United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Prairie Home, MO, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1223
Issued: November 21, 2016

Case Submitted on the Record

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

JURISDICTION
On May 20, 2016 appellant, through counsel, filed a timely appeal from a March 8, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period September 7, 2013 to August 18, 2014, causally related to her accepted employment
injury.
On appeal, counsel contends that the medical opinion of OWCP’s district medical adviser
(DMA) is not entitled to the weight of the medical evidence and that the DMA failed to consider
the entirety of appellant’s employment and was not based on an accurate factual history as he
ignored her accepted employment injury. Alternatively, he maintains that there is a conflict in
medical opinion between the DMA and her attending physician regarding authorization of the
surgery.
FACTUAL HISTORY
On April 1, 2014 appellant, then a 62-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she had right upper extremity cervical radiculopathy that
worsened as a result of repetitive lifting, reaching, and twisting at work. She first became aware
of her condition and its relation to her employment on July 25, 2008. Appellant stopped work on
June 21, 2014. In an accompanying letter dated April 8, 2015, she described her repetitive work
duties which involved lifting, casing mail, pulling down cases, loading her vehicle, and grasping
one to three days a week as a part-time employee and later five to six days a week as a full-time
employee.
In a December 17, 2013 letter, Dr. Jeffrey W. Parker, an attending Board-certified
orthopedic surgeon, diagnosed cervical spondylosis due to a disc protrusion at C6-7 on the left.
He noted appellant’s mild left upper extremity radicular complaints. Dr. Parker also noted that a
cervical magnetic resonance imaging scan performed prior to her successful cervical fusion on
August 15, 2013 revealed significant degeneration at C6-7 with severe bilateral neuroforaminal
stenosis at that level. He opined that appellant’s rural carrier work caused her significant neck
and right arm complaints and caused the diagnosed cervical condition. Dr. Parker related that,
while no one injury accounted for her disc degeneration, it certainly exacerbated her preexisting
cervical stenosis. He concluded that this radiculopathy prompted appellant’s August 15, 2013
surgery.
On July 15, 2014 OWCP accepted appellant’s claim for aggravation of spinal stenosis in
the cervical region. It noted that her case would be reviewed by its DMA to determine whether
her surgery should be authorized.
On August 10, 2014 an DMA reviewed the medical record and advised that OWCP could
not accept appellant’s claim for cervical spinal stenosis or authorize her August 15, 2013
surgery. He reasoned that her medical records indicated that she had left arm symptoms when
she was examined on July 24, 2008 while hospital records dated August 15, 2013 revealed that
she had right arm radicular symptoms. The DMA noted that radicular symptoms changing
sidedness implied an intervening causation event that had occurred since appellant’s July 24,
2008 evaluation. He concluded that it was not medically probable that her so-called right

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radicular symptoms leading to her August 15, 2013 neck surgery had anything to do with the
fleeting medical interactions that occurred in July 2008.
On August 18, 2014 appellant filed claims (Forms CA-7) for leave without pay taken
from September 7, 2013 to August 18, 2014. On the form, the employing establishment noted
that she had retired effective April 23, 2014.
By letter dated August 29, 2014, OWCP advised appellant that medical information was
required before her wage-loss disability claim could be processed. It requested a medical
opinion from her physician to include a history of injury and a thorough explanation with
objective findings as to how her condition had worsened such that she was no longer able to
perform the duties of her position when she stopped work on September 7, 2013. Appellant was
afforded 30 days to submit the requested medical information.
In an October 6, 2014 letter, Dr. Parker noted that appellant had sustained a work-related
cervical spine injury for which she underwent a cervical fusion on August 15, 2013. He noted
that, unfortunately, she had continued pain in her cervical region. Radiographs revealed
pseudoarthrosis at the fused level. Dr. Parker noted that while appellant’s pain was not severe
enough to consider refusion, she could not resume her previous job or any gainful employment.
He advised that any work that involved pushing, pulling, or lifting would cause pain. Dr. Parker
noted that even light office work would cause pain.
In a January 26, 2015 decision, OWCP denied appellant’s claim for wage-loss
compensation for the period September 7, 2013 to August 18, 2014. It found that Dr. Parker’s
October 6, 2014 report lacked objective findings and rationale to establish that she was totally
disabled during the claimed period due to her accepted employment injury. OWCP denied
authorization for appellant’s August 15, 2013 cervical fusion based on the medical opinion of its
DMA.
By letter dated and received on January 13, 2016, appellant, through counsel, requested
reconsideration. Counsel contended that her cervical surgery rendered her disabled from her
rural carrier position. He asserted that the DMA’s opinion was not based on a complete and
accurate factual or medical history as he misunderstood that appellant’s accepted cervical
condition was caused by an injury suffered on July 25, 2008 and not by the work duties she
performed until she stopped work in 2012. Counsel also asserted that, since the DMA attempted
to establish that she had not sustained a work-related injury, he did not address the issue of
whether her cervical surgery was necessary. He maintained that there was a conflict in medical
opinion between the DMA and Dr. Parker regarding this matter.
Appellant submitted various reports, diagnostic studies, treatment notes, prescriptions,
and progress notes dated May 12, 1980 to August 16, 2013 from her physicians, a nurse, and
nurse practitioners. The reports provided examination findings and addressed her kidney, heart,
bladder, breast, cervical, upper extremity, gastrointestinal, hernia, back, right elbow, pelvis,
cervix, colon, left hand, emotional, pulmonary, thyroid, uterine, varicose vein, and bone
conditions.

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Appellant also submitted various diagnostic studies, consultation notes, reports,
laboratory test results, progress notes, prescriptions and medication lists dated October 14, 2013
to December 28, 2015 from her physicians. The reports provided her history of injury and
examination findings and addressed her back, varicose veins, bilateral feet, heart, emotional,
urinary, bilateral leg, bone, breast, pulmonary, left arm, neck, right wrist, colon, and sinus
conditions.
In reports dated September 6 to October 14, 2013, Dr. Parker addressed appellant’s
cervical condition, resultant surgery, and work capacity. In an August 15, 2013 history and
physical report, he noted her history and provided findings. Dr. Parker reported an impression of
severe cervical spondylosis at C6-7 with severe right upper extremity radicular complaints, and
bilateral foraminal stenosis at C6-7. He noted that appellant had failed nonoperative care and an
epidural, and had participated in therapy, but was quite incapacitated with pain. In an August 15,
2013 operative report, Dr. Parker indicated that she had undergone a C6-7 anterior cervical
discectomy with bilateral foraminotomy, C6-7 anterior cervical arthrodesis, right anterior iliac
crest bone marrow aspiration, and anterior cervical instrumentation at C6-7 to treat her severe
cervical spondylosis at C6-7 with bilateral neural foraminal stenosis. In reports dated August 16,
September 6, and October 14, 2013, he noted that appellant was not having issues following her
August 15, 2013 cervical surgery with the exception of aches and pain. Dr. Parker reported an
essentially normal physical and neurological examination of her neck with the exception of mild
limitation of motion. During his October 2013 examination, he advised that appellant could
gradually increase her activities as pain allowed and that she could not return to work until her
next evaluation in two months. On December 18, 2013 Dr. Parker examined her and provided an
impression of possible signs of early pseudoarthrosis at C6-7, which he believed was probably
due to nicotine usage.
By decision dated March 8, 2016, OWCP denied modification of the January 26, 2015
decision. It found that the medical evidence submitted was insufficient to establish that
appellant’s disability from September 7, 2013 to August 18, 2014 was causally related to her
accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury.3 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative, and substantial medical opinion evidence.4 Findings on
examination and a physician’s opinion, supported by medical rationale, are needed to show how
the injury caused the employee’s disability for his or her particular work.5 For each period of
3

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Dean E. Pierce, 40 ECAB 1249 (1989).

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disability claimed, the employee must establish that he or she was disabled for work as a result of
the accepted employment injury.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.6
When there are opposing reports of virtually equal weight and rationale, the case must be
referred to an impartial medical specialist to resolve the conflict of medical evidence.7
ANALYSIS
OWCP accepted appellant’s claim for an aggravation of spinal stenosis in the cervical
region. It denied her claim for wage-loss compensation for the period September 7, 2013 to
August 18, 2014. Appellant has the burden of proof to establish by the weight of the substantial,
reliable, and probative evidence, a causal relationship between her claimed disability for that
period and the accepted conditions.8 The Board finds that she has failed to submit sufficient
medical evidence to establish employment-related disability for the period claimed due to her
accepted injury.9
Appellant submitted reports from Dr. Parker regarding treatment of her accepted cervical
condition following surgery and her work capacity. In an October 14, 2013 report, Dr. Parker
found that, while she could gradually increase her activities as pain allowed, she could not return
to work until her next evaluation in two months. Although he opined that appellant was totally
disabled from work, his opinion is conclusory in nature, and fails to explain in detail how the
accepted medical condition was responsible for her disability.10 Dr. Parker’s December 18, 2013
report provided an impression of possible signs of early pseudoarthrosis at C6-7, which he
believed was probably due to nicotine usage. He did not attribute appellant’s cervical condition
to the accepted condition. Dr. Parker’s remaining reports addressed her cervical conditions,
August 15, 2013 cervical surgery, and restrictions, but failed to offer a medical opinion
addressing whether the diagnosed conditions and any resultant total disability during the claimed
period were causally related to the accepted employment injury. Medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.11 Although the record indicates that appellant had disability due
to her August 15, 2013 cervical surgery, the Board notes that OWCP did not authorize or accept
6

Amelia S. Jefferson, supra note 4.

7

William C. Bush, 40 ECAB 1064, 1075 (1989).

8

Amelia S. Jefferson, supra note 4.

9

Alfredo Rodriguez, 47 ECAB 437 (1996).

10

See J.J., Docket No. 15-1329 (issued December 18, 2015).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

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the surgery as causally related to appellant’s employment12 and Dr. Parker has not provided a
reasoned medical explanation sufficient to show that the surgery was necessitated by the
accepted condition.13
The various diagnostic studies, consultation notes, reports, laboratory test results,
progress notes, prescriptions, and medication lists dated October 14, 2013 to December 28, 2015
are of limited probative value as they do not provide a medical opinion addressing whether
appellant’s diagnosed medical conditions and any resultant total disability were causally related
to the accepted work injury.14
The remainder of the medical evidence, consisting of diagnostic studies, treatment notes,
prescriptions, and progress notes from May 12, 1980 to August 16, 2013, is of limited probative
value as it predates the claimed period of total disability and does not relate any condition or
disability to the established employment injury.
For these reasons, the medical evidence of record does not establish appellant’s claim for
total disability from September 7, 2013 to August 18, 2014.
On appeal, counsel contends that the medical opinion of OWCP’s DMA that appellant’s
August 15, 2015 cervical surgery and resultant disability were not causally related to her federal
employment should not be entitled to the weight of the medical evidence. He asserts that the
DMA failed to consider the entirety of her employment and was not based on an accurate factual
history. Counsel contends that the DMA ignored appellant’s accepted employment condition.
Alternatively, he maintains that there is a conflict in medical opinion between the DMA and
appellant’s attending physician regarding authorization of the surgery. As noted above, appellant
has failed to submit rationalized medical evidence sufficient to support her allegation that her
cervical surgery and resultant total disability from September 7, 2013 to August 18, 2014 were
due to her accepted employment condition, and thus failed to meet her burden of proof and failed
to create a conflict in medical evidence.15
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.

12

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).
13

Amelia S. Jefferson, supra note 4. See also George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board
found that a medical opinion not fortified by medical rationale is of little probative value).
14

Supra note 11.

15

Amelia S. Jefferson, supra note 4.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish wage-loss
compensation for the period September 7, 2013 to August 18, 2014 causally related to her
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
OFFICE OF INSURANCE PROGRAMS,
Washington, DC, Employer
__________________________________________

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

Docket No. 12-363
Issued: July 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2011 appellant filed a timely appeal from an October 28, 2011 merit
decision of the Office of Workers’ Compensation Programs denying her recurrence claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that her recurrence of disability on and
after January 13, 2003 was causally related to her accepted employment injury.
FACTUAL HISTORY
On November 17, 1992 appellant, then a 30-year-old office automation clerk, filed an
occupational disease claim attributing her bilateral wrist joint inflammation to her typing duties.
1

5 U.S.C. § 8101 et seq.

She indicated that she first became aware of the condition and the relationship to her job on
November 6, 1992. OWCP accepted the claim for bilateral/lateral epicondylitis and bilateral
carpal tunnel conditions.2 It authorized right wrist carpal tunnel release surgery which was
performed on March 1, 1994.3 Wage-loss compensation was paid through May 14, 1994.
Appellant resigned from the employing establishment in May 1994.4
On February 5, 2007 Dr. Scot Kampmann, a treating physician, conducted a physical
examination for an injury which had occurred in October 2006. He noted appellant’s medical
history which included an April 26, 2004 employment incident while working as a transportation
security officer and the onset of her neck, upper and mid-back symptoms in October 2006.
Dr. Kampmann diagnosed cervical sprain/strain, cervical intersegmental dysfunction, thoracic
sprain/strain, thoracic intersegmental dysfunction and lumbar intersegmental dysfunction which
he attributed to her October 2006 injury. He indicated that appellant had been partially disabled
for the period December 29, 2006 to January 23, 2007.
OWCP received a number of reports and progress notes from Dr. Shaheer Yousaf, a
treating Board-certified orthopedic surgeon, for treatment provided in March and April 2009.
Dr. Yousaf reported physical findings and noted a history of chronic pain since a November 20,
1992 employment injury. Diagnoses included cervical radiculitis, lumbar radiculitis, bilateral
patellofemoral syndrome, upper extremity pain and paresthesias and bilateral shoulder pain.
On April 21, 2009 appellant filed a claim for a recurrence of disability beginning
January 13, 2003 due to her accepted employment injury.
By letters dated December 14, 2009 and February 25, 2010, OWCP informed appellant of
the medical and factual evidence required to support a recurrence claim. The February 25, 2010
letter advised her to provide the requested information within 30 days.
In support of her claim, appellant submitted December 10, 2009 progress notes from
Dr. Yousaf who provided physical findings and noted appellant’s complaints of pain in her neck,
wrists, shoulders and lumbosacral spine. She also submitted a March 20, 2009 magnetic
resonance imaging (MRI) scan of the cervical and lumbar spine showing lumbar and cervical
disc herniations and a bulging disc at L5-S1.
On March 10, 2010 appellant attributed her chipped cervical disc and shoulder, lower
back and spine problems to her accepted bilateral carpal tunnel condition.
An April 16, 2010 electrodiagnostic study by Dr. Ahmed Kajafi, a reviewing physician,
revealed abnormal results. The findings are suggestive of neuropathy entrapment or carpal
tunnel syndrome and was suggestive subacute to chronic C5-6 bilateral radiculopathies.
2

On March 29, 1996 OWCP granted appellant a schedule award for a 24 percent impairment of the left upper
extremity. The period of the award was from February 16, 1996 to July 23, 1997.
3

The medical reports indicate the surgery was performed on the left wrist and not the right wrist.

4

On September 5, 2007 OWCP received medical and factual evidence regarding a back injury appellant sustained
while working for Southwest Airlines in October 2006.

2

By decision dated July 14, 2010, OWCP denied appellant’s recurrence claim.
Subsequent to the denial of her recurrence claim, OWCP received additional medical
evidence for the period December 10, 2009 to March 18, 2011 from Dr. Yousaf, who provided
physical findings and reported her complaints. A September 22, 2010 disability certificate was
also received from Dr. Yousaf which indicated that appellant could telework from home.
On May 20, 2011 appellant requested reconsideration.
By decision dated October 28, 2011, OWCP denied modification.5
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.6 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken and an
appropriate new claim should be filed.7
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.8
ANALYSIS
OWCP accepted appellant’s claim for bilateral/lateral epicondylitis and bilateral carpal
tunnel conditions. It paid wage-loss compensation until May 14, 1994. Appellant resigned from
the employing establishment in May 1994. By decision dated March 3, 1995, OWCP denied her
claim for wage-loss compensation after May 16, 1994. The issue is whether appellant has
established that she sustained a spontaneous recurrence of disability on and after January 13,
2003 due to her accepted bilateral/lateral epicondylitis and bilateral carpal tunnel condition. The
Board finds that she has failed to establish that her claim for a recurrence of disability on and
after January 13, 2003 was due to her accepted employment conditions.

5

The Board notes that, following the October 28, 2011 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997), Donald T.
Pippin, 54 ECAB 631 (2003).
8

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).

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In support of her claim, appellant submitted medical evidence from her treating
physician, Dr. Yousaf. In reports for treatment in 2009 through March 18, 2011, Dr. Yousaf
noted a November 1992 employment injury, provided physical findings and appellant’s current
complaints. He diagnosed cervical radiculitis, lumbar radiculitis, bilateral patellofemoral
syndrome, upper extremity pain and paresthesias and bilateral shoulder pain, but these conditions
have not been accepted by OWCP.9 Dr. Yousaf provided no supporting rationale explaining how
the conditions he diagnosed were a result of her accepted bilateral/lateral epicondylitis and
bilateral carpal tunnel condition. The Board has held that opinions unsupported by rationale are
entitled to little probative value.10 In addition, Dr. Yousaf does not address the impact of injuries
appellant sustained in 2004 and 2006 while working for a private employer. The Board has also
held that medical evidence based on an inaccurate or incomplete factual history is of diminished
probative value.11 The record contains a September 22, 2010 disability certificate in which he
requests appellant be allowed to telework from home. This certificate is of diminished probative
medical value as Dr. Yousaf did not explain how teleworking from home instead of going into
work was related to appellant’s accepted bilateral/lateral epicondylitis and bilateral carpal tunnel
conditions.12
Dr. Kajafi’s diagnostic test report of April 16, 2010 noted diagnoses but failed to provide
an opinion on causal relationship between the claimed period of disability and the accepted
condition. The Board has held that a physician’s opinion, which does not address causal
relationship, is of diminished probative value.13 Additionally, OWCP did not accept the
condition of subacute to chronic C5-6 bilateral radiculopathies. Thus, Dr. Kajafi’s report is
insufficient to establish appellant’s claim.
Appellant also submitted a February 5, 2007 report from Dr. Kampmann, diagnosing
cervical sprain/strain, cervical intersegmental dysfunction, thoracic sprain/strain, thoracic
intersegmental dysfunction and lumbar intersegmental dysfunction which he attributed to an
October 2006 injury. A recurrence is defined as a spontaneous change in a medical condition
resulting from a previous injury without an intervening injury or new exposure to the work
environment that caused the illness.14 Here, Dr. Kampann attributed appellant’s partial disability
for December 29, 2006 to January 23, 2007 to an October 2006 injury, thereby, implicating a
9

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not accepted
by OWCP as being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship).
10

T.M., Docket No. 08-975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

M.W., 57 ECAB 710 (2006); Cecelia M. Corley, 56 ECAB 662 (2005).

12

See A.F., 59 ECAB 714 (2008); Robert Broome, 55 ECAB 339 (2004); Michael E. Smith, 50 ECAB 313 (1999)
(medical opinion, which does not offer any opinion regarding the cause of an employee’s condition, is of limited
probative value).
13

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, supra note 8 (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
14

K.S., Docket No. 08-2105 (issued February 11, 2009); J.F., 58 ECAB 124 (2006); Theresa L. Andrews, 55
ECAB 719 (2004).

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new injury rather than a spontaneous recurrence of disability from the accepted injury. The
Board finds that Dr. Kampmann’s report is insufficient to establish that appellant’s recurrence of
disability was causally related to her accepted employment conditions.
It is appellant’s burden of proof to provide evidence from a qualified physician to support
the recurrence of total disability for any period of time. She failed to submit rationalized medical
evidence establishing that her claimed recurrence of disability commencing January 13, 2003
was causally related to the accepted employment conditions and therefore OWCP properly
denied her claim for compensation.
The Board therefore affirms the October 28, 2011 OWCP decision concerning the denial
of compensation based on a recurrence of her work-related disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on and after January 13, 2003 causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2011 is affirmed.
Issued: July 9, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF STATE, CHICAGO
PASSPORT AGENCY, Chicago, IL, Employer
__________________________________________

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

Docket No. 17-0827
Issued: April 10, 2018

Case Submitted on the Record

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

JURISDICTION
On March 5, 2017 appellant filed a timely appeal from a February 28, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of his left
upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On February 4, 2010 appellant, then a 51-year-old operations officer, filed a traumatic
injury claim (Form CA-1) alleging that on January 26, 2010 he sustained left shoulder, neck, and
back conditions due to being assaulted by a security guard who was a contract employee of the
1

5 U.S.C. § 8101 et seq.

employing establishment. He stopped work on January 27, 2010 and returned to work on
January 28, 2010.
OWCP initially accepted appellant’s claim for contusion of his left shoulder and upper
arm.

2

On October 18, 2010 Dr. Guido Marra, an attending Board-certified orthopedic surgeon,
performed OWCP-approved left shoulder surgery, including arthroscopic subacromial
decompression and arthroscopic rotator cuff repair. In his report of the surgery, Dr. Marra noted
that he removed approximately seven to eight millimeters of appellant’s left distal clavicle to create
a one millimeter space between the end of his collar bone and the medial aspect of his left
acromion.
On November 23, 2010 OWCP expanded the accepted conditions to include left shoulder
impingement syndrome.
Appellant received periodic treatment for his left shoulder condition from Dr. Marra. The
findings of a July 26, 2013 magnetic resonance imaging (MRI) scan of his left shoulder showed
mild supraspinatus tendinosis and lesser infraspinatus tendinosis without evidence of new rotator
cuff tear or retear of prior rotator cuff tear. In January 2015, appellant began to be seen by
Dr. Joseph Centano, a Board-certified orthopedic surgeon, to whom he complained of continuing
left shoulder pain.
On April 30, 2015 appellant filed a claim for compensation (Form CA-7) seeking a
schedule award due to his accepted employment conditions.
In a letter dated May 4, 2015, OWCP requested that appellant submit additional factual
and medical evidence in support of his schedule award claim, including a medical report containing
a permanent impairment rating derived in accordance with the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3
Due to the absence of a permanent impairment rating in the case record, OWCP referred
appellant for a second opinion examination to Dr. Aubrey A. Swartz, a Board-certified orthopedic
surgeon. It requested that Dr. Swartz examine appellant and provide an opinion regarding whether
he had permanent impairment of a scheduled member under the standards of the sixth edition of
the A.M.A., Guides.

2

Appellant periodically attended medical appointments related to his accepted employment-related medical
condition and, beginning April 22, 2010, he received intermittent disability compensation on the daily rolls for work
hours he lost due to these appointments.
3

A.M.A., Guides (6th ed. 2009). In the July 30, 2015 statement of accepted facts (SOAF) provided to Dr. Swartz,
OWCP advised that appellant filed a separate claim in November 2013 (OWCP File No. xxxxxx674) which was
accepted for right carpal tunnel syndrome. The SOAF also indicated that appellant underwent right carpal tunnel
release and median nerve block surgery on July 17, 2014. The Board notes that the present appeal only pertains to
appellant’s claim for left upper extremity permanent impairment.

2

In an August 14, 2015 report, Dr. Swartz discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date, including the
findings for left shoulder range of motion (ROM) testing. He opined that appellant’s date of
maximum medical improvement (MMI) with respect to his left shoulder was October 18, 2011,
one year after his left shoulder surgery. Dr. Swartz conducted a permanent impairment rating for
appellant’s left shoulder under the sixth edition of the A.M.A., Guides. He indicated that, based
on appellant’s lack of cooperation with the physical examination and his voluntary restriction, he
could not use the ROM method for evaluating permanent impairment. Dr. Swartz then applied the
diagnosis-based impairment (DBI) method of rating left shoulder permanent impairment by using
Table 15-5 (Shoulder Regional Grid) on page 402. He determined that appellant’s most impairing
left shoulder diagnosis was impingement syndrome, a class 1 condition which qualified him for a
one percent default value for left shoulder permanent impairment. Dr. Swartz determined that
appellant had a functional history grade modifier of 1 and a physical examination grade modifier
of 1, and he indicated that application of the net adjustment formula on page 411 did not result in
any movement from the default value of one percent for left shoulder permanent impairment.
Therefore, he concluded that appellant had one percent permanent impairment of his left shoulder
under the sixth edition of the A.M.A., Guides.
OWCP requested that Dr. Ellen Pichey, a Board-certified family practitioner and
occupational medicine physician serving as an OWCP medical adviser, review the medical
evidence of record including Dr. Swartz’ August 14, 2015 report. It asked Dr. Pichey to provide
an impairment rating for the permanent impairment of appellant’s left upper extremity under the
standards of the sixth edition of the A.M.A., Guides.
In a September 29, 2015 report, Dr. Pichey disagreed with Dr. Swartz’ assessment of the
permanent impairment of appellant’s left upper extremity. She also applied the DBI method for
evaluating permanent impairment but found that appellant’s most impairing left shoulder condition
was his acromioclavicular joint injury with distal clavicle resection. Dr. Pichey indicated that,
under Table 15-5 on page 403, this was a class 1 condition which qualified him for 10 percent
default value for left shoulder permanent impairment. She determined that appellant had a
functional history grade modifier of 1 and a physical examination grade modifier of 1, and she
indicated that application of the net adjustment formula did not result in any movement from the
default value of 10 percent for left shoulder permanent impairment. Dr. Pichey concluded that
appellant had 10 percent permanent impairment of his left upper extremity under the sixth edition
of the A.M.A., Guides.4
OWCP requested that Dr. Swartz review Dr. Pichey’s September 29, 2015 report and
comment on the discrepancy between his permanent impairment rating and that of Dr. Pichey.
In an October 26, 2015 report, Dr. Swartz advised that he agreed with Dr. Pichey’s use of
the distal clavicle resection to apply the DBI method of assessing of appellant’s left upper

4

Dr. Pichey opined that appellant reached MMI on August 14, 2015, the date of Dr. Swartz’ evaluation.

3

extremity permanent impairment.5 He indicated that he agreed with Dr. Pichey’s conclusion that
appellant had 10 percent permanent impairment of his left upper extremity under the sixth edition
of the A.M.A., Guides.
In a November 4, 2015 decision, OWCP granted appellant a schedule award for 10 percent
permanent impairment of his left upper extremity. The award ran for 31.2 weeks from August 14,
2015 to March 19, 2016 and was based on the permanent impairment rating of Dr. Pichey.
Appellant requested a telephone hearing with a representative of OWCP’s Branch of
Hearings and Review regarding the November 4, 2015 decision.
During the hearing held on July 11, 2016, appellant described his continuing medical
symptoms and asserted that he had 50 percent permanent impairment of his left upper extremity.
By September 2, 2016 decision, OWCP’s hearing representative affirmed OWCP’s
November 4, 2015 decision. The hearing representative found the opinion of the Dr. Pichey,
OWCP’s medical adviser, showed that appellant had 10 percent permanent impairment of his left
upper extremity under the standards of the sixth edition of the A.M.A., Guides.
On February 15, 2017 appellant requested reconsideration of the September 2, 2016
decision. In a statement accompanying his reconsideration request, he discussed his left upper
extremity symptoms/limitations and argued that he had more than 10 percent permanent
impairment of this extremity.6 Appellant submitted a November 23, 2016 report from
Dr. Centeno, who reported physical examination findings and discussed the treatment plan for his
upper extremity problems.
In a February 28, 2017 decision, OWCP denied modification of the September 2, 2016
decision. It again noted that the opinion of Dr. Pichey showed that appellant had 10 percent
permanent impairment of his left upper extremity.
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 Director of OWCP.7 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.8 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
5

Dr. Swartz noted that the report of the October 18, 2010 surgery showed that Dr. Marra removed approximately
seven to eight millimeters of appellant’s left distal clavicle to create a one millimeter space between the end of his
collar bone and the medial aspect of his left acromion.
6

Appellant also submitted a September 30, 2016 affidavit in which his mother discussed her observations about his
left upper extremity symptoms/limitations.
7

See 20 C.F.R. §§ 1.1-1.4.

8

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

4

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.9
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).10 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.11
ANALYSIS
The issue on appeal is whether appellant has met his burden of proof to establish more than
10 percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP had 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 the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.12 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.13 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

9

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

10
See 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).
11

Isidoro Rivera, 12 ECAB 348 (1961).

12

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

13

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

5

Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.14
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 February 28, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, 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.15
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 10, 2018
Washington, DC

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

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

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

14

Supra note 12.

15

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0193
Issued: May 1, 2019

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 November 5, 2018 appellant, through counsel, filed a timely appeal from an October 4,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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
Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated
March 13, 2019, the Board exercised its discretion and denied the request as his arguments on appeal could be
adequately addressed in a decision based on a review of the case as submitted on the record. Order Denying Request
for Oral Argument, Docket No. 19-0193 (issued March 13, 2019).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 31
percent permanent impairment of the left lower extremity, for which he previously received
schedule award compensation.4
FACTUAL HISTORY
On February 20, 2015 appellant, then a 65-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an acceleration of bilateral hip osteoarthritis
causally related to factors of his federal employment. On the reverse side of the claim form, the
employing establishment indicated that he had retired effective January 1, 2015. OWCP accepted
the claim for an aggravation of bilateral hip arthritis.
Appellant underwent a left hip arthroplasty on March 5, 2002 and a right hip arthroplasty
on February 8, 2011.
On December 20, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated December 27, 2016, OWCP requested that appellant submit
an impairment evaluation from his attending physician addressing the extent of his employmentrelated permanent impairment, if any, in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
Thereafter, appellant submitted an impairment evaluation dated July 21, 2016 from
Dr. Neil Allen, a Board-certified internist and neurologist. Dr. Allen diagnosed bilateral primary
arthritis and joint pain of the pelvic region and thigh. He applied the Hip Regional Grid set forth
in Table 16-4 on page 515 of the A.M.A., Guides to find 25 percent permanent impairment of the
right lower extremity and 37 percent permanent impairment of the left lower extremity.
On February 18, 2017 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), reviewed Dr. Allen’s findings and concluded that appellant
had 23 percent permanent impairment of the right lower extremity and 31 percent permanent
impairment of the left lower extremity.
OWCP determined that a conflict existed between Dr. Allen and Dr. Orenstein regarding
the extent of appellant’s bilateral lower extremity impairment. It referred appellant to Dr. Bruce C.
Summerville, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a report dated May 31, 2017, Dr. Summerville reviewed appellant’s work history and
history of bilateral hip arthroplasties. On examination of the left hip, he found mild tenderness to
4
OWCP granted appellant a schedule award for 23 percent permanent impairment of the right lower extremity and
31 percent permanent impairment of the left lower extremity. Appellant, through counsel, has only appealed the
finding of 31 percent permanent impairment of the left lower extremity. Consequently, the issue of the extent of his
right lower extremity impairment is not before the Board as this time. 20 C.F.R. § 501.2(c).
5

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

2

palpation and active range of motion (ROM) “to 50 degrees and passively to 100 degrees.”
Dr. Summerville further measured ROM of 20 degrees extension, 30 degrees internal rotation, 50
degrees eternal rotation, and 30 degrees abduction. He noted that x-rays showed excellent
alignment with no apparent loosening or osteolysis. Dr. Summerville found full strength for hip
flexion, abduction, and adduction and intact sensation of the lower extremities. For the left hip,
he identified the diagnosis as class 3 hip replacement using Table 16-4 on page 515 of the A.M.A.,
Guides, which yielded a default impairment value of 37 percent. In determining the impairment
class, Dr. Summerville noted that class 3 was used for total hip replacements with fair results, fair
position, mild instability and/or a mild motion deficit. He related that appellant had a fair result
from surgery “based on flexion between 50 and 79 degrees with all other motion measurements
within the normal range. Appellant was not rated as class 4 (moderate to severe motion deficit),
but motion was used as a nonkey adjustment factor in [p]hysical [e]xamination.” He applied grade
modifiers of one for functional history (GMFH) and two for physical examination (GMPE)
findings, and determined that a grade modifier for clinical studies (GMCS) was not applicable as
it was used to determine class placement. Dr. Summerville used the net adjustment formula to
find a total left lower extremity permanent impairment of 34 percent. He further found a right
lower extremity impairment of 21 percent.
On August 14, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as
a DMA, reviewed Dr. Summerville’s report and found that appellant had 31 percent permanent
impairment of the left lower extremity and 23 percent permanent impairment of the right lower
extremity. For the left lower extremity, he concurred with Dr. Summerville’s finding of a class 3
impairment, but determined that a GMPE was inapplicable as ROM had been used to determine
class placement. Dr. Katz applied the net adjustment formula, (GMFH - CDX), or (1-3) to find a
negative adjustment of two and thus 31 percent permanent impairment of the left lower extremity.
By decision dated August 15, 2017, OWCP granted appellant a schedule award for 23
percent permanent impairment of the right lower extremity and 31 percent permanent impairment
of the left lower extremity. The period of the award ran for 155.52 weeks from May 31, 2017 to
May 23, 2020.
On August 24, 2017 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
Following a preliminary review, by decision dated December 6, 2017, an OWCP hearing
representative vacated the August 15, 2017 decision. She found that Dr. Summerville as the
impartial medical examiner (IME) was responsible for resolving the conflict in medical opinion,
not the DMA. The hearing representative remanded the case for OWCP to obtain a supplemental
report from Dr. Summerville clarifying his impairment rating and also addressing whether
appellant’s bilateral total hip arthroplasties were causally related to his accepted employment
injury.
In a supplemental report dated January 19, 2018, Dr. Summerville concurred with
Dr. Katz’ finding of 31 percent permanent impairment of the left lower extremity. He advised that
Dr. Katz had properly found ROM could not be used as a grade modifier as it was a key factor in
reaching the class identification. Dr. Summerville opined that appellant’s total hip replacements

3

were causally related to his accepted employment injury. He found that appellant had reached
maximum medical improvement.
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a DMA, reviewed
Dr. Summerville’s report on February 5, 2018 and concurred with his findings. He noted that
Table 16-4 did not provide an alternative rating based on ROM for a hip arthroplasty.
By decision dated February 5, 2018, OWCP found that appellant had no more than the
previously awarded 23 percent permanent impairment of the right lower extremity and 31 percent
permanent impairment of the left lower extremity.
On February 15, 2018 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In a report dated July 8, 2018, Dr. Byron V. Hartunian, an orthopedic surgeon, reviewed
Dr. Summerville’s report and noted that he had measured 50 degrees of flexion. He opined that
appellant had class 4 impairment due to his left hip replacement, which yielded a default
impairment rating of 67 percent. Dr. Hartunian applied a GMFH of one and a GMPE of two for
findings other than ROM to find a net adjustment of negative three and a total left lower extremity
impairment of 59 percent.
At the hearing, held on July 25, 2018, counsel advised that he was challenging only the left
lower extremity impairment rating. He argued that Dr. Summerville had erred in identifying the
diagnosis as class 3 rather than class 4 as he found moderate motion loss. Counsel noted that he
had measured 50 degrees of flexion, which yielded moderation motion loss pursuant to Table 1624 on page 549.6
By decision dated October 4, 2018, OWCP’s hearing representative affirmed the
February 5, 2018 decision. She found that the opinion of Dr. Summerville constituted the weight
of the evidence and established that appellant had 23 percent permanent impairment of the right
lower extremity and 31 percent permanent impairment of the left lower extremity. The hearing
representative determined that Dr. Summerville had explained that he did not rate the impairment
as class 4 as the only abnormal ROM measurement was flexion. She noted that he also found good
alignment after arthroplasty with no evidence of loosening.
On appeal appellant, through counsel, argues that appellant is entitled to a greater award
for the left lower extremity based upon a class 4 placement, rather than class 3, for rating
appellant’s left total hip replacement based upon the finding of 50 degrees of active ROM of the
left hip.

6
Subsequent to the hearing, counsel resubmitted the July 8, 2018 report from Dr. Hartunian with some
typographical errors corrected.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left hip, the relevant portion of the leg for the present case, reference
is made to Table 16-4 (Hip Regional Grid) beginning on page 512.11 After the class of diagnosis
(CDX) is determined from the Hip Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.13
For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”14 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.15
When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the
medical evidence and the IME’s opinion requires clarification or elaboration, OWCP must secure
a supplemental report from the examiner for the purpose of correcting the defect in the original

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

A.M.A., Guides 509-11.

12

Id. at 515-22.

13

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

14

C.H., Docket No. 18-1065 (issued November 29, 2018).

15

W.M., Docket No. 18-0957 (issued October 15, 2018).

5

opinion.16 If the referral physician fails to respond or does not provide an adequate response,
OWCP should refer appellant for a new IME examination.17
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that a conflict arose between Dr. Allen, an attending
physician, and Dr. Orenstein, a DMA, regarding the extent of appellant’s permanent impairment
of the lower extremities. It referred him to Dr. Summerville, a Board-certified orthopedic surgeon,
for an impartial medical examination.
When a case is referred to an IME for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a prior factual and medical
background, must be given special weight.18 The Board finds, however, that Dr. Summerville’s
opinion is insufficiently reasoned to be entitled to the special weight accorded an IME.
Dr. Summerville evaluated appellant on May 31, 2017. On examination he found mild
tenderness to palpation of the left hip and ROM of 50 degrees flexion, 20 degrees extension, 30
degrees internal rotation, 50 degrees external rotation, and 30 degrees abduction. Dr. Summerville
determined that x-rays revealed good alignment after hip arthroplasty with no loosening or
osteolysis.
For the left lower extremity, Dr. Summerville identified the diagnosis as class 3 hip
replacement using the Hip Regional Grid set forth in Table 16-4 on page 515 of the A.M.A.,
Guides, which yielded a default impairment value of 37 percent. Table 16-4 provides a class 3
impairment with a default value of 37 percent for a fair result after a hip replacement with “fair
position, mild instability and/or mild motion deficit.” A class 4 impairment is categorized as a
poor result after a hip replacement with “poor position, moderate to severe instability, and/or
moderate to severe motion deficit.”
Dr. Summerville explained that he identified the impairment as class 3, for fair results with
mild motion loss, rather than class 4, for moderate to severe motion deficits, as all ROM
measurements were normal except for hip flexion. Under Table 16-24 on page 549 of the A.M.A,
Guides, Hip Motion Impairments, 50 degrees flexion constitutes a moderate impairment in ROM.
However, Dr. Summerville measured 20 degrees of extension, which also constitutes a moderate
ROM impairment under Table 16-24.19 Consequently, his placement of appellant in class 3, rather
than class 4 is insufficiently rationalized. In addition, Dr. Summerville provided no citation to the
16

P.E., Docket No. 18-0745 (issued February 6, 2019).

17

Supra note 10 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e)
(September 2010); see also R.W., Docket No. 18-1457 (issued February 1, 2019).
18

J.M., Docket No. 18-1387 (issued February 1, 2019).

19
The remaining ROM measurements, 30 degrees internal rotation, 50 degrees external rotation, and 30 degrees
abduction, yielded no impairment under Table 16-24.

6

A.M.A., Guides for use of ROM as a grade modifier as opposed to use in class assignment.
Therefore, the Board finds that his opinion is insufficient to resolve the conflict regarding the
extent of appellant’s left lower extremity permanent impairment.20
Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.21 As noted above, when it
obtains an opinion from an IME for the purpose of resolving a conflict in the medical evidence
and the IME’s opinion requires clarification or elaboration, it must secure a supplemental report
from the specialist to correct the defect in his original report.22 If the IME is unable to clarify or
elaborate on his original report or if his supplemental report does not sufficiently address the issues,
OWCP should refer the claimant to a second IME.23 Following such development as deemed
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

20

See R.B., Docket No. 17-1995 (issued August 13, 2018).

21

See K.S., Docket No. 18-0845 (issued October 26, 2018).

22

R.W., supra note 17.

23

See R.H., Docket No. 17-1903 (issued July 5, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the October 4, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: May 1, 2019
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Upland, CA, Employer
)
___________________________________________ )
A.K., Appellant

Appearances:

Docket No. 07-2270
Issued: April 16, 2008

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 6, 2007, which denied modification of a
January 5, 2007 decision denying his claim for an emotional condition. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On January 3, 2006 appellant, then a 50-year-old letter carrier, filed an occupational
disease claim, Form CA-2, alleging that he developed depression and anxiety due to increased
stress at work. He became aware of his condition on December 6, 2005. Appellant stopped
work on December 5, 2005.

In a December 30, 2005 statement, appellant indicated that in October 2005,
approximately 80 personal vehicles, including his own, were accidentally damaged by paint
overspray applied by a contractor for the employing establishment. He stated that on
November 19, 2005 his office had a “stand up” meeting to address the issue of the damaged
vehicles. During the meeting, appellant asked Michael S. Reading, the postmaster, about options
for recourse for those employees who chose not to use the car detailers provided by the
employing establishment. He alleged that Mr. Reading refused to answer his question and
instructed appellant to come to his office after the meeting to discuss the matter further.
Appellant requested that Mr. Reading answer the question during the meeting so that the other
employees could share the information. He alleged that Mr. Reading became loud and was
visibly agitated with intimidating body language and said “go to my office, I will talk to you
after the stand-up!” Appellant felt humiliated in front of his coworkers. After the meeting, he
met with Mr. Reading at his office and his demeanor was threatening. When appellant requested
that his wife accompany him, Mr. Reading yelled at her: “You’re not coming! He is going
alone!” Appellant was subsequently accompanied by a union representative at the meeting and
alleged that Mr. Reading was visibly upset, exhibited threatening mannerisms, bullied and
abused him. He alleged that on December 5, 2005, Mr. Reading improperly issued him a 14-day
suspension.
Appellant submitted several statements from coworkers who were present at the stand-up
meeting on November 19, 2005. They confirmed that he made an inquiry at the meeting
regarding the repair of the damaged vehicles and Mr. Reading instructed appellant to meet in his
office after the meeting to discuss the matter. He submitted a notice of 14-day suspension dated
December 5, 2005 for failure to follow instructions on November 19, 2005. The suspension
noted that appellant repeatedly interrupted the postmaster during the stand-up meeting and
refused the instruction of the postmaster to meet him in his office after the meeting. In a
December 19, 2005 note, Dr. Yin Hsiung Lai, a Board-certified family practitioner, stated that
after a job-related injury appellant was unable to work for 30 days.
The employing establishment submitted a January 6, 2006 statement from Mr. Reading
who noted that, on December 5, 2005, appellant received an administrative action based on his
failure to follow instructions on November 19, 2005. Mr. Reading noted that appellant attributed
his stress, depression and anxiety dated to November 19, 2005; however, appellant worked from
November 19 to December 5, 2005 without any mention of stress, anxiety or mental depression.
He stated that appellant stopped working after he received the administrative action.
Mr. Reading advised that appellant made a statement to Margo Vasquez, appellant’s supervisor,
on December 5, 2005, after he was issued the disciplinary action and jokingly requested a “time
off suspension.” He indicated that appellant was not concerned or stressed when he received the
administrative action from his supervisor. The employing establishment controverted the claim,
asserting that the disciplinary action was an administrative matter.
A November 22, 2005 investigative memorandum prepared by Ms. Vasquez noted that,
during an investigative interview, appellant asserted that on November 19, 2005 he followed
Mr. Reading’s instructions and reported to his office after the stand-up meeting. Appellant
indicated that he was aware that he was required to follow the instructions of his manager and
contended that he had followed instructions. He stated that he felt threatened by Mr. Reading
when he was instructed to go to his office after the meeting. Appellant stated that he was not

2

confrontational when he questioned Mr. Reading at the meeting; rather, he sought to obtain
complete information. Ms. Vasquez noted that during the interview, Mr. Reading stated that
appellant interrupted the stand-up meeting so frequently that it was necessary to ask him to
report to his office after the meeting.
In a March 16, 2006 decision, the Office denied appellant’s claim, finding that his
emotional condition did not arise in the performance of duty.
Appellant requested an oral hearing that was held on October 24, 2006. He submitted a
section of a union manual on discipline procedures. In an April 3, 2006 grievance resolution,
management agreed to rescind the December 5, 2005 14-day no time off suspension. The
grievance document did not make any findings with regard to whether management acted in
error. Appellant submitted a report from Dr. Donald B. Horowitz, a Board-certified psychiatrist
and neurologist, dated April 17, 2006. He was treated for depression and irritability which
occurred after he was issued a 14-day suspension on December 5, 2005. Dr. Horowitz diagnosed
major depression, single episode and post-traumatic stress reaction. In a statement dated
November 10, 2006, a union steward asserted that the 14-day suspension was abusive and was
ultimately rescinded.
By decision dated January 5, 2007, the hearing representative affirmed the March 16,
2006 decision of the Office, finding that appellant had not established any compensable
employment factors.
In a letter dated May 27, 2007, appellant requested reconsideration. He submitted a
duplicate copy of the December 5, 2005 notice of suspension.
In a June 6, 2007 decision, the Office denied modification of the January 5, 2007
decision.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

3

There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.5
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to his regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that he was harassed and humiliated by Mr. Reading, the postmaster,
on November 19, 2005, during a stand-up meeting which was held to address the recourse for
those employees whose automobiles had been damaged. During the meeting, Mr. Reading
became visibly agitated after appellant asked a question, refused to answer the question and
instructed appellant in a loud manner to “go to my office, I will talk to you after the stand-up!”
Appellant indicated that he felt humiliated in front of his coworkers. He also alleged that when
he presented to Mr. Reading’s office, the postmaster’s demeanor was threatening, he was visibly
upset and exhibited threatening mannerisms. To the extent that incidents alleged as constituting
harassment by a supervisor are established as occurring and arising from appellant’s performance
4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

4

of his regular duties, these could constitute employment factors.9 However, for harassment to
give rise to a compensable disability under the Act, there must be evidence that harassment did
in fact occur. Mere perceptions of harassment are not compensable under the Act.10
The factual evidence fails to support appellant’s allegation of harassment. An
investigative memorandum dated November 22, 2005, prepared by Ms. Vasquez, noted that
appellant interrupted the stand-up meeting and Mr. Reading found that it was necessary to ask
him to report to his office after the meeting to discuss the matter. Appellant acknowledged that
he interrupted the meeting with questions and when Mr. Reading indicated that he would address
his concerns in his office after the meeting, appellant persisted in further questioning the
postmaster.
General allegations of harassment are not sufficient.11 Appellant has not submitted
sufficient evidence to establish error or abuse by his supervisor.12 Although he alleged that his
supervisor harassed and humiliated him and engaged in actions which he believed constituted
harassment, he provided insufficient corroborating evidence or witness statements to establish
his allegations.13 Appellant submitted several witness statements from coworkers who were
present at the stand-up meeting. They generally confirmed that appellant questioned
Mr. Reading during the meeting and Mr. Reading instructed him to report to his office. These
statements, however, do no support that he was harassed by the postmaster. Rather, they confirm
that appellant repeatedly interrupted the meeting. As noted the investigative memorandum also
supports that appellant interrupted the stand-up meeting while Mr. Reading attempted to finish
his presentation. There is insufficient evidence to establish that Mr. Reading acted improperly in
light of appellant’s behavior. The Board notes that there is no evidence substantiating
appellant’s charges. Thus, appellant has not established a compensable employment factor under
the Act with respect to the claimed harassment.
To the extent that appellant alleged verbal abuse and threats by Mr. Reading, the Board
has recognized the compensability of verbal abuse in certain circumstances. This does not
imply, however, that every statement uttered in the workplace will give rise to coverage under
the Act.14 The Board finds that the facts of the case do not establish that appellant’s superior
threatened him or acted unreasonably. Appellant provided insufficient evidence to establish his
allegations.15 Mr. Reading denied that he threatened appellant in a hostile manner. There is no
9

See David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

10

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

11

See Paul Trotman-Hall, 45 ECAB 229 (1993).

12

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
13

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
14

Charles D. Edwards, 55 ECAB 258 (2004).

15

See William P. George, supra note 13.

5

corroborating evidence to support that Mr. Reading acted abusively. Appellant has not otherwise
shown how supervisory comments or actions rose to the level of verbal abuse or otherwise fell
within coverage of the Act.16
Other allegations by appellant relate to administrative or personnel actions. In
Thomas D. McEuen,17 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.18
Appellant’s allegation that he was improperly disciplined relates to an administrative or
personnel matter unrelated to the his regular or specially assigned duties and does not fall within
the coverage of the Act.19 Although the handling of disciplinary actions and evaluations are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.20 The record, as noted reveals that on November 19, 2005 appellant
interrupted Mr. Reading during the stand-up meeting. After Mr. Reading instructed appellant to
meet him in his office to further discuss the matter, appellant ignored the instruction and
persisted in questioning Mr. Reading.21 As a result, the postmaster disciplined appellant. The
record reflects that the 14-day suspension was rescinded on April 3, 2006 as part of the grievance
resolution process without any finding of blame or fault by either party. The fact that the matter
was rescinded does not establish that the postmaster’s action was erroneous.22 The grievance
resolution does not contain any finding that the disciplinary letter was issued in error. Appellant
has not established administrative error or abuse in the disciplinary action and it is not a
compensable factor.

16

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
17

See Thomas D. McEuen, supra note 6.

18

See Richard J. Dube, 42 ECAB 916, 920 (1991).

19

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
20

Id.

21

The supervisor’s instruction that appellant report to his office after the stand-up meeting would be considered
an administrative matter. See Kim Nguyen, 53 ECAB 127, 129 (2001).
22

See Linda K. Mitchell, 54 ECAB 748 (2003) (the mere fact that the employing establishment lessened a
disciplinary action did not establish that the employing establishment erred or acted in an abusive manner).

6

Consequently, appellant has not established his claim for an emotional condition.23
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 6 and January 5, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 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

23

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0600
Issued: July 5, 2017

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 January 23, 2017 appellant filed a timely appeal from a November 29, 2016 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of his left lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On September 24, 2015 appellant, then a 51-year-old tractor trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on that date he twisted his left knee while
unloading a trailer. On October 28, 2015 OWCP accepted appellant’s claim for unspecified tear
1

5 U.S.C. § 8101 et seq.

of unspecific meniscus left knee.
October 31, 2015.

The record indicates that appellant stopped work on

On December 2, 2015 appellant underwent surgery performed by Dr. Paul J. Sienkiewicz,
a Board-certified orthopedic surgeon. Dr. Sienkiewicz listed the procedure as “arthroscopy with
medial meniscectomy.” He noted mild synovitis throughout the knee with a small clear serous
effusion. Dr. Sienkiewicz noted mild degenerative changes in all three compartments, but saw
no exposed bone or large flaking off pieces. He noted that the anterior cruciate ligament and the
posterior cruciate ligament were intact, that the patella tracked normally, and ligaments were
stable in all directions. Dr. Sienkiewicz noted a flap tear of the posterior horn of the medial
meniscus.
Appellant returned to full-duty work on January 16, 2016.
On June 14, 2016 appellant filed a claim for a schedule award (Form CA-7). In support
of his claim, he submitted a May 24, 2016 progress report wherein Dr. Sienkiewicz indicated that
appellant’s left knee had healed following the medial meniscectomy and that he reached an end
point of healing with no recent change and no expected change in the immediate future.
Appellant noted that he was six months post left knee arthroscopy with meniscectomy for workrelated meniscus tear. Dr. Sienkiewicz reported that appellant had returned to full-duty work and
was doing well, although he had a few knee symptoms, including a slight feeling of looseness
and occasional medial pain. He noted that appellant walked with no limp and had knee motion
of 0 to 125 degrees on the left and 130 degrees on the right. Dr. Sienkiewicz further noted no
effusion, very minimal medial joint space tenderness, and stable ligaments. He opined that
appellant had five percent permanent impairment of the left knee related to residual symptoms
including a slight loss of range of motion, some difficulty squatting, and the loss of the meniscal
cartilage.
By letter dated June 28, 2016, OWCP asked Dr. Sienkiewicz to provide an impairment
rating utilizing the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th edition 2009) (hereinafter A.M.A., Guides).
In a July 12, 2016 note, Dr. Sienkiewicz indicated that appellant had reached maximum
medical improvement as of the date of his last visit on May 23, 2016. He indicated that appellant
had five percent permanent impairment of the left knee due to the employment-related injury of
September 24, 2015. Dr. Sienkiewicz noted that elements of impairment included pain,
weakness, stiffness, and loss of meniscal tissue due to a meniscal tear.
By memorandum dated September 24, 2015, OWCP requested that a district medical
adviser evaluate appellant’s claim under the A.M.A., Guides with regard to impairment to his left
lower extremity. In an October 18, 2016 response, the medical adviser opined that appellant had
two percent permanent impairment of the left lower extremity pursuant to the A.M.A., Guides,
Table 16-3, page 509. He noted that, although the operative report of December 2, 2015 listed
the procedure as an arthroscopy with medial meniscectomy, the body of the report clearly
indicated that appellant only underwent a partial medial meniscectomy.

2

By decision dated November 29, 2016, OWCP issued a schedule award for two percent
permanent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
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 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.4 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.5
The sixth edition requires identifying the impairment class for the diagnosed condition
Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).6 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.8
ANALYSIS
OWCP accepted appellant’s claim for tear of unspecified meniscus left knee. It issued a
schedule award for two percent permanent impairment of the left lower extremity based on the
opinion of OWCP’s medical adviser.
The Board finds that the case is not in posture for decision.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
6

A.M.A., Guides 494-531.

7

Id. at 521.

8

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

3

Appellant’s treating physician, Dr. Sienkiewicz, found that appellant had five percent
permanent impairment of the left lower extremity. With regard to knee impairment, the A.M.A.,
Guides provides a regional grid at Table 16-3.9 Dr. Sienkiewicz did not reference this table in
reaching his conclusion, nor did he make any other reference to the A.M.A., Guides. A
physician must support his impairment rating by specifically referencing tables or other
provisions of the A.M.A., Guides and explaining the application of the provisions.10 As
Dr. Sienkiewicz did not properly apply the A.M.A., Guides, his opinion on permanent
impairment is of diminished probative value.11
Consistent with its procedures,12 OWCP properly referred the matter to a district medical
adviser for an opinion regarding appellant’s permanent impairment in accordance with the sixth
edition of the A.M.A., Guides. In an October 18, 2016 opinion, the medical adviser indicated
that appellant had two percent permanent impairment of his left lower extremity. In reaching
this conclusion, he applied Table 16-3 of the A.M.A., Guides. Pursuant to Table 16-3, when
evaluating meniscal injury, different figures are applied depending on whether appellant
underwent a partial meniscectomy or a total meniscectomy. The medical adviser indicated that,
although Dr. Sienkiewicz’s operative report of December 2, 2015 noted that he had conducted an
arthroscopy with medial meniscectomy, the body of the operative report indicated that he only
conducted a partial medial meniscectomy. There is no rationale or explanation for this
conclusion as he did not explain how or why the operative report confirmed that the surgery
performed was limited to a partial medial meniscectomy.
The Board also finds that while the medical adviser concluded that appellant had two
percent permanent impairment of the left lower extremity pursuant to Table 16-3 of the A.M.A.,
Guides, he also failed to note and apply grade modifiers as required by the A.M.A., Guides.13
On remand the medical adviser must also explain how the grade modifiers apply to arrive at
appellant’s impairment rating. If the medical adviser determines that a second opinion
evaluation is necessary, OWCP shall refer appellant for a second opinion evaluation.14
The case will be remanded for OWCP to ask the medical adviser for clarification of his
opinion, as previously discussed. After such further development as is deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
9

A.M.A., Guides 509, Table 16-3; see also S.H., Docket No. 17-0174 (issued May 8, 2017).

10

T.M., Docket No. 15-1477 (issued October 22, 2015).

11

D.M., Docket No. 16-1166 (issued October 25, 2016).

12

Supra note 8.

13

See Section 16.3, A.M.A., Guides 515-30.

14

Supra note 8 at Chapter 2.810.9(b)(6) (June 2015).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2016 is set aside and the case is remanded for
further action consistent with this decision of the Board.
Issued: July 5, 2017
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

5