United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 17-1049
Issued: May 23, 2018

Case Submitted on the Record

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

JURISDICTION
On April 12, 20171 appellant filed a timely appeal from an October 14, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 14, 2016, the date of OWCP’s last decision, was
April 12, 2017. Since using April 13, 2017, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is April 12, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its October 14, 2016 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board
is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish greater than eight
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On February 27, 2012 appellant, then a 37-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury to her right side when she fell over a
flower pot after being charged by a customer’s dog while trying to deliver a certified letter.4 She
stopped work the same day. OWCP accepted the claim for contusion of the right shoulder and
upper arm, closed right acromioclavicular dislocation, and brachial plexus lesions. Appellant
received continuation of pay and OWCP then paid wage-loss compensation benefits on the
supplemental rolls commencing April 13, 2012.
Appellant was initially treated conservatively and subsequently underwent OWCP
approved surgery on February 12, 2014 for right-sided thoracic outlet syndrome.5 She remained
off work until May 4, 2015.6 Appellant retired on disability from the employing establishment on
October 13, 2015. She remained under the care of Dr. Michael S. Kendrick, an interventional pain
management specialist and Board-certified anesthesiologist, for thoracic outlet syndrome and pain
management.
On March 16, 2016 OWCP requested that Dr. Richard Rex Harris,7 a Board-certified
orthopedic surgeon and OWCP referral physician, determine whether appellant sustained a
permanent impairment due to the February 27, 2012 employment injury and subsequent surgery
of February 12, 2014.
In a March 22, 2016 report, Dr. Kendrick noted appellant’s thoracic outlet syndrome. He
indicated that she reached MMI on January 18, 2015. Dr. Kendrick advised that appellant would
be sent for a functional capacity evaluation (FCE) and permanent impairment rating.

4
The customer’s dog ran out the front door and charged appellant. While appellant backed up and sprayed the dog
with dog spray, she fell backwards over a flower pot and injured her right side. She claimed injury to her right ankle,
right hip, right hand, right wrist, right elbow, right shoulder, right side of neck, back, and back side of left shoulder.
5
Dr. William D. Whitley, a vascular surgeon specialist, performed a right-sided thoracic outlet decompression and
right first rib resection.
6

In a December 9, 2015 decision, OWCP reversed a May 7, 2015 termination of appellant’s wage-loss
compensation due to refusal of suitable work. It found that she was entitled to wage-loss compensation from May 2
to 15, 2015.
7

OWCP originally referred appellant to Dr. Harris in December 2014 for a determination of her work-related
conditions and her capacity to work. In a January 8, 2015 report, Dr. Harris opined that appellant was not able to
perform her usual job, but could perform a sedentary or light-duty job for eight hours a day with permanent restrictions.
He opined that she reached maximum medical improvement (MMI) and that she should start a sedentary or light-duty
position four hours a day and progress to eight hours a day.

2

In an April 17, 2016 report, Dr. Harris reviewed the statement of accepted facts and noted
that appellant stated that she had continued pain in her right shoulder with swelling. He reported
full range of motion of the neck. Tenderness was noted to palpation over the right shoulder with
a well-healed scar on the medial aspect of the right shoulder. Abduction of the right shoulder was
90 degrees, flexion was 90 degrees, and extension was 20 degrees. Full range of motion of the
right elbow and right wrist was exhibited. Grip strength was 5/5 on the right. No evidence of
atrophy of the right upper extremities was seen and reflexes were 1+ and equal in the upper
extremities. Appellant was able to open and close doors, button and unbutton, and pick up small
objects on a table. Dr. Harris indicated that appellant reached MMI on February 14, 2015. This
was the 12-month postsurgical intervention mark and appellant had continued with chronic pain
with evidence of a scar and decreased range of motion of the right shoulder with decreased
functional ability of the right shoulder. Dr. Harris noted that her subjective complaints required
the use of medication. He indicated that the right shoulder had decreased range of motion and the
right upper extremity had decreased strength and pinch as related to the left.
In a May 10, 2016 report, Dr. Harris found appellant had eight percent permanent
impairment of her right upper extremity impairment under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)8 based
on range of motion (ROM) findings. He found that 90 degrees abduction of the right shoulder
accounted for three percent impairment; 90 degrees flexion accounted for three percent
impairment; and 20 degrees extension accounted for two percent impairment, for a total of eight
percent permanent impairment.
Appellant sought emergency room treatment on July 7, 2016 and indicated that she had
shoulder pain ever since her FCE a few weeks ago. Dr. Brian J. Tierney, an emergency medicine
specialist, diagnosed acute right shoulder pain and discharged appellant. In an addendum to the
July 7, 2016 hospital report, Dr. Joseph A. Hudson, an emergency medicine specialist, indicated
that the radiologist’s report showed possible incomplete fracture of the acromion.
A July 26, 2016 right shoulder magnetic resonance imaging (MRI) scan revealed mild,
diffuse right supraspinatus and infraspinatus tendinosis with trace fluid in the subacromial/
subdeltoid bursa; diminutive/small bicipital tendon long head, suggestive of mild tendinopathy;
and subtle right anterior labral degenerative fraying.
In an August 23, 2016 report, Dr. Kendrick reported no acute examination changes. He
indicated that appellant was self-limiting her assessment significantly. Dr. Kendrick referred her
to psychiatry for depression.
On October 6, 2016 appellant filed a claim for a schedule award (Form CA-7).
OWCP’s district medical adviser (DMA), Dr. Michael M. Katz, a Board-certified
orthopedic surgeon, reviewed the claim on October 6, 2016, and agreed with Dr. Harris’ eight
percent ROM impairment rating. He noted that Dr. Harris determined no additional permanent

8

A.M.A., Guides 475, Table 15-34 (2009).

3

impairment of the right brachial plexus lesion. The DMA indicated that the date of MMI was
April 17, 2016, the date of Dr. Harris’ examination upon which he based his impairment opinion.
By decision dated October 14, 2016, OWCP granted appellant a schedule award for eight
percent permanent impairment of her right upper extremity. The award covered a period of 24.96
weeks, from April 17 to October 8, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.9 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.10 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.11
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.13
ANALYSIS
The Board finds that this case is not in posture for decision.
The issue is whether appellant has more than eight percent permanent impairment of the
right upper extremity, for which she previously received a schedule award. OWCP has accepted
9

See 20 C.F.R. §§ 1.1-1.4.

10

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

11

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
13

Isidoro Rivera, 12 ECAB 348 (1961).

4

the claim for contusion of the right shoulder and arm, closed right acromioclavicular dislocation,
and brachial plexus lesions. It also authorized surgical correction of right thoracic outlet
syndrome. Appellant’s schedule award was paid based upon a ROM permanent impairment rating
provided by Dr. Harris. However, neither Dr. Harris nor OWCP’s DMA, Dr. Katz, attempted to
rate appellant’s accepted conditions using a diagnosis-based impairment (DBI) methodology.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the DBI or ROM methodologies when
assessing the extent of permanent impairment for schedule award purposes.14 The purpose of the
use of uniform standards is to ensure consistent results and to ensure equal justice under the law
to all claimants.15 In T.H., the Board concluded that OWCP physicians were at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board observed that physicians interchangeably cited to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.16 In order to ensure a consistent result and equal justice under the law for cases
involving upper extremity impairment, the Board will set aside the October 14, 2016 decision.
Utilizing a consistent method for calculating permanent impairment for upper extremities applied
uniformly,17 and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

T.H., Docket No. 14-0943 (issued November 25, 2016).

15

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

16

Supra note 14.

17

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

5

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: May 23, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MICHIGAN AIR NATIONAL GUARD,
Selfridge Air National Guard Base, MI, Employer
__________________________________________

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

Docket No. 08-586
Issued: June 18, 2008

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 December 18, 2007 appellant timely appealed the August 30, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied his July 16, 2007 request for
reconsideration. He also timely appealed the May 18, 2007 merit decision denying a schedule
award for employment-related hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of appellant’s claim.
ISSUES
The issues are: (1) whether appellant has a ratable hearing loss; and (2) whether the
Office properly denied appellant’s July 16, 2007 request for reconsideration under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
Appellant, a 57-year-old retired supervisory firefighter, has an accepted occupational
disease claim for bilateral noise-induced hearing loss and sensorineural hearing loss. His

employment-related hearing loss arose on or about May 15, 1985.
January 2, 2005.

Appellant retired

Dr. Warren L. Brandes, a Board-certified otorhinolaryngologist and Office referral
physician, examined appellant on January 13, 2005. An audiogram was administered that same
day. Dr. Brandes diagnosed bilateral high frequency sensorineural hearing loss, which he
attributed to appellant’s occupational noise exposure.
Based on a May 12, 2006 telephone conversation with appellant, the Office began
developing appellant’s claim for a schedule award. The case file was later referred to the Office
medical adviser to determine if appellant had ratable hearing loss due to his accepted condition.
In a report dated June 15, 2006, the Office medical adviser found that appellant’s January 13,
2005 audiogram did not demonstrate a ratable hearing loss.
By decision dated May 18, 2007, the Office denied appellant’s claim for a schedule
award. The Office explained that appellant’s accepted hearing loss was not severe enough to be
considered ratable.
On July 16, 2007 appellant requested reconsideration. The Office subsequently received
additional copies of appellant’s employee medical records. In a decision dated August 30, 2007,
the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 hertz, the losses at each frequency
are added up and averaged.4 The next step is to deduct the “fence” of 25 decibels because losses
below this 25-decibel threshold result in no impairment in the ability to hear everyday speech
under everyday conditions.5 The remaining amount is multiplied by 1.5 to arrive at the
1

For a complete, or 100 percent loss of hearing in one ear, an employee shall receive 52 weeks’ compensation.
For complete loss of hearing in both ears, an employee shall receive 200 weeks’ compensation. 5 U.S.C.
§ 8107(c)(13) (2000).
2

20 C.F.R. § 10.404 (2007).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

2

percentage of monaural hearing loss.6 The binaural loss is determined by calculating the loss in
each ear using the above-noted formula for monaural loss. The side with the lesser hearing loss
is multiplied by five, and then added to the opposite-side greater loss, and the sum is divided by
six to arrive at the binaural hearing loss.7
ANALYSIS -- ISSUE 1
In reviewing appellant’s January 13, 2005 audiogram, the frequency levels recorded at
500, 1,000, 2,000 and 3,000 hertz for the right ear reveal decibel losses of 10, 15, 20 and 10,
respectively, for a total of 55 decibels. This figure when divided by 4 results in an average
hearing loss of 13.75 decibels. The average loss of 13.75 is reduced by 25 decibels to 0, which
represents no ratable monaural hearing loss for the right ear. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 hertz revealed decibel losses of 10, 10, 10 and
45 decibels respectively, for a total of 75 decibels, which represented an average loss of 18.75
decibels. When the average loss of 18.75 decibels is reduced by 25 decibels, the result is a 0
percent monaural hearing loss for the left ear. Accordingly, appellant’s most recent audiogram
does not establish a ratable hearing loss for either ear.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.8 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.9
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.10
ANALYSIS - ISSUE 2
Appellant’s July 16, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Therefore,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).11 He also failed to satisfy the third
6

Id.

7

Id.

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b).

11

20 C.F.R. § 10.606(b)(2)(i) and (ii).

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requirement under section 10.606(b)(2). On August 23, 2007 the Office received 38 pages of
appellant’s employee medical records. These documents were already part of the record and
thus, do not constitute relevant and pertinent new evidence not previously considered by the
Office.12 Consequently, appellant is not entitled to a review of the merits of his claim based on
the third requirement under section 10. 606(b)(2).13 As he was not entitled to a review of the
merits of his claim pursuant to any of the three requirements under section 10.606(b)(2), the
Office properly denied the July 16, 2007 request for reconsideration.
CONCLUSION
Appellant does not have a ratable hearing loss; therefore, he is not entitled to a schedule
award. The Board further finds that the Office properly denied appellant’s July 16, 2007 request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 30 and May 18, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 18, 2008
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

12

Submitting additional evidence that repeats or duplicates information already in the record does not constitute a
basis for reopening a claim. James W. Scott, 55 ECAB 606, 608 n.4 (2004).
13

20 C.F.R. § 10.606(b)(2)(iii).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, MA, Employer
__________________________________________

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

Docket No. 11-142
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 25, 2010 appellant filed a timely appeal from a July 20, 2010 merit decision
of the Office of Workers’ Compensation Programs denying her recurrence claim. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
on or after November 30, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 17, 2009 appellant, then a 29-year-old mail handler, filed a traumatic
injury claim alleging that she sustained a back injury on that date in the performance of duty
while lifting bundles of magazines from a wire cage. The Office accepted her claim for lumbar
sprain. She returned to restricted duty on September 28, 2009.
On December 16, 2009 appellant submitted a notice of recurrence alleging that she was
totally disabled from work as of November 30, 2009. She stated that her back pain had
worsened on that date “three hours into [her] shift while lifting.” Appellant noted that she had
injured her neck in a nonwork-related motor vehicle accident on November 23, 2009.
Appellant was treated by Dr. George W. Moore, a treating physician, who diagnosed
lumbar strain. On October 6, 2009 Dr. Moore noted that although she had been working within
restrictions of lifting, pushing and pulling no more than 10 pounds, appellant continued to
experience aching, stabbing and sharp-shooting lower back pain, which was exacerbated by
activity. Notes dated October 14, 23 and 30, 2009 reflected no improvement in appellant’s
symptoms, which continued to be aggravated by activity.
On December 1, 2009 Dr. Moore diagnosed pars defect, pursuant to a November 17,
2009 magnetic resonance imaging (MRI) scan, as well as lumbosacral strain. On examination,
he found bilateral tenderness with full range of motion and tenderness of the lumbosacral spine
and paraspinous muscles. Flexion was to 90 degrees with pain. In a December 15, 2009 duty
status report, Dr. Moore indicated that appellant was unable to work due to severe low back pain.
He diagnosed sprain and spondylolysis due to the September 17, 2009 injury.
Appellant submitted a December 2, 2009 report from Dr. Donald Waugh, a treating
physician, who noted appellant’s complaints of low back pain, which had been aggravated by
bending at work. Deep palpation of the lumbosacral spine revealed paravertebral spasm in the
L4-5 area. Forward flexion was limited to 15 degrees. Appellant was unable to squat without
pain. Lateral rotation was limited to 10 degrees bilaterally. Dr. Waugh noted evidence on MRI
scan of bilateral pars interarticularis defects without evidence of spondylolisthesis and no
impingement. He opined that appellant was unable to work.
In a December 16, 2009 report, Dr. Richard N. Norris, a Board-certified physiatrist,
provided a history of injury and diagnosed a sprain of the sacroiliac ligaments and symptomatic
spondylosis at L5-S1. He related appellant’s complaints of continuous pain, which had been
worsened by physical therapy. Dr. Norris stated that appellant had “no history of any back injury
or problems.” He provided examination findings and observed that an MRI scan was significant
for bilateral L5 pars fracture without evidence of spondylolisthesis. On January 28, 2010
Dr. Norris performed a sacroiliac injection procedure.
On January 4, 2010 the employing establishment controverted appellant’s recurrence
claim, contending that the medical evidence was insufficient to establish causal relationship
between her claimed condition and the accepted injury. It also alleged that appellant was injured
in a motor vehicle accident on November 23, 2009, which constituted an intervening event.

2

The record contains a statement dated December 11, 2009 from a Kevin Trombley who
indicated that on November 30, 2009 appellant informed him that while on vacation, she had
sustained injuries to her neck when the vehicle in which she was a passenger was rear ended at a
red light.
In a letter dated February 9, 2010, the Office informed appellant that the evidence and
information submitted was insufficient to establish her claim. Appellant was advised to submit a
medical report with a diagnosis and opinion explaining how the claimed disabling condition was
causally related to the accepted injury.
The record contains a report of a July 27, 2008 MRI scan of the lumbar spine and a
March 11, 2011 x-ray of the lumbar spine.
Appellant submitted December 2, 2009 progress notes from Debbie L. Murray, a
physician’s assistant, who reported that appellant was involved in a November 23, 2009 motor
vehicle accident. When the vehicle in which appellant was a passenger was rear-ended at a stop
light, appellant felt her upper body “shift forward and back.” She complained of bilateral upper
trapezius tightness and discomfort.
In a November 24, 2009 report, Dr. A. Maria Carlton, a chiropractor, diagnosed cervical
radiculopathy; acute post-traumatic cervical and thoracic sprain; and headaches. She noted that
appellant sustained upper and lower back injuries as a result of a 1998 automobile accident and
an upper back injury in a 2006 motor vehicle accident.
In a May 5, 2010 report, Dr. Moore diagnosed lumbar strain and sacral/coccyx fracture,
pars deficit, closed. He opined that there was a causal relationship between appellant’s accepted
September 17, 2009 injury and her employment, and that her pars defect, a stress fracture,
occurred at the time of her accepted injury. Dr. Moore stated that appellant was unable to work.
By decision dated March 25, 2010, the Office denied appellant’s recurrence claim,
finding that she had not submitted sufficient evidence to establish a causal relationship between
her current condition and the accepted September 27, 2009 injury. On May 10, 2010 appellant
requested reconsideration.
Appellant submitted a July 6, 2010 report from Dr. Natasha McKay, a treating physician,
who provided examination findings and diagnosed lumbosacral pars defects, with no subluxation
pursuant to a November 11, 2009 MRI scan. She indicated that appellant was working light duty
when she was involved in a motor vehicle accident on November 23, 2009. Dr. McKay stated,
“This worsened the back pain and she has been unable to return to work.”
By decision dated July 20, 2010, OWCP denied modification of its prior decision. The
senior claims examiner determined that the March 25, 2010 decision failed to address all
evidence of record or to explain the reasoning for its decision. It found, however, after fully

3

considering all evidence presented, that the medical evidence was insufficient to establish a
recurrence of disability causally related to appellant’s accepted injury.2
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change, demonstrated by objective findings, in the medical condition
that resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.4
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.6 This burden includes the necessity of furnishing evidence from a qualified physician
who, on the basis of a complete and accurate factual and medical history, concludes that the

2

In his July 20, 2010 decision, the claims examiner stated that he was “vacating” the March 25, 2010 decision in
part because it failed to address all evidence or explain its reasoning. He also “affirmed” OWCP’s denial of
appellant’s recurrence claim. The Board notes that FECA’s implementing regulations provide that when an
application for reconsideration is granted, OWCP will review the decision for which reconsideration is sought on the
merits and determine whether the new evidence or argument requires modification of the prior decision. See 20
C.F.R. § 10.609. Therefore, the July 20, 2010 decision effectively denied modification of the March 25, 2010
decision.
3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
5

Terry R. Hedman, 38 ECAB 222 (1986).

6

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

4

condition is causally related to the employment injury.7 The physician’s conclusion must be
supported by sound medical reasoning.8
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain on September 17, 2009 in
the performance of duty. The record reflects that she returned to restricted duty on
September 28, 2009. The issue is whether appellant has established that she sustained a
recurrence of disability on or after November 30, 2009 causally related to his accepted injury.
The evidence of record fails to establish that appellant sustained a recurrence of
disability.9 Appellant neither alleged nor established that she experienced a spontaneous change
in her medical condition due to the accepted injury. Rather, she reported to the Office and to her
physicians that her back pain worsened on November 30, 2009 “three hours into [her] shift while
lifting.” Appellant also indicated that her pain was aggravated by activity, flexion or extension
and was subsequently exacerbated by physical therapy sessions. The Board finds that her claim
does not meet the definition of a recurrence of disability.10
Appellant did not allege that her light-duty job requirements changed or that her position
was withdrawn. Rather, she contended that her accepted condition worsened such that she was
unable to perform the duties of her position. The medical evidence of record, however, fails to
establish that her claimed disabling condition was causally related to the employment injury.11
In October, 2009 reports, Dr. Moore diagnosed lumbar sprain and stated that appellant
continued to experience aching, stabbing and sharp-shooting lower back pain, which was
exacerbated by activity. On December 1, 2009 he provided examination findings and diagnosed
pars deficit and lumbosacral strain. In a December 15, 2009 duty status report, Dr. Moore
diagnosed back sprain and spondylolysis and indicated that appellant was unable to work due to
severe low back pain. He did not, however, express an opinion as to the cause of appellant’s
conditions. Medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.12 Further,
Dr. Moore did not explain how the newly diagnosed pars deficit and spondylolysis conditions
were causally related to the only accepted condition, namely lumbar sprain, rather than to an
intervening event.
On May 5, 2010 Dr. Moore diagnosed lumbar strain and sacral/coccyx fracture, pars
defect, closed. He opined that there was a causal relationship between appellant’s accepted
7

S.S., 59 ECAB 315 (2008).

8

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

9

See supra note 3 and accompanying text.

10

See Bryant F. Blackmon, 56 ECAB 752 (2005).

11

S.S., 59 ECAB 152 (2008).

12

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

5

September 17, 2009 injury and her employment. The Board notes that the causal relationship
between appellant’s lumbar sprain and her employment was not at issue, as the Office accepted
that appellant sustained a lumbar sprain in the performance of duty on September 17, 2009. The
issue is whether she sustained a spontaneous recurrence of disability on November 30, 2009.
Dr. Moore also opined that appellant’s pars defect occurred at the time of her accepted injury.
He did not, however, explain how the newly diagnosed condition was causally related to the
September 17, 2009 incident. The Board has held that a medical opinion that is not fortified by
rationale is of diminished probative value.13 Additionally, the Board notes that Dr. Moore’s
opinion does not support a spontaneous recurrence of a lumbar sprain, but rather seems to
suggest that appellant’s claim should be expanded to include an additional condition. In any
event, this opinion is insufficiently rationalized to establish appellant’s claim.
Dr. Waugh attributed appellant’s current low back pain to recent activities at work, such
as bending. Thus, he opined that appellant’s claimed disability was not a spontaneous
occurrence, but was a new injury.
Dr. Norris provided a history of injury and diagnosed a sprain of the sacroiliac ligaments
and symptomatic spondylosis at L5-S1. His report, however, does not contain an opinion on the
cause of appellant’s diagnosed conditions. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.14 The Board also
notes that Dr. Norris’ history of injury is inconsistent with the evidence of record, which
indicates that appellant had a prior history of back injuries. Additionally, his note that physical
therapy had worsened appellant’s pain further supports that any claimed disability in this case is
a result of a new injury, rather than a recurrence of an old one.
In December 2, 2009 progress notes, Debbie Murray, a physician’s assistant, reported
that when appellant’s vehicle was rear-ended on November 23, 2009, she felt her upper body
“shift forward and back.” As physician’s assistants are not considered to be physicians under
FECA, her report does not constitute probative medical evidence.15 It is relevant, however, to
the cause of appellant’s claimed disability and suggests that her current condition may have been
caused by an intervening event rather than a spontaneous change in her condition.
Dr. Carlton, a chiropractor, diagnosed cervical radiculopathy; acute post-traumatic
cervical and thoracic sprain and headaches. The record does not contain evidence of a diagnosis
of subluxation by x-ray. Therefore, he is not considered a “physician” under FECA and her
report does not constitute probative medical evidence.16
13

Cecilia M. Corley, 56 ECAB 662 (2005).

14

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

15

Physician’s assistants do not qualify as “physicians” under the Act. Section 8101(2) of the Act provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. The term ‘physician’
includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of
manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation
by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
16

Id.

6

On July 6, 2010 Dr. McKay provided examination findings and diagnosed lumbosacral
pars defect, with no subluxation pursuant to a November 11, 2009 MRI scan. She indicated that
appellant was working light duty when she was involved in a motor vehicle accident on
November 23, 2009. Dr. McKay stated, “This worsened the back pain and she has been unable
to return to work.” His conclusion that the trauma of the November 23, 2009 motor vehicle
accident worsened the back pain suggests that appellant’s current condition is due to an
intervening event, rather than to a spontaneous occurrence related to the September 17, 2009
incident. Reports of MRI scan and other diagnostic test results which do not contain an opinion
on causal relationship are also of limited probative value.
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled as of
November 30, 2009 due to residuals of her accepted injury. She has failed to establish by the
weight of the reliable, probative and substantial evidence, a change in the nature and extent of
the injury-related condition resulting in her inability to perform the duties of her modified
employment. As appellant has not submitted any medical evidence showing that she sustained a
recurrence of disability due to her accepted employment injury, the Board finds that she has not
met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office 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 did not meet her burden of proof to establish a recurrence
of disability on or after November 30, 2009.

7

ORDER
IT IS HEREBY ORDERED THAT the July 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 07-2134
Issued: January 23, 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 August 16, 2007 appellant filed a timely appeal from an October 6, 2006 Office of
Workers’ Compensation Programs’ decision terminating his compensation for refusing an offer
of suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On September 9, 2005 appellant, then a 57-year-old letter carrier, filed a claim for
compensation alleging that he injured his lower back on August 30, 2005 while lifting tubs of
mail. The Office accepted his claim for a lumbar sprain and strain. Effective December 9, 2005,
appellant was placed on the periodic compensation rolls for temporary total disability.

In a work capacity evaluation dated June 22, 2006, Dr. Bill Weldon, an attending
physician specializing in pain management, indicated that appellant could work eight hours a
day. Appellant’s permanent work restrictions included lifting, pushing or pulling limited to
20 pounds for no more than one hour a day; no squatting, kneeling, climbing, twisting, bending,
stooping or operating a motor vehicle; walking and standing limited to one hour a day; sitting
limited to six hours a day and reaching above the shoulder limited to two hours a day. Breaks of
15 minutes were required every 2 hours.
On June 30, 2006 Denise Lisenbe, an employing establishment compensation specialist,
offered appellant a modified letter carrier position. The physical requirements of the position
conformed to the limitations provided in Dr. Weldon’s June 22, 2006 report. Appellant retired
effective July 1, 2006.
On July 5, 2006 the Office advised appellant that the modified letter carrier position was
suitable and conformed to his physical limitations. The employing establishment confirmed that
the position remained available. The Office allowed appellant 30 days in which to accept the
position or provide his reasons for refusal. The Office advised appellant that an employee who
refuses an offer of suitable work without reasonable cause is not entitled to compensation. There
was no response from appellant and he did not return to work.
By decision dated August 8, 2006, the Office terminated appellant’s compensation
effective September 2, 2006 on the grounds that he refused an offer of suitable work.
On August 18, 2006 appellant submitted a July 10, 2006 permanent impairment
evaluation from Dr. Weldon in support of a schedule award claim.
Appellant requested reconsideration of the August 8, 2006 termination decision. He
indicated that he did not accept the modified job offer because he elected to retire effective
July 1, 2006. By decision dated October 6, 2006, the Office denied modification of the
August 8, 2006 termination decision.1
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Section 8106(c)(2) of the Federal Employees’
Compensation Act3 provides that a partially disabled employee who refuses or neglects to work
after suitable work is offered to, procured by or secured for the employee is not entitled to
compensation.4 To justify termination of compensation, the Office must establish that the work

1

Subsequent to the October 6, 2006 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.
2

Richard P. Cortes, 56 ECAB 200 (2004); Melvin James, 55 ECAB 406 (2004).

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8106(c)(2); see also Linda D. Guerrero, 54 ECAB 556 (2003).

2

offered was suitable and must inform the employee of the consequences of refusal to accept such
employment.5
Section 10.517(a) of the Act’s implementing regulations provides that an employee who
refuses to work after suitable work has been offered to or secured for the employee, has the
burden of showing that such refusal or failure to work was reasonable or justified.6 Pursuant to
20 C.F.R. § 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.7
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain and strain as a result of the
August 30, 2005 employment injury. The Office terminated appellant’s compensation by
decision dated August 8, 2006 on the grounds that he refused an offer of suitable work. The
initial question is whether the Office properly determined that the position was suitable.
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.8
In this case, the Office relied on the June 22, 2006 functional capacity evaluation of
attending physician Dr. Weldon in finding that the modified letter carrier position offered by the
employing establishment was within appellant’s work limitations. The work restrictions
provided by Dr. Weldon were utilized by the employing establishment in making the modifiedduty job offer. The Board finds that the Office properly determined that the modified letter
carrier position offered to appellant constituted suitable work within his physical limitations.
The record shows that appellant elected to retire on July 1, 2006. The Board has held that
electing to receive disability retirement is not a justifiable reason to refuse an offer of suitable
work. In Robert P. Mitchell,9 the Board noted that the employee’s election to receive retirement
benefits was not a valid reason for refusing an offer of suitable work.10 The relevant portion of
the Office’s procedure manual provides that electing to retire is not an acceptable reason for
refusing an offer of suitable work.11
5

Ronald M. Jones, 52 ECAB 190 (2000); Arthur C. Reck, 47 ECAB 339 (1995).

6

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 5; Stephen R. Lubin, 43 ECAB 564 (1992).

7

Id. at § 10.516; see Kathy E. Murray, 55 ECAB 288 (2004).

8

Kathy E. Murray, supra note 7.

9

52 ECAB 116 (2000).

10

See also Stephen R. Lubin, supra note 6; Roy E. Bankston 38 ECAB 380 (1987).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.5c (July 1996). This provision does not include electing to receive retirement benefits as an
acceptable reason for refusing suitable work.

3

Upon consideration of all the evidence, the Board finds that the Office met its burden of
proof to terminate appellant’s compensation on the grounds that he refused an offer of suitable
work.
Regarding appellant’s claim for a schedule award, the Office’s regulations provide that
an employee who refuses an offer of suitable work is not entitled to compensation, including a
schedule award for permanent impairment.12
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for refusing an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2006 is affirmed.
Issued: January 23, 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

12

See 20 C.F.R. § 10.517(b).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bristol, PA, Employer
__________________________________________

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

Docket No. 15-1122
Issued: September 15, 2015

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 April 21, 2015 appellant, through counsel, filed a timely appeal from a December 9,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing January 18, 2011 causally related to her February 8, 2010 employment injury.
On appeal counsel asserts that the opinion of the impartial physician, Dr. Ronald N.
Rosenfeld, a Board-certified orthopedic surgeon, is of insufficient medical rationale to carry the
weight of the medical evidence.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 8, 2010 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim alleging that she injured her back when she slipped on ice and fell while delivering mail
that day. She returned to modified duty on February 17, 2010. On April 29, 2010 OWCP
accepted sprain of back, thoracic region; sprain of back, lumbar region; and sprain of trapezius,
bilateral. Appellant subsequently returned to full duty.
In October 2010, OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a November 19, 2010 report, Dr. Smith
reported that appellant had a benign examination and advised that she could perform her regular
job duties and needed no further therapy. In correspondence dated November 30, 2010 and
February 4, 2011, OWCP asked him if appellant’s employment injury aggravated, accelerated,
exacerbated, or precipitated any preexisting conditions, and, if so, whether the aggravations were
temporary or permanent.
On February 1, 2011 appellant filed a claim for a recurrence of disability. She stated that
she had ongoing back spasms and lower back pain, and that on January 12, 2011 they became so
severe that she took medication which relieved some pain, but by January 18, 2011 the pain
became too much so she sought medical treatment for therapy and was told that she needed
another magnetic resonance imaging (MRI) scan. Appellant stopped work on January 18, 2011
and never returned.
On January 13, 2011 Dr. Ashok Thanki, a Board-certified neurosurgeon, reported
complaints of low back and right lower extremity pain. He stated that an MRI scan study
demonstrated a herniated disc and spondylosis at L3-4 and L4-5. Dr. Thanki performed a lower
extremity electrodiagnostic study which, he reported, was within normal limits.
In treatment notes dated January 13 to February 18, 2011, Dr. John Pickard, an osteopath,
described appellant’s treatment and therapy. He indicated that she complained of severe,
constant pain in the upper and lower back, and that she had difficulty sleeping. On duty status
reports dated January 31 and February 18, 2011, Dr. Pickard advised that appellant could not
work due to lumbar disc disease. In a narrative report dated February 15, 2011, he noted that she
had been treated at his practice since February 12, 2010. Dr. Pickard reported that a January 28,
2011 MRI scan of the lumbar spine demonstrated disc degeneration, bulging at L4-5 and L5-S1,
and moderate narrowing at the L5-S1 neural foramen. He described appellant’s treatment and
therapy. Dr. Pickard diagnosed lumbosacral neuritis and lumbar disc bulging, and opined that
her condition was a result of a February 8, 2010 employment injury that was aggravated on
approximately December 30, 2010.
In letters dated February 22 and March 2, 2011, OWCP informed appellant of the
evidence needed to support her recurrence claim. In correspondence dated March 2, 2011, the
employing establishment challenged the claim, stating that on January 11, 2011 she called out on
sick leave and stated that she injured her back while removing snow from her car before she
came to work.

2

By report dated March 6, 2011, Dr. Arnold T. Berman, an OWCP medical adviser and a
Board-certified orthopedic surgeon, noted his review of the medical record. He recommended
that the claim not be expanded to include lumbar neuritis.
In a narrative report dated March 11, 2011, Dr. Pickard reported that on January 12, 2011
he removed appellant from work because her back pain had significantly increased. He
diagnosed a lumbar disc bulge at L4-5 with posterior annular tearing, a broad-based central disc
protrusions, and lumbar neuritis. Dr. Pickard continued to submit reports describing appellant’s
treatment and continued to advise that she was totally disabled.
OWCP determined that a conflict in medical opinion had been created regarding the
accepted conditions and the nature and extent of appellant’s disability, and referred her to
Dr. Donald F. Leatherwood, II, a Board-certified orthopedic surgeon, for an impartial
evaluation.2 In an April 14, 2011 report, Dr. Leatherwood described the history of injury,
appellant’s complaints of thoracic and low back pain, and his review of medical records. He
provided physical examination findings and advised that, with regard to the lumbosacral spine,
she had no objective evidence of a continuing disability and was fully recovered from the
employment injury. Dr. Leatherwood concluded that appellant needed no restrictions and there
was no need for further medical care, medications, or therapy. He recommended additional
studies with regard to her thoracic region.
In a supplemental report dated May 1, 2011, Dr. Smith advised that the soft tissue sprains
appellant sustained on February 8, 2010 had resolved without residuals. He opined that her
degenerative disc abnormalities were not caused, aggravated, or accelerated by the work incident
and, while there may have been a temporary exacerbation, this had resolved at the time of his
November 19, 2010 examination.
A May 21, 2011 MRI scan of the thoracic spine demonstrated degenerative disc disease
in the mid-thoracic spine with a small disc herniation at T4-5 and a right herniation at T7-8. On
June 17, 2011 Dr. Leatherwood noted his review of the May 21, 2011 MRI scan and report. He
advised that this demonstrated basically degenerative changes which caused small disc
herniations and, although appellant’s fall at work could have caused the condition, at the present
time it would not be responsible for her symptoms. Dr. Leatherwood concluded that she had
recovered from the employment injury.
On July 14, 2011 OWCP proposed to terminate appellant’s medical benefits and deny
that she sustained a recurrence of disability of January 18, 2011. Counsel opposed the proposed
termination and requested that the accepted conditions be expanded to include lumbar
radiculopathy, lumbar and thoracic herniations, and aggravation of degenerative disc disease.
Appellant submitted an August 1, 2011 statement in which she advised that she did not tell the
employing establishment that she hurt her back clearing snow from her car but that her back was
hurting and she did not want to hurt it anymore by clearing snow.

2

The record includes the necessary OWCP ME023 form and four screen shots describing properly bypassed
physicians.

3

Dr. Pickard continued to submit treatment notes describing appellant’s condition and
treatment.
In separate decisions dated August 18, 2011, OWCP terminated appellant’s medical
benefits, effective that day, and denied that she sustained a recurrence of disability beginning
January 18, 2011. It found the weight of the medical evidence rested with the opinion of
Dr. Leatherwood, the impartial physician.
Appellant, through counsel, timely requested a hearing and submitted an August 15, 2011
narrative report from Dr. Pickard. Dr. Pickard described the employment injury and noted that
appellant tolerated back pain until January 12, 2011 when she felt the pain had significantly
increased to the point that she could no longer work. He noted his review of medical records,
including x-rays, MRI scans, and Dr. Leatherwood’s reports. Dr. Pickard advised that appellant
had been evaluated on August 8, 2011 and complained of mid and low back pain, aggravated by
bending and activities of daily living. He described physical examination findings of moderate
spasm in the thoracic spine and mild spasm in the lumbar spine with decreased range of motion
in all planes. Dr. Pickard disagreed with Dr. Leatherwood’s conclusions, opining that
appellant’s thoracic and lumbar conditions were a direct result of the employment injury of
February 8, 2010 when she incurred significant injuries. He also submitted additional treatment
notes.
On November 22, 2011 an OWCP hearing representative found that the reports of
Dr. Smith and Dr. Leatherwood were not sufficiently rationalized to constitute the weight of
medical opinion, that OWCP failed to properly identify the conflict in medical opinion, and that
the conflict statement and the questions to Dr. Leatherwood were leading and prejudicial. The
case was remanded to OWCP to exclude Dr. Leatherwood’s reports and refer appellant for a new
second opinion evaluation with a Board-certified orthopedic surgeon, to be followed by a de
novo decision on whether the claim should be expanded, whether appellant sustained a
recurrence of disability in January 2011, and whether she continued to have residuals of the
accepted conditions. Medical benefits were reinstated.
A December 12, 2011 electrodiagnostic study of the lower extremities demonstrated
bilateral lumbar radiculopathy.
OWCP referred appellant to Dr. Steven J. Valentino, a Board-certified osteopath
specializing in orthopedic surgery. In a December 21, 2011 report, Dr. Valentino noted the
history of injury and appellant’s complaints of upper and lower back pain. He reviewed medical
records and provided physical examination findings. Dr. Valentino diagnosed resolved sprains
of the thoracic region, the lumbar region, and bilateral trapezius. He opined that appellant did
not sustain a recurrence of disability in January 2011, stating that soft tissue injuries of this type
would resolve in two to three months. Dr. Valentino further indicated that there was no evidence
of ongoing disability, stating that she had significant positive Waddell’s signs which were
indicative of symptom embellishment. In an attached work capacity evaluation, he advised that
appellant had no limitations.

4

Dr. Pickard continued to submit weekly treatment notes and, on a duty status report dated
December 8, 2011, advised that appellant was totally disabled. On January 20, 2012 he advised
that she could not work due to thoracic and lumbar disc disease.
OWCP determined that a conflict in medical evidence had been created between
appellant’s attending physicians and Dr. Valentino regarding whether her work stoppage in
January 2011 was caused by the February 8, 2010 injury, whether she still had residuals of the
work injury, and what were the injury-related diagnoses. In February 2012, it referred appellant
to Dr. Ronald B. Greene, a Board-certified orthopedic surgeon, for an impartial evaluation.3 The
record includes an OWCP ME023 and a number of bypass screen shots.
In a February 28, 2012 report, Dr. Greene noted the history of injury, appellant’s
complaints of radiating back pain, bilateral lower extremity numbness, and pain between the
shoulders. He reviewed medical records including imaging studies and provided physical
examination findings. Dr. Greene advised that on February 8, 2010 appellant sustained a lumbar
sprain and strain and a thoracic intrascapular sprain and strain with secondary strain of the
trapezius muscles. He opined that there was no objective medical evidence to support additional
diagnoses, noting that the MRI scan studies of the thoracic and lumbar spines demonstrated no
nerve root compression and showed age-related degenerative changes. Dr. Greene opined that
the February 8, 2010 fall caused an aggravation of appellant’s lumbar degenerative disc disease
and that, although symptomatic, her pain could be controlled with medication and a back brace.
He further advised that she did not sustain a recurrence of disability in January 2011 and had no
need for continuing physical therapy. Dr. Greene concluded that appellant had recovered from
all accepted conditions except the aggravation of degenerative arthritis at L3-4 and L4-5, which
was the only residual of the February 8, 2010 work injury. He advised that she could return to
work for eight hours a day with physical restrictions.
In a March 19, 2012 decision, OWCP denied that appellant sustained a recurrence of
disability on March 19, 2012. On March 19, 2012 it also accepted temporary aggravation of
degenerative arthritis at L3-4 and L4-5. Appellant, through counsel, timely requested a hearing
and submitted a copy of a January 28, 2011 MRI scan study of the lumbar spine that
demonstrated disc degeneration and bulging at L4-5 and L5-S1 with moderate narrowing the
right L5-S1 neural foramen. Dr. Pickard submitted additional treatment notes describing her
condition.
By decision dated October 12, 2012, OWCP’s hearing representative found that
Dr. Greene was not properly selected as an impartial specialist as the record was devoid of any
required documentation. The case was remanded to OWCP to select another impartial specialist,
following procedures ordered by the Board.
Dr. Pickard continued to treat appellant. In November 2012, OWCP referred appellant to
Dr. Robert E. Liebenberg, a Board-certified orthopedic surgeon, for an impartial evaluation. The
record includes an ME023 form and screen shots of bypassed physicians.

3

Appellant was initially referred to Dr. Stanley Askin. Counsel informed OWCP that Dr. Askin had recently
examined appellant’s husband, and the impartial evaluation was rescheduled with Dr. Greene.

5

In a January 22, 2013 report, Dr. Liebenberg noted appellant’s description of the
employment injury and her complaint of radiating low back pain and pain in the upper back
between her shoulders. He reviewed the medical evidence and provided physical examination
findings. Dr. Liebenberg diagnosed pain syndrome involving the thoracic and lumbar spine
associated with degenerative disc disease, and sprain of trapezius and lumbar spine, resolved.
He disagreed with Dr. Greene’s conclusion that appellant suffered an aggravation of
degenerative disc disease on February 8, 2010. Dr. Liebenberg advised that there was no need
for continued therapy, and that there was no evidence that an aggravation of degenerative disc
disease occurred in January 2011. He advised that appellant could perform her usual job without
restrictions.
In separate decisions dated February 12, 2013, OWCP found the weight of the medical
evidence rested with the opinion of Dr. Liebenberg and terminated appellant’s medical benefits
effective that day and denied that she sustained a recurrence of disability beginning
January 18, 2011.
Appellant, through counsel, timely requested a hearing from both decisions. In treatment
notes dated January 29 to March 8, 2013, Dr. Pickard described her treatment and advised that
she was unable to perform her preinjury job.
In an August 8, 2013 decision, the hearing representative affirmed the February 12, 2013
decision that terminated medical benefits. However, she set aside the February 12, 2013
decision denying a January 2011 recurrence and directed OWCP to seek a supplemental report
from Dr. Liebenberg regarding whether appellant sustained a recurrence of disability.4
In a September 10, 2013 report, Dr. Liebenberg advised that appellant did not experience
a recurrence of disability on January 18, 2011 due to the accepted conditions. He indicated that
she told him that she stopped work due to pain but not because of an injury. Dr. Liebenberg
stated that, although appellant had ongoing degenerative disc disease, a review of the medical
records proceeding and subsequent to the claimed recurrence, did not reveal any significant
difference in symptoms or signs, and that there were no objective differences on imaging studies
of significance. He concluded that, to a reasonable degree of medical certainty, she did not
sustain a recurrence of disability on January 18, 2011.
On September 26, 2013 OWCP wrote Dr. Liebenberg notifying him that a temporary
aggravation of preexisting degenerative arthritis of the lumbar spine had been accepted and
asked him to address whether appellant experienced a recurrence of disability due to any
employment-related condition. Dr. Liebenberg did not respond.5
In a December 16, 2013 decision, OWCP found that the weight of the medical evidence
rested with Dr. Liebenberg’s opinion and denied that appellant sustained a recurrence of
disability on January 18, 2011.
4

Appellant did not file an appeal with the Board regarding the hearing representative’s finding that OWCP
properly terminated appellant’s medical benefits.
5

Dr. Liebenberg’s office indicated that he was retiring.

6

Appellant, through counsel, timely requested a hearing. In an April 2, 2014 decision, the
hearing representative found the case not in posture for decision and vacated the December 16,
2013 decision. She found that OWCP did not obtain sufficient clarification from Dr. Liebenberg
and therefore, a new referee examination was in order.
On April 10, 2014 OWCP referred appellant, along with a medical conflict statement, a
set of questions, a statement of accepted facts, and the medical record, to Dr. Ronald N.
Rosenfeld, for an impartial evaluation. An OWCP ME023 form and bypass log were found in
the record. The latter indicated that two physicians were bypassed, and reasons for the bypasses
were provided.
In a May 7, 2014 report, Dr. Rosenfeld noted the history of injury, his review of the
conflict statement, statement of accepted facts, and medical record. He described appellant’s
complaints of lower back and left shoulder blade pain, and pain that radiated into both lower
legs. Dr. Rosenfeld noted that she maintained that there had been no significant change in her
symptoms since their onset in 2010. He described physical examination findings, noting that
appellant walked without the use of any external ambulatory supports and was not wearing
braces. Dr. Rosenfeld indicated that she was tender to palpation at multiple locations, including
the intrascapular paraspinal muscles, the midline lumbar area at approximately L4-5, and over
the posterior superior iliac spine on the left. He found no palpable muscle spasm at any location.
Voluntary cervical range of motion was unrestricted, and Spurling’s and foraminal compression
tests were negative. Shoulder range of motion was well maintained bilaterally. Appellant
reported lower back pain at the end range of movement of the lumbar spine, especially on
forward flexion. Hip rotation was diminished and produced complaints of groin pain.
Dr. Rosenfeld advised that, on questioning, appellant indicated that her hip motion had been
restricted for years. She refused to perform squatting maneuvers. Heel and toe walking were
performed without difficulty or sign of motor weakness, and straight leg raising was negative at
70 degrees although appellant did report some posterior thigh tightness bilaterally.
Dr. Rosenfeld found that deep tendon reflexes and motor strength appeared fully intact in
all extremities. Sensory examination was reported to be decreased for light touch and pinprick
over the lateral aspect of the left calf. No other sensory deficits were found. Appellant’s
circumferential mid-calf measurements were bilaterally equal, and there was no evidence of
muscle atrophy, fasciculation, or clonus. Dr. Rosenfeld indicated that the remainder of her
physical examination was noncontributory. He discussed the conflict in medical evidence and
accepted conditions. Dr. Rosenfeld advised that there was no clinical evidence on examination
of the accepted thoracic, lumbar, and trapezius sprains. In regard to the temporary aggravation
of spinal arthritis, he advised that there was no evidence on physical examination or review of
diagnostic studies to indicate that the aggravation persisted, opining that appellant’s ongoing
complaints of back pain would not be the result of a temporary aggravation of underlying
arthritis. Dr. Rosenfeld further opined that the cause of her current left-sided complaints was
undetermined but did not seem to be related to the February 8, 2010 injury, noting that her initial
complaints were right-sided. He advised that there did not appear to be a specific event that
occurred in January 2011 to explain appellant’s increased complaints such that she could not
continue to work, noting that she had been working since shortly after the February 2010 injury.

7

Dr. Rosenfeld voiced his agreement with Dr. Valentino’s opinion that appellant did not
sustain a recurrence of disability in January 2011 as a result of the February 8, 2010 injury and
that she was capable of returning to her previous duties without limitation as regard to the
injuries sustained on February 8, 2010. He concluded that all accepted conditions had healed
and appellant had recovered from the injuries sustained on February 8, 2010, based upon the
history provided by appellant, the objective findings noted during his physical examination, and
his review of the medical record.
By decision dated May 22, 2014, OWCP found the weight of the medical evidence rested
with the opinion of Dr. Rosenfeld and denied that appellant sustained a recurrence of disability
on January 18, 2011. Appellant, through counsel, timely requested a hearing.
The hearing was held on October 27, 2014. Counsel asserted that Dr. Rosenfeld was not
properly selected as the referee physician because the record did not contain bypass screen shots.
He also maintained that Dr. Rosenfeld’s report was not sufficiently reasoned to constitute the
weight of the medical evidence, such that a conflict remained.
On December 9, 2014 an OWCP hearing representative found that OWCP followed
proper procedure in selecting Dr. Rosenfeld under its Medical Management Application (MMA),
noting that the record contained a properly executed OWCP ME023 form and that the record
provided sufficient reasons for the physicians who were bypassed. He afforded special weight to
the opinion of Dr. Rosenfeld, finding that the physician provided sufficient supportive medical
rationale regarding his conclusion that appellant did not establish a recurrence of disability on
January 18, 2011, and affirmed the May 22, 2014 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.7
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to

6

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

7

Id.

8

establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty.8
Section 8123(a) of FECA 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.9 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 OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. 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.10 When there exist 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
upon a proper factual background, must be given special weight.11
ANALYSIS
The Board finds that appellant did not establish that she sustained a recurrence of
disability on January 18, 2011 causally related to a February 8, 2010 employment injury. The
accepted conditions in this case are sprain of back, thoracic region; sprain of back, lumbar
region; sprain of trapezius, bilateral, and temporary aggravation of degenerative arthritis at L3-4
and L4-5.
Following an involved history described above, in April 2014 OWCP determined that a
conflict in medical evidence had been created between the opinions of appellant’s attending
physicians and Dr. Valentino regarding whether appellant’s work stoppage in January 2011 was
caused by the February 8, 2010 injury, whether she still had residuals of the work injury, and
what were the injury-related diagnoses. OWCP ultimately referred appellant, along with a
medical conflict statement, a set of questions, a statement of accepted facts, and the medical
record, to Dr. Rosenfeld, for an impartial evaluation.
Contrary to the arguments of counsel on appeal, the Board finds that Dr. Rosenfeld’s
detailed and well reasoned May 7, 2014 report is entitled to the special weight afforded an
impartial medical examiner.12 In his report, Dr. Rosenfeld advised that there did not appear to be
a specific event that occurred in January 2011 to explain appellant’s increased complaints such
that she could not continue to work, noting that she had been working since shortly after the
February 2010 injury. He voiced his agreement with Dr. Valentino’s opinion that appellant did
8

J. F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see
also Terry R. Hedman, 38 ECAB 222 (1986).
9

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

10

20 C.F.R. § 10.321.

11

V.G., 59 ECAB 635 (2008).

12

Id.

9

not sustain a recurrence of disability in January 2011 as a result of the February 8, 2010 injury
and that she was capable of returning to her previous duties without limitation as regard to the
injuries sustained on February 8, 2010. Dr. Rosenfeld concluded that all accepted conditions had
healed and appellant had recovered from the injuries sustained on February 8, 2010, based upon
the history provided by her, the objective findings noted during his physical examination, and his
review of the medical record. Based on this report, the Board finds that appellant has not met her
burden of proof to establish a recurrence of disability on January 18, 2011.
Appellant submitted no additional medical evidence after Dr. Rosenfeld’s report.
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 did not establish that she sustained a recurrence of
disability on January 18, 2011 causally related to her February 8, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2015
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
Irving, TX, Employer
__________________________________________

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)
)
)

Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1615
Issued: March 5, 2019

Case Submitted on the Record

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

JURISDICTION
On August 22, 2018 appellant, through counsel, filed a timely appeal from an April 19,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On September 28, 2014 appellant, then a 48-year-old legal assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed hip pain, pelvic pain, muscle fatigue, and
weakness as a result of performing her daily duties of pushing and pulling volumes of court cases
in excess of 150 files for weekly court proceedings and pushing a cart in excess of 50 pounds.
Appellant was treated by Dr. Ho Bing Patrick Oei, a Board-certified rheumatologist, on
August 8 and September 18, 2014, who noted that appellant had a history of unspecified
connective tissue disease characterized by muscle weakness, positive antinuclear antibodies
(ANA), persistently elevated creatine phosphokinase (CPK), osteoarthrtis of the left hip,
degenerative spine disease of the cervical and lumbar spine, and fibromyalgia. Dr. Oei diagnosed
unspecified diffuse connective tissue disease, fibromyalgia, myalgia, paresthesia, and
hyperesthesia. He opined that, although appellant had preexisting conditions of unspecified
connective tissue disease, osteoarthritis of the spine and hip, and fibromyalgia, her conditions were
exacerbated due to the stressful nature of her job. Dr. Oei opined that the impact of performing
her duties as a legal assistant caused an aggravation and exacerbation of unspecified connective
tissue disease, degenerative spine disease, osteoarthritis of her hip, and fibromyalgia.
By decision dated January 20, 2016, OWCP accepted appellant’s claim for the conditions
of aggravation of systemic involvement of connective tissue, unspecified.
On March 1, 2017 appellant filed a claim for a schedule award (Form CA-7). She
submitted a January 18, 2017 report from Dr. Helsten who noted her history of a work-related
condition and reviewed the medical record. Dr. Helsten noted examination findings of severe
distress with a pain level of 8 on a scale of 1 to 10, severe tenderness throughout her neck and
upper back, severe tenderness to the lumbar spine, normal sensation in the fingers of both hands,
weak grip in both hands bilaterally, normal ambulation, and severe tenderness to her right elbow,
and bilateral wrists, hips, and knees. He diagnosed aggravation of connective tissue disease.
Dr. Helsten noted that appellant reached maximum medical improvement on January 18, 2017.
He noted the Pain Disability Questionnaire (PDQ) score was 95. Dr. Helsten rated appellant’s
condition using the pain-related impairment system referenced in Chapter 3 of the American
Medical Association, Guides to the Evaluation of Permanent (A.M.A., Guides).3 He noted that
appellant had diffuse pain throughout her neck, back, and all four extremities. Dr. Helsten noted
that appellant’s PDQ score of 95 would provide for a one percent whole person impairment
pursuant to the A.M.A., Guides, however, because multiple areas were involved he assigned three
percent whole person impairment based on chronic ongoing severe pain.

3

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

2

In a March 25, 2017 report, an OWCP district medical adviser (DMA) opined that
appellant had not sustained an impairment due to the accepted condition. He indicated that
Dr. Helsten rated appellant for chronic pain using the pain chapter which was not allowed by
OWCP. The DMA noted that appellant had diffuse pain with no objective end organ damage. He
indicated that Dr. Oei diagnosed fibromyalgia. The DMA referenced the pain chapter of the
A.M.A., Guides on page 36, which provides “some conditions are associated with severe pain, but
are not amenable to conventional impairment ratings because they are not associated with
unequivocal objective factors. In these conditions, it is not possible to make impairment ratings
on the basis of objective factors. Common examples include headache disorders and
fibromyalgia.” The DMA further noted that page 447 of the A.M.A., Guides provides that,
although there are real symptoms in fibromyalgia syndrome, these conditions do not typically rise
to the level of ratable impairment. Therefore, he noted that there was no impairment for
fibromyalgia as it was “not possible to make impairment ratings on the basis of objective factors.”
With regard to the unspecified connective tissue disease, Dr. Helsten noted generalized weakness,
positive ANA, and persistently elevated CPK, but noted that these were nonspecific findings and
there was no specific objective anatomical basis upon which to rate appellant. With regard to the
neck and upper back, Dr. Oei’s August 8, 2014 report noted x-rays on May 9, 2014 revealed
degenerative cervical spine disease at C5-6 and C6-7, with no evidence of upper extremity sensory
or motor deficits related to the cervical spine and upper back. With regard to myositis, he found
no objective evidence of myositis on muscle biopsy, as such there would be no basis for an
impairment for this condition as there is no objective anatomical deficits related to the condition.
By decision dated May 5, 2017, OWCP denied appellant’s claim for a schedule award.
On February 20, 2018 appellant, through counsel, requested reconsideration. In a report
dated May 17, 2017, Dr. Helsten explained that Chapter 3 of the A.M.A., Guides provided for a
rating of permanent impairment due to chronic pain if there is no specific diagnosis elsewhere in
the A.M.A., Guides. Specifically, he noted the A.M.A., Guides recommend using the PDQ in
which appellant scored 95. Dr. Helsten indicated that the statutory provision provided impairment
ratings due to pain.
In a March 28, 2018 report, a DMA reviewed Dr. Helsten’s May 17, 2017 report. He noted
that Dr. Helsten had failed to provide valid range of motion measurements pursuant to the criteria
in the A.M.A., Guides. The medical adviser referenced FECA Bulletin No. 09-03 (March 15,
2009), Pain, which provided for a maximum of three percent impairment rating for nonspecific
pain that cannot be attributed to a condition addressed elsewhere in the A.M.A., Guides. With
regard to the diagnosed fibromyalgia, he noted findings of diffuse pain with no objective end organ
damage. The DMA advised that there was no impairment for fibromyalgia as it was not possible
to make impairment ratings on the basis of objective factors. He further noted that subjective
concerns (fatigue, difficulty concentrating, pain) if not accompanied by clinical signs are generally
not given separate impairment ratings. The DMA indicated that Dr. Helsten rated appellant for
chronic pain related to nonobjective conditions. Dr. Helsten determined a PDQ score of 95, noting
that pursuant to Table 3-1, page 40, this would equate to one percent whole person impairment
and because multiple areas were involved he assigned three percent whole person impairment.
The DMA noted that this rating was inconsistent with the A.M.A., Guides and therefore he found
no basis upon which to assign a rating of permanent impairment.

3

By decision dated April 19, 2018, OWCP denied modification of the May 5, 2017 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.6 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.7
It is well established that, in determining the amount of a schedule award for a member of
the body that sustained an employment-related permanent impairment, preexisting impairments of
the body are to be included.8 A schedule award is not payable under section 8107 of FECA for an
impairment of the whole person.9 A schedule award is also not payable for a member, function,
or organ of the body not specified in FECA or in the implementing regulations.10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

4

Id. at § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

Id. at Chapter 3.700.3(a)(3) (January 2010). See also Raymond E. Gwynn, 35 ECAB 247, 253 (1983).

9

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

10

See Tania R. Keka, 55 ECAB 354 (2004).

11

See supra note 7 at Chapter 2.808.6(f) (February 2013); see also Tommy R. Martin, 56 ECAB 273 (2005). .

4

OWCP accepted that appellant developed an aggravation of systemic involvement of
connective tissue due to her employment duties. On March 1, 2017 appellant filed a claim for a
schedule award.
In support of her claim appellant submitted reports by Dr. Helsten which provided ratings
of permanent impairment. The Board has reviewed Dr. Helsten’s reports dated January 18 and
May 17, 2017, and finds that Dr. Helsten has not adequately explained how his opinion as to the
extent of permanent impairment was reached in accordance with the relevant standards of the
A.M.A., Guides.12 In his reports, Dr. Helsten rated appellant’s condition using the pain-related
impairment system referenced in Chapter 3 of the A.M.A., Guides. He noted that appellant had
diffuse pain throughout her neck, back, and all four extremities. Dr. Helsten noted that appellant’s
PDQ score of 95 would provide for a one percent whole person impairment pursuant to the A.M.A.,
Guides, however, because multiple areas were involved he assigned three percent whole person
impairment based on chronic ongoing severe pain. However, his findings were nonspecific and
there was no objective anatomical basis upon which to rate appellant. Therefore, the Board finds
that Dr. Helsten did not properly follow the A.M.A., Guides. An attending physician’s report is
of little probative value when the A.M.A., Guides were not properly followed.13 Therefore the
reports of Dr. Helsten are insufficient to establish appellant’s claim for a schedule award.
The DMA properly utilized the findings in Dr. Helsten’s January 18 and May 17, 2017
reports, and correlated them to specific provisions in the A.M.A., Guides. He noted that appellant
had diffuse pain with no objective end organ damage. The DMA indicated that appellant had been
diagnosed with fibromyalgia, but page 36 of the A.M.A., Guides, provides that some conditions,
such as fibromyalgia, are associated with severe pain are not amenable to conventional impairment
ratings because they are not associated with unequivocal objective factors. In these conditions, it
is not possible to make impairment ratings on the basis of objective factors. The DMA further
noted that page 447 of the A.M.A., Guides provides that, although there are real symptoms in
fibromyalgia syndrome, these conditions do not typically rise to the level of ratable impairment.
Therefore, he noted that there was no impairment for fibromyalgia absent objective factors.
Appellant has submitted no medical evidence in conformance with the sixth edition of the
A.M.A., Guides, addressing whether she has employment-related permanent impairment of a
scheduled member or function of the body. Thus, the Board finds that the medical evidence of
record is insufficient to establish permanent impairment of a scheduled member or function of the
body causally related to the accepted conditions. Consequently, appellant has not met her burden
of proof.
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

12

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

13
See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 5, 2019
Washington, DC

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

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

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

6