United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Knoxville, TN,
)
Employer
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___________________________________________ )
E.H., Appellant

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

Docket No. 08-1862
Issued: July 8, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 23, 2008 appellant’s representative filed a timely appeal from the Office of
Workers’ Compensation Programs’ hearing representative decision dated May 22, 2008, which
affirmed the Office’s November 15, 2007 decision, terminating his compensation on the grounds
that he refused an offer of suitable work. 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 the Office properly terminated appellant’s compensation effective
November 24, 2007 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On June 14, 2001 appellant, then a 54-year-old mine safety and health inspector, filed a
traumatic injury claim alleging that on February 13, 2001 he had back pain while participating in

first aid training. He did not initially stop work.1 The Office accepted the claim for herniated
lumbar disc and radiculopathy dorsal/lumbosacral and laminectomy, discectomy and
decompression. It authorized surgery on August 2, 2001. Appellant returned to part-time
limited duty on August 9, 2005 and full-time limited duty on August 11, 2005. He stopped work
on April 6, 2006. The Office paid appellant appropriate compensation benefits.
In a report dated July 24, 2006, Dr. William Turney Williams, Board-certified in
anesthesiology and pain medicine, diagnosed, postlaminectomy syndrome following multilevel
lumbar decompression, chronic left lower extremity L5/S1 radiculopathy, left groin pain likely
referable to lower lumbar segment, depression and chronic pain syndrome. He opined that
appellant was unable to work. Dr. Williams indicated that appellant’s “general well being was
hurt by his return to work on an eight[-]hour basis in the manner previously pursued.” He
advised that appellant would be prone to an exacerbation of baseline discomfort at any time that
he would be required to remain in any position for a prolonged period of time. Dr. Williams
recommended implantation of a spinal cord stimulator. His physician assistant continued
submitting reports noting appellant’s status.
On January 23, 2007 the Office referred appellant to Dr. Richard T. Sheridan, a Boardcertified orthopedic surgeon, for a second opinion. In a February 28, 2007 report, Dr. Sheridan
noted appellant’s history of injury and treatment. He examined appellant and indicated that there
were no objective findings with the exception of scars in the lower back. Dr. Sheridan
recommended that appellant could return to work without restrictions. He also advised that no
further medical treatment was warranted.
On May 29, 2007 the Office referred appellant along with a statement of accepted facts
and the medical record to Dr. Melvin Heiman, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion between Drs. Williams and
Sheridan regarding the resolution of appellant’s accepted condition and work restrictions.
In a report dated June 29, 2007, Dr. Heiman noted appellant’s history of treatment and
examined him. He advised that appellant’s current symptoms included back pain, which was
greater than leg pain, as well as a bothersome left groin and left leg. Dr. Heiman indicated that
appellant had “some pain at all times, worsening with some activities.” He advised that
appellant could sit for 30 minutes without having to get up to move around, walk for greater than
20 minutes and stand for 20 minutes without having to move around and change his position.
Dr. Heiman explained that appellant could drive for about an hour if he pushed himself. He
noted that appellant stood without abnormal curvature and had two scars in the lower lumbar
area and advised that his back mobility was about 50 percent of normal and his side bending was
approximately 25 percent of normal. Dr. Heiman indicated that appellant had forward flexion
and extension, which was normal with mild discomfort. He indicated that there was no
tenderness, negative straight leg raising, no measurable asymmetrical atrophy, normal strength
and sensation, full pulses without edema and normal rotation of the hips without pain.
Dr. Heiman indicated that appellant was able to work with restrictions. He referred to a
March 16, 2005 functional capacity evaluation which revealed that appellant demonstrated the
1

The record reflects that appellant’s preexisting conditions include high blood pressure and cholesterol, nicotine
dependence, hernia repair, gastric reflux, 1999 cholecystectomy, nonbleeding ulcers and irregular heartbeat.

2

ability to perform duties at the light physical demand level and noted that the restrictions were
“well stated in the functional capacity evaluation.”2
In a memorandum dated August 29, 2007, Donna Corbin, an employing establishment
supervisor, informed the Office that the employing establishment made every effort to
accommodate appellant’s return to work in the area of Jonesville, Virginia, where he lived or
Knoxville, Tennessee, his duty station when he was injured. She indicated that there were no
permanent jobs to accommodate appellant’s restrictions in that area. Ms. Corbin stated that a
search was made outside the area and the employing establishment was able to offer appellant a
job as an information receptionist in Mount Hope, WV, which was in accordance with his
restrictions.
On September 4, 2007 the employing establishment offered appellant a permanent
modified position as an information receptionist in Mount Hope, WV. The duties included
sitting at a switchboard and answering calls, greeting visitors and performing clerical duties. The
physical demands were described as sedentary. The employing establishment indicated that it
would coordinate with appellant regarding relocation expenses once it received his written
acceptance of the position.
By letter dated September 20, 2007, the Office advised appellant that the information
receptionist position had been found to be suitable to his capabilities and was currently available.
It indicated that the impartial medical examiner, Dr. Heiman, examined appellant on June 29,
2007 and provided work restrictions that were consistent with the offered position. Appellant
was advised that he should accept the position or provide an explanation for refusing the position
within 30 days. The Office informed appellant that, if he failed to accept the offered position
and failed to demonstrate that the failure was justified, his compensation would be terminated.
On September 24, 2007 the Office received a September 12, 2007 response in which
appellant declined the offer. Appellant indicated that he did not think that he could satisfactorily
perform the job duties due to the prescribed medication as well as physical symptoms of nausea,
sweating and lack of energy. He also indicated that “relocating would be more than I can cope
with, mentally or physically.”
By letter dated October 24, 2007, the Office informed appellant that his reasons for
refusing the position were not acceptable and allowed an additional 15 days for him to accept the
position. Appellant was advised that no further reason for refusal would be considered.
The Office then received an October 18, 2007 letter from appellant noting his
disagreement with some of the history and findings related in Dr. Heiman’s report. Appellant
also provided an October 27, 2007 response in which he indicated that he was “unable to
concentrate enough to perform the job duties described” because of his prescribed medications.
He indicated that he was not alert and that, if he did not take the medication, then the pain was

2

The March 16, 2005 functional capacity evaluation indicated that appellant could perform light work with
constant lifting limited to five pounds. He could perform occasional lifting to 20 pounds, reaching, sitting, standing,
walking, kneeling, squatting and stair climbing. Appellant was restricted from repetitive bending or squatting.

3

“too distracting.” Appellant also reiterated that “relocating would be more than I can cope with,
mentally or physically.”
The employing establishment advised the Office on November 14, 2007 that appellant
had not accepted the position or made arrangements to report for duty.
By decision dated November 15, 2007, the Office terminated appellant’s entitlement to
monetary compensation benefits, effective November 24, 2007, on the basis that he had refused
suitable work. It determined that the report of Dr. Heiman, the impartial medical examiner,
represented the weight of the evidence.
By letter dated December 5, 2007, Robert Harman, the district manager of the employing
establishment in WV, advised appellant that the offer for an information receptionist position
remained open.
He indicated that appellant must report to work no later than
December 14, 2007.
Appellant’s representative requested a telephone hearing that was held March 10, 2008.
During the hearing, appellant indicated that the job offer made to him was 300 miles from where
he currently lived. He also alleged that there was an employing establishment office only
35 miles from his residence. Appellant also alleged that he was receiving medication to manage
the pain related to his employment injury. He alleged that if he did not take the medication, then
he “can’t do anything.” Appellant also alleged that he was not informed about how the
relocation would occur, how much he could spend for moving, whether his house would be paid
for or any other details related to the move. After the hearing, he submitted a February 11, 2008
report from Dr. Williams who noted appellant’s complaint of low back and bilateral leg pain. He
noted that appellant ambulated with an unencumbered gate.
Dr. Williams diagnosed
degenerative disc disease, left leg and groin radicular pain, depression and chronic pain
syndrome with narcotic dependency. Appellant also submitted nurse reports regarding his status.
In a March 31, 2008 letter, Michael Davis, an employing establishment district manager,
commented that the job offer for the position in Mount Hope, WV, was made only after every
effort was made to accommodate appellant at or near the vicinity of his duty station. He alleged
that a search was made for a position near appellant’s duty station at the time of the injury and at
the time of the job offer. However, Mr. Davis explained that no permanent jobs to accommodate
his restrictions were available within that area. He noted that, after determining that no work
was available in that area, the employing establishment searched for jobs outside the area and
was able to offer appellant an information receptionist position in Mount Hope, WV. Regarding
relocation expenses, Mr. Davis noted that the job offer indicated that “relocation expenses would
be coordinated once we have received your written acknowledgment accepting the abovementioned position.” He asserted that the employing establishment fulfilled its duties in trying
to accommodate appellant in every way possible.
By decision dated May 22, 2008, the Office hearing representative affirmed the Office’s
November 15, 2007 decision.

4

LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.3 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Federal Employees’ Compensation Act for refusal
to accept suitable work.
Section 8106(c)(2)4 of the Act provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation. Section 10.517(a)5 of the Office’s regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified.
After providing the two notices described in section 10.516,6 the Office will terminate the
employee’s entitlement to further compensation under 5 U.S.C. §§ 8105, 8106 and 8107, as
provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits
as provided by 5 U.S.C. § 8103 if justified. To justify termination, the Office must show that the
work offered was suitable7 and must inform appellant of the consequences of refusal to accept
such employment.8 According to Office procedures, certain explanations for refusing an offer of
suitable work are considered acceptable.9 Unacceptable reasons include appellant’s preference
for the area in which he resides; personal dislike of the position offered or the work hours
scheduled; lack of promotion potential or job security.10
ANALYSIS
In this case, the Office properly found that Dr. Williams, appellant’s physician, disagreed
with an Office referral physician, Dr. Sheridan, as to whether appellant was totally disabled due
to his accepted condition. It properly found a conflict in medical evidence which required a
referral to an impartial medical specialist for resolution.
The Act, at 5 U.S.C. § 8123(a), in pertinent part, provides: “If there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.”
3

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

4

5 U.S.C. § 8106(c)(2).

5

20 C.F.R. § 10.517(a).

6

Id. at § 10.516.

7

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

8

See Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’d on recon., 43 ECAB 818, 824 (1992). See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter
2.814.5(d)(1) (July 1997).
9

Id. at Chapter 2.814.5(a)(1)-(5) (July 1997).

10

Arthur C. Reck, 47 ECAB 339 (1996); id. at Chapter 2.814.5(c) (July 1997).

5

The Office referred appellant to Dr. Heiman for an impartial medical evaluation to
resolve the conflict in opinion. Dr. Heiman performed a thorough evaluation on appellant and
reviewed the extensive medical record. He reported examination findings and opined that
appellant could work eight hours a day with restrictions. Dr. Heiman noted that appellant could
sit for 30 minutes without having to get up to move around; walk for greater than 20 minutes and
stand for 20 minutes without having to move around and change his position; and that he could
drive for about an hour if he pushed himself. He referred to a March 16, 2005 functional
capacity evaluation and noted that appellant had demonstrated the ability to perform duties at the
light physical demand level. When a case is referred to an impartial medical specialist for the
purpose of resolving a conflict in medical opinion, the opinion of such specialist, if sufficiently
well rationalized and based on a proper background, must be given special weight.11
Dr. Heiman’s opinion represents the weight of the medical evidence on the issue of appellant’s
ability to work and establishes that he was capable of working eight hours per day in a sedentary
position.
Subsequent to the evaluation by Dr. Heiman, the employing establishment, in an
August 29, 2007 memorandum from Ms. Corbin, an employing establishment supervisor,
informed the Office that despite making reasonable efforts to accommodate appellant’s return to
work in the area of his duty station, Knoxville, Tennessee and the area of his residence,
Jonesville, Virginia, there were no permanent jobs in those areas that would accommodate his
restrictions. On September 4, 2007 the employing establishment offered appellant a permanent
modified position, which was in accordance with his restrictions, as an information receptionist
in Mount Hope, WV. The employing establishment noted that the position was sedentary in
nature. The employing establishment indicated that relocation expenses would be coordinated
once appellant accepted the position in writing. The Office reviewed the position and found it to
be suitable for appellant and the Board notes that the position was consistent with the work
restrictions given by Dr. Heiman.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give him an opportunity to
accept or provide reasons for declining the position.12 It properly followed its procedural
requirements in this case. By letter dated September 20, 2007, the Office advised appellant that
the position was suitable and provided him 30 days to accept the position or provide reasons for
his refusal. It further notified him that the position remained open, that he would be paid for any
difference in pay between the offered position and his date-of-injury job, that he could still
accept without penalty and that a partially disabled employee who refused suitable work was not
entitled to compensation.
Appellant refused the offer indicating that he did not think that he could satisfactorily
perform the job duties due to the prescribed medication as well as physical symptoms of nausea,
sweating and lack of energy. The Office must consider preexisting and subsequently acquired
conditions in determining the suitability of an offered position.13 In this case, however, appellant
11

Kathryn Haggerty, 45 ECAB 383, 389 (1994); Jane B. Roanhaus, 42 ECAB 288 (1990).

12

See Maggie L. Moore, supra note 8.

13

See Gayle Harris, 52 ECAB 319 (2001).

6

did not submit any medical evidence to establish that his medication or physical symptoms
would prevent him from performing the sedentary position. He also indicated that “relocating
would be more than I can cope with, mentally or physically.” With regard to relocation, Office
regulations provide that the employer, if possible, should offer suitable reemployment in the
location where the employee currently resides. If this is not practical, the employer may offer
suitable reemployment at the employee’s former duty station or other location.14 The record
reflects that the employing establishment attempted to offer appellant a permanent position in the
area of his residence and his duty station; however, it advised the Office that it was unsuccessful
in finding a permanent position for appellant in accordance with his restrictions. The employing
establishment expanded its search and found a position in accordance with appellant’s medical
restrictions as an information receptionist in Mount Hope, WV. Appellant’s argument that
relocating would be more than he could cope with, would fall into the category of preference for
the area in which he resides. The Board has found that this would not be an acceptable reason
for refusing the position.15
By letter dated October 24, 2007, the Office properly informed appellant that his reasons
for refusing the offered position were unacceptable and provided him 15 days to accept the
position. On October 18, 2007 appellant noted his disagreement with certain aspects of
Dr. Heiman’s report but he did not submit any new medical evidence supporting that he could
not perform the duties of the offered position. In an October 27, 2007 response, appellant
advised the Office that he was “unable to concentrate enough to perform the job duties
described,” because of his prescribed medications. He indicated that he was not alert and that if
he did not take the medication, then the pain was “too distracting.” As noted, the Office must
consider preexisting and subsequently acquired conditions in determining the suitability of an
offered position. Appellant did not submit any medical evidence to establish that his medication
or physical symptoms would prevent him from performing the sedentary position. He also
repeated that “relocating would be more than I can cope with, mentally or physically.” This is
not an acceptable reason for refusing suitable work.16 As appellant refused suitable work, the
Office properly terminated his wage-loss compensation. At the time of the termination, the
weight of the medical evidence established that he could perform the duties of the offered
position.
Although appellant submitted a February 11, 2008 report from Dr. Williams after his
wage-loss compensation was terminated, this report did not specifically address his work

14

20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB 175 (2004).

15

See supra note 10.

16

See id.

7

restrictions or the offered job.17 He did not submit any medical evidence subsequent to
Dr. Heiman’s report regarding specific work restrictions or his ability to perform the offered
position.18
An employee who refuses or neglects to work after suitable work has been offered to him
has the burden of showing that such refusal to work was justified.19 The Board finds that the
Office properly terminated appellant’s monetary compensation due to his refusal of suitable
work. Appellant did not, thereafter, establish that his refusal of suitable work was justified.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective November 24, 2007 on the grounds that he refused an offer of suitable
work.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: July 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

Furthermore, the Board has held that reports from a physician who was on one side of a medical conflict that an
impartial specialist resolved, are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner or to create a new conflict. I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).
18

The record contains reports from nurses and physicians’ assistants. However, nurses and physicians’ assistants
are not “physicians” as defined under the Act and their opinions are of no probative value. Roy L. Humphrey,
57 ECAB 238 (2005). See 5 U.S.C. § 8101(2).
19

5 U.S.C. § 8106(c)(2).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Christy D. Farr, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1552
Issued: February 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 1, 2009 appellant filed a timely appeal from a January 15, 2009 merit decision of
the Office of Workers’ Compensation Programs affirming a September 23, 2008 merit decision
that denied his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty causally related to her employment.
FACTUAL HISTORY
On July 30, 2008 appellant, a 41-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that employment factors such as standing and walking
caused “progressive foot damage due to a congenital defect.”
Appellant submitted multiple reports in which Dr. Caroline Gannon, a podiatrist, reported
findings on examination and diagnosed, among other conditions, left foot hallux limitus, bilateral

hallux rigidus, subungal hematoma, arthritis of the great right toe, avascular necrosis of the first
metatarsal, left foot tarsal coalition, and onychomycosis. In her initial report dated July 31,
2006, Dr. Gannon noted that appellant had experienced a painful left toe for several months and
that she had related that she had begun a walking program to lose weight, but that her foot pain
was terrible. Dr. Gannon’s September 20, 2006 progress note indicated that appellant
experienced right foot pain similar to her previous left foot pain. Appellant underwent left toe
surgery on April 19, 2007 for hallux limitation of the left toe. On July 31, 2007 Dr. Gannon
noted that appellant related 100 percent improvement in both her left and right foot symptoms.
On June 23, 2008 Dr. Gannon diagnosed left foot possible posterior tibial tendon
dysfunction (PTTD), possible stress fracture, calcaneo-navicular (C-N) coalition, and a swelling
limb. Appellant had related to Dr. Gannon that she had visited Atlanta two days prior and had
walked a great deal in sandals she had not worn for over a year. On June 30, 2008 Dr. Gannon
reported findings on examination and diagnosed caleaneal valgus, pain, posterior tibial tendinitis,
and left foot caleaneal navicular coalition. Dr. Gannon completed a certificate for leave pursuant
to the Family and Medical Leave Act on June 30, 2007 wherein she noted that “patient has
congenital malformation of left foot in the form of a tarsal coalition which has caused a collapse
of arch and tendinopathy. This is a progressive deformity requiring treatment and continued
therapy.”
On July 21, 2008 Dr. Gannon reported findings on examination and diagnosed left foot
tarsal coalition, pain and posterior tibial tendinitis. Dr. Gannon noted appellant’s concerns
regarding her work and that standing at work could cause pain “and aggravate this.”
In an August 4, 2008 report Dr. Gannon proffered findings on examination and diagnosed
left-foot tarsal coalition and posterior tibial tendinitis. On August 4, 2008 Dr. Gannon also
completed a duty status report wherein she placed appellant on restricted work activities, limiting
the amount of standing and walking she could perform on a daily basis.
In an August 9, 2008 note Dr. Gannon reported:
“[Appellant] is currently under my care for a congenital malformation of her foot.
This deformity has become progressively worse and is aggravated by prolonged
standing, walking and weight[-]bearing activities. She has been able to
compensate for this deformity for some time but due to the progressive nature of
her deformity, she is no longer able to tolerate specific weight[-]bearing
activities.”
By decision dated September 23, 2008, the Office denied the claim because the evidence
of record did not establish that employment factors caused the diagnosed condition.
On October 8, 2008 appellant, through her representative, requested review of the written
record.

2

By decision dated January 15, 2009, following review of the written record, the hearing
representative affirmed the denial of the claim because the evidence of record did not establish
that employment factors caused the diagnosed condition.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Under the Federal Employee’ Compensation Act, when employment factors cause an
aggravation of an underlying physical condition, the employee is entitled to compensation for the
periods of disability related to the aggravation.8 When the aggravation is temporary and leaves
no permanent residuals, compensation is not payable for periods after the aggravation ceased.9

1

Following the January 15, 2009 decision the Office received additional medical evidence. As this evidence was
not before the Office at the time of its final decision, the Board may not review this new evidence on appeal.
20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

G.T., supra note 4; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

9

Id.

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.10
ANALYSIS
On appeal, appellant argues that the Office improperly denied her claim. Appellant’s
burden is to demonstrate that the identified employment factors caused or aggravated the
diagnosed conditions. As noted above, causal relationship is a medical issue that can only be
proven by submission of probative rationalized medical opinion evidence. Appellant has not
submitted such evidence and therefore has not satisfied her burden of proof and, thus, the Office
properly denied the claim.
Appellant has submitted numerous reports from her treating podiatrist, documenting a
number of bilateral foot complaints since July 2006. Dr. Gannon’s reports however have little
probative value on the issue of causal relationship because they lack a rationalized opinion
explaining how the identified employment factors caused the conditions diagnosed. Her reports
indicate that appellant had a congenital foot condition as well as preexisting bilateral toe
conditions. While there is no dispute that appellant is required to stand and walk as part of her
employment duties, Dr. Gannon offers no medical rationale to explain how appellant’s
employment duties contributed to or aggravated appellant’s diagnosed conditions. Furthermore,
Dr. Gannon does not explain, with any medical reasoning, how any of the conditions diagnosed
would cause appellant disability.
Although Dr. Gannon’s August 9, 2008 note reported that appellant’s left foot condition
was “aggravated by prolonged standing, walking and weight-bearing activities,” her note is of
diminished probative value because it does not contain an accurate and thorough medical history,
findings upon examination or a rationalized opinion explaining how the identified employment
factors aggravated appellant’s left foot condition. As noted above, rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the employee, 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 employee.11 Dr. Gannon’s
reports and her August 9, 2008 note lack such an opinion and, consequently, are insufficient to
satisfy appellant’s burden of proof.
10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
11

Id.

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.12 Appellant has not submitted sufficient probative rationalized
medical opinion evidence and therefore has not satisfied her burden of proof.
The Board finds that appellant has not established that she sustained an injury in the
performance of duty causally related to her employment.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2009 and September 23, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
DEPARTMENT OF THE ARMY, SIERRA
ARMY DEPOT, Herlong, CA, Employer
__________________________________________

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

Docket No. 12-348
Issued: June 5, 2012

Case Submitted on the Record

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

JURISDICTION
On December 8, 2011 appellant filed a timely appeal from an October 31, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 23 percent permanent impairment to his
right leg.
FACTUAL HISTORY
On October 24, 2000 appellant, then a 42-year-old mechanic, filed a traumatic injury
claim (Form CA-1) alleging that on October 5, 2000 he sustained a right knee injury when he
tripped over railroad ties. OWCP accepted right knee internal derangement, right torn meniscus,
1

5 U.S.C. § 8101 et seq.

right leg osteoarthritis and right chondromalacia patella.
arthroscopic surgery on May 31, 2001.

Appellant underwent right knee

By decision dated October 29, 2002, OWCP issued a schedule award for a two percent
permanent impairment to the right leg. The period of the award was 5.76 weeks from
August 16, 2002.
On December 7, 2006 appellant again underwent right knee arthroscopic surgery. He
submitted a claim for an additional schedule award. OWCP referred appellant to Dr. Matthew
Mitchell, an orthopedic surgeon, for a second opinion evaluation. In a report dated June 4, 2000,
Dr. Mitchell provided a history and results on examination. By report dated July 13, 2007,
OWCP’s medical adviser noted that Dr. Mitchell found weakness in the quadriceps and
hamstring muscles. The medical adviser opined that under the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A. Guides)
appellant had a 23 percent right leg permanent impairment based on the muscle weakness.
According to the medical adviser, an alternate method using a diagnosis-based estimate would
result in a lesser impairment of 15 percent.
By decision dated July 25, 2007, OWCP issued a schedule award for an additional 21
percent permanent impairment to the right leg. The period of the award was 60.48 weeks from
May 4, 2007.
In a report dated May 12, 2010, Dr. George Barakat, an orthopedic surgeon, advised that
appellant underwent additional right knee arthroscopic surgery on that date. Appellant again
sought an additional schedule award on July 8, 2010. OWCP requested that Dr. Barakat provide
an opinion as to permanent impairment under the sixth edition of the A.M.A. Guides, but he
noted in a report received on November 8, 2010 that he did not perform impairment ratings.
OWCP referred appellant to Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, for
a second opinion examination. In a report dated May 27, 2011, Dr. Swartz provided a history
and results on examination. He opined that, under Table 16-3 of the A.M.A. Guides, appellant
had a seven percent right leg impairment based on knee joint arthritis. Dr. Swartz noted that
grade modifiers for Clinical Studies (GMCS) showed a residual joint space measurement of three
millimeters in the right knee. He found no adjustment from the default value based on grade
modifiers for Functional History (GMFH) and grade modifiers for Physical Examination
(GMPE).
In a report dated September 5, 2011, OWCP’s medical adviser indicated that there would
be a seven percent impairment for knee joint arthritis. The medical adviser also indicated that
appellant would have a 3 percent impairment for patellofemoral arthritis or a 10 percent right leg
impairment.
By decision dated October 31, 2011, OWCP found appellant was not entitled to an
additional schedule award. It found that the medical evidence did not establish more than the 23
percent right leg permanent impairment previously awarded.

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LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 OWCP procedures provide that, effective
May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.6 A claimant who has received a schedule award calculated under a previous edition and
who claims an increased award, will receive a calculation according to the sixth edition for any
decision issued on or after May 1, 2009.7
With respect to a knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3 for diagnosis-based knee impairments.8 The class of impairment diagnosed condition
(CDX) is determined based on specific diagnosis, and then the default value for the identified
CDX is determined. The default value (grade C) may be adjusted by using grade modifiers for
GMFH, Table 16-6, GMPE, Table 16-7 and GMCS, Table 16-8. The adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9
ANALYSIS
OWCP accepted that appellant sustained right knee internal derangement, right torn
meniscus, right leg osteoarthritis and right chondromalacia patella as a result of the October 5,
2000 employment incident. Appellant underwent three right knee surgeries on May 31, 2001,
December 7, 2006 and May 12, 2010. OWCP has issued two schedule awards for a combined 23
percent permanent impairment to the right leg for the October 5, 2000 employment injuries.
Appellant seeks an increased schedule award beyond the 23 percent previously awarded.

2

Id. at § 8107.

3

20 C.F.R. § 10.404 (1999).

4

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

5

Supra note 3.

6

FECA Bulletin No. 09-03 (March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700 (January 2010).
7

Id.

8

A.M.A., Guides 509, Table 16-3. The A.M.A., Guides note that a diagnosis-based impairment is the primary
method of evaluation for the lower extremities. Id. at 497.
9

The net adjustment is up to +2 (grade E) or -2 (grade A).

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The medical evidence of record does not establish permanent impairment greater than the
23 percent previously awarded. Dr. Barakat, the attending physician, did not provide an opinion
on the issue. OWCP referred appellant to Dr. Swartz, who found that appellant had a seven
percent right leg impairment under Table 16-3. As noted, this is the appropriate table for a
diagnosis-based impairment for the leg. Under this table, the default (grade C) impairment for
primary knee joint arthritis at class 1 (three mm cartilage interval, full-thickness articular
cartilage defect or ununited osteochondral fracture) is seven percent. Dr. Swartz applied grade
modifiers of one for GMFH and GMPE, noting that GMCS would not be applicable.10 Applying
the formula noted above, there is no adjustment from the grade C value of seven percent.
OWCP’s medical adviser concurred with respect to the diagnosis of knee joint arthritis
resulting in a seven percent leg impairment. In addition, the medical adviser used the diagnosis
of patellofemoral arthritis, with a grade C impairment for class 1 of three percent. There was no
adjustment based on the net adjustment formula. The Board notes that the A.M.A., Guides state
that in most cases only one diagnosis will be appropriate.11 While the medical adviser did not
discuss the issue, both of the diagnoses used are under the general diagnosis of arthritis under
Table 16-3. Combining the 7 percent for primary knee joint arthritis and 3 percent for
patellofemoral arthritis results in a 10 percent impairment.
Therefore the maximum impairment to the right leg under the sixth edition of the
A.M.A., Guides, based on the probative evidence of record, is 10 percent. Since appellant
already received schedule awards for a 23 percent right leg impairment from the accepted
October 5, 2000 employment injuries, there is no evidence of a greater impairment. He may at
anytime seek an increased impairment based on the submission of new evidence showing a
progression of an employment-related permanent impairment.
CONCLUSION
The Board finds appellant has not established more than a 23 percent employment-related
permanent impairment to his right leg.

10

If a grade modifier was used for the primary placement in the regional grid, it is not used again in the
impairment calculation. A.M.A., Guides 515-16.
11

A.M.A., Guides 497.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2011 is affirmed.
Issued: June 5, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Haven, CT, Employer
__________________________________________

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

Docket No. 08-1406
Issued: November 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 15, 2008 appellant filed a timely appeal from a January 10, 2008 merit decision
of the Office of Workers’ Compensation Programs granting him a schedule award for a 12
percent impairment of his right lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 12 percent impairment of his right lower
extremity for which he was granted a schedule award.
FACTUAL HISTORY
Appellant, a 50-year-old special delivery messenger, filed a traumatic injury claim on
May 20, 2005 alleging that he sustained a right knee injury on that date while making a delivery.
The Office accepted the claim for an anterior cruciate ligament (ACL) tear; medial and lateral
meniscus tears of the right knee; and ACL sprain. On September 7, 2005 appellant underwent
authorized surgery, involving: a right knee arthroscopy with ACL reconstruction using allograft;

partial medial and lateral meniscectomies; and chondroplasties of the patellofemoral joint and the
medial and lateral femoral condyles.
On December 26, 2007 appellant requested a schedule award. In support of his request,
he submitted a report dated April 24, 2007 from Dr. Dante A. Brittis, a Board-certified
orthopedic surgeon, who provided an impairment rating for appellant’s right lower extremity.
Dr. Brittis stated that appellant still had occasional aching pain and areas of numbness anteriorly
as a result of his ACL reconstruction. He noted that x-rays revealed no significant degenerative
joint disease on the right side. Examination of the right knee showed trace effusion and joint line
tenderness. Range of motion was 0 to 115 degrees. Lachman’s was stable and his calf was soft.
Dr. Brittis opined that, in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),1 appellant had a
16 percent impairment of his right lower extremity.
The case record was referred to the district medical adviser, along with a statement of
accepted facts, for review and an impairment rating. In a report dated December 31, 2007, the
medical adviser found that appellant had a 12 percent impairment of his right lower extremity.
Pursuant to Dr. Brittis’ April 24, 2007 report, he noted that there was no evidence of instability
and trace effusion in the right knee. Based upon his examination findings, he stated that
appellant was not entitled to a schedule award for early degenerative joint disease or for range of
motion pursuant to Table 17-9 on page 537 of the A.M.A., Guides. Referring to Table 17-33 at
page 546 of the A.M.A., Guides, the medical adviser concluded that appellant had a 10 percent
impairment of his right lower extremity for partial medial and lateral meniscectomies. He also
opined that appellant had an additional 2 percent impairment for pain, for a total right lower
extremity impairment of 12 percent. On January 5, 2008 the medical adviser opined that the date
of maximum medical improvement was April 24, 2007, the date of Dr. Brittis’ evaluation.
By decision dated January 10, 2008, the Office granted appellant a schedule award for a
12 percent permanent impairment of his right lower extremity. The period of the award was
from April 24 to December 21, 2007. The Office found that the date of maximum medical
improvement was April 24, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 sets forth
the number of weeks of compensation to be paid for permanent loss or loss of use, of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.3 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be

1

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

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

5 U.S.C. § 8107(c)(19).

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determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the standard to be used for evaluating schedule losses.4
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from the attending physician is obtained.5 For lower
extremity impairments due to meniscectomies or ligament injuries involving the knees, Table
17-1, of the A.M.A., Guides directs the clinician to utilize section 17.2j as the appropriate
method of impairment assessment. Section 17.2j of the A.M.A., Guides, entitled “DiagnosisBased Estimates,” provides that some impairment estimates are more appropriately rated on the
basis of a diagnosis than on the basis of findings on physical examination and instructs the
clinician to assess the impairment using the criteria in Table 17-33, entitled “Impairment
Estimates for Certain Lower Extremity Impairments.”6
When a diagnosis-based impairment rating is applied, it is generally not appropriate to
calculate additional impairment based on anatomic or functional based methods (such as
limitations of strength or range of motion).7 Section 18.3b of Chapter 18 at page 571 of the fifth
edition of the A.M.A., Guides provides that examiners should not use this chapter to rate
pain-related impairment for any condition that can be adequately rated on the basis of the body
and organ impairment rating systems given in other chapters of the A.M.A., Guides.8
ANALYSIS
The Office accepted appellant’s claim for an ACL tear; medial and lateral meniscus tears
of the right knee; and ACL sprain. Appellant subsequently underwent authorized surgery,
involving: a right knee arthroscopy with ACL reconstruction using allograft; partial medial and
lateral meniscectomies; and chondroplasties of the patellofemoral joint and the medial and lateral
femoral condyles. In his April 24, 2007 report, Dr. Brittis stated that appellant still had
occasional aching pain and areas of numbness anteriorly as a result of his ACL reconstruction.
He noted that x-rays revealed no significant degenerative joint disease on the right side.
Examination of the right knee showed trace effusion and tenderness. Range of motion was 0 to
115 degrees. Lachman’s was stable and his calf was soft. Dr. Brittis opined that appellant had a
16 percent impairment of his right lower extremity pursuant to the A.M.A., Guides. However,
he did not explain the basis for his impairment rating; nor did he identify the applicable sections
or Tables of the A.M.A., Guides to support his conclusion. Therefore, appellant’s opinion is of
limited probative value.

4

20 C.F.R. § 10.404.

5

Thomas J. Fragale, 55 ECAB 619 (2004).

6

A.M.A., Guides 545; see James R. Hill, 57 ECAB 583 (2006).

7

Id. at 545, section 17.2j; Derrick C. Miller, 54 ECAB 266 (2002).

8

Id. at 545, section 18.3b. See L.H., 58 ECAB ___ (Docket No. 06-1691, issued June 18, 2007) (the impairment
ratings in the body organ system chapters of the A.M.A., Guides make allowance for any accompanying pain). See
also T.H., 58 ECAB ___ (Docket No. 06-1500, issued January 31, 2007).

3

The Office properly referred the case to the district medical adviser for review.9 The
medical adviser correctly concluded that appellant had a 10 percent impairment of his right lower
extremity for partial medial and lateral meniscectomies, pursuant to Table 17-33 at page 546 of
the A.M.A., Guides. He properly found that appellant was not entitled to a schedule award for
early degenerative joint disease or for range of motion pursuant to Table 17-9 on page 537.
However, he incorrectly determined that appellant had an additional two percent impairment due
to pain. This Board has held that examiners should not use Chapter 18 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 others chapters of the A.M.A., Guides.10 The medical adviser did
not fully evaluate, with medical rationale, the calculation of a two percent right lower extremity
impairment based on pain and did not explain why appellant’s pain-related impairment could not
be adequately addressed by applying Chapter 17 of the A.M.A., Guides, which addresses lower
extremity impairment.
There is however no rationalized medical opinion evidence conforming with the A.M.A.,
Guides, which supports that appellant has more than a 12 percent impairment of his right lower
extremity. Therefore, appellant has not established entitlement to a schedule award for more
than a 12 percent impairment of his right lower extremity.
CONCLUSION
The Board finds that appellant has no more than a 12 percent impairment of his right
lower extremity, for which he received a schedule award.

9

Office procedures indicate that referral to an Office medical adviser is appropriate when a detailed description
of the impairment from the attending physician is obtained. Federal (FECA Procedure manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002); Thomas J. Fragale, supra
note 5.
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides 571, 18.3(b); L.H., supra note 8; P.C., 58 ECAB ___ (Docket No. 07-410, issued
May 31, 2007); T.H., supra note 8; Frantz Ghassan, 57 ECAB 349 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the January 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2008
Washington, DC

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

David S. Gerson, 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
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0735
Issued: April 30, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On February 12, 2019 appellant, through counsel, filed a timely appeal from October 3,
2018 and January 17, 2019 decisions of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as No. 19-0735.
On January 11, 2007 appellant, then a 51-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed a bilateral knee condition due to factors of
his federal employment. OWCP accepted the claim for aggravation of bilateral knee osteoarthritis .
On June 11, 2007 OWCP was informed that on January 11, 2007 appellant had signed a
retainer agreement authorizing James D. Muirhead, Esq., to represent him in his claim.

1

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

By letter dated April 27, 2017, OWCP acknowledged receipt of a statement designating
Mr. Muirhead as appellant’s representative.
On December 1, 2017 appellant filed a claim for a schedule award and submitted additional
medical evidence.
OWCP scheduled a second opinion examination with Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, which occurred on July 30, 2018. While appellant attended the examination,
the correspondence advising him and/or his designated representative about the scheduled second
opinion examination is not of record.
By decision dated October 3, 2018, OWCP denied an additional schedule award. It based
its decision on Dr. Lakin’s medical examination findings. On November 12, 2018 appellant,
through counsel, requested reconsideration of OWCP’s October 3, 2018 decision. Counsel
objected to Dr. Lakin’s second opinion examination, noting that he had not been advised of his
selection to perform a second opinion examination. By decision dated January 17, 2019, OWCP
denied reconsideration of the merits of appellant’s claim.
The Board has held that the notification of a referral for a second opinion examination is
an administrative action, and that notification to the claimant’s authorized representative of a
second opinion examination is required. 2 In the present case, appellant authorized Mr. Muirhead
to represent him on January 11, 2007. Despite this authorization, there is no evidence of record
that OWCP sent the authorized representative notice of appellant’s referral to Dr. Lakin for a
second opinion examination. OWCP therefore improperly relied on Dr. Lakin’s opinion in
denying appellant’s additional schedule award claim. The case must therefore be remanded to
OWCP for another second opinion examination for the purpose of affording appellant the
opportunity to have his physician participate in the examination. 3 OWCP shall then further
develop the evidence as it deems necessary and issue an appropriate de novo decision.4

2

See K.J., Docket No. 09-2317 (issued June 15, 2010); Donald J. Knight, 47 ECAB 706 (1996) ( OWCP’s failure
to notify appellant’s authorized representative of the referral to a second opinion physician effectively denied
appellant’s statutory right to have a physician designated and paid by him to be present and participate in the
examination pursuant to 5 U.S.C. § 8123). .
3

See P.C., Docket No. 16-1714 (issued October 18, 2017); C.M., Docket No. 14-1302 (issued May 5, 2015).

4
Given the disposition of the schedule award issue, the nonmerit issue is moot. See W.G., Docket No. 18-0451
(issued February 21, 2019).

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IT IS HEREBY ORDERED THAT the October 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order.
Issued: April 30, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board
Janice B. Askin, Judge
Employees' Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Saint Louis, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0469
Issued: September 3, 2020

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 December 30, 2019 appellant, through counsel, filed a timely appeal from an August 1,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
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 November 14, 2006 appellant, then a 37-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he pulled a muscle in his back under his left shoulder
blade when he picked up a tray of mail when loading his long life vehicle (LLV) while in the
performance of duty. He stopped work on January 3, 2007.
OWCP accepted appellant’s claim for thoracic and cervical sprains. It subsequently
expanded acceptance of his claim to include cervical disc herniation at C4-5 and C5-6.4 OWCP
paid wage-loss compensation beginning on January 3, 2007 and placed appellant on the periodic
rolls, effective June 10, 2007. On August 7, 2007 appellant returned to full-duty work.
On June 15, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a December 29, 2014 report, Dr. Neil Allen, a Board-certified internist and neurologist,
reviewed appellant’s history and noted diagnoses of neck and thoracic sprain, and displacement of
cervical intervertebral disc without myelopathy. He noted appellant’s current complaints of neck
and upper back pain, predominantly on the left side. Dr. Allen discussed the December 18, 2016
cervical spine MRI scan report and related that a November 4, 2014 electromyography and nerve
conduction velocity (EMG/NCV) study revealed mild neurogenic changes in the left triceps. Upon
examination of appellant’s cervical spine, Dr. Allen observed tenderness and increased tone
through the upper trapezius and serratus anterior and a golf-ball-sized area of edema noted to the
left anterolateral aspect of the cervical spine, C6-T1. Neurovascular examination revealed soft
touch and sharp/dull intact for the C5-T1 levels bilaterally, except for the C7 dermatome on the
left, which showed reduced soft touch.
Dr. Allen utilized the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)5 and The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter)
to assess impairment. He indicated that under Table 1, Upper Extremity Impairment, of The
3

Docket No. 18-1047 (issued February 13, 2019).

4
A December 18, 2006 cervical spine magnetic resonance imaging (MRI) scan report revealed a large hard
disc/osteophyte complex at the C3-4 level on the left with left foraminal narrowing, small, right-sided C4-5 hard
disc/osteophyte complex with mild right foraminal narrowing, and hard disc/osteophyte complex at C6-7 on the left
and mild left foraminal narrowing.
5

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

2

Guides Newsletter, appellant was a class 1 impairment, with a default value of five percent, for
mild motor deficit at the C7 spinal level. Dr. Allen assigned a grade modifier for functional history
(GMFH) of 2 due to a Pain Disability Questionnaire (PDQ) score of 75 and a grade modifier for
clinical studies (GMCS) of 2 due to the cervical spine MRI scan report and EMG/NCV study.
After applying the net adjustment formula, (2-1) + (2-1), which resulted in +2, he calculated that
appellant had nine percent permanent impairment of the left upper extremity for motor deficit at
the C7 level. Dr. Allen also determined that appellant was a class 1 impairment, default value of
five percent, for mild sensory deficit at the C7 levels. He assigned GMFH of 2 due to a PDQ score
of 75 and GMCS of 2 for cervical spine MRI scan and EMG/NCV study. After applying the net
adjustment formula, (2-1) + (2-1), which resulted in +2, Dr. Allen calculated that appellant had
five percent permanent impairment of the left upper extremity for sensory deficit at the C7 level.
He reported that appellant had a total of 14 percent left upper extremity permanent impairment.
Dr. Allen further reported that appellant had no motor or sensory deficits at the C5, C6, and C8
spinal levels, which translated to zero percent permanent impairment.
OWCP routed the case file to Dr. Michael Hellman, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), for review as to whether appellant sustained
permanent impairment as a result of his accepted cervical injury. In a July 20, 2015 report,
Dr. Hellman related that he had reviewed appellant’s case file and noted that his claim was
accepted for cervical sprain and cervical disc herniation at C4-5 and C5-6. He reviewed
Dr. Allen’s December 29, 2014 report and pointed out that while Dr. Allen had determined
appellant’s impairment rating based on sensation and motor deficit in the left C7 distribution, this
condition was not accepted as work related and was not a preexisting condition. Dr. Hellman also
noted that, although the December 18, 2006 cervical spine MRI scan showed a hard
disc/osteophyte complex at the C6-7 level on the right, appellant did not have significant weakness
or sensation loss according to doctor notes from 2007. For this reason, he explained that he would
only grade neurologic deficits at C5 and C6 as work related.
Regarding appellant’s left upper extremity, Dr. Hellman referenced The Guides Newsletter
and indicated that in his December 29, 2014 report, Dr. Allen had noted normal sensation and
motor examination at the C4-6 and C5-6 levels. He assigned class 0 diagnosis for normal sensory
and motor examination, which resulted in zero percent permanent impairment. Regarding
appellant’s right upper extremity, Dr. Allen also determined that appellant was class 0 diagnosis
for normal sensory and motor examination, which resulted in zero percent permanent impairment.
He reported a date of maximum medical improvement (MMI) of December 29, 2014, the date of
Dr. Allen’s impairment rating report.
By decision dated October 28, 2015, OWCP denied appellant’s schedule award claim. It
found that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body as a result of his accepted November 14, 2006
employment injury. OWCP noted that the DMA had determined in a July 20, 2015 report that
appellant did not have permanent impairment due to his accepted employment injury.
On November 4, 2015 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
July 12, 2016.

3

Appellant subsequently submitted a November 4, 2014 NCV study report, which revealed
normal study, left triceps mild neurogenic changes on needle examination, and recommended
clinical correlation suggestive of cervical radiculopathy. He also submitted a copy of the Board’s
decision in J.R., Docket No. 15-1847 (issued March 4, 2016).
In a decision dated September 21, 2016, an OWCP hearing representative affirmed the
October 28, 2015 denial decision.
On May 10, 2017 appellant, through counsel, requested reconsideration and submitted new
medical evidence.
Appellant submitted an April 30, 2017 addendum to Dr. Allen’s December 29, 2014
report. He indicated that he had reviewed the DMA’s July 20, 2015 report and OWCP’s
September 21, 2016 decision. Dr. Allen disputed the DMA’s finding that appellant’s claim was
not accepted for C7 disc pathology and asserted that appellant’s claim was accepted for
“‘displacement of the cervical intervertebral disc without myelopathy’ without mention of a
specific spinal level.” He also pointed out that the December 18, 2006 MRI scan also showed disc
pathology at the C3-4, C4-5, and C6-7 levels. Dr. Allen argued that, if appellant’s accepted
conditions was based on this MRI scan, then appellant’s accepted disc pathology should include
the C7 spinal level. He further reported that the mechanism of injury at the C7 level was the same
as the accepted conditions. Dr. Allen explained that the repetitive lifting described by appellant
leads to fatigue of the postural muscles of the spine, resulting in forward head carriage and strain
of the muscles of the neck and upper back.
In another addendum report dated May 30, 2017, Dr. Allen opined that appellant sustained
a C7 disc pathology as a result of the November 14, 2006 employment injury. He concluded that
his December 29, 2014 impairment rating report was accurate and representative of the functional
loss sustained by appellant due to his November 14, 2006 employment injury.
By decision dated August 10, 2017, OWCP denied modification of the September 21, 2016
decision.
On September 8, 2017 appellant, through counsel, requested reconsideration.
November 17, 2017 decision, OWCP denied appellant’s request for reconsideration.

In a

Appellant, on April 26, 2018, filed an appeal before the Board. By decision dated
February 13, 2019, the Board affirmed the November 17, 2017 decision. The Board found that
appellant’s reconsideration request did not meet any of the regulatory requirements under 20
C.F.R. § 10.606(b)(3) sufficient to require further review of the merits of his claim.6

6

Supra note 3.

4

On May 14, 2019 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.7
In an undated report, Dr. Allen indicated that he had reviewed the February 13, 2019 Board
decision and noted his disagreement with the finding that appellant’s C7 disc pathology was not
work related, and therefore, that appellant was ineligible for any/all impairment calculated at the
C7 level. He alleged that this finding contradicted FECA Transmittal No. 17-02, which states that
“rated impairment should reflect the total loss as evaluated for the scheduled member at the time
of the rating examination.” Dr. Allen further noted that there were no provisions for apportionment
under FECA and that an impairment assessment should include both work-related impairment, as
well as nonindustrial impairment of the same scheduled member. Accordingly, he asserted that
appellant was eligible for schedule award compensation related to the C7 spinal nerve impairment
calculated on December 29, 2014.
Appellant also submitted a May 8, 2019 cervical spine MRI scan report, which revealed no
fracture or listhesis of the cervical spine, congenital narrowing of the cervical spinal canal with
superimposed spondylosis causing mild-to-moderate central canal stenosis at C3-4, C4-5, and C67, mild mass effect on the cervical spinal cord at the C3-4 and C4-5 levels, and significant neural
foraminal stenosis at C3-4 bilaterally, C4-5 bilaterally, C5-6 on the left, and C6-7 bilaterally.8
By decision dated August 1, 2019, OWCP denied modification.
LEGAL PRECEDENT
The schedule award provisions of FECA9 and its implementing regulations10 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. FECA, however, does not
specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such

7

Although appellant claimed to be filing a request for reconsideration from the Board’s February 13, 2019 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
Although the February 13, 2019 Board decision was the last decision of record, OWCP’s August 10, 2017 merit
decision is the appropriate subject of possible modification by OWCP.
8

In a June 19, 2019 letter, appellant requested to expand acceptance of his claim to include congenital narrowing
of the cervical spinal canal with superimposed spondylosis causing mild-to-moderate central canal stenosis at C3-4,
C4-5, and C6-7, and significant neural foraminal stenosis at C3-4 bilaterally, C4-5 bilaterally, C5-6 on the left, and
C6-7 bilaterally.
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

5

adoption.11 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.12
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.13 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.14 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
extremities and precluded ratings for the spine. The FECA-approved methodology is premised on
evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for
rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure
Manual.15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s 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.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP properly relied on the opinion of the DMA, who reviewed the December 29, 2014
findings of Dr. Allen, appellant’s treating physician, and properly determined that appellant did
not have permanent impairment under the standards of the A.M.A., Guides. In his July 20, 2015
report, the DMA related that appellant’s claim was accepted for cervical sprain and cervical disc
herniation at C4-5 and C5-6. He indicated that while Dr. Allen noted sensation and motor deficits
in appellant’s left C7 distribution, disc pathology at the C7 level was not accepted as work related.
For this reason, the DMA explained that he would only grade neurologic deficits at C5 and C6 as
11
Id. at § 10.404(a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
13

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
14

Supra note 12 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(c)(3)
(March 2017).
15

Supra note 12 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

16

Supra note 12 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6
(March 2017). R.M., Docket No. 18-1313 (issued April 11, 2019); C.K., Docket No. 09-2371 (issued
August 18, 2010).

6

work related. He noted that Dr. Allen had found normal sensation and motor examination at the
C5-6 levels. The DMA correctly utilized The Guides Newsletter for rating appellant’s permanent
impairment and opined, that for each upper extremity, appellant did not have neurologic deficit
consistent with radiculopathy stemming from the cervical spine.17 He found that appellant had
reached MMI on December 29, 2014 and properly concluded that he did not have permanent
impairment of either upper extremity due to his accepted November 14, 2006 employment injury.18
Appellant submitted a December 19, 2014 permanent impairment evaluation report from
Dr. Allen and a series of addendum notes. He determined that appellant had a total of 14 percent
left upper extremity permanent impairment due to motor and sensory deficits at the C7 level. The
Board notes, however, that OWCP has not accepted a cervical injury at the C7 level. A claimant
has the burden of proof to establish that the condition for which a schedule award is sought is
causally related to his or her employment.19 While Dr. Allen argued that an impairment
assessment should include both work-related and nonindustrial impairment of the same scheduled
member, the Board notes that a preexisting, underlying condition should be considered for rating
impairment only to the extent that the work-related injury has affected any residual usefulness in
whole or in part of the scheduled member.20 Since appellant has not met his burden of proof to
establish permanent impairment for his work-related cervical injury, the Board finds that he is not
entitled to a schedule award for his nonwork-related condition.
On appeal counsel alleges that the decision was contrary to law and fact, but has not cited
any basis for such assertion. As explained above, appellant has not met his burden of proof.
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 met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

17

See supra notes 13 and 14.

18

See J.C., Docket No. 19-1502 (issued January 15, 2020); see also R.P., Docket No. 19-1118 (issued
October 25, 2019).
19

See G.S., Docket No. 18-0827 (issued May 1, 2019); Veronica Williams, 56 ECAB 367 (2005).

20
Supra note 11 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5d; see also
F.T., Docket No. 16-1326 (issued March 12, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2020
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

8