as employment related.
A December 9, 2008 death certificate listed that the employee died on December 3, 2008.
The cause of death was listed as cerebral bleeding as a consequence of coumadin therapy. Other
conditions of coronary artery disease, dementia, atrial fibrillation and peripheral vascular disease
were listed as contributing to death, but not the underlying cause of death. This death certificate
was signed by Dr. Adnan Sammour, Board-certified in internal medicine.
In an attending physician’s report dated December 12, 2009, Dr. Sammour explained that
the employee had been admitted to hospice care on November 28, 2008 and had died on
December 3, 2008 due intraventricular bleeding secondary to atherosclerosis/coronary artery
disease. He answered not applicable in response to the form question “[w]hat history of injury or
employment-related disease was given to you?
On January 9, 2009 Dr. Sammour reported that the employee had suffered from coronary
artery disease, atherosclerosis and Alzheimer’s disease dementia. The employee was admitted to
a hospital on November 26, 2008 with intracerebral hemorrhage. Given his history of coronary
artery disease and dementia, comfort measures were chosen and the employee was discharged
for hospice care.
In a January 12, 2009 report, Dr. Sherif Z. Mehanny, a cardiologist, reported that the
employee had been seen in August 2008. He related that the employee experienced worsening
aortic stenosis and developed shortness of breath from systolic dysfunction “in the phase of
previous MI [myocardial infarction].” Dr. Mehanny concluded that the employee had died due
to the progression of multiple medical conditions, including total occlusion of the right carotid
artery, previous stroke, dementia and the progression of heart disease.
On May 15, 2009 the district medical adviser reviewed the case record. He was asked to
clarify whether the employee’s death was causally related to the accepted work injury. The
district medical adviser reported that the employee’s death was not caused by his employment
injury. He noted that the employee had sustained an acute myocardial infarction in 1974,
following which he underwent bypass surgery and recovered. The employee suffered
complications from advanced arthrosclerosis in subsequent years, including carotid occlusive
disease, peripheral arterial occlusive disease, stroke and proximal atrial fibrillation. The
employee was treated with coumadin for these conditions. On November 26, 2008 the employee
developed a brain bleed due to coumadin and died on December 3, 2008.
By decision dated September 30, 2009, the Office denied appellant’s claim. It found that
the medical evidence of record did not establish the causal relationship between the employee’s
death and his accepted myocardial infarction of 1974.

2

LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.1
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.2
ANALYSIS
The Office accepted that the employee sustained an acute myocardial infarction on
May 27, 1974 causally related to factors of his federal employment. The employee was in
receipt of compensation benefits for this condition at the time of his death. The receipt of
compensation for total disability for work is not proof of the fact or sufficient to raise a
presumption of a causal relation between an employee’s death and the accepted condition. Such
an issue is medical in nature and must be resolved through probative medical opinion evidence.3
Appellant has not met her burden of proof in this case.
The medical evidence of record establishes that the employee died on December 3, 2008
due to cerebral bleeding caused by coumadin therapy. This cause of death was verified by the
treating physician, Dr. Sammour, who signed the death certificate. While the medical evidence
supports a finding that the employee’s health declined in the years preceding his death due
complications of his coronary artery disease and atherosclerosis, the Office only accepted his
1974 myocardial infarction as causally related to his federal employment. At the time of his
death, the employee suffered from carotid occlusive disease, peripheral arterial occlusive disease,
stroke, and proximal atrial fibrillation, and was on coumadin therapy. None of the physicians of
record have offered any medical explanation as to how the employee’s death was due to the
myocardial infarction he sustained in 1974. Dr. Sammour indicated in the December 12, 2009
attending physician’s report that the employee’s employment injury was “not applicable” to the
cause of his death.
Appellant did not submit sufficient medical evidence to meet her burden of proof. The
Board finds the Office properly denied the claim for compensation.

1

5 U.S.C. § 8133 (compensation in case of death).

2

Lois E. Culver, 53 ECAB 412 (2002).

3

Bertha J. Soule (Ralph G. Soule), 48 ECAB 314 (1997).

3

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death on December 3, 2008 was causally related to his accepted May 27, 1974
myocardial infarction.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2009 is affirmed.
Issued: November 3, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Redwood City, CA, Employer
__________________________________________

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

Docket No. 12-829
Issued: October 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2012 appellant, through his attorney, filed a timely appeal from a
February 2, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning the termination of his compensation benefits. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage-loss
and medical benefits effective July 27, 2011 on the grounds that he no longer had any residuals
or disability causally related to his accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2009 appellant, then a 53-year-old enumerator, injured his left knee and ankle
while walking down stairs. OWCP accepted the claim for left knee and ankle sprains and
temporary aggravation of left leg arthropathy. Appellant, who started his position on March 26,
2009, was terminated for cause on April 12, 2009.
On December 8, 2009 appellant filed a claim for wage-loss compensation beginning
April 10, 2009.
On August 27, 2010 Dr. Aubrey A. Swartz, a second opinion Board-certified orthopedic
surgeon, reviewed the medical evidence, statement of accepted facts set forth findings on
physical examination. He concluded that appellant no longer had any residuals or disability due
to his accepted ankle and knee sprains. The physical examination revealed no instability, no
warmth, no discoloration, no limp, no swelling and a normal range of motion. Based upon a
review of x-rays, Dr. Swartz concluded that the employment injury caused a temporary
aggravation of a preexisting chronic degenerative left knee osteoarthritis.
In progress notes dated October 2010 through March 24 2011, Dr. Thai T. Do, a treating
Board-certified internist, diagnosed a retear in the posterior medial meniscus, a small tear in the
lateral meniscus, severe medial and lateral knee chondromalacia/osteoarthritic changes and
anterior cruciate ligament tear based upon review of a magnetic resonance imaging (MRI) scan.
He related that appellant sustained a work injury on April 7, 2009 when he lost his balance while
walking down stairs and twisted his left knee. In a January 24, 2011 progress note, Dr. Do
released appellant to modified duty with restrictions. He also noted a history of left knee
injuries.
In a January 11, 2011 report, Dr. Raffy Mirzayan, an examining Board-certified
orthopedic surgeon, noted a history of the April 7, 2009 injury. He diagnosed left knee arthritis,
medial meniscus retear and lateral meniscus tear.
On February 17, 2011 Dr. Do related that an MRI scan showed changes consistent with
left knee medial and lateral tears and severe chondromalacia. He obtained a history that
appellant underwent left knee surgery 30 years prior and a second surgery 6 years present.
Dr. Do diagnosed preexisting left knee osteoarthritis with temporary aggravation, left knee acute
lateral meniscus tear and acute left knee medial meniscus tear. He opined that the April 7, 2009
employment injury was the direct cause of the medial and lateral meniscus tear and that it caused
a temporary aggravation of appellant’s preexisting arthritis.
In an April 22, 2011 supplemental report, Dr. Swartz reviewed an updated statement of
accepted facts and additional medical evidence. He related that the meniscal tears were more
likely degenerative in nature and not an unusual development with advanced or severe knee
arthritis. Dr. Swartz also noted that the tears were not seen until a November 12, 2010 MRI
scan, which was approximately one and one-half years after the April 7, 2009 employment
injury. He concluded that appellant would probably have had the degenerative tears even if the
April 7, 2009 employment injury had not happened. Dr. Swartz related that arthritis also
affected the menisci and there was no evidence showing that the tears were due to the April 7,

2

2009 employment injury. He opined that appellant no longer had any residuals or disability as a
result of the accepted April 7, 2009 employment injury. Dr. Swartz attributed appellant’s current
condition and disability to the preexisting severe left knee degenerative osteoarthritis.
On June 22, 2011 OWCP issued a notice of proposed termination of compensation and
medical benefits based on the opinion of Dr. Swartz. It afforded appellant 30 days to submit
additional evidence or argument to the extent he disagreed with the proposed termination of
benefits. No evidence was received.
By decision dated July 27, 2011, OWCP terminated appellant’s wage-loss and medical
benefits effective that day.
On August 4, 2011 appellant’s representative requested a telephonic hearing before an
OWCP hearing representative, which was held on November 9, 2011. Subsequent to the
hearing, OWCP received additional medical evidence. On December 2, 2011 Dr. Do diagnosed
preexisting left knee osteoarthritis with temporary aggravation, left knee acute lateral meniscus
tear and acute left knee medial meniscus tear. He opined that the April 7, 2009 employment
injury was the direct cause of the medial and lateral meniscus tears and caused a temporary
aggravation of appellant’s preexisting arthritis.
By decision dated February 2, 2012, the hearing representative affirmed the July 27, 2011
termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 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.3 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
2

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

3

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

4

See I.R., Docket No. 09-1229 (issued February 24, 2010); J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB
284 (1988).
5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

B.K., Docket No. 08-2002 (issued June 16, 2009); Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB
660 (2003).

3

ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits based on the opinion of Dr. Swartz, an OWCP referral physician, who
reviewed the history of appellant’s employment injury, medical treatment and the statement of
accepted facts concerning the left knee and ankle sprains and temporary aggravation of left leg
arthropathy. Dr. Swartz reported essentially normal findings on physical examination and noted
no objective evidence of the accepted employment conditions. He opined that appellant no
longer had any residuals or disability due to his accepted April 7, 2009 employment injury.
Dr. Swartz found that the diagnosed meniscal tears were degenerative in nature, that were not
visible on testing until the November 12, 2010 MRI scan approximately one and one-half years
following the April 7, 2009 employment injury. He advised that there was no evidence that the
tears were due to the employment injury. Dr. Swartz concluded that appellant’s current
condition and disability were due to a preexisting left knee osteoarthritic condition which was
unrelated to the accepted conditions.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.7 Dr. Swartz fully discussed the history of injury and
explained that there were no objective findings to establish that appellant had any continuing
employment-related residuals or disability. The Board finds that his opinion is detailed, well
rationalized and based upon a complete and accurate history. The Board finds that Dr. Swartz’
opinion represents the weight of the medical evidence. The Board establishes that appellant no
longer has any residuals or disability causally related to his accepted employment conditions of
left knee and ankle sprains and temporary aggravation of left leg arthropathy. OWCP met its
burden of proof to terminate compensation.
For conditions not accepted by OWCP as being employment related, it is appellant’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove any such relationship.8 Dr. Do diagnosed preexisting left knee
osteoarthritis with temporary aggravation, left knee acute lateral meniscus tear and acute left
knee medial meniscus tear in his various reports. He concluded that appellant sustained a
temporary aggravation of his left knee osteoarthritis which had resolved, but attributed the left
knee medial and lateral meniscus tears to the April 7, 2009 employment injury. Dr. Do provided
insufficient rationale to explain how the meniscus tears were caused or aggravated by appellant’s
employment injury. The Board has held that medical reports unsupported by medical rationale
are of limited probative value.9 Dr. Mirzayan diagnosed left knee arthritis, medial meniscus
retear and lateral meniscus tear and noted an April 7, 2009 employment injury. However, he
offered no opinion as to the cause of these conditions. The Board has held that medical opinions
not containing rationale on causal relation are of diminished probative value and are insufficient
7

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

T.F., 58 ECAB 128 (2006); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

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to meet appellant’s burden of proof. Thus, the reports from Drs. Do and Mirzayan are
insufficient to establish that the medial and lateral meniscus tears were due to the April 7, 2009
employment injury.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation for wage-loss
and medical benefits effective July 27, 2011 on the grounds that he no longer had any residuals
or disability causally related to his accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2012 is affirmed.
Issued: October 3, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10

D.U., Docket No. 10-144 (issued July 27, 2010); Richard A. Neidert, 57 ECAB 474 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Catonsville, MD, Employer
__________________________________________

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

Docket No. 21-0727
Issued: December 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a March 9, 2021 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. 3

1
Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because recorded calls
existed and he submitted documents in support of his claim that had not been reviewed. He further alleged that he
was being discriminated against. The Board, in exercising its discretion, denies appellant’s request for oral argument
because this matter requires an evaluation of the medical evidence presented. As such, the Board finds that the
arguments on appeal can be adequately addressed in a decision based on a review of the case record. Oral argument
in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral
argument request is denied and this decision is based on the case record as submitted to the Board.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 9, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left hip condition
causally related to the accepted June 10, 2020 employment incident.
FACTUAL HISTORY
On July 13, 2020 appellant, then a 33-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 10, 2020 he injured his left hip as he was in the process of
defending himself from a loose dog that tried to bite him while in the performance of duty. He did
not stop work.
Appellant submitted a June 16, 2020 visit summary in which Nora Bianco, a physician
assistant, indicated that appellant had undergone an x-ray scan of his left hip and was diagnosed
with an unspecified sprain of the left hip.
In an undated statement, appellant explained that, in the process of trying to get away from
a pit bull on June 10, 2020, he twisted his hip. He informed his manager of his injury and took the
next couple of days off from work before visiting a physician on June 15, 2020. Appellant returned
to work on June 22, 2020 and when he attempted to deliver to another route he experienced more
pain. He treated his symptoms with ice that night, but the next morning experienced pain shooting
from his left foot up to his left hip. At the direction of his manager, appellant completed a Form
CA-1 on June 25, 2020. Appellant indicated that he had been in pain and had not received
reimbursement for medical treatment or wage-loss compensation since June 10, 2020.
Appellant also submitted a photograph of the medical center where he went for treatment,
as well as photographs of receipts demonstrating that he purchased prescription medication. He
also submitted an illegible duty status report (Form CA-17).
In a development letter dated July 17, 2020, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide additional information regarding
appellant’s alleged injury, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement. It a fforded both
parties 30 days to submit the requested evidence. No additional evidence was received.
By decision dated August 18, 2020, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence signed by a qualified physician containing a
diagnosis in connection with his claimed injury. It concluded, therefore, that the requirements had
not been met to establish an injury as defined under FECA.
OWCP continued to receive evidence. In a July 30, 2020 report, Dr. Motti Mulleta, Boardcertified in internal medicine, indicated that appellant’s hip pain was aggravated by a
December 2019 motor vehicle accident as well as the June 10, 2020 employment incident in which
appellant was attacked by a pit bull. On evaluation she diagnosed an unspecified sprain of the left
hip.
In an August 18, 2020 medical report, Dr. Stephen Faust, a Board-certified orthopedic
surgeon, indicated that appellant twisted his left hip two months prior while trying to avoid an
attack from a dog. He also observed that appellant had two prior episodes over the last year and a
2

history of injury in the same area. Dr. Faust reviewed a June 15, 2020 x-ray scan of appellant’s
left hip and diagnosed chronic left hip pain. In a workers’ compensation case report of even date,
he checked a box to indicate appellant’s need for severe work restrictions and arranged for
appellant to undergo a magnetic resonance imaging scan of his left hip.
On September 1, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received medical reports dated June 15 and 25, 2020 wherein Dr. Eric
Simball, Board-certified in family medicine, evaluated appellant for hip pain appellant had been
experiencing for approximately nine months. Appellant reported that he strained his hip when his
foot slipped as he was walking and overextended. He alleged that this injury happened at work,
but he did not inform his physician that it was work related. Dr. Simball diagnosed an unspecified
sprain of the left hip and a left hip strain with an onset date of June 8, 2020.
An oral hearing was held on January 6, 2021. Appellant recounted the events of the
accepted June 10, 2020 employment incident. The hearing representative informed appellant of
the medical evidence necessary in order to establish his claim and held the case record open for
submission of additional evidence for at least 30 days. No additional evidence was submitted.
By decision dated March 9, 2021, OWCP’s hearing representative affirmed, as modified,
the August 18, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
condition and the accepted June 10, 2020 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the emp loyee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury. 8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. Additionally, the physician ’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagno sed condition and the
specific employment incident. 10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left hip injury
causally related to the accepted June 10, 2020 employment incident.
Dr. Mulleta, in a July 30, 2020 report, opined that appellant’s left hip pain was related to
both, a December 2019 motor vehicle accident and the June 10, 2020 employment incident. On
evaluation she diagnosed an unspecified sprain of the left hip. However, Dr. Mulleta did not offer
any rationale for this opinion relative to causal relationship. The Board has held that medical
opinion evidence should offer a medically-sound explanation of how the specific employment
incident or work factors physiologically caused the injury. 12 Dr. Mulleta’s report is, therefore,
insufficient to establish appellant’s claim.
Appellant submitted reports dated June 15 and 25, 2020 in which Dr. Simball diagnosed
an unspecified left hip strain with an onset date of June 8, 2020. Dr. Simball related this injury to
an incident approximately nine months prior when appellant was walking and strained his hip as
he slipped on something and overextended it. As the Board has held, medical opinions based on
an incomplete or inaccurate history are of diminished probative value.13 Additionally, in any case
where a preexisting condition involving the same part of the body is present and the issue of causal
relationship, therefore, involves aggravation, acceleration, or precipitation, the medical evidence
must provide a rationalized medical opinion that differentiates between the effects of the work 8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
12

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

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related injury or disease and the preexisting condition. As Dr. Simball did not specifically
differentiate between appellant’s preexisting condition and the effects of the accepted June 10,
2020 employment incident, and did not explain how the employment incident aggravated his
preexisting condition, his medical reports are insufficient to establish causal relationship. 14
Dr. Faust’s August 18, 2020 medical report observed left hip injury due to the June 10,
2020 employment incident in which he twisted while trying to avoid an attack from a dog. On
evaluation Dr. Faust diagnosed chronic left hip pain. The Board has held that pain is a symptom
and not a compensable medical diagnosis.15 For this reason, Dr. Faust’s August 18, 2020 medical
report is also insufficient to meet appellant’s burden of proof.
The remaining medical evidence consists of a June 16, 2020 visit summary signed by a
physician assistant. The Board has long held that certain healthcare providers such as physical
therapists, nurses, physician assistants, and social workers are not considered physicians as defined
under FECA.16 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.
As appellant has not submitted rationalized medical evidence establishing a left hip
condition causally related to the accepted June 10, 2020 employment incident, the Board finds that
he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left hip
condition causally related to the accepted June 10, 2020 employment incident.

14

Supra note 10.

15

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also supra note 11 at Chapter 2.805.3a(1) (January 2013); M.F., Docket
No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render
a medical opinion under FECA).
16

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ORDER
IT IS HEREBY ORDERED THAT the March 9, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

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

Docket No. 06-2105
Issued: April 6, 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 September 12, 2006 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ October 27, 2005 and April 3, 2006 schedule award decisions.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant has more than a 3 percent permanent impairment of his
right upper extremity; a 2 percent permanent impairment of his right lower extremity; and a
10 percent permanent impairment of his left lower extremity, for which he received a schedule
award.
FACTUAL HISTORY
On January 23, 2001 appellant injured both knees and his right hand when he tripped on
plastic strapping in the performance of his duties. His claim was accepted for cervical strain,
right knee and right hand sprain, chondromalicia of the left knee patella and right internal knee

derangement. Appellant underwent authorized surgeries on the left and right knees on July 31,
2001 and December 10, 2002 respectively.
On November 16, 2004 appellant requested a schedule award. In a July 22, 2004 report,
Dr. Nicholas P. Diamond, a treating physician, stated that examination of the cervical spine
revealed restricted range of motion involving backward extension, left and right rotation and left
and right flexion. Examination of the dorsal spine showed paravertebral muscle spasm and
tenderness, as well as latissimus dorsi tenderness on the right side. Dorsal rotation was restricted
on the right and bilateral rotation was carried through with pain at the extremes. In determining
appellant’s gross motor strength, adductor pollicis testing was graded at 4+/5 in the right upper
extremity. Examination of the right hand revealed palmar aspect tenderness over the thenal
eminence; tenderness over the metacarpophalangeal joint of the thumb. Grip strength testing
performed via Jamar hand dynamometer at Level 3 revealed 17.5 kilograms (kg) of force
strength in the right hand, versus 24 kg of force strength for the left hand. (Appellant is left hand
dominant). Examination of the right knee revealed effusion over the medial joint line;
peripatellar tenderness; crepitus; tenderness over the medial femoral condyle; and restricted
range of motion (0 to 90 degrees) with pain. Dr. Diamond noted that patellofemoral
compression produced pain and crepitus at 20 degrees. Examination of the left knee revealed
peripatellar tenderness; crepitus; and restricted range of motion (0 to 90 degrees) with pain.
Patellofemoral compression produced pain and crepitus at 20 degrees. Testing of the
gastrocnemius musculature was graded at 4+/5 on the right and 4/5 on the left. Quadricep
strength was graded at 4+/5 on both sides.
Dr. Diamond diagnosed post-traumatic left knee medial meniscal tear, with posttraumatic osteoarthritis; status post arthroscopic left knee partial medial meniscectomy, abrasion
arthroplasty and chondroplasty; post-traumatic right knee medial and lateral menisci tears; status
post arthroscopic right knee partial medial and lateral meniscectomies and abrasion arthroplasty;
cervical disc syndrome; bilateral knee tenosynovitis; chronic cervical and thoracic spine sprain
and strain; and right thumb metacarpophalangeal capsulitis. Dr. Diamond referred to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides) (5th ed. 2001) in determining the degree of appellant’s permanent impairment.
He determined that appellant had a right grip strength deficit of 30 percent (Tables 16-32 and 1634, page 509) and a right upper extremity pain-related impairment of 3 percent (Table 18-2, page
574), for a total right upper extremity impairment of 33 percent. Dr. Diamond found that
appellant had a left grip strength deficit of 20 percent (Tables 16-32 and 16-34, page 509) and a
left upper extremity pain-related impairment of 3 percent (Table 18-2, page 574), for a total left
upper extremity impairment of 23 percent. For each of appellant’s knees, he found a 10 percent
range of motion deficit for flexion (Table 17-10, page 537) and a 3 percent pain-related deficit
(Table 18-1, page 574), for a total impairment rating of 13 percent for each knee. Dr. Diamond
determined that July 22, 2004 was the date of maximum medical improvement. In an
October 26, 2004 letter, Dr. Cornelius I. Nicoll, a treating physician, agreed with Dr. Diamond’s
July 22, 2004 report.
In a December 16, 2004 report, an Office medical adviser found that the date of
maximum medical improvement was July 22, 2004, the date of Dr. Diamond’s report. Referring
to the A.M.A., Guides, he determined that appellant had a 13 percent impairment of each lower
extremity, due to a 10 percent range of motion deficit (page 537) and a 3 percent impairment due

2

to pain (Table 17-10, page 574). The medical adviser found that appellant had a 13 percent right
upper extremity impairment, due to a 10 percent grip strength deficit (Table 16-34, page 509)
and a 3 percent impairment due to pain (Table 17-10, page 574).
On December 28, 2004 the Office asked the medical adviser to clarify his impairment
rating for appellant’s right upper extremity, in light of Dr. Diamond’s 33 percent rating. On
January 5, 2005 the medical adviser indicated that, while Dr. Diamond had used the average grip
strength by age to determine the deficit, he had used the 24 kg value for the universal left hand,
which was normal for appellant, who is left-hand dominant. Converting the 24 kg to a righthand “normal,” results in a 10 percent impairment, based on the loss of strength index:
Left (24) – Right (17.5) = 6.50 = 27 (strength loss index) = 10 percent
impairment
24

24

Adding 3 percent for pain resulted in a 13 percent total right upper extremity impairment.
On February 3, 2005 Dr. Diamond opined that, because the two hands were being compared to
one another, the hand opposite the impaired hand should be used to obtain a “normal” grip
strength. He stated that the A.M.A., Guides was unclear as to the method to be used for selecting
a “normal” strength. Moreover, the A.M.A., Guides discouraged impairment ratings based on
grip strength deficit.
The Office referred appellant to Dr. Alan R. Miller, a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated April 5, 2005, Dr. Miller provided diagnoses
of right and left knee internal derangement, status post arthroscopy; cervical disc syndrome; and
right thumb metacarpal-phalangeal (MP) joint sprain and osteoarthritis. In the right hand, MP
joint motion was from 15 to 90 degrees; interphalangeal (IP) joint motion was from 0 to 90
degrees. There was some pain with grip strength. Pursuant to Tables 16-32 and 16-34 at page
509, he concluded that appellant had a total right upper extremity impairment of 23 percent.
Dr. Miller found minimal soft tissue swelling in both knees. Both knees were tender to palpation
over the patellofemoral joint and medial joint line. Active range of motion was from 0 to 95
degrees. Lachman and anterior drawer signs were negative. Pursuant to Tables 17-10, page 537
and 18-1, page 574 of the A.M.A., Guides, he concluded that appellant had a 13 percent
permanent impairment of each lower extremity.
The Office forwarded Dr. Miller’s report to the district medical adviser for review. On
May 23, 2005 the medical adviser stated that Dr. Miller’s right upper extremity impairment
rating was “way off,” as there was no objective impairment present. Referring to Tables 16-12
and 16-15 at page 456-57 of the A.M.A., Guides, he found a one percent right thumb
impairment, based on a 15 to 90 degree MP joint range of motion and a 0 percent right thumb
impairment, based on a 0 to 90 degree IP joint range of motion, resulting in a 0 percent hand
impairment. The medical adviser determined that appellant had a three percent impairment of
the right upper extremity due to pain on grip strength testing, for a total right upper extremity
impairment of three percent. He found a 10 percent impairment of each knee, due to active
range of motion from 0 to 90 degrees (Table 17-10, page 537) and a 2 percent impairment for

3

arthroscopy and partial medial meniscectomy (Table 17-35, page 546), for a total impairment
rating of 12 percent for each lower extremity.
The Office found a conflict between the medical opinions of Dr. Miller and Dr. Diamond
as to the extent of appellant’s permanent impairment. In order to resolve the conflict, the Office
referred appellant, together with a statement of accepted facts and the entire medical record, to
Dr. Thomas Helbig, a Board-certified orthopedic surgeon. The Office provided Dr. Helbig with
a statement of issues, which asked him to determine the extent of permanent impairment to the
right upper extremity and the date of maximum medical improvement.
In a report dated September 20, 2005, Dr. Helbig opined that appellant had a three
percent impairment of his right upper extremity due to pain, pursuant to Figure 18-1, page 574 of
the 5th edition of the A.M.A., Guides. He diagnosed chronic cervical sprain and osteoarthritis of
the cervical spine; chronic sprain of the MP joint of the right thumb with capsulitis; and status
post arthroscopic surgery of both knees. Dr. Helbig found no instability, atrophy or restriction in
range of motion of the right thumb or fingers of the right hand. There was no evidence of
entrapment neuropathy or peripheral nerve injury of the right hand. He recommended against a
rating for diminished grip strength. A neurologic examination of the upper extremities revealed
no motor or sensory deficit. Left knee examination revealed 0 to 135 degrees of flexion with
complaints of pain. There was positive tenderness over the medial and lateral joint line; no
ligamentous instability; and no angular deformity. Examination of the right knee revealed 0 to
85 degrees of flexion with complaints of pain; no effusion; positive tenderness over the medial
and lateral joint line; positive tenderness over the patellofemoral joint; no ligamentous
instability; and no angular deformity. A neurologic examination of the lower extremities showed
no sensory or motor deficit. Reflexes were present and symmetrical. Straight leg raising was
negative bilaterally in seated and supine positions.
Appellant was also referred to Dr. David Rubinfield for a second opinion examination.
In a September 27, 2005 report, Dr. Rubinfield opined that appellant had a 10 percent
impairment of his right lower extremity, pursuant to Table 17-10. Stating that appellant’s
subjective complaints were not supported by objective findings on examination, he found no
impairment of the neck, right hand or left knee. An October 17, 2005 memorandum to the file
indicated that Dr. Rubinfield’s report was not to be used for the purpose of determining a
schedule award impairment rating.
On October 17, 2005 the Office forwarded Dr. Helbig’s report, together with a statement
of accepted facts, to the district medical adviser for review. In a report dated October 20, 2005,
the medical adviser modified his assessment of the degree of appellant’s permanent impairment
based on Dr. Helbig’s referee report. He noted that appellant had no instability, atrophy, or
restriction in range of motion of the right thumb or fingers of the right hand; no evidence of
entrapment neuropathy or peripheral nerve injury; and full range of motion in his wrist. The
medical adviser concluded that appellant had a three percent impairment of his hand due to pain
(A.M.A., Guides, Figure 18-1, page 574), resulting in a three percent total impairment of his
right upper extremity. In the left knee, he found that appellant had no loss of range of motion, no
neurological damage and no atrophy. Pursuant to Table 17-33 at page 546 of the A.M.A.,
Guides, the medical adviser concluded that appellant had a two percent impairment of the right
lower extremity due to a torn medial meniscus. The medical adviser found that appellant had no

4

atrophy or instability of the left knee. Noting that left knee flexion was 0 to 85 degrees, he
concluded that appellant had a 10 percent impairment of the left lower extremity (Table 17-10,
page 537).
By decision dated October 27, 2005, the Office granted appellant a schedule award for a
3 percent impairment of the right upper extremity (hand); a 2 percent impairment of the left
lower extremity (knee); and a 10 percent impairment of the right lower extremity (knee). The
period of the awards ran from September 20, 2005 to July 24, 2006. The Office found that the
date of maximum medical improvement was September 20, 2005.
Appellant requested an oral hearing, which was held on February 8, 2006. At the
hearing, appellant’s representative argued that Dr. Helbig’s report did not provide adequate
findings on which to base his conclusions regarding appellant’s impairment.
In a decision dated April 3, 2006, the Office hearing representative affirmed the
October 27, 2005 schedule award decision. The hearing representative found that Dr. Helbig’s
report represented the weight of the medical evidence and that the district medical adviser had
properly calculated the degree of impairment based upon Dr. Helbig’s findings.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,1 and its
implementing federal regulation,2 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.3
The fifth edition of the A.M.A., Guides allows for an impairment percentage to be
increased by up to three percent for pain by using Chapter 18, which provides a qualitative
method for evaluating impairment due to chronic pain. If an individual appears to have a painrelated impairment that has increased the burden on his or her condition slightly, the examiner
may increase the percentage up to three percent.
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.4
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id. at § 10.404(a).

4

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

ANALYSIS
The Board finds that a conflict in medical opinion was created between the report of
Dr. Helbig and the reports of Dr. Miller and Dr. Diamond, as to the degree of impairment of
appellant’s left and right lower extremities. Accordingly, the case must be remanded for
resolution of the conflict.
The Office accepted appellant’s claim for cervical strain, right knee and right hand
sprain. The claim was later expanded to include left chondromalicia of patella and right internal
knee derangement and appellant underwent authorized surgeries on both knees. The Office
properly determined that a conflict in medical opinion existed between appellant’s attending
physician, Dr. Diamond and the second opinion physician, Dr. Miller, on the degree of
permanent impairment of the right upper extremity. The Office referred appellant to Dr. Helbig
for resolution of the conflict. Based on Dr. Helbig’s report, the Office granted a schedule award
for a 3 percent impairment of the right upper extremity (hand); a 2 percent impairment of the left
lower extremity (knee); and a 10 percent impairment of the right lower extremity (knee).
Appellant claimed that he was entitled to additional schedule award compensation. Giving
special weight to Dr. Helbig’s opinion, the Office found that he was not entitled to such
additional compensation. The Board notes, however, that a conflict in medical opinion was not
created between Dr. Diamond and Dr. Miller, with regard to the extent and degree of permanent
impairment to the right and left lower extremities. On July 22, 2004 Dr. Diamond diagnosed
post-traumatic left knee medial meniscal tear, with post-traumatic osteoarthritis; status post
arthroscopic left knee partial medial meniscectomy, abrasion arthroplasty and chondroplasty;
post-traumatic right knee medial and lateral menisci tears; status post arthroscopic right knee
partial medial and lateral meniscectomies and abrasion arthroplasty; cervical disc syndrome;
bilateral knee tenosynovitis. For each of appellant’s knees, Dr. Diamond found a 10 percent
range of motion deficit for flexion (Table 17-10, page 537)5 and a 3 percent pain-related deficit
(Table 18-1, page 574),6 for a total impairment rating of 13 percent for each knee. On April 5,
2005 Dr. Miller provided diagnoses of right and left knee internal derangement, status post
arthroscopy and cervical disc syndrome. He found minimal soft tissue swelling in both knees.
Both knees were tender to palpation over the patellofemoral joint and medial joint line. Active
range of motion was from 0 to 95 degrees. Lachman and anterior drawer signs were negative.
Pursuant to Tables 17-10, page 537 and 18-1, page 574, he also concluded that appellant had a
13 percent permanent impairment of each lower extremity.7 In that both physicians opined that
appellant had a 13 percent impairment of each lower extremity, there was no conflict created.
Therefore, Dr. Helbig’s opinion on the degree of impairment as to those extremities was not
entitled to special weight. The Board notes that the Office instructed Dr. Helbig to determine
only the extent of permanent impairment to the right upper extremity.

5

A.M.A., Guides 537, Table 17-10.

6

Id. at 574, Table 18-1.

7

See supra note 5. Id.

6

Although not entitled to the special weight afforded to the opinion of an impartial
medical specialist resolving a conflict of medical opinion, Dr. Helbig’s opinion can still be
considered for its own intrinsic value.8 Dr. Helbig reviewed the entire case record and statement
of accepted facts. He diagnosed chronic cervical sprain and osteoarthritis of the cervical spine
and status post arthroscopic surgery of both knees. Left knee examination revealed 0 to 135
degrees of flexion with complaints of pain. There was positive tenderness over the medial and
lateral joint line; no ligamentous instability; and no angular deformity. Examination of the right
knee revealed 0 to 85 degrees of flexion with complaints of pain; no effusion; positive tenderness
over the medial and lateral joint line; positive tenderness over the patellofemoral joint; no
ligamentous instability; and no angular deformity. A neurologic examination of the lower
extremities showed no sensory or motor deficit. Reflexes were present and symmetrical.
Straight leg raising was negative bilaterally in seated and supine positions. Based upon
Dr. Helbig’s findings, the district medical adviser concluded that appellant had no loss of range
of motion, no neurological damage and no atrophy in the right knee. Pursuant to Table 17-33 at
page 546 of the A.M.A., Guides, he concluded that appellant had a two percent impairment of
the right lower extremity due to a torn medial meniscus.9 He also found that appellant had no
atrophy or instability of the left knee. Noting that, left knee flexion was 0 to 85 degrees, he
concluded that appellant had a 10 percent impairment of the left lower extremity. Table 17-10,
page 537.10 The Board finds that there exists a conflict in medical opinion as to the degree of
impairment of appellant’s lower extremities.
Regarding the right upper extremity, the Office properly referred the case to an impartial
medical specialist to resolve the conflict in medical opinion between Drs. Miller and Diamond.
Dr. Helbig diagnosed chronic sprain of the metacarpal phalangeal joint of the right thumb with
capsulitis. He found no instability, atrophy or restriction in range of motion of the right thumb or
fingers of the right hand. There was no evidence of entrapment neuropathy or peripheral nerve
injury of the right hand. Dr. Helbig recommended against a rating for diminished grip strength.
A neurologic exam of the upper extremities revealed no motor or sensory deficit. Referring to
Figure 18-1, page 574 of the A.M.A., Guides, he opined that appellant had a three percent
impairment due to pain.11 An Office medical adviser reviewed Dr. Helbig’s September 20, 2005
report and applied the A.M.A., Guides to his findings. Properly, applying Figure 18-1 on page
574, he concluded that appellant had a three percent impairment of his right upper extremity.
Dr. Helbig’s report was well rationalized and provided a complete factual background. The
Board finds that Dr. Helbig’s report represents the weight of the medical evidence and is
sufficient to resolve the conflict in medical opinion. The Board further finds that the weight of
the medical evidence establishes that appellant has no more than a three percent impairment of
his right upper extremity for which he received a schedule award.

8

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

9

A.M.A., Guides 546, Table 17-33.

10

See supra note 5.

11

A.M.A., Guides 574, Figure 18-1.

7

CONCLUSION
The Board finds that appellant has no more than a three percent permanent impairment of
his right upper extremity. The Board further finds that a conflict in medical opinion was created
between the report of Dr. Helbig and the reports of Drs. Miller and Diamond, as to the degree of
impairment of appellant’s left and right lower extremities. Accordingly, the case must be
remanded for resolution of the conflict. On remand, the Office shall refer appellant, along with
the entire case record and statement of accepted facts, to an impartial medical specialist for an
examination and an opinion as to the degree of permanent impairment to appellant’s left and
right lower extremities and the date of maximum medical improvement.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 3, 2006 and October 27, 2005 are affirmed in part and
remanded in part, in accordance with the provisions of this order.
Issued: April 6, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:

Docket No. 12-1358
Issued: April 11, 2013

Case Submitted on the Record

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

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On June 12, 2012 appellant, through his attorney, filed a timely appeal from a March 20,
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 two percent impairment of his left upper
extremity for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 18, 2006 appellant, a 52-year-old mail processor, injured his left thumb
when he was struck by a mail cart in a congested area. He filed a claim for benefits, which
OWCP accepted for left thumb contusion and left radial nerve injury.2
In a report dated November 27, 2006, Dr. Lewis J. Levine, Board-certified in orthopedic
surgery, stated that appellant had a radial sensory neuritis in the left wrist secondary to a direct
blow.
In a report dated January 9, 2008 Dr. David Weiss, an osteopath, found that appellant had
a 27 percent impairment of the left upper extremity pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) fifth edition.
He calculated this rating by deriving impairments from a left lateral pinch deficit and a partial
sensory impairment of the left thumb.
In a Form CA-7 dated October 28, 2008, appellant requested a schedule award based on a
partial loss of use of his left upper extremity.
In order to determine the degree of appellant’s left upper extremity impairment stemming
from his accepted left thumb contusion and left radial nerve conditions, OWCP referred him to
Dr. Andrew Hutter, Board-certified in orthopedic surgery, for a second opinion examination. In
reports dated January 7 and April 12, 2010, Dr. Hutter advised on examination that there was a
decrease in light touch sensation on the radial aspect of the left index finger and noted
Dr. Levine’s finding of radial sensory neuritis in the left wrist. He stated that appellant had a
minimal amount of impairment due to sensory neuritis, a one percent impairment of the left hand
pursuant to Table 15-21 at page 429 of the sixth edition of the A.M.A., Guides.
In an April 19, 2010 report, an OWCP medical adviser reviewed Dr. Hutter’s report and
concurred with his rating of a one percent left upper extremity impairment based on a mild
sensory neuritis in the median nerve distribution pursuant to Table 15-21 of the sixth edition of
the A.M.A., Guides.
By decision dated May 5, 2010, OWCP granted appellant a schedule award for a one
percent permanent impairment of the left upper extremity for the period December 21, 2006 to
January 11, 2007, for a total of 3.1.2 weeks of compensation.
By letter dated May 14, 2010, appellant’s attorney requested an oral hearing.
In a report received by OWCP on June 17, 2010, Dr. Weiss provided an amended copy of
his January 9, 2008 report. He opined that appellant had a four percent left upper extremity

2

The Form CA-1 indicates that appellant injured his right thumb. However, in a February 19, 2009 letter to his
attorney, appellant clarified that he had injured his left thumb, not his right thumb, as a result of the September 18,
2006 work incident.

2

impairment based on left thumb partial radial digital nerve injury, pursuant to Table 15-16, page
427,3 of the sixth edition of the A.M.A., Guides.
By decision dated December 27, 2010, an OWCP hearing representative affirmed the
May 5, 2010 decision.
In a July 19, 2011 report, an OWCP’s medical adviser found that there was a conflict in
the medical evidence regarding the degree of left upper impairment stemming from appellant’s
accepted left thumb contusion and left radial nerve conditions. He recommended that OWCP
refer appellant to an impartial medical evaluation to resolve the conflict in opinion.
Appellant was initially slated to undergo a referee examination with Dr. Cornelius Stover,
Board-certified in orthopedic surgery. However, Dr. Stover was bypassed because he “does not
examine DOL patients.” On August 9, 2011 OWCP referred appellant to Dr. Edward Krisiloff,
Board-certified in orthopedic surgery, for a referee examination.
By letter dated August 25, 2011, appellant’s attorney requested modification of the
December 27, 2010 OWCP decision.
In a report dated August 30, 2011, Dr. Krisiloff found that appellant had a two percent
left lower extremity impairment under the A.M.A., Guides. He noted the history of injury,
which indicated that following appellant’s September 18, 2006 work injury he was seen by
Dr. Levine, who diagnosed a contusion to the left arm with a radial sensory nerve injury and was
prescribed a wrist brace for appellant’s left wrist. Dr. Krisiloff noted that appellant provided a
very clear history concerning the accident and his subsequent follow-up care; he related that
appellant pointed to the radial aspect of the wrist joint as the source of his troubles. He stated
that on examination appellant complained of pain and paresthesias in the left upper extremity.
Appellant had a positive Tinel’s sign over the radial sensory nerve with subjectively decreased
sensation over the radial aspect of the hand, but not complete sensory loss. Dr. Krisiloff noted
normal wrist extension and strength and stated that the remainder of the neurovascular
examination was intact.
Dr. Krisiloff stated that the proper method for determining impairment for a peripheral
nerve with a sensory component only would be to use Table 15-18 at page 429 of the A.M.A.,
Guides. He found that appellant had a mild impairment under Table 15-18 given that he had
mild symptoms and not a complete sensory loss; this yielded a two percent impairment of the left
upper extremity. Dr. Krisiloff stated his disagreement with the ratings of both Dr. Hutter and
Dr. Weiss, asserting that his rating was more specific for the level of injury to the radial nerve.
He stated that Dr. Hutter’s choice of Table 15-21 was not applicable to appellant’s injury
because this table relates to the median nerve and rated injuries to the nerve at a level involving
both motor and sensory component, which was not relevant to appellant’s specific situation.
Dr. Krisiloff advised that, as appellant’s injury was at the wrist, it only involved a sensory nerve,
which should be rated exclusively by Table 15-18, which bears the heading “Impairment for
Sensory Only Peripheral Nerve Injury.” He opined that Dr. Weiss’ rating was not applicable

3

A.M.A., Guides at 427.

3

because he used a table that was intended to rate conditions with a nerve laceration or a total
transverse sensory loss, which are not relevant to appellant’s specific case.
In a September 12, 2011 report, an OWCP medical adviser concurred with Dr. Krisiloff’s
two percent left upper extremity impairment rating.
By decision dated September 29, 2011, OWCP awarded appellant an additional schedule
award for a one percent left upper extremity impairment for 3.12 weeks, covering the period
January 12 to February 2, 2007, for a total of two percent left upper extremity impairment.
By letter dated October 4, 2011, appellant, through his attorney, requested an oral
hearing, which was held on November 16, 2011.
In a statement received by OWCP on January 26, 2012, appellant alleged that
Dr. Krisiloff’s examination was perfunctory, lasting only five minutes and that he did not
calibrate and measure the range of motion on his left thumb.
By decision dated March 20, 2012, an OWCP hearing representative affirmed the
September 29, 2011 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
ANALYSIS
OWCP accepted the conditions of left thumb contusion and left radial nerve injury, which
resulted from appellant’s September 18, 2006 employment injury. By decision dated May 5,
2010, it granted him a schedule award for a one percent impairment for the left upper extremity
stemming from his accepted conditions. Appellant sought a greater award and OWCP’s medical
adviser found that there was a conflict in the medical evidence regarding the appropriate degree
of impairment for appellant’s accepted conditions. He was referred to Dr. Krisiloff, an impartial
examiner, who rated a two percent left lower impairment under the sixth edition of the A.M.A.,
Guides in his August 30, 2011 report. Dr. Krisiloff stated that appellant’s “very clear history”
regarding the September 18, 2006 accident and his subsequent follow-up care indicated that his
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

6

Id.

4

primary difficulties pertained to the radial aspect of the wrist joint. Appellant was seen in
November 2006 by Dr. Levine, who diagnosed a contusion to the left arm with a radial sensory
nerve injury and prescribed a wrist brace for appellant’s left wrist. Given these effects from the
accepted injury, Dr. Krisiloff opined that the proper method for determining impairment was set
forth at Table 15-18, “Impairment for Sensory Only Peripheral Nerve Injury.” He determined
that appellant had a mild impairment under Table 15-18 based on his mild symptoms and a less
than total sensory loss, which produced a two percent left upper extremity impairment.
The Board finds that OWCP properly relied on Dr. Krisiloff’s opinion in its
September 29, 2011 schedule award decision. Dr. Krisiloff provided a thorough, wellrationalized report based on his examination findings and on appellant’s history which
documented that his primary difficulties stemming from his September 2006 employment injury
pertained to the radial aspect of the wrist joint; he then calculated an impairment pursuant to the
applicable table of the A.M.A., Guides. His report therefore warrants the special weight of an
impartial examiner.7 Dr. Krisiloff also explained why his method of calculating appellant’s
impairment rating was more appropriate than those chosen by Drs. Hutter and Weiss; i.e., that
his rating was more specific for the level of injury to the radial nerve. He also properly
determined that as appellant had mild sensory loss, he had a maximum permanent impairment of
the upper extremity of two percent. OWCP properly found in its September 29, 2011 decision
that appellant was not entitled to a schedule award for more than a two percent left upper
extremity impairment.
On appeal, appellant’s counsel contends that Dr. Krisiloff relied on the wrong tables and
charts of the A.M.A., Guides in calculating his impairment rating. Counsel asserts that the
physician did not adequately explain why he used Table 15-18 in rendering his rating, noting that
appellant injured his left hand and thumb, not his left wrist. The Board is not persuaded by
counsel’s contentions. Dr. Krisiloff rendered his impairment rating on sensory loss in the left
wrist based on the history appellant provided -- that his initial complaints subsequent to the
September 2006 work injury pertained to symptoms in his left wrist -- and on the medical record
which indicates that in November 2006 Dr. Levine diagnosed a radial sensory nerve injury,
secondary to contusion to the left arm and prescribed a wrist brace for appellant’s left wrist. For
the reasons discussed above, OWCP properly found that Dr. Krisiloff’s impartial medical
opinion represented the weight of the medical evidence.
Appellant’s attorney also argues that Dr. Krisiloff was not selected on a strict rotational
basis pursuant to the medical management application, utilized by OWCP to select impartial
medical examiners. Congress did not address the manner by which an impartial medical referee
is to be selected. Rather, this was left to the discretion of the Director in administering the
compensation program created under FECA.8 Under the Federal (FECA) Procedure Manual, the
Director has exercised discretion to implement practices pertaining to the selection of the
7

It is well established that the opinion of an impartial medical specialist is to be given special weight. See
Anna M. Delaney, 53 ECAB 384 (2002).
8

See R.C., Docket No. 12-468 (issued October 5, 2012). See also e.g., Harry D. Butler, 43 ECAB 859, 866
(1992) (the Director delegated discretion in determining the manner by which permanent impairment is evaluated
for schedule award purposes).

5

impartial medical referee.9 In turn, the Director has delegated authority to each district OWCP
for selection of the referee physician by use of the medical management application within the
Integrated Federal Employees’ Compensation System (iFECS).10 This application contains the
names of physicians who are Board-certified in over 30 medical specialties for use as referees
within appropriate geographical areas.11 The medical management application in iFECS replaces
the prior Physician Directory System (PDS) method of appointment.12 It provides for a rotation
among physicians from the American Board of Medical Specialties, including the medical
boards of the A.M.A., Guides and those physicians Board-certified with the American
Osteopathic Association.13 Selection of the referee physician is made through use of the
application by a medical scheduler. The claims examine may not dictate the physician to serve
as the referee examiner.14 The medical scheduler impute the claim number into the application,
from which the claimant’s home zip code is loaded.15 The scheduler chooses the type of
examination to be performed (second opinion or impartial referee) and the applicable medical
specialty. The next physician in the roster appears on the screen and remains until an
appointment is scheduled or the physician is bypassed.16 If the physician agrees to the
appointment, the date and time are entered into the application. Upon entry of the appointment
information, the application prompts the medical scheduler to prepare a Form ME023,
appointment notification report for imaging into the case file.17 Once an appointment with a
medical referee is scheduled the claimant and any authorized representative is to be notified.18
Counsel contends that Dr. Stover, the initial choice for impartial medical examiner, was
bypassed without adequate cause. He therefore argues that Dr. Krisiloff’s report cannot carry the
weight of the medical evidence. The record substantiates that Dr. Stover was properly bypassed
because he “does not examine DOL patients.” As an appropriate bypass reason was provided,
OWCP properly selected the next physician, Dr. Krisiloff. Appellant has failed to establish that

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

10

Id. at Chapter 3.500.4(b)(6).

11

Id. at Chapter 3.500.4(b)(6)(a).

12

Id. at Chapter 3.500.5.

13

Id at Chapter 3.500.5(a).

14

Id. at Chapter 3.500.5(b).

15

Id. at Chapter 3.500 .5(c).

16

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500(e-f). Upon entry of a bypass
code, the medical management application will present the next physician based on specialty and zip code.
17

Id. at Chapter 3.500.5(g).

18

Id. at Chapter 3.500.4(d).

6

the medical management application was improperly utilized to select Dr. Krisiloff as the
impartial medical examiner.19
As appellant did not submit any medical evidence to support an additional schedule
award greater than the two percent already awarded for the left upper extremity, the Board will
affirm the March 20, 2012 decision of OWCP’s hearing representative.
Appellant may request an increased schedule award, at any time, based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the left upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

19

Supra note 9.

7