United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 09-117
Issued: August 7, 2009

Case Submitted on the Record

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

JURISDICTION
On October 10, 2008 appellant filed a timely appeal of the November 27, 2007 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative and the
July 11, 2008 nonmerit decision, denying her request for an oral hearing. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation and medical benefits effective July 27, 2007 on the grounds that she no longer had
any residuals or disability causally related to her accepted employment-related injury;
(2) whether appellant had any continuing employment-related residuals or disability after
July 27, 2007; and (3) whether the Branch of Hearings and Review properly denied her request
for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1) because she had previously requested
reconsideration pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On December 23, 2004 appellant, then a 37-year-old mailhandler, filed a traumatic injury
claim alleging that on that date she injured her lower back when she slipped on the ice in the
employing establishment’s parking lot as she exited her vehicle. The Office accepted her claim
for lumbosacral sprain/strain. It paid appellant appropriate compensation.
In a September 21, 2006 disability certificate, Dr. Steven T. Richey, an attending Boardcertified physiatrist, stated that appellant could return to work four hours per day with
restrictions on September 25, 2006. Appellant returned to work on the designated date.
By letter dated September 29, 2006, the Office referred appellant, together with the case
record, a statement of accepted facts and a list of questions to be addressed to Dr. Carl W. Huff,
a Board-certified orthopedic surgeon, for a second opinion medical examination.
In an October 24, 2006 medical report, Dr. Huff reviewed a history of appellant’s
conditions, including her accepted lumbar condition and medical treatment. He provided a
detailed review of her medical records. On physical examination, Dr. Huff reported essentially
normal findings, which included appellant’s ability to forward flex to reach her ankles, full
complete reversal of lordosis which indicated excellent segmentation, supple paraspinous
muscles with no indication of spasm, full range of motion of the hip with no pain, intact pulses in
both feet and a bilateral calf circumference of 14½ inches. He further reported positive test
results on four out of five Waddell’s tests which suggested strong symptom exaggeration. On
neurological examination, Dr. Huff reported normal findings which included intact and
symmetrical deep tendon reflexes and no muscle weakness, sensory deficits or pathological
reflexes. He also reported negative lumbar x-ray, magnetic resonance imaging (MRI) scan and
electromyogram (EMG) findings. Dr. Huff stated that appellant’s complaints of low back and
left leg pain were without objective findings. He further stated that there was no indication of
any structural injury to appellant’s back. Dr. Huff noted that two months after the December 24,
2004 employment injury, appellant was nontender in the back and only had tenderness over the
right sacroiliac joint. He related that appellant’s symptoms were now left sided. Dr. Huff
observed appellant’s symptom magnification which was also observed by prior physicians. He
opined that appellant no longer suffered from residuals of her accepted employment-related
injury since there were no physical or objective findings to establish a pathophysiology or
structural abnormality. Dr. Huff further opined that appellant reached maximum medical
improvement within six weeks of her employment-related injury. He concluded that appellant
was capable of working eight hours per day with no limitations.
By letter dated December 14, 2006, the Office requested that Dr. Richey review
Dr. Huff’s October 24, 2006 report and provide an opinion regarding appellant’s current medical
and disability status.
In a January 18, 2007 report, Dr. Richey stated that he agreed with Dr. Huff’s finding that
appellant’s employment-related injury should be at maximum medical improvement and that she
could return to full work with no restrictions based on objective and subjective findings. He
noted that appellant’s pain, which ranged from 5 to 6 out of 10 on a visual analog scale with
significant sleep disturbance, did not improve despite using opiate pain medication.

2

By letter dated June 21, 2007, the Office issued a notice of proposed termination of
medical benefits based on Dr. Huff’s October 24, 2006 medical opinion. It provided 30 days in
which appellant could respond.
In reports dated June 12 and July 2, 2007, Dr. Michael E. Steuer, a Board-certified
anesthesiologist, stated that appellant suffered from lumbar degenerative disc disease, low back
pain, depression, lumbalgia, lumbar sprain/strain, left L4 and S1 radiculitis, lumbar spondylosis
without myelopathy, mononeuritis of the left lower extremity, myofascial syndrome and sleep
disorder. He stated that appellant remained at low risk for opioid abuse. In reports dated June 21
and July 12, 2007, Dr. Steuer stated that he administered a left L5-S1 epidural steroid injection.
By decision dated July 27, 2007, the Office terminated appellant’s wage-loss
compensation and medical benefits with regard to her accepted employment-related injury,
effective that date.
In a report dated August 1, 2007, Dr. Steuer reiterated his prior diagnoses.
August 22, 2006 he administered a L5-S1 steroid epidural injection.

On

In a letter dated August 24, 2007, appellant requested reconsideration of the Office’s
July 27, 2007 decision. In an April 19, 2007 report, Dr. Steuer stated that he performed a L3-4,
L4-5 and L5-S1 discography which revealed lumbar discogenic disease. By report dated May 9,
2007, he reiterated his prior diagnoses. An undated and unsigned report provided drug screening
test results.
By decision dated November 27, 2007, the Office denied modification of the July 27,
2007 decision. It found the evidence submitted by appellant insufficient to outweigh Dr. Huff’s
October 24, 2006 medical opinion. In a May 29, 2008 letter, appellant requested an oral hearing
before an Office hearing representative.
By decision dated July 11, 2008, the Office’s Branch of Hearings and Review denied
appellant’s request for an oral hearing. It found that, since appellant had previously requested
reconsideration on the same issue, she was not entitled to an oral hearing as a matter of right. A
discretionary hearing was also denied on the grounds that appellant could appropriately address
the issue of whether she continued to suffer residuals of her accepted employment-related injury
by requesting reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.1

1

Jason C. Armstrong, 40 ECAB 907 (1989).

3

The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.2
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits based on the opinion of Dr. Huff, an Office referral
physician, who reviewed a history of appellant’s employment-related lumbosacral sprain/strain.
Dr. Huff reported his essentially normal findings on physical, neurological and objective
examination. He stated that appellant’s subjective complaints of pain in the lower back and left
leg were not supported by objective findings. Dr. Huff observed symptom magnification. He
stated that appellant reached maximum medical improvement six weeks following the
December 24, 2004 employment-related injury. Dr. Huff opined that appellant no longer
suffered from residuals of her accepted employment-related injury. He explained that there were
no physical or objective findings to establish a pathophysiology or structural abnormality.
Dr. Huff further opined that appellant could work eight hours per day with no restrictions.
In a January 18, 2007 report, Dr. Richey, an attending physician, agreed with Dr. Huff’s
finding that appellant’s employment-related injury had reached maximum medical improvement
and that she could return to full-duty work with no restrictions based on objective and subjective
findings.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.3 Dr. Huff fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any residuals or disability
due to her accepted lumbar sprain/strain. For this reason, his report, which is supported by
appellant’s attending physician, Dr. Richey, constitutes the weight of the medical opinion
evidence.
Dr. Steuer’s June 12 and July 2, 2007 reports stated that appellant sustained lumbar
degenerative disc disease, low back pain, depression, lumbalgia, lumbar sprain/strain, left L4 and
S1 radiculitis, lumbar spondylosis without myelopathy, mononeuritis of the left lower extremity,
myofascial syndrome and sleep disorder. He also stated that appellant remained at low risk for
opioid abuse. Dr. Steuer’s June 21 and July 12, 2007 reports stated that he administered left L5S1 epidural steroid injections. He did not address the causal relationship between the diagnosed
conditions and appellant’s accepted employment injury. The Board finds that his reports are
insufficient to overcome the weight accorded to Dr. Huff’s medical opinion.

2

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

3

See Ann C. Leanza, 48 ECAB 115 (1996).

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LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.4 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.5 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.6 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 2
Dr. Steuer’s May 9 and August 1, 2007 reports stated that appellant sustained lumbar
degenerative disc disease, low back pain, depression, lumbalgia, lumbar sprain/strain, left L4 and
S1 radiculitis, lumbar spondylosis without myelopathy, mononeuritis of the left lower extremity,
myofascial syndrome and sleep disorder. He also opined that appellant remained at low risk for
opioid abuse. Dr. Steuer’s August 22, 2006 and April 19, 2007 reports stated that he performed
a L3-4, L4-5 and L5-S1 steroid epidural injection and discography. He did not address whether
appellant had any continuing residuals or disability causally related to her accepted employment
injury, December 23, 2004. The Board finds that Dr. Steuer’s reports are insufficient to establish
appellant’s burden of proof.
With regard to the undated and unsigned report provided drug screening test results, the
Board has held that an unsigned report with no adequate indication that it was signed by a
physician is not considered probative medical evidence.8 This report lacks probative medical
value because it was unsigned, did not provide a history of injury, and did not provide a medical
opinion addressing whether appellant had any continuing residuals or disability causally related
to her accepted employment injury.

4

See Manuel Gill, 52 ECAB 282 (2001).

5

Id.

6

Elizabeth Stanislav, 49 ECAB 540 (1998).

7

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

8

See R.M., 59 ECAB __ (Docket No. 08-734, issued September 5, 2008) (the Board has found that reports
lacking proper identification, such as unsigned treatment notes, do not constitute probative medical evidence);
Richard Williams, 55 ECAB 343 (2004) (medical reports lacking proper identification cannot be considered as
probative evidence in support of a claim).

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The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals or disability on or after July 27, 2007 were
causally related to her employment-related lumbosacral sprain/strain.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.9
Section 10.615 of the federal regulations implementing this section of the Act provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.10 The
Office’s regulations provide that the request must be sent within 30 days of the date of the
decision, for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.11
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,12 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.13 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.14
ANALYSIS -- ISSUE 3
Appellant’s request for an oral hearing dated May 29, 2008 was denied on the grounds
that she had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a) of the Act.15
The Board finds that her request for an oral hearing was made after the Office issued its
November 27, 2007 decision on her request for reconsideration made pursuant to
5 U.S.C. § 8128. Therefore, the Branch of Hearings and Review correctly found that appellant
was not entitled to an oral hearing before an Office hearing representative as a matter of right as
she had previously requested reconsideration.
9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Id. at § 10.616(a).

12

5 U.S.C. §§ 8101-8193.

13

Marilyn F. Wilson, 52 ECAB 347 (2001).

14

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (June 1997).
15

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after the Office issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an Office hearing representative as a matter of right).

6

In its July 11, 2008 decision, the Branch of Hearings and Review acknowledged that
although there was no entitlement to an oral hearing, it could allow such an oral hearing within
its discretion. An abuse of discretion is generally shown through proof of manifest error or a
clearly unreasonable exercise of judgment, neither of which is present in this case.16 The Branch
of Hearings and Review properly exercised its discretion by indicating that it had also denied
appellant’s hearing request on the basis that the case could be equally well addressed by
requesting reconsideration and submitting additional evidence not previously considered which
established that she continued to suffer residuals of her accepted employment-related injury.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective July 27, 2007 on the grounds that she no longer had any residuals
or disability causally related to her accepted employment-related injury. The Board further finds
that appellant failed to establish that she had any continuing employment-related residuals or
disability after July 27, 2007. Lastly, the Board finds that the Branch of Hearings and Review
properly denied appellant’s request for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1) as she
had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2008 and November 27, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 7, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
16

See Lon E. Grinage, 57 ECAB 177 (2005).

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL
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WEAPONS STATION, Colts Neck, NJ, Employer )
___________________________________________ )
T.B., Appellant

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

Docket No. 07-2325
Issued: May 12, 2008

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 September 12, 2007 appellant filed a timely appeal from a March 21, 2007 Office of
Workers’ Compensation Programs’ hearing representative decision which affirmed a
September 15, 2006 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a six percent permanent impairment of his
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On July 19, 1990 appellant, then a 46-year-old warehouse worker, filed a traumatic injury
claim alleging that, on July 17, 1990, he pulled a muscle in his right shoulder in the performance

of duty.1 On August 15, 1990 the Office accepted his claim for strained right shoulder.
Appellant received appropriate compensation benefits.
On March 5, 2003 Dr. David Weiss, an osteopath and treating physician, noted
appellant’s history of injury and rated his permanent impairment under the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A.,
Guides). Regarding appellant’s right arm, he provided range of motion measurements.
Dr. Weiss noted that appellant had forward elevation of 160/180 degrees and referred to Figure
16-40 and indicated that, for range of motion deficit and right shoulder flexion, appellant had one
percent impairment.2 He also advised that appellant had abduction of 140/180 degrees and
referred to Figure 16-43 to determine appellant’s abduction. Dr. Weiss opined that he was
entitled to two percent impairment.3 He added these values to determine that appellant had a
three percent impairment of the right arm. Dr. Weiss also indicated that appellant had a painrelated impairment of three percent pursuant to Figure 18-1.4 He combined the values for range
of motion and pain and opined that appellant was entitled to an impairment of six percent for the
right arm. Dr. Weiss stated that appellant reached maximum medical improvement on
March 5, 2003. On April 30, 2003 appellant claimed a schedule award.
By decision dated March 8, 2005, the Office denied appellant’s claim for a schedule
award. On March 14, 2005 appellant’s representative requested a hearing.
On December 2, 2005 the Office hearing representative found that the case was not in
posture as Dr. Weiss’ report was sufficient to warrant further development of the record. He set
aside the March 8, 2005 decision and remanded the case for referral of appellant to a second
opinion examination to determine the extent of permanent impairment.
On February 7, 2006 the Office referred appellant to Dr. Bryant Bloss, a Board-certified
orthopedic surgeon. In a March 2, 2006 report, Dr. Bloss noted appellant’s history of injury and
treatment. He noted that appellant had 70 degrees of internal rotation, which was equal to one
percent impairment according to Figure 16-46.5 For external rotation, Dr. Bloss noted that
appellant had 30 degrees and one percent impairment according to Figure 16-46.6 Regarding
forward elevation, he determined that 160 degrees of forward elevation was equal to one percent
according to Figure 16-40.7 Regarding backward elevation, or extension, Dr. Bloss noted that
appellant had 40 degrees or one percent impairment.8 He noted that appellant had 165 degrees of
1

The record reflects that appellant also has an accepted claim for a right knee contusion on December 27, 1990.

2

A.M.A., Guides 476.

3

Id. at 477.

4

Id. at 574.

5

Id. at 479.

6

Id.

7

Id. at 476.

8

Id.

2

abduction and 35 degrees of adduction equating to impairments of one percent each.9 Dr. Bloss
determined that appellant had a total six percent impairment based on loss of shoulder motion.
He advised that appellant had additional impairment for loss of function due to weakness,
atrophy, pain and loss of sensation, which he estimated at 19 percent. Dr. Bloss explained that
he obtained this value from the 15 percent to the upper extremity of the glenohumeral joint and 4
percent for the acromioclavicular (AC) joint according to Figure 16-18 due to preexisting
osteoarthritis which reduced this value by 50 percent.10 He recommended an impairment rating
of 25 percent of the right arm.
In a March 14, 2006 report, an Office medical adviser opined that appellant only had
three percent impairment to the right upper extremity. On March 16, 2006 the Office medical
adviser noted that Dr. Bloss utilized the A.M.A., Guides properly when he calculated impairment
based on loss of range of motion and determined that appellant had six percent impairment of the
upper extremity. However, he explained that the 19 percent impairment rating that Dr. Bloss
provided for weakness, atrophy, pain and loss of sensation was not made in accordance with the
section 16.8a.11
On April 25, 2006 the claims examiner requested clarification from the Office medical
adviser. He responded that “decreased strength” could “not be rated in the presence of decreased
motion, pain and deformities” pursuant to section 16.8a.12
By letter dated May 18, 2006, the Office requested that Dr. Bloss review the Office
medical adviser’s April 25, 2006 report and provide a response.
In a June 14, 2006 report, Dr. Bloss reviewed the Office medical adviser’s report and
explained that he was in partial agreement. He noted that appellant had six percent impairment
of the upper extremity due to loss of range of motion. Dr. Bloss added that appellant had
significant muscle atrophy which was “far in excess of what one would expect with the
pathology of restricted range of motion.” He indicated that he would reduce the 19 percent
impairment previously noted to 10 percent. Dr. Bloss combined the 10 percent with the 6
percent and opined that appellant had 15 percent impairment of the right arm.
On June 29, 2006 the Office referred appellant along with a statement of accepted facts,
and the medical record to Dr. Charles A. Barlow, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve a conflict in opinion between the Office medical adviser
and Dr. Weiss regarding the extent of appellant’s impairment.
In a July 20, 2006 report, Dr. Barlow noted appellant’s history of injury and treatment.
He conducted a physical examination and referred to Figures 16-43, 16-46 and 16-10.13
9

Id. at 477.

10

Id. at 499.

11

Id. at 508.

12

Id.

13

Id. at 477, 479, 476.

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Dr. Barlow indicated that, for abduction, appellant had 160 degrees which resulted in one percent
impairment. He noted that appellant had adduction of 40 degrees, which would warrant 1
percent impairment, external rotation of 30 degrees for 1 percent impairment, internal rotation of
70 degrees for 1 percent impairment, flexion of 160 degrees for 1 percent impairment and
extension of 40 degrees for 1 percent impairment. Dr. Barlow added the values for loss of range
of motion to find six percent impairment of the right upper extremity. Regarding additional
impairment for loss of strength, he referred to section 16.8a and advised that “in a rare case, if
the examiner thinks that a strength loss is due to a factor that has not been adequately considered
by other methods, the strength loss may be rated separately.”14 Dr. Barlow noted an example of
strength loss due to a severe muscle tear and noted that it was only “if based on unrelated
etiologic or patho mechanical causes.” He opined that “Otherwise, the impairment ratings based
on objective anatomic findings takes precedence.” Dr. Barlow concluded that appellant was not
entitled to an additional 10 percent impairment, as provided by Dr. Bloss, for strength loss. He
also noted that maximum medical improvement was reached on May 5, 2003.
On September 15, 2006 the Office granted appellant a schedule award for six percent
impairment of the right upper extremity. The award covered a period of 18.72 weeks from
March 5 through July 14, 2003.
On September 21, 2006 appellant’s representative requested a hearing, which was held on
January 24, 2007.
By decision dated March 21, 2007, the Office hearing representative affirmed the
September 15, 2006 decision. The Office hearing representative found that Dr. Barlow was a
second opinion physician, as the conflict arose between the Office medical adviser and the
Office second opinion physician.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act15 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.16 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.17 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.18

14

Id. at 508.

15

5 U.S.C. §§ 8101-8193.

16

5 U.S.C. § 8107.

17

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

18

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

4

ANALYSIS
The Office accepted that appellant sustained a strained right shoulder in the performance
of duty.
In support of his claim for a schedule award, appellant submitted a March 5, 2003 report
from Dr. Weiss, his treating physician, who utilized the A.M.A., Guides and provided range of
motion measurements for the right upper extremity. The Board finds that he correctly referred to
Figure 16-40 and determined that forward elevation of 160/180 degrees would result in a one
percent impairment for right shoulder flexion.19 Dr. Weiss also referred to Figure 16-43 to
determine appellant’s abduction and determined that abduction of 140/180 degrees resulted in a
two percent impairment.20 The Board also notes that he correctly added these shoulder range of
motion values as the A.M.A., Guides provide that impairment due to abnormal shoulder motion
is calculated by adding the impairment values contributed by each motion unit.21 However, the
Board finds that Dr. Weiss did not explain why appellant was entitled to a pain-related
impairment of three percent pursuant to Figure 18-1.22 The Board notes that Chapter 18 of the
A.M.A., Guides allows for an impairment percentage to be increased by up to three percent for
pain and provides a qualitative method for evaluating impairment due to chronic pain. However,
Chapter 18 should not be used to rate pain-related impairments for any condition that can be
adequately rated on the basis of the body and organ impairment systems given in other chapters
of the A.M.A., Guides. Office procedures state that a separate pain calculation under Chapter 18
is not to be used in combination with other methods to measure impairment due to sensory pain
as outlined in Chapter 13, 16 and 17 of the fifth edition of the A.M.A., Guides.23 Thus,
Dr. Weiss’ report only supports a three percent impairment of the upper extremity.
In a March 2, 2006 report, Dr. Bloss noted appellant’s history and utilized the A.M.A.,
Guides. The Board notes that he correctly determined that appellant was entitled to a six percent
impairment based on loss of shoulder motion. Dr. Bloss provided range of motion findings
which included 70 degrees for internal rotation and 30 degrees for external rotation or an
impairment of one percent for each according to Figure 16-46.24 Regarding forward elevation,
he determined that appellant had 160 degrees of forward elevation and 40 degrees of backward
elevation, which correlated to one percent impairment for each according to Figure 16-40.25
Regarding abduction, Dr. Bloss determined that appellant had 165 degrees of abduction and 35
19

A.M.A., Guides 476.

20

Id. at 477.

21

See id. at 474.

22

Id. at 574.

23

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at section 18.3(b); T.H., 58 ECAB ____ (Docket No. 06-1500, issued
January 31, 2007).
24

A.M.A., Guides 479.

25

Id. at 476.

5

degrees of adduction equating to impairments of one percent each.26 He added these values and
determined that appellant was entitled to a six percent impairment based on loss of shoulder
motion. The Board finds that Dr. Bloss correctly applied the A.M.A., Guides for appellant’s
range of motion. He also opined that appellant was entitled to an additional impairment for loss
of function due to weakness, atrophy, pain and loss of sensation, which he estimated at 19
percent pursuant to Table 16-18 of the A.M.A., Guides.27 However, Dr. Bloss’ explanation does
not comport with the A.M.A., Guides. Chapter 16.7 of the A.M.A., Guides, “Impairment of the
Upper Extremities Due to Other Disorders,” addresses use of Table 16-18 and provides that “the
criteria described in this section should be used only when the other criteria have not adequately
encompassed the extent of the impairments.”28 While Dr. Bloss stated that he used Table 16-18
because appellant had significant muscle atrophy “far in excess of what one would expect with
the pathology of restricted range of motion,” this does not adequately explain why other criteria
in the A.M.A., Guides do not adequately address the extent of appellant’s impairment. For
example, Dr. Bloss did not explain why other provisions in Chapter 16 of the A.M.A., Guides for
rating arm impairment due to weakness, atrophy, pain and loss of sensation would not adequately
encompass appellant’s impairment.29
The Office subsequently determined that a conflict had occurred between Dr. Weiss and
the Office medical adviser and referred appellant to Dr. Barlow. However, as found by the
Office hearing representative, there was no conflict. The Board notes that Dr. Weiss’ report, as
noted, did not conform to the A.M.A., Guides with regard to his assignment of impairment for
pain under Chapter 18 and that the medical adviser otherwise agreed with Dr. Weiss’ impairment
finding. Thus, the referral to Dr. Barlow was for a second opinion evaluation, and not to resolve
a conflict.
In his July 20, 2006 report, Dr. Barlow utilized the A.M.A., Guides to determine the
impairment to appellant’s right shoulder. Applying Figures 16-40, 16-43 and 16-46 of A.M.A.,
Guides30 Dr. Barlow assigned 1 percent impairment for 160 degrees of abduction, 1 percent for
40 degrees of adduction, 1 percent for 30 degrees of external rotation, 1 percent for 70 degrees of
internal rotation, 1 percent for 160 degrees of flexion, and 1 percent for 40 degrees of extension.
The Board notes these findings are accurate except that, for adduction, Figure 16-43 provides for
no impairment for 40 degrees of adduction. Consequently, the Board finds that Dr. Barlow’s
report supports that appellant has five percent impairment for loss of motion in his right
shoulder. Dr. Barlow further opined that loss of strength was not ratable under the A.M.A.,
Guides.

26

Id. at 477.

27

Id. at 499.

28

Id.

29

See, e.g., id. at Table 16-10 (sensory deficit or pain), 16-11 (motor and loss of power deficit).

30

A.M.A., Guides 476, 477, 479.

6

Accordingly, the Board finds that the medical evidence establishes that appellant has no
more than six percent permanent impairment of the right arm for which he received a schedule
award.
CONCLUSION
The Board finds that appellant has no more than a six percent permanent impairment of
his right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2007 is affirmed.
Issued: May 12, 2008
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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 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 case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

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

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

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

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

6

rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF PRISONS, San Juan, PR, Employer )
__________________________________________ )
J.O., Appellant

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

Docket No. 18-0584
Issued: October 17, 2018

Case Submitted on the Record

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

JURISDICTION
On January 25, 2018 appellant filed a timely appeal from a January 10, 2018 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has established more than one percent permanent
impairment of his bilateral upper extremities and one percent permanent impairment of his bilateral
lower extremities for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts as presented in the Board’s
prior decision are incorporated herein by reference. The relevant facts are as follows.
On September 28, 2001 appellant, then a 33-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained injuries on August 25, 2001 when a heavy jug
fell on top of him while in the performance of duty. On January 28, 2002 OWCP accepted the
claim for low back sprain. On August 29, 2003 it expanded acceptance of the claim to include
cervical radiculopathy, right C6, and bilateral C8-T11. OWCP paid appellant wage-loss
compensation and medical benefits on the periodic rolls as of November 4, 2003. Appellant
elected Office of Personnel Management (OPM) retirement benefits, effective April 2, 2014.
The record contains an April 13, 2014 cervical electromyogram (EMG) and nerve
conduction velocity (NCV) study for the upper extremities which demonstrated bilateral carpal
tunnel syndrome and suspected bilateral C6 radiculitis. An electrodiagnostic study for the lower
extremities dated December 16, 2014 demonstrated L5 radiculopathy.
In a report dated May 3, 2015, Dr. Tomas Hernández Ortiz, a neurologist, provided a
history and results of an April 28, 2015 examination. He diagnosed work-related cervical
radiculopathies bilaterally at C5-6 and C8-T11, L1-2 protruded disc, and bilateral L5-S1
radiculopathies. Dr. Hernández Ortiz also diagnosed nonemployment-related carpal tunnel
syndrome and right median nerve release. On physical examination he found adequate muscle
tone, and reported moderate loss of fingering and grip strength worse on the right following carpal
tunnel release. Dr. Hernández Ortiz reported no sensory deficit in any of the modalities tested.
Appellant’s reflexes were equal bilaterally. Dr. Hernández Ortiz provided a whole person
permanent impairment rating of 16 percent under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 using a
“Spine and Pelvis impairment calculation methodology” for the cervical and lumbar spine.
OWCP requested that district medical adviser (DMA), Dr. Henry Magliato, a Boardcertified orthopedic surgeon, review the report from Dr. Hernández Ortiz and provide an opinion
as to the degree of appellant’s permanent impairment. In a report dated June 16, 2015,
Dr. Magliato opined that the report of Dr. Hernández Ortiz was of no value in determining
permanent impairment under the A.M.A., Guides. He indicated that Dr. Hernández Ortiz had used
diagnostic grids for the spine and whole person impairment, which were not appropriate under
FECA. Dr. Magliato recommended a referral to a second opinion physician.
On July 20, 2015 OWCP received a revised report dated July 11, 2015 from Dr. Hernández
Ortiz. The examination results from April 28, 2015 were repeated, however, Dr. Hernández Ortiz
provided an opinion as to permanent impairment based on The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment using July/August 2009 (hereinafter The Guides Newsletter). For
the upper extremities, he opined that there was one percent permanent impairment for sensory
2

Docket No. 17-1156 (issued September 13, 2017); Docket No. 16-0905 (issued January 4, 2017).

3

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

2

deficit and five percent permanent impairment for motor deficit of C6 root and T1 nerve roots.
Dr. Hernández Ortiz indicated that although only a right C6 root lesion had been accepted, it was
appropriate to provide a bilateral upper extremity impairment rating. He found 12 percent
permanent impairment for the bilateral C8-TI root lesions for a total of 18 percent permanent
impairment for the upper extremities nerve involvement. As to the lower extremities,
Dr. Hernández Ortiz opined that appellant had one percent permanent impairment due to sensory
deficit and three percent permanent impairment due to motor deficit to each lower extremity.
OWCP referred appellant for a second opinion examination by Dr. Fernando Rojas, an
orthopedic surgeon. In a report dated September 22, 2015, Dr. Rojas provided a history and results
from his August 28, 2015 examination. He reported normal strength and function without sensory
deficits in the upper extremities, but with appellant’s symptoms of paresthesias. Dr. Rojas noted
loss of deep tendon reflexes in the left lower extremity only with no motor or sensory deficits, but
radicular pain. He reviewed Dr. Hernández Ortiz’ report and noted that he based his impairment
rating on decreased range of motion and localized paraspinal spasms while the neurological
findings were normal. Dr. Rojas opined that appellant had two percent permanent impairment of
right and left upper extremities based on carpal tunnel syndrome which was not employment
related, and no percentage of permanent impairment based on The Guides Newsletter. In applying
The Guides Newsletter he assigned zeros for all diagnosis classes and grade modifiers.
By report dated October 27, 2015, DMA Dr. Magliato found that the second opinion
physician’s report was confusing and of “no value.” He indicated that Dr. Rojas had provided
vague calculations that were difficult to understand, and he noted that carpal tunnel syndrome had
not been accepted. Dr. Magliato recommended referral to another second opinion physician. In a
memorandum of telephone call (Form CA-110) dated November 24, 2015, OWCP advised
appellant that he would be receiving another referral for a second opinion examination.
The record contains a letter dated November 24, 2015 from the second opinion referral
service, advising that Dr. Rojas was the only orthopedic surgeon on the panel who performed
federal workers’ compensation examinations. OWCP sent a letter dated November 25, 2015 to
Dr. Hernández Ortiz, requesting an additional report regarding permanent impairment. It referred
to The Guides Newsletter and noted that whole person impairments were not appropriate under
FECA.
In a report dated December 12, 2015, Dr. Hernández Ortiz reported that he had already
answered OWCP’s questions in his July 11, 2015 report. OWCP referred the evidence to another
DMA, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon for review.
In a report dated January 8, 2016, Dr. Harris opined that appellant had one percent
permanent impairment of each of his upper and lower extremities. He indicated that, for the upper
extremities, there was one percent permanent impairment for C6 nerve root “mild pain/impaired
sensation.” In discussing this impairment, Dr. Harris referred to the May 3, 2015 report from
Dr. Hernández Ortiz, and indicated that he had improperly used the diagnosis-based grids for the
spine. As to the lower extremities, he found that there was one percent permanent impairment for
L5 mild pain/impaired sensation. Dr. Harris did not discuss motor deficit. He reported that there
was no impairment for C8 and T1 radiculopathy, as the attending physician did not demonstrate

3

any neurological deficit consistent with radiculopathy. Dr. Harris indicated that electrodiagnostic
studies were consistent with C6 and L5 radiculopathy.
By decision dated January 19, 2016, OWCP issued appellant a schedule award for one
percent permanent impairment of each of his upper and lower extremities. The period of the award
was for 12 weeks commencing April 28, 2015.
On March 25, 2016 appellant appealed to the Board. By decision dated January 4, 2017,
the Board found that Dr. Hernández Ortiz had not established C8 and T1 nerve root permanent
impairments. The Board further found that Dr. Harris, serving as a DMA, had not explained why
motor deficit ratings for the C6 and L5 nerve roots were inappropriate. The case was therefore
remanded for a clarifying report on this issue from Dr. Harris.4
In a January 23, 2017 memorandum, OWCP requested that Dr. Harris provide a
supplemental report in his role as DMA. The memorandum indicated, inter alia, that no
explanation had been provided as to why a motor deficit rating under The Guides Newsletter was
inappropriate for the C6 and L5 nerve roots.
In a report dated January 25, 2017, Dr. Harris reviewed the July 11, 2015 report of
Dr. Hernández Ortiz and found that his examination did not demonstrate neurological deficit in
either upper or lower extremities, but reported 18 percent permanent bilateral upper extremity
impairment due to cervical radiculopathy. He then reviewed Dr. Rojas’ September 22, 2015 report
and found that this examination did not demonstrate any neurologic deficit in either the upper or
lower extremities. Dr. Harris opined that appellant had no permanent impairment of any extremity.
By decision dated February 10, 2017, OWCP found that appellant was not entitled to an
additional schedule award. It found that the January 25, 2017 report of Dr. Harris represented the
weight of the medical evidence.
On May 4, 2017 appellant appealed to the Board. By decision dated September 13, 2017,
the Board set aside the February 10, 2017 decision and remanded the case for further development.
The Board found that Dr. Harris did not sufficiently explain in his January 25, 2017 report why
his impairment rating changed from the one percent permanent impairment of each extremity
found in his January 8, 2017 report. Furthermore, his January 25, 2017 report lacked an
explanation of how the A.M.A., Guides and/or The Guides Newsletter were used to calculate his
finding of zero percent permanent impairment. The Board remanded the case for further
development to properly resolve the issue of increased permanent impairment.
On remand, OWCP again referred the case record to Dr. Harris, as a DMA, along with the
specific questions raised by the Board in its September 13, 2017 decision. Dr. Harris responded
on October 18, 2017 and identified appellant’s work-related conditions. He opined that appellant
had no permanent impairment based on The Guides Newsletter for rating spinal nerve impairment.
Dr. Harris further noted that spinal nerve impairment did not include range of motion ratings. He
reviewed Dr. Hernández Ortiz’ July 21, 2015 report and found no report of abnormal sensation in
either the upper or lower extremities. Dr. Harris also noted that Dr. Hernández Ortiz did not
4

Docket No. 17-1156 (issued September 13, 2017).

4

document specific muscle weakness or motor deficits consistent with cervical radiculopathy and
that Dr. Hernández Ortiz did not provide an explanation for the loss of grip strength or fingering
strength. He then reported that the methodology of The Guides Newsletter was based on the
description of sensory and motor deficits and required the presence of these impairments for
permanent impairment ratings. Dr. Harris found that appellant did not have a neurologic deficit
consistent with radiculopathy in the upper or lower extremities.
By decision dated January 10, 2018, OWCP denied appellant’s claim for additional
schedule award compensation, finding that Dr. Harris’ report established that appellant had no
permanent impairment in his upper or lower extremities due to his accepted employment injuries.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of loss of use, of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides, published in 2009.7 The Board has approved the use by OWCP of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.8 It is well established that in determining the amount of a schedule award for a member
of the body that sustained an employment-related impairment, preexisting impairments are to be
included.9
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.10 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.11 The sixth edition of the A.M.A., Guides provides a specific

5

Supra note 1.

6

20 C.F.R. § 10.404.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

P.R., id; Carol A. Smart, 57 ECAB 340 (2006).

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see D.B., Docket No. 17-0930 (issued July 11, 2018); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).
11

Supra note 7 at Chapter 2.808.5c(3) (March 2017).

5

methodology for rating spinal nerve extremity impairment.12 It was designed for situations where
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.13
ANALYSIS
The Board finds that appellant has not established more than one percent permanent
impairment of his bilateral upper and lower extremities.
OWCP accepted that appellant sustained low back sprain and cervical radiculopathy, right
C6 and bilateral C8-T11, and awarded schedule award compensation for one percent permanent
impairment of each of his upper and lower extremities.14
Appellant submitted reports from Dr. Hernández Ortiz in support of his claim.
Dr. Hernández Ortiz opined that appellant had sustained one percent permanent impairment for
sensory deficit and five percent permanent impairment for motor deficit of C6 root and T1 nerve
roots. He indicated that, although only a right C6 root lesion had been accepted, it was appropriate
to provide a bilateral upper extremity impairment rating. Dr. Hernández Ortiz found 12 percent
permanent impairment for the bilateral C8-TI root lesions for a total of 18 percent permanent
impairment for the upper extremities nerve involvement.15
As to the lower extremities, Dr. Hernández Ortiz opined that there was one percent
permanent impairment for sensory deficit and three percent permanent impairment for motor
deficit to each lower extremity. The Board finds that his reports failed to provide the medical
findings on which he based his impairment ratings or clearly explain how he calculated appellant’s
impairment under The Guides Newsletter. The Board has held that when an attending physician
fails to provide an estimate of impairment conforming to the A.M.A., Guides or does not discuss
how he or she arrives at the degree of impairment based on physical findings, the opinion is of
diminished probative value in establishing the degree of impairment and OWCP may rely on the
opinion of its medical adviser to apply the A.M.A., Guides to the findings reported by the attending
physician.16 Thus, Dr. Hernández Ortiz’ reports are of diminished probative value regarding

12
The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
13

Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

14

Findings made in prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA. S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket No. 16-1191 (issued November 25, 2016).
15

In the January 4, 2017 decision, the Board found that Dr. Hernández Ortiz had not established C8 and T1 nerve
root permanent impairments.
16
See D.B., supra note 10; L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB
552 (1997).

6

appellant’s upper and lower extremity permanent impairment under the sixth edition of the
A.M.A., Guides.17
In accordance with the Board’s prior decisions, OWCP properly referred the evidence of
record to a DMA, Dr. Harris. In his October 17, 2017 report, Dr. Harris found that Dr. Hernández
Ortiz’ impairment rating was unacceptable for schedule award purposes because he failed to
provide physical findings in support of his impairment ratings and failed to correlate these findings
with The Guides Newsletter.
The Board finds that OWCP’s DMA, Dr. Harris, applied the appropriate tables and grading
schemes of The Guides Newsletter to Dr. Hernández Ortiz’ clinical findings. He concluded that
appellant had no neurological impairment of the extremities, warranting a schedule award under
The Guides Newsletter for his accepted cervical and lumbar spine conditions. The DMA’s
calculations were mathematically accurate. There is no medical evidence of record utilizing the
appropriate tables of The Guides Newsletter demonstrating a greater percentage of permanent
impairment. Therefore, OWCP properly relied on the DMA’s assessment of a zero percent
permanent impairment of the bilateral upper and lower extremities in denying additional schedule
award compensation for the bilateral upper and lower extremities.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater permanent impairment of his upper or
lower extremities than that previously awarded. Accordingly, appellant has not established that
he is entitled to additional schedule award compensation.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than one percent permanent
impairment of his bilateral upper extremities and one percent permanent impairment of his bilateral
lower extremities for which he previously received schedule award compensation.

17
See D.B., supra note 10; Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little
probative value where the A.M.A., Guides are not properly followed).

7

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-948
Issued: October 2, 2008

Case Submitted on the Record

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

JURISDICTION
On February 7, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated November 28, 2007.
Under 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 sustained a recurrence of his accepted right shoulder
condition as of July 18, 2006.
FACTUAL HISTORY
On January 20, 2006 appellant, a 70-year-old custodial laborer, experienced a pull in his
right shoulder while dumping garbage into a trash compacter. He filed a claim for benefits on
January 21, 2006, which the Office accepted for sprain/strain of the right arm/shoulder.
In a May 3, 2006 Form CA-17 duty status report, Dr. Mark Kramer, Board-certified in
physical and rehabilitative medicine and appellant’s treating physician, released appellant to

return to work with restrictions of intermittent lifting with the right arm not exceeding 70
pounds.
In a May 5, 2006 letter to the employing establishment, appellant stated:
“I asked the doctor to let me back to work (Big Mistake). I’ve not known this
kind of pain since the V.A. hospital. But my family is destitute we were and are
living off of handouts.... I do not know how long I will be able to work. But I
need to know what to do now -- and what to do if I just can’t keep it up….”
On May 5, 2006 appellant accepted a modified custodial position from the employing
establishment tailored to the restrictions indicated in Dr. Kramer’s May 3, 2007 report. The job
allowed him to resume his former bidded assignment as a custodial laborer with restrictions of
no overhead lifting and no lifting above 70 pounds with the right arm.
In a July 18, 2006 report, Dr. Kramer stated that appellant complained of severe rightsided neck and shoulder pain. He noted that appellant wanted to have surgery to ameliorate the
condition.
On July 27 and August 12, 2006 appellant filed CA-7 forms claiming compensation for
leave without pay from July 18 to August 25, 2006. He stated on the July 27, 2007 form that he
had stopped working light duty “for surgery.”
In reports dated September 5 and October 3, 2006, Dr. Kramer noted continued
complaints of right shoulder pain with limited range of motion in the shoulder. He advised that
appellant was permanently disabled from his usual job.
On September 22, 2006 in order to determine appellant’s current condition, the Office
referred appellant to Dr. Andrew Bazos, a specialist in orthopedic surgery, for a second opinion
examination. In a report dated October 12, 2006, Dr. Bazos noted that appellant had experienced
chronic right shoulder tendinitis condition prior to his January 20, 2006 work injury, which
aggravated his condition. He related that appellant underwent a magnetic resonance imaging
(MRI) scan on February 16, 2006, which indicated a rotator cuff tear; specifically, a compromise
of the subacromial space secondary to severe acromioclavicular joint arthropathic changes, in
addition to a chronic, complete full thickness tear of the supraspinatus tendon. Dr. Bazos also
noted that appellant had returned to light duty from May 4 to July 18, 2006, when he claimed a
recurrence of his work-related right shoulder sprain. He opined that appellant had a mild
orthopedic disability noted on physical examination, but was capable of working light duty at his
usual job with the restriction of no overhead lifting with his right shoulder. Dr. Bazos concluded
that appellant had a resolved right shoulder sprain.
In reports dated September 5 and October 3, 2006, Dr. Kramer noted continued
complaints of right shoulder pain with limited range of motion in the shoulder. He advised that
appellant was permanently disabled from his usual job.
By letter dated October 31, 2006, the Office requested additional information from
appellant in support of his recurrence claim. It requested evidence from appellant showing that
there was a change in the nature and extent of his work-related condition and that there was
2

change in the nature and extent of his light-duty requirements. The Office also requested a
medical opinion from appellant’s treating physician supporting his claim that a worsening in his
work-related condition had occurred.
On November 13, 2006 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability as of July 18, 2006 causally related to his accepted right
shoulder condition. On the form, the employing establishment stated that it had accommodated
appellant’s work restrictions with a job that required no use of his right arm at work, no reaching
above the shoulder, no kneeling and no climbing, no lifting more than two pounds, in a limitedduty position.
In a November 21, 2006 report, Dr. Kramer related that appellant had rejected his
recommendation for ameliorative right shoulder surgery because the prognosis for full recovery
was less than 60 percent. He stated:
“[Appellant] is incapable of returning to work because he is right-handed, unable
to utilize his right arm to lift, carry, or be elevated above the shoulder level.
Weight restriction for the right upper extremity is less than five pounds. In
addition to which, his generalized medical condition which includes advanced
osteoarthritis to the cervical and lumbar spines, which is a separate and unrelated
issue to this, is causing him to have some incapacitating pain. So in total,
[appellant] is incapable of returning to work and has a permanent total disability.”
In a report dated December 4, 2006, Dr. Bazos asserted:
“As stated previously, [appellant] has a chronic RCT [rotator cuff tear] that
preceded this January 20, 2006 injury. The January 20, 2006 incident temporarily
aggravated the preexisting condition by stretching surrounding tissue, self-limited.
The January 20, 2006 injury is now resolved. Work restrictions are due to
[appellant’s] preexisting injury.”
In a statement received by the Office on December 13, 2006, appellant asserted that it
was his responsibility in his light-duty job to clean, dust and vacuum all cubicles; clean all
bathrooms and bathroom walls; empty and carry off all the garbage to the compactor room; mop
and use a treated mop in the hallways; wash all the hallway walls; and set up the conference
rooms, washing the walls. He stated:
“I was damaging my right shoulder and not helping my left…. I was constantly in
pain....”
***
“I also work out front of 2 South the flag is also my responsibility -- there is no
duty where you do not use your arms and hands.”
By decision dated December 19, 2006, the Office denied appellant compensation for a
recurrence of his accepted right shoulder condition. The Office found that appellant failed to

3

meet his burden to establish that the May 2006 job offer exceeded his work restrictions or that on
July 18, 2006 appellant had an objective worsening of his work-related right shoulder condition.
In a report dated December 19, 2006, Dr. Kramer advised that appellant continued to
experience pain in his right shoulder and that his findings on examination were unchanged.
In an August 2, 2007 report, Dr. Kramer related appellant’s history of injury and
described the evolution of appellant’s right shoulder condition. He stated:
“[Appellant] was first evaluated by me on March 7, 2006 ... subsequent to [an]
injury sustained in an industrial accident which occurred on January 20, 2006.
[He] had advised me on the date that[,] while lifting an object at work, he began
to experience excruciating pain in his right shoulder and he was unable to elevate
his arm subsequent to that pain. [Appellant] denied any past history of right
shoulder problems and the pain remains unbearable and he had diminished
mobility in that shoulder. Additionally, he has tingling and numbness in his right
upper extremity, to his right and discomfort in his neck. I continued to evaluate
[appellant] and on that first date, he provided me with an MRI [scan] which
revealed a torn rotator cuff with 5 [to] 6 mm [millimeters] of retraction and a
possible atrophy. I sent him for x-ray evaluation. [Appellant] had an x-ray of his
right shoulder on May 16 which revealed minor osteoarthritic changes. I
continued to counsel him as to the severity of this injury.... [Appellant] continues
to have limited mobility of his shoulder and inability to elevate his right arm….
“I advised him that surgical intervention at that point in time would have only
approximately 60 percent chance of success reestablishing and completely
correcting the rotator cuff and in all likelihood he would need a graft. For
financial reasons, [appellant] returned to work, with restriction. I saw him on
June 28, July 18, July 25, August 1 and September 5, 2006. In addition to pain in
his right shoulder and limited mobility of his right shoulder, [appellant] was
experiencing neck pain.... Eventually, as my records which I have previously
provided with you, he underwent arthroscopic surgery on April 9, 2007 and again
it revealed a massively torn rotator cuff which was not repairable…. As a direct
result of the accident on January 20, 2006, [appellant] sustained a massive rupture
of his right rotator cuff and a sprain of the cervical spine resulting in severe pain
in his neck and right shoulder and his inability to elevate his arm. He is unable to
lift more than three pounds with his right hand and he is unable to elevate his right
hand above the mid chest level and he is right-handed. Therefore, [appellant]
remains and is totally disabled as a direct result of the work-related accident of
January 20, 2006. Please note that he advised me when I first evaluated him that
he had no prior history of right shoulder pain, weakness, or lack of mobility.”
By letter dated August 22, 2007, appellant’s attorney requested reconsideration. Counsel
contended that there was a conflict in the medical evidence between Drs. Kramer and Bazos and
that the Office erred in failing to resolve the conflict by referring the case to a referee medical
examiner.

4

By decision dated November 28, 2007, an Office hearing representative affirmed a
December 19, 2006 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the light-duty requirements.1
ANALYSIS
In the instant case, appellant has not met his burden to provide a medical opinion
showing a change in the nature and extent of his injury-related condition. He has failed to
submit a rationalized, probative report which relates his condition or disability as of July 18,
2006 to his employment injury. For this reason, he has failed to establish his claim that he
sustained a recurrence of disability as a result of his accepted employment injury.
Appellant submitted Dr. Kramer’s periodic reports which opined that appellant was
totally disabled from work, including the November 21, 2006 report indicating that appellant
refused to have right shoulder surgery because it was not expected to produce a full recovery.
Dr. Kramer advised that appellant could not return to work because he is right-handed, was
unable to use his right arm to lift or carry, and could not elevate his right arm above shoulder
level. He also stated that appellant had “some incapacitating pain” caused by advanced
osteoarthritis of the cervical and lumbar spines. However, Dr. Kramer stated that these
conditions were separate and unrelated to appellant’s work-related shoulder condition. He did
not provide any rationalized, probative medical opinion sufficient to establish that appellant’s
claimed total disability as of May 4, 2006 was causally related to his accepted right shoulder
condition. Moreover, Dr. Bazos indicated in his October 2006 reports that appellant had
preexisting chronic right rotator cuff tendinitis which was temporarily aggravated by the
January 20, 2006 right shoulder sprain, and had since resolved. He noted on examination that
appellant had a mild orthopedic disability, but believed he was capable of working light duty at
his usual job with the restriction of no overhead lifting with his right shoulder. Thus, the weight
of the medical evidence indicated that there had been no change in the nature and extent of
appellant’s injury-related condition. In addition, appellant did not submit any evidence to show
that there was a change in the nature and extent of his work requirements. The Office therefore
properly found in its December 19, 2006 decision that appellant did not meet his burden to
establish a recurrence of disability as of May 4, 2006.
Following the December 19, 2006 decision, appellant submitted Dr. Kramer’s August 2,
2007 report. The report indicated that, when he first examined appellant in March 2006, a
February 2006 MRI scan indicated he had a severely torn right rotator cuff. Dr. Kramer stated
that appellant eventually underwent arthroscopic surgery for his right shoulder in April 2007,
1

Terry Hedman, 38 ECAB 222 (1986).

5

which he declined to undergo in 2006, which also revealed the rotator cuff tear. However, he
failed to provide a medical opinion which sufficiently described appellant’s light job duties or
explained the medical process through which such duties would have been competent to cause
the claimed recurrence of disability. Dr. Kramer’s reports do not constitute sufficient medical
evidence demonstrating a causal connection between appellant’s employment injury and his
alleged recurrence of disability. Causal relationship must be established by rationalized medical
opinion evidence. The reports submitted by appellant failed to provide an explanation in support
of his claim that he was totally disabled as of May 4, 2006. These reports did not establish a
worsening of appellant’s condition, and therefore do not constitute probative, rationalized
opinion evidence demonstrating that a change occurred in the nature and extent of the injuryrelated condition.2
In addition, the Board finds that the evidence fails to establish that there was a change in
the nature and extent of appellant’s limited-duty assignment such that he no longer was
physically able to perform the requirements of his light-duty job. The record indicates the
appellant returned to work for the employing establishment from May 4 to July 18, 2006 at a
modified custodial job with restrictions entailed by his work-related right shoulder condition.
While he continued to claim that the job forced him to exceed his work restrictions, thus
contributing to the aggravation of his right shoulder condition, the employing establishment
denied these assertions. Appellant failed to submit factual evidence supporting his claim that the
light-duty job exceeded his work restrictions and resulted in a recurrence of his work-related
disability.
Accordingly, as appellant has not submitted any factual or medical evidence supporting
his claim that he was totally disabled from performing his light-duty assignment as of July 18,
2006 as a result of his accepted right shoulder condition, he failed to meet his burden of proof.
Contrary to his argument, there is no conflict in medical opinion evidence requiring an impartial
medical evaluation. Appellant was not entitled to compensation based on a recurrence of his
employment-related disability. The Board will affirm the November 28, 2007 decision.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of July 18, 2006 causally related to his accepted
right shoulder condition.

2

William C. Thomas, 45 ECAB 591 (1994).

6

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7