United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE ARMY,
COMMUNICATIONS-ELECTRONICS
COMMAND, Fort Monmouth, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-2005
Issued: April 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 28, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 3, 2006 merit decision concerning her entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this claim.
ISSUE
The issue is whether appellant has more than a 17 percent permanent impairment of her
right leg for which she received a schedule award and whether she has any permanent
impairment of her left leg.
FACTUAL HISTORY
On August appellant, then a 33-year-old personnel staffing specialist, filed a traumatic
injury claim alleging that she sustained a back injury at work on August 24, 1981 due to lifting
heavy boxes. She stopped work on August 24, 1981. The Office accepted that appellant

sustained a herniated disc at L4-5 and paid compensation for periods of disability.1 On
November 30, 1981 appellant underwent a decompression hemilaminectomy and foraminectomy
at L4-5. The procedure was authorized by the Office. The Office later accepted that appellant
sustained scarring due to the surgery.
Appellant received treatment for her back problems over the years and complained of low
back pain with limitations upon movement of her low back. The results of the December 21,
1989 magnetic resonance imaging (MRI) scan showed L4-5 and L5-S1 disc degeneration and
mild osteophytic encroachment at L4-5 into the spinal canal with mild compression upon the
thecal sac. The results of June 16, 1998 MRI scan testing showed a recurrent disc protrusion into
the ventral epidural space at L5-S1 without effect on the thecal sac and a mild disc bulge at L4-5.
In June 1999 appellant returned to light-duty work for the employing establishment as a
secretary. The results of an April 20, 2000 electromyogram (EMG) and nerve conduction testing
revealed findings consistent with chronic L5-S1 root dysfunction as seen by an absent H-soleus
reflex and decreased numbers of recruited motor units with polyphasic motor units in the right
tibialis anterior.
On December 22, 2003 Dr. David Weiss, an attending osteopath Board-certified in
orthopedic medicine, provided a history of appellant’s findings on examination and diagnostic
testing. He stated that examination revealed paravertebral muscle spasm and tenderness from L4
through S1 and bilateral posterior superior iliac spine tenderness. Range of motion testing
showed forward flexion of 65 degrees, backward extension of 15 degrees, left lateral flexion of
10 degrees and right lateral flexion of 5 degrees with pain at the extremes. Dr. Weiss stated that
straight leg raising was positive at 75 degrees above the horizontal line on the left producing
midline low back pain and positive at 80 degrees above the horizontal line on the right producing
midline low back pain. He indicated that manual muscle testing revealed that the hip flexors
were Graded 4/5 on both sides and that the gastrocnemius muscles were Graded 4/5 on both
sides and stated, “Sensory examination reveals a perceived sensory deficit over the L4, L5 and
S1 dermatones involving the right lower extremity.”
Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and sprain, herniated
nuclei pulpous at L4-5 and L5-S1, status post decompressive hemilaminectomy at L4-5,
discogenic disease at L4-5 and lumbar radiculopathy at L5-S1. He indicated that the August 24,
1981 injury was the competent producing factor for appellant’s subjective and objective findings.
For the right leg, Dr. Weiss stated that appellant had a 5 percent impairment for 4/5 motor
strength loss of the hip flexors, a 17 percent impairment for 4/5 motor strength loss of the
gastrocnemius (measured by ankle plantar flexion), a 4 percent impairment due to sensory loss
associated with the L4 nerve root, a 4 percent impairment due to sensory loss associated with the
L5 nerve root and a 4 percent impairment due to sensory loss associated with the S1 nerve root.2
He combined these figures, using the Combined Values Chart of the A.M.A., Guides to equal a
30 percent impairment and then added a 3 percent impairment for “pain-related impairment” to
1

The findings of September 24, 1981 myelogram testing showed some posterior bulging at L4-5 and L5-S1.

2

Dr. Weiss applied Table 17-8 on page 532 and Table 15-5 on page 424 of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed 2001).

2

conclude that appellant had a 33 permanent impairment of her right leg. For the left leg,
Dr. Weiss added a five percent impairment for 4/5 motor strength of the hip flexors to a three
percent impairment for “pain-related impairment” to conclude that appellant had an eight percent
permanent impairment of her left leg.
The Office referred appellant to Dr. Robert Dennis, a Board-certified orthopedic surgeon,
for further evaluation of the extent of her lower extremity impairment. On April 12, 2005
Dr. Dennis indicated that he had reviewed the medical evidence of record, including the
December 22, 2003 evaluation of Dr. Weiss and provided a history of appellant’s findings on
examination and diagnostic testing. Dr. Dennis stated that on examination appellant exhibited
decreased sensation in the superficial femoral nerve distribution in the right thigh, that there was
slight weakness of plantar flexion and dorsiflexion of the right foot, that the right Achilles reflex
was absent and that there was weakness in the right gastrocnemius muscle which was associated
with the S1 nerve root. He indicated that there was no deficit in the L4 nerve root, that the L5
nerve root was intact and that there was no weakness in the hip flexors or hip rotators bilaterally.
Dr. Dennis stated:
“The nerve that was most significantly involved was the sciatic nerve. It made up
the L5 and S1 nerve roots, which were the two most involved nerve roots. This
affects the gastric muscle and it certainly affects the Achilles reflex. The nerve
roots involved are isolated to the L5 and S1 nerve roots in the right side, in my
opinion. They have been left with some permanent deficits, which are reflected in
the weakness and sensory deficits described in this document. In referring to
Figure 17-8, one can further identify the specific muscles involved. It should be
noted that I found no hip flexor weakness. Therefore, the femoral nerve is not
involved in my opinion, but did explain the loss of sensation along the right thigh
is a meralgia paresthetica, which is truly sensory peripheral nerve issue without a
functional loss.
“I refer you to [p]age 532, Table 17.8 where muscle strength is identified. It is
my opinion [that appellant] has a Grade [3] to [4] deficit of flexion indicating a 10
percent deficit and knee flexion representing a 7 percent deficit as it relates to the
lower extremity.
“There are no other deficits in regard to muscle strength identified whatsoever.
There is no sensory deficit associated with sciatic nerve in my opinion, since the
meralgia paresthetica is what is causing the sensory loss and this is not
register[ed] as a functional impairment. I have referred to [p]age 529 and find no
evidence of gait deficit. I refer to [p]age 537 and find no joint motion loss. Zero
percent permanency has to be attributed to sensory loss, in my opinion and to
joint contracture.
“Taking the muscle loss identifiable to the sciatic nerve and the peripheral
extensions of the nerve, it is my opinion [that appellant] has suffered a total 17
percent functional impairment of the right lower extremity as defined and
consistent with the A.M.A., Guides. This represents a permanent impairment. I

3

have looked at Dr. Weiss’ report and I am quite aware that my determination is in
contradiction to some of the methodologies that he has used to defining large
sensory deficits, which I do not confirm. He has also defined extensive weakness
of hip flexors, which I did not identify.”
On April 21, 2005 Dr. Dennis provided clarification of his April 12, 2005 evaluation. He
emphasized that he felt he performed a complete examination of both of appellant’s legs and
indicated that confusion may have been created by the fact that he placed his findings for testing
of appellant’s legs in the section for findings of back testing. Dr. Dennis repeated his conclusion
that appellant had a 17 percent permanent impairment of her right leg but no impairment of her
left leg.
On April 12, 2005 an Office medical adviser stated that he agreed with the impairment
rating provided by Dr. Dennis. In a July 22, 2005 award of compensation, the Office granted
appellant a schedule award for a 17 percent permanent impairment of her right leg and a 0
percent permanent impairment of her left leg.
Appellant requested a hearing before an Office hearing representative. At the
December 19, 2005 hearing appellant argued that the opinion of Dr. Weiss showed that she was
entitled to additional schedule award compensation.
By decision dated and finalized March 3, 2006, the Office hearing representative
affirmed the Office’s July 22, 2005 decision.
LEGAL PRECEDENT
The schedule award provision of the Act3 and its implementing regulation4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.5
It is well established that proceedings under the Act are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.6

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

4

ANALYSIS
The Office accepted that appellant sustained a herniated disc at L4-5 on August 24, 1981.
On November 30, 1981 she underwent a decompression hemilaminectomy and foraminectomy at
L4-5. The Office later accepted that appellant sustained scarring due to the surgery. In a
July 22, 2005 award of compensation, the Office granted appellant a schedule award for a 17
percent permanent impairment of her right leg and a 0 percent permanent impairment of her left
leg. The award was based on the opinion of Dr. Dennis, a Board-certified orthopedic surgeon,
who served as an Office referral physician.
The Board finds that the impairment evaluation of Dr. Dennis has several deficiencies
that require the Office to further develop the medical evidence. In his April 2005 evaluation,
Dr. Dennis concluded that appellant had a 17 percent permanent impairment of her right leg
based on Table 17-8 on page 532 of the A.M.A., Guides which pertains to muscle weakness.7
He indicated that appellant had a Grade 3 to 4 deficit of flexion on the right which would warrant
a 10 percent impairment rating. However, Dr. Dennis did not indicate what type of flexion to
which he was referring and the Board is unable to make such a determination.8 Dr. Dennis
added this 10 percent rating to a 7 percent impairment rating which was derived from the fact
that appellant had a Grade 3 to 4 deficit of right knee flexion. However, an examination of Table
17-8 shows that a Grade 3 to 4 deficit of right knee flexion would equal a 12 to 17 percent
impairment of the right leg.9
Dr. Dennis concluded that appellant had no other sensory or strength deficits in her legs,
but he did not provide sufficient rationale for this conclusion. On one hand, he stated that the
most significantly involved nerve was the right sciatic nerve that “made up the L5 and S1 nerve
roots” and noted that the right L5 and S1 nerve roots had “been left with some permanent
deficits, which are reflected in the weakness and sensory deficits described in this document.”
But he also indicated in the same report that there was no deficit in the L4 nerve root and that the
L5 nerve root was intact and he provided no impairment rating for a deficit associated with these
nerve roots. Dr. Dennis noted that appellant exhibited weakness of dorsiflexion of the right foot,
but he did not adequately explain why this finding would not warrant an impairment rating for
weakness in the right ankle muscle group associated with the L4 or L5 nerve root.10 In addition,
Dr. Dennis indicated that appellant did not have any deficit upon motion of her lower
extremities. However, he did not provide findings of range of motion testing under the relevant
standards.11

7

See A.M.A., Guides 532, Table 17-8.

8

Table 17-8 provides ratings for deficits upon hip, knee, ankle or great toe flexion, among other movements. Id.

9

Id.

10

See A.M.A., Guides 551, Figures 17-8 and 17-9. These figures show the distribution of the L4 and L5 nerves
into the foot.
11

See A.M.A., Guides 537, Tables 17-9 through 17-14.

5

In a December 22, 2003 evaluation, Dr. Weiss, an attending osteopath Board-certified in
orthopedic medicine, concluded that appellant had a 33 percent permanent impairment of her
right leg and an 8 percent permanent impairment of her left leg. However, this impairment rating
also exhibits a number of deficiencies. Dr. Weiss determined that, for the right leg, appellant had
a 5 percent impairment for 4/5 motor strength loss of the hip flexors and a 17 percent impairment
for 4/5 motor strength loss of the gastrocnemius (measured by ankle plantar flexion) and that, for
the left leg, she had a 5 percent impairment for 4/5 motor strength of the hip flexors.12 However,
Dr. Weiss did not explain how these findings were related to the employment-related injury to
appellant’s L4 or L5 nerve distributions.
Dr. Weiss indicated that sensory examination revealed “a perceived sensory deficit over
the L4, L5 and S1 dermatones involving the right lower extremity” and concluded that appellant
had a four percent impairment due to sensory loss associated with the L4 nerve root, a four
percent impairment due to sensory loss associated with the L5 nerve root and a four percent
impairment due to sensory loss associated with the S1 nerve root.13 However, he did not clearly
explain the basis for this “perceived sensory deficit.” Moreover, Dr. Weiss’s addition of
impairment ratings for loss of muscle strength and peripheral nerve deficits would not generally
be allowed under the relevant standards14 and he did not adequately explain why he assigned a
three percent impairment rating to each leg for “pain-related impairment.”15
For these reasons, the medical evidence requires further development. The Office should
refer appellant and the case record to an appropriate specialist for examination and evaluation of
the permanent impairment of her lower extremities. After such further development as the
Office deems necessary, the Office should issue an appropriate decision regarding appellant’s
claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a 17 percent permanent impairment of her right leg, for which she received a
schedule award and whether she has any permanent impairment of her left leg. The case is
remanded to the Office for further development.

12

Dr. Weiss applied Table 17-8 on page 532 of the A.M.A., Guides.

13

Dr. Weiss applied Tables 15-5 and 15-18 on page 424 of the A.M.A., Guides.

14

See A.M.A., Guides 526, Table 17-2.

15

See A.M.A., Guides 573-81, sections 18.3d through 18.3f.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 3, 2006 decision is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: April 24, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1235
Issued: March 1, 2011

Case Submitted on the Record

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

JURISDICTION
On March 31, 2010 appellant timely appealed a March 18, 2010 merit decision of the
Office of Workers’ Compensation Programs terminating her compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
and medical compensation benefits effective March 19, 2010 on the grounds that she had no
residuals or disability causally related to her accepted employment-related injuries.
FACTUAL HISTORY
This case was previously before the Board. In a December 9, 2002 decision, the Board
reversed a February 21, 2002 Office decision terminating appellant’s compensation benefits
effective July 15, 2001.1 The Board found that the report of Dr. Walter I. Choung, a Boardcertified orthopedic surgeon selected as the impartial medical specialist, was insufficient to meet
1

Docket No. 02-1030 (issued December 9, 2002).

the Office’s burden of proof. The law and the facts of the case as set forth in the Board’s
decision and order are incorporated by reference.2
In a July 16, 2008 report, Dr. Robert A. Sparks, a Board-certified orthopedic surgeon and
Office referral physician, opined that appellant’s lumbar and cervical sprain/strain resolved years
earlier. Appellant’s current back problem was due to degenerative disease permanently
aggravated by the December 24, 1991 work injury. Dr. Sparks explained that appellant’s
disabling pain continued and that the aggravation continued and was considered permanent. He
stated that maximum medical improvement was reached five to eight years earlier. In his reports
and an accompanying July 16, 2008 work capacity evaluation, Dr. Sparks reiterated that
appellant was permanently disabled from working.
In an August 13, 2008 report, Dr. David H. Sikes, an attending Board-certified internist,
noted findings on examination and assessed post-traumatic back pain, ongoing and severe,
obesity and hyperlipidemia. In an August 13, 2008 letter, he advised that appellant continued to
have back pain with exacerbations due to her work injury. Dr. Sikes stated that her condition
was disabling and had not resolved. Appellant had long-standing degenerative disease of the
spine and a “new injury.” Since she had not returned to her preinjury status, Dr. Sikes advised
that it was a permanent condition for which she was totally disabled.
On August 4, 2009 the Office approved appellant’s change in treating physicians to
Dr. Michael D. Dick, a rheumatologist. In a July 27, 2009 report, Dr. Dick noted the history of
the work injury and appellant’s preexisting arthritis. Appellant presented with complaints of
pain in her neck, low back and hands for the prior 15 years and had been diagnosed with
osteoarthritis. Dr. Dick provided findings on examination and an assessment of osteoarthritis
(hands, hips and knees), bilateral gluteal bursitis, bilateral trochanteric bursitis, bilateral
sacroiliitis and obstructive sleep apnea. In a July 29, 2009 report, he noted appellant’s
complaints of bilateral low back pain and listed bilateral sacroiliitis.
On October 8, 2009 the Office referred appellant for a second opinion examination with
Dr. Steven B. Fuller, an osteopath Board-certified in internal medicine. In a November 10, 2009
report, Dr. Fuller reviewed the history of injury and noted findings from an October 21, 2009
examination. He advised that lumbar spine x-rays revealed degenerative disc changes and facet
hypertrophy at L4-L5 and L5-S1 with generalized osteopenia. Dr. Fuller listed an impression of
lumbar degenerative disc disease, lumbar facet arthritis, chronic lumbar strain, chronic cervical
strain and obesity. In a November 9, 2009 response to the Office’s questions, he reviewed the
statement of accepted facts and the medical record. Dr. Fuller stated that appellant had L4-L5
and L5-S1 degenerative disc disease with facet hypertrophy. Appellant experienced mechanical
back pain symptoms associated with her degenerative condition which represented a chronic
lumbar strain that was not directly related to her reported injury. The medical record contained
reference to degenerative lumbar pain prior to her accepted injury. Dr. Fuller stated that the
aggravation associated with the work injury had resolved and her overall condition continued to
deteriorate due to the degenerative process and her overall deconditioning. The cervical strain
associated with the work injury had also resolved. Dr. Fuller noted that there was generalized
2

The Office accepted appellant’s 1991claim, where she tripped over catalogs, for a cervical and lumbar strain.

2

muscle tenderness and diminished range of motion indicative of muscle strain, which he
attributed to appellant’s degenerative process and overall deconditioning. Appellant reached
maximum medical improvement and her accepted cervical and lumbar spine strains resolved no
later than one year after the injury occurred. Dr. Fuller explained that muscle and ligamentous
strains associated with an injury generally resolved within six months of injury and persistent
muscle or ligamentous strains could be attributed to more chronic conditions or overall
deconditioning. He found appellant was capable of working eight hours a day in a sedentary or
light duty with permanent restrictions. A completed Form OWCP-5c work capacity evaluation
noted recommended work restrictions.
On December 30, 2009 the Office proposed to terminate appellant’s compensation
benefits based on Dr. Fuller’s opinion that the accepted conditions had resolved. Appellant was
afforded 30 days to submit additional evidence.
In a January 4, 2010 letter, appellant contended that the medical reports from Dr. Dick,
Dr. Sikes and Dr. Sparks found a permanent aggravation of her preexisting osteoarthritis. She
argued that her original diagnosis had always been an aggravation of her preexisting
osteoarthritis and not a lumbar strain, the condition accepted by the Office. Appellant
resubmitted the reports of Dr. Sikes and Dr. Sparks and a work capacity evaluation.
In an October 20, 2009 report, Dr. Dick noted treating appellant since July 27, 2009 and
stated that she had post-traumatic low back pain as well as stiffness in her neck and hands. He
noted a history of the December 24, 1991 work injury and that she had been disabled since that
time. Dr. Dick reported appellant’s treatment following the work injury and set forth the results
of his examination. Appellant’s medical problems included erosive osteoarthritis of the hands
with osteoarthritis hips and knees, bilateral trochanteric bursitis, bilateral gluteal bursitis,
bilateral sacroiliitis, marked degenerative disc disease of the cervical spine at C6-C7 and C5-C6
level and marked degenerative disc disease of the lumbar spine at the L5-S1 level. Dr. Dick
opined that she was unable to spend more than two hours a day sitting, standing or walking and
could not work more than two to three hours a day. He stated that appellant’s job could not be
modified to suit her disabilities and that her back pain did not improve over time and frequently
worsened. Dr. Dick found that she continued to be totally and permanently disabled.
On February 18, 2010 the Office requested that Dr. Fuller clarify his opinion as to
whether there were objective findings to support a diagnosis of aggravation of preexisting
degenerative disc disease. In a February 24, 2010 response, Dr. Fuller explained that appellant
had preexisting degenerative disc disease that predated her work injury. Appellant’s present
condition was related to her chronologic age, obesity and generalized deconditioning. Dr. Fuller
stated that she had ongoing mechanical back pain symptoms associated with her degenerative
condition which represented chronic lumbar strain symptoms that were not related to her work
injury. He opined that the employment-related aggravation of appellant’s condition had
resolved, noting that she had reported degenerative lumbar-type pain prior to her injury and that
her overall condition continued to deteriorate due to associated degenerative processes and her
overall deconditioning.

3

By decision dated March 18, 2010, the Office finalized the termination of compensation
benefits effective March 19, 2010. It found the weight of the evidence rested with the opinion of
Dr. Fuller, the second opinion physician.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.4 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.6 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.7
ANALYSIS
The Office accepted that appellant sustained a cervical and lumbar strain. It terminated
her compensation benefits effective March 19, 2010 on the grounds the accepted conditions had
resolved without residuals. The Office accorded determinative weight to the opinion of
Dr. Fuller, the second opinion specialist.
The Board finds Dr. Fuller’s opinion is sufficiently rationalized to establish that
appellant’s employment-related back and neck conditions had resolved. In a comprehensive
report dated November 9, 2009, which incorporated his October 21, 2009 examination findings,
Dr. Fuller reviewed the statement of accepted facts and the medical record. He advised that
appellant had lumbar degenerative disc disease, lumbar facet arthritis, chronic lumbar strain,
chronic cervical strain and obesity. Dr. Fuller stated that appellant’s mechanical back pain
symptoms associated with her degenerative condition represented a chronic lumbar strain that
was not directly related to her reported injury. He stated that the aggravation associated with the
work injury had resolved. Dr. Fuller noted that the medical record reported appellant’s
complaints of degenerative lumbar-type pain prior to her injury and stated that her condition
continued to deteriorate because of the degenerative process and her overall deconditioning. He
also opined that the cervical strain associated with the work injury had resolved. Dr. Fuller noted
that current examination findings were attributable to appellant’s degenerative process and
overall deconditioning. He opined that appellant’s accepted cervical and lumbar spine strains
3

Jorge E. Sotomayor, 52 ECAB 105, 106 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

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

6

T.P., 58 ECAB 524 (2007).

7

I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

resolved no later than one year after the injury occurred. Dr. Fuller explained that muscle and
ligamentous strain associated with an injury generally resolve within six months of injury and
any persistent muscle or ligamentous strain can be attributed to more chronic conditions or
overall deconditioning process. In his February 24, 2010 report, he stated that the work-related
aggravation of appellant’s condition had resolved and that appellant’s continued mechanical
back pain symptoms represented chronic lumbar strain symptoms which were associated with
her degenerative condition. Dr. Fuller stated that appellant had preexisting degenerative disc
disease which predated her reported injury and noted that she reported degenerative lumbar-type
pain prior to her injury in her medical records. He advised that appellant’s overall condition
continued to deteriorate because of the associated degenerative processes as well as her overall
deconditioning.
Dr. Sikes and Dr. Dick opined that appellant continued to have post-traumatic low back
pain which rendered her permanently and totally disabled. The physicians, however, failed to
discuss the accepted cervical and lumbar strains or provide a rationalized opinion addressing
how residuals of the accepted conditions caused disability. Neither Dr. Sikes nor Dr. Dick
provided any objective findings other than appellant’s subjective complaints of pain or provided
an explanation as to how appellant’s work-related conditions remained active or disabling. The
record establishes that she had preexisting degenerative conditions that preexisted the accepted
strains of December 24, 1991. Neither Dr. Sikes nor Dr. Dick provided any medical reasoning
explaining why appellant’s current back pain and deteriorating conditions were due to the
accepted low back and neck strains and not due to her preexisting conditions. In his October 20,
2009 report, Dr. Dick diagnosed conditions such as osteoarthritis, bursitis and degenerative disc
disease. The Office did not accept these conditions as employment related. Dr. Dick did not
adequately explain how these conditions were due to appellant’s work injury.8 While
Dr. Sparks, a second opinion physician, opined in July 2008 that her current back problem
resulted from the permanent aggravation of her degenerative discs from the work injury, he
provided little medical reasoning supported by objective evidence to explain how or why the
aggravation continued. The medical evidence of record, at the time the Office terminated
benefits, did not provide adequately reasoned support to support ongoing residuals of the
accepted lumbar or cervical sprains.
Dr. Fuller’s reports are based on an accurate factual background and provide medical
rationale for his conclusion.9 The Office, therefore, met its burden of proof to terminate
appellant’s medical benefits as the weight of the medical evidence indicates that the accepted
back and neck conditions had ceased.

8

See S.R., 61 ECAB ___ (Docket No. 09-2332, issued August 16, 2010) (for conditions not accepted by the
Office as being employment related, it is the employee’s burden to provide rationalized medical evidence sufficient
to establish causal relation, not the Office’s burden to disprove such relationship).
9

Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality, the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion, are facts which
determine the weight to be given to each individual report).

5

On appeal, appellant argues her preexisting osteoarthritis was aggravated by the work
injury. As noted above, there is no probative narrative report on the issue of whether residuals of
the accepted conditions continue to disable appellant.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss and medical
benefits effective March 19, 2010.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 18, 2010 is affirmed.
Issued: March 1, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket Nos. 10-1971 &
10-2219
Issued: June 9, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant, through her attorney, filed a timely appeal of the June 24,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) in Docket No.
10-1971, denying a recurrence of disability claim. She also timely appealed a July 6, 2010
OWCP decision in Docket No. 10-2219, denying a separate recurrence of disability claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability from
October 16 through November 7, 2009 causally related to her accepted employment injuries; and
(2) whether appellant sustained a recurrence of total disability for the period November 8
through 21, 2009 causally related to her accepted injuries.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s attorney contends that OWCP decisions are contrary to fact and
law.
FACTUAL HISTORY
On April 27, 1992 appellant, then a 37-year-old patient services assistant, filed an
occupational disease claim (Form CA-2) in File No. xxxxxx972 alleging that on December 1,
1990 she first realized that the severe pain in her right hand was caused by daily typing on a
computer and handling files.2
On October 18, 1999 appellant, then a program support analyst, filed a Form CA-2 in File
No. xxxxxx917 alleging that on June 23, 1999 she first became aware of her bilateral arm and
hand pain. On January 24, 1992 she realized that her condition was caused by using a computer
all day long and answering telephones. OWCP accepted appellant’s claim for right lateral
epicondylitis and tendinitis and disorder of the bursa and tendons of the right shoulder. It
authorized right shoulder subacromial decompression and partial acromioplasty which she
underwent on January 13, 2005.
On March 21, 2005 appellant returned to full-time light-duty work.
On May 28, 2008 appellant filed a Form CA-2 in File No. xxxxxx901 alleging that on
January 1, 2007 she first became aware of her bilateral carpal tunnel syndrome. On February 25,
2008 she realized that her condition was caused by using a computer 10 hours per day and
carrying heavy charts. OWCP accepted appellant’s claim for right carpal tunnel syndrome and
authorized right endoscopic carpal tunnel release which was performed on August 28, 2008.
Appellant returned to full-time light-duty work on September 26, 2008.
On January 29, 2009 appellant filed a Form CA-2 in File No. xxxxxx913 alleging that on
June 24, 2005 she first became aware of her right thoracic spine condition. On January 22, 2009
she first realized that her condition was caused by computer use and carrying heavy charts.
OWCP accepted appellant’s claim for thoracic strain.3
On October 26, 2009 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period October 26 through November 15, 2009. On the Form CA-7 the employing
establishment advised that appellant was on leave without pay from October 26 to
November 7, 2009. A time analysis form noted that she missed two hours of work on
October 26, 2009 and did not work from October 27 to November 5, 2009.
In an October 26, 2009 medical report, Dr. Richard L. Haynes, a chiropractor, placed
appellant off work through November 15, 2009 due to an aggravation of her upper back and
shoulder condition. Reports from physical therapists addressed the treatment of appellant’s right
shoulder from November 5 through 16, 2009.
2

OWCP identified the date of injury as January 24, 1992, the date appellant first received medical treatment for
her right wrist condition. No final decision has been issued by OWCP regarding this claim.
3

OWCP subsequently combined the case files related to appellant’s accepted conditions.

2

In a November 4, 2009 report, Dr. Maureen M. Johnson, an attending Board-certified
internist, advised that appellant had unspecified disorders of the bursae and tendons in the left
shoulder region due to her accepted June 30, 2004 employment injuries. She concluded that
appellant could perform her regular work duties on a full-time basis.
On November 18, 2009 appellant filed a Form CA-7 claiming wage loss for the period
November 8 through 21, 2009. She did not work during the claimed period.
In a November 4, 2009 progress note, Dr. Johnson advised that appellant last worked on
October 26, 2009. She complained about cervical and bilateral shoulder pain. Dr. Johnson listed
findings on physical examination and diagnosed a history of shoulder impingement, status post
surgical treatment of the left and right shoulder with satisfactory results, cervical strain with
aggravation of degenerative joint disease due to static postures and seated position required at
work combined with postural deficits and deconditioned stated, medial epicondylitis of the left
elbow and mild tendinitis of the right radial wrist. She reiterated that appellant could perform
full-time full-duty work.
In a December 29, 2009 decision, OWCP found that the medical evidence was
insufficient to establish that appellant was totally disabled from October 26 through November 7,
2009 due to her accepted employment injuries.
In a December 31, 2009 decision, OWCP found the medical evidence insufficient to
establish that appellant was totally disabled from November 8 through 21, 2009 due to her
accepted employment injuries.
On January 7 and 10, 2010 appellant, through counsel, requested a telephone hearing
regarding the December 29 and 31, 2010 decisions.
Evidence submitted included a
December 24, 2009 report with an illegible signature. It stated that appellant had other
tenosynovitis of the hand and wrist, lateral epicondylitis and “719.40” due to her June 23, 1999
employment injuries. Appellant was capable of performing her regular-work duties. A
November 25, 2009 report from a physical therapist addressed the treatment of appellant’s right
shoulder.
In a February 11, 2010 report, Dr. Haynes advised that appellant was acute postoperative
status for the left shoulder with thoracic outlet syndrome and radicalgia into both arms and
depression with pain management. He provided corrective chiropractic care with notable
improvements aimed at reducing her subluxations at T3-5 with radical loss of motion in that
region and into both shoulders and arms. Dr. Haynes noted that appellant was currently off work
due to these very debilitating conditions which prevented her from lifting more than 10 pounds
and reaching above shoulder level. She had extreme weakness based on dynameter studies.
Dr. Haynes indicated that appellant continued to be off work commencing October 26, 2009
based on his and Dr. Johnson’s recommendation. He expected her to return to her prior work
within the next 30 to 60 days with restrictions. Dr. Haynes opined that each of the diagnosed
conditions resulted from appellant’s employment-related injuries.
On March 4, 2010 OWCP accepted appellant’s claim for pain disorder related to
psychological factors.

3

In a March 24, 2010 report, Dr. Johnson advised that appellant had a right shoulder
rotator cuff sprain and osteoarthritis of the thoracic spine.
In a June 24, 2010 decision, OWCP’s hearing representative affirmed the December 31,
2009 decision. She found that the medical evidence was insufficient to establish that appellant
sustained a recurrence of disability from November 8 to 21, 2009 due to her accepted
employment injuries.
In a July 6, 2010 decision, another OWCP hearing representative affirmed the
December 29, 2009 decision. He found that the medical evidence was insufficient to establish
that appellant sustained a recurrence of disability from October 26 to November 7, 2009 causally
related to her accepted employment injuries.
LEGAL PRECEDENT -- ISSUES 1 & 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.6
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.7

4

20 C.F.R. § 10.5(x).

5

Id.

6

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
7

James H. Botts, 50 ECAB 265 (1999).

4

ANALYSIS -- ISSUES 1 & 2
OWCP accepted that appellant sustained right wrist de Quervain tenosynovitis, right
shoulder lateral epicondylitis, tendinitis and disorder of the bursa and tendons, right carpal tunnel
syndrome and right thoracic strain while in the performance of duty. Following these injuries,
appellant returned to light-duty work. She claimed recurrences of disability from October 26
through November 21, 2009. Appellant must demonstrate either that her conditions have
changed such that she could not perform the activities required by her modified job or that the
requirements of the limited light-duty job changed. The Board finds that the record contains no
evidence that the limited light-duty job requirements were changed or withdrawn or that her
employment-related conditions have changed such that they precluded her from performing
limited light-duty work.
Dr. Johnson found that appellant had right shoulder, cervical and left elbow conditions.
She indicated that appellant was status post bilateral shoulder surgery with satisfactory results.
Dr. Johnson noted that appellant had not worked since October 26, 2009 but found that appellant
could perform full-duty work on a full-time basis. She did not support that the diagnosed
conditions rendered appellant disabled for the periods claimed. The Board finds that
Dr. Johnson’s reports are insufficient to establish appellant’s claim.
On October 26, 2009 and February 11, 2010 appellant’s chiropractor, Dr. Haynes,
diagnosed subluxation at T3-5 with radical loss of motion in that region and into both shoulders
and arms. He advised that appellant was totally disabled for work from October 26, 2009
through February 11, 2010 as a result of an aggravation of her upper back and shoulder
conditions. A chiropractor is considered a physician for purposes of the Act only where he
diagnosed spinal subluxation by x-ray.8 The evidence does not reflect that Dr. Haynes diagnosed
a spinal subluxation based on the results of an x-ray. Therefore, the Board finds that he is not a
physician as defined under the Act and his reports do not constitute probative medical evidence.
Similarly, the reports from appellant’s physical therapists do not have any probative
medical value. A physical therapist is not a physician as defined under the Act.9 The Board
finds, therefore, that these reports are insufficient to establish appellant’s claim.
The December 24, 2009 report which contained an illegible signature has no probative
value as it is not established that the author is a physician.10
Appellant has not met her burden of proof in establishing that there was a change in the
nature and extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements which would prohibit her from performing the limited light-duty
position she assumed after she returned to work.

8

5 U.S.C. § 8101(2); see Merton J. Sills, 39 ECAB 572, 575 (1988).

9

Id. at § 8101(2); see A.C., Docket No. 08-1453 (issued November 18, 2008).

10

See D.D., 57 ECAB 734 (2006); Merton J. Sills, supra note 8.

5

On appeal, appellant’s attorney contends that OWCP’s decisions are contrary to fact and
law. For the reasons stated, the Board finds that appellant did not submit sufficient medical
evidence in support of her claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of total disability from October 16 through November 21, 2009 causally
related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 6 and June 24, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 9, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, HAMBURG POST
OFFICE, Hamburg, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Douglas J. Lawrence, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1184
Issued: March 1, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 21, 2020 appellant, through his representative, filed a timely appeal from a
November 26, 2019 nonmerit decision and April 17, 2020 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant had abandoned his
request for an oral hearing before an OWCP hearing representative; and (2) whether appellant has
met his burden of proof to establish a medical condition causally related to the accepted May 7,
2019 employment incident.
FACTUAL HISTORY
On May 10, 2019 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 7, 2019 he developed an upper back condition and muscle
spasms as a result of performing repetitive turning, reaching, and bending when delivering mail
while in the performance of duty.3 He stopped work on May 9, 2019. OWCP assigned this claim,
OWCP File No. xxxxxx802.
Previously, OWCP had accepted a January 19, 2007 traumatic injury claim for aggravation
of a preexisting sprain of the back/thoracic region under OWCP File No. xxxxxx428. Appellant
indicated that he lifted a bucket of mail and experienced an upper back ache. OWCP later
expanded the acceptance of his claim to include other intervertebral disc displacement of the
lumbar region, sprain of the ligaments of the thoracic spine, initial encounter, radiculopathy of the
cervical region, dislocation of unspecified parts of the neck, and acquired deformity of the neck.
Appellant underwent an anterior cervical discectomy with decompression of the spinal cord C4-6
on December 18, 2008.4
In a May 9, 2019 note, Dr. Michael Cicchetti, Board-certified in physical medicine and
rehabilitation, noted that appellant was totally disabled until May 24, 2019.
On May 10, 2019 the employing establishment properly executed an authorization for
examination and/or treatment (Form CA-16). The Form CA-16 listed the date of injury as May 7,
2019 and alleged traumatic injury, back, upper back, and neck pain and authorized appellant to
seek medical care at an area hospital.
In a May 20, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical and factual
evidence necessary to support his claim and provided a questionnaire for his completion. In a
separate letter dated May 24, 2019, OWCP requested additional information from the employing
establishment. It afforded both parties 30 days to submit the requested information.
Appellant was treated in the emergency room by Todd Thomas, a physician assistant, on
May 7, 2019 for back pain radiating into his left leg. He reported a history of chronic cervical,
3
On May 7, 2019 appellant returned to work under restrictions pertaining to separate traumatic injury claim that
occurred on January 19, 2007, OWCP File No. xxxxxx428.
4

OWCP paid appellant wage-loss compensation on the supplemental rolls from January 29 to April 12, 2008 and
May 14 to June 7, 2008, July 7 to December 20, 2018, and April 12, 2009 to June 23, 2018 and on the periodic rolls
from April 13 to May 10, 2008, June 8 to July 5, 2008, December 21, 2008 to April 11, 2009 and June 24, 2018 to
April 27, 2019.

2

thoracic, and lumbar pain secondary to disc herniations, discectomy, and fusions of the cervical
and thoracic spine. Mr. Thomas diagnosed low back pain.
A May 8, 2019 magnetic resonance imaging (MRI) scan report of the thoracic spine
revealed scattered degenerative changes of the thoracic spine without mass effect or displacement
of neural structure, slight exaggerated thoracic minor scoliosis, and no masses or abnormal
enhancement. A May 8, 2019 MRI scan report of the lumbar spine revealed multilevel foraminal
narrowing most marked bilaterally at L3-4 and L4-5 with mild displacement exiting nerve roots,
scattered degenerative change elsewhere in the lower thoracic lumbar spine, probable focal tear
posterior lateral annulus bilaterally L3-4, slight loss of lordosis, and minor scoliosis.
In a report dated May 10, 2019, Dr. Cicchetti noted last treating appellant on March 21,
2019 for chronic widespread musculoskeletal pain involving the cervical, thoracic, and lumbar
spine. He indicated that appellant reported to work on May 7, 2019 and was unable to tolerate
appellant’s duties and was treated in the emergency room that evening. An MRI scan of the lumbar
and thoracic spine performed on May 8, 2019 revealed preexisting degenerative changes to
thoracic and lumbar discs with facet arthropathy and lumbar foraminal stenosis. Dr. Cicchetti
noted that appellant was diagnosed with acute sprain/strain/exacerbation of spinal pain and taken
out of work by the emergency room physician. Findings on examination revealed restricted range
of motion of the cervical, lumbar, and thoracic spines, diffuse tenderness to light touch throughout
the cervical, thoracic and lumbar spine, decreased sensation to light touch in the left L4 and L5
dermatomes, and mild weakness in the bilateral knee extensors. Dr. Cicchetti opined that
repetitive bending, lifting, rotating/twisting directly related to appellant’s job resulted in the severe
worsening of appellant’s spinal condition, pain, and loss of function. He further noted that
returning to work on May 7, 2019 was the competent cause of the aggravation of preexisting neck,
mid back, and low back pain.
Dr. Cicchetti described appellant’s typical day as a mail carrier consisted of managing case
mail for one to two hours in the morning, which required repetitive lifting of trays, buckets, and
bundles of mail weighing between 10 and 40 pounds. He advised that appellant was required to
repetitively twist, turn, and reach above appellant’s head and below his waist, he pulled down mail,
which required repetitive reaching and turning, and held bundles of mail in his arms and placed a
rubber band around the bundle before placing it on the tray. Appellant used a cart to transport the
mail to his truck and then loaded the mail into his truck and delivered hundreds of pieces of mail
and parcels weighing between 1 to 2 ounces up to 70 pounds. Dr. Cicchetti indicated that when
driving his mail truck appellant repeatedly rotated his head left and right to check for people, cars,
or obstacles in his path. He noted that appellant’s mail route was six to seven hours on the street
and involved walking and repeatedly entering and exiting appellant’s mail truck during his shift.
Dr. Cicchetti further noted that when delivering curbside appellant twisted his body all the way
around to his left to get mail and then all the way to his right to deliver it to the box. He noted that
appellant’s job was very taxing on his cervical, thoracic, and lumbar spine as a result of the
repetitive bending, twisting, lifting, carrying, pushing/pulling, and long hours sitting, and driving.
In a May 24, 2019 follow-up visit, Dr. Cicchetti noted appellant’s symptoms improved
from the May 9, 2019 visit, but appellant continued to experience pain in the neck, periscapular
thoracic region, and lumbar spine with increased radicular symptoms in the left leg. Findings on
examination revealed restricted lumbar and cervical range of motion in all planes, normal reflexes

3

and motor examination, and intact sensory examination. Dr. Cicchetti diagnosed thoracic spine
pain, herniated lumbar disc, and cervical postlaminectomy syndrome. He opined that given the
severe exacerbation of pain experienced by appellant after appellant returned to work on May 7,
2019 he could not return to work as a letter carrier in any capacity. Dr. Cicchetti also affirmatively
replied “Yes” that in his opinion the May 7, 2019 employment incident was the competent medical
cause of the appellant’s injury/illness. In a separate note dated May 24, 2019, he indicated that
appellant could not return to work until August 1, 2019.
In an addendum narrative report dated May 24, 2019, Dr. Cicchetti opined that appellant’s
return to work on May 7, 2019 directly exposed him to repetitive activities including bending,
twisting, and carrying that directly resulted in traumatic exacerbation of appellant’s preexisting
neck pain, (postlaminectomy syndrome), mid-back pain (thoracic sprain/strain), low back pain
(disc herniation at L5-S1, degenerative disc disease and bulging L3-4 and L4-5) and left leg
radicular symptoms. He based his opinion on historical and clinical findings on May 9 and
May 24, 2019, MRI scan images, and hospital discharge notes from May 8, 2019.
By decision dated June 28, 2019, OWCP denied appellant’s traumatic injury claim, finding
that he had not submitted medical evidence containing a medical diagnosis in connection with his
accepted employment incident. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On July 12, 2019 appellant timely requested a telephonic hearing before a representative
of OWCP’s Branch of Hearings and Review.
In an September 9, 2019 notice, OWCP’s hearing representative informed appellant that
his oral hearing was scheduled for November 15, 2019 at 8:30 a.m. Eastern Standard Time (EST).
She instructed him to “call the toll-free number listed below and when prompted, enter the pass
code also listed below.” OWCP’s hearing representative mailed the notice to appellant at his last
known address of record and also to his representative. Neither appellant nor his representative
made an appearance and no request for postponement of the hearing was made.
On October 31, 2019 Dr. Cicchetti treated appellant for lumbar pain with recurrence of left
leg radicular symptoms. He diagnosed lumbar radiculitis and herniated lumbar disc. Dr. Cicchetti
responded “Yes” to the inquiry whether it was his opinion the May 7, 2019 employment incident
was the competent medical cause of the appellant’s injury/illness.
By decision dated November 26, 2019, OWCP’s hearing representative found that
appellant had failed to appear at the oral hearing and had abandoned his request. The hearing
representative indicated that appellant received a 30-day advance notice of the hearing scheduled
for November 15, 2019, and found that there was no evidence that he had contacted OWCP either
prior to or subsequent to the scheduled hearing to request a postponement or explain his failure to
appear.
On August 1, 2019 Dr. Cicchetti provided an addendum report and indicated that prior to
appellant’s May 7, 2019 return to work he experienced chronic pain in the neck, thoracic, and
lumbar spine and sciatica in the left leg. He indicated that appellant underwent cervical
decompression surgery and experienced severe restriction of active and passive range of motion

4

in the cervical and lumbar spine as a direct result of the neck surgery and appellant’s prior work
injury. Dr. Cicchetti opined that appellant’s diagnoses of cervical postlaminectomy syndrome,
thoracic pain secondary to thoracic sprain/strain, low back pain and left leg radicular symptoms
were directly exacerbated by repetitive bending, twisting, carrying, and excessive cervical range
of motion that occurred while at work on May 7, 2019. He evaluated appellant on May 9, 2019
and his examination demonstrated decreased cervical, thoracic, and lumbar range of motion,
diffuse muscular spasm in the cervical, thoracic, and lumbar regions, mild weakness in the left
knee extensors and left ankle dorsiflexors, and decreased sensation to light touch in the left L3 and
L6 dermatomes. Dr. Cicchetti indicated that these findings were essentially unchanged on
August 1, 2019.
Appellant was seen again by Dr. Cicchetti on January 10, 2020 who reiterated his opinion
that appellant’s return to work on May 7, 2019 directly caused a severe flare-up in
postlaminectomy syndrome, thoracic sprain/strain, lumbar disc herniation at L5-S1, degenerative
disc disease and disc bulging at L3-4 and L4-5, and left leg radicular pain. Dr. Cicchetti opined
that by exposing appellant to repetitive bending, lifting, twisting, and carrying as defined in his
job description directly resulted in a traumatic exacerbation of the above diagnoses.
On March 17, 2020 appellant requested reconsideration.
In a March 27, 2020 addendum to the reconsideration request, appellant through his
representative, contended that he did not abandon his request for a telephonic hearing, rather, he
and his representative never received notice of the hearing. In an undated statement received on
March 27, 2020 appellant reiterated that he never received the notice of hearing.
By decision dated April 17, 2020, OWCP modified the June 28, 2019 decision, finding that
the medical evidence contained a medical diagnosis in connection with his accepted employment
incident as alleged, but affirmed the denial of the claim, finding that the medical evidence of record
was insufficient to establish a causal relationship between appellant’s diagnosed conditions and
the accepted May 7, 2019 employment incident.
LEGAL PRECEDENT -- ISSUE 1
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.5 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.6 OWCP has the burden of proof to
establish that it properly mailed to a claimant and any representative of record a notice of a
scheduled hearing.7

5

20 C.F.R. § 10.616(a).

6

Id. at § 10.617(b).

7
T.R., Docket No. 19-1952 (issued April 24, 2020); M.R., Docket No. 18-1643 (issued March 1, 2019); T.P.,
Docket No. 15-0806 (issued September 11, 2015); Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

A claimant who fails to appear at a scheduled hearing may request in writing, within 10
days after the date set for the hearing, that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the claimant
to appear at the second scheduled hearing without good cause shown, shall constitute abandonment
of the request for a hearing.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative.
The record establishes that appellant filed a timely request for an oral hearing before a
representative of OWCP’s Branch of Hearings and Review following its June 28, 2019 decision.
In a September 9, 2019 letter, a hearing representative notified appellant that she had scheduled a
telephonic hearing to be held on November 15, 2019, at 8:30 a.m., EST. The hearing representative
properly mailed the hearing notice to appellant’s last known address of record and also to his
representative, and provided instructions on how to participate, and the notice was not returned as
undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary course of business
is presumed to have been received by the intended recipient.9 The presumption is commonly
referred to as the “mailbox rule.” It arises when the record reflects that the notice was properly
addressed and duly mailed. The current record is devoid of evidence to rebut the presumption that
appellant received OWCP’s September 9, 2019 notice of hearing. The hearing notice was properly
addressed to appellant’s last known address. Neither appellant nor his representative called in as
instructed for the November 15, 2019 scheduled telephonic hearing and there is no indication that
he requested postponement of the telephonic hearing. Moreover, they did not submit a written
request within the 10 days after the date set for the telephonic hearing and request that another
telephonic hearing be scheduled. Under the circumstances, the Board finds that appellant
abandoned his telephonic hearing request.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA10 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,11 that an injury was sustained in the performance of duty as alleged, and that
8

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011); A.J., Docket No. 18-0830 (issued January 10, 2019); L.B., Docket No.
18-0533 (issued August 27, 2018).
9

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
10

Supra note 2.

11
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

6

any disability or medical condition for which compensation is claimed is causally related to the
employment injury.12 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.13
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.14
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.15 The second component is whether the employment incident
caused a personal injury.16 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the employment incident.17
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.18 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.19 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.20
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinions that differentiates between the effects
of the work-related injury or disease and the preexisting condition.21
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
12

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
13

K.M., Docket No. 15-1660 (issued September 16, 2016).

14

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

15

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

16

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

17

Shirley A. Temple, 48 ECAB 404, 407 (1997).

18

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

19

M.V., Docket No. 18-0884 (issued December 28, 2018).

20

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

21

Supra note 8 at Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).

7

In his report dated May 10, 2019, Dr. Cicchetti opined that repetitive bending, lifting,
rotating/twisting while in the performance of his work duties on May 7, 2019 resulted in severe
worsening of appellant’s spinal condition, pain, and loss of function. On August 1, 2019 he opined
that appellant’s diagnoses of cervical postlaminectomy syndrome, thoracic pain secondary to
thoracic sprain/strain, low back pain, and left leg radicular symptoms were directly exacerbated
by repetitive bending, twisting, carrying, and excessive cervical range of motion that occurred
while at work on May 7, 2019. Dr. Cicchetti further noted that returning to the job on May 7, 2019
was the competent cause of the aggravation of preexisting neck, mid back and low back pain.
Dr. Cicchetti described appellant’s mail carrier duties in detail, which required repetitive
lifting of trays, buckets, and bundles of mail weighing between 10 and 40 pounds, appellant was
required to repetitively twist, turn, and reach above his head and below his waist, he pulled down
mail, which required repetitive reaching and turning, he held bundles of mail in his arms and placed
a rubber band around the bundle before placing them on the tray. He explained that these duties
were very taxing on appellant’s cervical, thoracic and lumbar spine as a result of the repetitive
bending, twisting, lifting, carrying, pushing/pulling, and long hours sitting and driving.
In conclusion Dr. Cicchetti opined that the repetitive bending, lifting, twisting, and
carrying performed on May 7, 2019 directly resulted in a traumatic exacerbation of appellant’s
diagnosed postlaminectomy syndrome, thoracic sprain/strain, lumbar disc herniation at L5-S1,
degenerative disc disease, disc bulging at L3-4 and L4-5, and left leg radicular pain.
The Board finds that the reports from Dr. Cicchetti are sufficient to require further
development of the medical evidence. Dr. Cicchetti provided a pathophysiological explanation as
to how appellant’s repetitive bending, lifting, twisting, and carrying on May 7, 2019 resulted in
his diagnosed lumbar and thoracic conditions. The Board has long held that it is unnecessary that
the evidence of record in a case be so conclusive as to suggest causal connection beyond all
possible doubt. Rather, the evidence required is only that necessary to convince the adjudicator
that the conclusion drawn is rational, sound, and logical.22 Accordingly, Dr. Cicchetti’s medical
opinion is therefore sufficient to require further development of appellant’s claim.23
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.24 OWCP has an obligation to see that justice is
done.25

22

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
23

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
24

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
25
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

8

On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to specialist in the appropriate field of medicine. The chosen physician shall provide a
rationalized opinion as to whether the diagnosed conditions are causally related to the accepted
factors of appellant’s federal employment. If the physician opines that the diagnosed conditions
are not causally related, he or she must explain, with rationale, how or why the opinion differs
from that of Dr. Cicchetti. Following this and such other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant abandoned his request for
an oral hearing before an OWCP hearing representative. The Board further finds that this case is
not in posture for decision with regard to whether appellant has met his burden of proof to establish
a medical condition causally related to the accepted May 7, 2019 employment incident.26

26

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062
(issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

9

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs dated is affirmed and the April 17, 2020 decision is set aside
and the case is remanded for further proceedings consistent with this decision of the Board.
Issued: March 1, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1960
Issued: May 22, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated May 24, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she is
entitled to a schedule award.
FACTUAL HISTORY
On September 15, 2001 appellant, then 35-year-old city carrier/carrier technician, filed a
traumatic injury claim alleging that, on that date, she stepped down off a step and turned her
ankle in the performance of duty. She did not initially stop work.1 On February 21, 2002 the
Office accepted appellant’s claim for left foot talonavicular bar with a sprain of the foot and
1

The records reflect that she was subsequently placed off work for approximately three weeks.

ankle.2 The Office expanded the claim to include removal of the coalition and fusion of the
talonavicular joint.3 The Office also accepted anomalies of the left foot. Appellant received
appropriate compensation benefits.4
An October 2, 2003 x-ray of the foot read by Dr. Michael Friedman, a Board-certified
radiologist, revealed talar navicular fusion in good alignment.
On July 30, 2004 appellant filed a claim for a schedule award.
By letter dated August 16, 2004, the Office requested that appellant obtain an opinion
from her treating physician regarding her work-related condition. The Office advised appellant
that her physician needed to utilize the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) and provide an opinion regarding whether she had any
permanent impairment, and if so, the percentage of impairment with an explanation of how the
calculation was derived.
In a September 14, 2004 report, Dr. Levin noted appellant’s history of injury and
treatment, noting that she had reached maximum medical improvement. He conducted a
physical examination and advised that appellant was wearing orthotics to help her with her gait.
Dr. Levin advised that appellant still limped and “has referred to pain elsewhere.” He opined
that appellant had a “good fusion in her left talonavicular joint.” Dr. Levin noted that she had
fusion of the joint in a neutral position of her foot without varus or valgus and that she had 4
percent whole person impairment with 10 percent leg impairment and 14 percent foot
impairment. He advised that he had utilized the fourth edition of the A.M.A., Guides.
In a November 23, 2004 report, an Office medical adviser noted that appellant underwent
surgery to the left foot in the form of a fusion of the left talonavicular joint on August 26, 2003.
He utilized the fifth edition of the A.M.A., Guides and noted that Chapter 17 related to
impairments to the lower extremities. The Office medical adviser explained that “there is no
basis whatsoever in the [fifth edition of the A.M.A., Guides] for an impairment rating as it relates
to a fusion of the talonavicular joint.” Additionally, the Office medical adviser explained that
there was no mention of any factor which would result in impairment. For example, he noted
that there was no discussion regarding loss of motion, muscle wasting or atrophy. The Office
medical adviser indicated that there was no evidence of any neurological impairment and no
structural abnormality and opined that appellant had a zero percent impairment of the left lower
extremity.
In a February 2, 2005 decision, the Office denied appellant’s claim for a schedule award.

2

The record reflects that appellant had a tarsal coalition, which was a congenital condition.

3

On August 26, 2003 appellant underwent a fusion of the left talar navicular joint, which was performed by
Dr. Arnold S. Levin, a podiatrist.
4

On September 9, 2003 the Office determined that appellant’s actual earnings exceeded the current wages of the
job she held when injured. The Office determined that appellant was no longer entitled to compensation payments
as she had no loss in earning capacity.

2

On January 3, 2006 appellant requested reconsideration. In a June 16, 2005 report,
Dr. Abraham A. Cherrick, Board-certified in physical medicine and rehabilitation, noted
appellant’s history of injury and treatment. He noted restrictions on all planes of motion of the
foot and ankle, both in dorsiflexion, plantar flexion, and inversion and eversion, and that the foot
was essentially fixed in neutral. Dr. Cherrick added that there were no other pertinent findings,
although he noted that her gait was antalgic and she had shortened limb functionality. He
advised that appellant did not use a cane. Dr. Cherrick referred to the fifth edition of the A.M.A.,
Guides, section 17.2c5 and advised that an impairment rating secondary to gait derangement
should be supported by pathologic findings such as x-rays. He also indicated that he had
referenced the x-ray of April 4, 20036 which showed a calcaneal spur and the October 2, 2003
x-ray, which showed a fusion in good alignment. Dr. Cherrick noted that an impairment rating
secondary to gait derangement should be supported by x-rays, which “is certainly the case here.”
He determined that appellant had a mild gait limb impairment due to gait derangement, which
was categorized by an antalgic limp with shortened stance and documented moderate to
advanced arthritic changes of the ankle. Dr. Cherrick opined that appellant had 7 percent whole
person impairment, 17 percent leg impairment and 24 percent impairment of the foot. He also
added a rating for ankylosis of the ankle in neutral position pursuant to page 541 of the A.M.A.,
Guides, and referenced the heading under “ankle.”
On March 9, 2006 an Office medical adviser referred to Dr. Cherrick’s June 16, 2005
report. He noted that gait derangement was limited to whole person impairments according to
Chapter 17 at page 529 of the A.M.A., Guides. The Office medical adviser noted that whole
person impairments were not acceptable under Office protocols. He also advised that the
A.M.A., Guides required that “whenever possible the evaluator should use a more specific
method. When the gait method is used a written rationale should be included in the report.” The
Office medical adviser noted that the lower limb impairment percentages which were shown in
Table 17-5 stood alone and were not to be combined with any other impairment method. He also
noted that the section on gait derangement did “not apply to abnormalities based only on
subjective factors such as pain or sudden giving way as with, for example, an individual with low
back comfort who chooses to use a cane to assist in walking.” The Office medical adviser
opined that there was no basis in the A.M.A., Guides for an impairment rating for talonavicular
joint fusion. He further noted that “from a functional point of view talonavicular joint fusion
does not result in any physical impairment whatsoever.” The Office medical adviser also
indicated that, while Dr. Cherrick provided a rating for ankylosis of the ankle in the neutral
position, he noted that appellant did not have a fusion of the ankle. The Office medical adviser
indicated that the fusion was in the mid foot at the talonavicular joint and was not related to or
affected her ankle motion or function.
By decision dated May 24, 2006, the Office affirmed the Office’s February 2, 2005
decision.

5

A.M.A., Guides 529.

6

The record does not contain this x-ray.

3

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act7 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.8 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.9 The A.M.A., Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.10
The Board notes that section 17.2c of the A.M.A., Guides provides as follows:
“Gait derangement is present with many different types of lower extremity
impairments and is always secondary to another condition. An impairment rating
due to a gait derangement should be supported by pathologic findings, such as
x-rays. Except as otherwise noted, the percentages given in Table 17-5 are for full
time gait derangements of persons who are dependent on assistive devices.
Whenever possible, the evaluator should use a more specific method. When the
gait method is used, a written rationale should be included in the report. The
lower limb impairment percents shown in Table 17-5 stand alone and are not
combined with any other impairment evaluation method.”11
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the fifth edition of the A.M.A., Guides.
In a September 14, 2004 report, Dr. Levin opined that appellant had fusion of the joint in
a neutral position of her foot without varus or valgus and that she had a 4 percent whole person
disability impairment with a 10 percent lower extremity impairment and a 14 percent foot
impairment. The Board notes that Dr. Levin used the fourth edition of the A.M.A., Guides in
making his assessment. The fifth edition of the A.M.A., Guides is required on all medical
opinions dated after February 1, 2001.12 The Board has held that a medical opinion not based on
the appropriate edition of the A.M.A., Guides has diminished probative value in determining the
extent of a claimant’s permanent impairment.13 Dr. Levin did not otherwise provide findings
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8107.

9

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

10

20 C.F.R. § 10.404.

11

A.M.A., Guides 529. See also Rose V. Ford, 55 ECAB 449 (2004).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

13

Carolyn E. Sellers, 50 ECAB 393, 394 (1999).

4

that correlated with the fifth edition of the A.M.A., Guides that demonstrated a ratable permanent
impairment.
In a June 16, 2005 report, Dr. Cherrick referred to the fifth edition of the A.M.A., Guides,
section 17.2c14 and found impairment for mild gait limb impairment due to derangement. He
noted that appellant fell into the category for mild gait limb impairment, and opined that
appellant had 7 percent whole person impairment,15 or a 17 percent lower extremity impairment
and a 24 percent impairment of the foot. Dr. Cherrick did not sufficiently explain how he arrived
at this conclusion. As noted above, gait derangement is present with many different types of
lower extremity impairments and is usually secondary to another condition. Although
Dr. Cherrick noted referencing x-rays, he specifically noted that appellant did not use a cane. As
noted impairment for gait derangement under Table 17-5 applies to persons “who are dependent
on assistive devices.”16 Furthermore, while Dr. Cherrick advised that appellant would be entitled
to a rating for ankylosis of the ankle, he did not explain how fusion of the talonavicular joint
would constitute ankylosis of the ankle, nor did he provide any range of motion findings for the
ankle that would be ratable under the A.M.A., Guides.
In a March 9, 2006 report, the Office medical adviser reviewed Dr. Cherrick’s June 16,
2005 report and noted use of gait derangement to rate impairment was limited under the A.M.A.,
Guides. The medical adviser reiterated the cautionary language of the A.M.A., Guides regarding
use of gait derangement, noting that “whenever possible the evaluator should use a more specific
method” and that when “the gait method is used a written rationale should be included in the
report.” The Board notes that Dr. Cherrick provided little rationale to support why he chose to
utilize gait derangement. The Office medical adviser also explained that the section of the
A.M.A., Guides on gait derangement did “not apply to abnormalities based only on subjective
factors such as pain or sudden giving way.” He opined that there was no basis in the A.M.A.,
Guides for an impairment rating for talonavicular joint fusion and that, functionally,
talonavicular joint fusion did not result in physical impairment. The Office medical adviser also
indicated that appellant did not have a fusion of the ankle and she would not be entitled for a
rating due to ankylosis.
Consequently, the medical evidence does not establish that appellant’s accepted
conditions of her left foot caused a permanent impairment to a scheduled member of the body.
On appeal, appellant contends that the Office medical adviser should have converted the
whole person rating for gait derangement to the lower extremities and referenced a formula set
forth in the Office’s procedures for converting whole person impairments into impairment
ratings of individual reproductive organs. However, any conversion of whole person impairment
to impairment to a schedule member of a body is premature until it is established that appellant
has a permanent impairment of a schedule member of the body. As noted above, the Office
14

A.M.A., Guides 529.

15

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
16

See supra note 15.

5

evaluates schedule award claims pursuant to the standards set forth in the A.M.A., Guides.
Appellant has the burden of proof to submit medical evidence supporting that she has permanent
impairment of a schedule member of the body.17 As such evidence has not been submitted,
appellant has not established entitlement to a schedule award.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2006 is affirmed.
Issued: May 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

See Annette M. Dent, 44 ECAB 403 (1993).

6