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

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

Docket No. 13-1896
Issued: February 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 12, 2013 appellant, through his attorney, filed a timely appeal from a July 3,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained any permanent impairment to his lower
extremities as a result of his work-related injuries, warranting a schedule award.
FACTUAL HISTORY
On August 7, 1999 appellant, then a 46-year-old mailhandler, filed an occupational
disease claim alleging that his bilateral knee conditions were due to the heavy lifting and pulling
of containers and boxes in his federal employment. He first realized his condition was caused by
1

5 U.S.C. §§ 8101-8193.

his employment in July 1998. Appellant has a history of nonwork-related knee conditions and
surgeries, which predate this claim. He has worked with restrictions since July 1998. OWCP
accepted the claim for aggravation of bilateral patella malalignment. Medical and wage-loss
compensation benefits were authorized.
On July 7, 2006 appellant filed a Form CA-7 claim for a schedule award. In an August 8,
2006 report, Dr. Peter R. Ricci, a Board-certified orthopedic surgeon, opined that appellant had
25 percent permanent impairment due to continued pain in his knees. Following appropriate
development, OWCP denied the claim by decision dated September 14, 2007 on the grounds
Dr. Ricci’s report failed to provide the necessary information upon which to base a permanent
partial impairment rating.
On November 20, 2009 appellant filed another claim for a schedule award. In a
November 27, 2009 report, Dr. William N. Grant, a Board-certified internist and second opinion
examiner, opined under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) that appellant had 36 percent left lower
extremity impairment and 36 percent right lower extremity impairment.
Following questions raised by its medical adviser regarding Dr. Grant’s report, OWCP
directed appellant to a second opinion examination with Dr. Manhal A. Ghanma, a Boardcertified orthopedic surgeon, to resolve the question of entitlement to a schedule award due to
residuals of the work-related injury. In a June 1, 2010 report, Dr. Ghanma opined that appellant
reached maximum medical improvement on July 21, 1998. He concluded that based solely on
the allowed conditions of aggravation of bilateral knees of bilateral patellar malalignment, no
additional treatment was necessary and there were no permanent disabling injury residuals.
Thus, Dr. Ghanma opined that appellant had zero percent impairment to his lower extremities.
On July 13, 2010 an OWCP medical adviser concluded that the medical evidence did not
support a measurable permanent impairment to a scheduled member.
By decision dated September 17, 2010, OWCP denied appellant’s claim for a schedule
award.
By letter dated September 23, 2010, appellant’s attorney requested an oral hearing and
submitted additional reports from Dr. Grant dated September 8 and October 20, 2010 on the
issue of appellant’s bilateral lower extremity impairment.2 OWCP subsequently determined that
a conflict in medical evidence existed between Dr. Grant and Dr. Ghanma over whether
appellant had continuing residuals of a work-related condition and whether there was any
permanent impairment due to the work injury. By decision dated January 7, 2011, OWCP’s
hearing representative vacated OWCP’s decision dated September 17, 2010 and remanded the
case for OWCP to prepare a statement of accepted facts and refer appellant and the case record
to an appropriate Board-certified specialist for an impartial medical examination.

2

In his September 8 and October 20, 2010 reports, Dr. Grant opined that appellant reached maximum medical
improvement and has 59 percent impairment based on Table 16-23, page 549 of A.M.A., Guides.

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In a February 20, 2011 report, Dr. Kenneth W. Chapman, a Board-certified orthopedic
surgeon selected as the impartial medical specialist, noted his review of the statement of
accepted facts and the record and set forth examination findings. He noted that his physical
examination findings coincided more with the examination of Dr. Ghanma than that of
Dr. Grant. Dr. Chapman stated that his examination findings did not reveal large synovial
changes or a flexion contracture of 10 degrees and 60 degrees flexion in either knee as reported
by Dr. Grant. Rather, he opined that, while appellant walked with a cane and had a somewhat
unsteady gait, it was secondary to the osteoarthritis in his knees, which were unrelated to the
allowed condition of bilateral patella malalignment. Dr. Chapman opined that appellant did not
suffer from any residuals from the accepted work condition of July 21, 1998 and the
degenerative arthritis of his knees was unrelated to a malalignment of his patella tendon, which
he noted was not found on examination. He stated that, while he did not know how the diagnosis
of bilateral patella malalignment was arrived, he could not say when it ceased or resolved.
Dr. Chapman explained that for appellant to injure his knee as described, be sent home from the
hospital and return to work in two to three days it was unlikely that appellant had sustained a
significant patellofemoral malalignment or dislocation. He further opined that appellant did not
have any significant residual from the injury. Dr. Chapman stated that appellant’s problems with
his knees at the present time were related to degenerative arthritis. He stated that the
degenerative arthritis would not cease or resolve until he has surgery, which was indicated for a
knee replacement as opposed to arthroscopic debridement. Dr. Chapman stated, however, that
further imagining studies of appellant’s knees would be needed for a surgical decision and any
surgery would be unrelated to appellant’s July 21, 1998 work injury.
Dr. Chapman opined that, while appellant has no residuals from his bilateral patella
malalignment, he did not believe that he was capable of performing a mailhandler position on an
unrestricted basis because of the severe degenerative arthritis of the knees. He stated that while
appellant could perform the position he was doing with the forklift, apparently that work was no
longer available and that was the reason appellant was laid off. Dr. Chapman further explained
that while he would return appellant to work with no restrictions with regard to the allowed
injury, he would not be able to return to work required for a postal worker because of the
degenerative arthritis of his knees, which was unrelated to the July 21, 1998 work injury. With
regard to the accepted aggravation, he stated that he suspected the aggravation ceased a very
short time after appellant returned to work after the initial injury on July 21, 1998, which
Dr. Ghanma also indicated. Dr. Chapman stated that this was not a permanent problem and
appellant reached maximum medical improvement approximately three months after his July 21,
1998 work injury. He stated that appellant’s problem with his knees was related to degenerative
arthritis, which was unrelated to the July 21, 1998 work injury. Dr. Chapman stated that there
was no recommendation for future medical care or treatment for the allowed condition as it had
resolved. He also noted that while appellant had a decrease in range of motion of his left knee
and full range of motion of the right knee, the decrease in range of motion of the left knee was
not related to his allowed condition, so he had zero percent impairment for both of his knees
secondary to the allowed condition from the July 21, 1998 work injury. Thus, Dr. Chapman
opined under the sixth edition of the A.M.A., Guides that appellant had zero percent impairment
for both knees from the allowed condition from the July 21, 1998 work injury.
By decision dated September 8, 2011, OWCP denied appellant’s claim for a schedule
award. Determinative weight was accorded to Dr. Chapman’s impartial medical report.
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By decision dated September 12, 2011, OWCP terminated appellant’s wage-loss and
medical benefits effective September 13, 2011.3
On September 13, 2011 appellant, through counsel, disagreed with OWCP’s
September 8, 2011 decision and requested a telephonic hearing, which was held on
December 15, 2011.
In a December 22, 2011 report, Dr. John L. Dunne, an osteopath, provided a history of
the injury, reviewed medical records and provided findings on examination. Under the sixth
edition of the A.M.A., Guides, Dr. Dunne set forth his calculations and opined that appellant had
seven percent impairment of the left and right lower extremities for a dislocated left patella,
closed and malaligned bilateral knee. Examination of the right knee revealed no edema or
effusion, normal skin markings and no discomfort of the medial or lateral joint line upon
palpation. Range of motion was zero degrees full extension and 100 degrees of flexion with
complaints of patellar anterior knee pain. Examination of the left knee and lower extremity
revealed zero degrees of extension and 100 degrees of flexion with significant palpable and
audible crepitus on multiple trials, no atrophy of the quadriceps or calf muscle, no effusion, no
tenderness to palpation and complaints of anterior knee pain on patellar compression maneuver.
Under Table 16-3, Dr. Dunne found class 1 impairment for patellar subluxation or dislocation.
He found that appellant had grade modifier 2 for functional history under Table 16-6; grade
modifier 1 for physical examination; and no grade modifiers for clinical studies. Dr. Dunne
utilized the net adjustment formula and found a zero net adjustment. He opined that class 1
impairment for an assessment of patellar subluxation or dislocation with a zero net adjustment
equaled seven percent impairment of the left and right lower extremities.
By decision dated February 29, 2012, an OWCP hearing representative found that further
development of the case file was warranted based on Dr. Dunne’s December 22, 2011 report and
set aside the September 8, 2011 decision. The case was remanded for referral of the case record
and a current statement of accepted facts to OWCP’s medical adviser to review.
OWCP issued an updated statement of accepted facts on March 12, 2012 and referred the
case record to its medical adviser for a determination as to whether appellant had permanent
impairment to the lower extremity as a result of the accepted work injury. In a March 29, 2012
report, an OWCP medical adviser agreed with Dr. Dunne’s calculation under the A.M.A., Guides
that there was seven percent impairment to both the left and right lower extremities.
On May 1, 2012 OWCP requested clarification from its medical adviser as to the
entitlement to a schedule award. It noted the claim was found to have no residuals of the
accepted conditions and zero percent impairment to the bilateral lower extremities in
February 2011.
In a May 17, 2012 report, the medical adviser concluded that, after a review of the
records, appellant’s condition had not changed. He stated that the impairment rating provided by
Dr. Dunne was his own opinion and that he only reviewed medical reports to determine if the
3

By decision dated April 12, 2012, an OWCP hearing representative affirmed OWCP’s September 12, 2011
decision that appellant no longer had residuals of his employment injuries.

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A.M.A., Guides are correctly applied.
clarification from Dr. Dunne.

The medical adviser suggested that OWCP request

In a November 28, 2012 letter, OWCP requested that Dr. Dunne clarify what changed in
appellant’s condition between February and December 2011 and whether the impairment rating
was based on the accepted work-related condition or preexisting conditions.
In a December 6, 2012 report, Dr. Dunne noted the fact that appellant was hired at the
employing establishment with preexisting osteoarthritis of both knees and described the work
injury as being struck in the knee caps by a heavy lid which knocked appellant to the floor. He
indicated that after the work injury, appellant returned to work in a limited-duty position and his
bilateral knee pain never allowed him to return to full mailhandler capacity. Based on his
examination findings, Dr. Dunne opined that appellant had seven percent impairment to the left
and right lower extremities. He stated that appellant’s history and physical examination
documented a permanent degree of impairment from the time appellant was hired at the
employing establishment. Dr. Dunne also noted his agreement with Dr. Chapman that the
allowed conditions of the claim do not reflect the current findings of impairment but are more
consistent with a degenerative arthritis of both knees that were not directly caused by the work
injury.
By decision dated December 28, 2012, OWCP denied appellant’s claim for a schedule
award as no entitlement was found.
In a January 3, 2013 letter, appellant’s counsel requested a telephonic hearing, which was
held on April 15, 2013. In a January 31, 2013 report, Dr. Dunne stated that there is no dispute
that appellant suffered injuries to the bilateral knees on July 21, 1998 and subsequently
developed chronic bilateral knee pain and an inability to regain full function and restoration to
his usual job duties. He opined that the work incident in 1998 was the direct cause of appellant’s
bilateral knee impairment. Dr. Dunne indicated that he did not know how the patellar dislocation
came about but appellant had demonstrated patella femoral joint pain on examination. He stated
that, while appellant no longer suffers from bilateral patellar dislocations, he now has significant
impairment and moderate disability directly arising from the incident of this claim and the facts
of the case support a diagnosis of a substantial aggravation of a relatively asymptomatic or much
less symptomatic bilateral knee condition that deteriorated to the degree of impairment he
originally assessed.
By decision dated July 3, 2013, an OWCP hearing representative affirmed the
December 28, 2012 denial of the schedule award claim.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

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loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.7
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).8 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA, which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employing establishment, the Secretary shall appoint a third physician
who shall make an examination and resolve the conflict of medical evidence.10 This is called a
referee examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.11
ANALYSIS
OWCP accepted the condition of aggravation of bilateral patella malalignment.
Appellant requested a schedule award. Due to a conflict in medical opinion between Dr. Grant,
appellant’s attending physician, and Dr. Ghanma, an OWCP referral physician, regarding
permanent impairment, OWCP referred appellant to Dr. Chapman for an impartial medical
opinion, to resolve the conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a).
In his February 20, 2011 report, Dr. Chapman reviewed the medical record along with a
statement of accepted facts and presented examination findings. He stated that he did not know
how the evaluation of bilateral patella malalignment was arrived, but opined it was unlikely that
appellant had sustained a significant patellofemoral malalignment or dislocation, as he was sent
home from the hospital and returned to work in two to three days. Dr. Chapman opined that
appellant had reached maximum medical improvement three months after the July 21, 1998 work
6

Id.

7

Veronica Williams, 56 ECAB 367, 370 (2005).

8

A.M.A., Guides 533.

9

Id. at 521.

10

5 U.S.C. § 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

11

R.C., 58 ECAB 238 (2006).

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injury and that no residuals from the bilateral patella malalignment remained. He opined that
appellant had no impairment under the sixth edition of the A.M.A., Guides for any of the
extremities as the allowed condition had resolved. Thus, Dr. Chapman opined that appellant had
zero percent impairment for the extremities due to the accepted conditions. He explained that
appellant’s problems with his knees were related to degenerative arthritis which was unrelated to
the July 21, 1998 work injury and which disabled him from returning to his postal work.
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, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.12 The Board finds that Dr. Chapman, the
impartial medical examiner, properly found that there was no impairment under the A.M.A.,
Guides as the accepted condition had resolved. Dr. Chapman attributed appellant’s current
condition and impairment to degenerative arthritis, which was unrelated to the July 21, 1998
work injury. His report was sufficiently detailed and well reasoned to resolve the conflict of
medical opinion evidence and establish that appellant had no permanent impairment for schedule
award purposes. The Board finds that Dr. Chapman’s report is entitled to the special weight of
the medical evidence, afforded an impartial medical examiner, with regard to appellant’s
employment-related permanent impairment.
In a December 22, 2011 report, Dr. Dunne opined that appellant had seven percent
impairment for the left and right lower extremities. While an OWCP medical adviser agreed
with Dr. Dunne’s impairment calculation, OWPC requested clarification from Dr. Dunne as to
whether the impairment to appellant’s lower extremities were the result of the accepted work
injury or preexisting conditions. In his December 6, 2012 report, Dr. Dunne opined that, while
appellant has a permanent impairment to the bilateral lower extremities, he agreed with
Dr. Chapman that the current findings of impairment was more consistent with a degenerative
arthritis of both knees that were not directly caused by the work injury. However, in his
January 31, 2013 report, he changed his opinion to find that the work incident in 1998
substantially aggravated a relatively asymptomatic or much less symptomatic bilateral knee
condition and was the direct cause of appellant’s bilateral knee impairment. However Dr. Dunne
opined that appellant no longer suffered from bilateral patellar dislocation, the accepted
condition and appears to relate his impairment to his preexisting condition. His report does not
support an impairment as a result of the accepted employment injury. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet
appellant’s burden of proof.13 Thus, Dr. Dunne’s January 31, 2013 report is of diminished
probative value and insufficient to overcome the weight accorded Dr. Chapman as the impartial
medical examiner or to create a new conflict.14

12

Anna M. Delaney, 53 ECAB 384 (2002); Nathan L. Harrell, 41 ECAB 401, 407 (1990).

13

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

14

Jaja K. Asaramo, 55 ECAB 200, 205 (2004).

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On appeal, counsel contended that OWCP’s decision was contrary to fact and law. The
Board finds that appellant did not submit sufficient medical evidence to establish that residuals
of the accepted condition remained which caused an impairment under the A.M.A., Guides.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has a ratable impairment of
the bilateral lower extremities causally related to his work injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, DALLAS BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 08-1205
Issued: November 19, 2008

Case Submitted on the Record

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

JURISDICTION
On March 17, 2008 appellant filed a timely appeal from the August 9, 2007 and
February 25, 2008 schedule award decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of
these schedule award decisions.
ISSUE
The issue is whether appellant has more than a four percent impairment of the left upper
extremity and a nine percent impairment of the right upper extremity, for which he received a
schedule award.
FACTUAL HISTORY
Appellant’s June 13, 2005 occupational disease claim was accepted by the Office for a
bilateral carpal tunnel syndrome and bilateral lesion of the ulnar nerves. The Office approved
right and left carpal tunnel release surgeries, which occurred on October 6 and December 1,
2005, respectively. Appellant returned to light duty, eight hours per day, on March 20, 2006.

On December 27, 2006 appellant filed a claim for a schedule award. In a November 21,
2006 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, advised that appellant
had reached maximum medical improvement as of that date. Examination of the upper
extremities revealed mild synovitis of the right wrist dorsally and tenderness over the A-1 pully
of the right middle finger. Tinel’s sign was positive bilaterally. Phalen’s was positive on the
right. Grip strength on the right was 10 kilogram (kg), 8 kg and 6 kg; grip strength on the left
was 6 kg, 5 kg and 5 kg. Dr. Shade diagnosed bilateral carpal tunnel syndrome and cubital
tunnel syndrome. Under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),1 he provided an 11 percent impairment
rating for both the right and left median nerves. Specifically, Dr. Shade awarded a three percent
motor deficit (10 X .30) and an eight percent sensory deficit (39 X .20) for each nerve. He
provided 10 percent impairment for both the right and left ulnar nerves, pursuant to appellant’s
cubital tunnel syndrome. Specifically, Dr. Shade awarded a nine percent motor deficit
(46 X .20) and a one percent sensory deficit (7 X .20) for each nerve. Applying the Combined
Values Chart on page 604 of the A.M.A., Guides, Dr. Shade concluded that appellant had a
20 percent impairment of each upper extremity.
In a September 27, 2006 report of an electromyography and nerve conduction study,
Dr. Frank Morrison, a physiatrist, found no electromyographic evidence of a significant
neuropathic process. On April 26, 2007 the district medical adviser recommended that the
Office obtain a second opinion examination regarding the degree of appellant’s permanent
impairment.
In a June 19, 2007 second opinion report, Dr. Richard N. Brown, a Board-certified
physiatrist, opined that appellant had a 15 percent permanent impairment of the right wrist and a
23 percent impairment of the left wrist. He stated that diagnostic studies revealed moderate
neuropathy of the right wrist and mild median neuropathy of the left wrist. Right wrist range of
motion was as follows: flexion -- 60 degrees; extension -- 40 degrees; radial deviation -- 20
degrees; and ulnar deviation -- 23 degrees. Left wrist range of motion was as follows: flexion -30 degrees; extension -- 40 degrees; radial deviation -- 12 degrees; and ulnar deviation -- 15
degrees. Sensation in the median nerve distribution was decreased in both hands. The
claimant’s impairment rating was calculated utilizing section 16.9 at page 511 of the A.M.A.,
Guides. Dr. Brown determined that appellant’s impairment for loss of range of motion for the
right and left wrists was 7 and 20 percent, respectively. He found a 20 percent sensory deficit, as
well as a 20 percent strength deficit on the right. Utilizing Table 16-15 on page 492, Dr. Brown
concluded that appellant had a nine percent motor and sensory deficit on the right and a four
percent sensory deficit on the left. (Ten percent times the maximal sensory deficit of 39 percent)
Using the Combined Values Chart on page 605, Dr. Brown found a right wrist impairment of
15 percent and a left wrist impairment of 23 percent.
On July 23, 2007 an Office medical adviser reviewed Dr. Brown’s report and found that
appellant had a four percent impairment of the left upper extremity and a nine percent
impairment of the right upper extremity under the A.M.A., Guides. Referring to Table 16-15 at
page 492 of the A.M.A., Guides, he concluded that appellant had a 39 percent sensory deficit and
1

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

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a 10 percent motor deficit bilaterally (median below midforearm). According to Table 16-10 at
page 482 (pain or sensory deficit), Dr. Brown determined that appellant had a 4 percent left
upper extremity impairment, based upon a Grade 4 pain or sensory deficit classification
(10 percent X 39 percent = 4 percent). Referring to Table 16-11 at page 484 (motor deficit), he
found that appellant had a 9 percent right upper extremity impairment, based upon a Grade 4
motor deficit (20 percent X 45 percent = 9 percent). The medical adviser stated that no
consideration is given for the limited wrist range of motion in addition to the median nerve
impairment pursuant to page 494 of the A.M.A., Guides. He opined that the date of maximum
medical improvement was June 19, 2007.
On August 9, 2007 the Office granted appellant a schedule award for a four percent
permanent impairment of the left upper extremity and for a nine percent impairment of the right
upper extremity. The period of the award was from June 19, 2007 to March 28, 2008.
Appellant requested reconsideration. He submitted an August 8, 2007 report from
Dr. Shade, who noted appellant’s ongoing complaints of hand pain, numbness and tingling. On
October 23, 2007 Dr. Shade reiterated his opinion that appellant had a 20 percent impairment of
both upper extremities.
In a decision dated February 25, 2008, the Office denied modification of the August 9,
2007 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.
Section 8123(a) of the Act provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.4 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.5
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

5 U.S.C. § 8123(a).

5

Id. See also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB
207 (1993).

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ANALYSIS
The Board finds that this case is not in posture for a decision due to a conflict in medical
opinion between Dr. Shade and Dr. Brown as to the extent of appellant’s upper extremity
impairment.
In his November 21, 2006 report, Dr. Shade concluded that appellant had a 20 percent
impairment of each upper extremity, pursuant to the A.M.A., Guides. He found mild synovitis
of the right wrist dorsally and tenderness over the A-1 pully of the right middle finger. Tinel’s
sign was positive bilaterally and Phalen’s was positive on the right. Grip strength on the right
was 10 kg, 8 kg and 6 kg; grip strength on the left was 6 kg, 5 kg and 5 kg. Dr. Shade provided
an 11 percent impairment rating for both the right and left median nerves, awarding a 3 percent
motor deficit (10 X .30) and an 8 percent sensory deficit (39 X .20) for each nerve. He provided
10 percent impairment for both the right and left ulnar nerves, pursuant to appellant’s cubital
tunnel syndrome, awarding a 9 percent motor deficit (46 X .20) and an 1 percent sensory deficit
(7 X .20) for each nerve. Dr. Shade arrived at a 20 percent impairment rating for each upper
extremity by applying the Combined Values Chart on page 604 of the A.M.A., Guides.
In a June 19, 2007 second opinion report, Dr. Brown opined that appellant had a
15 percent permanent impairment of the right wrist and a 23 percent impairment of the left wrist,
pursuant to section 16.9 at page 511 of the A.M.A., Guides. Noting that diagnostic studies
revealed moderate neuropathy of the right wrist and mild median neuropathy of the left wrist, he
stated that sensation in the median nerve distribution was decreased in both hands. Testing
revealed decreased range of motion in both wrists, which Dr. Brown determined translated into a
rating for loss of range of motion for the right and left wrists of 7 and 20 percent, respectively.
He found a 20 percent sensory deficit, as well as a 20 percent strength deficit on the right.
Utilizing Table 16-15 on page 492, Dr. Brown concluded that appellant had a nine percent motor
and sensory deficit on the right and a four percent sensory deficit on the left. (Ten percent times
the maximal sensory deficit of 39 percent). Using the Combined Values Chart on page 605,
Dr. Brown found a right wrist impairment of 15 percent and a left wrist impairment of
23 percent.
An Office medical adviser reviewed Dr. Brown’s report and found that appellant had a
four percent impairment of the left upper extremity and a nine percent impairment of the right
upper extremity. However, he did not address Dr. Shade’s November 21, 2006 report or the
conflict in medical opinion between Dr. Shade and Dr. Brown. Although the medical adviser
stated that he had given no consideration for the limited wrist range of motion, he did not explain
why he had relied solely on and accorded more weight to, the report of the second opinion
examiner. The Board finds that there is an unresolved conflict between the medical opinions of
Dr. Shade and Dr. Brown. Therefore, the case must be remanded to the Office for an impartial
medical examination to resolve the conflict as to the degree of permanent impairment to
appellant’s upper extremities, followed by an appropriate de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision due to a conflict in the
medical opinion evidence between Dr. Shade and Dr. Brown as to the degree of appellant’s

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upper extremity impairment. On remand, the Office should refer appellant, together with a
statement of accepted facts and the case record, to an appropriate impartial medical specialist, for
an examination and evaluation in order to resolve the conflict.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2008 and August 9, 2007
decisions of the Office of Workers’ Compensation Programs are set aside and the case is
remanded for further action consistent with this opinion.
Issued: November 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., JR., son of J.M., Appellant
and
DEPARTMENT OF ENERGY, IDAHO
NATIONAL LABORATORY, Idaho Falls, ID,
Employer
__________________________________________

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

Docket No. 19-1373
Issued: October 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 10, 2019 appellant filed a timely appeal1 from a May 1, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP).2 Pursuant to Federal Employees’
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 22, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1373 (issued
July 22, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the May 1, 2019 decision appellant submitted additional evidence to OWCP and
on appeal. 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.

ISSUE
The issue is whether appellant filed a claim for survivor’s benefits within the applicable
time limitation.
FACTUAL HISTORY
On February 1, 2019 the employee’s son, J.M. Jr., (born September 22, 1947), filed a claim
for survivor’s benefits (Form CA-5) on behalf of himself and his siblings, P.H. (born June 23,
1946), D.M. (born March 15, 1952), and M.M. (born April 21, 1954).4 Appellant alleged that
radiation exposure sustained in the performance of duty as a firefighter at the Stationary LowPower Reactor Number One (SL-1) experimental nuclear power reactor explosion on January 3,
1961 caused the employee’s death on February 23, 1963, at the age of 49 years. The immediate
causes of death listed on the death certificate are coronary thrombosis and myocardial infarction.
In a letter dated March 13, 2019, appellant explained his claim for compensation under
FECA for survivor’s benefits. He noted that he had previously filed a claim for his father’s death
under the Energy Employees Occupational Illness Compensation Act (EEOICPA), but that it had
been denied because his father was a government employee. Appellant stated that Congressional
correspondence had indicated that federal employees were covered by FECA for noncancerous
illnesses and death related to radiation exposure.
In an undated narrative statement, appellant explained that his father was a
fireman/emergency medical technician (EMT) working at the employing establishment at the time
of the L1 experimental nuclear power reactor explosion on January 3, 1961, and had been called
upon to assist in entering the SL-1 and to retrieve the only surviving reactor operator. He explained
that two years after the employee’s exposure to radiation, he died of a sudden heart attack, despite
otherwise being in apparent good health.
Appellant attached a certificate of appreciation from the U.S. Atomic Energy Commission
awarded to his father on March 5, 1962 for outstanding services performed following the SL-1
experimental nuclear reactor accident on January 3, 1961. He also provided additional documents
to establish his father’s radiation exposure. Appellant also cited research on deep space radiation
exposure and coronary illness.
Appellant concluded that, due to his inability to obtain personnel records, he could only
share what his father had told him concerning the event of January 3, 1961, apart from the
October 3, 2001 letter confirming radiation exposure. He requested that a decision be made
regarding entitlement to survivor’s benefits under FECA.
Appellant submitted published articles and internet materials concerning radiation
exposure and the January 3, 1961 nuclear accident. In a development letter dated March 25, 2019,
OWCP explained that survivor benefits may be payable to eligible dependents if the employee’s
death resulted from a job-related injury or from a medical condition caused by hazardous exposure
on the job. It further explained that appellant needed to provide factual and medical documentation
4

The Form CA-5 also noted that the employee’s spouse, Lenna Ruth Dye McCracken, was deceased.

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supporting the claim. OWCP afforded appellant 30 days for the submission of the requested
additional factual and medical evidence.
On April 10, 2019 appellant responded to OWCP’s development letter. He stated that in a
decision dated February 6, 2017, EEOICP had found that his father was a federal employee.
Appellant also provided further evidence and his arguments in support of the claim. He submitted
a recommended decision dated February 6, 2017 under the EEOICPA. It recommended denial of
survivor claims for coronary thrombosis and myocardial infarction under Part E of the EEOICPA,
finding that the employee was a Department of Energy employee who worked at the employing
establishment from January 25, 1951 through February 26, 1963, and not a covered contractor
employee.
In a letter dated April 23, 2019, appellant noted his belief upon filing of the claim that his
father was a government employee and that the claim should be filed under FECA.
By decision dated May 1, 2019, OWCP denied the claim, finding that it was untimely filed.
It explained that, pursuant to 5 U.S.C. § 8122, appellant had not filed the claim for survivor’s
benefits within three years of the date of death of the employee and that there was no evidence that
the employee’s immediate supervisor or another employing establishment official had actual
knowledge of the employee’s death and its relationship to federal employment.
LEGAL PRECEDENT
Prior to the September 7, 1974 amendments, section 8122 of FECA provided a maximum
five-year limitation for making a claim for compensation. Section 8122(a)(1) of FECA provided
that an original claim for compensation for death shall be made within one year after the death.
However, the Secretary of Labor may allow an original claim for disability to be made within one
year after the injury for reasonable cause shown.5
Section 8122(c) of FECA6 provided:
“(c) The Secretary may waive compliance with the requirements of this
subchapter for giving notice of injury and for filing claim for compensation
for disability or death if -(1) a claim is filed within 5 years after the injury or death; and
(2) the Secretary finds -- that the failure to comply was due to
circumstances beyond the control of the individual claiming
benefits; or that the individual claiming benefits has shown
sufficient cause or reason in explanation of, and material prejudice
to the interest of the United States has not resulted from the failure.
5

5 U.S.C. § 8122.

6
5 U.S.C. § 8122(c). See also Oren D. Etter (Jessie Margaret Etter), 57 ECAB 538 (2006); Aurora L. Palalay
(Richard P. Palalay), 35 ECAB 1078 (1984).

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“(d) The time limitations in subsections (a)-(c) of this section do not -(1) begin to run against a minor until he reaches 21 years of age or
has had a legal representative appointed; or
(2) run against an incompetent individual while he is incompetent
and has not duly appointed legal representative.”7
ANALYSIS
The Board finds that appellant did not file a claim for survivor’s benefits within the
applicable time limitation.
The Board notes initially that OWCP improperly reviewed the claim under the time
limitations provisions enacted in 1974, rather than the applicable section 8122 of FECA for injuries
or death which occurred prior to 1974. The Board has previously explained that the amendment
to the time-limitation provision shall be applicable only to injuries occurring on or after the
effective date of the amendments, September 7, 1974.8
The employee died on February 23, 1963 and, at the time of his death, FECA set forth a
one-year time limitation for survivors to file a death benefits claim.9 This time limitation did not
begin to run against the employee’s children until their twenty-first birthdays on June 23, 1967 for
P.H.; September 22, 1968 for J.M.; March 15, 1973 for D.M.; and April 21, 1975 for M.M.10
Appellant filed a claim for death benefits on March 20, 2019, long after the applicable time
limitation ended for him on September 22, 1969 and the latest applicable time limitation for M.M.
ended on April 21, 1976. Thus, the claim was not timely filed.11
While FECA extended the time limitation to five years upon proof of exceptional
circumstances,12 extension of the time limitation to five years would still render the claim untimely
as of September 22, 1973 for the applicable time limitation for appellant, and as of April 21, 1980
for the latest applicable time limitation for M.M. As such, appellant’s claim would be untimely
filed whether exceptional circumstances were established or not.13

7

5 U.S.C. § 8122.

8

Emanuel T. Poluszny, 47 ECAB 651 (1996).

9

5 U.S.C. § 8122(c).

10

Id. at § 8122(d)(1).

11

See N.F., Docket No. 17-1784 (issued April 9, 2018).

12

5 U.S.C. § 8122(c)(1).

13

See id.

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Also, appellant did not allege that he was prevented from filing the claim due to
incompetence, which would have tolled the applicable time limitation if established.14 Thus, he
has not established an exception to the relevant time limitation provisions of FECA in the filing of
the death benefits claim that would render the claim timely filed. The Board finds that the claim
for death benefits was not timely filed.15
On appeal appellant argued that the claim for survivor’s benefits had been timely filed due
to an immediate supervisor’s knowledge of injury or death within 30 days. The Board notes that
at the time of the employee’s death, the maximum time limitation under FECA for filing a death
claim was five years upon the Secretary’s finding of extraordinary circumstances; as such, an
immediate supervisor’s knowledge of injury or death within 30 days is not relevant to the
timeliness analysis of this claim.16

14

Id. at § 8122(d)(2).

15

See supra note 9.

16

Prior to September 7, 1974, section 8119(b) of FECA provided that compensation may be allowed only if notice
of injury was given within 48 hours after the injury or if the immediate superior of the employee had actual knowledge
of the injury. This notice provision however only pertained to payment of medical benefits for the employee.
Emanuel T. Poluszny, supra note 8; See Richard T. Shnettler, Docket No. 03-1182 (issued January 12, 2004);
Maurice J. Dayton, 11 ECAB 139 (issued October 14, 1959).

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CONCLUSION
The Board finds that appellant did not file a claim for survivor’s benefits within the
applicable time limitation.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed as modified.
Issued: October 6, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 09-2302
Issued: June 8, 2010

Case Submitted on the Record

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

JURISDICTION
On September 16, 2009 appellant filed a timely appeal of the August 4, 2009 decision of
the Office of Workers’ Compensation Programs denying his claim for compensation benefits and
an April 1, 2009 decision concerning his schedule award claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained permanent impairment to a scheduled
member due to his August 3, 2007 employment injury; and (2) whether he sustained a workrelated disability after November 30, 2008.
FACTUAL HISTORY
On August 3, 2007 appellant, then a 56-year-old distribution clerk, sustained an
aggravation of his preexisting spondylolisthesis at L4-5 and a herniated disc at L4-5 with
myelopathy while he was lifting boxes of mail from a flatbed truck. On September 10, 2008 he
underwent a right L4-5 microdiscectomy. The Office terminated appellant’s compensation for

wage loss effective November 30, 2008, the date he elected to retire. On December 23, 2008
appellant filed a claim for a schedule award.
On September 23, 2008 Dr. Kevin Rutz, an attending Board-certified orthopedic surgeon,
released appellant to sedentary work as of September 29, 2008. On October 21, 2008 he stated
that appellant’s work restrictions included no lifting over 20 pounds and standing limited to one
hour at a time. Dr. Rutz noted that appellant “was aiming towards retirement in about 40 days.”
He subsequently released appellant to regular work effective December 23, 2008.
By decision dated January 14, 2009, the Office terminated appellant’s wage-loss
compensation effective November 30, 2008, the date he retired. It noted that he was medically
released to limited duty until December 23, 2008 and regular work as of December 23, 2008.
On January 23, 2009 Dr. Rutz stated that appellant had no permanent work restrictions
due to his back condition. Appellant continued to experience some back discomfort that was
secondary to his preexisting degenerative spondylolisthesis. Dr. Rutz opined that appellant had
five percent impairment to his lumbar spine.
On February 6, 2009 appellant requested a hearing that was held on May 15, 2009.
On February 20 and 25, 2009 Dr. Daniel D. Zimmerman, a Board-certified internist and
an Office medical adviser, noted that Dr. Rutz provided an impairment rating for appellant’s
back. He stated that appellant needed to be examined by a physician skilled in the use of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides, 5th ed.) to determine whether he had any lower extremity impairment causally related to
his accepted back conditions.1
On March 18, 2009 Dr. Richard T. Katz, a Board-certified physiatrist and a professor of
clinical neurology, was provided with copies of the medical records and a statement of accepted
facts. He reviewed the medical history and provided findings on physical examination.
Appellant advised that his pain level was 3 out of 10 and was localized in his right lateral
buttock. There was no pain extending to his legs. Dr. Katz noted appellant’s course of treatment
and medical and surgical history. He included appellant’s responses to a disability questionnaire.
Dr. Katz noted that he was markedly obese at a height of five feet, eleven inches and weight of
301 pounds. Appellant had normal gait and station, was able to walk on heels and toes and had
normal tandem gait. He could perform 10 plantar extensions. There was symmetry at the
inferior border of the scapula, iliac crests and popliteal fossa. Kyphotic and lordotic curves were
unremarkable. There was no list or scoliosis of the back. Sacroiliac biomechanics were normal.
There was pain over the right piriformis muscle in the buttocks. Lumbar range of motion was
reduced in flexion, extension, lateral flexion and rotation. Manual examination of lumbar
paraspinal musculature was unremarkable. Muscle stretch reflexes were absent at the knee,
1

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (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).

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ankle and hamstrings. Plantar responses were downgoing. Muscle strength in the hip flexors,
abductors and adductors, knee extensors, tibialis anterior, extensor hillocks longs, peroneus
longus and gluteus medius was normal. There was normal hip rotation. Straight leg raising was
normal. The femoral stretch test was negative. Pulses were good at the tibilias posterior artery
bilaterally. Sensory examination was within normal limits in the lower extremities. Dr. Katz
advised that there was no radiculopathic pain, numbness, tingling, sensory loss or weakness. He
opined that appellant had no permanent impairment causally related to his August 3, 2007 back
conditions.
On March 27, 2009 Dr. Zimmerman noted that Dr. Katz found that appellant had no
impairment to either lower extremities causally related to his accepted back conditions.
By decision dated April 1, 2009, the Office denied appellant’s schedule award claim. It
found that the weight of the medical evidence established that he had no impairment causally
related to his August 3, 2007 employment injury.
Appellant requested a hearing that was held on July 6, 2009.
By decision dated August 4, 2009, an Office hearing representative affirmed the
January 14, 2009 decision.2
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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 fifth edition has been
adopted by the Office as the appropriate standard for evaluating schedule losses.5

2

Subsequent to the August 4, 2009 Office decision, additional evidence was submitted to the file. 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. While this appeal was pending,
the Office issued a September 24, 2009 decision denying appellant’s schedule award claim. The issue in the
September 24, 2009 decision is the same issue before the Board in this appeal. Because the September 24, 2009
decision would affect the status of the decision on appeal, the decision is null and void. See Douglas E. Billings, 41
ECAB 880 (1990) (holding that the only decisions of the Office which are null and void, because they were issued
while the case was on appeal to the Board, are those decisions that change the status of the decision on appeal).
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

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Neither the Act nor the regulations provide for the payment of a schedule award for any
impairment of the back.6 The Act excludes the back from the definition of “organ.”7 A claimant
may be entitled to a schedule award for permanent impairment of an extremity even though the
cause of the impairment originated in the spine.8
ANALYSIS -- ISSUE 1
Dr. Katz provided a second opinion examination for purposes of rating any impairment
due to appellant’s accepted lumbar injury. He reviewed the medical history, including the results
of tests, and provided findings on physical examination. Appellant advised that he had pain
localized in his right buttock. It did not extend to his legs. Dr. Katz noted that appellant was
markedly obese at a height of five feet, eleven inches and weight of 301 pounds. Appellant had
normal gait and station, was able to walk on heels and toes and had normal tandem gait. There
was no list or scoliosis of the back. Sacroiliac biomechanics were normal with lumbar range of
motion was reduced in flexion, extension, lateral flexion and rotation. Manual examination of
lumbar paraspinal musculature was unremarkable. Muscle strength testing was normal in the hip
flexors, abductors and adductors, knee extensors, tibialis anterior, extensor hallucis longus,
peroneus longus and gluteus medius. There was normal hip rotation and straight leg raising.
The femoral stretch test was negative. Pulses were good at the tibilias posterior artery
bilaterally. Sensory examination was also within normal limits in the lower extremities.
Dr. Katz advised that there was no radiculopathic pain, numbness, tingling, sensory loss or
weakness. He found that appellant had no permanent impairment causally related to the
accepted lumbar injury. Dr. Zimmerman reviewed the report of Dr. Katz and found that
appellant had no impairment to his extremities causally related to his accepted back conditions.
The Board finds that the opinion of Dr. Katz is based on proper review of the medical history
and findings on physical examination. Dr. Katz did not support that appellant sustained any
impairment causally related to his accepted lumbar conditions.
LEGAL PRECEDENT -- ISSUE 2
An employee has the burden of proving by the preponderance of the reliable, probative
and substantial evidence that he was disabled for work as the result of an employment injury.9
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.10 Whether a particular
employment injury causes disability for employment and the duration of that disability are

6

See Tomas Martinez, 54 ECAB 623 (2003).

7

5 U.S.C. § 8101(19).

8

See Tomas Martinez, supra note 6.

9

David H. Goss, 32 ECAB 24 (1980).

10

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

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medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.11
ANALYSIS -- ISSUE 2
The Board finds that appellant had no work-related disability after November 30, 2008.
On September 23, 2008 Dr. Rutz, appellant’s attending physician, released him to
sedentary work as of September 29, 2008. On October 21, 2008 he stated that appellant’s work
restrictions included no lifting over 20 pounds and standing limited to one hour at a time.
Dr. Rutz noted that appellant “was aiming towards retirement in about 40 days.” He
subsequently released appellant to return to regular duty work effective December 23, 2008.
The medical evidence establishes that appellant was released to perform sedentary work as of
September 29, 2008 and to regular duty work as of December 23, 2008. Appellant elected to
retire on November 30, 2008. The medical evidence does not establish that he was medically
disabled as of that day. Therefore, the Office properly denied his claim for wage-loss
compensation.
CONCLUSION
The Board finds that appellant has no impairment causally related to his August 3, 2007
accepted back conditions. The Board further finds that appellant had no work-related disability
after November 30, 2008.

11

Edward H. Horten, 41 ECAB 301 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 4 and April 1, 2009 are affirmed.
Issued: June 8, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
New York, NY, Employer
__________________________________________

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

Docket No. 07-2015
Issued: November 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 31, 2007 appellant filed a timely appeal from the January 8 and July 25, 2007
decision of the Office of Workers’ Compensation Programs. By decision dated July 25, 2007,
the Office hearing representative affirmed the Office’s January 8, 2007 denial of appellant’s
claim for recurrence of disability. 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 established that he sustained a recurrence of disability
causally related to his accepted condition of lower back sprain. On appeal, he contended that the
opinion of the impartial medical examiner was inaccurate and based on an incorrect factual basis.
Appellant also argued that the Office should pay for medical treatment of his accepted condition.

FACTUAL HISTORY
On June 23, 1975 appellant, then a 30-year-old special agent, filed a traumatic injury
claim alleging that on June 16, 1975 he hurt the muscles in his lower back when he twisted from
one machine to another in a crowded space. In an x-ray report dated June 17, 1975, Dr. Beno
Paciuc indicated that appellant had minimal straightening of the normal lordosis of the lumbar
spine, probably due to muscle spasms. He found no fracture, dislocation or gross destructive
lesion. Dr. Paciuc noted very minimal narrowing of the posterior aspect of the intervertebral
space between L5 and S1. The emergency room physician at St. John’s Riverside Hospital
reviewed appellant’s x-ray report and noted that he had muscle spasms but no spinal tenderness.
The physician diagnosed myalgia of the lower back. Appellant stopped work the day of the
incident and returned to full duty on June 23, 1975. The Office accepted appellant’s claim for
myalgia/lumbosacral sprain.
In late 1975 and again in 1978, appellant sought authorization for additional medical
treatment related to back spasms. Because he submitted no additional medical information, the
Office found no basis to authorize additional treatment. Appellant left the employing
establishment on January 17, 1976.
On March 9, 2005 appellant filed a claim for recurrence of disability alleging that,
following his accepted injury in 1975, he had intermittent back problems until 1995 when his
back pain and right leg radiculopathy became chronic. He stated that he was placed in a lightduty position for two months following his accepted injury.
On March 18, 2005 the Office informed appellant of the evidence required to establish a
claim for recurrence of disability and gave him 25 days to submit it. On March 26, 2005
appellant requested an extension of time to gather the necessary information. He stated that he
sustained no injuries to his back following the accepted June 16, 1975 injury.
By decision dated April 18, 2005, the Office denied appellant’s claim on the grounds that
he had submitted no medical or factual evidence establishing that his alleged recurrence was
causally related to his June 16, 1975 employment injury. On April 23, 2005 appellant requested
an oral hearing.
On June 27, 2005 Dr. Sheldon Alter, a Board-certified nephrologist, stated that he began
treating appellant in October 1980 for chronic low back syndrome with bilateral radiculopathy in
his lower extremities. At that time appellant reported that he had experienced a number of
recurrences of low back pain over the previous five years but had not sought medical treatment
because he did not have a primary care provider and was able to alleviate his symptoms with
anti-inflammatory and muscle relaxing medication. Dr. Alter reviewed the medical records
related to the June 16, 1975 employment injury and found that appellant had been diagnosed
with injury to his lower back musculature that impacted the normal lordosis of the lumbar spine.
He stated that the x-ray report from 1975 did not disclose any preexisting pathology or evidence
of previous injury. Dr. Alter stated that an x-ray taken at the initial examination revealed some
straightening of the lumbar lordosis and some narrowing of the space between L5 and S1. He
diagnosed low back syndrome directly related to appellant’s 1975 employment injury. Dr. Alter

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treated appellant with rest during acute exacerbation of symptoms, moderate activity after the
acute phase and medication.
Dr. Alter saw appellant yearly from 1980, during which time he reported no new injuries,
but complained of a variety of symptoms consistent with the original diagnosis. He reported that
periodic radiographs showed increased straightening of the normal lumbar lordosis and increased
narrowing of the L5-S1 intervertebral space. After 1995 appellant’s episodes of radiculopathy
became longer and more frequent, his acute low back exacerbations forced him to stay in bed
several times and his right foot often felt numb. Dr. Alter stated that these symptoms were
consistent with the radiographic findings and indicated gradual deterioration of the 1975
employment injury.
By decision dated July 14, 2005, the Office hearing representative found that the case
was not in posture for a hearing and remanded the case for further medical development. He
found that Dr. Alter’s report was insufficient to establish appellant’s claim because it did not
include any diagnostic reports or complete examination findings. However, the hearing
representative found that the report was sufficient to require further development of the claim.
The Office referred appellant for a second opinion examination to determine whether his
current condition was causally related to his accepted employment injury. On September 7, 2005
Dr. Marc Berezin, a Board-certified orthopedic surgeon, issued a report of the second opinion
examination. He reported that appellant had episodes of back pain, pain radiating down both
legs and numbness of the right foot. Appellant reported that he had stiffness of the back on
waking and pain with sitting, rising to standing, turning his back and sudden motions.
Dr. Berezin reviewed doctor’s notes from 1991 to 2005 provided by appellant and noted that
many did not include a patient name or physician heading. The majority of the notes were
prescriptions for Valium, though there was no indication of the purpose of such medication. A
February 15, 1996 note stated that appellant had a history of low back pain and intermittent right
foot numbness. A note from September 27, 1996 noted that appellant had persistent pain, but no
weakness and that conservative management would continue. There is no mention of which
body part Dr. Berezin was examining, though a partially cut off part of the note discussed
cervical derangement. A note from October 1, 1996 indicated that appellant had modest
improvement, limited mobility and no deterioration of motor function. Again, body part was not
specified. On October 15, 1996 Dr. Berezin noted paraspinal spasm, minimal motion but no
radicular component. A note from April 7, 1998 indicated that appellant’s chief complaint was
low back pain and noted a history of cervical derangement. A note from April 4, 2000 stated that
he had a history of low back syndrome and occasional paresthesia in the right foot.
On examination, Dr. Berezin found that appellant walked independently with a
nonanalgic gait, could heel-toe walk and had no motor deficits in the lower extremities.
Appellant had lower lumbar tenderness and right-side paravertebral tenderness, but no spasm or
sacroiliac joint tenderness. Dr. Berezin noted 50 percent active forward flexion, full rotation and
lateral rotation with complaints of pain and pain down the right leg. He found decreased
sensation over the first through forth metatarsal heads of the right foot and diminished patellar
reflexes bilaterally. The straight leg test elicited low back pain radiating to the buttocks at 60
degrees bilaterally. The Fabere test was negative. Dr. Berezin reviewed an x-ray of the lumbar
spine dated December 4, 1997 that revealed disc space narrowing at L4-5 and L5-S1 and some

3

spurring. He noted that the x-ray report from June 17, 1975 indicated very minimal narrowing of
the posterior aspects of the intervertebral space between L5 and S1.
Dr. Berezin stated that appellant appeared to have a degenerative spinal process that was
unrelated to his June 16, 1975 employment-related sprain. He found that appellant’s current
disability was related to a preexisting degenerative process. Dr. Berezin found that appellant’s
injury-related condition had resolved and required no further treatment.
By decision dated October 27, 2005, the Office denied appellant’s claim for
compensation benefits on the grounds that the weight of the medical evidence, as represented by
Dr. Berezin’s opinion did not establish that his condition was causally related to his accepted
employment injury.
On November 12, 2005 appellant filed a request for an oral hearing. He contended that
Dr. Berezin did not conduct an adequate examination and that there was no evidence to establish
that his spinal condition was preexisting.
By decision dated March 2, 2006, the Office hearing representative remanded the case
finding that it was not in posture for a decision. She found that Dr. Berezin had provided no
explanation for his opinion that appellant’s current condition was unrelated to his accepted
injury. The Office hearing representative stated that on remand the Office should ask
Dr. Berezin for a clarification of his opinion.
On March 15, 2006 Dr. Berezin stated that his opinion was based on the mechanism of
the injury, the file treatment notes and the radiographic findings. He stated that appellant’s
current complaints were consistent with the radiographic findings of a degenerative process.
Dr. Berezin stated that the mechanics of appellant’s 1975 employment injury would not cause a
degenerative process. He noted that the x-ray report of June 17, 1975 showed minimal
narrowing of the posterior aspect of L5-S1 intervertebral space which was consistent with a
degenerative process.
By decision dated April 19, 2006, the Office denied appellant’s claim on the grounds that
Dr. Berezin’s opinion established that his condition was no longer employment related. On
May 16, 2006 appellant requested an oral hearing.
By decision dated August 23, 2006, a third Office hearing representative found that the
case was not in posture for a decision. She found that there was a conflict of medical opinion
evidence between Dr. Alter and Dr. Berezin that required resolution by an impartial medical
examiner.
On December 8, 2006 appellant was examined by an impartial medical examiner,
Dr. Harvey Seigel, a Board-certified orthopedic surgeon, who reviewed the medical evidence in
the file, which consisted of the 1975 emergency room report and x-ray report, Dr. Alter’s report
and the two reports of Dr. Berezin. Dr. Seigel disagreed with Dr. Alter’s statement that the 1975
x-ray report revealed no preexisting pathology, noting that the narrowing of the L5-S1 space was
evidence of degenerative disc disease at that level. He stated that appellant’s current complaints
included daily low back pain of varying degrees in the mid and low lumbar regions that radiated
into the buttocks bilaterally and down the lower extremities to the posterior thigh. Appellant also
4

experienced numbness on the dorsum of his right foot, ranging from completely numb to
tingling. Dr. Seigel noted that throughout the history taking process, appellant moved his head,
neck, trunk and upper and lower extremities without evidence of physical discomfort.
On physical examination, Dr. Seigel found that appellant had diminished flexion in the
lumbosacral spine. He noted that appellant had no pain when straightening from a forward bend
but did express pain when rising from a resting supine position. Dr. Seigel stated that appellant
had diminished tilt, left more than right but normal rotation bilaterally. He found no tenderness
or muscle spasms in the paraspinal musculature of the lumbosacral spine, no tenderness of the
sacroiliac joint but mild tenderness at the mid-sacrum, slightly to the right of the midline.
Dr. Seigel also noted a mild degree of scoliosis to the right. The straight leg raising test from the
seated position was positive on the right at 60 degrees and negative on the left. In the supine
position, leg pain was noted on the straight leg raise at 30 degrees on the right and 60 degrees on
the left. Dr. Seigel found diminished sensation all over appellant’s right foot, especially in the
S1 distribution but found no muscle weakness.
Dr. Seigel took x-rays of appellant’s spine and found no evidence of fracture, dislocation
or old or new trauma. He noted that disc spaces were significantly narrowed at several levels of
the lumbar spine and that several of the vertebrae had osteophyte formations, many of which
encroached on neural foramina. Dr. Seigel found no evidence of scoliosis, spondylosis or
spondylolisthesis. He stated that the lumbosacral carrying angle was normal, though there was a
mild diminution of the normal lordotic curvature. Dr. Seigel diagnosed multilevel degenerative
disc disease of the lumbosacral spine involving four discs. He opined that this condition was not
related to the accepted employment injury. Dr. Seigel stated that the x-ray taken the day after
appellant’s accepted employment injury revealed that he already had degenerative disc disease in
his lower back, which was present “long before” his lumbosacral sprain. He found that
appellant’s lumbosacral sprain cleared after a week of rest and that he was able to return to full
duty on June 23, 1975. Based on the report of Dr. Alter, Dr. Seigel found that appellant did not
seek treatment for his low back condition until 1980, by which time his preexisting degenerative
disc disease had progressed. He stated that appellant’s current spinal condition was not caused,
accelerated or precipitated by the June 16, 1975 employment injury. Dr. Seigel found that
appellant’s current radiographic studies revealed damage to four discs that took years to develop
and therefore could not have possibly been caused by the low back sprain that had resolved long
ago. He stated that appellant’s current condition was the consequence of the relentless
progression of preexisting degenerative disease. Dr. Seigel noted that appellant would be unable
to perform a physically demanding job but was capable of performing the regular duties of his
current occupation, that of an attorney.
By decision dated January 8, 2007, the Office denied appellant’s claim for recurrence of
disability. It found that the opinion of the independent medical examiner, Dr. Seigel, carried the
weight of the medical opinion evidence and that this evidence did not support the claim that
appellant’s current condition was related to the accepted injury. On January 14, 2007 appellant
requested an oral hearing. He challenged Dr. Seigel’s finding that there was evidence of
preexisting degenerative disease, that he was not treated for his back between 1975 and 1980 and
that he had no ongoing symptoms related to his back sprain after returning to work in 1975.

5

On May 31, 2007 the Office hearing representative conducted a hearing. Appellant
stated that Dr. Seigel performed a thorough examination but that he reached an inaccurate
decision related to causation because he found that the 1975 radiographic finding of narrowing of
one intervertebral space was evidence of preexisting degenerative disc disease. He said that he
went through very rigorous training for the employing establishment and other law enforcement
agencies without any back problems which would not have been possible with a preexisting
condition. Appellant stated that he experienced low back pain with regularity following his
accepted injury but had no intervening injury.
By decision dated July 25, 2007, the Office hearing representative affirmed the Office’s
January 8, 2007 decision. She found that Dr. Seigel’s opinion was entitled to the special weight
of the medical evidence because it was well reasoned and based on proper factual background.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act1 has
the burden of establishing the essential elements of his claim by the weigh of reliable, probative
and substantial evidence.2 To establish a claim for recurrence of disability, a claimant must
establish that he experienced a spontaneous material change in the employment-related condition
without an intervening injury or new exposure to the work environment that caused the illness.3
A claimant’s burden of proof includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports the conclusion with
sound medical rationale. Where no such rationale is present, the medical evidence is of
diminished probative value.4
The Act provides that, if there is a disagreement between a physician making an
examination for the United States and the physician of the employee, the Secretary must appoint
a third physician to make an examination.5 Likewise, the implementing regulation states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an Office medical adviser or consultant, the
Office must appoint a third physician to make an examination. This is called a referee
examination and the Office is required to select a physician who is qualified in the appropriate
specialty and who has had no prior connection with the case.6 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the

1

5 U.S.C. §§ 8101-8193.

2

Edward W. Spohr, 54 ECAB 806 (2003).

3

Carlos A. Marrero, 50 ECAB 117 (1998); Philip L. Barnes, 55 ECAB 426 (2004); 20 C.F.R. § 10.5(x).

4

Mary A. Ceglia, 55 ECAB 626 (2004).

5

5 U.S.C. §§ 8101-8193, 8123(a).

6

20 C.F.R. § 10.321.

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opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.7
ANALYSIS
The Office accepted that appellant sustained a lumbosacral strain on June 16, 1975. The
issue to be resolved is whether appellant has established that he sustained a recurrence of
disability causally related to this injury.
The Office properly determined that there was a conflict of medical opinion between
Dr. Alter, a Board-certified nephrologist, and Dr. Berezin, a Board-certified orthopedic surgeon,
on the issue of whether appellant’s current condition was causally related to his accepted injury.
Appellant was referred for an impartial medical examination with Dr. Seigel, a Board-certified
orthopedic surgeon, to resolve the conflict.
On physical examination, Dr. Seigel found, among other things, that appellant’s lumbar
spine had pain when rising from a resting supine position but no tenderness or muscle spasms in
the paraspinal musculature. He noted that the lumbar spine had diminished flexion and
diminished tilt, primarily on the left, but normal rotation bilaterally. Dr. Seigel also found mild
tenderness at the mid-sacrum, slightly to the right of the midline.
Dr. Seigel reviewed current x-rays of appellant’s lumbar spine and found no evidence of
fracture, dislocation or trauma. He noted that disc spaces were significantly narrowed at four
levels of the lumbar spine and that several of the vertebrae had osteophyte formations, many of
which encroached on neural foramina. Dr. Seigel found no evidence of scoliosis, spondylosis or
spondylolisthesis. He stated that the lumbosacral carrying angle was normal, though there was a
mild diminution of the normal lordotic curvature. Dr. Seigel diagnosed multilevel degenerative
disc disease of the lumbosacral spine involving four discs. He opined that appellant’s current
condition was the consequence of the relentless progression of preexisting degenerative disease
and was not caused, accelerated or precipitated by the June 16, 1975 employment injury.
In support of his opinion, Dr. Seigel stated that the x-ray taken on June 17, 1975 revealed
that appellant already had degenerative disc disease in his lower back at the time of his accepted
lumbosacral sprain. He found that appellant’s lumbosacral sprain cleared after a week of rest
and that appellant was able to return to full duty on June 23, 1975. Based on the report of
Dr. Alter, Dr. Seigel found that appellant did not seek treatment for his low back condition until
1980, by which time his preexisting degenerative disc disease had progressed. He found that the
damage to the discs took years to develop and therefore could not have been caused by the low
back sprain that had resolved long ago. The Board finds that the report of Dr. Seigel is entitled
to the special weight of the medical opinion evidence because his medical opinion was
sufficiently rationalized and was based on a thorough physical examination and review of the
medical evidence of record.
On appeal, appellant contended that the Office improperly relied on the opinion of
Dr. Seigel in denying his claim. He contended that Dr. Seigel’s medical reasoning was flawed,
7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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but presented no new medical evidence to challenge his findings. The Board had held that the
issue of medical causation can be proved only by a preponderance of the reliable, probative and
substantial medical evidence.8 As Dr. Seigel’s report was well rationalized and supported by
findings on physical examination and diagnostic testing, it constitutes the special weight of the
medical evidence. Appellant also challenged the factual basis on which Dr. Seigel based his
opinion. However, he provided no corroborating evidence to establish that any of the facts that
Dr. Seigel relied on were inaccurate. The Board therefore finds that appellant did not establish
any error in Dr. Seigel’s report.
The Board finds that the special weight of the medical evidence establishes that
appellant’s spinal condition is not a recurrence of disability causally related to his accepted
injury.
On appeal, appellant also contended that he was entitled to medical treatment for his
accepted injury. The Board has held that, while the Office is obligated to pay for treatment of
employment-related conditions, the employee has the burden of establishing that the expenditure
is incurred for treatment of the effects of such conditions.9 Because the special weight of the
medical evidence establishes that appellant has no continuing employment-related residuals, he
is not entitled to medical treatment for the effects thereof.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability causally related to his accepted condition of lower back sprain.

8

Tammy L. Medley, 55 ECAB 182 (2003).

9

The Board has held that, while the Office is obligated to pay for treatment of employment-related conditions, the
employee has the burden of establishing that the expenditure is incurred for treatment of the effects of such
conditions. Kennett O. Collins, Jr., 55 ECAB 648 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative and the January 8, 2007 Office
decision are affirmed.
Issued: November 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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