United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, MADIGAN ARMY
MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

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Appearances:
Howard L Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0555
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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. 3
ISSUE
The issue is whether appellant has established that the acceptance of her claim should be
expanded to include additional or consequential conditions of major depression and anxiety, or a
cognitive disorder as a result of her accepted November 21, 2013 employment injury.
FACTUAL HISTORY
On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right
shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which
had fallen from the printer while in the performance of duty. She did not initially stop work.
OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right
shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance
of the claim to include consequential conditions of right shoulder stress fracture and right shoulder
rotator cuff tear or rupture.4
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent
impairment of the right upper extremity for 37.44 weeks from April 12 through
December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of
October 15, 2017.
OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair
surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of
foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder
arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an
OWCP authorized surgery for removal of right support implant.
In a letter dated November 20, 2018 appellant, through counsel, requested that the
acceptance of appellant claim be expanded to include additional conditions of major depression
and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated
March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild
neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had
moderate-to-severe symptoms of depression that worsened during the holidays due to her
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

Appellant retired from the employing establishment effective April 30, 2015.

2

daughter’s death four years prior. He also related that it was possible that depression and chronic
pain from appellant’s industrial injury adversely affected her auditory working memory somewhat,
but would not account for her deficits in visual and spatial memory. OWCP also received a work
capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated
November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe
depression and anxiety, with chronic stress related to physical disability as a significant factor
contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions
form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified
orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder
condition.
On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified
psychiatrist, for a second opinion examination. It requested that he address whether she suffered
from an emotional condition that was a direct and natural result of her accepted work conditions.
OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was
an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or
permanently aggravated by appellant’s employment-related conditions. In a report dated
February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He
diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder,
recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain
persistent. Dr. Friedman opined that appellant did not suffer from an employment-related
emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her
employment injury and had not been aggravated by her accepted employment injury.
By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of
her claim to include major depression and anxiety, or a cognitive disorder as causally related to
her November 21, 2013 work injury.
In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist,
detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and
psychosocial factors.
On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019.
In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of
mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic
symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent
predominant pain. She opined that appellant “suffers from the consequences shoulder injury in
2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right
arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned
above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn
explained that the severity of these conditions had dramatically increased due to appellant’s pain,
loss of self-esteem after appellant stopped working, and financial worries. She noted that at the
time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with
Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by

3

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and
distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity
for functional cognitive capacity, and reduced her capacity to be gainfully employed.
By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved
conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of
whether appellant’s preexisting depression and anxiety, or cognitive impairment had been
aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and
remanded the case to OWCP for referral to an impartial medical examiner (IME).
On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF,
and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the
conflict in the medical opinion evidence between Drs. Honn and Friedman . Dr. Robinson was
asked by OWCP to address whether appellant had sustained any emotional condition that was a
natural and direct result of her accepted employment injury. OWCP also asked him to address
whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this
condition was temporary or permanent.
In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of
depression and worsening cognitive loss. Appellant related that she first became aware of her
emotional problems before she retired. According to her she had cognitive problems at the time
of her injury, which she described as lapses of memory such as being unable to recall personal data
or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive
disorder currently resolved, and history of panic disorder, currently in remission. He noted a
history of depression beginning in 1981 when appellant’s brother died. At the date of the
examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her
bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He
reported appellant’s cognitive functioning appeared normal during his examination and there was
no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson
noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic
attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted
work injuries because they tend to occur intermittently over the course of an individual’s life.
Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an
unknown cause, which he opined that was most likely biological.
By decision dated November 16, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include consequential conditions of major depression and anxiety, or a
cognitive disorder.

4

LEGAL PRECEDENT
When 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.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury. 8
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as causally related to the accepted
November 2, 2013 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders
had been aggravated by the November 21, 2013 employment injury, and its second opinion
5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020); T.E.,
Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo,
55 ECAB 200 (2004).
6

See D.E., id.; S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
8

B.P., Docket No. 19-1376 (issued January 4, 2021); K.S., Docket No. 17-1583 (issued May 10, 2018).

9

M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,
and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It
properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and
anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013
employment injury. He noted that her major depressive disorder began at the time of her brother’s
death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive
functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson
indicated that her cognitive problems began in 2014 and that they had been aggravated by her
anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated
to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to
occur intermittently over the course of an individual’s life and, thus, they were unrelated to her
work injury. He opined that the panic attacks were due to an unknown cause which he opined was
most likely biological.
The Board finds that Dr. Robinson’s impartial medical examination report represents the
special weight of the medical opinion evidence as his opinion is based on a proper factual and
medical history, and his report contained a detailed summary of appellant’s complex medical and
psychiatric history. Dr. Robinson addressed the medical records and provided his examination
findings to reach a reasoned conclusion regarding her employment-related conditions. 10 The
Board, therefore, finds that his opinion is entitled to the special weight accorded to an IME with
regard to the issue of whether acceptance of appellant’s claim should be expanded to include
depression and anxiety, or a cognitive disorder due to her accepted employment injury. 11
Consequently, appellant has not met her burden of proof to expand the accepted conditions of her
claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as a result of her accepted November 21,
2013 employment injury.

10
F.A., Docket No. 20-1652 (issued May 21, 2021); K.V., Docket No. 18-0947 (issued March 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
11

F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stone Mountain, GA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0210
Issued: July 3, 2018

Case Submitted on the Record

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

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from an August 25,
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 OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 2, 2015, pursuant to 5 U.S.C. § 8106(c)(2), for
refusing an offer of suitable work.
FACTUAL HISTORY
On February 4, 2011 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 4, 2011 she sustained a right knee injury when she
tripped on a box in a hallway at work and fell to the ground, landing on her knees. She stopped
work on February 4, 2011.
On April 1, 2011 OWCP accepted that appellant sustained contusions of both knees and
lower legs. Appellant received disability compensation on the daily rolls beginning
March 22, 2011.
On March 7, 2012 Dr. Phillip Langer, an attending Board-certified orthopedic surgeon,
performed an OWCP approved right knee surgery including anterior cruciate ligament
reconstruction, partial medial and lateral meniscectomy, chondroplasty with patella debridement,
and arthroscopic removal of loose bodies.3
On September 9, 2012 Dr. Langer released appellant to regular-duty work without
restrictions and, on September 10, 2012, she returned to such work for the employing
establishment. Appellant was seen on December 3, 2012 by Dr. Jeff Traub, an attending Boardcertified orthopedic surgeon. Dr. Traub provided work restrictions, including no standing, stair
climbing, mail truck driving, or mail delivery, and recommended that she have a 15- to 20-minute
break every 2 hours. On December 7, 2012 appellant returned to a sedentary light-duty job at the
employing establishment in accordance with these restrictions.
In early 2013, Dr. Traub advised that appellant had failed conservative treatment and
recommended that she undergo right total knee arthroplasty. Appellant stopped work on
March 26, 2013 and he performed an OWCP-approved right total knee arthroplasty on that date.4
On May 8, 2013 OWCP expanded the accepted conditions to include lateral meniscus tear
of the right knee, aggravation of right knee osteoarthritis, right knee sprain, and loose body of the
right knee.
In February 2014, OWCP referred appellant for a second opinion examination with
Dr. Eric S. Furie, a Board-certified orthopedic surgeon. It requested that he evaluate the nature of
her right knee condition and provide an opinion on her ability to work.

3

Appellant received disability compensation on the periodic rolls beginning April 8, 2012.

4
Appellant received total disability compensation on the daily rolls beginning March 26, 2013 and on the periodic
rolls beginning May 5, 2013.

2

In an April 8, 2014 report, Dr. Furie detailed the medical history of appellant’s right knee
condition and discussed the physical examination findings regarding her right knee, noting that
she had 110 degrees of motion in the knee. He diagnosed right knee osteoarthritis (status
postsurgery) and right knee medial collateral ligament sprain, and he determined that she could
work eight hours per day with restrictions, including lifting up to 25 pounds on a frequent basis
and up to 50 pounds on an occasional basis.
On June 6, 2014 the employing establishment offered appellant a full-time modified
position as a sales solution team member. The position involved contacting customers by
telephone (intermittently for six to eight hours per day), engaging in light data inputting
(intermittently for four hours), answering the telephone (intermittently for six to eight hours), and
engaging in back office administrative assistance duties (intermittently for eight hours). The
physical requirements of the position included sitting in an office chair with a supportive back and
occasionally standing (intermittently for eight hours), simple grasping and pushing/pulling a
computer mouse (intermittently for four to eight hours), fine manipulation of a keyboard
(intermittently for four to eight hours), and speaking on the telephone (intermittently for six to
eight hours).
In a June 13, 2014 report, Dr. Christopher R. Edwards, an attending Board-certified
internist, indicated that appellant was at maximum medical improvement (MMI) with respect to
her back condition.5 He noted that she underwent a functional capacity evaluation (FCE) on
June 10, 2014 which showed that she could return to restricted-duty work and he posited that she
could in fact return to restricted-duty work at the sedentary-to-moderate level.6
On June 16, 2014 Dr. Traub advised that appellant came in for follow-up treatment and
reported doing fairly well with respect to her right knee. He discussed her June 10, 2014 FCE,
noting that the evaluators assessed her right knee and back conditions and placed her in a sedentary
work category.
In a December 12, 2014 report, Dr. Traub indicated that appellant presented for follow-up
treatment and reported that she was off work “not because of [appellant’s] knee, but because of
her back.” He noted that she was status post right total knee replacement and indicated that “the
condition has resolved.” Dr. Traub advised that appellant was at the sedentary work level and
noted, with respect to her right knee, she could return to work with restrictions of no lifting more
than 10 pounds and no stooping, kneeling, or squatting. He indicated that, “[Appellant] is not
currently working because of her back and not because of her knee.”

5
In his June 13, 2014 report, Dr. Edwards mentioned that appellant underwent back surgery in 2013. The record
contains a statement of accepted facts (SOAF) which notes that, under claims other than the present claim, OWCP
accepted a left shoulder strain in 2002 and a herniated disc at L3-4 in 2013. The SOAF also indicates that appellant
had undergone OWCP-approved spinal fusion surgery at L3-4 and L4-5 on November 7, 2013 and the present case
record contains a report of this surgery which was performed by Dr. Edwards.
6

The record contains a copy of the FCE appellant underwent on June 10, 2014.

3

On January 7, 2015 Dr. Traub determined that the duties of the position of sales solution
team member offered on June 6, 2014 were within appellant’s medical restrictions and, therefore,
she was capable of working in the position.
In January 2015, appellant began participating in a vocational rehabilitation program
designed to return her to work. Her vocational rehabilitation counselor indicated that the medical
evidence of record showed that appellant was capable of engaging in sedentary work activity on a
full-time basis.
In a February 23, 2015 duty status report (Form CA-17), an individual with an illegible
signature indicated that appellant could work for eight hours per day with restrictions of lifting no
more than 10 pounds, sitting for no more than two hours, standing for no more than 10 minutes at
a time, and driving for no more than 30 minutes. Appellant could not climb, kneel, bend, stoop,
or twist.
On April 17, 2015 the employing establishment again offered appellant a full-time
modified position as a sales solution team member. This modified position involved the same
duties as the position offered on June 6, 2014, except that she would not be required to engage in
back office administrative assistance duties. The physical requirements were the same as the
previously offered position, except that the new position restricted appellant from lifting more than
two pounds (a duty which would be performed intermittently for four to eight hours). The position
was characterized as sedentary in nature and allowed appellant to alternate between sitting and
standing as necessary.7
On April 17, 2015 appellant refused the position of sales solution team member offered by
the employing establishment.
In an April 21, 2015 report, Dr. Feroze Yusufji, an attending Board-certified orthopedic
surgeon, noted that appellant presented and complained of lower back pain and numbness and
weakness in her right lower extremity. He indicated that, upon physical examination, she exhibited
tenderness to palpation and limited range of motion of the lumbar spine. Dr. Yusufji diagnosed
several back conditions, including disc displacement, lumbar radiculitis, and lumbosacral
spondylosis.8 He indicated that appellant was restricted from driving for more than 30 minutes
and advised that she could sit for up to 2 hours at a time with 10- to 15-minute breaks between
sitting periods, during which she could stand and move about. Dr. Yusufji recommended that she
undergo electromyogram (EMG) and nerve conduction velocity (NCV) testing for her right lower
extremity.

7

The offered position was located in Stone Mountain, GA, and the record contains the result of an internet search
showing that the work location was approximately 36 miles from appellant’s residence.
8

Dr. Yusufji indicated that a computerized tomography (CT) scan with myelogram from an unspecified date
showed some residual involvement at L4-5 on the right and he noted “I feel [that appellant] has involvement at L5-S1
level on the right now with most likely an extruded disc.” The record contains a report of July 23, 2013 CT
scan/myelogram testing which shows large anterior extradural defects at L2-3 through L5-S1 with an acquired spinal
stenosis at L4-5 secondary to additional facet joint hypertrophy and ligamentous hypertrophy bilaterally.

4

In a return to work notice dated April 21, 2015, Dr. Yusufji noted that appellant could work
with restrictions including a maximum of 30 minutes driving at one time and 2 hours of sitting at
a time until her next appointment on May 7, 2015.
In an April 22, 2015 letter, received by OWCP on May 7, 2015, appellant indicated that
she was refusing the position of sales solution team member offered on April 17, 2015 because the
position violated the driving restrictions of Dr. Yusufji. She noted that her residence was
approximately a 50-minute drive from the site of the offered position.
In an April 30, 2015 letter, OWCP advised appellant of its determination that the position
of sales solution team member offered by the employing establishment was suitable. It discussed
the medical evidence of record noting that it showed that she could work as a sales solution team
member. OWCP addressed appellant’s concerns about driving and sitting and indicated that she
could take a break while driving to and from work, that she could take public transportation, and
that the offered job allowed her to alternate between sitting and standing as necessary. It informed
appellant that her entitlement to wage-loss and schedule award compensation would be terminated
if she did not accept the position or provide good cause for not doing so within 30 days of the date
of the letter.
In late-April 2015, OWCP referred appellant for a second opinion examination to
Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, to further evaluate her capacity to
work. It provided him with a current SOAF.9
Appellant submitted a May 7, 2015 narrative report of Dr. Yusufji which contained
findings similar to those contained in his April 21, 2015 narrative report and a July 22, 2013 EMG
and NCV testing report showing findings suggestive of an abnormality in the right S1 nerve root
distribution, but no dysfunction involving the deep peroneal/tibial nerves and no
polyneuropathy/myopathy. In a May 16, 2015 letter, an employing establishment official
indicated that she had been accepted for Office of Personnel Management (OPM) disability
retirement effective May 8, 2015. Other documents show that appellant elected to receive OPM
benefits beginning August 31, 2015.
By letter dated May 14, 2015, appellant indicated that she was refusing the position of sales
solution team member offered on April 17, 2015 due to an attached May 14, 2015 note of
Dr. Robert Friedman, an attending Board-certified neurosurgeon. In the attached note,
Dr. Friedman indicated that she was seen on May 14, 2105 and should not “work at all” until her
follow-up appointment on June 30, 2015.

9

The SOAF provided to Dr. Doman listed all of appellant’s accepted conditions and approved surgeries. In other
referral documents provided to him, OWCP advised that the work location of the position of sales solution team
member offered to her was approximately 36 miles from her residence. It further advised that the position of sales
solution team member would allow appellant to alternate between sitting and standing positions throughout the day.

5

In a report dated July 10, 2015, Dr. Doman discussed appellant’s factual and medical
history.10 He detailed the prior findings on physical examination/diagnostic and the prior surgical
procedures. Dr. Doman indicated that x-rays of the right knee showed well-fixed total knee
components without evidence of loosening and that x-rays of the lumbar spine showed solid
lumbar fusion with pedicle screw fixation at L3 through L5. He detailed the findings of the
physical examination he conducted on July 8, 2015, noting that appellant had good range of motion
of the right knee (from 0 to 110 degrees), and did not have right knee instability or signs of
muscular atrophy. With respect to the physical examination of her back and lower extremities,
Dr. Doman reported that the lumbar spine showed a well-healed surgical scar, straight leg raise
testing was negative, deep tendon reflexes were normal, and there were no signs of muscular
atrophy. He indicated that appellant could not perform her regular work as a city carrier due to
ongoing back pain following her lumbar spine surgery. However, Dr. Doman found that she could
perform full-time work in a sedentary-type job per the work restrictions contained in an attached
work capacity evaluation form (Form OWCP-5c). He noted that he had reviewed the work
requirements of the position of sales solution team member offered by the employing
establishment and indicated that appellant could perform the position. Dr. Doman noted that she
would not have difficulty in driving the 36 miles to and from work, even if she had to drive more
than one hour at a time. In an attached Form OWCP-5c dated July 8, 2015, he indicated that
appellant could walk or stand for two hours at a time and that she could engage in lifting for up to
three hours.
The vocational rehabilitation counselor assigned to appellant closed her vocational
rehabilitation file effective September 9, 2015. The counselor had determined that the position of
sales solution team member was medically and vocationally suitable for appellant.
In a September 16, 2015 letter, OWCP advised appellant that her reasons for not accepting
the position of sales solution team member offered by the employing establishment were
unjustified.11 It advised her that her entitlement to wage-loss and schedule award compensation
would be terminated if she did not accept the position within 15 days of the date of the letter.
Appellant did not accept the offered position within the allotted period.
By decision dated October 2, 2015, OWCP terminated appellant’s entitlement to wage-loss
and schedule award compensation effective October 2, 2015, because she refused an offer of
suitable work. It found that the evidence of record showed that she was medically and vocationally
capable of performing the position of sales solution team member and that she had not shown good
cause for refusing the position. OWCP found that the weight of the medical opinion evidence
regarding appellant’s ability to work as a sales solution team member rested with the wellrationalized opinion of Dr. Doman, OWCP’s referral physician, and determined that she did not
10

Dr. Doman indicated that he had reviewed surveillance video from October and November 2014 which was
obtained by the Office of Inspector General (OIG) of the employing establishment. He noted that the surveillance
video showed appellant’s ability to drive and walk without difficulty. The record contains OIG reports detailing the
contents of the surveillance video from October and November 2014. Appellant was observed engaging in such
activities as driving, walking, and briefly participating in bowling.
11
On September 14, 2015 an employing establishment official advised OWCP that the position of sales solution
team member offered to appellant on April 17, 2015 remained available.

6

submit rationalized medical evidence showing that she could not perform the position. It advised
that her retirement was not a valid reason for refusing the position.
Appellant filed a schedule award claim and, on November 24, 2015, OWCP granted her a
schedule award for 21 percent permanent impairment of her right lower extremity. The award was
scheduled to run for 60.48 weeks. However, OWCP only paid appellant from August 31 through
October 1, 2015, the day before the termination of her entitlement to wage-loss and schedule award
compensation, effective October 2, 2015.
Appellant, through counsel, requested a telephone hearing with a representative of
OWCP’s Branch of Hearings and Review. She submitted a December 16, 2015 report from
Dr. Traub who indicated that he obtained x-rays of the right knee which showed no loosening and
good alignment after right total knee arthroplasty.
During the hearing held on June 14, 2016, counsel argued that the position of sales solution
team member was not suitable because it required sitting and driving beyond appellant’s medical
restrictions.
Appellant submitted a May 7, 2015 note from Dr. Yusufji who indicated that she could
work with a restriction of not driving for any period longer than 20 minutes until further notice.
By decision dated August 25, 2016, OWCP’s hearing representative affirmed OWCP’s
October 2, 2015 decision terminating appellant’s entitlement to wage-loss and schedule award
compensation effective October 2, 2015 for refusing suitable work. She found that appellant was
medically and vocationally capable of performing the position of sales solution team member
offered by the employing establishment. The hearing representative determined that the weight of
the medical opinion evidence regarding appellant’s ability to work as a sales solution team member
continued to rest with the opinion of Dr. Doman. She noted that the reports of appellant’s attending
physicians were not sufficiently well rationalized to show that she could not work as a sales
solution team member.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s compensation benefits.12 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation.13 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
she was allowed a reasonable period to accept or reject the position or submit evidence to provide
reasons why the position is not suitable.14 Section 8106(c) will be narrowly construed as it serves
12

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

13

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

14

See Ronald M. Jones, 52 ECAB 190 (2000).

7

as a penalty provision, which may bar an employee’s entitlement to compensation based on a
refusal to accept a suitable offer of employment.15
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of proof
to showing that such refusal or failure to work was reasonable or justified.16 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.17
Before compensation can be terminated, however, OWCP has the burden of proof to
demonstrate that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.18 The
determination of whether an employee is physically capable of performing a modified assignment
is a medical question that must be resolved by medical evidence.19 OWCP procedures provide
that acceptable reasons for refusing an offered position include withdrawal of the offer or medical
evidence of inability to do the work or travel to the job.20
In a suitable work determination, OWCP must consider preexisting and subsequently
acquired medical conditions in evaluating an employee’s work capacity.21
ANALYSIS
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation effective October 2, 2015 pursuant to 5 U.S.C. § 8106(c)(2), for
refusing an offer of suitable work.
Appellant sustained a fall at work on February 4, 2011 and OWCP accepted that she
sustained contusions of both knees and lower legs, lateral meniscus tear of the right knee,
aggravation of right knee osteoarthritis, right knee sprain, and loose body of the right knee. OWCP
also authorized right knee surgery including a March 26, 2013 right total knee arthroplasty.22 In
April 2015, the employing establishment offered appellant a full-time modified position as a sales
15

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

16

20 C.F.R. § 10.517(a).

17

Id. at § 10.516.

18

See Linda Hilton, 52 ECAB 476 (2001).

19

Gayle Harris, 52 ECAB 319 (2001).

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); E.B., Docket No. 13-0319 (issued May 14, 2013).
21

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

22
Under claims other than the present claim, OWCP accepted a left shoulder strain in 2002 and a herniated disc at
L3-4 in 2013. Appellant underwent OWCP-approved spinal fusion surgery at L3-4 and L4-5 on November 7, 2013.

8

solution team member. Appellant refused the position and OWCP terminated her entitlement to
wage-loss and schedule award compensation effective October 2, 2015.
The Board finds that the evidence of record establishes that appellant was capable of
performing the position of sales solution team member offered by the employing establishment
and determined to be suitable by OWCP in April 2015. The position involved contacting
customers by telephone, engaging in light data inputting, and generally answering the telephone.
The physical requirements of the position included sitting in an office chair with a supportive back
and occasionally standing (intermittently for eight hours), simple grasping and pushing/pulling a
computer mouse (intermittently for four to eight hours), fine manipulation of a keyboard and lifting
up to two pounds (intermittently for four to eight hours), and speaking on the telephone
(intermittently for six to eight hours). The position allowed alternating between sitting and
standing as necessary. The evidence of record does not reveal that the position of sales solution
team member was temporary in nature.23 OWCP properly relied on the opinion of appellant’s
vocational rehabilitation counselor in determining that appellant was vocationally capable of
performing the position of sales solution team member.24
The Board finds that, with respect to appellant’s physical ability to work, OWCP properly
relied on the opinion Dr. Doman, OWCP’s referral physician, when it made its determination that
the modified position of sales solution team member offered by the employing establishment was
suitable. The weight of the medical evidence regarding her ability to work is represented by the
thorough, well-rationalized opinion of Dr. Doman. Dr. Doman’s July 8, 2015 report shows that
appellant is capable of working in the position of sales solution team member.
In his report dated July 10, 2015, Dr. Doman detailed the findings of the physical
examination he conducted on July 8, 2015, noting that appellant had good range of motion of the
right knee and did not have right knee instability or signs of muscular atrophy. With respect to the
physical examination of appellant’s back and lower extremities, he reported that the lumbar spine
showed a well-healed surgical scar, straight leg raise testing was negative, deep tendon reflexes
were normal, and there were no signs of muscular atrophy. Dr. Doman indicated that appellant
could not perform her regular work as a city carrier due to ongoing back pain following her lumbar
spine surgery. He further indicated, however, that she could perform full-time work in a sedentarytype job per the work restrictions contained in an attached work capacity evaluation form.
Dr. Doman noted that he had reviewed the work requirements of the position of sales solution team
member offered by the employing establishment and indicated that appellant could perform the
position. He also indicated that he had reviewed the surveillance materials from the OIG which
evinced her driving and walking without difficulty. Dr. Doman noted that appellant would not
have difficulty in driving the 36 miles to and from work, even if she had to drive more than one
hour at a time. In an attached work capacity evaluation form dated July 8, 2015, he indicated that

23

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See supra note 20 at
Chapter 2.814.4c(5), 9 (June 2013).
24

See id., at Chapter 2.814.4 (June 2013).

9

she could walk or stand for two hours at a time and that she could engage in lifting for up to three
hours.
The Board has carefully reviewed the opinion of Dr. Doman and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. Dr. Doman provided a thorough factual and medical history and accurately
summarized the relevant medical evidence.25 He provided medical rationale for his opinion by
explaining that, although appellant’s medical condition (particularly her back condition) prevented
her from performing her regular work as a city carrier, the objective findings of record showed
that she could perform a sedentary position such as the position of sales solution team member
offered by the employing establishment.26 The Board notes that Dr. Doman fully considered the
effects of her preexisting and subsequently-acquired medical conditions in evaluating her work
capacity.27
The Board finds that, therefore, OWCP has established that the position of sales solution
team member offered by the employing establishment is suitable. As noted above, once OWCP
has established that a particular position is suitable, an employee who refuses or neglects to work
after suitable work has been offered has the burden of proof to show that such refusal to work was
justified.28
The Board has carefully reviewed the evidence and argument submitted by appellant in
support of her refusal of the position of sales solution team member and notes that it is insufficient
to justify her refusal of the position.
In an April 21, 2015 narrative report, Dr. Yusufji indicated that appellant was restricted
from driving for more than 30 minutes and advised that she could sit for up to 2 hours at a time
with 10- to 15-minute breaks between sitting periods, during which she could stand and move
about. In a return to work notice dated April 21, 2015, he indicated that she was restricted to a
maximum of 30 minutes driving at one time and 2 hours of sitting at a time until her next
appointment on May 7, 2015. In a May 7, 2015 note, Dr. Yusufji indicated that appellant could
work with a restriction of not driving for any period longer than 20 minutes until further notice.
The Board notes that the submission of this evidence does not show that appellant was
unable to work as a sales solution team member because Dr. Yusufji’s various opinions about her
ability to drive are of limited probative value due to their lack of medical rationale. Dr. Yusufji
did not provide any explanation of why he recommended such restrictions on the amount of time
she could spend driving. He did not explain how specific findings on physical examination or
25

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

26

The Board notes that, in addition to the fact that Dr. Doman expressly indicated that appellant could work as a
sales solution team member, the specific work restrictions recommended by him would allow her to work in that
position.
27

See supra note 21. As noted, OWCP accepted that appellant sustained a left shoulder strain in 2002. The Board
notes that there is no indication in the record that she had problems with her left shoulder around the time the position
of sales solution team member was offered in April 2015 or at any point thereafter.
28

See supra note 16.

10

diagnostic testing supported his opinion. The Board has held that a medical report is of limited
probative value on a given medical issue if it contains a medical opinion which is unsupported by
medical rationale.29 In addition, the Board notes that, with respect to Dr. Yusufji’s opinion that
appellant could not sit for more than two hours at a time, it should be noted that the position of sales
solution team member allowed her to alternate between sitting and standing as necessary.30
In a May 14, 2015 note, Dr. Friedman noted that appellant should not “work at all” until
her follow-up appointment on June 30, 2015. However, this note is of limited probative value on
the relevant issue of the present case because he did not provide any medical rationale for his
conclusion that she could not perform any work. As noted above, the Board has held that an
opinion lacking adequate medical rationale is of limited probative value.31
The Board finds that OWCP complied with its procedural requirements prior to terminating
appellant’s compensation, including providing her with an opportunity to accept the position of
sales solution team member offered by the employing establishment after informing her that her
reasons for initially refusing the position were not valid.32
For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 2, 2015, because she refused an offer of suitable
work.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 2, 2015, pursuant to 5 U.S.C. § 8106(c)(2), for
refusing an offer of suitable work.

29

C.M., Docket No. 14-0088 (issued April 18, 2014).

30

Moreover, Dr. Yusufji did not provide any medical rationale in support of his opinion that appellant needed 10to 15-minute breaks between sitting periods of two hours.
31

See id. It is noted that appellant retired from the employing establishment in May 2015. However, OWCP
procedures and Board case law provide that retirement is not a valid reason for refusing an offer of suitable work. See
supra note 20 at Chapter 2.814.5c(4) (June 2013); Stephen R. Lubin, 43 ECAB 564 (1992).
32

See generally Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

11

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2018
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Los Angeles, CA, Employer
)
___________________________________________ )
M.C., Appellant

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant,
Office of Solicitor, for the Director

Docket No. 09-296
Issued: September 29, 2009

Case Submitted on the Record

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

JURISDICTION
On November 16, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated August 28, 2008, which
affirmed the Office’s March 20, 2008 decision, terminating her compensation on the grounds
that she refused an offer of suitable work. Pursuant to 20 C.F.R. §§ 501.2 and 501.3(c), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
March 6, 2008 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
This case has twice been on appeal before the Board. On May 1, 2003 the Board
determined that the case was not in posture for decision regarding whether appellant sustained an
injury causally related to factors of her federal employment. The Board directed the Office to

further develop the medical evidence.1 In an April 5, 2006 decision, the Board again found that
the case was not in posture for decision regarding whether appellant’s conditions of repetitive
stress disorder and preexisting spondylolisthesis were caused or aggravated by compensable
factors of employment.2 The Board found that a second opinion physician’s report was
inadequate and directed the Office to further develop factual evidence and to refer appellant to a
medical specialist for a reasoned medical opinion regarding whether her claimed conditions were
causally related to her work. The facts and history contained in the prior appeals are
incorporated by reference.
The Office developed the evidence regarding appellant’s work area. The employing
establishment indicated that her duty station only had two or three clerks working at a time,
which required that they sort mail in the back office as well as work the window. It confirmed
that appellant had been working in a light-duty capacity for six hours per day for about a year
and was assisted with any packages or activities that were outside of her restrictions. On
April 28, 2006 appellant noted that her duties included dispatching and distributing mail, which
came in sacks and trays of varying sizes at least twice daily.
On May 9, 2006 the Office referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Stanley Ross, a
Board-certified orthopedic surgeon. In a June 13, 2006 report, Dr. Ross noted appellant’s history
and treatment. He diagnosed lumbar spine sprain/strain and advised that it was resolved.
Dr. Ross opined that appellant could not perform the full duties of her employment but it was
“due to her preexisting spondylolisthesis.” He indicated that appellant could continue working
six hours daily with restrictions of no kneeling or squatting. In a July 19, 2006 addendum,
Dr. Ross opined that climbing over the counter temporarily aggravated her preexisting
spondylolisthesis, which had ceased. He indicated that he did not believe that climbing over the
counter caused appellant’s initial back injury, as she was able to continue working from the date
of injury, until November 13, 1999. Dr. Ross indicated that she could work light duty for six to
eight hours a day and lift no more than 70 pounds. In an August 1, 2006 addendum, he noted
that the aggravation was a temporary Grade 1 disability. Dr. Ross indicated that appellant’s
activities as a clerk did not aggravate her preexisting spondylolisthesis, as she had worked prior
to the accident without any problems.
On August 3, 2006 the Office accepted that climbing over the counter in 1997 aggravated
appellant’s condition. It accepted her claim for aggravation of spondylolisthesis, which ceased
on June 13, 2006. The Office advised appellant that she was eligible for compensation for wage
loss for periods supported by medical evidence for the period from 1997 through June 13, 2006.
It also denied disability after June 13, 2006, because the aggravation of her preexisting condition
ceased.
On August 28, 2006 appellant requested a hearing. She alleged that she was appealing
two hours of leave without pay from June 13, 2006 until she was able to resume full duty.

1

Docket No. 03-570 (issued May 1, 2003).

2

Docket No. 06-183 (issued April 5, 2006).

2

In a February 2, 2007 opinion decision, an Office hearing representative set aside the
August 3, 2006 decision and found a conflict in medical between Dr. Ross, and appellant’s
treating physician, Dr. Nicolas Panaro, a Board-certified physiatrist, as to whether the July 21,
1997 work incident caused a temporary or permanent aggravation of preexisting
spondylolisthesis.3 The hearing representative also found that the employing establishment had
not addressed the duties described by appellant and instructed the Office to obtain from the
employing establishment a description of her duties performed as a window clerk from the
period June 1985 to November 1999. The Office was instructed to revise its statement of
accepted facts and to refer appellant to an appropriate Board-certified orthopedic surgeon to
resolve the medical conflict.
On remand, the Office obtained a statement from appellant’s postmaster, James
McPartland, who indicated that her duties included five hours standing/walking, lifting up to 10
pounds (mail trays) 25 times per day, sorting markup mail while sitting for one hour per day and
sorting mail in the box section for one hour while standing or sitting.4
On May 7, 2007 the Office referred appellant along with a statement of accepted facts
and the medical record to Dr. George Burak, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict between Drs. Panaro and Ross regarding
whether a causal relationship exists between her condition of preexisting lumbar
spondylolisthesis whether there was continuing disability due to the work injury.
In a May 21, 2007 report, Dr. Burak noted appellant’s history of injury and treatment. He
examined her and determined that, despite using a cane, she “could ambulate quite well” without
the cane. Dr. Burak noted that “at times appellant had an extremely exaggerated gait that did not
follow any type of neurological deficits.” He examined the lumbosacral spine and indicated that
it was in midline with evidence of mild paravertebral muscle spasm at the extremes of motion,
that appellant had 30 degrees of extension and 110 degrees of flexion with complaints of low
back discomfort. Dr. Burak noted that appellant related that she could not perform toe walking
gait patterns because this resulted in back discomfort; however, she was able to perform a heel
walking pattern without any difficulty. He indicated that straight-leg raising was possible and
unrestricted bilaterally both in the supine and sitting positions at 70 degrees bilaterally, with deep
tendon reflexes present and equal bilaterally throughout both lower extremities. Dr. Burak
determined that appellant did not have any sensory deficits or atrophy in the lower extremities.
He also noted that she could hyperextend her lumbar spine while lying on her abdomen and
extending her elbows keeping her pelvis on the examining table without any difficulties.
Mr. Burak opined that the July 2, 1997 incident caused a permanent aggravation of appellant’s
underlying spondylolisthesis, which predated the event in question. He also noted that she had
preexisting degenerative changes involving the L5-S1 neural foramina, which predated the work
incident. Dr. Burak indicated that appellant could work for eight hours per day with restrictions

3

Dr. Panaro opined that appellant’s had a work-related chronic repetitive stress injury to her lower back. His
report and findings are contained in the Board’s May 1, 2003 decision.
4

Appellant received wage-loss compensation through June 13, 2006. On remand, she was paid compensation for
intermittent wage loss of two hours per day effective June 14, 2006.

3

of lifting/pushing/pulling of no more than 20 pounds; with kneeling and twisting limited to six
hours, no climbing and breaks “usual as per job.”
On July 26, 2007 the Office amended the accepted condition to include a permanent
aggravation of preexisting spondylolisthesis.
On August 29, 2007 the employing establishment offered appellant a full-time job as a
modified distribution clerk, using the restrictions provided by Dr. Burak. The job duties
included window services for five hours, boxing mail for two hours and clerical duties for one
hour. The physical requirements included no pushing or pulling greater than 20 pounds for eight
hours, limited kneeling and twisting for no more than six hours and avoiding climbing.
On September 4, 2007 appellant rejected the job offer. She submitted an August 30,
2007 report from Dr. Lorelei Davidson, a Board-certified physiatrist and treating physician, who
opined that she could not work more than six hours daily. Dr. Davidson opined that working
beyond six hours a day was likely to cause an exacerbation of appellant’s low back pain.
By letter dated October 11, 2007, the Office advised appellant that the modified position
had been found to be suitable to her capabilities and was currently available. It indicated that the
impartial medical examiner, Dr. Burak, had examined her on May 21, 2007 and provided work
restrictions that were consistent with the offered position. Appellant was advised that she should
accept the position or provide an explanation for refusing the position within 30 days. The
Office informed her that, if she did not accept the offered job and failed to demonstrate that the
failure was justified, her compensation would be terminated.
Appellant submitted additional reports from Dr. Davidson. They included reports dated
October 16 and 30 and December 6, 2007. Dr. Davidson continued to treat appellant and
advised that she was only capable of working a six-hour day. In her December 6, 2007 report,
she indicated that appellant had limited range of motion, lumbosacral tenderness and dropped
reflex.
By letter dated January 15, 2008, the Office informed appellant that her reasons for
refusing the position were not acceptable and allowed an additional 15 days for her to accept the
position. Appellant was advised that the weight of the medical evidence rested with Dr. Burak.
She was advised that no further reason for refusal would be considered.
The Office received a March 4, 2008 report from Dr. Davidson, who repeated her
previous findings and advised that appellant could not work more than four to six hours per day.
On March 6, 2008 the employing establishment notified the Office that the offered
position remained available.
By decision dated March 20, 2008, the Office terminated the appellant’s entitlement to
monetary compensation benefits, effective March 6, 2008, on the basis that she had refused
suitable work. It determined that the report of Dr. Burak, the impartial medical examiner,
represented the weight of the medical evidence.

4

Appellant requested a hearing, which was held on July 15, 2008. During the hearing she
alleged that she could not perform the modified position for eight hours daily. Appellant’s
attorney alleged that the job offer exceeded appellant’s restrictions and a conflict existed
between Drs. Burak and Davidson as to appropriate work restrictions.
In a July 10, 2008 report, Dr. Davidson conducted a physical examination and noted
findings of lumbar tenderness on palpation, reduced range of motion, paraspinal muscle
tightness, “4/5” right ankle dorsiflexion and “5/5” right hip extensors. She noted that straight-leg
raising produced pain on the right low back to the post thigh. Dr. Davidson diagnosed lumbar
derangement, radiculopathy, myofascitis, myofascial pain syndrome, sacroiliitis and coccydynia.
She opined that appellant could work six hours per day or eight hours with a two-hour break,
with no lifting more than 10 pounds and no crawling, kneeling or repetitive bending.
In a June 30, 2008 report, Dr. Chris Perrone, a chiropractor, diagnosed lumbar
spondylolisthesis and lumbar radiculopathy. He noted that appellant’s symptoms included pain
in the lower back radiating into the legs, severe pain in the buttocks, muscle spasms, numbness
and weakness in the legs and an abnormal gait. Dr. Perrone noted that standing, sitting and
walking caused pain. He opined that appellant was permanently disabled. Appellant also
submitted additional chiropractic treatment notes and physical therapy reports.
By decision dated August 28, 2008, the Office hearing representative affirmed the
Office’s March 20, 2008 decision.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.5 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Federal Employees’ Compensation Act for refusal
to accept suitable work.
Section 8106(c)(2)6 of the Act provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation. Section 10.517(a)7 of the Office’s regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified.
After providing the two notices described in section 10.516,8 the Office will terminate the
employee’s entitlement to further compensation under 5 U.S.C. §§ 8105, 8106 and 8107, as
provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits
as provided by 5 U.S.C. § 8103 or justified. To justify termination, the Office must show that

5

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

6

5 U.S.C. § 8106(c)(2).

7

20 C.F.R. § 10.517(a).

8

Id. at § 10.516.

5

the work offered was suitable9 and must inform appellant of the consequences of refusal to
accept such employment.10 According to Office procedures, certain explanations for refusing an
offer of suitable work are considered acceptable.11 Unacceptable reasons include appellant’s
preference for the area in which he resides; personal dislike of the position offered or the work
hours scheduled; lack of promotion potential or job security.12
ANALYSIS
The Office properly found that Dr. Panaro disagreed with an Office referral physician,
Dr. Ross, regarding whether a causal relationship existed between appellant’s preexisting lumbar
spondylolisthesis and the accepted work injury and as to whether she continued to be disabled
due to the accepted condition. It properly found a conflict in medical evidence which required a
referral to an impartial medical specialist for resolution. The Act, at 5 U.S.C. § 8123(a), in
pertinent part, provides: “If there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.”
The Office referred appellant to Dr. Burak for an impartial medical evaluation to resolve
the medical conflict. Dr. Burak performed a thorough evaluation on appellant. He provided a
reasoned opinion that she was capable of working eight hours a day, in a limited capacity. In a
May 21, 2007 report, Dr. Burak examined appellant and noted findings. For example, he
indicated that, despite using a cane, she “could ambulate quite well” without a cane. Dr. Burak
also noted that appellant had an “extremely exaggerated gait that did not follow any type of
neurological deficits.” He set forth examination findings and noted that, while she had
complaints of low back discomfort related to her ability to perform toe walking, she was able to
perform a heel walking without difficulty. Dr. Burak found no sensory deficits or atrophy in the
lower extremities or any difficulty hyperextending appellant’s lumbar spine. He opined that the
July 2, 1997 incident caused a permanent aggravation of appellant’s underlying
spondylolisthesis. However, Dr. Burak advised that she could work for eight hours per day with
restrictions of lifting/pushing/pulling of no more than 20 pounds; with kneeling and twisting
limited to six hours, no climbing and breaks “usual as per job.” When a case is referred to an
impartial medical specialist for the purpose of resolving a conflict in medical opinion, the
opinion of such specialist, if sufficiently well rationalized and based on a proper background,
must be given special weight.13 The Board finds that Dr. Burak is based on a proper background

9

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

10

See Maggie L. Moore, 42 ECAB 484, 488 (1991), reaff’ d on recon., 43 ECAB 818, 824 (1992). See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter
2.814.5(d)(1) (July 1997).
11

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.814.5(a)(1)-(5) (July 1997).

12

Arthur C. Reck, 47 ECAB 339 (1996); Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.814.5(c)
(July 1997).
13

Kathryn Haggerty, 45 ECAB 383, 389 (1994); Jane B. Roanhaus, 42 ECAB 288 (1990).

6

and is sufficiently well rationalized such that it is entitled to special weight and establishes that
appellant is capable of working eight hours per day in a limited-duty position.
Subsequent to the evaluation by Dr. Burak, the employing establishment offered
appellant a limited-duty position. The position accommodated the work restrictions given by
Dr. Burak. The Office reviewed the position and found it to be suitable for appellant. On
September 4, 2007 appellant rejected the offer and submitted an August 30, 2007 report from
Dr. Davidson, who opined that appellant was unable to work for more than six hours a day as it
was likely to cause an exacerbation of her low back pain.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.14 It properly followed its procedural
requirements in this case. By letter dated October 11, 2007, the Office advised appellant that the
position was suitable and provided her 30 days to accept the position or provide reasons for her
refusal. It further notified her that the position remained open, that she could still accept without
penalty and that a partially disabled employee who refused suitable work was not entitled to
compensation.
Appellant submitted reports dated August 30, October 16 and 30 and December 6, 2007
from Dr. Davidson, who continued to advise that appellant was only capable of working a sixhour day. In her August 30, 2007 report, Dr. Davidson indicated that working beyond six hours
per day was likely to cause an exacerbation of her low back pain. However, to the extent that
appellant is asserting that a return to work might cause further injury, the Board has held that fear
of future injury is not compensable.15 In her December 6, 2007 report, Dr. Davidson indicated
that appellant had limited range of motion, lumbosacral tenderness and dropped reflex. The
Office must consider preexisting and subsequently acquired conditions in determining the
suitability of an offered position.16 In this case, however, the evidence does not show that
appellant’s conditions would prevent her from performing the offered sedentary position. For
example, Dr. Davidson did not explain, why appellant could not perform the modified position,
which was based upon the restrictions provided by the impartial medical examiner. She did not
indicate that she was even aware of the offered position or explain why the offered position
would not be suitable.
On January 15, 2008 the Office properly informed appellant that her reasons for refusing
the offered position were unacceptable and provided her 15 days to accept the position. It
received a March 4, 2008 report from Dr. Davidson, who repeated her opinion that appellant
could not work for more than four to six hours per day. Dr. Davidson repeated her findings
which included that appellant had decreased range of motion, lumbosacral tenderness and
dropped reflex. However, this report does support that the work offered was not suitable since

14

See Moore, supra note 10.

15

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

16

See Gayle Harris, 52 ECAB 319 (2001).

7

she essentially repeated her prior opinions and did not offer any reasoning to explain why
appellant could not perform particular duties of the offered position.
Appellant refused to accept the offered position and the Office properly terminated her
wage-loss compensation for refusal of suitable work. At the time of the termination, the weight
of the medical evidence established that appellant could perform the duties of the offered
position.
An employee who refuses or neglects to work after suitable work has been offered to her
has the burden of showing that such refusal to work was justified.17 Appellant has not shown
that her refusal to work was justified. The weight of the medical evidence continues to support
that her conditions did not prevent her from performing the job that she was offered on
August 29, 2007. The medical reports received subsequent to the evaluation by Dr. Burak are
insufficient to either overcome Dr. Burak’s opinion or create a new medical conflict.
In a July 10, 2008 report, Dr. Davidson repeated her previously expressed opinion that
appellant was unable to work for more than six hours per day. Although she indicated that
appellant could work an eight-hour day, she stated that appellant would need a two-hour break.
Dr. Davidson did not specifically address whether and how appellant’s conditions prevented her
from performing the limited-duty position she was offered. She did not provide any findings and
rationale to support that appellant would have been unable to perform the limited-duty position
during the time period it was offered and available to her.
The Board notes that appellant also submitted a June 30, 2008 report for Dr. Perrone, a
chiropractor. In assessing the probative value of chiropractic evidence, the initial question is
whether the chiropractor is considered a physician under section 8101(2) of the Act.18 A
chiropractor cannot be considered a physician under the Act unless it is established that there is a
subluxation as demonstrated by x-ray to exist.19 Thus, where x-rays do not demonstrate a
subluxation, a chiropractor is not considered a “physician” and his or her reports cannot be
considered as competent medical evidence under the Act.20 In this case, the record does not
indicate that a subluxation of the spine was diagnosed. Therefore, Dr. Perrone’s reports cannot
be considered those of a physician and are of no probative value.
Appellant also submitted physical therapy reports. However, a physical therapist is not a
“physician” within the meaning of section 8101(2) and cannot render a medical opinion.21 Thus,
these reports are of no probative value.
17

See supra note 6.

18

5 U.S.C. § 8101(2).

19

Thomas R. Horsfall, 48 ECAB 180 (1996). See also 20 C.F.R. § 10.5(bb) of the Office’s regulations provide
that the term “subluxation” means an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae anatomically, which must be demonstrable on any x-ray film to individuals trained in the
reading of x-rays.
20
21

See Thomas W. Stevens, 50 ECAB 288 (1999); see also Susan M. Herman, 35 ECAB 669 (1984).
Vickey C. Randall, 51 ECAB 357 (2000).

8

The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective March 6, 2008 on the grounds that she refused an offer of
suitable work. On appeal, appellant’s attorney asserts that her work restrictions do not allow her
to work for more than six hours daily. However, as noted, the report of Dr. Burak establishes
that appellant could perform the offered position for eight hours daily.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
March 6, 2008 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the August 28 and March 20, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 29, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Atlantic City, NJ, Employer
__________________________________________

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

Docket No. 09-237
Issued: September 1, 2009

Case Submitted on the Record

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

JURISDICTION
On November 3, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 31, 2008 merit decision concerning her entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 27 percent permanent impairment of her left arm, a 14 percent permanent impairment of her
right arm and a 6 percent permanent impairment of her right leg.
FACTUAL HISTORY
On September 16, 1998 appellant, then a 63-year-old computer specialist and systems
engineer, filed a traumatic injury claim alleging that she sustained injury on September 15, 1998
when she fell on a cement floor and cut her hand on a coffee cup. She stopped work on

September 15, 1998 and returned to work on September 28, 1998. The Office accepted that
appellant sustained right arm and right buttock contusions, laceration of the right index finger,
C5 radiculopathy and C4-5 and C5-6 disc bulges. It paid appropriate compensation for periods
of disability.
In a report dated February 12, 2002, Dr. David Weiss, an attending osteopath and Boardcertified orthopedic surgeon, provided findings on examination of appellant, who complained of
numbness and tingling in both hands, greater on the right, pain and burning sensation in her right
elbow, pain in both anterior thighs and pain and swelling in her right knee, which made it
difficult for her to complete her activities of daily living. Dr. Weiss noted that range of motion
and strength testing of all extremities showed normal results, but that she had abnormal grip
strength testing of 20 kilograms of force strength in the right hand and 15 kilograms of force
strength in the left hand. He indicated that sensory examination revealed a perceived sensory
deficit over the C6 nerve distribution on the right and a perceived sensory deficit over the C5-6
nerve distribution on the left. Dr. Weiss noted that appellant exhibited tenderness over the
medial midline of the right knee and that her right leg displayed one-centimeter atrophy. He
diagnosed chronic post-traumatic cervical and lumbosacral sprains and strains, C4-5 and C5-6
bulging discs, cervical radiculopathy, radial tunnel syndrome and post-traumatic patellofemoral
arthralgia of the right knee.
Dr. Weiss provided impairment ratings for the right arm, left arm and right leg. For the
right arm, he found that appellant had a 10 percent impairment under Tables 16-31 and 16-34 on
page 509 of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) for grip strength deficit; a 6 percent impairment under
Tables 15-15 and 15-17 on page 424 for sensory loss associated with the C6 nerve distribution;
and a 3 percent impairment under Figure 18-1 on page 574 for pain. He concluded that appellant
had an 18 percent impairment of her right arm by using the Combined Values Chart on pages
604 to 606 to combine the 10 and 6 percent values to equal 15 percent and then adding the 3
percent value under Chapter 18. For the left arm, Dr. Weiss found that appellant had a 20
percent impairment under Tables 16-31 and 16-34 for grip strength deficit, a 4 percent
impairment under Tables 15-15 and 15-17 for sensory loss associated with the C5 nerve
distribution, a 6 percent impairment under Tables 15-15 and 15-17 for sensory loss associated
with the C6 nerve distribution and a 3 percent impairment under Figure 18-1 for pain. He
concluded that appellant had a 31 percent impairment of her left arm by using the Combined
Values Chart to combine the 20, 4 and 6 percent values to equal 28 percent and then adding the 3
percent for pain under Chapter 18. For the right leg, Dr. Weiss found that appellant had eight
percent impairment under Table 17-6 on page 530 for her one centimeter leg atrophy and three
percent impairment under Figure 18-1 for pain. He indicated that appellant reached maximum
medical improvement on February 12, 2002.
By decision dated June 18, 2002, the Office granted appellant a schedule award for a six
percent impairment of her right leg. The award was calculated using the 66 2/3 percentage of
pay rate. By decision dated July 28, 2003, the Office set aside its June 18, 2002 decision on the
grounds that it had not adequately identified the basis for the granting of the award.
In a report dated November 25, 2003, an Office medical adviser advised that Dr. Weiss’
calculations for sensory loss associated with the C5-6 nerve distributions were too generous. He

2

indicated that appellant’s one-centimeter atrophy of the right leg entitled her to a three percent
impairment rating rather than an eight percent impairment rating. The Office medical adviser
indicated that adding the three percent rating for atrophy to the three percent rating for pain
calculated under Figure 18-1 meant that appellant had a six percent impairment of her right leg.
In a December 3, 2003 decision, the Office granted appellant a schedule award for a six
percent impairment of her right leg. The award was calculated using the 66 2/3 percentage of
pay rate. In a June 22, 2004 decision, the Office hearing representative remanded the case to the
Office for evaluation of the impairment of appellant’s right and left arms to be followed by an
appropriate decision.
In a report dated December 6, 2004, the Office medical adviser calculated impairment
ratings for appellant’s right and left arms. For the right arm, he found that appellant had 10
percent impairment under Tables 16-31 and 16-34 for grip strength deficit and 4 percent
impairment under Tables 15-15 and 15-17 for sensory loss associated with the C6 nerve
distribution.1 The Office medical adviser concluded that appellant had a 14 percent impairment
of her right arm by adding the 10 and 4 percent values. For the left arm, he found that appellant
had 20 percent impairment under Tables 16-31 and 16-34 for grip strength deficit, a 3 percent
impairment under Tables 15-15 and 15-17 for sensory loss associated with the C5 nerve
distribution2 and 4 percent impairment under Tables 15-15 and 15-17 for sensory loss associated
with the C6 nerve distribution. The Office medical adviser concluded that appellant had a 27
percent impairment of her left arm by adding the 20, 3 and 4 percent values.
In a February 10, 2005 decision, the Office granted appellant a schedule award for a 27
percent impairment of her left arm and a 14 percent impairment of her right arm. The award was
calculated using the 66 2/3 percentage of pay rate.
In a February 14, 2006 decision, the Office hearing representative affirmed the Office’s
February 10, 2005 decision with respect to appellant’s schedule award entitlement. The Office
hearing representative further found that appellant had not shown that she had a dependent
within the meaning of section 8110 of the Federal Employees’ Compensation Act and, therefore,
was only entitled to the 66 2/3 percentage of pay rate.
In a February 6, 2007 decision,3 the Board set aside the Office’s February 14, 2006
decision and remanded the case to it. The Board found fault with the assessments of Dr. Weiss
and the Office medical adviser and directed the Office to further develop the medical evidence.
1

For the right C6 nerve distribution, the Office medical adviser used a 50 percent grade under Table 15-5 rather
than the 75 percent grade used by Dr. Weiss. He indicated that appellant was not entitled to the three percent
impairment rating for pain as it included in the rating for sensory loss under Chapter 15.
2

For the left C5 nerve distribution, the Office medical adviser used a 60 percent grade under Table 15-5 rather
than the 80 percent grade used by Dr. Weiss. For the left C5 nerve distribution, he used a 50 percent grade under
Table 15-5 rather than the 80 percent grade used by Dr. Weiss. The Office medical adviser noted that appellant was
not entitled to the three percent impairment for pain under Chapter 18 because that deficit was included in the rating
for sensory loss.
3

Docket No. 06-1592 (issued February 6, 2007).

3

The Board found that Dr. Weiss did not provide proper evaluations of grip strength and or
explain the basis for including pain under Chapter 18 of the A.M.A., Guides.
On remand, the Office referred appellant to Dr. Zohar Stark, a Board-certified orthopedic
surgeon, for an examination and opinion on permanent impairment. On May 8, 2007 Dr. Stark
opined that his examination revealed no impairment of appellant’s arms or right leg. He
indicated that there was no sensory or motor deficit to the lower extremities. There was full
range of motion of both wrists and all the fingers and no weakness of the hands or wrists.
Dr. Stark stated that range of motion of the elbows, shoulders, hips, knees and ankles was
“preserved.” He discussed the medical evidence of record and stated:
“[I]t appears at this time that the accepted conditions have resolved. [Appellant]
at this time, in my opinion has reached maximum medical improvement to treat
those conditions. I find no restriction of motion in her upper extremities or right
lower extremity, and there are no neurological findings. It is my opinion that
[appellant] sustained zero percent impairment relating to her left upper extremity,
zero percent impairment relating to [her] right upper extremity, and zero percent
impairment relating to her right lower extremity.”
On June 26, 2007 Dr. Morley Slutsky, a Board-certified orthopedic surgeon and Office
medical adviser, agreed with Dr. Stark’s opinion that appellant did not have any permanent
impairment of her arms and right leg. In a December 21, 2007 decision, the Office denied
appellant’s claim for any additional impairment of her arms and right leg. It indicated that it
based its determination on the opinion of Dr. Stark.
Appellant requested a hearing before an Office hearing representative. At the May 13,
2008 hearing, appellant’s attorney contended that the Office procedures prevented it from relying
on the opinion of the Office medical adviser, Dr. Slutsky, to determine appellant’s impairment.
She also argued that Dr. Stark’s opinion was of limited probative value because he did not record
precise findings on examination or, in the alternative, that there was an unresolved conflict in the
medical evidence between Dr. Stark and Dr. Slutsky regarding appellant’s impairment.
In a July 31, 2008 decision, the Office hearing representative determined that appellant
did not meet her burden of proof to establish that she has more than a 27 percent permanent
impairment of her left arm, a 14 percent permanent impairment of her right arm and a 6 percent
permanent impairment of her right leg.4
LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
4

The Office hearing representative did not discuss the pay rate of appellant’s schedule award compensation and
this matter is not the subject of the present appeal.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

4

loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.7 It is well established that proceedings
under the Act are not adversarial in nature, and while the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the
evidence.8
ANALYSIS
The Office granted appellant schedule award compensation for a 27 percent permanent
impairment of her left arm, a 14 percent permanent impairment of her right arm and a 6 percent
permanent impairment of her right leg. On remand, the case was referred to Dr. Stark, a Boardcertified orthopedic surgeon, but the Office found that his opinion showed no additional
entitlement to schedule award compensation. Appellant contends that the opinion of Dr. Stark is
of limited probative value because he did not record precise findings on examination. She also
contended that a conflict existed between Dr. Slutsky, a Board-certified orthopedic surgeon
serving as an Office medical adviser, and Dr. Weiss, an attending osteopath and Board-certified
orthopedic surgeon, regarding appellant’s impairment.
The Board finds that there are deficiencies in Dr. Stark’s evaluation of appellant’s
impairment. Dr. Stark noted normal results for range of motion, strength and sensory condition
of the arms and right leg. However, the A.M.A., Guides provides specific tests and standards for
evaluating such potential deficits, but there is no clear indication that he performed these test or
applied these standards.9 For example, Dr. Stark stated that range of motion of the wrists,
fingers, elbows, shoulders, hips, knees and ankles was normal, but he did not provide any record
that actual findings were obtained for the various range of motion tests described in the A.M.A.,
Guides for these body parts, nor did he indicate that he performed manual muscle testing or
evaluation of sensory loss associated with specific nerves (primarily C5 and C6 in the present
case) in accordance with the standards of the A.M.A., Guides.
As noted above, proceedings under the Act are not adversarial in nature, and while the
claimant has the burden to establish entitlement to compensation, the Office shares responsibility
in the development of the evidence. Therefore, the case should be remanded to the Office for
further development of the medical evidence regarding appellant’s impairment. After such

7

Id.

8

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

9

A.M.A., Guides 433-563. The Board notes that there is no conflict in the medical evidence regarding appellant’s
impairment. Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make an examination.” There is no conflict due to the deficiencies noted in both the 2002
opinion of Dr. Weiss (as explained in the Board’s February 6, 2007 decision) and the 2007 opinion of Dr. Stark.

5

development as it deems necessary, the Office should issue an appropriate decision on this
matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she has more than a 27 percent permanent impairment
of her left arm, a 14 percent permanent impairment of her right arm and a 6 percent permanent
impairment of her right leg. The case is remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 31, 2008 decision is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: September 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6