United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
DEPARTMENT OF ENERGY, WESTERN
AREA POWER ADMINISTRATION,
Cheyenne, WY, Employer
__________________________________________

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

Docket No. 15-1592
Issued: February 12, 2016

Case Submitted on the Record

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

JURISDICTION
On July 21, 2015 appellant, through counsel, filed a timely appeal from a May 15, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than two
percent impairment of the right leg, for which he received a schedule award.
On appeal, counsel contends that appellant has greater impairment. He requests that the
Board remand the case and direct OWCP to approve an impairment rating as outlined by an
OWCP referral physician.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 21, 2013 appellant, then a 43-year-old journeyman lineman,
sustained right ankle sprain, right knee contusion, and right lateral meniscus derangement when
he fell 25 to 30 feet from a power pole.2 It authorized right knee arthroscopy with partial lateral
meniscectomy and anteromedial plica resection, and right knee chondroplasty, undersurface
patella, medial femoral condyle, and lateral tibial plateau performed on February 5, 2014 by
Dr. Ryan L. Hartman, a Board-certified orthopedic surgeon.
On August 11, 2014 appellant filed a claim for a schedule award (Form CA-7) and
submitted an impairment evaluation dated May 30, 2014 in which Dr. Kevin J. O’Toole, an
attending physician Board-certified in occupational medicine, described his accepted right knee
injuries. Dr. O’Toole examined the right and left knees. The right knee was without effusion.
Active range of motion was measured in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Dr. O’Toole found appellant’s effort to be self-limited. Passive motion during McMurray’s
testing showed movement well beyond his active endpoints, completely without resistance.
Dr. O’Toole, therefore, relied on right knee measurements last reported by Dr. Hartman who
found full extension and 128 degrees of flexion. The left knee measured +15 degrees of
extension and 128 degrees of flexion. Suprapatellar circumference was measured at 20.5 inches
in both legs. There was no joint line tenderness. Patellar grind was negative. The calf was
supple and nontender. Dr. O’Toole assessed status post right knee arthroscopy which included
chondroplasty for grade 3 changes of the lateral tibial plateau and grade 3 changes of the lateral
patellar facet, medial femoral condyle, and undersurface of the patella. He also assessed status
post “15 percent lateral meniscectomy” and status post resection of anteromedial plica.
Dr. O’Toole noted that appellant had completed postoperative rehabilitation, was released
to full duty, and had reached maximum medical improvement as determined by Dr. Hartman and
Dr. Tracey L. Stefanon, a physician Board-certified in occupational medicine.3
Dr. O’Toole rated appellant’s impairment under the sixth edition of the A.M.A., Guides.4
He noted that, under Table 16-3, Knee Regional Grid, the most appropriate category would be
for the diagnosis of primary knee joint arthritis as it was the most serious condition. Dr. O’Toole
advised that appellant had a class 1 impairment due to a three-millimeter cartilage interval, fullthickness articular cartilage defect with a default value of seven percent. He found a grade
modifier 1 for Functional History (GMFH) based on appellant’s responses to a lower limb
questionnaire in which he reported moderate pain going up or down stairs. Dr. O’Toole
expected these symptoms to improve with time. He found a grade modifier 0 for Physical
Examination (GMPE) as appellant’s physical examination findings were consistently
unremarkable compared to the examinations performed by Drs. Hartman and Stefanon.
2

Appellant stopped work on June 21, 2013 and returned to full-time, light-duty work on July 29, 2013. As of
September 4, 2013 he performed full-time work with no restrictions.
3

On May 5, 2014 Dr. Hartman released appellant to return to full-duty work with no restrictions or need for
further medical treatment.
4

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

2

Dr. O’Toole found a grade modifier 2 for Clinical Studies (GMCS) as magnetic resonance
imaging (MRI) scan findings were consistent with his diagnosis with moderate changes evident.
He then applied the net adjustment formula and concluded that appellant had seven percent right
lower extremity permanent impairment which represented three percent whole person
impairment.
In an August 26, 2014 report, Dr. Morley Slutsky, a physician Board-certified in
occupational medicine and an OWCP medical adviser, reviewed the medical record, including
Dr. O’Toole’s May 30, 2014 report. He noted that Dr. O’Toole rated appellant as if he had a full
thickness articular cartilage defect or three millimeters of joint space narrowing in the right knee
joint. Dr. Slutsky advised that the right knee surgical report identified grade 3 changes
equivalent to partial thickness articular cartilage defects and not full thickness defects. He
related that Dr. O’Toole did not document the knee x-rays performed on May 30, 2014 and joint
space measurements taken in all three knee compartments. Dr. Slutsky suggested that he be
asked whether he performed right knee x-rays on May 30, 2014 and if so, to provide his
measurements for all three right knee compartments. If Dr. O’Toole had not performed such xrays, then he should be asked to explain how he determined that there were three millimeters of
joint space narrowing in the primary knee joint.
Dr. Slutsky used the diagnosis-based method in the sixth edition of the A.M.A., Guides to
rate impairment of appellant’s right knee with a diagnosis of partial lateral meniscectomy, the
most impairing diagnosis, which resulted in a class 1 impairment. He found a grade modifier 1
for functional history under Table 16-6, page 516 and a grade modifier 0 for physical
examination under Table 16-7, page 517. Dr. Slutsky found that no grade modifier was
applicable for clinical studies. He applied the net adjustment formula and found that appellant
had two percent right leg impairment which represented three percent whole person impairment.
Dr. Slutsky concluded that appellant reached maximum medical improvement on May 30, 2014.
By letter dated March 12, 2015, QTC Medical Services, OWCP’s medical appointment
scheduler, referred appellant, together with the case record, a list of questions, and a statement of
accepted facts, to Dr. John D. Douthit, a Board-certified orthopedic surgeon, for a second
opinion evaluation.5
In an April 6, 2015 report, Dr. Douthit noted examining appellant on April 2, 2014. He
reviewed appellant’s history and the medical record. On examination, Dr. Douthit found that
appellant was overweight and had a slight limp favoring his left leg. Appellant had mild
stiffness of the back, but full range of motion of the hips and ankles. Right knee range of motion
was 10/100 degrees and left knee range of motion was 0/130 degrees. Appellant could squat
only to 90 degrees. His knee was stable. There was no joint effusion. There was 1+ crepitation
of the right patellofemoral joint and 1+ crepitation of the left patellofemoral joint. No instability
was noted. Drawer signs and a Lachman sign test were negative. Dr. Douthit summarized that

5

The Board notes that appellant was originally referred to Dr. Alfred C. Lotman, a Board-certified orthopedic
surgeon, for a second opinion evaluation, but his appointment was cancelled because Dr. Lotman did not perform
impairment rating evaluations. Dr. Lotman was then referred him to Dr. Dirk W. Dolbeare, a Board-certified
orthopedic surgeon, however, QTC Medical Services cancelled his appointment.

3

appellant had significant chondromalacia of the medial, femoral, and patellofemoral joints as
noted on the arthroscopic report and confirmed by the prior MRI scan.
Dr. Douthit reviewed postoperative records and advised that appellant had never
recovered to full function. He found that appellant had reached maximum medical improvement
some time ago. There was documentation that appellant had chondromalacia tricompartmental
of the right knee. He also had debridement with minimal lateral meniscectomy, persistent knee
pain, and limited restricted motion. Appellant lacked 10 degrees of extension and only had 100
degrees of flexion. He had a slight limp and was unable to return to work as a lineman because
he could not climb with his right knee difficulties. Dr. Douthit reviewed comparative right and
left knee x-rays and found no difference in the joint space. He measured both joint spaces at five
millimeters, but found no narrowing. There was also no narrowing of the patellofemoral joint
space. Dr. Douthit advised that it was evident from the objective arthroscopic findings that
appellant had a degree of chondromalacia of the joint surfaces not yet evident by narrowing of
the joint based on his x-rays and early osteoarthritis. He noted that the sixth edition of the
A.M.A., Guides, specified that there must be joint space narrowing on weight-bearing x-rays to
use the regional grid and diagnostic criteria for arthritis. The A.M.A., Guides, suggested
alternatives, but Dr. Douthit was unable to find a satisfactory and consistent alternative
diagnosis-based rating. The only alternative method for rating appellant’s right knee impairment
was the stand-alone loss of motion method noted in sections 16.23 and 16.25 of the A.M.A.,
Guides. Dr. Douthit determined that 100 degrees of flexion and -10 degrees of extension yielded
10 percent impairment of the right knee for mild loss of motion. He further determined that his
functional, clinical, and physical findings correlated with a mild restriction of joint motion and
there was no adjustment up or down. Dr. Douthit concluded that the diagnostic method of using
regional grids was inequitable as appellant had no measureable joint space narrowing.
On April 24, 2015 Dr. Slutsky again reviewed the medical record, including
Dr. Douthit’s April 6, 2015 findings. He disagreed with Dr. Douthit’s 10 percent permanent
impairment rating of the right lower extremity as it was based on the range of motion method
using invalid right knee range of motion measurements and a different diagnosis. Dr. Slutsky
noted range of motion measurements taken during appellant’s previous examinations on
December 30, 2013 to February 9, 2015, including Dr. O’Toole’s May 30, 2014 measurements.
He found that his best range of motion was within normal limits (no extension lag and flexion of
at least 110 degrees or greater) based on the medical documents from more than one year ago.
This was in contrast to Dr. Douthit’s findings of right knee motion of -10 to 100 degrees.
Dr. Slutsky advised that his findings may represent a temporary exacerbation of
appellant’s condition, but did not reflect consistent range of motion findings and appellant’s best
effort. Thus, he opined that Dr. Douthit’s use of range of motion measurements to rate
impairment of the knee was based on inconsistent and unreliable findings. Additionally,
Dr. Slutsky documented only one set of measurements, while the A.M.A., Guides, required that
three tests of active range of motion measurements be obtained, and the greatest number be used
for final rating calculations. Further, he reported that the A.M.A., Guides, indicate that range of
motion be used primarily as a grade modifier and not as the primary impairment method.
Dr. Slutsky reiterated his prior impairment calculations based on a diagnosis of partial lateral
meniscectomy and concluded that appellant had two percent right leg impairment. He advised
that appellant reached maximum medical improvement on April 2, 2015 the date of Dr. Douthit’s

4

evaluation. Dr. Slutsky related that Dr. Douthit provided a detailed examination which allowed
him to find that appellant’s right knee condition had stabilized at that time and no further
treatment was planned. He concluded that appellant’s condition was not expected to change
significantly from the date of maximum medical improvement.
In a May 15, 2015 decision, OWCP granted appellant a schedule award for two percent
impairment of the right lower extremity based on Dr. Slutsky’s opinion.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function, or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.8 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.9 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.10
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the ankle, the relevant portion of the leg (foot) for the
present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page
501.11 After the Class of Diagnosis (CDX) is determined from the Foot and Ankle Regional
Grid (including identification of a default grade value), the net adjustment formula is applied
using the grade modifier for functional history, grade modifier for physical examination and
grade modifier for clinical studies. The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).12 Under Chapter 2.3, evaluators are directed to provide reasons
6

5 U.S.C. § 8107.

7

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

8

Id.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3, Exhibit 1
(January 2010); id., Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
10

See Dale B. Larson, 41 ECAB 481, 490 (1990); id., Chapter 3.700.3.a.3 (January 2010). This portion of
OWCP procedures provide that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
11

See A.M.A., Guides 501-7 (6th ed. 2008).

12

Id. at 515-22.

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for their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.13
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is “the primary method of calculation for the lower
limb” and that most impairments are based on the diagnosis-based impairment where impairment
class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination and clinical studies. Chapter 16 further provides:
“Alternative approaches are also provided for calculating impairment for
peripheral nerve deficits, complex regional pain syndrome, amputation and range
of motion. Range of motion is primarily used as a physical examination
adjustment factor and is only used to determine actual impairment values when it
is not possible to otherwise define impairment.”14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.15
ANALYSIS
The Board finds that appellant has no more than two percent impairment of the right leg.
OWCP accepted his claim for right ankle sprain, right knee contusion, and right lateral meniscus
derangement. It authorized right knee arthroscopy performed on February 5, 2014. The Board
finds that the weight of the medical evidence rests with the opinion of Dr. Slutsky, OWCP’s
medical adviser, who provided the only impairment rating that properly applied the sixth edition
of the A.M.A., Guides.
In a May 30, 2014 report, Dr. O’Toole, appellant’s treating physician, diagnosed primary
knee arthritis (a three-millimeter cartilage full-thickness articular cartilage defect) and found that
appellant had reached maximum medical improvement on that day. He classified his impairment
as a class 1 default value of seven percent under Table 16-3, on page 510, of the A.M.A., Guides.
Dr. O’Toole found a grade modifier 1 for functional history as appellant had moderate pain
going up or down stairs, but no other activity problems. He found a grade modifier 0 for
physical examination as his findings were consistently unremarkable compared to those of
Drs. Harman and Stefanon. Dr. O’Toole found a grade modifier 2 for clinical studies as MRI
scan findings were consistent with his diagnosis with moderate changes evidence. Applying the
net adjustment formula resulted in a net adjustment of zero or a grade C impairment which
equated to a seven percent of the right lower extremity.

13

Id. at 23-8.

14

Id. at 497, 544-53.

15

See supra note 10, Chapter 2.808.6(f) (February 2013).

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On August 26, 2014 Dr. Slutsky reviewed the medical record, including Dr. O’Toole’s
report. He found that Dr. O’Toole’s impairment rating was not acceptable as it was based on a
diagnosis of full-thickness articular cartilage defect and/or three millimeters of joint space
narrowing in the primary joint of the right knee rather than a diagnosis of partial thickness
articular cartilage defect as indicated by the February 5, 2014 surgical report. Dr. Slutsky further
found that Dr. O’Toole had not provided specific joint space measurements in all three knee
compartments. He used the diagnosis-based method in the sixth edition of the A.M.A., Guides,
to rate appellant’s impairment. Dr. Slutsky determined that a diagnosis of partial lateral
meniscectomy resulted in a class 1 impairment. He found a grade modifier 1 for functional
history under Table 16-6, page 516, and a grade modifier 0 for physical examination under Table
16-7, page 517. Dr. Slutsky found that no grade modifier was applicable for clinical studies. He
applied the net adjustment formula and concluded that appellant had two percent right lower
extremity impairment based on findings in Dr. O’Toole’s evaluation.
To determine the extent and degree of any employment-related impairment of appellant’s
right lower extremity, OWCP referred appellant to Dr. Douthit for a second opinion evaluation.
Examination of both knees revealed a range of motion of 10/100 degrees on the right and 0/130
degrees on the left. Appellant could squat only to 90 degrees. His knee was stable. There was
no joint effusion. There was 1+ crepitation each of the right and left patellofemoral joints. No
instability was noted. Drawer signs and a Lachman sign test were negative. Dr. Douthit
determined that 100 degrees of flexion and -10 degrees of extension yielded 10 percent
permanent impairment of the right lower extremity under the sixth edition of the A.M.A.,
Guides. He advised that the diagnosed-based method was not equitable to rate appellant’s
impairment as there was no measureable joint space narrowing.
On April 24, 2015 Dr. Slutsky reviewed the medical record, including Dr. Douthit’s
April 6, 2015 report and disagreed with his 10 percent right leg impairment rating. He explained
that Dr. Douthit used invalid range of motion measurements, noting that previous measurements
including those from Dr. O’Toole’s May 30, 2014 evaluation were within normal limits.
Dr. Slutsky related that his right knee range of motion findings of -10 to 100 degrees may
represent a temporary exacerbation of appellant’s condition, but did not reflect consistent range
of motion findings and his best effort. He reasoned that, under the A.M.A., Guides, the
diagnosis-based method was the preferred method for rating impairment while range of motion
was used primarily as a grade modifier. Dr. Slutsky reiterated his prior calculations as set forth
in his prior report of August 26, 2014, and concluded that appellant had two percent impairment
of his right lower extremity under the A.M.A., Guides.
The Board finds that Dr. Slutsky properly reviewed the medical record and evaluated
appellant’s right lower extremity impairment in accordance with the A.M.A., Guides. There is
no medical evidence in conformance with the A.M.A., Guides showing a greater impairment.
Appellant has not met his burden of proof to establish greater than two percent right leg
impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than
two percent impairment of the right leg, for which he received a schedule award.

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSILE RANGE, NM, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Miriann D. Ozur, Esq., for the Director

Docket No. 14-344
Issued: July 23, 2014

Case Submitted on the Record

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

JURISDICTION
On December 2, 2013 appellant, through his attorney, filed a timely appeal from a
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than a two percent impairment to each lower
extremity for which he received schedule awards.
On appeal, appellant’s counsel argues that the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides) and in
particular, the use of The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) is inappropriate as junk science.
He argued that appropriate scientific methodology, including peer review, was not utilized in
1

5 U.S.C. §§ 8101-8193.

developing these standards. The Director of OWCP responded and noted that The Guides
Newsletter has been consistently upheld by the Board as an appropriate method for calculating
permanent impairment due to spinal injuries under FECA. Further, appellant’s attorney did not
establish that OWCP abused its discretion in applying The Guides Newsletter in determining
permanent impairment in this case.
FACTUAL HISTORY
OWCP accepted that appellant, a 52-year-old toxic materials handler, sustained a sprain
of the back, lumbar region and lumbosacral radiculopathy, aggravation of degenerative
lumbar/lumbosacral spine and lumbar spondylolisthesis while moving a basket in the
performance of duty on April 20, 2007. In an October 17, 2011 decision, the Board found that
he had no employment-related permanent impairment to a scheduled member or function of the
body. The facts as set forth in the Board’s prior decision are hereby incorporated by reference.2
On August 29, 2012 appellant filed claim for a schedule award. In a September 6, 2012
report, Dr. Charles Zaltz, a Board-certified orthopedic surgeon, stated that appellant had a spinal
impairment, pursuant to the A.M.A., Guides, of 19 percent based on Table 17-4 on page 571 of
the A.M.A., Guides. He noted that appellant’s impairment fell into class 3 related to stenosis at
L4-5 and L5-S1 along with an alteration of motion segment integrity. Dr. Zaltz noted that
appellant had persistent radiculopathy and a single appropriate level as indicated by the
weakness of dorsiflexion of the extensor halluces longus on the right side and an
electromyogram, which is demonstrated as acute radiculopathy bilaterally at L5. He also noted a
documented history and an observed history of walking for less than five minutes related to
spinal stenosis and scarring at the operative site. Dr. Zaltz noted no vascular reasons for the
claudication and no evidence of a cauda equine syndrome.
On September 25, 2012 Dr. Michael M. Katz, a medical adviser, reviewed the medical
report of Dr. Zaltz, which he found not probative as FECA does not allow a schedule award for
the spine nor recognize whole person impairment. He noted that spinal nerve injury was best
determined using the method described in The Guides Newsletter and recommended that a
second opinion specialist evaluate appellant.
OWCP referred appellant to Dr. Zvi Kalisky, a Board-certified physiatrist, for a second
opinion. In a December 19, 2012 report, Dr. Kalisky noted that appellant’s clinical diagnosis
was bilateral L5 radiculopathy which was confirmed by electrodiagnosis. He used the sixth
edition of the A.M.A., Guides and The Guides Newsletter of July/August 2009. Dr. Kalisky
opined that appellant had a two percent impairment of his left and right lower extremities.
Appellant presented with mild sensory findings in the left lower extremity in the L5 root
distribution. Dr. Kalisky diagnosed left L5 radiculopathy which was confirmed by an
electrodiagnostic study. Under Table 16-11, page 533, of the A.M.A., Guides appellant’s
sensory deficit was consistent with severity I (mild). Dr. Kalisky noted that motor examination
of the left lower extremity was intact and there was no motor radiculopathy to be rated. Table 2
2

Docket No. 11-191 (issued October 17, 2011). On April 20, 2007 appellant, then a 52-years-old toxic material
handler, filed a traumatic injury claim alleging that, on that date, while moving a basket, he felt a sharp pain in his
lower back.

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of The Guides Newsletter, July/August 2009 specified that L5 mild sensory deficit is class
1 impairment with a default value of one to the percent lower extremity. As for adjustment,
Dr. Kalisky noted that, as GRIDS physical examination was used to define the class impairment,
it did not serve as an adjustment. For functional history adjustment, the American Association of
Orthopedic Surgeons (AAOS) lower limb score was 57 which is consistent with grade modifier
2. With regard to clinical studies (electrodiagnosis), Dr. Kalisky used a grade modifier 1 for
mild pathology. The net adjustment was calculated to be +1, moving to the right of the default
value to grade D, which resulted in two percent lower extremity impairment for
L5 radiculopathy. Since there were no valid motor findings on examination, the impairment
rating was limited to sensory radiculopathy. Appellant had no (zero percent) lower extremity
impairment or motor radiculopathy, thus the total left lower extremity impairment was two
percent.
With regard to the right lower extremity, Dr. Kalisky noted that appellant also presented
with mild sensory findings in the right in L5 root distribution that was confirmed by
electrodiagnostic study. Under Table 16-11 of the A.M.A., Guides, appellant’s sensory deficit
was consistent with severity I (mild). Motor examination of the right lower extremity was intact
and there was no motor radiculopathy to be rated. Table 2 of The Guides Newsletter,
July/August 2009 specified that L5 mild sensory deficit is class 1 impairment with default value
of one percent lower extremity impairment. Dr. Kalisky again noted that GRIDS physical
examination was used to define the class impairment, therefore, did not serve as an adjustment
under functional history adjustment, appellant’s AAOS lower limb score was 57, which was
consistent with grade modifier 2. For clinical studies (electrodiagnosis) he had grade modifier 1
for mild pathology. The net adjustment is +1, moving to the right of the default value to grade D
which results in two percent lower extremity impairment for L5 radiculopathy. Since there were
no valid motor findings on examination, the impairment rating was limited to sensory
radiculopathy. Dr. Kalisky noted no (zero percent) lower extremity impairment for motor
radiculopathy and concluded that the total right lower extremity impairment is two percent.
On February 1, 2013 Dr. H. Mobley, a medical adviser, agreed with Dr. Kalisky’s
ratings.
On March 19, 2013 OWCP granted schedule awards for two percent loss of use of the
right and left lower extremities.
On April 1, 2013 appellant, through counsel, requested a hearing before an OWCP
hearing representative. At the July 16, 2013 hearing, he testified that he had failed back
syndrome as his surgery did not work. Appellant noted that he could not bend over and often
lost his balance. He noted constant pain in both legs.
In a decision dated September 9, 2013, the hearing representative affirmed the March 19,
2013 decision.

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LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment 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 stands applicable to all
claimants. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides.5 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.7 Neither FECA nor the implementing federal
regulations provide for payment of a schedule sward for the permanent loss of use of the back,
the spine or the body as a whole; a claimant is not entitled to such a schedule award.8 The Board
notes that section 8101(19) specifically excludes the back from the definition of organ.9 A
claimant may receive a schedule award for any permanent impairment to the upper or lower
extremities even though the cause of the impairment originated in the spine.10
The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal
nerve impairment, set forth in the July/August 2009 The Guides Newsletter.11 It was designed
for situations in which a particular jurisdiction, such as FECA, mandated ratings for extremities
and precluded ratings for the spine. FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities. The appropriate tables for rating
spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure Manual.12
The Board has recognized the adoption of this methodology as proper in order to provide a

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

7

Thomas J. Engelhart, 50 ECAB 319 (1999).

8

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

5 U.S.C. § 8101(19).

10

Thomas J. Engelhart, supra note 7.

11

The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

4

uniform standard applicable to each claimant for a schedule award for extremity impairment
originating in the spine.13
ANALYSIS
OWCP accepted appellant’s claim for sprain of the back, lumbar region; lumbosacral
radiculopathy; aggravation of degeneration of lumbar/lumbosacral spine; and lumbar
spondylolisthesis. It granted schedule awards for two percent impairment of each lower
extremity.
Dr. Zaltz stated that appellant had a 19 percent impairment of the spine based on Table
17-4 on page 571 of the A.M.A., Guides. However, neither FECA nor the implementing federal
regulations provide for a schedule award based on impairment to the back or spine. A schedule
award is permissible, however, when the employment-related spinal condition affects the upper
or lower extremities.14 The Board notes that FECA does not authorize schedule awards for loss
of use of the body as a whole.15 The impairment rating of Dr. Zaltz is of little probative value.16
OWCP properly forwarded the report of Dr. Zaltz to the medical adviser, who determined that a
second opinion evaluation was necessary. Accordingly, OWCP referred appellant to Dr. Kalisky
for a second opinion and to apply the sixth edition of the A.M.A., Guides.
The Board finds that Dr. Kalisky properly applied the A.M.A., Guides. Dr. Kalisky
noted that appellant’s clinical diagnosis was bilateral L5 radiculopathy that was confirmed by
electrodiagnosis. Pursuant to Table 16-11 of the A.M.A., Guides, appellant’s bilateral sensory
deficit was mild with severity I.17 Dr. Kalisky made identical findings for each extremity with
regard to the adjustments. He noted that there was no motor radiculopathy. Applying Table 2 of
The Guides Newsletter, Dr. Kalisky noted that a class 1 impairment had a default value of one
percent of the lower extremity. He found no adjustment for physical examination but found a
grade modifier 2 for functional history and a grade modifier 1 for mild pathology evinced by
clinical studies. Based on the adjustments, Dr. Kalisky moved the default value to the right to
grade D, which represented two percent lower extremity impairment for L5 radiculopathy to
each extremity. Dr. Mobley agreed with the impairment ratings. There is no medical evidence
establishing greater impairment.18 Accordingly, OWCP properly determined that appellant had a
two percent impairment of each lower extremity and issued a schedule award in that amount.
On appeal, counsel asserts that OWCP’s rating methodology for extremity impairment
originating in the spine amounts to junk science. He also further maintained that The Guides
Newsletter was not an official publication of the American Medical Association. As noted,
13

D.S., Docket No. 14-12 (issued March 18, 2014).

14

Id.

15

M.E., Docket No. 13-159 (issued May 14, 2013).

16

J.S., Docket No. 13-381 (issued April 26, 2013).

17

A.M.A., Guides 533.

18

T.R., Docket No. 12-988 (issued February 22, 2013).

5

however, OWCP’s reliance on the July/August 2009 The Guides Newsletter as incorporated into
the Federal (FECA) Procedure Manual is a proper exercise of the Director’s discretion.19 The
Board has long recognized the discretion of OWCP to adopt and utilize various editions of the
A.M.A., Guides for assessing permanent impairment.20 OWCP adopted the sixth edition of the
A.M.A., Guides for rating impairment of the upper or lower extremities caused by a spinal
injury, as provided in section 3.700 of its procedures which incorporates the proposed tables
outlined in the July to August 2009 The Guides Newsletter.21 The Board has recognized this
adoption as proper in order to provide a uniform standard applicable to each claimant for a
schedule award.22
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not have greater than two percent impairment to each
lower extremity for which he received a schedule award.

19

E.D., Docket No. 13-2024 (issued April 24, 2014).

20

D.S., supra note 13.

21

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).
22

D.S., supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2013 is affirmed.
Issued: July 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, MI, Employer
__________________________________________

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

Docket No. 12-1319
Issued: November 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 4, 2012 appellant filed a timely appeal of a May 21, 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 schedule award issue.
ISSUE
The issue is whether appellant sustained a ratable impairment entitling her to a schedule
award.
FACTUAL HISTORY
On February 25, 2000 appellant, then a 42-year-old rural carrier associate, was lifting
mail trays and tubs at work when she injured her lower back. By decision dated March 29, 2000,
OWCP accepted her traumatic injury claim for resolved back strain. On January 12, 2002
appellant pulled her lower back while carrying a bundle of catalogs. By decisions dated
1

5 U.S.C. § 8101 et seq.

February 26 and September 16, 2002, OWCP accepted her traumatic injury claim for lumbar
strain, sacroiliac sprain, aggravated L5-S1 degenerative disc disease and L5-S1 radiculopathy
and paid disability compensation accordingly.
Appellant filed multiple claims for a schedule award from September 10, 2010 to
January 24, 2011 and submitted medical evidence. Dr. Martha A. Frankowski, a Board-certified
neurologist, related in a June 20, 2011 report that appellant experienced lumbosacral myalgia and
various symptoms affecting the left lower extremity and was unable to sit for more than three to
five minutes, stand for more than 10 minutes, or lift items weighing above 20 pounds. Physical
examination findings were unremarkable.
In a July 28, 2011 functional capacity evaluation report, Marwan Francess, a licensed
occupational therapist, administered a battery of tests spanning four hours to assess appellant’s
functional capacity and physical tolerances. He concluded that she was able to perform modified
work on a full-time basis effective immediately. An August 24, 2011 duty status report from
Dr. Frankowski cited Mr. Francess’ July 28, 2011 report and diagnosed lumbosacral radiculitis.2
OWCP informed appellant in a February 23, 2012 letter that additional evidence was
needed from her attending physician to establish her claim. It pointed out that a schedule award
cannot be issued for a spinal impairment but may be paid for an impairment of an extremity
resulting from a spinal nerve injury. OWCP gave appellant 30 days to submit a report with an
impairment rating based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment3 (hereinafter A.M.A., Guides), specifically the supplemental publication
“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” (hereinafter The Guides
Newsletter).4
Appellant provided a March 19, 2012 permanent impairment worksheet from
Dr. Frankowski citing Mr. Francess’ July 28, 2011 report. Dr. Frankowski did not rate any
impairment on the worksheet.
By decision dated May 21, 2012, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate a permanent impairment of a scheduled member.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.5 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
2

The case record also contains an October 10, 2011 duty status report diagnosing lumbar radiculitis and releasing
appellant to full-time duty. The physician’s signature was illegible.
3

A.M.A., Guides (6th ed. 2008).

4

Christopher R. Brigham, M.D., “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition,” The
Guides Newsletter (July/August 2009).
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).

2

and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
Although the A.M.A., Guides presents methods for estimating impairment to the spine
and to the whole person,7 FECA does not authorize schedule awards for loss of use of the back
or the body as a whole.8 Amendments to FECA, however, modified the schedule award
provision to allow for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provisions of FECA include the extremities, a
claimant may be entitled to a schedule award for permanent impairment to a limb even though
the cause of the impairment originated in the spine.9
The A.M.A., Guides does not provide a separate mechanism for rating spinal nerve
injuries as impairments of the extremities. Recognizing that FECA allows ratings for extremities
and precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal
nerve impairments.10 OWCP has adopted this approach for rating impairment to the upper or
lower extremities caused by a spinal injury.11
ANALYSIS
The Board finds that appellant did not sustain a ratable impairment.
OWCP accepted that appellant sustained lumbar strain, sacroiliac sprain, aggravated
L5-S1 degenerative disc disease and L5-S1 radiculopathy while in the performance of duty.
Appellant thereafter filed multiple claims for a schedule award. Neither Dr. Frankowski’s
June 20 and August 24, 2011 reports nor the July 28, 2011 functional capacity evaluation report,
that he referenced, furnished an impairment rating for a scheduled member. In a February 23,
2012 letter, OWCP advised appellant to submit a report with an impairment rating based on The
Guides Newsletter. Appellant subsequently provided Dr. Frankowski’s March 19, 2012
permanent impairment worksheet, which merely referred to Mr. Francess’ July 28, 2011 report.
The Board has held that an opinion that is not based upon standards adopted by OWCP and
approved by the Board as appropriate for evaluating schedule losses is of limited probative value

6

K.H., Docket No. 09-341 (issued December 30, 2011).

7

See B.M., Docket No. 09-2231 (issued May 14, 2010); Janae J. Triplette, 54 ECAB 792 (2003).

8

J.Q., supra note 5. FECA expressly defines “organ” as “a part of the body that performs a special function, and
for purposes of this subchapter excludes the brain, heart, and back.” 5 U.S.C. § 8101(19). Also, a description of
impairment in terms of “whole person” or “whole body” is not probative as to the extent of loss of use of a specific
scheduled member of the body under section 8107 of FECA. R.I., Docket No. 09-1559 (issued August 23, 2010).
9

W.D., Docket No. 10-274 (issued September 3, 2010); Rozella L. Skinner, 37 ECAB 398 (1986).

10

L.J., Docket No. 10-1263 (issued March 3, 2011).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

3

in determining the extent of permanent impairment.12 Since Dr. Frankowski did not present an
impairment rating in accordance with A.M.A., Guides or The Guides Newsletter, the Board finds
that OWCP properly denied appellant’s claim. Appellant did not otherwise submit a current
impairment rating pursuant to OWCP’s standards.
The Board notes that appellant submitted new evidence after issuance of the May 21,
2012 decision and on appeal. The Board lacks jurisdiction to review evidence for the first time
on appeal.13 Appellant may request a schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in
permanent impairment.
CONCLUSION
The Board finds that appellant did not sustain a ratable impairment.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

James Kennedy, Jr., 40 ECAB 620, 627 (1989).

13

20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milledgeville, GA, Employer
__________________________________________

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)

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

Docket No. 07-1449
Issued: December 21, 2007

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 May 7, 2007 appellant filed a timely appeal from the April 6, 2007 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of a wage-earning
capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
to review the denial of modification.
ISSUE
The issue is whether appellant has met his burden of proof to establish a modification of
the Office’s December 1, 2005 determination of wage-earning capacity.
FACTUAL HISTORY
On September 24, 2003 appellant, then a 39-year-old city carrier,1 sustained an injury in
the performance of duty: “Truck pull out in front of me. Lady fail to yield right away. Light
was green for me and she pull out in to me.” The Office accepted his claim for aggravation of
1

Appellant worked in this position since August 1993.

herniated discs at C5-6 and C6-7. The Office approved surgery2 and paid compensation for
wage loss.
On August 1, 2005 Dr. George S. Stefanis, the attending neurosurgeon, released appellant
to full-time limited duty within the guidelines of a functional capacity evaluation. On August 2,
2005 appellant accepted an offer to work in the retained-pay position of city carrier (modified).
He returned to work the following day.
In a progress report covering the period July 25 through August 25, 2005, the Office’s
field nurse noted that appellant had returned to limited duty but that this was not a permanent job
offer. She stated that, according to the postmaster, “a permanent job offer is being developed for
this claimant.” Further, the employing establishment’s injury compensation specialist verified
that appellant was not currently working in a permanent limited-duty position: “She states she
will immediately begin working on a permanent limited[-]duty job offer.”
In a progress report, covering the period August 25 through September 24, 2005, the
Office field nurse reported: “The injury compensation specialist states a permanent job offer has
not been made as yet due to the [p]ostmaster trying to come up with duties that will make the
claimant continue to feel ‘good’ about his job.”
In a decision dated December 1, 2005, the Office found that appellant’s actual earnings in
the position of city carrier (modified) fairly and reasonably represented his wage-earning
capacity. The employing establishment’s injury compensation specialist represented that the
position “can be considered permanent in nature,” as the employing establishment would
continue to accommodate appellant’s restrictions.3 Explaining that continued earnings in other
than seasonal employment for two or more months supported a finding that the position fairly
and reasonably represented an employee’s wage-earning capacity, the Office found that appellant
had no loss of wage-earning capacity because his actual earnings met or exceeded the current
wages of the job he held when he was injured.
On December 11, 2005 appellant requested reconsideration. He explained that he had
continued wage loss because he sustained an injury on October 4, 2005 while performing the
limited duties of his position.
In a decision dated March 10, 2006, the Office denied modification of its December 1,
2005 decision. The Office found that the medical evidence did not support a material worsening
of his injury-related condition in October 2005. The Office also found that the medical evidence
was not sufficient to show that the December 1, 2005 determination was erroneous. The Office
noted that appellant had described a new injury on October 4, 2005 and that a new case was
created under file number 062159053 and was currently under development.
2

On March 10, 2004 appellant underwent an anterior cervical discectomy and decompression at C5-6, an
interbody fusion of C5-6 and an internal fixation of C5 to C6. On January 14, 2005 he underwent the same basic
procedures at C6-7.
3

This representation appears on a loss of wage-earning capacity worksheet the Office completed on December 1,
2005, the date of its final decision.

2

On January 12, 2007 appellant requested reconsideration of the Office’s March 10, 2006
decision. Arguing that his condition materially worsened, he explained that x-rays taken of his
neck showed a successful surgery in January 2005 but that later tests showed no fusion at C6-7.
In a decision dated April 6, 2007, the Office denied modification of its March 10, 2006
decision. The Office found that none of the medical evidence clearly showed a material
worsening of the accepted work-related condition, but rather supported a new injury after
appellant’s return to work in a modified job.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.4
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.5
When an employee cannot return to the date-of-injury job because of disability due to
work-related injury or disease but does return to alternative employment, the wage-earning
capacity of the employee is determined by his actual earnings if his actual earnings fairly and
reasonably represent his wage-earning capacity.6 To determine whether the employee’s work
fairly and reasonably represents his wage-earning capacity, the Office should consider whether
the kind of appointment and tour of duty are at least equivalent to those of the job held on date of
injury. Unless they are, the Office may not consider the work suitable. The reemployment may
not be considered suitable when the job is temporary where the employee’s previous job was
permanent.7
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,
or the original determination was, in fact, erroneous. The burden of proof is on the party
attempting to show modification of the award.8
ANALYSIS
The position that appellant accepted on August 2, 2005 was not permanent. The offer did
not identify the position as permanent and after appellant returned to work, both the postmaster
and the employing establishment’s injury compensation specialist verified that he was not
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f) (1999).

6

5 U.S.C. § 8115(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7.a (July 1997).
8

Daniel J. Boesen, 38 ECAB 556 (1987).

3

working a permanent assignment. Although both stated that a permanent job offer was being
developed, no such offer ever materialized.
Office procedures are clear. When determining whether earnings in alternative
employment fairly and reasonably represent the employee’s wage-earning capacity, the Office
may not consider the work suitable when the job is temporary and the employee’s previous job
was permanent. Appellant worked as a city carrier since 1993. Because the record establishes
that the position to which he returned on August 3, 2005 was not permanent, the Office may not
consider the work suitable for a determination of wage-earning capacity.
The injury compensation specialist’s representation -- that the position could be
considered permanent because the employing establishment would continue to accommodate
appellant -- does not establish the August 2, 2005 offer into one of permanent employment. It
does not erase the representations made by the postmaster, and the injury compensation specialist
herself, that appellant was not in fact working permanent limited duty. It is no substitute for the
permanent job offer that was being developed. There is no evidence of record that establish
when the position was considered to have “changed” into a permanent one and, therefore, no
way to determine whether appellant worked in the changed position for a sufficient period of
time to demonstrate his capacity to earn wages. For this reason, the December 2, 2005 wageearning capacity was erroneous.
The Board will reverse the Office’s April 6, 2007 decision denying modification.
CONCLUSION
The Board finds that appellant has met his burden of proof. The record shows that the
Office’s December 1, 2005 determination of wage-earning capacity was, in fact, erroneous. The
kind of appointment to which appellant returned on August 3, 2005 was not at least equivalent to
that of the job he held on date of injury, and therefore the employment was not suitable for a
determination of wage-earning capacity.

4

ORDER
IT IS HEREBY ORDERED THAT the April 6, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 21, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 09-1418
Issued: January 25, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 18, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated January 26, 2009. 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 a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On May 15, 2008 appellant, then a 55-year-old quality assurance specialist, filed an
occupational disease claim alleging that he developed binaural hearing loss due to exposure to
noise in the performance of duty. He stated that he first realized he had hearing loss in 1996 and
first related the loss to his employment in 2003. Appellant retired on May 13, 2008.
In a letter dated May 21, 2008, the Office requested additional factual and medical
evidence from appellant and the employing establishment and allowed 30 days for a response.

The employing establishment responded that appellant had worked in environments that produce
hazardous noise during his employment.
The Office referred appellant to Dr. Elizabeth Payne, a Board-certified otolaryngologist,
for a second opinion evaluation. In a report dated January 15, 2009, Dr. Payne noted appellant’s
employment-related noise exposure and diagnosed moderately severe high frequency
sensorineural hearing losses in both ears worse on the left. She opined that appellant’s high
frequency hearing loss was aggravated by his work environment. Appellant’s audiometric test
results on January 15, 2009 demonstrated in the right ear 10 decibels at 500 cycles per second,
10 decibels at 1,000 cycles per second (cps), 20 decibels at 2,000 cycles per second and 20
decibels at 3,000 cycles per second. In the left ear, appellant had decibel loss of 10, 10, 10 and
55, respectively.
The district medical adviser reviewed appellant’s claim on January 22, 2009 and found
that appellant did not have a ratable impairment in either ear, but that he had significant hearing
loss in the left ear at 3,000 cps and that he would benefit from hearing aids in both ears.
By decision dated January 26, 2009, the Office accepted appellant’s claim for noiseinduced hearing loss. It found that appellant was not entitled to a schedule award, but that he
was entitled to medical benefits.
On appeal, appellant alleged that the Office improperly determined that his right ear was
worse than his left. He further contends that he experiences tinnitus.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.3 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.4

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

Id.

4

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

2

The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
The A.M.A., Guides provides that tinnitus in the presence of unilateral or bilateral
hearing impairment may impair speech discrimination: “Therefore, add up to five percent for
tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform
activities of daily living.”11 The A.M.A., Guides advises as follows:
“Some impairment classes refer to limitations in the ability to perform daily
activities. When this information is subjective and possibly misinterpreted, it
should not serve as the sole criterion upon which decisions about impairment are
made. Rather, obtain objective data about the severity of the findings and the
limitations and integrate the findings with the subjective data to estimate the
degree of permanent impairment.”12
ANALYSIS
The Office accepted that appellant sustained an employment-related hearing loss;
however, the district medical adviser further found that appellant’s hearing loss was not ratable
for schedule award purposes. The record contains an audiogram dated January 15, 2009, which
indicates that appellant’s right ear had losses of 10, 10, 20 and 20 decibels at 500, 1,000, 2,000
and 3,000 cps. These losses total 60 decibels and averaged equal 15. The fence of 25 cannot be
deducted from 15 and appellant does not have a ratable hearing loss in his right ear. On the left
appellant’s audiogram indicates decibel losses of 10, 10, 10 and 55 respectively. When totaled,
these losses equal 85 decibels and average to 21.25. The fence of 25 cannot be deduced from
5

A.M.A., Guides at 226-51 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

10

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11

Id.

12

Id.

3

21.25 and appellant has no ratable hearing loss in his left ear. Accordingly, pursuant to the
Office’s standardized procedures, the Office properly determined that appellant had no ratable
hearing loss in either ear. The Board notes that the record demonstrates that appellant has
greater high frequency hearing loss in his left ear. However, the Board further notes that there
are no medical reports in the record supporting appellant’s claim for tinnitus. Furthermore, as
noted above, the A.M.A., Guides provide an additional impairment rating for tinnitus only if the
underlying hearing loss is measurable. As appellant does not have a ratable hearing loss, he is
not entitled to an additional schedule award for tinnitus.
CONCLUSION
The Board finds that appellant has an employment-related binaural loss of hearing, which
is not ratable for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-953
Issued: August 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from a February 24, 2014 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 established that he sustained more than 13 percent
impairment of the left upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On June 27, 2011 appellant, then a 58-year-old distribution clerk, filed a traumatic injury
claim alleging that on May 2, 2011 the wire cage he was pushing off a truck got caught on the
ramp and his thumb bent back at the base. OWCP accepted the claim for aggravation of
1

5 U.S.C. §§ 8101-8193.

preexisting left hand osteoarthritis. It paid appropriate compensation benefits, including a
January 4, 2012 left thumb fusion. Appellant returned to full duty on April 4, 2012.
Under claim number xxxxxx989, OWCP accepted the condition of bilateral lateral
epicondylitis.
Appellant underwent authorized right elbow surgery (fasciotomy) on
September 19, 1997 and left elbow surgery (fasciotomy) on October 20, 1997. On June 30, 1999
he received three percent impairment to the right upper extremity and two percent impairment to
the left upper extremity. On August 4, 2000 appellant received an additional one percent
impairment to the right upper extremity and three percent to the left upper extremity. On
June 12, 2001 he received an additional seven percent impairment to the left upper extremity.
These totaled 4 percent for the right upper extremity and 12 percent for the left upper extremity.
On July 5, 2012 appellant filed a claim for an increased schedule award for permanent
partial impairment in connection with the thumb injury. On July 10, 2012 OWCP sent a letter to
appellant’s treating physician, Dr. Craig Willis, a Board-certified orthopedic surgeon, requesting
his opinion as to whether he had any permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A,
Guides). No response was received from Dr. Willis.
In an August 3, 2012 report, Dr. Martin Fritzhand, an occupational medicine physician,
opined that appellant reached maximum medical improvement in July 2012 and that he had
sustained 12 percent left upper extremity impairment. He provided physical examination
findings and cited to tables within the A.M.A., Guides and explained his impairment rating. On
September 6, 2012 an OWCP medical adviser reviewed Dr. Fritzhand’s August 3, 2012
examination findings and concurred with the 12 percent left upper extremity impairment rating.
However, neither Dr. Fritzhand nor the medical adviser had taken into consideration the previous
schedule award for the accepted medical conditions under claim number xxxxxx989.
On May 2, 2013 OWCP prepared a statement of accepted facts and wrote to
Dr. Fritzhand requesting an assessment of the left upper extremity impairment based on the
accepted conditions under the current claim and claim number xxxxxx989, for which he had
received prior schedule awards.
In a May 30, 2013 report, Dr. Fritzhand reviewed the statement of accepted facts and
presented examination findings. He found left elbow flexion to be 140 degrees, forearm
supination to 60 degrees, forearm pronation to 80 degrees, left thumb flexion to 40 degrees,
normal extension to zero degrees, abduction to 20 degrees, and 5 centimeter adduction. Citing
Table 15-30 of the A.M.A., Guides for a range of motion rating, Dr. Fritzhand determined 13
percent impairment of the left thumb due to range of motion. He found 35 percent digital
impairment, by adding 3 percent interphalangeal (IP) joint flexion digital impairment; IP joint
extension 1 percent; metacarpophalangeal (MCP) flexion 4 percent, MCP extension 0 percent;
carpometacarpal (CMC) adduction 8 percent, radial abduction 10 percent; and opposition 9
percent. Dr. Fritzhand then used Table 12-2 to convert the 35 percent digital impairment of the
left thumb to 13 percent upper extremity impairment. Citing Table 15-4 (regional elbow grid),
he opined that 5 percent impairment due to epicondylitis. Dr. Fritzhand noted that under Table
15-7 grade modifier Functional History (GMFH) 1 based on QuickDASH score 64; Table 15-8
grade modifier Physical Examination (GMPE) 1; Table 15-9 grade modifier Clinical Studies

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(GMCS) 1, which equated to zero grade modifiers. He opined that maximum medical
improvement was met by January 2013 and appellant had 5 percent left upper extremity
impairment referable to the 1996 injury and an additional 13 percent impairment referable to the
2011 injury, for a combined 17 percent left upper extremity impairment. On June 22, 2013 an
OWCP medical adviser reviewed Dr. Fritzhand’s May 30, 2013 report and found that there
needed to be three sets of range of motion measurements to be valid.
In a September 13, 2013 addendum, Dr. Fritzhand provided the results of three sets of
thumb range of motion measurements which had been conducted September 10, 2013 and which
covered the IP joint flexion (30, 40, 45), IP joint extension (0, 0, 0), adduction (20, 25, 20),
opposition (2 centimeters (cm), 4 cm, 2 cm), MCP joint flexion (20, 20, 30), and MCP joint
extension (0, 0, 0). Citing Table 15-30, Dr. Fritzhand determined that appellant had 35 percent
left thumb impairment. Citing Table 15-12, Dr. Fritzhand converted 35 percent digit impairment
to 13 percent left upper extremity impairment. He reiterated his opinion that appellant had 17
percent combined left upper extremity impairment.
In a September 26, 2013 report, an OWCP medical adviser found that Dr. Fritzhand’s
range of motion measurements were valid. He opined that maximum medical improvement had
been reached on September 10, 2013, the date of Dr. Fritzhand’s examination. The medical
adviser calculated 21 percent left thumb impairment based on Dr. Fritzhand’s examination
findings. Under Table 15-30, he found 3 percent for 50 degrees IP flexion loss; 1 percent for 0
percent IP extension loss, 4 percent for 30 degrees MCP flexion loss, 0 percent for 0 degrees
MCP extension (no loss), 4 percent for 5 cm adduction, 5 percent for 30 degrees abduction, and 4
percent for 4 degrees opposition. Under Table 15-35, the medical adviser found thumb range of
motion was equal to grade modifier 2. Under Table 15-7, he found grade modifier functional
history was 1 as opposed to Dr. Fritzhand’s rating of 3 as there was no mention that appellant
required modifications to perform self-care activities and thus a grade modifier of 2 secondary to
the QuickDASH form as calculated by Dr. Fritzhand was not necessary. Under Table 15-35, the
final adjustment between range of motion GMFH (2) -- range of motion grade modifier 1
equaled 1, which equated to 21 percent left thumb digit impairment. Under Table 16-12, the
medical adviser converted the 21 percent left thumb impairment to 8 percent left upper extremity
impairment. He combined the 8 percent left upper extremity impairment for the thumb and 5
percent impairment from the 1996 epicondylitis to find a total 13 percent left upper extremity
impairment.
By decision dated October 4, 2013, OWCP awarded appellant a schedule award for an
additional one percent left upper extremity impairment. It noted that appellant was previously
awarded a total 12 percent impairment for the left upper extremity (3 percent on August 4, 2000,
7 percent on June 12, 2001, and 2 percent June 30, 1999) and as the present impairment was 13
percent, he was due an additional 1 percent impairment. The weight of the medical evidence was
given to the medical adviser’s opinion.
On October 25, 2013 appellant requested a review of the written evidence of record by an
OWCP hearing representative. He indicated in an October 25, 2013 statement that he had
continued weakness and loss of agility in his left hand and arm. Copies of Dr. Fritzhand’s
May 20 and September 30, 2013 reports were submitted.

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By decision dated February 24, 2014, an OWCP hearing representative affirmed
OWCP’s October 4, 2013 decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.2 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.3
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For upper extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on functional history, physical
examination and clinical studies. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX)
+ (GMCS-CDX).4 Evaluators are directed to provide reasons for their impairment rating
choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.5
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.6
In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.7

2

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

3

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
4

R.Z., Docket No. 10-1915 (issued May 19, 2011).

5

J.W., Docket No. 11-289 (issued September 12, 2011).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.808.6(d) (August 2002).
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(j) (September 2010).

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OWCP procedures state that any previous impairment to the member under consideration
is included in calculating the percentage of loss, except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.8
ANALYSIS
OWCP accepted appellant’s claim for aggravation of localized primary osteoarthritis, left
hand. It authorized a left thumb/hand surgery on January 10, 2012. On October 4, 2013 OWCP
granted appellant a schedule award for an additional one percent impairment of the left upper
extremity based on the September 26, 2013 opinion of its medical adviser. It noted that he was
previously awarded 12 percent total left upper extremity impairment under claim number
xxxxxx989 and its medical adviser opined that appellant was entitled to 13 percent left upper
extremity. By decision dated February 24, 2014, an OWCP hearing representative affirmed the
October 4, 2013 decision.
In a May 30, 2013 report and September 13, 2013 addendum, Dr. Fritzhand utilized the
A.M.A., Guides and the range of motion method to provide an impairment rating for the left
upper extremity. He determined that appellant had 17 percent left upper extremity impairment.
This was comprised of 35 percent digit impairment which equaled an upper extremity
impairment of 13 percent and 5 percent left upper extremity impairment from epicondylitis. The
A.M.A., Guides provides that, under specific circumstances, range of motion may be selected as
an alternative approach in rating upper extremity impairment and cautions that an impairment
rating that is calculated using range of motion stands alone and may not be combined with a
diagnosis-based impairment.9 Pursuant to Table 15-2, the Digit Regional Grid, asterisks indicate
that thumb impairments may be alternatively assessed using section 15.7, Range of Motion
Impairment, if loss of motion is present.10 Additionally, section 15.7a indicates that range of
motion should be measured after a warm up, that the maximum range of motion should be
measured at least three times and that the maximum measurement is used to determine range of
motion measurement.11 Dr. Fritzhand indicated that he had complied with these requirements
and provided three individual measurements for each digit. Additionally, he utilized the range of
motion grade modifiers, but found no adjustments were necessary.12
To determine the appropriate percentages of permanent impairment, OWCP referred
Dr. Fritzhand’s reports to its medical adviser. OWCP’s medical adviser utilized Dr. Fritzhand’s
measurements and found appellant had combined left upper extremity impairment of 13 percent.
He agreed with Dr. Fritzhand that appellant had 5 percent left upper extremity impairment from
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.808.7.a(2) (November 1998).
9

A.M.A., Guides 390.

10

Id. at 393-95.

11

Id. at 464.

12

Id. at 406, Table 15-7 and 477, Table 15-36.

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epicondylitis. However, the medical adviser found that the final left thumb digit impairment
calculated to 21 percent or 8 percent left upper extremity impairment as opposed to the 35
percent digit impairment or 13 percent left upper extremity impairment which Dr. Fritzhand
assigned. He properly selected the highest of the three measurements for each range of motion
test. Under Table 15-30, page 468, the medical adviser found appellant’s thumb range of motion
was 21 percent digit impairment. Under Table 15-30, he found three percent for 50 degrees IP
flexion loss; one percent for zero percent IP extension loss, four percent for 30 degrees MCP
flexion loss, zero percent for 0 degrees MCP extension (no loss), four percent for 5 cm
adduction, five percent for 30 degrees abduction, and four percent for 4 degrees opposition.
Under Table 15-35, the medical adviser found thumb range of motion was equal to grade
modifier 2. Under Table 15-7, he found grade modifier functional history was 1 as opposed to
Dr. Fritzhand’s rating of 3 as there was no mention that appellant required modifications to
perform self-care activities and thus a grade modifier of 2 secondary to the QuickDASH form as
calculated by Dr. Fritzhand was not necessary. Under Table 15-35, the final adjustment between
range of motion GMFH (2) -- range of motion grade modifier 1 equaled 1, which equated to 21
percent left thumb digit impairment. Under Table 16-12, the medical adviser converted the 21
percent left thumb impairment to 8 percent left upper extremity impairment. He combined the 8
percent left upper extremity impairment for the thumb and 5 percent impairment from the
epicondylitis to find total 13 percent left upper extremity impairment. OWCP’s medical adviser
properly applied the appropriate portions of the A.M.A., Guides to Dr. Fritzhand’s clinical
findings. His opinion is sufficient to represent the weight of the medical evidence.13
There is no probative medical evidence to support a greater impairment than that
awarded. As appellant previously received 12 percent total left upper extremity impairment and
is now entitled to 13 percent left upper extremity impairment, OWCP properly awarded appellant
an additional 1 percent left upper extremity impairment.14
On appeal, appellant challenges OWCP’s award of additional one percent impairment to
his left upper extremity, noting he still suffers residual symptoms. However, he has not
submitted any probative medical evidence indicating that he has a greater impairment than that
previously awarded.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain greater than 13 percent left upper extremity
impairment.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.8(j) (September 2010).
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.808.7.a(2) (November 1998).

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ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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SYRACUSE MEDICAL CENTER, Syracuse, NY, )
Employer
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G.C., Appellant

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

Docket No. 08-154
Issued: May 6, 2008

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 October 22, 2007 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decision dated August 15, 2007 finding that he had
not established a recurrence of disability causally related to his federal employment. 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 met his burden of proof in establishing that he
sustained a recurrence of total disability on or after March 1, 2005 due to his August 19, 2004
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. On August 19, 2004 appellant sustained
a low back injury while lifting a patient. He returned to light-duty work on September 24 and
November 22, 2004. The medical evidence established that appellant had a diagnosis of sciatica

which predated his employment injury. He filed a recurrence of disability claim on March 29,
2005 alleging that on March 1, 2005 he sustained a recurrence of total disability due to his
August 19, 2004 employment injury. The Office denied appellant’s claim for recurrence of
disability by decision dated August 1, 2005. The Branch of Hearings and Review affirmed this
decision on March 7, 2006. In a decision dated September 7, 2006,1 the Board found that
appellant did not submit sufficient medical and factual evidence to establish a recurrence of total
disability on or after March 1, 2005. The facts and the history of the case as set out in the
Board’s prior decision are incorporated herein by reference.
In a report dated March 14, 2005, Dr. Daniel Rancier, a Board-certified family
practitioner, provided a history of an August 14, 2003 employment injury which resulted in a
diagnosis of sciatica. He further noted that appellant believed that he sustained an exacerbation
of pain because he had to work too hard as he had recently shoveled some snow. Appellant
stopped work on his recommendation with no significant improvement in his back pain.
Dr. Rancier referred appellant for a magnetic resonance imaging (MRI) scan on May 6, 2005
which revealed chronic degenerative disc disease at L4-5 with only minimal impression on the
thecal sac in the midline and mild impression on the thecal sac posterolaterally. The MRI scan
revealed no evidence of nerve root compression. In a note dated May 9, 2005, Dr. Rancier
diagnosed chronic low back pain and noted that appellant was not experiencing any change in his
condition. On June 21, 2005 he stated that appellant’s diagnoses included sciatica and low back
pain which existed concurrently. Dr. Rancier stated, “This is all related to his previous injury
and there is nothing significantly new going on with this condition.”
In a report dated August 19, 2005, Dr. Rancier diagnosed chronic low back pain with
radiation down the right leg. He noted that appellant denied any significant change in his
chronic low back pain. On September 22, 2005 Dr. Rancier diagnosed chronic low back pain
with radiation down the legs and stated that appellant had improved since stopping work. He
described work which required lifting, twisting, bending or an excessive amount of time standing
or sitting could exacerbate appellant’s back pain. Dr. Rancier concluded that appellant was
disabled from his regular duties. He completed an additional report on October 4, 2005 which
stated that he first found appellant totally disabled beginning May 9, 2005.
On October 28, 2005 the Office received an undated report from Dr. Rancier noting that
he had examined appellant monthly since August 14, 2003. Dr. Rancier stated, “[Appellant’s]
pain and disability is a permanent condition due to spinal compression related to the presence of
degenerative disc disease.” He diagnosed degenerative disc disease and chronic low back pain.
Appellant retired from the employing establishment effective June 2, 2006. His attorney
requested reconsideration on October 1, 2006 and requested review of the medical evidence of
record.2 Appellant underwent a radiofrequency ablation of the right L3, L4 and L5 facet joints
with fluoroscopy on March 21, 2006. On March 28, 2006 Dr. Rancier stated that appellant was
1

Docket No. 06-1001 (issued September 7, 2006).

2

Counsel referred to a January 9, 2006 report from Kristen Barry, a psychologist. This report was in the record at
the time of the hearing representative’s March 7, 2006 decision and was therefore before the Board in its
September 7, 2006 decision.

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experiencing severe back pain. On May 3, 2006 Dr. Richard Zogby, a Board-certified
orthopedic surgeon, noted appellant’s history of injury lifting a patient in August 2004.
Appellant reported pain and stiffness in the low back with radiation to the right leg and foot.
Dr. Zogby diagnosed lumbar spinal stenosis and recommended an MRI scan. He found appellant
totally disabled. On May 26, 2006 Dr. Zogby recommended a lumbar laminectomy L3-S1. He
continued to support appellant’s total disability and need for surgery on June 13 and
September 13, 2006.
Dr. Mahender Goriganti, Board-certified in physical medicine and rehabilitation,
examined appellant on August 24, 2006. Appellant reported an “insidious onset of pain” in the
lumbosacral region with no specific recollection of any particular activity which may have led to
those symptoms. Dr. Goriganti diagnosed degenerative disc disease, and lumbar radiculopathy
L4-5 and L5-S1. On September 19, 2006 he expanded his diagnoses to include lumbosacral
sprain/strain, chronic low back pain, spinal stenosis as well as lumbosacral degenerative disc
disease. Dr. Goriganti found appellant totally disabled.
In a report dated October 9, 2006, Dr. Zogby recommended a surgical decompression of
the nerve roots from L3-4 and L5-S1.
By decision dated October 19, 2006, the Office denied further reconsideration of the
merits.
Dr. Goriganti completed a report on October 10, 2006 and diagnosed failed back
syndrome, chronic low back pain and lumbar radiculopathy. He opined that appellant was totally
disabled. On October 25, 2006 Dr. Zogby noted appellant’s history of injury in October 2004.
He repeated his prior diagnoses and recommended surgery. Dr. Goriganti examined appellant on
November 7, 2006 and stated that appellant’s symptoms had improved. He found appellant
totally disabled. On November 30, 2006 Dr. Zogby noted appellant’s history of injury in 2004
and found he was totally disabled.
The Office accepted the additional conditions of chronic lumbar syndrome with
radiculitis and underlying degenerative disc disease at L4-5 as due to the August 19, 2004
employment injury by letter dated March 14, 2007.
Dr. Zogby completed a report on April 9, 2007 and indicated that appellant underwent
surgery on December 7, 2006. He described the surgery as lumbar laminectomy and bilateral
decompression with partial discectomy.
Appellant, through his attorney, requested reconsideration before the Office on
May 21, 2007. He submitted the March 14, 2007 expansion of appellant’s claim. By decision
dated August 15, 2007, the Office found that there was no new evidence in the record addressing
a change in the nature and extent of appellant’s injury-related condition or light-duty job
requirements and denied modification of its prior decision.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
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injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.3 When an employee who is disabled from the job he held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.4
This medical opinion must be based upon a complete factual and medical background
with an accurate history of appellant’s employment injury. The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.5
ANALYSIS
The Office accepted that appellant sustained lumbar sprain and strain, chronic lumbar
syndrome with radiculitis and underlying degenerative disc disease at L4-5 as a result of the
August 19, 2004 employment injury. Appellant has not submitted any additional factual
evidence addressing whether there was a change in the nature and extent of his light-duty job
requirements beginning March 1, 2005. The Board will review appellant’s claim to determine
whether he has established a change in the nature and extent of his injury-related conditions
beginning March 1, 2005.
Dr. Rancier, a Board-certified internist and appellant’s attending physician, attributed
appellant’s exacerbation of pain on March 14, 2005 to shoveling snow. This does not represent a
spontaneous change in the nature and extent of the injury-related condition, but instead attributes
any change in March 2005 to an intervening cause, shoveling snow. This report is not sufficient
to establish that appellant sustained a recurrence of total disability in March 2005. On May 9,
June 1 and August 19, 2005 Dr. Rancier denied any change in appellant’s back pain or
conditions. He did not support that appellant’s back conditions had changed. Dr. Rancier’s
reports do not establish a change in the nature and extent of the injury-related conditions
necessary to establish a recurrence of disability. He completed a report on October 4, 2005 and
stated that he first found appellant totally disabled beginning May 9, 2005. Dr. Rancier did not
state that appellant’s back conditions had changed in May 2005 and did not offer any medical
reason for appellant’s total disability at that time. This report is insufficient to meet appellant’s
3

20 C.F.R. § 10.5(x).

4

Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

James Mack, 43 ECAB 321, 328-29 (1991).

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burden of proof in establishing a recurrence of total disability. In a report received by the Office
in October 2005, Dr. Rancier attributed appellant’s pain and disability to the accepted condition
of degenerative disc disease. He did not explain how appellant’s degenerative disc disease had
changed on or after March 1, 2005 rendering appellant totally disabled. Without a medical
explanation of how appellant’s accepted employment-related condition had changed causing
total disability, this report is not sufficient to meet appellant’s burden of proof. On March 28,
2006 Dr. Rancier stated that appellant was experiencing severe back pain. He did not offer any
explanation for appellant’s increased back pain and did not attribute this to a change in the nature
and extent of appellant’s accepted employment-related injuries. Dr. Rancier has not submitted
any medical findings suggesting that appellant’s accepted employment-related conditions have
changed such that he became totally disabled on or after March 1, 2005. His reports are not
sufficient to meet appellant’s burden of proof.
Appellant also submitted several reports from Dr. Zogby, a Board-certified orthopedic
surgeon, addressing his ongoing back treatment. On May 3, 2006 Dr. Zogby noted appellant’s
employment injury in August 2004 and diagnosed lumbar spinal stenosis. He found that
appellant was totally disabled. Dr. Zogby recommended surgical decompression of the nerve
roots from L3-4 and L5-S1. He did not address the period of disability claimed as of March 1,
2005 or identify any change in appellant’s accepted conditions which resulted in his total
disability for work. These reports are not sufficient to meet appellant’s burden of proof in
establishing that he sustained a recurrence of totally disability on March 1, 2005 due to his
accepted lumbar strain and sprain or chronic lumbar syndrome with radiculitis and underlying
degenerative disc disease at L4-5.
Appellant also submitted several reports from Dr. Goriganti, a physician Board-certified
in physical medicine and rehabilitation. Dr. Goriganti first examined appellant on August 24,
2006 and noted that appellant did not provide a history of a specific injury as causing or
contributing to his ongoing back condition. He diagnosed degenerative disc disease and lumbar
radiculopathy at L4-5 and L5-S1. Dr. Goriganti found that appellant was totally disabled. While
he attributed appellant’s current disability to his accepted employment-related conditions of
degenerative disc disease, he did not address the progression of this condition and explain when
or how appellant’s condition worsened such that appellant became totally disabled for work as of
March 1, 2005. Dr. Goriganti also appeared not to be aware of appellant’s accepted employment
incident in August 2004 and did not attribute appellant’s current disability to this injury. As
these reports are not based on a proper factual background, they are of diminished probative
value and cannot establish a period of total disability due to appellant’s accepted employment
injuries.
Appellant has not submitted rationalized medical opinion evidence based on a proper
factual background establishing that he sustained a recurrence of total disability on or after
March 1, 2005 causally related to his accepted employment injuries. Without medical evidence
explaining how his accepted conditions worsened and when these conditions rendered him
totally disabled, appellant has not meet his burden of proof and the Office properly denied his
claim.

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CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing a
recurrence of total disability on or after March 1, 2005.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2008
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

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