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

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

Docket No. 19-0063
Issued: June 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a June 13, 2018 merit decision
and an August 3, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish more than
13 percent permanent impairment of his right lower extremity, for which he previously received a
schedule award, and more than 0 percent permanent impairment of his left lower extremity; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 3, 2018 decision, OWCP and the Board 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.

(2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP
hearing representative.
FACTUAL HISTORY
On August 24, 1963 appellant, then a 23-year-old distribution clerk, filed a notice of
traumatic injury (Form CA-1) alleging that he had reinjured his back following a September 1962
employment injury.3 He retired from the employing establishment in 1995. OWCP accepted the
claim for lumbosacral sprain and authorized medical treatment, including several surgical
procedures in 1964, 1965, 1994, 1998, 2012, and 2013. In 2014 it expanded acceptance of
appellant’s claim to include additional conditions of a 1998 lumbar wound infection, L4-5 pseudoarthritis, lumbar post-laminectomy syndrome L4-S1, and lumbar radiculopathy.
By decision dated February 26, 2015, OWCP awarded appellant a schedule award for 10
percent permanent impairment of his right lower extremity and 0 percent permanent impairment
of his left lower extremity. The award ran for 28.8 weeks for the period November 13, 2014 to
June 2, 2015.
On March 15, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. By decision dated October 21, 2015, an OWCP hearing
representative denied appellant’s request for an oral hearing. He found that as the injury occurred
in 1962 there was no right to an oral hearing and the issue in the case could be equally addressed
by requesting reconsideration.
On January 20, 2016 appellant filed a claim for an increased schedule award (Form CA-7).
In a January 28, 2016 report, Dr. M. Stephen Wilson, an orthopedic surgeon, noted the
history of appellant’s injury, his review of the medical records, and his examination findings. He
provided an impairment rating pursuant to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)4 and The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (The Guides Newsletter)
(July/August 2009) opining that appellant had a total right lower extremity permanent impairment
of 28 percent and a total left lower extremity permanent impairment of 28 percent. For both the
right lower and left lower extremities, Dr. Wilson found 11 percent permanent impairment due to
L4 nerve deficits, 11 percent permanent impairment due to L5 deficits, and 6 percent permanent
impairment due to S1 nerve deficits, which combined to equal a total permanent impairment of 28
percent. He also opined that appellant had reached maximum medical improvement (MMI) at the
time of his examination.
On August 24, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
an OWC district medical adviser (DMA), reviewed an updated statement of accepted facts (SOAF)
3

On September 7, 1962 appellant, filed a notice of traumatic injury (Form CA-1) alleging that on that day he
sustained an acute lumbosacral sprain while bending over and repositioning mail trays in the performance of duty.
OWCP assigned this File No. xxxxxx227.
4

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

2

and the medical record, including Dr. Wilson’s January 28, 2016 report, which represented the
date of MMI. The DMA indicated that Dr. Wilson had erroneously combined the impairments for
appellant’s L4, L5, and S1 radiculopathy instead of using the Combined Values Chart as
recommended in the A.M.A., Guides and The Guides Newsletter, July/August 2009. He noted that
Dr. Wilson’s examination demonstrated that appellant had impaired sensation in the bilateral L4,
L5, and S1 dermatomes as well as weakness in the bilateral L4, L5, and S1 innervated muscles.
Using Dr. Wilson’s examination findings, the DMA opined that appellant had 26 percent total
permanent impairment of the right lower extremity and 26 percent total permanent impairment of
the left lower extremity. As appellant previously received a schedule award for 10 percent
permanent impairment of the right lower extremity and 0 percent permanent impairment of the left
lower extremity, the DMA opined that appellant was entitled to an additional schedule award for
16 percent permanent impairment of the right lower extremity and 26 percent permanent
impairment of the left lower extremity.
On February 13, 2017 Dr. Kevin Komes, a Board-certified physiatrist and second opinion
specialist, noted appellant’s history of injury, reviewed the medical records and presented
examination findings, which demonstrated weakness in the right L4, L5, and S1 muscles without
neurologic deficit. He noted that appellant reached MMI on September 15, 2014 and that appellant
had a previous impairment rating of 10 percent permanent impairment of the right lower extremity
and zero percent permanent impairment of the left lower extremity. Dr. Komes indicated that there
were no progressive abnormalities on radiographic studies of the lumbosacral spine that would
indicate the advancement of any of the accepted conditions. Additionally there was no new
evidence of pathology in the thoracic, lumbar, or sacral region which should affect any previous
impairment ratings. Dr. Komes noted that there was significant medical evidence of a progressive
neuropathy which accounted for appellant’s progressive symptoms.
He did not perform an
impairment calculation.
OWCP forwarded Dr. Komes’ report to Dr. Arthur S. Harris, the DMA. In a March 26,
2017 report, he rereviewed the medical record, including Dr. Komes’ February 13, 2017 report,
which he indicated represented the date of MMI. Utilizing Dr. Komes’ findings of weakness in
the L4, L5, and S1 innervated muscles and The Guides Newsletter July/August 2009, the DMA
calculated 13 percent permanent impairment of the right lower extremity and 0 percent permanent
impairment to the left lower extremity. As appellant previously received a schedule award for 10
percent permanent impairment to the right lower extremity, the DMA found that he was entitled
to an additional award for 3 percent permanent impairment.
By decision dated June 13, 2018, OWCP awarded appellant an additional three percent
permanent impairment to the right lower extremity and zero percent permanent impairment to the
left lower extremity. The award ran for 8.64 weeks for the period February 13 through April 14,
2017, a fraction of a day.
On June 19, 2018 appellant, through counsel, requested a telephonic hearing of OWCP’s
June 13, 2018 decision.
By decision dated August 3, 2018, an OWCP hearing representative denied the request for
an oral hearing. She referenced 5 U.S.C. § 8124 and found a right to a hearing existed for injuries
occurring after July 4, 1966, and because appellant’s injury occurred on August 24, 1963 he had

3

no right to a hearing. The hearing representative further found that appellant could pursue
alternative appellate remedies under FECA such as requesting reconsideration before OWCP or
an appeal to the Board.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides.7 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.9 Neither FECA nor its implementing federal
regulations provide for payment of a schedule award for the permanent loss of use of the back, the
spine, or the body as a whole; a claimant is not entitled to such a schedule award.10 The Board
notes that section 8101(19) specifically excludes the back from the definition of organ.11 A
claimant may receive a schedule award for any permanent impairment to the upper or lower
extremities even though the cause of the impairment originated in the spine.12
The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal
nerve impairment, set forth in the July/August 2009 The Guides Newsletter.13 It was designed for
situations in which a particular jurisdiction, such as FECA, mandated ratings for extremities and
precluded ratings for the spine. FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities. The appropriate tables for rating spinal
5

Supra note 1.

6

20 C.F.R. § 10.404.

7
Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards
and Permanent Disability Claims, Chapter 2.808.5.a (March 2017).
8

Id.; see C.G., Docket No. 18-0392 (issued August 14, 2018); Jacqueline S. Harris, 54 ECAB 139 (2002).

9

G.S., Docket No. 18-0827 (issued May 1, 2019); Thomas J. Engelhart, 50 ECAB 319 (1999).

10

See C.G., supra note 8; Jay K. Tomokiyo, 51 ECAB 361 (2000).

11

5 U.S.C. § 8101(9).

12

See C.G., supra note 8; W.D., Docket No. 10-0274 (issued September 3, 2016).

13
The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve Extremity
Impairments Using the Sixth Edition (July/August 2009).

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nerve extremity impairment are incorporated in the Federal (FECA) Procedure Manual.14 The
Board has recognized the adoption of this methodology as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.15
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.16
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”17
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
In support of his claim for an increased schedule award, appellant submitted a January 28,
2016 report from Dr. Wilson, who used appropriate tables in the sixth edition of the A.M.A.,
Guides and The Guides Newsletter and opined that appellant had 28 percent permanent impairment
of both lower extremities. The DMA reviewed Dr. Wilson’s report and concluded, in an
August 24, 2016 report, that Dr. Wilson erroneously combined the impairments for appellant’s L4,
L5, and S1 radiculopathy instead of using the Combined Values Chart as recommended in the
A.M.A., Guides and The Guides Newsletter. He indicated that the correct calculation resulted in
26 percent permanent impairment of each lower extremity. As appellant previously received 10
percent permanent impairment to the right lower extremity and zero percent impairment to the left
lower extremity, the DMA indicated that appellant was entitled to an additional 16 percent
impairment of the right lower extremity and 26 percent impairment of the left lower extremity.
OWCP subsequently referred the record to Dr. Komes, a second opinion physician, who
opined in a report dated February 13, 2017 that the accepted conditions had not significantly
changed appellant’s thoracic, lumbar or sacral pathology, which would result in additional
impairment. As Dr. Komes did not provide an impairment calculation, the DMA used Dr. Komes’
examination findings and found 13 percent permanent impairment of appellant’s right lower
extremity and 0 percent permanent impairment of his left lower extremity. This equated to an
additional award of three percent impairment to the right lower extremity from the original
schedule award.
As noted above, if there is disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall

14

See supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

15

See C.G., supra note 8; D.S., Docket No. 14-0012 (issued March 18, 2014).

16

5 U.S.C. § 8123(a); see A.G., Docket No. 18-0815 (issued January 24, 2019); A.R., Docket No. 18-0632 (issued
October 19, 2018).
17

See A.G., id.; C.H., Docket No. 18-1065 (issued November 29, 2018).

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make an examination.18 The Board finds that there is an unresolved conflict in the medical
evidence regarding the extent of the permanent impairment of appellant’s bilateral lower
extremities due to his accepted conditions. Therefore, the case must be remanded to OWCP for
referral to an impartial medical specialist for resolution of the conflict in the medical opinion
evidence in accordance with 5 U.S.C. § 8123(a).
After such further development as OWCP deems necessary, it shall issue a de novo
decision.19
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further proceedings consistent with
this opinion of the Board.
Issued: June 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

5 U.S.C. § 8123(a); see A.G., supra note 16; G.W., Docket No. 17-0957 (issued June 19, 2017); R.S., Docket No.
10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).
19

In light of the disposition of the first issue, the second issue is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, NEW JERSEY
NATIONAL GUARD, Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 11-1661
Issued: April 25, 2012

Case Submitted on the Record

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

JURISDICTION
On July 8, 2011 appellant, through his attorney, filed a timely appeal from an April 12,
2011 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to a
schedule award greater than the two percent previously awarded for his left lower extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 6, 2006 appellant, then a 39-year-old air craft mechanic, injured his left knee
while working underneath an aircraft. OWCP accepted a tear of the medial meniscus of the left
knee. Appellant stopped work on October 6, 2006.
A magnetic resonance imaging (MRI) scan of the left knee revealed a meniscal tear of the
posterior horn of the medial meniscus and a large suprapatellar joint effusion. OWCP authorized
surgery. On November 22, 2006 Dr. Charles C. Rizzon, a Board-certified orthopedist,
performed arthroscopic surgery of the left knee with a partial medial meniscectomy,
chondroplasty of the medial femoral condylar lesion and synovectomy. He diagnosed left bucket
handle medial meniscal tear, synovitis and chondral injury of the medial femoral condyle. In
reports dated December 1, 2006 to September 25, 2007, Dr. Rizzo noted that appellant was
progressing well postoperatively and could return to work with restrictions on February 1, 2007.
He noted appellant’s complaints of persistent pain and limited function of the left knee.
On December 20, 2007 appellant filed a claim for a schedule award. He submitted a
September 24, 2007 report from Dr. David Weiss, an osteopath, who opined that appellant
sustained an 11 percent impairment of the left lower extremity under the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides).2 An MRI scan of the left knee dated May 19, 2008 revealed medial meniscal tear,
osteochondral defect involving the patellar cartilage and slight cartilage loss in the medial joint
space.
On May 22, 2009 OWCP requested Dr. Weiss submit an assessment of permanent
impairment in accordance with the A.M.A., Guides (6th ed. 2009), which OWCP began using
effective May 1, 2009. No supplemental report was received.
On September 15, 2009 OWCP referred appellant for a second opinion to Dr. Aldo Iulo,
a Board-certified orthopedist, for a determination of whether appellant had permanent
impairment attributable to his accepted conditions. In a September 30, 2009 report, Dr. Iulo
noted a history of appellant’s work-related condition and subsequent treatment. He noted
examination findings of the left knee of a well-healed arthroscopic incision medially and
laterally, no patellofemoral crepitus, mild atrophy of the left quadriceps, no tenderness over the
medial and lateral collateral ligaments, extension of the left knee was complete, negative
McMurray’s test of the medial and lateral meniscus, negative Lachman’s test, no anterior or
posterior instability and no medial or lateral collateral ligament instability. Dr. Iulo diagnosed
postarthroscopic partial medial meniscectomy and chondroplasty of the left knee. He noted that
appellant reached maximum medical improvement. Dr. Iulo noted left knee motion of 130
degrees and mild atrophy of the left thigh with pain when squatting. He opined that appellant
had 15 percent impairment of the left lower extremity for partial medial meniscectomy with
residual atrophy of the left quadriceps muscle.
OWCP referred Dr. Iulo’s report and the case record to an OWCP medical adviser for
evaluation as to the extent of permanent impairment of the left leg in accordance with A.M.A.,
2

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

2

Guides. In a December 30, 2009 report, the medical adviser noted that Dr. Iulo found 15 percent
impairment of the left leg but did not cite to tables, class, grade modifiers or pages in the
A.M.A., Guides to support his impairment rating. The medical adviser determined that appellant
was a class 1, grade C, with a default impairment value of two percent pursuant to Table 16-3,
page 509 of the A.M.A., Guides.3 He noted that even with the application of significant grade
modifiers the default value would be no greater than 3 percent and was unclear as to how
Dr. Iulo determined an impairment rating of 15 percent. The medical adviser asked OWCP to
obtain an addendum report from Dr. Iulo, which provided an explanation of his impairment
determination showing his calculation and citing to tables and charts.
On February 22, 2010 OWCP requested an addendum report from Dr. Iulo explaining his
impairment determination. In a March 18, 2010 report, Dr. Iulo noted that appellant had five
percent impairment of the left leg pursuant page 509 of the A.M.A., Guides,4 due to a partial
medial meniscectomy with persistent complaints of pain and atrophy of the quadriceps. He
noted that appellant was “[c]lass 1, [g]rade 2.”
OWCP referred Dr. Iulo’s report and the case record to an OWCP medical adviser who in
a report dated June 1, 2010 opined that appellant had two percent impairment of the left leg in
accordance with the A.M.A., Guides. The medical adviser found that appellant had a class 1
impairment, the rating utilized for a mild problem for right knee, status post partial medial
meniscectomy, with a default impairment value of two percent leg impairment. The medical
adviser determined that grade modifier for functional history was 1, pursuant to Table 16-6, (for
intermittent symptoms, avoiding kneeling and squatting); the grade modifier for physical
examination was 1, pursuant to Table 16-7, for a mild problem (mild atrophy); and the grade
modifier for clinical studies was 1, pursuant to Table 16-8, for a mild problem as supported by an
MRI scan. He applied the modifiers for Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS) found in Table 16-6, Table 16-7 and Table 16-8 and
determined that there was no change in the default rating of two percent impairment after
applying the net adjustment formula.5 The medical adviser noted that Dr. Iulo did not explain his
calculation of five percent impairment and did not cite to tables or grade modifiers in the
A.M.A., Guides. He correlated Dr. Iulo’s findings in his report to the A.M.A., Guides and
opined that appellant sustained a two percent impairment of the left lower extremity. The
medical adviser noted that the date of maximum improvement was September 30, 2009.
In a decision dated July 16, 2010, OWCP granted appellant a two percent permanent
impairment of the left lower extremity. The period of the award was September 30 to
November 9, 2009.
On July 22, 2010 appellant requested an oral hearing which was held on
January 25, 2011.

3

Id. at 509.

4

Id. at 521-22.

5

Id. at 516-19.

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In an April 12, 2011 decision, OWCP affirmed the July 16, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.11 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.13
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments are to
be classified by diagnosis. The classification is then adjusted by grade modifiers according to
the formula noted above.14 Appellant’s accepted diagnosed condition was a tear of the medial
meniscus of the left knee. He filed a claim for a schedule award and submitted Dr. Weiss’
September 24, 2007 report who found 11 percent left leg impairment under the fifth edition of
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides 3-6 (6th ed. 2008).

11

Id. at 494-531.

12

Id. at 521.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

Supra notes 11, 12.

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the A.M.A., Guides. On May 22, 2009 OWCP requested that Dr. Weiss assess permanent
impairment under the sixth edition of the A.M.A., Guides. Dr. Weiss did not respond and
OWCP properly referred appellant to Dr. Iulo.
However, the Board finds that Dr. Iulo did not clearly explain his conclusion regarding
appellant’s left leg impairment in his September 30, 2009 and March 18, 2010 reports. In his
September 30, 2009 report, Dr. Iulo noted no patellofemoral crepitus, mild atrophy of the left
quadriceps, no tenderness over the medial and lateral collateral ligaments, no anterior or
posterior instability and no medial or lateral collateral ligament instability. He opined that
appellant had 15 percent impairment of the left leg for partial medial meniscectomy with residual
atrophy of the left quadriceps. Dr. Iulo however did not specifically indicate how appellant’s
findings correlated to a 15 percent impairment rating according to the A.M.A., Guides. OWCP
requested a supplemental report from Dr. Iulo, instructing him to explain his impairment
calculation. In a March 18, 2010 report, Dr. Iulo noted that appellant had five percent
impairment of the left leg pursuant page 509 of the A.M.A., Guides. He noted that appellant had
a history of a partial medial meniscectomy with persistent complaints of pain and atrophy of the
quadriceps and would be a class 1, grade 2, pursuant to the A.M.A., Guides, but he did not
explain his calculation. Dr. Iulo did not state what diagnosis he used on page 509 of the A.M.A.,
Guides and he did not identify grade modifiers for appellant’s condition or apply the grade
modifiers to the net adjustment formula set forth in the A.M.A., Guides.15 Thus, his
supplemental report did not explain precisely how he arrived at five percent leg impairment
under the A.M.A., Guides. Dr. Iulo’s reports are of little probative value.16 An OWCP medical
adviser reviewed his findings and noted that he again did not explain his calculation. The
medical adviser attempted to use Dr. Iulo’s findings to rate impairment but, as noted, he arrived
at a two percent impairment calculation for the left leg under the A.M.A., Guides and was unable
to determine how Dr. Iulo may have calculated impairment based on his stated findings.
Consequently, the medical evidence is insufficiently developed to properly determine the degree
of appellant’s left leg permanent impairment.
The Board has held that, once OWCP starts to procure medical opinion, it must do a
complete job. OWCP has the responsibility to obtain from its referral physician an evaluation
that will resolve the issue involved in the case.17 Here, it did not obtain a report from Dr. Iulo
that sufficiently explains how he calculated appellant’s left leg permanent impairment under the
A.M.A., Guides. The Board will set aside OWCP’s April 12, 2011 decision and remand the case
for proper development of the medical evidence which includes appellant’s referral to an
appropriate Board-certified specialist for the purpose of securing a reasoned medical opinion
which addresses and explains the extent of his left leg impairment pursuant to the A.M.A.,
Guides. After such further development as may be necessary, OWCP shall issue an appropriate
merit decision on appellant’s entitlement to schedule compensation for the left lower extremity.
15

Id. at 516-19, 521.

16

See Carl J. Cleary, 57 ECAB 563, 568 n.14 (2006) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative value in
determining the extent of a claimant’s impairment).
17

A.R., Docket No. 11-692 (issued November 18, 2011); Richard F. Williams, 55 ECAB 343 (2004); see Mae Z.
Hackett, 34 ECAB 1421, 1426 (1983).

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this opinion.
Issued: April 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 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. 3
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.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

2

without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

3

medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

5

On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.16
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 17 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
ADMINISTRATION, Forest Hills, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0902
Issued: July 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2015 appellant, through counsel, filed a timely appeal from a February 6,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on November 10, 2012 in the
performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. The facts relevant to the instant appeal
will again be set forth.
1

5 U.S.C. § 8101 et seq.

On July 25, 2013 appellant, then a 56-year-old transportation security administration
officer, filed a traumatic injury claim alleging that on November 10, 2012 he injured his right
knee while climbing into a bunk in the performance of duty. He did not stop work.
On June 28, 2013 Dr. Brett M. Barnhart, a Board-certified orthopedic surgeon, noted that
appellant had a history of knee pain for 15 years that “seemed to get more painful here recently
after he went for Hurricane Sandy relief for 43 days in Nov[ember]/Dec[ember] and was
climbing into a bunk.” He diagnosed right lower leg joint pain and localized osteoarthrosis of
the right lower leg. Dr. Barnhart noted that appellant’s pain was of “insidious onset, with
gradual progression” and that he had “some pain associated with working in a ship in
New York….”
A July 8, 2013 magnetic resonance imaging (MRI) scan study of the right knee revealed a
complex posterior horn medial meniscal tear and osteoarthritis, especially of the medial
compartment.
In a progress report dated July 17, 2013, Dr. Barnhart reviewed the results of the MRI
scan study and diagnosed a right tear of the medial cartilage of the knee. He indicated that
appellant related a history of anterior and medial pain “of insidious onset, with gradual
progression….” Dr. Barnhart recommended arthroscopic surgery.
In a form report dated July 19, 2013, Dr. Barnhart reviewed appellant’s history of right
knee pain, increasing beginning around eight months earlier. He diagnosed moderate
degenerative arthritis and a medial meniscus tear of the right knee. Dr. Barnhart indicated that
he was not able to determine whether the diagnosed condition was caused or aggravated by the
described employment activity without additional evaluation.
In a statement dated July 26, 2013, appellant related that on November 10, 2013 he was
stationed on a ship as part of a surge capacity team. He stated, “As I was attempting to climb up
to the bunk by stepping on an approximately two-inch wide angle iron step, then slide under the
side safety rail of the bunk, I felt a pain in my right knee. I thought it was a pulled muscle or
tendon and continued to work.” In May 2013, appellant sought treatment from a specialist, who
diagnosed a meniscal tear.
On August 1, 2013 Dr. Barnhart performed a right knee partial medial meniscectomy,
patellofemoral chondroplasty, and a medial femoral chondroplasty. In a form report dated
August 19, 2013, he found that appellant could return to work with restrictions.
By decision dated September 5, 2013, OWCP denied appellant’s claim after finding that
the medical evidence was insufficient to establish that he sustained a diagnosed condition
causally related to the accepted November 10, 2012 work incident.
Appellant appealed to the Board. In a decision dated March 7, 2014, the Board affirmed
the September 5, 2013 OWCP decision finding that the medical evidence was insufficient to
show that he sustained an injury to his right knee on November 10, 2012.2
2

Docket No. 14-41 (issued March 7, 2014).

2

In a report dated September 30, 2013, received by OWCP on May 22, 2014, Dr. Barnhart
indicated that appellant began experiencing right knee pain when he climbed into a bunk while
working to provide relief after Hurricane Sandy. He also described a history of recurrent knee
pain over a period of years that “seemed to get worse after the relief efforts.” Dr. Barnhart
diagnosed a tear of the medial meniscus of the right knee status post partial meniscectomy and
right osteoarthrosis of the lower leg. He noted that in his initial evaluation he was unaware that
appellant’s pain resulted from an injury though he did reference pain while working on a ship for
Hurricane Sandy relief. Dr. Barnhart obtained a current history of injury from appellant as
experiencing “severe pain and a pop when he twisted the right knee stepping onto a bunk step to
climb into the top bunk….” He stated:
“I believe that [appellant] had some preexisting knee DJD [degenerative joint
disease] but he did not seem to be symptomatic. I have no evidence of whether he
did or did not have a preexisting meniscus tear although it is unlikely that he did
considering that he was essentially asymptomatic. The twisting injury certainly
describes a mechanism that could lead to a meniscus tear and certainly could have
aggravated [appellant’s] previously minimally symptomatic DJD. I do think that
his injury on November 10, 2012 caused or contributed to his diagnosis of [a]
medial meniscus tear and symptomatic DJD.”
In a report dated November 7, 2014, Dr. James R. Morse, who specializes in family
medicine, noted that appellant experienced constant right knee pain after an “injury during the
clean-up from [H]urricane Sandy.” He related that appellant experienced stiffness and swelling
and difficulty performing extensive walking and standing even after his meniscal surgery.
Dr. Morse stated, “[Appellant] had none of these problems prior to going to [employing
establishment] support for [H]urricane Sandy.”
On November 18, 2014 appellant, through counsel, requested reconsideration.
By decision dated February 6, 2015, OWCP denied modification of its prior merit
decision.3 It found that the medical evidence was insufficient to show that appellant sustained a
diagnosed condition as a result of the accepted work incident. OWCP noted that Dr. Barnhart
relied upon an accurate history of twisting his right knee while getting into a bunk, but that he
described his injury as occurring when he slid under the safety rail climbing onto the top bunk.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
3

OWCP indicated that it was denying modification of the Board’s March 7, 2014 decision; however, the Board’s
decision became final after 30 day of issuance and is not subject to further review except by the Board. See 20
C.F.R. § 501.6(d). Appellant timely requested reconsideration of the prior OWCP decision issued September 5,
2013 within one year of the last merit decision issued by the Board on March 7, 2014.
4

5 U.S.C. § 8101 et seq.

3

limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.9
ANALYSIS
By prior appeal decision dated March 7, 2014, the Board determined that the June 28,
July 17 and 19, and August 19, 2013 reports from Dr. Barnhart had failed to establish that
appellant sustained an injury on November 10, 2012. On November 18, 2014 appellant timely
requested reconsideration before OWCP and submitted additional medical evidence.10
In his report dated September 30, 2013, Dr. Barnhart noted that appellant had right knee
pain for years but that the pain increased after he climbed into a bunk while providing relief after
Hurricane Sandy. He diagnosed right lower leg osteoarthrosis and a tear of the right medial
meniscus. Dr. Barnhart also diagnosed preexisting DJD of the right knee and a possible
preexisting right meniscal tear, though he advised that a preexisting tear was unlikely given
appellant’s lack of symptoms prior to the incident. He obtained a history of appellant hearing a
pop and feeling pain when he twisted his knee stepping up to climb onto a bunk. Dr. Barnhart
opined that appellant’s twisting injury could have aggravated his DJD and torn his meniscus and
concluded that the November 10, 2012 incident caused or contributed to the diagnosed
conditions. He did not, however, rely on an accurate history of injury, as appellant did not
previously describe a twisting injury to his knee.11 Additionally, Dr. Barnhart’s finding that
twisting could have torn appellant’s meniscus and aggravated his preexisting DJD is couched in

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

Supra note 3.

11

Joseph M. Popp, 48 ECAB 624 (1997).

4

speculative terms and thus of little probative value.12 Further, he did not fully explain how the
incident caused or aggravated the medial meniscus tear and DJD. Without a firm diagnosis
supported by medical rationale, Dr. Barnhart’s report is of little probative value.13
On November 7, 2014 Dr. Morse noted that appellant experienced pain after cleaning up
from Hurricane Sandy and continued to experience stiffness, swelling, and problems with
prolonged walking or standing. He noted that appellant did not have these difficulties prior to
his work in the aftermath of Hurricane Sandy. A medical opinion that a condition is causally
related to an employment injury because the employee was asymptomatic before the injury but
symptomatic after it is insufficient, without supporting rationale, to establish causal
relationship.14
As discussed, the mere fact that a condition manifests itself during a period of
employment is not sufficient to establish causal relationship.15 Temporal relationship alone will
not suffice.16 The Board finds that the medical evidence of record fails to establish that appellant
sustained a right knee condition causally related to the accepted November 10, 2012 employment
incident.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
November 10, 2012 in the performance of duty.

12

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
13

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
14

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

15

20 C.F.R. § 10.115(e)

16

See D.I., 59 ECAB 158 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2038
Issued: April 19, 2012

Case Submitted on the Record

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

JURISDICTION
On September 13, 2011 appellant, through her attorney, filed a timely appeal from a
June 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award decision.2

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant’s attorney only challenges the right upper extremity award of 25 percent. He does not
challenge the left upper extremity award of 10 percent. As such, the Board will only adjudicate this aspect of
appellant’s case. See 20 C.F.R. § 501.3.

ISSUE
The issue is whether appellant is entitled to an additional schedule award for right arm
impairment.3
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated September 10, 2009,
the Board set aside a November 30, 2007 schedule award decision finding that appellant had no
more than a 25 percent permanent impairment of the right upper extremity and a 10 percent
permanent impairment of the left upper extremity for which she had received schedule awards.4
The Board determined that the impartial medical examiner, Dr. David A. Bundens, a Boardcertified orthopedic surgeon, failed to properly apply the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001)
in reaching his impairment rating. The Board remanded the case for OWCP to refer appellant to
a second impartial medical examiner.5
By letter dated December 9, 2009, OWCP referred appellant to Dr. Roy Friedenthal, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a report dated
March 9, 2010, Dr. Friedenthal discussed her complaints of right shoulder pain when reaching
overhead, occasional left shoulder pain and bilateral numbness of the hand. On examination of
the shoulders, he found no crepitus, impingement sign, effusion or atrophy. Dr. Friedenthal
measured symmetrical shoulder motion bilaterally with internal rotation to L1, passive abduction
to 95 degrees, passive external rotation to 80 degrees and shoulder extension to 30 degrees. He
found normal two-point discrimination, unreliable Tinel’s testing and Phalen’s testing that
“produces complaints of paresthesias throughout both hands with nonanatomic pattern.”
Dr. Friedenthal noted that a January 23, 2002 electromyogram showed severe compression
neuropathy bilaterally and that a July 6, 2003 magnetic resonance imaging (MRI) scan study of
the right shoulder revealed a full thickness supraspinatus tendon tear. He diagnosed status post
right rotator cuff tear and repair, resolved tenosynovitis and status post bilateral carpal tunnel
releases. Dr. Friedenthal stated:
“Examination at the present time reveals complaints of pain in the right shoulder
and evidence of prior surgery. There is restoration of satisfactory rotator cuff
function with restoration of range of motion within normal limits except for
limitation of internal rotation bilaterally, as noted. [Appellant] shows no relative
muscle atrophy. Residual of rotator cuff repair and decompression would provide
for loss of stamina and residual mild weakness and sensitivity for particularly
3

OWCP also found that appellant had no more than a 10 percent permanent impairment of the left upper
extremity. Appellant’s attorney, however, has appealed only the denial of an increased schedule award for the right
upper extremity.
4

Docket No. 09-266 (issued September 10, 2009). OWCP accepted that appellant sustained right shoulder
supraspinatus tendinitis and bilateral carpal tunnel syndrome due to factors of her federal employment. Appellant
underwent arthroscopic surgery of the right shoulder and bilateral carpal tunnel releases.
5

The Board noted that OWCP had previously sought clarification from the impartial medical examiner.

2

strenuous or repetitive activities. [Appellant’s] surgical result appears quite
satisfactory at the present time and appears stable, with symmetric loss of active
internal rotation as noted.
“[Appellant] shows satisfactory recovery from carpal tunnel release. She does
report loss of sensation into the left middle finger, but subjective clinical findings
are so variable and paradoxical that they are deemed unreliable for assessment.
The objective data reveals full range of motion, absence of muscle atrophy and
with the small exception of noted restoration of two-point discrimination.
[Appellant’s] status appears to be stable without objective evidence of any loss of
median nerve function since satisfactory release.”
Dr. Friedenthal utilized Table 15-23 on page 449 of the sixth edition of the A.M.A., Guides to
evaluate appellant’s impairment due to carpal tunnel syndrome. He determined that prior
positive diagnostic studies yielded a grade 1 modifier and that intact physical findings without
atrophy also yielded a grade 1 modifier and thus found a two percent impairment due to right
carpal tunnel syndrome. For the right shoulder, Dr. Friedenthal determined that appellant had a
class 1 impairment of the right shoulder due to her full thickness rotator cuff tear using the
shoulder regional grid set forth at Table 15-5 on page 403. He found that grade modifiers for
physical examination and functional history did not change the default grade and thus concluded
that she had a five percent right upper extremity impairment due to the rotator cuff tear.
On July 22, 2010 an OWCP medical adviser reviewed Dr. Friedenthal’s March 9, 2010
report. He found that Dr. Friedenthal properly utilized Table 15-23 of the A.M.A., Guides to
evaluate appellant’s carpal tunnel syndrome based on her positive diagnostic studies. The
medical adviser concurred with his finding of a two percent impairment due to carpal tunnel
syndrome. For the right shoulder, he noted that Dr. Friedenthal found no alteration after
applying grade modifiers. The medical adviser found that Dr. Friedenthal thus determined that
appellant had a grade modifier of one for functional history and physical examination and that a
grade modifier for clinical studies was inapplicable. Applying the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) or (1-1) + (1-1) = 0, yielded no alteration from the five
percent default value for a right rotator cuff tear. The medical adviser combined the two percent
impairment due to carpal tunnel syndrome with the five percent shoulder impairment to find a
seven percent right upper extremity impairment.
By decision dated December 2, 2010, OWCP determined that appellant was not entitled
to an additional schedule award. It noted that she had previously received an award for a 25
percent permanent impairment of the right upper extremity and a 10 percent permanent
impairment of the left upper extremity. OWCP concluded that, as Dr. Friedenthal found that
appellant had a seven percent right upper extremity and a five percent left upper extremity under
the sixth edition of the A.M.A., Guides, she was not entitled to an increased award.
On December 7, 2010 appellant, through her attorney, requested an oral hearing. At the
hearing, held on April 12, 2011, counsel challenged the right upper extremity impairment,
arguing that Dr. Friedenthal did not adequately measure range of motion of the shoulder. He
further maintained that Dr. Friedenthal did not address whether appellant underwent resection
arthroplasty of the shoulder.

3

By decision dated June 16, 2011, the hearing representative affirmed the December 2,
2010 decision.
On appeal, appellant’s attorney argues that Dr. Friedenthal’s opinion is insufficient to
resolve the conflict in medical opinion regarding the right upper extremity as he failed to fully
measure range of motion of the right shoulder and did not provide a rating for appellant’s
shoulder surgery.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, reference is made to Table 15-5 (Shoulder
Regional Grid) beginning on page 401. After the class of diagnosis (CDX) is determined from
the Shoulder Regional Grid (including identification of a default grade value), the impairment
class is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history and physical findings. The grade modifiers are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value.
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
10

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

11

Id. at 449, Table 15-23.

4

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12
ANALYSIS
OWCP accepted that appellant sustained right shoulder supraspinatus tendinitis and
bilateral carpal tunnel syndrome due to factors of her federal employment. She underwent a
right rotator cuff repair with subacromial and acromioclavicular decompression and bilateral
carpal tunnel releases. On prior appeal, the Board determined that the opinion of the impartial
medical examiner, Dr. Bundens, was insufficient to resolve the conflict in medical evidence
regarding the extent of appellant’s permanent impairment of the right and left upper extremity.
The Board remanded the case for OWCP to refer her to a second medical examiner. Based on
the report of Dr. Friedenthal, the new impartial medical examiner, OWCP denied appellant’s
claim for an additional schedule award after finding that she had no more than the previously
awarded 25 percent permanent impairment of the right upper extremity and 10 percent
permanent impairment of the left upper extremity.
In a report dated March 9, 2010, Dr. Friedenthal noted that appellant experienced right
shoulder pain with overhead reaching and bilateral numbness of the hand. On examination of the
shoulder, he found no atrophy, crepitus, impingement sign or joint effusion. Dr. Friedenthal
determined that appellant had full range of motion of the shoulder except for a bilateral loss of
internal rotation. For the wrists he found no loss of motion or atrophy or evidence of objective
loss of median nerve function and a nonanatomic pattern of paresthesias on Phalen’s testing.
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.13 The Board finds that Dr. Friedenthal’s opinion is
entitled to special weight as the impartial medical examiner. Under the sixth edition of the
A.M.A., Guides, impairments of the upper extremities are covered by Chapter 15. Section 15.2,
entitled Diagnosis-Based Impairment (DBI) provides that DBI is the primary method of
evaluation of the upper limb.14 The initial step in the evaluation process is to identify the
impairment class by using the corresponding diagnosis-based regional grid. Dr. Friedenthal
utilized the shoulder regional grade at Table 15-5 and identified a class 1 impairment due to a
full thickness rotator cuff tear, which yielded a default value of five. He determined that grade
modifiers for functional history and physical examination did not modify the default value. An
OWCP medical adviser reviewed Dr. Friedenthal’s finding and concurred with his conclusion
that appellant had no more than a five percent upper extremity impairment of the right arm due
to her shoulder impairment. He noted that Dr. Friedenthal found that grade modifiers did not
alter the default value, which yielded a grade modifier of one for functional history and physical
examination. The grade modifier for clinical studies was not applicable as an MRI scan study
12

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

13

Supra note 2.

14

A.M.A., Guides. at 387, section 15.2

5

was used in making the diagnosis of a full thickness rotator cuff tear.15 The net adjustment
formula, (GMFH - CDX) + (GMPE - CDX) or (1-1) + (1-1) = 0, did not change the default value
of five percent.
As appellant had electrodiagnostic evidence of severe compression neuropathy,
Dr. Friedenthal properly applied Table 15-23 to determine her impairment of the right arm due to
carpal tunnel syndrome.16 He found a grade 1 modifier for test findings and physical findings,
which yielded a two percent impairment.
An OWCP medical adviser agreed with
Dr. Friedenthal’s rating of a two percent right arm impairment due to carpal tunnel syndrome.
The medical adviser combined the five percent right arm impairment due to the shoulder and the
two percent impairment due to carpal tunnel syndrome to find a seven percent right arm
impairment. As this was less than the 25 percent previously awarded, OWCP properly found
that appellant was not entitled to an increased schedule award.
On appeal, appellant’s attorney argues that Dr. Friedenthal’s opinion is of little weight as
he failed to fully measure range of motion of the right shoulder. As discussed, however, the
sixth edition of the A.M.A., Guides emphasizes that the diagnosed-based impairment is the
primarily method of evaluation for the upper limb.17 Counsel also maintains that Dr. Friedenthal
should have also provided an impairment rating based on appellant’s right shoulder surgery. The
A.M.A., Guides, however, states that typically only one diagnosis is used per region to determine
impairment.18
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award for the right
arm impairment.

15

Id. at 407.

16

Id. at 448; see A.W., Docket No. 11-1421 (issued January 6, 2012).

17

Id. at 461.

18

Id. at 389, 499.

6

ORDER
IT IS HEREBY ORDERED THAT the June 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7