United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shasta Lake, CA, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0557
Issued: December 21, 2017

Case Submitted on the Record

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

JURISDICTION
On January 15, 2017 appellant, through her representative, filed a timely appeal from a
September 27, 2016 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 OWCP properly reduced appellant’s wage-loss compensation to
zero effective April 1, 2015 under 20 C.F.R. § 10.500(a) based on her earnings had she accepted
a light-duty assignment.
FACTUAL HISTORY
On September 4, 2014 appellant, then a 62-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained a back condition causally
related to factors of her federal employment. She stopped work on August 8, 2014. OWCP
accepted the claim for lumbar sprain, sacroiliac sprain, and neck sprain. It paid appellant
compensation on the supplemental rolls for total disability beginning August 20, 2014.
In a report dated August 20, 2014, Dr. Michael E. Hebrard, a Board-certified physiatrist,
diagnosed lumbar discogenic dysfunction and sacroiliac sprain. He found that appellant could
perform sedentary employment lifting no more than 10 pounds, alternating standing and sitting
every half hour, and performing no repetitive bending.
By decision dated October 22, 2014, OWCP denied authorization for continued medical
treatment with Dr. Hebrard as his office location was more than a reasonable distance from
appellant’s residence.3
OWCP, on October 31, 2014, referred appellant to Dr. Charles F. Xeller, a Boardcertified orthopedic surgeon, for a second opinion examination.
Dr. Richard P. Musselman, an osteopath, evaluated appellant on November 3, 2014 for
pain in the right knee, back, neck, left elbow, and left hand. He discussed her work duties and
the results of objective testing. Dr. Musselman suggested diagnostic testing to evaluate a lipoma
of the pelvis. He diagnosed cervical and lumbar radiculitis, brachial neuritis, degenerative joint
disease of the right knee, vertebral retrolisthesis, anterolisthesis, facet hypertrophy, ligamentum
flavum hypertrophy, lumbar canal stenosis, a bulging lumbar disc, and dextroscoliosis.
Dr. Musselman also recommended electrodiagnostic testing.
In a report dated November 29, 2014, Dr. Xeller reviewed the history of injury. On
examination, he found tingling in the digits of both hands and pain with back flexion and
bending to the side, but normal motor and sensory function. Dr. Xeller agreed with
Dr. Musselman’s recommendation for electrodiagnostic testing. He also noted that appellant
required a pelvic magnetic resonance imaging (MRI) scan to “workup [a] large lipomatous
mass” which he advised was not employment related. Dr. Xeller diagnosed chronic low back
sprain/strain superimposed on underlying spondylosis and disc degeneration and bulging. He
found that appellant’s “underlying comorbid arthritis would certainly be aggravated by her years
Appellant, on October 20, 2014, requested a review of the written record regarding OWCP’s October 22, 2014
denial of authorization for medical treatment with Dr. Hebrard. In a May 20, 2015 decision, an OWCP hearing
representative affirmed the October 22, 2014 decision. She found that OWCP properly denied authorization for
appellant to obtain treatment with Dr. Hebrard as his office was over 100 miles away.
3

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at work.” Dr. Xeller advised that if her electromyogram and nerve conduction study were
positive she may need nerve root injections. He opined that appellant could work eight hours per
day in sedentary employment pushing, pulling, and lifting less than 10 pounds, reaching over the
shoulder with less than 10 pounds, and with the option to sit or stand. Dr. Xeller indicated that
appellant could not perform repetitive bending.
The employing establishment, on March 3, 2015, offered appellant a modified position as
a sales, services, and distribution associate working from 7:00 a.m. to 9:30 a.m. boxing letters
and flats. The duties included fine manipulation and reaching up to three hours, standing and
walking up to three hours, and bending up to one hour. The job included that appellant would
have the option to sit and stand and that pushing, pulling, and lifting would be under 10 pounds.
Appellant refused the offered position on March 18, 2015, asserting that it was not within her
work restrictions.
An October 13, 2014 lumbar spine MRI scan, received by OWCP on May 6, 2015,
showed severe canal stenosis at L4-5 with moderate-to-severe bilateral foraminal narrowing and
bilateral and ligamentum flavum hypertrophy.
In a March 16, 2015 work status report, Dr. Musselman diagnosed cervical and lumbar
radiculitis, and degenerative joint disease of the right knee. He found that appellant could return
to employment performing no overhead work, repeated bending or stooping, or continual
standing, walking, or sitting. Dr. Musselman related, “[Appellant] cannot stoop or repetitively
bend for one hour. She can sit on a stool where she can get up and stand as necessary and move
around. [Appellant] has to work at waist level and not above the shoulder at this time. She must
have intermittent activities. [Appellant] cannot do any one activity for three hours at a time.” In
a March 16, 2015 narrative report, Dr. Musselman noted that the employing establishment had
offered appellant a position which she maintained was not within her physical capacity. He
provided multiple diagnoses, including lumbar stenosis, a bulging lumbar disc, facet
hypertrophy, lumbar and cervical radiculitis, and retrolisthesis of the vertebrae.
In a March 26, 2015 duty status report (Form CA-17), Dr. Musselman found that
appellant could perform intermittent bending and stooping less than two hours per day, sit, stand,
and walk intermittently up to four hours per day, and lift up to 10 pounds. On March 30, 2015
he diagnosed anxiety and lumbar stenosis.
Electrodiagnostic studies obtained on March 16, 2015 revealed mild right carpal tunnel
syndrome and moderate left carpal tunnel syndrome and mild radiculopathy on the right at S1.
An agent with the employing establishment’s Office of the Inspector General (OIG)
provided an April 23, 2015 report of investigation describing surveillance conducted on
appellant from January 23 to April 23, 2015. Appellant performed activities during this time that
included walking her dog and driving. The OIG agent showed the surveillance video to
Dr. Musselman on March 26, 2015 and he related that she had psychological problems delaying
improvement. He advised that he believed that the job offered by the employing establishment
was “good, but that [appellant] had come in very agitated and stated [that] she could not do that
work, so he tightened the restrictions and hoped [the employing establishment] would be able to

3

revise a job offer fitting within the new restrictions.” Dr. Musselman indicated that appellant
could work with restrictions and advised that she should have a psychological evaluation.
On April 25, 2015 appellant filed a claim for compensation (Form CA-7) for wage loss
beginning April 1, 2015.
OWCP, in a May 11, 2015 letter, advised appellant that she had not submitted evidence
to support that she was totally disabled beginning April 1, 2015. It noted that the light-duty
position offered by the employing establishment on May 3, 2015 was within the limitations
provided by Dr. Hebrard. OWCP advised that the position remained available as of
May 4, 2015. It requested that appellant submit additional evidence explaining why she was
unable to perform the offered modified position.
On May 26, 2015 Dr. Hebrard reviewed the job offer and noted that it included one hour
of bending.4 He opined that appellant was unable to bend at the waist.
In a report dated June 1, 2015, Dr. Musselman described appellant’s work at the
employing establishment. He advised that her disc bulges and annular bulging resulted from
repetitive bending and lifting. Dr. Musselman opined that lifting and bending repetitively
moving heavy packages injured appellant’s lumbar and cervical discs, causing bulging discs at
L4 to S1, and a disc space narrowing at C5-6. Repetitive work duties also aggravated a lumbar
facet joint condition. Dr. Musselman diagnosed cervical and lumbar radiculitis, anterolisthesis,
facet hypertrophy, lumbar canal stenosis, bulging lumbar discs, cervical neuritis, dextroscoliosis,
de Quervain’s tenosynovitis, carpal tunnel syndrome, anxiety, and cervical degenerative disc
disease. Regarding the March 3, 2015 job offer, he noted that Dr. Xeller found that appellant
could not repetitively bend, but the offered position specified bending of up to an hour without
indicating whether it would be repetitive. Dr. Musselman also advised that she could not reach
as a result of her cervical condition. He opined that appellant was totally disabled and
recommended a psychological evaluation.
Dr. Hebrard, in a June 8, 2015 report, discussed his August 20, 2014 work restrictions.
He asserted that appellant’s work duties “increased the stress along the cervical and lumbar spine
which led to bulging of the discs which pressed against the adjacent nerve endings.” Dr. Hebrard
diagnosed cervical and lumbar radiculopathy and spondylosis. He found that appellant could no
longer perform her usual work duties and advised that she could not “tolerate prolonged sitting,
bending at the waist, lifting, pushing, pulling, reaching below, at and above the level of the head,
and twisting and bending of the head and neck.” Dr. Hebrard opined that she was permanently
disabled.

4

Dr. James D. Tate, a Board-certified neurosurgeon, evaluated appellant on April 29, 2015 at the request of
Dr. Musselman. He noted that she had not worked since an August 2014 injury. Dr. Tate found no “significant
symptoms of lumbar stenosis with radiculopathy” and recommended one or two steroid injections. On May 1, 2015
he diagnosed a lesion at C4 possibly due to degenerative changes and most likely unrelated to her work injury and
lumbar spondylolisthesis that was likely congenital. Dr. Tate recommended disability retirement.

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Counsel, on June 9, 2015, related that the March 3, 2015 offered position was not suitable
as it required bending of up to one hour and did not qualify whether the bending was repetitive.5
In a report dated July 28, 2015, Dr. David McGee-Williams, a clinical neuropsychologist,
discussed appellant’s work duties, her August 2014 work injury, and her current complaints.6 He
diagnosed chronic pain syndrome and depressive disorder and recommended cognitive
behavioral therapy.
Dr. Musselman, in a September 4, 2015 progress report, diagnosed lumbar radiculitis. He
advised that appellant sustained a mental condition as a “direct result of her physical problems
and the stress of this case.”
By decision dated October 15, 2015, OWCP denied appellant’s claim for compensation
beginning April 1, 2015 under 20 C.F.R. § 10.500(a) as the employing establishment had offered
her a light-duty assignment in writing within her medical restrictions. It found that she had not
submitted medical evidence showing that the position no longer reflected her work restrictions or
was no longer available. OWCP noted that the job limited appellant to bending for one hour
through the course of her workday from 7:00 a.m. to 9:30 a.m.
Appellant, on October 30, 2015, requested a telephone hearing before an OWCP hearing
representative.
In a November 13, 2015 work status report, Dr. Musselman found that appellant was
unable to work pending evaluation in four weeks.7 He opined that she could not participate in
questioning or interviews due to psychological stress and cognitive difficulties. In a
November 13, 2015 progress report, Dr. Musselman treated appellant for cervical radiculopathy.
He discussed her history of injury and found that her lumbar disc bulging, cervical disc space
narrowing, and carpal tunnel syndrome resulted from repetitive work duties.
Dr. Musselman, in work status reports dated February through April 2016, found that
appellant could return to work on restrictions that included no overhead work, continual sitting,
standing, or walking, or repetitive bending or stooping.
At a telephone hearing, held on July 14, 2016, appellant related that Dr. Xeller, OWCP’s
referral physician, found that she had a permanent aggravation of arthritis as a result of her work
5

Appellant, in an August 7, 2015 statement, related that she was disabled as the employing establishment did not
accommodate Dr. Hebrard’s August 20, 2014 work restrictions. She noted that Dr. Xeller and Dr. Musselman also
found that she could not perform repetitive bending.
Dr. Annie Purcell, an osteopath, evaluated appellant on July 17, 2015 for back pain that began “in August 2014
with gradual onset and no history of trauma.” She diagnosed cervical stenosis, lumbar radiculopathy with possible
sciatic neuropathy, a right gluteal lipoma or liposarcoma with sciatic nerve compression, lumbar spondylosis, and
carpal tunnel syndrome and found that appellant could no longer perform her mail carrier duties as a result of her
injury.
6

7

In an October 16, 2015 progress report, Dr. Musselman advised that appellant was psychologically incapable of
working. Dr. Tate, in an amended report dated November 4, 2015, evaluated her for low neck pain and low back
pain radiating into the right and sometimes left leg. He advised against surgery.

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injury, but OWCP had not expanded acceptance of her claim to include that condition. She
advised that she did not accept the position offered by the employing establishment because it
did not specify the bending requirement and thus was not in accordance with Dr. Xeller’s
restrictions. Appellant’s representative asserted that an offered position must consider both work
and nonwork-related conditions. He also indicated that OWCP procedures provided that the job
offered must be for at least half the hours the employee was able to work. The representative
maintained that the job offer did not identify whether the bending was repetitive in nature and
thus violated appellant’s work restrictions.
By decision dated September 27, 2016, OWCP’s hearing representative affirmed the
October 15, 2015 decision. She found that the March 2015 offered position was within
Dr. Xeller’s restrictions, that Dr. Musselman had not provided rationale for his increased
restrictions, and that Dr. Hebrard’s opinion was speculative in nature. The hearing representative
advised that, as appellant was not on the periodic roll, the job offer did not need to be at least half
of the hours she was capable of working.
On appeal appellant’s representative contends that Dr. Xeller agreed that appellant
required electrodiagnostic testing. He asserts that the position offered by the employing
establishment did not specify whether the bending was repetitive, noting that on June 1, 2015
Dr. Musselman found that she could not perform the offered position. The representative
maintains that bending for one hour of the two and a half hour a day job would be repetitive,
citing J.N.8 He also contends that OWCP should have expanded acceptance to include an
aggravation of arthritis and that the offered position was not valid as it was for less than half of
the total hours she was released for work. The representative additionally asserts that
Dr. Musselman explained in his June 1, 2015 report why appellant could not perform the offered
position and that Dr. Hebrard found that she could not bend at the waist. He contends that the
position offered was temporary and thus not suitable and that it did not take into account all her
conditions, including her psychological difficulties.
LEGAL PRECEDENT
Section 10.500(a) states that appellant is only entitled to wage-loss compensation for the
periods during which an employee’s work-related medical condition prevents her from earning
the wage earned before the work-related injury. It further provides:
“[A]n employee is not entitled to compensation for any wage loss claimed on
[Form] CA-7 to the extent that evidence contemporaneous with the period
claimed on [a] CA-7 establishes that [an] employee had medical work restrictions
in place; that light duty within those work restrictions was available; and that the
employee was previously notified in writing that such duty was available.”9
8

Docket No. 09-1621 (issued July 14, 2010). In J.N., the Board reversed a termination of appellant’s
compensation for refusing suitable work under 5 U.S.C. § 8106(c). It found that the medical evidence indicated no
bending, but the offered position contained a discrepancy regarding whether bending was required.
9

20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.9(a) (June 2013).

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When it is determined that an appellant is no longer totally disabled from work and is not
on the periodic roll, OWCP procedures provide that the claims examiner should determine
whether light-duty work was available within the claimant’s medical restrictions during the
period for which compensation is claimed and a development letter should be sent to the
claimant setting forth the standards under section 10.500(a) including medical evidence required
to establish a claim for wage-loss compensation.10 The claims examiner, when adjudicating the
claim for wage-loss compensation, must also determine whether the evidence of record
establishes that appellant was provided with written notification of a light-duty job assignment,
that the job was within her restrictions, and that the job was available during the period wageloss compensation was claimed.11
Proceedings under FECA are not adversarial in nature is OWCP a disinterested arbiter.12
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is
done.13 Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in the proper manner.14
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain, sacroiliac sprain, and neck sprain
causally related to factors of her federal employment. It paid her compensation for total
disability on the supplemental rolls as of August 20, 2014.
Dr. Hebrard, in an August 20, 2014 report, diagnosed sacroiliac sprain and lumbar
discogenic dysfunction. He determined that appellant could work lifting no more than 10
pounds, alternating sitting and standing, and performing no repetitive bending.
On October 31, 2014 Dr. Xeller, an OWCP referral physician, diagnosed low back
sprain/strain superimposed on preexisting spondylosis and disc bulging and degeneration. He
indicated that appellant’s work duties would have aggravated her arthritis, but that she also had a
“nonwork-related component to this condition.” Dr. Xeller concurred with Dr. Musselman’s
recommendation for electrodiagnostic testing. He found that appellant could work full time in
sedentary employment reaching over her shoulder with less than 10 pounds, pushing, pulling,
and lifting less than 10 pounds, having an option to sit or stand, and performing no repetitive
bending. Dr. Xeller did not directly address the conditions to which he attributed her limitations.
On March 3, 2015 the employing establishment offered appellant a modified position as a
sales, services, and distribution associate working for two and a half hours per day boxing letters
10

Id. at Chapter 2.814.9(b)(2) (June 2013).

11

Id.

12

See B.S., Docket No. 17-0070 (issued September 14, 2017); Vanessa Young, 55 ECAB 575 (2004).

13

Richard E. Simpson, 55 ECAB 490 (2004).

14

See M.E., Docket No. 16-0770 (issued July 26, 2016); Melvin James, 55 ECAB 406 (2004).

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and flats. The requirements consisted of reaching up to three hours, standing and walking up to
three hours, and bending for one hour. The job provided the option to sit or stand and required
lifting under 10 pounds above the shoulder and pushing, pulling, and lifting up to 10 pounds.
Appellant refused the position, asserting that it was outside of her work restrictions. The
Board finds that the evidence fails to establish that the offered position was within the limitations
set forth by Dr. Xeller, OWCP’s referral physician. OWCP found that appellant was not entitled
to disability compensation beginning April 1, 2015 as the weight of the evidence, represented by
the opinion of Dr. Xeller, established that she could perform the light duty offered by the
employing establishment. Dr. Xeller, however, found that she could not perform repetitive
bending and the offered position required bending for up to one hour per day during a two and a
half hour work period. Dr. Musselman and Dr. Hebrard also opined that appellant was unable to
perform repetitive bending. The March 3, 2015 job offer did not clarify whether the bending for
one hour was repetitive and thus, it is not clear that it was within claimant’s work restrictions.15
As discussed, proceedings under FECA are not adversarial in nature and OWCP is not a
disinterested arbiter. Once OWCP undertakes development of the record, it must do a complete
job in procuring medical evidence that will resolve the relevant issues in the case.16 Dr. Xeller
found that employment factors, including moving boxes and repeated lifting, aggravated her
underlying arthritis and further diagnosed low back strain/sprain and underlying spondylosis
with disc degeneration and bulging. OWCP accepted only lumbar, neck, and sacroiliac sprains.
It did not seek clarification from Dr. Xeller regarding whether appellant’s claim should be
expanded to include additional work-related conditions. OWCP further did not provide him with
the results of the October 13, 2014 lumbar MRI scan study or the March 16, 2015
electrodiagnostic testing even though he found that appellant might need nerve root injections if
she had positive electrodiagnostic testing.17 Additionally, as noted, it is unclear whether
appellant can perform the duties of the position based on the bending restrictions found by
Dr. Xeller. As OWCP failed to obtain medical evidence sufficient to resolve the relevant
medical issues in this case, the Board finds that OWCP failed to meet its burden of proof.

15

See generally E.B., Docket No. 13-0319 (issued May 14, 2013) (finding that OWCP improperly terminated
appellant’s compensation under section 8106(c) as the medical evidence restricted her to two hours a day of bending
and the job offer did not identify the extent of bending required by the position).
16

See R.H., Docket No. 15-1696 (issued April 7, 2016); Richard F. Williams, 55 ECAB 343 (2004).

17

Counsel contends that OWCP erred in finding the offered position suitable as it was for less than half of the
total hours appellant was able to work, was temporary in nature, and did not consider all of her conditions, including
a psychological condition. Regarding temporary positions, OWCP procedures provide that if a claimant is on the
periodic roll, the position must take into account her employment-related condition as well as preexisting and
subsequently arisen conditions, and must be for a least half of the total hours that the claimant was released for
work. If the claimant is not on the periodic roll, the evidence must show that work was provided within appellant’s
injury-related restrictions. Supra note 10 at Chapter 2.814.9(b)(1) and (c)(2) (June 2013). Appellant was not paid
on the periodic roll, and thus there was no requirement for OWCP to consider nonemployment-related conditions or
the amount of hours offered by the employing establishment.

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CONCLUSION
The Board finds that OWCP improperly reduced appellant’s wage-loss compensation to
zero, effective April 1, 2015, under 20 C.F.R. § 10.500(a) based on her earnings had she
accepted a light-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.18
Issued: December 21, 2017
Washington, DC

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

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

18

Colleen Duff Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pineville, LA, Employer
__________________________________________

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Appearances:
Daniel E. Broussard, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-258
Issued: December 9, 2010

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 27, 2009 appellant filed an appeal from an April 30, 2009 decision of the
Office of Workers’ Compensation Programs that terminated her wage-loss compensation on the
grounds that she 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 benefits
effective October 29, 2006 pursuant to 5 U.S.C. § 8106(c). On appeal, appellant’s attorney asks
that her case be reviewed by the Board.
FACTUAL HISTORY
On December 14, 2004 appellant, then a 26-year-old part-time temporary relief rural
carrier, sustained an employment-related cervical sprain/strain, subjective visual disturbance,
displaced lumbar intervertebral disc and contusion to the face, neck and scalp when her postal

vehicle was hit from behind.1 A December 14, 2004 cervical spine x-ray demonstrated muscle
spasm but was otherwise unremarkable and a computerized tomography (CT) scan of the brain
was negative. A February 7, 2005 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated mild degenerative changes but no focal areas of impingement. Appellant returned
to modified duty for four hours a day on April 19, 2005.
By letter dated June 6, 2005, the Office referred appellant to Dr. John P. Sandifer, Boardcertified in orthopedic surgery, for a second opinion evaluation and in a June 22, 2005 report, he
provided physical examination findings and diagnosed facet joint arthropathy with mild
degenerative disc disease of the lumbar spine with nerve root irritation and cervical strain with
nerve root irritation, resolved. Dr. Sandifer advised that the conditions were related to the
December 14, 2004 employment injury and that, while she could not return to her regular job as
mail carrier, she could perform modified duty and provided restrictions to her physical activity,
stating that she should achieve an eight-hour workday in three months and that the restrictions
would apply for three months.
On July 26, 2005 Dr. Gerald J. Leglue, Jr., an attending Board-certified physiatrist,
advised that appellant should remain off work until reevaluated in approximately one month.
Electromyographic (EMG) testing of the lower extremities that day was essentially normal on
the right and demonstrated L5 findings on the left. Appellant stopped work that day. In an
August 23, 2005 report, Dr. Leglue advised that he had reviewed Dr. Sandifer’s report and that
she had a progression of symptoms since his evaluation. He noted EMG evidence of a recent
nerve injury indicating that appellant could have internal disc derangement and advised that she
should be off work until evaluation by Dr. Charles Aprill, a Board-certified radiologist.
Appellant was returned to the periodic compensation rolls. On December 6, 2005 Dr. Leglue
advised that she could work less than one hour.
The Office determined that a conflict in medical evidence had been created between the
opinions of Dr. Leglue and Dr. Sandifer regarding appellant’s ability to work and on
December 29, 2005 referred her to Dr. Robert E. Holladay, a Board-certified orthopedic surgeon,
for an impartial evaluation. In a January 12, 2006 report, Dr. Holladay noted the history of
injury and his review of the medical record. He reported appellant’s complaints of low back pain
with burning in both legs and heels and numbness and tingling in her calves. Physical
examination demonstrated full neck range of motion, intact sensation and 5/5 motor strength in
both upper extremities with positive Hoffman’s signs, greater on the left. When seated or
standing, appellant’s lower extremities had a tendency to tremble and shake with obvious clonus,
left worse than the right, restricted lower extremity range of motion and 4/5 motor strength with
fair balance. Dr. Holladay advised that, while appellant continued to have residuals of the
December 14, 2004 employment injury, she could return to restricted duty for four hours a day
with limitations on standing, walking, bending, stooping, twisting, climbing and crawling and a
10-pound lifting restriction. He also stated that with the objective findings of cervical
myelopathy, that was not work related, she was not physically capable of returning to work,
advising that she needed an urgent evaluation of her nonwork-related cervical myelopathy
condition, to include an upper extremity EMG study and cervical MRI scan, to be followed by
1

The record indicates that there is a third-party claim in this case.

2

evaluation by a neurosurgeon and that until she had a full and complete evaluation of this
condition, she was not likely to make progress and return to functional activities, both on and off
work.
Dr. Leglue continued to submit reports describing appellant’s complaints of neck and low
back pain with upper extremity paresthesias. In an April 24, 2006 work capacity evaluation,
Dr. Holladay advised that she could not perform her usual job due to nonwork-related cervical
myelopathy but could work four hours a day with restrictions of four hours sitting; one hour
walking and standing; no twisting, bending, stooping, squatting, kneeling or climbing; and
pushing and pulling limited to two hours with a lifting restriction of less than 10 pounds. By
report dated May 5, 2006, Dr. Leglue advised that he disagreed with Drs. Sandifer’s
and Holladay’s opinions that appellant could return to part-time work, stating that, if she were to
be involved with any further significant trauma, she was at an increased risk of spinal cord
damage.
On July 14, 2006 the employing establishment offered appellant a part-time position as a
modified temporary relief carrier for four hours daily with duties of express mail delivery for up
to one hour, answering the telephone for up to one hour and checking Undeliverable Bulk
Business Mail for up to two hours. The physical requirements were described as walking,
standing and driving intermittently for up to 1 hour; no pushing or pulling over 10 pounds
intermittently for up to 2 hours; lifting no more than 10 pounds for 2 hours; and sitting limited to
2 hours, with a 15-minute break after 2 hours of work. By letter dated July 25, 2006, the Office
advised appellant that the position offered was suitable. Appellant was notified that if she failed
to report to work or failed to demonstrate that the failure was justified, pursuant to section 8106
of the Federal Employees’ Compensation Act,2 her right to compensation for wage loss or a
schedule award would be terminated. She was given 30 days to respond.
In reports dated July 26 and August 7, 2006, Dr. Leglue advised that appellant continued
to have significant pain and that it was inappropriate for her to work, given the significant
abnormalities seen on scans. By letter dated August 25, 2006, the Office advised her that the
reasons given for refusing to accept the offered position were insufficient and she was given an
additional 15 days to accept. On July 25, 2006 Dr. Leglue advised that appellant should remain
off work until evaluated by a neurosurgeon. On September 22, 2006 he noted that she was seen
by Dr. Bradley J. Bartholomew, a Board-certified neurosurgeon, who recommended additional
diagnostic studies.
By decision dated October 25, 2006, the Office found that the weight of the medical
evidence rested with the opinions of Drs. Sandifer and Holladay and terminated appellant’s
compensation benefits, effective October 29, 2006, on the grounds that she declined an offer of
suitable work. In reports dated from November 27, 2006 to January 10, 2007, Dr. Leglue noted
her continued complaints of significant neck and low back pain and described her medication
regimen. On February 20, 2007 appellant through her attorney, requested reconsideration and
submitted her depositions dated June 14, 2005 and November 2, 2006, prepared for her

2

5 U.S.C. §§ 8101-8193.

3

third-party claim, in which she testified regarding the accident, her medical condition and
treatment regimen and that her daily activities were limited.
In a September 7, 2006 report, Dr. Bartholomew noted the history of injury, the
February 7, 2005 MRI scan findings and appellant’s complaints of neck pain and upper
extremity numbness, hand weakness and radiating low back pain. On physical examination he
noted normal strength in the upper and lower extremities, negative straight leg and Hoffman’s
tests and intact sensory examination. Neck examination demonstrated spasm and tenderness
with normal range of motion. Back examination showed bilateral paravertebral tenderness
without spasm and normal range of motion. Dr. Bartholomew recommended MRI scans of the
cervical spine and right hip and discography to elucidate the pain generator.
In a November 8, 2006 report, Dr. Randall D. Lea, a Board-certified orthopedic surgeon,
described the history of injury and noted his review of medical records and appellant’s primary
complaint of low back and leg pain with occasional headaches and neck pain. He provided
physical examination findings and diagnosed cervical sprain/strain with associated possible
cervical myelopathy and lumbar sprain/strain with associated lumbar spondylosis and
degenerative disc disease. Dr. Lea advised that appellant was not able to return to work until the
cervical myelopathy was clarified but that if she did not have cervical myelopathy, she could
work for four hours daily with restrictions to her physical activity including occasional lifting of
up to 10 pounds and alternate sitting, standing and walking. In a November 16, 2006 deposition,
he described her medical care beginning on December 20, 2004. Dr. Leglue testified that
appellant could not return to a part-time sedentary position because it could potentially damage
her spinal cord and continued to submit reports reiterating his findings and conclusions.
In a merit decision dated May 25, 2007, the Office reviewed the evidence submitted and
denied modification of the October 25, 2006 decision. Dr. Leglue continued to submit reports
advising that appellant continued to have neck and low back pain and in a November 29, 2007
report, Dr. Bartholomew advised that physical examination showed normal strength and
sensation in the lower extremities with a negative straight leg test and no back spasm but
tenderness in bilateral paravertebral areas of the lumbar spine with decreased range of motion
due to pain. He performed a lumbar facet block from L3 to S1 on February 13, 2008 and on
March 7, 2008 noted her report that she was doing better. Physical examination demonstrated
normal strength, sensation and straight leg testing with normal back range of motion and mild
bilateral paravertebral tenderness and no spasm. On March 18, 2008 Dr. Leglue released
appellant to return to work and on April 1, 2008, he noted that she was working.
On May 21, 2008 appellant, through her attorney, requested reconsideration and
submitted handwritten notes from Dr. Bartholomew dated September 7, 2006 and a December 5,
2007 report in which he advised that she could return to light duty. September 13, 2007 MRI
scans of the cervical spine and hips demonstrated no significant abnormality and an October 9,
2007 lumbar spine discogram with postdiscogram CT scan were interpreted as normal. On
October 17, 2007 Dr. Leglue advised that appellant should remain off work until she had
psychological evaluation. In reports dated May 13, 2008, Dr. Aprill noted her complaint of back
and buttock pain radiating into both legs. He provided physical examination findings and
performed lumbar facet injections on the right at L4-5 and L5-S1. Dr. Aprill advised that

4

appellant’s findings implied chronic right facet joint sprain at L5-S1 and probably L4-5. In
reports dated May 30 and June 30, 2008, Dr. Leglue described her medication regimen.
By decision dated August 26, 2008, the Office denied modification of the prior decisions.
On January 28, 2009, appellant, through her attorney requested reconsideration and submitted
additional medical evidence. On August 12, 2008 Dr. Aprill performed a confirmatory block
with denervation at right L3 and L4 medial branches and right L5 dorsal ramus. By report dated
August 19, 2008, he noted his review of the February 7, 2005 lumbar MRI scan and the
October 19, 2007 lumbar discography with postdiscography CT scan. On October 29, 2008
Dr. Leglue noted that appellant had returned to work as a postal carrier.
In a merit decision dated April 30, 2009, the Office denied modification of the prior
decisions.
LEGAL PRECEDENT
Section 8106(c) of the Act provide in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”3
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.4 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.5 To justify termination, the Office must show that the
work offered was suitable and that the employing establishment was informed of the
consequences of her refusal to accept such employment.6 In determining what constitutes
“suitable work” for a particular disabled employee, the Office considers the employee’s current
physical limitations, whether the work is available within the employee’s demonstrated
commuting area, the employee’s qualifications to perform such work and other relevant factors.7
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.8
Section 8106(c) will be narrowly construed as it serves as a penalty provision which may bar an

3

Id. at § 8106(c).

4

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

5

20 C.F.R. § 10.517(a).

6

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5.a(1) (July 1997); see Lorraine C. Hall, 51 ECAB 477 (2000).

5

employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.9
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.10 It is well established that the Office must consider preexisting and
subsequently acquired conditions in the evaluation of suitability of an offered position.11
Section 8123(a) of the Act provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.12 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.13
ANALYSIS
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
monetary compensation on the grounds that she refused a July 14, 2006 offer of suitable work.
The Office found that the weight of the medical evidence established that the position was within
appellant’s physical capabilities. It had determined that a conflict in medical evidence had been
created between the opinions of Dr. Leglue, an attending Board-certified physiatrist, and
Dr. Sandifer, a Board-certified orthopedic surgeon, who performed a second opinion evaluation
for the Office and referred her to Dr. Holladay, also Board-certified in orthopedic surgery, for a
referee opinion.
The Board finds that Dr. Holladay’s January 12, 2006 report contains inconsistencies
such that his opinion is insufficient to establish that appellant can perform the offered position.
Dr. Holladay noted the history of injury and his review of the medical record. He provided
physical examination findings and advised that, while appellant continued to have residuals of
the December 14, 2004 employment injury, she could return to restricted duty for four hours a
day with limitations on standing, walking, bending, stooping, twisting, climbing and crawling
and a 10-pound lifting restriction. However, Dr. Holladay also advised that she was not
physically capable of returning to work due to the cervical myelopathy and needed an urgent
evaluation for this nonemployment-related condition, to include an upper extremity and neck
EMG study and a cervical MRI scan examination, to be followed by an evaluation by a
neurosurgeon. He opined that until appellant had a “full and complete” evaluation of the

9

Gloria G. Godfrey, 52 ECAB 486 (2001).

10

Gayle Harris, 52 ECAB 319 (2001).

11

Richard P. Cortes, 56 ECAB 200 (2004).

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

Manuel Gill, 52 ECAB 282 (2001).

6

underlying cervical condition, she was not likely to make progress or return to functional
activities, either at work or off work.
While the offered position was within the physical restrictions provided by Dr. Holliday
in his January 12 and April 24, 2006 reports, he also stated that appellant was not capable of
returning to work and stressed that she needed an urgent evaluation for her cervical myelopathy
condition. It is well established that the Office must consider preexisting and subsequently
acquired conditions in the evaluation of suitability of an offered position.14 As a penalty
provision, section 8106(c)(2) must be narrowly construed.15 The Board therefore finds that due
to the inconsistencies in Dr. Holladay’s opinion, the evidence does not establish the suitability of
the offered position and the Office did not discharge its burden of proof to justify the termination
of appellant’s compensation effective October 29, 2006 pursuant to section 8106(c)(2) of the
Act.16
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits on the grounds that she refused an offer of suitable work pursuant to
5 U.S.C. § 8106(a).

14

Id.

15

J.F., 60 ECAB ____ (Docket No. 08-439, issued October 24, 2008).

16

5 U.S.C. § 8106(c)(2); see R.B., 60 ECAB ____ (Docket No. 08-2154, issued May 8, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 9, 2010
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 06-2143
Issued: June 1, 2007

Case Submitted on the Record

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

JURISDICTION
On September 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 23, 2006. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she had
intermittent disability from February 21 to April 11, 2006 and April 13 to May 5, 2006 causally
related to an August 2, 2004 employment injury.
FACTUAL HISTORY
On September 2, 2004 appellant, then a 48-year-old supervisor, filed a traumatic injury
claim alleging that on August 2, 2004 she injured her left knee when moving a wire cage. The
Office accepted that she sustained derangement of the posterior horn of the left medial meniscus,

chondromalacia of the patella and tricompartmental chondromalacia. Appellant did not stop
work but returned to a limited-duty position.1
Appellant came under the treatment of Dr. Michael Duchamp, an osteopath and Boardcertified orthopedic surgeon, who treated appellant on June 6, 2005 for left knee pain associated
with a work-related injury. Dr. Duchamp referenced an August 28, 2004 magnetic resonance
imaging (MRI) scan of the left knee, which revealed a questionable vertical tear of the posterior
horn of the medial meniscus, tricompartmental chondromalacia, most severe in the lateral patella
and small suprapatellar joint effusion. On June 21, 2005 Dr. Duchamp performed an arthroscopy
of the left knee, partial medial meniscectomy, chondroplasty of the femoral sulcus, medial and
lateral tibial plateau, medial femoral condyle and patella and a partial synovectomy. He
diagnosed tear of the posterior horn of the medial meniscus of the left knee, Grade 4
chondromalacia of the femoral sulcus, medial and lateral tibial plateaus, medial femoral condyle
and patella and synovitis. In reports dated June 21 and 24, 2005, Dr. Duchamp diagnosed
derangement of the posterior horn of the medial meniscus and primarily localized osteoarthritis
of the lower leg. On October 12, 2005 he advised that appellant reached maximum medical
improvement and could return to work in a sedentary position with occasional lifting up to four
pounds in conformance with the functional capacity evaluation of October 7, 2005.
On February 10, 2006 the employing establishment offered appellant a modified limitedduty position as a clerk effective February 10, 2006. Appellant accepted the position and
returned to work.
By decision dated April 10, 2006, the Office found that appellant had been employed as a
full-time modified clerk effective February 8, 2006, which was over 60 days and that the pay in
that position of $1,034.19 per week was equivalent to the pay rate for the position appellant held
at the time of her injury; thus, no loss of wages occurred. The Office concluded that her actual
earnings as a full-time modified clerk fairly and reasonably represented her wage-earning
capacity.2
On April 12, 2006 appellant filed a Form CA-7, claim for compensation, for 45.67 hours
of leave without pay (LWOP) during the period February 21 to April 11, 2006. She requested 8
hours LWOP for February 21, March 27 and 28, April 6 and 11, 2006, 2.9 hours of LWOP for
February 27, 2006 and 2.77 hours of LWOP for March 14, 2006.
On May 15, 2006 appellant filed a Form CA-7, claim for compensation, for 68.58 hours
of LWOP during the period April 13 to May 5, 2006. She requested 8 hours of LWOP for
April 13, 14 and 19, and May 1 to 5, 2006, 1.57 hours of LWOP on April 18, 2006 and 3.01
hours of LWOP on April 26, 2006.
In a letter dated May 23, 2006, the Office authorized appellant to change physicians to a
Dr. Bryce Benbow. In a note dated May 26, 2006, Dr. Benbow prescribed a recumbent exercise
1

Appellant filed a separate claim for a work-related injury, which occurred on June 21, 1993, file number
16-0227748. The facts pertaining to this injury are not in the case record.
2

Appellant has not appealed this decision.

2

bike and an ergonomic chair for appellant. He referred appellant to Dr. Mikesh Shah, a Boardcertified internist, for an electromyography (EMG) and nerve conduction studies. Dr. Shah
opined that appellant was totally incapacitated from work on February 21, March 27 and
April 19, 2006, as a result of her work injury of August 2, 2004. In other undated notes, he
indicated that she had a doctor’s appointment on February 27, 2006 at 1:00 p.m. and had to leave
work at 11:50 a.m. and another appointment on March 14, 2006 at 9:00 a.m. and arrived at work
at 10:20 a.m. Dr. Shah advised that the medical appointments were necessary for treatment of
appellant’s work injury of August 2, 2004. Other notes advised that she was totally incapacitated
from work on March 28, April 6, 11, 13 and 14, 2006 due to her injury of August 2, 2004. On
April 18, 2006 the Office authorized Dr. Shah to perform a series of three steroid injections on
appellant’s knee. In an undated statement, Dr. Shah noted that on April 18, 2006 appellant had a
doctor’s appointment at 2:45 p.m. and left work at 1:30 p.m. and advised that this appointment
was necessary for medical treatment for her work injury of August 2, 2004. He further noted
that on April 19, 2006 appellant was totally incapacitated from work as a result of her work
injury of August 2, 2004. Dr. Shah advised that she was totally incapacitated for work on
April 26, 2006 for 3.01 hours due to a doctor’s appointment for her injury of August 2, 2004. In
an undated note, he indicated that appellant was totally incapacitated for work from May 1 to
May 5, 2006 and had a doctor’s appointment on May 3, 2006. Appellant submitted an EMG and
a nerve conduction report dated May 17, 2006, which revealed electrophysiological evidence of
left S1 radiculopathy.
By letter dated May 30, 2006, the Office advised appellant that the medical evidence on
file was insufficient to establish her intermittent disability from February 21 to May 5, 2006.
The Office asked her to submit additional information including a comprehensive medical report
from her treating physician which included a reasoned explanation as to how the specific work
factors or incidents identified by appellant had rendered her unable to perform the duties of her
modified job.
Appellant submitted duplicative notes from Dr. Shah and physical therapy reports from
2005.
In a decision dated June 23, 2006, the Office granted appellant’s claim for compensation
for three hours on February 24, 2006 three hours for March 14, 2006 and eight hours for
May 3, 2006. It denied her claim for compensation for the other intermittent periods on the
grounds that the evidence was not sufficient to establish that her disability was due to her
accepted work injury.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.3 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.4 The issue of
3

See Fereidoon Kharabi, 52 ECAB 291 (2001).

4

Id.

3

whether a particular injury causes disability for work must be resolved by competent medical
evidence.5
ANALYSIS
The Office accepted appellant’s claim for derangement of the posterior horn of the left
medial meniscus, chondromalacia of the patella and tricompartmental chondromalacia. The
Office accepted that she was disabled from work for three hours on March 14, 2006 and eight
hours on May 3, 2006 based on Dr. Shah’s treatment notes for those dates. It also accepted that
appellant had three hours of wage-loss hours on February 24, 2006. However, there is
insufficient medical evidence to support that appellant was disabled from work on this day.
Rather, Dr. Shah indicated that on February 27, 2006 appellant had a doctor’s appointment for
treatment of her work injury at 1:00 p.m. and left work at 11:50 a.m. It appears that the Office
incorrectly paid appellant three hours of compensation for February 24, 2006 instead of on
February 27, 2006. The Board further notes that the evidence is sufficient to award
compensation for 1.57 hours for April 18, 2006 as the record reveals that Dr. Shah gave
appellant an injection for her employment injury on this date. Additionally, the medical record
supports that appellant received further medical treatment on April 26, 2006 and claimed 3.01
hours of LWOP to attend this medical appointment. Dr. Shah noted that appellant was unable to
work on April 26, 2006 for 3.01 hours due to a doctor’s appointment for her injury of
August 2, 2004. The Board, therefore, finds that the record supports that appellant was disabled
due to the accepted injury for 3 hours on February 27 and March 14, 2006, 8 hours on May 3,
2006, 1.57 hours on April 18, 2006 and 3.01 hours on April 26, 2006.
However, the medical evidence fails to establish her disability for other intermittent dates
of February 21 to May 5, 2006.
In several undated statements, Dr. Shah indicated that appellant was totally incapacitated
from work on February 21, March 27 and 28, April 6, 11, 13, 14 and 19 and May 1 to 5, 2006 as
a result of her work injury of August 2, 2004. In each of these notes, he indicated that the
medical appointments were necessary for the treatment of appellant’s work injury of
August 2, 2004. Although Dr. Shah generally supported causal relationship, he did not provide
medical reasoning, or rationale, explaining his reasons for finding appellant disabled due to her
accepted conditions of derangement of the posterior horn of the left medial meniscus,
chondromalacia of the patella and tricompartmental chondromalacia.6 The issue of whether
appellant’s disability was related to the accepted conditions is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that
conclusion with sound medical reasoning.7 Dr. Shah failed to provide adequate medical
reasoning to support his determination that the claimed periods of disability were causally related
5

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

See Jacqueline M. Nixon-Steward, supra note 5.

4

to the accepted work injury. In a letter dated May 30, 2006, the Office advised appellant of the
evidence required; however, she did not submit sufficient medical evidence to establish that she
was disabled due to her accepted injury for the dates claimed.
The remainder of the medical evidence, specifically an EMG and nerve conduction study
dated May 17, 2006 and physical therapy notes failed to provide a specific opinion on causal
relationship between the claimed period of disability and the accepted employment injury of
August 2, 2004. Consequently, the medical evidence did not establish that the claimed period of
disability were due to appellant’s employment injury of August 2, 2004.8
CONCLUSION
The Board finds that, except as noted, appellant has failed to establish that appellant’s
condition during the claimed period of disability is causally related to the accepted employment
injury of August 2, 2004.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2006 is affirmed as modified.
Issued: June 1, 2007
Washington, DC

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

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

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

8

The Board notes that, as appellant has sought only a limited period of wage-loss compensation, the Office was
not precluded from adjudicating this matter without issuing a formal decision on modification of appellant’s
previous wage-earning capacity determination. See Katherine T. Kreger, 55 ECAB 633 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE NAVY, TRIDENT
REFIT FACILITY, Kings Bay, GA, Employer
__________________________________________

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

Docket No. 08-559
Issued: June 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated November 15, 2007. 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 five percent permanent impairment of both
his right and left upper extremities for which he received a schedule award.
FACTUAL HISTORY
On April 4, 2006 appellant, then a 56-year-old mechanical production controller, filed an
occupational disease claim alleging that he sustained bilateral carpal tunnel syndrome (CTS) in
the performance of duty. He realized the condition was caused or aggravated by his employment
on December 14, 2005. Appellant did not initially stop work.

On May 10, 2006 the Office accepted his claim for bilateral CTS. The Office authorized
right and left carpal tunnel releases, which were performed on May 22 and June 12, 2006. He
received appropriate compensation benefits.
On July 2, 2007 appellant requested a schedule award.
By letters dated July 16 and September 21, 2007, the Office requested that appellant’s
physician provide an assessment of permanent impairment based upon the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A.,
Guides).
In an October 9, 2007 report, Dr. Chason Hayes, a Board-certified orthopedic surgeon
and treating physician, noted that appellant had complaints of bilateral hand pain with numbness,
and a long history of CTS. He advised that, despite surgery over a year prior, appellant had
“never really gotten any better.” Dr. Hayes examined the right and left wrists and noted
tenderness over the scar, no swelling or effusion, full flexion, extension, supination and
pronation. He opined that appellant had a 30 percent permanent impairment to both wrists due to
decreased motion, grip strength and residual neurological deficits. Dr. Hayes advised that
appellant had severe residual symptoms but there were no restrictions in his duties.
In a November 8, 2007 report, the Office medical adviser noted appellant’s history of
injury and treatment, which included bilateral carpal tunnel releases on May 22 and
June 12, 2006. He utilized the A.M.A., Guides and found that maximum medical improvement
was reached on October 9, 2007, the date of Dr. Hayes’ report. The Office medical adviser
noted that appellant had bilateral pain and numbness in the median nerve tendons bilaterally with
4/5 grip strength loss but no sensory deficit and full range of motion. He noted that it would be
reasonable for appellant to have a five percent permanent impairment on account of residuals for
each upper extremity following carpal tunnel surgery release. Furthermore, the Office medical
adviser explained that a rating of 30 percent would not be warranted according to page 508 of the
A.M.A., Guides because loss of strength was not to be used in cases of decreased motion, pain,
deformities or amputations.
In a memorandum of telephone call dated November 14, 2007, appellant advised the
Office that the schedule award should be paid based on the Office medical adviser’s report.
Appellant indicated that he did not wish to wait any longer.
On November 15, 2007 the Office granted appellant a schedule award for a five percent
permanent impairment to both the right and left arms. The award covered a period of 31.2 weeks
from October 9, 2007 to May 14, 2008.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions

1

5 U.S.C. §§ 8101-8193.

2

and organs of the body.2 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.3 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
The fifth edition of the A.M.A., Guides, regarding CTS, provides that if, after an optimal
recovery time following surgical decompression, an individual continues to complain of pain,
paresthesias and/or difficulties in performing certain activities, three possible scenarios can be
present: (1) positive clinical findings of median nerve dysfunction and electrical conduction
delay(s): the impairment due to residual CTS is rated according to the sensory and/or motor
deficits; (2) normal sensibility and opposition strength with abnormal sensory and/or motor
latencies or abnormal EMG testing of the thenar muscles: a residual CTS is still present and an
impairment rating not to exceed five percent of the upper extremity may be justified; and
(3) normal sensibility (two-point discrimination and Semmes-Weinstein monofilament testing),
opposition strength and nerve conduction studies, in which case there is no objective basis for an
impairment rating.5
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.6 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.
ANALYSIS
The Office accepted that appellant sustained bilateral CTS in the performance of duty and
authorized bilateral carpal tunnel releases.
Dr. Hayes provided some findings, but failed to provide an impairment rating that
comports with the A.M.A., Guides. For example, he stated that appellant had a 30 percent
permanent impairment to both wrists due to decreased motion, grip strength and residual
neurological deficits. However, Dr. Hayes did not explain how he derived this estimate with
reference to the specific tables in the A.M.A., Guides. Furthermore, regarding lost motion, the
Board has found that the fifth edition of the A.M.A., Guides provides that impairment for CTS
2

5 U.S.C. § 8107.

3

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

4

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

5

Silvester DeLuca, 53 ECAB 500 (2002); A.M.A., Guides 495.

6

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.

3

be rated on motor and sensory deficits only.7 Likewise, in evaluating impairment due to carpal
tunnel syndrome, there generally will be no ratings based on loss of grip strength.8
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.9
The Office determined that appellant had five percent impairment to his left and right
upper extremities. The Office medical adviser applied the A.M.A., Guides. Pursuant to the
A.M.A., Guides, the second category Chapter 16, section 16.5d states that, when normal
sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal
electromyogram testing of the thenar muscles, a residual CTS is still present, an impairment
rating not to exceed five percent of the upper extremity may be justified.10 The Office medical
adviser determined that, based on appellant’s residuals following surgery, he had five percent
impairment to each upper extremity. The Board finds that the Office medical adviser properly
applied the A.M.A., Guides. There is no evidence of record that appellant sustained greater than
five percent impairment to each upper extremity. The Office properly found that appellant had
five percent impairment to his left upper extremity and five percent impairment to his right upper
extremity.
CONCLUSION
The Board finds that appellant does not have more than five percent impairment of his
left upper extremity and five percent impairment of his right upper extremity.

7

See T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007).

8

See E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

9

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

10

See A.M.A., Guides 495.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 15, 2007 is affirmed.
Issued: June 16, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1847
Issued: March 4, 2016

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 September 9, 2015 appellant, through counsel, filed a timely appeal from a July 22,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has proven permanent impairment of his right upper
extremity warranting a schedule award.
FACTUAL HISTORY
On April 29, 2007 appellant, then a 40-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on that same date he sustained a contusion of the right hand
when he smashed his hand between a steel column and mail wagon rack. He did not stop work.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for right hand contusion, right wrist traumatic median neuropathy,
and right wrist traumatic radial neuropathy.
In a February 18, 2008 electromyography (EMG) report, Dr. Robert F. Richardson, a
Board-certified neurologist, reported that the right upper extremity EMG revealed evidence of a
mild median mononeuropathy at the right wrist (carpal tunnel syndrome), without active
denervation of thenar muscle. The testing also provided electrophysiological evidence of a distal
sensory radial neuropathy.
On October 16, 2009 appellant underwent right carpal tunnel release and decompression
of the right ulnar nerve at the elbow and wrist. He returned to work on October 29, 2009 with
restrictions of no repetitive use of his right hand or elbow. Appellant continued to work
modified light duty. He received intermittent short-term rolls wage-loss benefits as of
August 26, 2010.
OWCP referred appellant, a statement of accepted facts (SOAF), a series of questions,
and the case file to Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, on January 19,
2012 for an examination and opinion regarding the nature and extent of disability.2
In a February 7, 2012 report, Dr. Kaffen provided a review of past medical records and
findings on physical examination. He opined that appellant’s accepted injuries of contusion of
right wrist and hand, right wrist median neuropathy, and right wrist radial neuropathy had
resolved and that his current medical condition of ulnar neuropathy of the right upper extremity
at the elbow was nonwork related. Dr. Kaffen concluded that appellant was capable of
performing his work duties as a mail processor without restrictions on a full-time basis based on
the accepted conditions in this claim.
On February 18, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 24, 2014, OWCP requested that appellant submit an impairment
evaluation from his attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). It afforded
him 30 days to submit the requested impairment evaluation.
By letter dated April 9, 2014, counsel argued that appellant sustained permanent
impairment due to his work-related injuries and submitted a March 27, 2014 report from
Dr. Catherine Watkins Campbell, Board-certified in family medicine, in support of his schedule
award claim.
In the March 27, 2014 report, Dr. Campbell related that she evaluated appellant on
March 6, 2014 for the accepted conditions of contusion of right wrist and hand, right median
nerve lesion, and lesion of right radial nerve. She summarized past medical records, reviewed
2

While OWCP referred to Dr. Kaffen as a referee physician, absent a conflict in medical opinion regarding the
degree of permanent impairment. Dr. Kaffen’s designation as an impartial medical examiner was inappropriate
regarding the schedule award issue. His finding therefore, may not be afforded the special weight of an impartial
medical specialist and he should be considered as a second opinion physician. See M.R., Docket No. 11-1419
(issued May 12, 2012).

2

diagnostic testing, and provided findings on physical examination. Dr. Campbell opined that
appellant reached maximum medical improvement (MMI) during the summer of 2013.
Using the sixth edition of the A.M.A., Guides,3 Dr. Campbell opined that appellant had
five percent permanent impairment of the right upper extremity. According to Table 15-23
(Entrapment/Compression Neuropathy Impairment), she calculated three percent upper extremity
impairment for the diagnosis right median nerve lesion.4 For the diagnosis of right radial nerve
lesion, in accordance with Table 15-18 (Impairment of Sensory Only Peripheral Nerve),
Dr. Campbell calculated one percent impairment of the right upper extremity.5 Based on
Table 15-3 (Wrist Regional Grid), she calculated one percent impairment of the right upper
extremity for the diagnosis of right wrist and hand contusion.6 Thus, Dr. Campbell determined
that appellant had five percent permanent impairment of the right upper extremity.
OWCP routed Dr. Campbell’s report, the SOAF, and the case file to Dr. Morley Slutsky,
an OWCP district medical adviser (DMA) Board-certified in occupational medicine, for review
and a determination on whether appellant sustained a permanent partial impairment of the right
upper extremity and the appropriate date of MMI.
In a July 30, 2014 report, Dr. Slutsky disagreed with Dr. Campbell’s assessment and
opined that appellant had no ratable right upper extremity impairment as a result of his workrelated injuries. He explained that the date of MMI was February 7, 2012, the date of
Dr. Kaffen’s examination. Dr. Slutsky further noted that he utilized Dr. Kaffen’s findings for
final rating purposes as he found no objective evidence of right wrist contusion and radial nerve
involvement. He reported that there was dysesthesia in the right medial nerve distribution but
appellant’s pre and postoperative EMG testing did not meet the A.M.A., Guides criteria to use
Table 15-23 (Entrapment/Compression Neuropathy Impairment).7 Dr. Slutsky noted that
because appellant’s symptoms related to carpal tunnel syndrome, the A.M.A., Guides required
the right wrist to be rated as nonspecific wrist pain.8 He noted that Dr. Campbell documented
sensory changes in the right radial nerve distribution which were not found by other providers in
recent records and rated appellant’s wrist contusion when this condition had resolved.
Dr. Slutsky further noted that Dr. Campbell used the compression neuropathy table despite pre
and postoperative EMG/nerve conduction velocity (NCV) tests which revealed normal findings.
Utilizing Table 15-3 for the diagnosis of right wrist nonspecific pain, Dr. Slutsky
subtracted 1, the numerical value of the class, from the numerical value of the grade modifier for
each applicable component he assigned (physical examination, functional history, and clinical
3

A.M.A., Guides (2009).

4

Id. at 449.

5

Id. at 429.

6

Id. at 395.

7

Supra note 3.

8

Id. at 445-46.

3

studies) and then added those values, resulting in a net adjustment of -2 ((0-1) + (1-1) + (0-1)).9
Application of the net adjustment formula meant that movement was warranted two places to the
left of class 1 default value grade C to grade A for zero percent right upper extremity
impairment.10
By decision dated December 3, 2014, OWCP denied appellant’s claim for a schedule
award as the evidence was insufficient to establish a permanent impairment to a member or
function of the body.
On December 9, 2014 appellant, through counsel, requested a telephone hearing before a
hearing representative in OWCP’s Branch of Hearings and Review.
At the June 9, 2015 hearing, counsel for appellant argued that Dr. Campbell’s report was
sufficient to establish permanent impairment to the right upper extremity. He further asserted
that there was a conflict between Dr. Slutsky and Dr. Campbell and the case should be sent for
an impartial examination to resolve the conflict in medical opinion.
By decision dated July 22, 2015, a hearing representative affirmed the December 3, 2014
schedule award decision. She noted that Dr. Slutsky properly utilized the A.M.A., Guides to
determine that appellant did not sustain any permanent impairment to a member or function of
the body.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.11 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.12
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).13
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
9

Supra note 5.

10

Id.

11

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
13

A.M.A., Guides, supra note 2 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

4

to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition
(including identification of a default grade value), the net adjustment formula is applied using the
grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS).14 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15 Under Chapter 2.3, evaluators are directed
to provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.16
In the sixth edition, a grid listing relevant diagnoses is provided for each region of the
upper extremity: the digit region, the wrist region, the elbow region, and the shoulder region. A
regional impairment will be defined by class and grade. The class is determined first by using
the corresponding regional grid. The grade is initially assigned the default value for that class.
This value may be adjusted slightly using nonkey grade modifiers such as functional history,
physical examination, and clinical studies.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.18
ANALYSIS
OWCP accepted appellant’s claim for right hand contusion, right wrist traumatic median
neuropathy, and right wrist traumatic radial neuropathy. It approved surgery for decompression
of the right ulnar nerve at elbow and wrist and a right carpal tunnel release of October 16, 2009.
The issue is whether appellant established permanent impairment due to his work-related
injuries. The Board finds this case is not in posture for decision.
OWCP based its denial of appellant’s schedule award claim on the July 30, 2014 medical
report of Dr. Slutsky, serving as the OWCP DMA. The Board notes that Dr. Slutsky based his
impairment rating on the findings made by Dr. Kaffen in his February 7, 2012 second opinion
medical examination. Dr. Campbell’s impairment rating was based on her March 6, 2014
evaluation documenting more current findings pertaining to appellant’s condition. The Board
finds that Dr. Slutsky’s impairment rating was based on stale medical evidence and is
insufficient to form the basis for appellant’s schedule award claim.19

14

Id. at 385-419.

15

Id. at 411.

16

Id. at 23-28.

17

Id. at 387.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (February 2013).
19

B.N., Docket No. 12-1394 (issued August 5, 2013).

5

Dr. Slutsky references the results of pre and postoperative EMG testing as a basis to
utilize the diagnosis of right wrist nonspecific pain. However, the only EMG study specifically
addressed was the February 18, 2008 preoperative test in support of his assessment. It is unclear
what postoperative report Dr. Slutsky is referring to as the record is devoid of an EMG study
following appellant’s April 29, 2007 injury.
Moreover, while Dr. Slutsky noted that
Dr. Campbell documented sensory changes in the right radial nerve distribution which were not
found by other providers in recent records, he failed to specifically address what current records
he was referring to and the differences in these evaluation findings. It is unclear why Dr. Slutsky
would utilize a February 18, 2008 report if there were more current medical examination
findings of record. Thus, the older medical reports referenced by Dr. Slutsky are insufficient to
establish appellant’s claim for a schedule award.20
The Board has held that stale medical evidence cannot form the basis for current
evaluation of residual symptomology or disability determination.21 Therefore, the Board finds
that Dr. Slutsky’s report is of reduced probative value as he is relying on stale examination
findings to calculate his impairment rating.22 Given that Dr. Slutsky did not base his rating on
current examination findings, his opinion on permanent impairment is deficient and insufficient
to form the basis of appellant’s schedule award claim.23
On remand, OWCP should refer appellant to have EMG and NCV testing performed on
the upper right extremities. It should then refer the results of the EMG/NCV studies, a SOAF,
the case record, and appellant for a second opinion examination and opinion regarding whether
he sustained any permanent partial impairment as a result of his employment-related injuries and
date of MMI.24 Following this and any other further development as deemed necessary, OWCP
shall issue a de novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.

20

See H.C., Docket No. 11-1407 (issued May 11, 2012) (finding that Dr. Weiss did not reexamine appellant and
relied on a 2004 examination such that his report constituted stale medical evidence and did not create a conflict of
medical opinion evidence).
21

See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination and loss of wage-earning capacity determination).
22

L.T., Docket No.13-997 (issued June 10, 2014).

23

See W.M.., Docket No. 12-773 (issued March 29, 2013) (where the Board found that a physician’s 2010
impairment opinion, seeking to update a prior report based on 2004 findings, constituted stale medical evidence);
P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found a physician’s impairment opinion of reduced
probative value where the physician relied on three-year old findings to update his impairment rating).
24

J.S., Docket No. 13-2132 (issued July 23, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: March 4, 2016
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

7