United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, SEMINOLE
PROCESSING & DISTRIBUTION CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0455
Issued: June 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 28, 2019 appellant, through counsel, filed a timely appeal from two July 1,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to

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

The Board notes that appellant has another appeal pending before the Board under Docket No. 20-0982 concerning
an October 7, 2019 OWCP decision. That appeal is not addressed in this decision and will proceed under its own
docket number.

the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 17
percent permanent impairment of the left upper extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On January 23, 2011 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her left hand when she helped a coworker
clear up a jam in the dolly maker while in the performance of duty. She did not stop work. OWCP
accepted appellant’s claim for left hand sprain and subsequently expanded the acceptance of her
claim to include left carpal tunnel syndrome, left cubital tunnel syndrome, left trigger finger (long
and little fingers), and other joint derangement of left shoulder and left arm. Appellant
subsequently underwent various OWCP-authorized surgeries for her left upper extremity
conditions.5 OWCP paid her wage-loss compensation on the supplemental rolls for intermittent
periods of disability and placed her on the periodic rolls, effective January 13, 2013.
On April 4, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a January 23, 2014 report, Dr. Samy Bishai, an orthopedic surgeon, indicated that
appellant’s condition had stabilized since her left shoulder, left arm, and left trigger finger surgeries
and noted that she had reached maximum medical improvement (MMI) as of that date,
January 23, 2014. Upon examination of appellant’s left shoulder, he observed tenderness
overlying the anterior, lateral, and posterior aspects of the left shoulder joint. Dr. Bishai indicated
that range of motion testing revealed 75 degrees forward flexion, 15 degrees extension, 75 degrees
abduction, 15 degrees adduction, 45 degrees external rotation, and 20 degrees internal rotation.
Examination of appellant’s left forearm revealed residual numbness in the distribution of the
median and ulnar nerves. Tinel’s and Phalen’s signs were positive on the left. Dr. Bishai reported
that examination of appellant’s left hand and wrist showed weakness of the grip and diminished
sensation in the left thumb, middle, index, ring, and little fingers. He noted diagnoses of internal
derangement of the left shoulder, left shoulder bursitis, left shoulder rotator cuff syndrome, status
postoperative release of left carpal tunnel and cubital tunnel syndrome, status postoperative release
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the July 1, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.
5

On July 1, 2011 appellant underwent OWCP-authorized left carpal tunnel, left cubital tunnel, and left trigger
fingers release surgery. She stopped work and returned to full-time limited-duty work on August 10, 2011. On
January 10, 2013 appellant underwent OWCP-authorized left shoulder arthroscopic surgery and stopped work again.

2

of trigger fingers of the left little, ring, and middle fingers, left shoulder impingement syndrome,
right ulnar nerve dysfunction, C8-T1 entrapment of the upper extremities, status post-op
arthroscopic surgery for left shoulder impingement syndrome, right shoulder internal
derangement, right shoulder impingement syndrome, and right shoulder partial thickness tear of
the supraspinatus and infraspinatus tendons.
Dr. Bishai referenced the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)6 and indicated that he would use the range
of motion (ROM) method for rating appellant’s accepted left shoulder condition because it was
the most disabling problem. Referencing Table 15-34, Shoulder Range of Motion, page 475, he
calculated that appellant had 9 percent permanent impairment due to 75 degrees of forward flexion,
2 percent permanent impairment due to 15 degrees extension, 6 percent permanent impairment
due to 75 degrees abduction, 1 percent permanent impairment due to 15 degrees adduction, 4
percent permanent impairment due to 20 degrees internal rotation, and 2 percent permanent
impairment due to 45 degrees of external rotation, for a total of 24 percent left upper extremity
permanent impairment. For her left carpal tunnel syndrome condition, Dr. Bishai utilized
Table 15-23, page 449, and indicated that appellant had nine percent permanent impairment for
residual problems with left carpal tunnel syndrome, status post carpal tunnel release. He noted
that her condition fell under grade modifier of 3 on Table 15-23. For appellant’s left ulnar nerve
entrapment Dr. Bishai determined that appellant had nine percent permanent impairment under
Table 15-23, page 449. He reported that appellant’s condition fell under grade modifier of 3.
Dr. Bishai explained that 50 percent of the second nerve entrapment rating equaled 4.5 percent,
which rounded up to 5 percent permanent impairment for appellant’s left ulnar nerve entrapment
condition.
For appellant’s left middle, ring, and little trigger fingers, Dr. Bishai reported that he would
apply Table 15-2, Digit Regional Grid, page 392, for all three fingers. He indicated that each of
appellant’s trigger fingers equated to a class of diagnosis (CDX) of 1 with a default value of six
percent upper extremity impairment. Dr. Bishai assigned a grade modifier for functional history
(GMFH) of 27 and a grade modifier for physical examination (GMPE) of 2.8 He noted that a grade
modifier for clinical studies (GMCS) was not useable.9 Applying the net adjustment formula
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Bishai calculated an adjustment of +2,
which moved the default value up to eight percent permanent impairment each for the left middle,
ring, and little fingers.10 He converted the impairment ratings for each finger for a total left hand
permanent impairment of four percent. Dr. Bishai explained that under the Combined Values
Chart,11 appellant’s 24 percent left shoulder permanent impairment, 9 percent left carpal tunnel
6

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

7

Id. at 406, Table 15-7.

8

Id. at 408, Table 15-8.

9

Id. at 410, Table 15-9.

10

Id. at 411.

11

Id. at 604 to 606.

3

permanent impairment, 5 percent left ulnar nerve entrapment permanent impairment, and 4 percent
permanent hand impairment resulted in a total impairment rating of 37 percent left upper extremity
permanent impairment.
OWCP forwarded Dr. Bishai’s January 23, 2014 impairment rating report to Dr. James W.
Dyer, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA).
In an April 7, 2014 report, Dr. Dyer indicated that Dr. Bishai’s impairment rating had correct
methodology to determine schedule award for appellant’s left upper extremity using Table 15-2,
Table 15-23, and Table 15-34 of the A.M.A., Guides. The DMA noted that Dr. Bishai did not
correctly use the Combined Values Chart and calculated that appellant had a total of 36 percent
permanent impairment of the left upper extremity. He reported a date of MMI of January 23, 2014.
On March 14, 2014 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. William Dinenberg, a Board-certified orthopedic surgeon,
for a second opinion evaluation regarding the status of her January 23, 2011 employment injury
and extent of disability. In an April 15, 2014 report, Dr. Dinenberg reviewed appellant’s history
of injury and reviewed her medical records. Upon examination of appellant’s left forearm, he
noted positive Phalen’s, Tinel’s, and carpal tunnel compression tests. Dr. Dinenberg reported that
examination of appellant’s left shoulder revealed a well-healed surgical scar and ROM
measurements of forward flexion to 80 degrees, which appellant stopped secondary to pain,
extension to 40 degrees, stopping secondary to pain, abduction to 70 degrees, stopping secondary
to pain, adduction to 20 degrees, stopping secondary to pain, internal rotation to 20 degrees,
stopping secondary to pain, and external rotation to 70 degrees. He opined that appellant’s
accepted left hand sprain and left shoulder conditions had resolved, but explained that additional
diagnostic testing was needed to determine whether appellant’s left carpal tunnel and left elbow
conditions had resolved.
On April 14, 2014 appellant underwent a nerve conduction velocity (NCV) study of the
upper extremities, which was suggestive of mild carpal tunnel syndrome on the right and early or
mild carpal tunnel syndrome on the left.12
In a development letter dated May 12, 2014, OWCP advised appellant of the type of
evidence needed to establish her claim for a schedule award utilizing the appropriate portions of
the sixth edition of the A.M.A., Guides. It afforded her 30 days to submit the necessary evidence.
A May 28, 2014 electromyography (EMG) and NCV study showed no electrodiagnostic
evidence of any focal nerve entrapment, brachial plexopathy, cervical radiculopathy, or
generalized peripheral neuropathy in the left upper limb.
In a June 20, 2014 addendum report, Dr. Dinenberg referenced Table 15-23, page 449, of
the A.M.A., Guides, and indicated that appellant had zero percent permanent impairment due to
her left carpal tunnel syndrome and zero percent permanent impairment due to her left cubital
tunnel syndrome. He explained that test findings were normal with intermittent symptoms and
objective findings. Regarding appellant’s left trigger finger digits, Dr. Dinenberg determined that
12
Appellant retired from federal employment, effective May 1, 2014, and elected to receive Civil Service
Retirement Benefits.

4

appellant had zero percent permanent impairment due to physical examination findings of no
triggering or tenderness. For appellant’s left shoulder condition, he reported that he would utilize
the diagnosis-based (DBI) rating method to determine appellant’s permanent impairment because
accurate range of motion measurements were not obtained. Utilizing Table 15-5, page 402,
Dr. Dinenberg determined that appellant had CDX of 1, default 10 percent, for status-post distal
clavicle resection. He noted GMFH of 2 and GMCS of 1. After applying the net adjustment
formula, Dr. Dinenberg concluded that appellant had a total of 11 percent left upper extremity
permanent impairment.
In an unsigned July 3, 2014 report, an unknown provider serving as a DMA answered
“Yes” in response to the question of whether Dr. Dinenberg correctly applied the A.M.A., Guides.
The DMA noted a date of MMI of June 20, 2014.13
In an August 19, 2014 report, Dr. Richard M. Blecha, a Board-certified orthopedic
surgeon, indicated that he had reviewed Dr. Bishai’s and Dr. Dinenberg’s impairment rating
reports and requested that OWCP consider his impairment rating. He provided examination
findings and explained that he believed that appellant’s shoulder ROM measurements were limited
not by pain, but by actual stiffness. Regarding appellant’s left shoulder, Dr. Blecha first utilized
the DBI rating method and determined that under Table 15-5, page 403, appellant had 12 percent
permanent impairment.14 He also utilized the ROM method and indicated that under Table 15-34,
page 475, appellant had 9 percent permanent impairment due to 80 degrees flexion, 2 percent
permanent impairment due to 25 degrees extension, 6 percent permanent impairment due to 75
degrees abduction, 0 percent permanent impairment due to 40 degrees adduction, 4 percent
permanent impairment due to 25 degrees internal rotation, and 4 percent permanent impairment
due to 40 degrees of external rotation, for a total of 23 percent permanent impairment. Dr. Blecha
explained that since the ROM method provided a higher impairment rating, appellant was entitled
to 23 percent permanent impairment for her left shoulder condition. Regarding appellant’s left
carpal tunnel syndrome, he utilized Table 15-23, page 449, and indicated that appellant had 5
percent permanent impairment for residual problems with left carpal tunnel syndrome, status post
carpal tunnel release, and zero percent permanent impairment relative to her left elbow ulnar nerve
entrapment and trigger fingers due to normal physical examination findings. Dr. Blecha calculated
that according to the Combined Values Chart, appellant had a total of 27 percent left upper
extremity permanent impairment due to her accepted left shoulder and left carpal tunnel
conditions.
No further development was taken regarding appellant’s schedule award claim until
June 30, 2015 when OWCP referred Dr. Dinenberg’s June 20, 2014 addendum report and the
medical record to another DMA for review. In a July 2, 2015 report, Dr. H.P. Hogshead, a Boardcertified orthopedic surgeon serving as a DMA, responded, “Yes” that Dr. Dinenberg correctly
applied the criteria and tables of the A.M.A., Guides in calculating appellant’s impairment rating.
13

The Board notes that it is unable to identify the DMA from the record.

14

Dr. Blecha noted a CDX of 1, default 10 percent, for status-post distal clavicle resection. He assigned GMFH of
2 due to complaints of pain and symptoms with normal activity, GMPE of 3 due to severely limited ROM, and GMCS
of 2 due to diagnostic testing that confirmed a partial thickness rotator cuff tear. Applying the net adjustment formula,
Dr. Blecha calculated an adjustment of +4, which moved the default value up to 12 percent permanent impairment.

5

He indicated that he agreed with Dr. Dinenberg’s impairment rating of 11 percent left upper
extremity permanent impairment. DMA Hogshead also agreed that appellant reached MMI on
June 20, 2014.
In a September 29, 2015 decision, OWCP denied appellant’s schedule award claim finding
that the medical evidence of record was insufficient to establish that she sustained a permanent
impairment due to her accepted January 23, 2011 employment injury.
OWCP subsequently received a September 20, 2015 impairment rating evaluation report
by Dr. Robert R. Reppy, an osteopathic physician who specializes in family medicine, who
reviewed appellant’s history of the January 23, 2011 employment injury and discussed diagnostic
testing results. He provided examination findings and diagnosed status post-left rotator cuff and
clavicle surgery, left carpal tunnel syndrome, stenosing tenosynovitis, right cubital tunnel
syndrome, bilateral supraspinatus and infraspinatus tears, herniated C5-6 disc with radiculopathy,
cervical stenosis, lumbar stenosis, and herniated L5-S1 disc with radiculopathy. Dr. Reppy
reported that appellant reached MMI on September 10, 2015. Regarding appellant’s left carpal
tunnel syndrome, Dr. Reppy referred to Table 15-23, page 449, of the A.M.A., Guides and
indicated that her condition fell under grade modifier 2,15 which equated to 5 percent upper
extremity permanent impairment. For appellant’s right cubital tunnel syndrome, he noted that
appellant’s condition fell under grade modifier 216 in Table 15-23, which equated to 5 percent left
upper extremity permanent impairment. Dr. Reppy explained that according to the A.M.A.,
Guides, the first entrapment is given full value and the second diagnosis is given only 50 percent,
which totaled 8 percent upper extremity permanent impairment for carpal and right cubital tunnel
syndrome.
For the right shoulder condition, Dr. Reppy referenced Table 15-5, page 403, of the
A.M.A., Guides, and indicated that appellant had seven percent permanent impairment for the
condition of right shoulder full thickness supraspinatus tear.17 For appellant’s left shoulder
condition, he also utilized Table 15-5, page 402, and indicated that appellant had three percent
permanent impairment for left shoulder partial-thickness supraspinatus tear, residual loss.18
Regarding appellant’s cervical conditions, Dr. Reppy determined that according to the A.M.A.,
Guides and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth
Edition (July/August 2009) (The Guides Newsletter), appellant had three percent upper extremity
15

Dr. Reppy noted a grade modifier for test findings of 1 due to test findings of conduction delay. He also assigned
a grade modifier for functional history of 3 due to constant symptoms and a grade modifier for physical findings of 3
due to weakness. Dr. Reppy noted that the average of the grade modifiers rounded to 2.
16
Dr. Reppy noted a grade modifier for test findings of 1 due to test findings of conduction delay. He also assigned
a grade modifier for functional history of 3 due to constant symptoms and a grade modifier for physical findings of 2
due to decreased sensation. Dr. Reppy noted that the average of the grade modifiers rounded to 2.
17
Dr. Reppy noted a grade modifier for test findings of 4 due to diagnostic studies. He also assigned a grade
modifier for functional history of 2 for symptoms with normal activity and self-care with modifications and a grade
modifier for physical findings of 1 due to grade one instability.
18

Dr. Reppy noted a grade modifier for test findings of 2 due to diagnostic studies. He also assigned a grade
modifier for functional history of 2 for symptoms with normal activity and self-care with modifications and a grade
modifier for physical findings of 1 due to grade one instability.

6

permanent impairment due to cervical C5-C6 disc herniation with radiculopathy and nine percent
upper extremity permanent impairment due to lumbar L5-S1 disc herniation with radiculopathy.
He concluded that appellant had a total of 13 percent bilateral upper extremity permanent
impairment and, specifically, 9 percent left upper extremity permanent impairment. Dr. Reppy
also noted 10 percent whole person permanent impairment.
On September 26, 2016 appellant, through counsel, requested reconsideration.
By decision dated December 19, 2016, OWCP vacated the September 29, 2015 decision.
By a separate decision dated December 20, 2016, it granted appellant a schedule award for 11
percent permanent impairment of the left upper extremity. The award ran for 34.32 weeks from
June 20, 2014 through February 15, 2015. OWCP found that the weight of the medical evidence
rested with Dr. Dinenberg’s June 20, 2014 report.
On December 20, 2017 appellant, through counsel, requested reconsideration.
Appellant submitted an August 2, 2017 report by Dr. Mark Seldes, a Board-certified family
physician, who indicated that he concurred with Dr. Dyer’s impairment rating of 36 percent left
upper extremity permanent impairment. Dr. Seldes first utilized the ROM method to determine
impairment for appellant’s left shoulder condition. Referencing Table 15-34, page 475, he noted
that appellant had 24 percent left upper extremity permanent impairment. For appellant’s left
carpal tunnel syndrome and left ulnar nerve entrapment, Dr. Seldes determined that under Table
15-23, page 449, appellant had nine percent permanent impairment and five percent permanent
impairment, respectively. Lastly, for her left middle, ring, and little trigger finger conditions, he
referenced Table 15-2, page 392, and determined that appellant had eight percent permanent
impairment for each digit, which converted to four percent permanent impairment for her left hand.
In a January 31, 2018 report, Dr. Jovito Estaris, a Board-certified occupational medicine
physician serving as an OWCP DMA, indicated that he was unable to provide an impairment rating
based on the medical reports provided and recommended a second opinion examination.
OWCP subsequently referred appellant, along with a SOAF and copy of the medical
record, to Dr. John Madlener, Board-certified in physical medicine and rehabilitation, for a second
opinion examination. In a March 28, 2018 report, Dr. Madlener noted his review of the SOAF and
that appellant’s present claim was accepted for left hand sprain, left carpal tunnel syndrome, status
post left carpal tunnel release, lesion of left ulnar nerve, status post left cubital tunnel release, left
3rd, 4th, & 5th trigger fingers, status post release of all three, and other derangement of the left
shoulder and upper arm. He recounted appellant’s current complaints of pain of the left side of
the neck, left shoulder, left elbow, and first and second digits of the left hand.
Upon examination of appellant’s left upper extremity, Dr. Madlener noted inconsistencies
with evaluating the left upper limb for light touch and sharp sensation. He reported diminished
light touch in the fingertips of the first and second digit and no sensation over the fingertips of the
first and second digits. Tinel’s sign over the median and ulnar nerve at the elbow were negative,
but elicited complaints of pain. Upon examination of appellant’s left shoulder, Dr. Madlener
observed no severe pain upon palpation and light touch over the anterior, lateral, posterior, and
superior aspects of the shoulder. He provided three ROM measurements each for forward flexion,

7

active abduction, and extension. Dr. Madlener explained that appellant would not allow him to
passively abduct the shoulder to 90 degrees or attempt left shoulder adduction due to complaints
of extreme pain. Upon examination of the digits of the left hand, he observed pain upon palpation
over the volar surface at the first and second metacarpal (MCP) joint region. Dr. Madlener noted
that appellant grimaced and noted severe pain when he attempted active grip/MCP joint flexion.
Dr. Madlener reported that appellant reached MMI on April 15, 2014. Regarding
appellant’s left shoulder condition, he agreed with Dr. Blecha that the ROM method was
appropriate since it produced the higher impairment rating. Dr. Madlener explained that he would
use Dr. Dinenberg’s ROM measurements since these measurements were similar to Dr. Blecha
and Dr. Bishai’s measurements. Utilizing Table 15-34, page 475, he calculated that appellant had
9 percent permanent impairment due to 80 degrees of flexion, 1 percent permanent impairment
due to 40 degrees extension, 6 percent permanent impairment due to 70 degrees abduction, 1
percent permanent impairment due to 20 degrees adduction, 4 percent permanent impairment due
to 20 degrees internal rotation, and 0 percent permanent impairment due to 70 degrees of external
rotation, for a total of 21 percent left upper extremity permanent impairment. Regarding
permanent impairment for appellant’s left carpal tunnel syndrome, Dr. Madlener reported that he
agreed with Dr. Blecha’s assessment of five percent left upper extremity permanent impairment.
He indicated that according page 448, paragraphs 2 and 3, of the A.M.A., Guides, whether or not
nerve conduction tests recover to normal after surgical or nonsurgical treatment does not influence
impairment rating. Dr. Madlener noted that appellant’s subjective complaints of pain along the
median neuropathy was the only consistent sensory testing area. He opined that appellant had no
permanent impairment of the digits, ulnar nerve, or hand sprain. Dr. Madlener explained that
appellant only complained of digit pain over the first and second MCP, which were not accepted
conditions. He concluded that according to the Combined Values Chart, page 604, appellant had
a total of 25 percent permanent impairment of the left upper extremity, which converted to 15
percent whole person impairment.
In an April 9, 2018 supplemental report, Dr. Madlener utilized the DBI method to
determine permanent impairment of appellant’s left shoulder and indicated that under Table 15-5,
page 403, appellant had a CDX of 1, with a default value of 10 percent, for the condition of status
post distal clavicle resection. He assigned a GMFH of 3 due to appellant’s history. Dr. Madlener
indicated that GMCS were not used because it was used for class assignment and that GMPE was
not used because it was unreliable. He applied the net adjustment formula, which resulted in a net
adjustment of +2, and moved the default value up to 12 percent permanent impairment. Regarding
permanent impairment for appellant’s carpal tunnel syndrome, Dr. Madlener utilized Table 15-23,
page 449, and noted a grade modifier 3 for appellant’s complaints of numbness in the first and
second digits. He reported a grade modifier of 2 due to diminished sensation in the first and second
digits and no grade modifier for test findings. Dr. Madlener calculated the average of the grade
modifiers, which rounded to 2, and resulted in five percent left upper extremity permanent
impairment. He referenced the Combined Values Chart, page 604, and concluded that 12 percent
permanent impairment for appellant’s left shoulder and 5 percent permanent impairment for
appellant’s neuropathy impairment equaled a total of 16 percent left upper extremity permanent
impairment. Dr. Madlener also noted that under Table 15-11, page 420, appellant had 10 percent
whole person impairment.

8

In another April 30, 2018 addendum report, Dr. Madlener indicated that the ROM method
could not reliably be used to determine permanent impairment for appellant’s trigger fingers
because ROM measurements were unreliable and limited due to appellant’s intolerance and
perceived lack of full effort. He utilized Table 15-2, page 392, and indicated that appellant had a
CDX of 0 due to no residual findings for a final impairment rating of zero percent. For appellant’s
left hand sprain condition, Dr. Madlener utilized Table 15-2, and indicated that appellant had a
CDX of 0 due to no significant consistent objective findings for an impairment rating of zero
percent.
In a May 17, 2018 report, Dr. Estaris, the DMA, reviewed the case file and indicated that
he agreed with Dr. Madlener’s impairment evaluation for 12 percent permanent impairment for
appellant’s left shoulder condition and 5 percent permanent impairment for her left carpal tunnel
syndrome for a combined total of 16 percent permanent impairment of the left upper extremity.
Utilizing the DBI rating method, he referenced Table 15-5, page 403, of the A.M.A., Guides and
assigned a CDX of 1 due to status post distal clavicle resection for a default impairment rating of
10 percent. The DMA noted a GMFH of 3 and a GMPE of 3. After applying the net adjustment
formula, he calculated that appellant had a final upper extremity impairment of 12 percent
permanent impairment of the left upper extremity. The DMA also noted that the diagnosis allowed
for an alternative impairment evaluation under the ROM method. He related that, since appellant
exhibited symptom magnification and suboptimal effort when performing ROM measurements
during Dr. Madlener’s examination, he would disallow the rating method. For appellant’s left
carpal tunnel syndrome, the DMA referenced Table 15-23, page 449, and assigned a grade
modifier of 1 for test findings, 3 for history, and 2 for physical examination. He calculated the
average of the grade modifiers for a total of five percent left upper extremity permanent
impairment. The DMA reported a date of MMI of April 15, 2014, the date used by Dr. Dinenberg
and agreed upon by Dr. Madlener. He further indicated that, since appellant was previously
awarded an impairment rating for 11 percent due to her left shoulder, she was entitled to an
additional 1 percent for her left shoulder and 5 percent for her left carpal tunnel syndrome for a
total additional award of 6 percent left upper extremity permanent impairment.
By decision dated May 23, 2018, OWCP vacated the December 20, 2016 decision and
granted appellant a schedule award for an additional 6 percent left upper extremity permanent
impairment, for a total of 17 percent left upper extremity permanent impairment. The award ran
for 18.72 weeks from February 16 through June 27, 2015, based on Dr. Madlener’s second opinion
reports and the May 17, 2018 DMA report.
On May 23, 2019 appellant, through counsel, requested reconsideration. He argued that
that Dr. Seldes continued to treat appellant and had consistently documented her shoulder ROM
measurements, which he used for calculating her impairment rating. Counsel reiterated that
OWCP should have granted appellant a schedule award for 36 percent left upper extremity
permanent impairment as previously determined by Dr. Dyer in his April 7, 2014 DMA report.
Appellant continued to receive medical treatment for her upper extremity symptoms and
submitted various medical reports, including reports dated August 1, 2018 through June 19, 2019
by Dr. Seldes, a November 21, 2018 left elbow magnetic resonance imaging (MRI) scan report,
reports dated January 10 through March 7, 2019 by Dr. Anup Patel, a Board-certified internist,

9

who diagnosed various right arm conditions, and an April 17, 2019 report by Dr. George White, a
Board-certified internist.
By decision dated July 1, 2019, OWCP denied modification of the May 23, 2018 decision.
It found that the medical evidence of record was insufficient to establish that appellant was entitled
to greater than 17 percent left upper extremity (arm) permanent impairment. By separate decision
also dated July 1, 2019, OWCP issued a formal schedule award granting appellant an additional 6
percent permanent impairment of the left arm for a total 17 percent permanent impairment of the
left upper extremity. The period of the schedule award ran for 18.72 weeks for the period
February 16 to June 27, 2015.
LEGAL PRECEDENT
The schedule award provisions of FECA19 and its implementing regulations20 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.21 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.22
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
to be rated. With respect to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of the default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS.23 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).24 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.25

19

5 U.S.C. § 8107.

20

20 C.F.R. § 10.404.

21

Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
22
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
23

A.M.A., Guides 405-12; see M.P., Docket No. 13-2087 (issued April 8, 2014).

24

Id. at 411.

25

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

10

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.26 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history, and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down based on functional scale, an assessment of impact on
daily living activities.27
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e. DBI or
ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] Guides
identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)28
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allows for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE. If the medical evidence of record is
[in]sufficient for the DMA to render a rating on ROM where allowed, the DMA
should advise as to the medical evidence necessary to complete the rating.
However, the DMA should still render an impairment rating using the DBI method,
if possible, given the available evidence.”29
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.30

26

Id. at 449.

27

Id. at 448-449.

28

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

29

Id.

30
See FECA Procedure Manual, supra note 20 at Chapter 2.808.6(f) (March 2017). R.M., Docket No. 18-1313
(issued April 11, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010).

11

ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Madlener for a second opinion examination and opinion
regarding the permanent impairment of appellant’s left upper extremity. Regarding appellant’s
left shoulder condition, he indicated that the ROM method for rating impairment was appropriate
since it produced the higher impairment rating. Utilizing Table 15-34, page 475, Dr. Madlener
applied Dr. Dinenberg’s ROM measurements and calculated that appellant had 21 percent left
upper extremity permanent impairment. In an April 9, 2018 supplemental report, he utilized the
DBI method to determine appellant’s left shoulder impairment rating and indicated that under
Table 15-5, page 403, appellant had 12 percent left upper extremity permanent impairment for the
condition of status post distal clavicle resection.
In a May 17, 2018 report, Dr. Estaris, a DMA, indicated that he agreed with Dr. Madlener’s
impairment evaluation for 12 percent permanent impairment of appellant’s left shoulder condition.
Utilizing the DBI rating method, he referenced Table 15-5, page 403, and assigned a CDX of 1
due to status-post distal clavicle resection for a default impairment rating of 10 percent. DMA
Estaris noted a GMFH of 3 and a GMPE of 3. After applying the net adjustment formula, he
calculated that appellant had a final upper extremity impairment of 12 percent permanent
impairment of the left upper extremity. The DMA, Dr. Estaris, further explained that while the
diagnosis allowed for an impairment evaluation under the ROM, he would not use this rating
method because appellant exhibited symptom magnification and suboptimal effort when
performing ROM measurements. The Board finds, however, that the DMA did not provide
sufficient explanation in his May 17, 2018 report as to why he would not use the ROM method in
assessing appellant’s permanent impairment for her left shoulder condition, especially given the
fact that Dr. Madlener, the second opinion examiner, determined that the ROM method was
appropriate and had produced the higher impairment rating.31
Additionally, in his May 17, 2018 report, the DMA, Dr. Estaris also failed to discuss or
provide any calculations for appellant’s permanent impairment rating due to her accepted left
trigger finger injuries. Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating
permanent impairment is allowed for the diagnosis in question, the DMA should independently
calculate impairment using both the ROM and DBI methods and identify the higher rating for the
CE.32 In this case, according to Table 15-2, the diagnosis for digital stenosing tenosynovitis
(trigger digit) contains an asterisk, which allows for the alternative method of rating impairment
under the ROM method.33 However, the DMA, Dr. Estaris, did not follow the procedures outlined
in FECA Bulletin No. 17-06 as he did not provide any discussion or calculations regarding

31

See J.O., Docket No. 19-1337 (issued February 2, 2021).

32

Supra note 26.

33

A.M.A., Guides 392.

12

appellant’s permanent impairment under either the ROM or DBI method for appellant’s accepted
left trigger finger injuries.34
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.
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.36 As OWCP undertook development of the evidence by referring appellant to an
OWCP medical adviser, it had an obligation to do a complete job and obtain a proper evaluation
and report that would resolve the issue in this case.37 The case will, therefore, be remanded for
further clarification from the DMA, Dr. Estaris, regarding why he did not apply the ROM method
for rating appellant’s permanent impairment for her accepted left shoulder injury. Furthermore,
because OWCP failed to follow the procedures set forth in FECA Bulletin No. 17-06, OWCP shall
request that the DMA provide a supplemental report addressing appellant’s impairment rating for
her accepted left long and little trigger finger injuries under both the DBI and ROM rating methods.
If the DMA determines that he is unable to render a rating on ROM because the ROM findings are
incomplete, he should advise OWCP as to the medical evidence necessary to complete the ROM
method of rating as required under FECA Bulletin No. 17-06.38 Following this and other such
development as deemed necessary, it shall issue a de novo decision.
35

CONCLUSION
The Board finds that the case is not in posture for decision.

34

See J.L., Docket No. 19-1684 (issued November 20, 2020).

35

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
36

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
37

G.M., Docket No. 19-1931 (issued May 28, 2020); W.W., Docket No. 18-0093 (issued October 9, 2018).

38
Supra note 25; see also R.L., Docket No. 19-1793 (issued August 7, 2020); E.P., Docket No. 19-1708 (issued
April 15, 2020).

13

ORDER
IT IS HEREBY ORDERED THAT the July 1, 2019 decisions of the Office of Workers’
Compensation Programs are set aside, and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 17, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Leesville, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1921
Issued: December 11, 2018

Case Submitted on the Record

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

JURISDICTION
On September 11, 2017 appellant filed a timely appeal from an August 16, 2017 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 appellant’s case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a June 15, 2017
injury while in the performance of duty, as alleged.
FACTUAL HISTORY
On July 6, 2017 appellant, then a 41-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on June 15, 2017, a customer threatened to shoot her and damage her
car while she was in the performance of duty. She explained that, as a result, she suffered
1

5 U.S.C. § 8101 et seq.

emotional stresses, anxiety, post-traumatic stress disorder (PTSD), and anxiousness. Appellant
stopped work on June 22, 2017. On the reverse side of the claim form, appellant’s supervisor
checked a box marked “yes” indicating that their knowledge of the facts about the injury agreed
with the statements of the employee or witnesses.
In a narrative statement dated July 6, 2017, appellant indicated that she was experiencing
severe panic attacks, which caused her to feel nervous and fearful. She also related that her
stomach was in knots and that she experienced chest pain. Appellant explained that when a car
back-fired she “dove for the side of [her] car for protection.” She noted that, in her mind, it
sounded like “gunfire” and she no longer felt safe in her job. Appellant also indicated that she was
always looking over her shoulder, and she could not sleep and she could still hear the customer
who threatened her yelling with his hand in her face. She further noted that when she did eat, she
regurgitated and felt pain throughout her body.
By development letter dated July 13, 2017, OWCP informed appellant of the type of
evidence needed to establish her claim and requested that she submit such evidence within 30 days.
In an accompanying questionnaire, it asked her to describe in detail how the claimed injury
occurred.
No evidence was received.
By decision dated August 16, 2017, OWCP denied appellant’s claim, finding that appellant
had not established that the claimed June 15, 2017 incident occurred, as alleged. It also indicated
that no medical evidence containing a diagnosis was provided.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable
time limitation period of FECA,2 and that an injury was sustained in the performance of duty.3
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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.5 Second, the employee

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

John J. Carlone, 41 ECAB 354 (1989).

2

must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.6
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.7 To establish causal
relationship between the condition, as well as any attendant disability claimed, and the
employment event or incident, the employee must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such causal relationship.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a June 15, 2017
injury in the performance of duty, as alleged.
Appellant alleged that on June 15, 2017 a customer threatened to shoot her and damage her
car while she was in the performance of duty. By letter dated July 13, 2017, OWCP advised
appellant of the type of evidence needed to establish her claim and afforded appellant 30 days to
submit the necessary evidence. As appellant did not respond to the request for factual information,
the record lacks sufficient factual evidence to establish the details of how the claimed injury
occurred. Thus, the Board finds that appellant has not met her burden of proof.9
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a June 15, 2017
injury in the performance of duty, as alleged.

6

Id.

7

J.Z., 58 ECAB 529 (2007).

8

Michael E. Smith, 50 ECAB 313 (1999).

9

Supra note 5.

3

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., 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. 07-1903
Issued: January 24, 2008

Case Submitted on the Record

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

JURISDICTION
On July 3, 2007 appellant, through counsel, filed a timely appeal from December 18,
2006 and June 8, 2007 merit decisions of the Office of Workers’ Compensation Programs
terminating her medical benefits for her cervical condition. 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 met its burden of proof to terminate appellant’s medical
benefits effective December 18, 2006 on the basis that she no longer had any residuals due to her
accepted cervical strain.
FACTUAL HISTORY
On March 6, 2004 appellant, then a 42-year-old mail processor, sustained injury to her
shoulders and neck due to repetitive motions associated with her job duties. The Office accepted
the claim for bilateral sprain/strain of the shoulders and neck and a right torn rotator cuff.

Appellant underwent surgery on July 27, 2004.1
September 28, 2004.

She returned to full-time limited duty on

On November 11, 2004 appellant’s treating physician, Dr. Robert Zanotti, a Boardcertified orthopedic surgeon, stated that she was status postarthroscopic decompression of the
shoulder, with post-op adhesions/frozen shoulder on the right. He also diagnosed a left
shoulder/cervical strain. He recommended restrictions, including “10 [pounds] push-pull with no
overhead for three months.”
In a report dated February 21, 2005, Dr. Sheldon Kaffer, a Board-certified orthopedic
surgeon and Office referral physician, found that appellant demonstrated residuals of her right
shoulder condition. He found, however, that the evidence was insufficient to support that she
continued to have residuals from the accepted cervical or left shoulder strain. Dr. Kaffer advised
that she no longer required medical treatment for either condition.
By letters dated March 15 and May 10, 2006, the Office asked appellant’s attending
physician, Dr. Zanotti, to review and comment on Dr. Kaffer’s report. In a May 6, 2005 duty
status report, Dr. Zanotti stated that appellant had bilateral shoulder tendinitis. He stated that
appellant was able to work full time with restrictions, including lifting, pulling and pushing no
more than 10 pounds and no reaching above shoulder level.
The Office determined that a conflict arose between Dr. Zanotti and Dr. Kaffer as to
whether appellant had continuing residuals due to her work-related cervical and shoulder
conditions. The Office referred her, together with a statement of accepted facts and the medical
record, to Dr. Robert Anschuetz, a Board-certified orthopedic surgeon, for an impartial medical
examination. Dr. Anschuetz reviewed the record, including reports of x-rays and magnetic
resonance imaging (MRI) scans of the cervical spine. He performed a thorough examination of
her shoulders and cervical region. In a report dated December 1, 2005, Dr. Anschuetz found that
appellant had residuals of her accepted right shoulder sprain. He noted normal cervical spine xrays on December 19, 2001 and unremarkable MRI scans of the cervical spine on two occasions.
Range of motion of the cervical spine was 50 percent of normal with respect to flexion,
extension and bending and turning side to side. Appellant complained of pain towards the base
of the neck with flexion. With bending and turning from side to side, she complained of
tightness on the opposite side. A neurologic examination revealed normal motor strength and
normal Hoffman reflexes. Deep tendon reflexes were present bilaterally. Appellant noted some
difference in sensation over the right arm in the C5 and C6 distributions. She informed
Dr. Anschuetz that she had been involved in a motor vehicle accident on October 8, 2005 and
that her neck pain had been worse since that incident.
On January 6, 2006 the Office asked Dr. Anschuetz to clarify whether appellant had
residuals of the work-related cervical strain. In an addendum dated January 13, 2006,
Dr. Anschuetz advised that there were no physical findings to support an ongoing cervical sprain

1

The Board notes that appellant’s November 6, 2001 traumatic injury claim File No. 092015372 was accepted for
right shoulder and cervical strain. On August 5, 2004 the Office combined File No. 092015372 with File
No. 092045007, which became the master file.

2

related to the accepted injury. He opined that any ongoing cervical symptoms were the result of
her October 8, 2005 motor vehicle accident.
On November 15, 2006 the Office notified appellant that it proposed to terminate medical
benefits related to her accepted cervical strain. The Office relied on the well-rationalized report
from Dr. Anschuetz, the impartial medical specialist
On November 27, 2006 appellant disagreed with the proposed termination. In an
August 21, 2006 duty status report, Dr. Zanotti diagnosed bilateral shoulder tendinitis and
repeated his recommended restrictions. In reports dated November 22 and December 4, 2006,
Dr. Parshotam C. Gupta, a Board-certified anesthesiologist, noted appellant’s complaints of neck
pain radiating into her shoulders. He diagnosed bilateral shoulder arthropathy and cervical
spondylosis, aggravated by an injury at work. Dr. Gupta noted that appellant had an auto
accident in 2005, which “probably” aggravated her problem. He stated that appellant’s 2004
injury produced a bulging disc and narrowing of the interspace in the cervical region, as well as
stenosis of the cervical spine. Dr. Gupta found that she had ongoing cervical pain that radiated
into the arms. He opined that her work injury aggravated her arthritis, which caused pain when
she works.
By decision dated December 18, 2006, the Office terminated appellant’s medical benefits
for the accepted cervical sprain/strain. The Office found that the weight of the medical evidence
was represented by the report of the referee examiner. It found that Dr. Gupta failed to discuss
how appellant’s current cervical condition was causally related to her accepted employment
injury.
On December 27, 2006 appellant, through her attorney, requested an oral hearing, which
was held on April 4, 2007. At the hearing, counsel contended that appellant had ongoing
residuals of the accepted cervical condition. Appellant testified that she injured her neck in a
2005 motor vehicle accident and that she received treatment from Dr. Gupta for her pain.
In a December 4, 2006 report, Dr. Gupta diagnosed left shoulder arthropathy with
bicipital tendinitis and cervical spondylosis. On December 13, 2006 he diagnosed “cervical
spondylosis aggravated by accident, whiplash injury [and] seatbelt injury.” On January 19, 2007
Dr. Gupta diagnosed bilateral shoulder sprain and arthropathy. On March 15, 2007 he diagnosed
bilateral shoulder arthropathy and right frozen shoulder. April 8, 2007 notes, bearing an illegible
signature, reflected decreased range of motion of the neck. Appellant submitted work excuses
dated April 16 and May 1, 2007 from Dr. Gupta, who diagnosed bilateral shoulder arthropathy
and indicated that appellant’s pain had increased.
By decision dated June 8, 2007, the Office hearing representative affirmed the
December 18, 2006 decision, finding that the weight of the medical evidence was represented by
Dr. Anschuetz’ referee report. The representative found that the Office had met its burden of
proof to terminate medical benefits for the accepted cervical strain, as the weight of medical
evidence established that she had no continuing residuals. The representative stated that the
reports of appellant’s treating physicians did not provide adequate medical reasoning sufficient
to overcome Dr. Anschuetz’ impartial opinion.

3

LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.5 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist is given special weight when well rationalized and
based on a proper medical and factual background.7
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits related to her accepted cervical condition.
The Office properly determined that a conflict arose in the medical opinion evidence as to
whether appellant had ongoing residuals due to her accepted cervical strain. Dr. Zanotti, her
treating physician, opined that she continued to experience symptoms related to diagnosed
cervical strain and recommended restrictions, including 10 pounds push-pull, with no overhead
reaching for three months. Dr. Kaffer the second opinion physician, opined that appellant did
not have residuals from the accepted cervical strain. He stated that she no longer required
medical treatment.
In a report dated December 1, 2005, Dr. Anschuetz reviewed the medical record,
including x-ray reports and reports of MRI scans and the statement of accepted facts. His
thorough examination of appellant revealed range of motion of the cervical spine to be 50
percent of normal with respect to flexion, extension and bending and turning from side to side.
2

George A. Rodriguez, 57 ECAB ___ (Docket No. 05-490, issued November 18, 2005); Paul L. Stewart,
54 ECAB 824 (2003).
3

Kathryn E. Demarsh, 56 ECAB 677 (2005); Elsie L. Price, 54 ECAB 734 (2003).

4

See Daniel F. O Donnell, Jr., 54 ECAB 456 (2003).

5

Roger G. Payne, 55 ECAB 535 (2004).

6

James F. Weikel, 54 ECAB 660 (2003).

7

See Richael O’Brien, 53 ECAB 234 (2001).

4

Dr. Anschuetz’ neurologic examination revealed normal motor strength and normal Hoffman
reflexes. Deep tendon reflexes were present bilaterally. He noted appellant’s complaints of pain
towards the base of the neck with flexion, of tightness with bending and turning from side to side
and some difference in sensation over the right arm in the C5 and C6 distributions. Appellant
informed Dr. Anschuetz that she had been involved in a motor vehicle accident on October 8,
2005 and that her neck pain had been worse since that incident. In a supplemental report dated
January 13, 2006, he stated that there were no objective findings to support an ongoing cervical
sprain ascribable to the accepted employment injury. He opined that any ongoing cervical
symptoms were the result of appellant’s October 8, 2005 motor vehicle accident.
The Board finds that the Office properly relied on Dr. Anschuetz’ December 1, 2005 and
January 13, 2006 reports in determining that appellant did not have any residuals of her accepted
cervical strain. Dr. Anschuetz’ opinion is sufficiently well rationalized and based upon a proper
factual background. He provided a thorough medical examination and review of the medical
records. Dr. Anschuetz reported accurate medical and employment histories. The Office
properly accorded special weight to the impartial medical specialist’s findings.8
Appellant did not submit medical evidence sufficient to overcome the weight of
Dr. Anschuetz’ opinion or to create a new conflict. Dr. Gupta advised that appellant experienced
cervical pain in November and December 2006. However, he did not explain how her diagnosed
condition was causally related to the accepted work injury, rather than to her October 2005 motor
vehicle accident. Dr. Zanotti’s report of August 21, 2006 did not address appellant’s cervical
condition. None of the medical evidence submitted by appellant contains a rationalized opinion
establishing that she had residuals of her accepted cervical condition. As the weight of the
medical evidence establishes that she did not have any residuals due to her accepted cervical
strain, the Office properly terminated her medical benefits for this condition.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s medical
benefits effective December 18, 2006 on the basis that she no longer had any residuals due to her
accepted cervical strain.

8

Bryan O. Crane, 56 ECAB 713 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the June 8, 2007 and December 18, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Waymart, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1520
Issued: February20, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a January 18, 2017 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 met his burden of proof to establish total disability
commencing December 7, 2015, causally related to his accepted October 22, 2015 employment
injury.
FACTUAL HISTORY
On October 24, 2015 appellant, then a 41-year-old correctional treatment specialist, filed
a traumatic injury claim (Form CA-1) alleging that, on October 22, 2015, he sustained an acute
1

5 U.S.C. § 8101 et seq.

allergic reaction to mold in the course of his federal employment.2 A supervisor advised that
appellant stopped work on October 22, 2015. On December 15, 2015 OWCP accepted
appellant’s claim for aggravation of an acute allergic reaction to mold.3
In an attending physician’s report (Form CA-20) dated October 28, 2015, a medical
provider with an illegible signature, diagnosed an allergy, noting that appellant had experienced
an asthmatic reaction after being exposed to mold. The provider noted that appellant was
advised not to return to work.
In a note dated November 18, 2015, Dr. Eckardt Johanning, Board-certified in
occupational medicine, opined that appellant was temporarily totally disabled until December 31,
2015, pending further evaluation.
On December 3, 2015 appellant filed a claim for compensation (Form CA-7) for leave
without pay from December 7 through 20, 2015. Subsequently, he filed claims for compensation
(Form CA-7) for leave without pay from December 20, 2015 through March 26, 2016 and from
April 10 through August 13, 2016.
By development letter dated December 15, 2015, OWCP noted that appellant had stopped
work on October 22, 2015 and had not yet returned. It stated that, while he had requested
compensation for leave without pay commencing December 7, 2015, he had not submitted
sufficient evidence to establish total disability from work for the entire claimed period. OWCP
requested that appellant provide a report from a physician explaining how his disability was
related to his accepted injury of October 22, 2015.
In a work capacity evaluation (Form OWCP-5b) dated December 23, 2015,
Dr. Johanning related that appellant was unable to return to work to prevent possible future
injury from work in a moldy or damp environment. He further noted that appellant’s anti-allergy
medication may make him drowsy.
In a report dated January 7, 2016, Dr. Johanning, Board-certified in occupational
medicine, explained that, after working at the employing establishment, appellant developed
symptoms of coughing, difficulty breathing, shortness of breath, throat and skin irritation,
swelling of the neck, hoarse voice, loss of smell, nosebleeds, headaches, excessive fatigue, and
eye swelling. He related that the employing establishment had recurrent leaks, excessing
2

In a letter dated October 29, 2014, Dr. Barry Minora, a specialist in internal medicine, noted that appellant’s
office, F195, had tested for the highest mold concentration in an initial environmental report. The initial
environmental report, dated October 14, 2014, supported Dr. Minora’s assessment, noting more spores of various
types in appellant’s office, F195, than in other locations.
In an environmental monitoring study dated January 20, 2015, an industrial hygienist examined the premises of
the employing establishment and concluded that the post-remediation air samples on premises were not elevated
when compared to outdoor concentrations. The report did not include results for appellant’s office, F195. In a letter
dated April 14, 2015, appellant noted that he had received a copy of the air quality tests and that his own office had
not been included in the study, despite his office having the highest concentrations on an initial air quality test.
3
The record reflects that appellant has an August 1, 2008 occupational disease claim which was accepted for
allergic rhinitis (temporary) under OWCP File No. xxxxxx930.

2

dampness, and hygiene and mold problems. Dr. Johanning noted that, despite medication,
appellant still suffered recurrent flare-ups of his respiratory symptoms. He had requested a
detailed industrial hygiene inspection in order to ensure appellant’s symptoms were not due to
continued exposure, but that no such investigation had yet been performed. Dr. Johanning
diagnosed environmental lung disease with reactive airway disease, chronic rhino-sinusitis, and
mold allergy.
OWCP referred appellant for a second opinion evaluation to determine whether he had
residuals of the accepted condition and whether he could return to work. In a second opinion
evaluation dated January 13, 2016, Dr. Michael Nekoranik, a Board-certified internist and
pulmonologist, diagnosed severe chronic and allergic rhinitis and sinusitis related to mold
exposure in appellant’s workplace. He indicated that, since appellant was away from his work
environment after October 22, 2015, his symptoms and chronic rhinitis had improved
significantly, but were still present. Dr. Nekoranik opined that appellant’s condition would
worsen if he continued to have exposure to mold at his workplace, but that he was not totally or
partially disabled from any other employment.
By letter dated January 16, 2016, Dr. Johanning diagnosed environmental lung disease
with reactive airway disease, chronic rhino-sinusitis, and mold allergy. He noted that appellant
was medically removed from work until February 16, 2016.
By decision dated February 19, 2016, OWCP denied appellant’s claim for compensation
for leave without pay commencing December 7, 2015. It found that he had not submitted
medical reports with sufficient rationale linking his disability to the accepted condition.
On March 15, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
In a work capacity evaluation dated March 23, 2016, Dr. Johanning concluded that
appellant could not return to work because he had not been accommodated with a new work
location. He reissued essentially the same evaluation with the same recommendations on
August 17, 2016.
The hearing was held on November 3, 2016. Appellant described his employment
history with the U.S. Justice Department and his job duties as a correctional treatment specialist.
He noted that he was unable to perform the duties of his employment position and the lack of a
modified job offer.
By decision dated January 18, 2017, the hearing representative affirmed the February 19,
2016 OWCP. She found that appellant had not submitted any rationalized medical evidence in
support of his contention that he was totally disabled at any period subsequent to December 7,
2015 causally related to his accepted condition of aggravation of an acute allergic reaction to
mold.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, the employee has the burden of proof to establish that he was disabled from
work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term “disability” means incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.8 When the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, they prevent the employee from continuing in his employment, he is entitled
to compensation for any loss of wages.9 The Board has held that the fear of future injury
however is not compensable.10
ANALYSIS
OWCP accepted appellant’s claim for aggravation of an acute allergic reaction to mold
on December 15, 2015. Appellant thereafter filed claims for compensation for leave without pay
for the period December 7, 2015 and continuing.
By decision dated February 19, 2016, OWCP denied appellant’s claim for compensation
for leave without pay commencing December 7, 2015. It found that he had not established that
he was totally disabled due to the accepted condition of aggravation of acute allergic reaction to
mold.
The Board finds that the case is not in posture for decision.
In a report dated January 7, 2016, Dr. Johanning, appellant’s treating physician, related
that, despite medication, appellant still suffered recurrent flare-ups of his respiratory symptoms.
In a work capacity evaluation dated March 23, 2016, he indicated that appellant could not return
to work because he had not been accommodated with a new work location.
4

Supra note 1.

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Merle J. Marceau, 53 ECAB 197 (2001).

10

See G.B., Docket No. 07-1525 (issued November 13, 2007).

4

OWCP then referred appellant for a second opinion evaluation with Dr. Nekoranik. In a
report dated January 13, 2016, Dr. Nekoranik diagnosed appellant with severe chronic and
allergic rhinitis and sinusitis related to mold exposure in his workplace. He concluded that, since
appellant had been out of his work environment after October 22, 2015, his symptoms and
chronic rhinitis had improved significantly, but were still present. Dr. Nekoranik opined that
appellant’s condition would worsen if he had exposure to mold at his workplace, but that he was
not totally or partially disabled from any other employment.
An employee is entitled to receive compensation for periods of disability related to an
aggravation of an underlying condition. An employee is not entitled to compensation for periods
of disability where the aggravation is temporary and leaves no permanent residuals. This is true
even though the employee is found medically disqualified to continue in such employment
because of the effect that employment factors may have on his underlying condition. Under such
circumstances, the employee’s disqualification for continued employment is due to the
underlying condition without any contribution by the employment.11 However, as previously
noted when the medical evidence establishes that the residuals or sequelae of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing in his
employment, he is entitled to compensation for any loss of wages.12
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.13 As
OWCP undertook development of the evidence by referring appellant to a second opinion
physician, it has the duty to secure an appropriate report addressing the relevant issues.14
Dr. Nekoranik’s second opinion medical report related that appellant continued to have
residuals of the accepted injury and that his condition would worsen if he has exposure to mold
at his workplace, but that he could perform other employment. His report requires clarification
as to whether residuals from appellant’s accepted condition, or the fear of future injury disabled
appellant from a return to work.
The Board, therefore, will remand the case for OWCP to obtain a supplemental report
from Dr. Nekoranik addressing whether residuals of accepted condition disabled appellant from
a return to his date-of-injury position. After this and any further development deemed necessary,
it should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

See D.M., Docket No. 11-0386 (issued February 2, 2016).

12

Supra note 9.

13

See William J. Cantrell, 34 ECAB 1223 (1983).

14

See D.V., Docket No. 16-1853 (issued April 14, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2017 is set aside and this case is remanded to OWCP
for further proceedings consistent with this opinion.
Issued: February 20, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
MINT, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2146
Issued: June 9, 2009

Case Submitted on the Record

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

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from October 19, 2007 and May 12,
2008 decisions of the Office of Workers’ Compensation Programs adjudicating his schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than 12 percent permanent impairment of his
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On September 19, 1991 appellant, a 36-year-old machinist, sustained a lumbar strain and
a herniated disc at L5-S1 when he twisted his back while attempting to stop a motor that was
suspended from a crane from swinging.
On December 19, 1991 he underwent a
microdiscectomy of his L5-S1 herniated disc performed by Dr. Ronald Wisneski, a Boardcertified orthopedic surgeon.

On March 26, 2004 appellant filed a claim for a schedule award. In a January 19, 2004
report, Dr. David Weiss, an osteopathic physician specializing in orthopedic medicine, calculated
31 percent impairment of his right lower extremity due to hip and ankle muscle weakness,
sensory loss and pain.
On June 7, 2004 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an
Office medical adviser, stated that the report from Dr. Weiss was not sufficient to determine
appellant’s right lower extremity impairment because his findings on physical examination and
muscle testing were in conflict with the findings of other physicians and resulted in an inaccurate
impairment rating.1 He recommended a second opinion examination. In a July 16, 2004 report,
Dr. Robert A. Smith, a Board-certified orthopedic surgeon, calculated seven percent right lower
extremity impairment for sensory nerve deficit.
The Office found a conflict in the medical opinion evidence between Dr. Weiss and
Dr. Smith. It referred appellant to Dr. William H. Simon, a Board-certified orthopedic surgeon,
for an independent medical evaluation. In an April 14, 2005 report, Dr. Simon calculated seven
percent impairment of appellant’s right lower extremity for Grade 1 muscle weakness of the
extensor hallucis longus muscle, based on Table 17-8 at page 532 of the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). On May 25, 2005 Dr. Berman reviewed the medical evidence and calculated 10.5
percent, rounded to 11 percent, right lower extremity impairment for sensory deficit. He found
1.25 percent impairment of the left lower extremity for sensory deficit.
By decision dated June 13, 2005, the Office granted appellant a schedule award based on
11 percent right lower extremity impairment for 31.68 weeks, from April 14 to
November 21, 2005.2
Appellant requested an oral hearing before an Office hearing
representative that was held on March 3, 2006. By decision dated June 5, 2006, the hearing
representative remanded the case for further development of the medical evidence.
On June 29, 2006 the Office asked Dr. Simon for a supplemental report. On July 18,
2006 Dr. Simon reiterated his right lower extremity impairment rating of seven percent.
On August 14, 2006 an Office medical adviser indicated that he would accept seven
percent impairment unless Dr. Simon provided more data for the sensory loss. He indicated that
perhaps the 11 percent already awarded was the correct percentage of impairment.
By decision dated August 21, 2006, the Office found that appellant had no more than 11
percent right upper extremity impairment. Appellant requested an oral hearing that was held on
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (These procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office 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, especially when there is more than one evaluation of the impairment present).
2

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 11 percent for the right lower
extremity equals 31.68 weeks of compensation.

2

January 24, 2007. On March 21, 2007 an Office hearing representative found that Dr. Simon did
not provide sufficient rationale for his seven percent impairment rating. Therefore, Dr. Simon’s
report was not sufficient to represent the weight of the medical evidence and resolve the conflict
as to appellant’s right lower extremity impairment. The Office hearing representative directed
the Office to refer appellant for a new independent medical examination.
On April 24, 2007 the Office referred appellant, together with a statement of accepted
facts and list of questions, to Dr. Robert Dennis, a Board-certified orthopedic surgeon.
In a May 15, 2007 report, Dr. Dennis reviewed the history of appellant’s condition and
provided findings on physical examination. He indicated that appellant had right hip and leg
pain but opined that he had no identifiable ratable pain. There was no atrophy or gait
derangement. There was some weakness of dorsiflexion (extension) of the hallux on the right
foot. Dr. Dennis calculated 12 percent right lower extremity impairment, including 2 percent for
Grade 4 sensory deficit of the L5 and S1 nerves, based on Table 15-15 at page 424 of the
A.M.A., Guides, 3 percent for muscle weakness of the great toe, based on Table 17-8 at page
532 and 7 percent for sensory deficit of the sciatic nerve, based on Table 17-37 at page 552. He
found no impairment of appellant’s left lower extremity.
In a report dated July 23, 2007, Dr. Morley Slutsky, a Board-certified specialist in
preventive medicine and an Office medical adviser, stated that he agreed with Dr. Dennis’
calculation of two percent impairment for sensory loss in the L5 and S1 nerve roots but disagreed
with his impairment rating of three percent for great toe muscle weakness and seven percent for
sensory deficit of the sciatic nerve. He calculated four percent right lower extremity impairment,
including two percent for sensory deficit of the L5 and S1 nerve roots, based on Table 15-15 at
page 424 of the A.M.A., Guides and two percent muscle weakness of the extensor hallucis
longus muscle of the great toe, based on Grade 4 muscle weakness from Table 17-7 at page 531
and Table 17-8 at page 532.
Due to the discrepancies between the impairment calculations of Dr. Dennis and
Dr. Slutsky, the Office asked Dr. Dennis for a supplemental report.
On August 17, 2007 Dr. Dennis reiterated his opinion that appellant had 12 percent right
lower extremity impairment based on the criteria in his May 12, 2007 report. He explained that
the three percent impairment for loss of extension of the great toe was selected because appellant
was between a Grade 4 and 3 and he determined that three percent was more appropriate.
Dr. Dennis stated that an April electromyogram (EMG) revealed three level radiculopathy in the
right leg. The right foot had some decreased sensation from the ankle down along the L5-S1
nerve root. Dr. Dennis determined that this constituted a mixed distribution of the sciatic nerve
from at least two and possibly three nerve root impingements in the lumbar spine producing
neurological deficit. He stated that seven percent impairment for sensory deficit of the sciatic
nerve was appropriate and consistent with mixed findings of involvement of more than one nerve
root.
On September 28, 2007 Dr. Berman stated that Dr. Dennis’ rating for the sciatic nerve
was not appropriate because only nerve root calculations were permitted in schedule awards. He
calculated 12 percent right lower extremity impairment, including 9 percent for Grade 4 muscle

3

weakness of the extensor hallucis longus muscle of the great toe, based on Figure 16-11 at page
484 of the A.M.A., Guides3 and Table 15-18 at page 424 (25 percent for Grade 4 weakness
multiplied by 37 percent maximum for L5 loss of strength equals 9.25 percent, rounded to 9
percent) and 3 percent for Grade 4 sensory loss for the L5 and S1 nerves, based on Tables 15-15
and 15-18 at page 424 (25 percent maximum for Grade 4 in Table 15-15 multiplied by 5 percent
maximum, each, for the L5 and S1 nerves equals 1.25 percent for each nerve or 2.50 percent for
both nerves, rounded to 3 percent).
On October 19, 2007 the Office granted appellant a schedule award based on an
additional one percent right lower extremity impairment for 21 days (2.88 weeks) from May 16
to June 5, 2007. Appellant requested an oral hearing that was held on February 20, 2008.
By decision dated May 12, 2008, the Office hearing representative affirmed the
October 19, 2007 decision.4
LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 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 regulations as the
appropriate standard for evaluating schedule losses.7
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.8
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.9 The diagnosis-based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
3

Dr. Berman referenced Figure 16-16 but it is clear from the context that he meant Figure 16-11 at page 484
which is used for determining motor deficits due to peripheral nerve disorders for both lower and upper extremities.
See A.M.A., Guides 484, Figure 16-11; text at 550, section 17.2l.
4

Subsequent to the July 31, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

A.M.A., Guides 525.

9

Id.

4

and meniscectomies.10 The functional method is used for conditions when anatomic changes are
difficult to categorize or when functional implications have been documented and includes range
of motion, gait derangement and muscle strength.11 The evaluating physician must determine
which method best describes the impairment of a specific individual based on patient history and
physical examination.12 When uncertain about which method to use, the evaluator should
calculate the impairment using different alternatives and choose the method or combination of
methods that gives the most clinically accurate impairment rating.13 If more than one method
can be used, the method that provides the higher impairment rating should be adopted.14
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
[of Labor] shall appoint a third physician who shall make an examination.”15 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
Board case precedent provides that, when the Office obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the deficiency in his original report. Only when the impartial
specialist is unable to clarify or elaborate on his original report or if his supplemental report is
incomplete, vague, speculative or lacking in rationale, should the Office refer the claimant to a
second impartial specialist.16
ANALYSIS
The Board finds that this case is not in posture for a decision. The report of Dr. Dennis is
not sufficient to resolve the conflict in the medical opinion evidence. Further development of the
medical evidence is necessary to determine appellant’s right lower extremity impairment.
In his May 15 and August 17, 2007 reports, Dr. Dennis reviewed the history of
appellant’s condition and provided findings on physical examination. He indicated that appellant
had right hip and leg pain but opined that he had no identifiable ratable pain. Dr. Dennis
calculated 12 percent right lower extremity impairment. This included two percent for Grade 4
10

Id.

11

Id. at 525, Table 17-1.

12

Id. at 548, 555.

13

Id. at 526.

14

Id. at 527, 555.

15

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
16

See Nancy Keenan, 56 ECAB 687 (2005).

5

sensory deficit of the L5 and S1 nerves, based on Table 15-15 at page 424 of the A.M.A.,
Guides. However, Chapter 15 of the A.M.A., Guides addresses impairment of the spine. Under
the Act, a schedule award is not payable for the loss or loss of use of any member of the body or
function that is not specifically enumerated in section 8107 of the Act or its implementing
regulations.17 The back is specifically excluded from coverage of the schedule award provisions
of the Act.18 Although a schedule award may not be issued for an impairment to the back under
the Act, such an award may be payable for permanent impairment of the lower extremities that is
due to an employment-related back condition.19 Additionally, Chapter 15 provides for
determination of impairment based on the “whole person.” However, the Act does not provide
for a schedule award based on permanent impairment of the whole person.20 For these reasons, it
was inappropriate for Dr. Dennis to evaluate the permanent impairment of appellant’s right lower
extremity by using a section of the A.M.A., Guides pertaining to the back.21 Dr. Dennis should
have used Chapter 17 (The Lower Extremities) in determining appellant’s right lower extremity
impairment due to sensory deficit,22 specifically, section 17.2l for Peripheral Nerve Injuries
beginning at page 550. The 12 percent right lower extremity impairment rating also included
7 percent for sensory deficit of the sciatic nerve, based on Table 17-37 at page 552. However, in
Table 17-37 the only seven percent figure for the sciatic nerve is seven percent of the whole
person. Table 17-37 provides 17 percent lower extremity impairment for sensory deficit of the
sciatic nerve. The third component of the 12 percent right lower extremity rating from
Dr. Dennis was 3 percent for muscle weakness of the great toe, based on Table 17-8 at page 532.
He explained that he based his calculation of three percent on his finding that appellant was
between a Grade 3 and 4 and he determined that three percent was appropriate. Table 17-8
provides for seven percent impairment for Grade 3 great toe muscle weakness in extension and
three percent impairment for Grade 4 great toe weakness. The midrange between seven percent
for Grade 3 and three percent for Grade 4 would be four or five percent, not three percent.
Dr. Dennis indicated that appellant had right hip and leg pain but opined that he had no
identifiable ratable pain. However, he provided insufficient explanation for his opinion. The
applicable sections of the A.M.A., Guides for determining lower extremity impairment due to
pain or sensory deficit are section 17.2l beginning at page 550 and Table 16-10 at page 482. As
noted, Dr. Dennis found that appellant had right lower extremity impairment due to sensory
deficit but he should have applied Chapter 17, the chapter on the lower extremity, rather than
Chapter 15, the chapter on the spine. For these reasons, his impairment rating for appellant’s
right lower extremity is not sufficient to resolve the conflict in the medical opinion evidence.
17

See Leroy M. Terska, 53 ECAB 247 (2001).

18

5 U.S.C. § 8101(19); see also Vanessa Young, 55 ECAB 575 (2004).

19

Vanessa Young, supra note 18; Gordon G. McNeill, 42 ECAB 140 (1990).

20

Tania R. Keka, 55 ECAB 354 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

21

Guiseppe Aversa, supra note 20 (the Board found that the impartial medical specialist improperly used Chapter
15 in evaluating right leg impairment caused by a spinal injury).
22

The introduction to Chapter 17 at page 523 states that this chapter provides criteria for evaluating permanent
impairment of the lower extremities. A.M.A., Guides 523, 525; see also 555, 17.3, lower extremity impairment
evaluation procedure summary and examples.

6

On remand, the Office should refer appellant to a new impartial medical specialist for a
determination of his right lower extremity impairment based on correct application of the fifth
edition of the A.M.A., Guides and reference to specific sections, tables and pages. The physician
should provide medical rationale explaining why a particular rating method was selected. If
more than one impairment rating method can be used in evaluating appellant’s impairment, the
method that provides the higher rating should be adopted.23
On appeal, appellant asserts that he has impairment to his left lower extremity causally
related to his September 19, 1991 employment injury. On May 25, 2005 report Dr. Berman
referenced an April 28, 2003 EMG which revealed bilateral radiculopathy affecting the L5 and
S1 nerve roots. He indicated that appellant had 1.25 percent left lower extremity impairment but
he did not explain how the left lower extremity impairment was causally related to appellant’s
employment injury or show how he calculated the 1.25 percent impairment. The evidence is not
sufficient to establish that appellant has left lower extremity impairment causally related to his
September 19, 1991 employment-related back injury. Appellant also asserts on appeal that the
Office did not properly select Dr. Dennis from the Physicians Directory Service (PDS). A
physician selected by the Office to serve as an impartial medical specialist should be wholly free
to make a completely independent evaluation and judgment. To achieve this, the Office has
developed specific procedures for the selection of impartial medical specialists designed to
provide safeguards against any possible appearance that the selected physician’s opinion is
biased or prejudiced. The procedures contemplate that impartial medical specialists will be
selected from a Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.24 The Federal (FECA) Procedure Manual (the Procedure
Manual) provides that the selection of referee physicians (impartial medical specialists) is made
through a strict rotational system using appropriate medical directories. The Procedure Manual
provides that the PDS should be used for this purpose wherever possible.25 The PDS is a set of
stand-alone software programs designed to support the scheduling of second opinion and referee
examinations.26 The PDS database of physicians is obtained from the American Board of
Medical Specialties Directory of Board-certified Medical Specialists, which contains the names
of physicians who are Board-certified in certain specialties. In this case, the Office’s April 24,
2007 referral form indicates that the referral source for the selection of Dr. Dennis was the PDS.
There is no evidence that the Office did not select Dr. Dennis from the PDS. Therefore,
appellant’s assertion is without merit.
CONCLUSION
The Board finds that this case is not in posture for a decision. The conflict in the medical
opinion evidence as to appellant’s right lower extremity impairment has not been resolved. On
23

A.M.A., Guides 527.

24

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
See also Willie M. Miller, 53 ECAB 697 (2002).
25

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

26

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (May 2003).

7

remand, the Office should refer appellant to a new impartial medical specialist for a right lower
extremity impairment evaluation based on correct application of the fifth edition of the A.M.A.,
Guides. After such further development as the Office deems necessary, it should issue a de novo
decision on appellant’s schedule award claim.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 12, 2008 and October 19, 2007 are set side and the case is
remanded for further action consistent with this decision.
Issued: June 9, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8