United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Tyler, TX, Employer
__________________________________________

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

Docket No. 08-1048
Issued: January 14, 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 February 25, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs’ hearing representative dated March 30, 2007 affirming a
September 5, 2006 decision, which denied her occupational disease claim. She also appealed a
November 20, 2007 nonmerit decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she
sustained an injury in the performance of duty causally related to factors of her federal
employment; and (2) whether the Office properly denied her request for merit review of her
claim under 5 U.S.C. § 8128.

FACTUAL HISTORY
On June 5, 2006 appellant, then a 42-year-old contract specialist, filed an occupational
disease claim alleging that her asthma had been aggravated by mold from a window near her
rotating workstation. She first became aware of her condition August 24, 2005 and related it to
her employment on January 15, 2006. Appellant did not stop work. The employing
establishment noted remedial action to get rid of the mold was still underway.
In a September 5, 2005 emergency room report, Dr. Mark R. Anderson, an examining
Board-certified emergency room physician, diagnosed dyspnea with acute bronchitis and
exacerbation of her asthma. Under history of present illness, he reported that appellant had been
diagnosed with pneumonia.
In a September 10, 2005 emergency room report, Dr. Bradley D. Robertson, an
examining Board-certified family medicine physician, stated that appellant was seen due to
complaints of chest discomfort and shortness of breath. Under history, he stated that appellant
had been diagnosed with pneumonia and had been seen in the emergency room earlier that
month. Appellant related that “she would feel better and then it seems to come back.”
Dr. Robertson diagnosed atypical chest pain and acute bronchospasm.
On June 22, 2006 the Office notified appellant that the evidence submitted was
insufficient to establish her claim. It advised her to submit within 30 days a medical narrative
from her treating physician, which contained a diagnosis and a rationalized opinion as to the
cause of her condition.
On July 26, 2006 Dr. Christopher J. Wrenn, an examining physician Board-certified in
allergy and immunology, noted appellant’s severe asthma problem began in August 2005 and
that she had been seen in the emergency room three times. He stated that appellant’s work site
had been “found to be very moldy and intense remediation for that started in May this year and
[appellant] had another asthma attack.” Dr. Wrenn reported that skin tests revealed that
appellant had severely positive results to various items including mold. Appellant was diagnosed
with allergic rhinitis, recurrent laryngitis by history, secretory otitis media, congestion headache
by history, recurrent angioedema/urticaria by history and hyperreactive airway disease by
history. Dr. Wrenn reported that appellant’s “home environment reveals very little exposure to
anything except for East Texas environmental allergens and exposure to mold at work.”
In a second report dated July 26, 2006, Dr. Wrenn noted that appellant is very reactive to
mold, dust, hay, grass and weed pollens. He related:
“[Appellant] has had two episodes of asthma that persisted for long periods of
time and were quite severe and has been exposed to a lot of mold. It is very
possible that the exposure to the mold contributed to the two spells of asthma
through which she suffered based on the historical time frame in which the spells
occurred.”

2

By decision dated September 5, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that her diagnosed condition was causally related to
the accepted exposure in the workplace.
On September 25, 2006 appellant requested an oral hearing before an Office hearing
representative, which was held on February 14, 2007.
Subsequent to the hearing, the Office received a November 9, 2005 report regarding the
mold problem at her work site and molder removal/remediation protocol, statements by
coworkers, Betty Paul and Ashley Jett and a March 5, 2007 report by Dr. Wrenn, who reported
that appellant was “very reactive to mold and dust.” Dr. Wrenn opined that appellant had “a lot
of symptomatology, much of it severe and life-threatening prior to mold/dust remediation in her
office” and has had “very little trouble” since the remediation.
In their statements, both Ms. Paul and Ms. Jett noted that appellant appeared fine when
she first arrived at work, but noted swelling in her hands and face as the day progressed.
Appellant informed them that she was having trouble breathing. She also pointed out the mold
under the wallpaper near her work site.
By decision dated March 30, 2007, the Office hearing representative affirmed the denial
of her claim.
In a letter dated October 19, 2007, appellant requested reconsideration and submitted a
September 26, 2007 report by Dr. Wrenn in support of her request. Dr. Wrenn noted that
appellant was very sensitive to mold and house dust and that exposure “to either of these items
for a prolonged period will increase her upper and lower respiratory tract symptoms” and he had
no doubt that her work exposure was the cause of her problem.
By decision dated November 20, 2007, the Office denied modification of the hearing
representative’s March 30, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that any specific condition or disability for work for which he
claims compensation is causally related to the employment injury.2 In an occupational disease
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.115(e), (f). See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Gary M. DeLeo, 56 ECAB
656 (2005). See also Jacquelyn L. Oliver, 48 ECAB 232 (1996). Causal relationship is a medical question that can
generally be resolved only by rationalized medical opinion evidence. See Robert G. Morris, 48 ECAB 238 (1996).
A physician’s opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors must be based on a complete factual and medical background of
the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be considered rationalized,
the opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors. Id.

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claim, to establish that an injury was sustained in the performance of duty, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the diagnosed condition is causally related
to the employment factors identified by the claimant.3
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to meet her burden of proof in establishing that
she developed an occupational disease in the performance of duty. The Office accepted that
there was mold under wallpaper near a window in appellant’s work environment, but found that
the medical evidence did not support a causal relationship between established work factors and
a diagnosed condition. The question that remains is whether this exposure aggravated her
asthma.
Dr. Wrenn treated appellant for exacerbation of her asthma. He reported on July 26,
2006 that she had “a lot of symptomatology, much of it severe and life-threatening prior to
mold/dust remediation in her office” and has had “very little trouble” since the remediation.
Dr. Wrenn reported in a second July 26, 2006 report that it was “very possible” that appellant’s
exposure to mold contributed to the two asthma attacks. His reports are speculative in nature as
they state it is possible appellant’s exposure to mold caused her asthma attacks at work.4 As
Dr. Wrenn’s opinion speculative and equivocal in nature, his reports are not sufficient to
establish appellant’s claim.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.5
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.6 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.7
As there is no medical evidence explaining how appellant’s exposure to mold aggravated
her asthma condition, appellant has not met her burden of proof in establishing that she sustained
a medical condition in the performance of duty causally related to factors of her employment.

3

R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); Victor J. Woodhams, supra note 2.

4

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007) (where the Board held that medical opinions
which are speculative or equivocal in character have little probative value).
5

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

7

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007) (to establish entitlement to workers’
compensation benefits, a claimant must submit an affirmative opinion on causal relationship from a physician who
supports the opinion with sound medical reasoning).

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LEGAL PRECEDENT -- ISSUE 2
The Act8 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.9 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.10
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.11
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.12 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.13
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of her claim and requested reconsideration. The
underlying issue on reconsideration was whether she submitted sufficient medical evidence to
establish that her asthma was aggravated by her employment.
In support of her claim, appellant submitted a September 26, 2007 report by Dr. Wrenn,
who noted that appellant was very sensitive to mold and house dust such that he had no doubt
that her work exposure was the cause of the aggravation of her asthma. This report, however did
not provide any further support for causal relationship beyond that noted in the physician’s two
reports dated July 26, 2006. Thus, while the September 26, 2007 report is new, it is not relevant
as it is duplicative of his prior reports with regard to causal relationship. Evidence or argument

8

5 U.S.C. § 8101 et seq.

9

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

10

20 C.F.R. § 10.605.

11

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

12

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

13

Id. at §10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

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that repeats or duplicates evidence previously of record has no evidentiary value and does not
constitute a basis for reopening a case.14
Consequently, appellant has not submitted relevant and pertinent new evidence not
previously considered by the Office; nor has she shown that the Office erroneously applied or
interpreted a specific point of law or advanced a relevant new argument not previously
considered by the Office. Therefore, the Office properly denied her request for reconsideration
without conducting a merit review of the claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
developed an occupational disease over the course of her employment. The Board further finds
that the Office properly refused to reopen appellant’s case for further review of the merits of her
claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 20 and March 30, 2007 are affirmed.
Issued: January 14, 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

14

L.C., 58 ECAB ___ (Docket No. 06-1928, issued May 31, 2007); J.P., 58 ECAB ___ (Docket No. 06-1274,
issued January 29, 2007).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1739
Issued: May 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 18, 2010 appellant, through her attorney, filed a timely appeal from a
February 8, 2010 merit decision of the Office of Workers’ Compensation Programs which denied
her claim for recurrence and a May 19, 2010 decision which denied her request for
reconsideration. The Board assigned Docket No. 10-1739 to the appeal.
The Board, having duly reviewed the case record submitted by the Office, notes that on
July 8, 2005 appellant, then a 49-year-old transportation security screener, filed a traumatic
injury claim alleging that on July 6, 2005 she sustained a right neck sprain as a result of lifting a
bag. On October 31, 2005 the Office accepted her claim for right shoulder and arm sprain. She
had surgery on March 22, 2006 and the Office placed her on the periodic rolls. On May 15, 2008
appellant returned to work in a limited-duty capacity as an exit lane monitor.1
On June 26, 2009 appellant filed a claim alleging that she sustained a recurrence of her
original injury on February 25, 2009. She alleged that she was being reassigned from her
administrative position back to the limited-duty airport position due to retaliation for having
1

The record reflects that at some later date appellant was moved from the airport position to an administrative
position outside the airport.

missed work due to an injury she received on February 25, 2009, where she was struck by a
falling beam at a train station on the way to work.2 Appellant was offered, by letter dated March
20, 2009, an exit lane monitor position but on March 27, 2009 she refused the reassignment and
stopped work.
By decision dated September 9, 2009, the Office denied appellant’s claim for a
recurrence of total disability commencing February 25, 2009 as she had failed to establish either
a change in the nature or extent of her disability or light-duty assignment.
Following a request for reconsideration the Office, by decision dated February 8, 2010,
denied modification of the September 9, 2009 decision on the grounds that she was not in the
performance of duty on February 25, 2009 as she was traveling to her workplace and sustained
an off-premises injury that was unrelated to the accepted injury of July 6, 2005.
Again, after a request for reconsideration, the Office denied her claim on May 19, 2010
without considering the merits of her claim.
The Board finds that this case is not in posture for a decision. The Office has failed to
properly adjudicate appellant’s claim for recurrence. Appellant alleged that her light-duty
position was changing when she was transferred from the administrative position back to an exit
lane monitor position at the airport. The March 20, 2009 job offer states: “This is an addendum
to the original job offer that was made to you and you accepted on May 15, 2008. Effective
March 29, 2009 your new limited duty location and RDO’s will be as follows: Terminal A
checkpoint 1 from 1200-2030 hours with M/T as your RDO’s.” (Emphasis added.) While the
addendum supports appellant’s allegation that her light-duty position was changing, it is unclear
from the record as to what position she held at the time she claimed a recurrence on
February 25, 2009. The Office handled this claim first as a recurrence, then as a traumatic injury
claim and finally again as a recurrence. At no point has it accurately addressed appellant’s claim
that her light-duty administrative position was changed when she was offered the “new” airport
position. The Office’s September 9, 2009 and May 19, 2010 decisions do not properly focus on
the true issue. Consequently, the case will be remanded for the Office to properly adjudicate the
issue of whether there was a change in appellant’s light-duty assignment or a change in the
nature and extent of her condition that caused a recurrence of total disability on
February 25, 2009.3 Following this and such other development as deemed necessary, the Office
shall issue a de novo decision.

2

In an April 6, 2009 medical report, Dr. Oscar Sandoval, a psychiatrist, indicated that appellant had been working
at the main office 1085 Morris Avenue, 2nd floor, under the supervision of Darshana Shah for the past nine months
reviewing the information data processed by multiple coworkers throughout the airport for eight hours on a
computer. He diagnosed a head concussion and opined that appellant was not emotionally able to perform the job
duties required at the airport.
3

In Terry L. Hedman, 38 ECAB 222 (1986), the Board stated that the “employee must show a change in the
nature and extent of the injury-related condition, or a change in the nature and extent of the light[-]duty
requirements.” See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrence, Chapter 2.1500.2
(March 2011). See also 20 C.F.R. §§ 10.104, 10.121.

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IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 19 and February 8, 2010 be set aside and the case remanded for further
development consistent with this order of the Board.
Issued: May 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE AIR FORCE, DOVER
AIR FORCE BASE, DE, Employer
__________________________________________

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

Docket No. 07-93
Issued: May 14, 2007

Case Submitted on the Record

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

JURISDICTION
On October 12, 2006 appellant filed a timely appeal from a June 20, 2006 decision of the
Office of Workers’ Compensation Programs, denying his request for reconsideration and an
April 10, 2006 decision adjudicating his schedule award claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 20 percent permanent impairment
of the left lower extremity; and (2) whether the Office abused its discretion in denying his
request for reconsideration.

FACTUAL HISTORY
On August 17, 1998 appellant, then a 60-year-old material handler/forklift operator,
sustained a left hip contusion and a torn meniscus of the left knee in the performance of duty
after he fell stepping from a vehicle and slipping in grease. On June 10, 1999 appellant
underwent arthroscopic surgery, including a left medial and lateral meniscectomy and
chondroplasty of the left medial femoral condyle performed by Dr. Steven E. Tooze, an
attending orthopedic surgeon. On April 18, 2000 appellant filed a claim for a schedule award.
On October 16, 2000 Dr. Tooze stated that appellant’s left knee was doing fairly well.
There was no catching, giving way or snapping. However, there was tightness and aching,
especially with weather changes and intermittent swelling. There was approximately three to
five centimeters of joint effusion. There was no excessive warmth, erythema or reproducible
tenderness. There was full range of motion of the left knee in extension and 137 degrees of
flexion. Dr. Tooze indicated that appellant would need a total knee replacement at some time in
the future.
On May 9, 2000 a district medical adviser stated that, based on the physical findings of
Dr. Tooze, appellant had a 17 percent impairment of the left leg, including 10 percent for a
medial and lateral partial meniscectomy and 7 percent for mild cruciate ligament laxity,
according to Table 64 at page 85 of the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. There was no impairment based on loss of
range of motion.
By decision dated June 21, 2000, the Office granted appellant a schedule award for 48.96
weeks, for the period March 16, 2000 to February 21, 2001, based on a 17 percent impairment of
the left leg.1
On August 27, 2004 Dr. Tooze stated that appellant had a 20 percent impairment based
on the fifth edition of the A.M.A., Guides.2 He did not explain how he made his impairment
rating or reference specific portions of the A.M.A., Guides.
A district medical adviser found that appellant had an additional three percent impairment
of the left knee based on the physical findings of Dr. Tooze. He indicated that there was
additional impairment based on worsening of appellant’s osteoarthritis, according to Table 17-31
at page 544 of the fifth edition of the A.M.A., Guides. The district medical adviser indicated that
a zero millimeter cartilage interval represented a 20 percent impairment of the left knee.3 He

1

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 17 percent equals 48.96 weeks of
compensation.
2

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

3

It appears that the district medical adviser did not understand that Table 17-31 at page 544 provides for a 20
percent impairment of the whole person for a 0 millimeter cartilage interval. Table 17-31 provides for a 50 percent
impairment of the lower extremity for a 0 millimeter interval.

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recommended an additional schedule award of 3 percent as appellant had previously been rated
with a 17 percent impairment.
On November 26, 2004 the Office granted appellant a schedule award for 8.64 weeks for
the period August 27 to October 26, 2004 based on an additional three percent impairment of the
left lower extremity.
Appellant advised the Office that the additional schedule award did not adequately reflect
the extent of his permanent impairment.
The Office referred appellant to Dr. Robert A. Smith, a Board-certified orthopedic
surgeon, for a second opinion evaluation of his left lower extremity impairment.
On April 4, 2006 Dr. Smith provided a history of appellant’s condition and findings on
physical examination. He stated that appellant’s left knee had mild varus deformity. Appellant
was experiencing pain in his left knee. There was no instability or atrophy and normal strength.
Range of motion was normal for extension but appellant had only 100 degrees of flexion. The
2005 x-rays provided by appellant revealed cartilage joint space narrowing to three millimeters.
Dr. Smith found that appellant had a 19 percent impairment of the left lower extremity, including
2 percent for a partial medial or lateral meniscectomy, according to Table 17-33 at page 546 of
the A.M.A., Guides, 10 percent loss of flexion of 100 degrees, according to Table 17-10 at page
537 and 7 percent for narrowing of the knee cartilage joint space to 3 millimeters due to
postmeniscectomy arthritis, according to Table 17-31 at page 544.
By decision dated April 10, 2006, the Office found that appellant had no more than the 20
percent impairment of his left lower extremity, for which he had received a schedule award.
On April 20, 2006 appellant requested reconsideration and indicated that his left knee
conditions had become worse. He stated that he was not able to stand for long periods of time
and his knee locked in place when he walked. Appellant indicated that he would need a knee
replacement at some time in the future. He stated that x-rays used by Dr. Smith were not current
and did not accurately reflect his knee condition.
On July 20, 2006 the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act4 and its implementing regulation5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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all claimants. The A.M.A., Guides6 has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.
ANALYSIS -- ISSUE 1
Dr. Smith stated that appellant’s left knee had mild varus deformity. Appellant was
experiencing pain in his left knee. There was no instability or atrophy and normal strength.
Range of motion was normal for extension but appellant had only 100 degrees of flexion. The
2005 x-rays provided by appellant revealed cartilage joint space narrowing to three millimeters.
Dr. Smith found that appellant had a 19 percent impairment of the left lower extremity, including
2 percent for a partial medial or lateral meniscectomy, according to Table 17-33 at page 546 of
the A.M.A., Guides, 10 percent for flexion of 100 degrees, according to Table 17-10 at page 537,
and 7 percent for narrowing of the knee cartilage joint space to three millimeters due to
postmeniscectomy arthritis, according to Table 17-31 at page 544.
Dr. Smith did not correctly apply the A.M.A., Guides regarding appellant’s
meniscectomy and decreased range of motion. He found a two percent impairment for a medial
or lateral meniscectomy. However, appellant’s meniscectomy was both medial and lateral as
noted in the June 10, 1999 operative report. Therefore, he has a 10 percent impairment for a
partial medial and lateral meniscectomy, according to Table 17-33 at page 546 of the A.M.A.,
Guides. Regarding range of motion, Dr. Smith correctly found that appellant had a 10 percent
impairment for 100 degrees of flexion, according to Table 17-10 at page 537. However, he
indicated that appellant had mild varus deformity. A mild varus deformity equates to a 10
percent impairment, according to Table 17-10. Dr. Smith also indicated that appellant had left
knee pain but he did not indicate whether appellant had any impairment based on a peripheral
nerve injury (pain/sensory deficit) which is addressed in section 17.2l of the A.M.A., Guides at
pages 550 to 552. The cross-usage chart Table 17-2 at page 526 of the A.M.A., Guides permits
the following combinations which are relevant to appellant’s schedule award claim: arthritis
impairment can be combined with diagnosis based impairment and peripheral nerve injury
(pain). Range of motion impairment can be combined with peripheral nerve injury but not with
arthritis impairment or diagnosis-based impairment. The Office attempted development of the
medical evidence by referring appellant to Dr. Smith for examination and an opinion of
permanent impairment. On remand, the Office should further develop the medical evidence by
referring appellant back to Dr. Smith or another appropriate specialist for a comprehensive
evaluation of his impairment due to his left knee conditions. The physician should determine
appellant’s impairment with reference to the cross-usage chart at Table 17-2.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required. In light of the resolution of the first issue, the second issue is
moot.

6

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 20 and April 10, 2006 are set aside and the case is remanded
for action consistent with this decision.
Issued: May 14, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 16-1383
Issued: December 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 21, 2016 appellant, through counsel, filed a timely appeal from a May 6, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish ratable permanent
impairment of the right lower extremity.
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.

FACTUAL HISTORY
OWCP accepted that on September 1, 2001 appellant, then a 53-year-old casual clerk in a
90-day appointment, sustained sprains of the dorsum of her right foot and lateral malleolus when
a bulk mail cart rolled over her foot. She stopped work that day and received wage-loss
compensation on the daily rolls.
Immediately following the injury on September 1, 2001, appellant sought emergency
room treatment. Dr. Teresa Baranowski, an osteopathic physician Board-certified in internal
medicine, found mild deltoid ligament swelling.
X-rays showed no acute fracture.
Dr. Baranowski noted that appellant also had insulin-dependent diabetes mellitus. She diagnosed
“[r]ight foot dorsum and lateral malleoli sprain.”
October 1, 2001 x-rays of the right foot showed a possible avulsion fragment of bone
anterior talus. October 17, 2001 nerve conduction velocity (NCV) and electromyography (EMG)
studies demonstrated peripheral neuropathy of the right lower extremity. An October 23, 2001
bone scan showed abnormal activity in the right hindfoot in the superior aspect of the talar neck
and the anterior calcaneus laterally. Appellant underwent a series of sympathetic nerve blocks
from March to May 2002.
On January 12, 2004 appellant claimed a schedule award (Form CA-7). As the medical
evidence did not indicate that she had reached maximum medical improvement, OWCP did not
develop the schedule award claim at that time.
On May 7, 2004 Dr. Daniel Mankoff, an attending Board-certified anesthesiologist, opined
that appellant had reached maximum medical improvement, with significant symptomatic
improvement after a series of nerve blocks.
In a February 9, 2007 letter, OWCP advised appellant to obtain an impairment rating from
her attending physician, confirming that she had attained maximum medical improvement, and
rating any permanent impairment of the right lower extremity according to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).
In response, appellant provided an April 19, 2007 report from Dr. Jeffrey F. Wirebaugh, a
Board-certified family practitioner, who diagnosed complex regional pain syndrome.
Dr. Wirebaugh assessed 11 percent permanent impairment of the right lower extremity due to
restricted motion of the foot, according to the fifth edition of the A.M.A., Guides, then in effect.
On May 18, 2009 OWCP obtained a second opinion from Dr. Jeffrey Middledorf, an
osteopathic physician Board-certified in physiatry, who found no basis for an impairment rating
as there were no abnormal findings on examination. It found a conflict of medical opinion as to
whether appellant continued to have residuals of the accepted occupational injuries. To resolve
the conflict, OWCP selected Dr. Michael Holda, a Board-certified orthopedic surgeon to serve as
an impartial medical examiner. Dr. Holda provided a September 18, 2009 report diagnosing
chronic right foot pain that did not meet the criteria for complex regional pain syndrome. He
found no ratable impairment of the right leg as there were no objective abnormalities.

2

On April 16, 2011 appellant filed a second schedule award claim (Form CA-7). In
support of her claim, she provided an October 16, 2011 impairment rating by Dr. William Grant,
a Board-certified orthopedic surgeon. On examination of the right foot, Dr. Grant found a fallen
arch and thickening in the plantar aspect. He calculated 24 percent permanent impairment of the
right lower extremity due to an open right foot fracture and sprain, according to Table 16-2 of the
sixth edition of the A.M.A., Guides.3
An OWCP medical adviser reviewed Dr. Grant’s report on April 19, 2012 and found it
unreliable due to errors in history, examination, and impairment calculation. He recommended
that OWCP obtain a second opinion.
On October 8, 2012 OWCP obtained a second opinion from Dr. Emmanuel Obianwu, a
Board-certified orthopedic surgeon. Dr. Obianwu reviewed the medical record and statement of
accepted facts. On examination, he noted no vascular impairment of either foot, normal arches
bilaterally, and nearly full, identical motion in both feet and ankles. Dr. Obianwu obtained xrays significant for degenerative changes in the calcaneocuboid and talonavicular joints, with
narrowing of the joint spaces to two millimeters. He diagnosed a “[s]evere mid foot sprain with
capsular avulsion injuries to the dorsal talonavicular joint and calcaneocuboid joint, August 25,
2001,” a resolved sprain of the lateral ligament complex, and impingement of the right subtalar
joint with a mild osteophyte and two-millimeter cartilage interval, and diabetic peripheral
neuropathy of both feet. Dr. Obianwu opined that appellant had attained maximum medical
improvement. He explained that imaging studies taken shortly after the September 1, 2001
injuries showed significant uptake in the area of the osteophytes and a reduced cartilage interval,
demonstrating that the injuries caused those changes. Referring to Table 16-2 of the A.M.A.,
Guides, Dr. Obianwu found a class 1 for the Class of Diagnosis (CDX) impairment of subtalar
arthritis with a two-millimeter cartilage interval, with a default value of five percent. In an
attached worksheet, he assessed a plus two modifier for Clinical Studies (GMCS), a plus one
modifier for Functional History (GMFH), and a plus one modifier for findings on Physical
Examination (GMPE). Applying the net adjustment formula, (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX), (1-1) + (1-1) + (2-1), resulted in a net modifier of plus one, which moved the
default five percent impairment upward to six percent. Dr. Obianwu therefore found six percent
impairment of the right leg.
An OWCP medical adviser reviewed Dr. Obianwu’s report on December 18, 2012. He
explained that it was inappropriate to add a separate GMCS as it was included in the CDX. The
appropriate net adjustment formula was (1-1) + (1-1) + (1-1), resulting in a net modifier of zero.
Appellant, therefore, had five percent permanent impairment of the right leg.
OWCP then found a conflict of medical opinion between Dr. Grant, for appellant, and
Dr. Obianwu, for the government, regarding the appropriate percentage of permanent
impairment. To resolve the conflict, it selected Dr. David Frye, an osteopathic physician Boardcertified in orthopedic surgery. Dr. Frye provided a March 26, 2014 report reviewing the
medical record and statement of accepted facts. He found that appellant had attained maximum
medical improvement. On examination of the right foot and ankle, Dr. Frye noted pain to
3

Table 16-2, page 501 of the sixth edition of the A.M.A., Guides is titled “Foot and Ankle Regional Grid.”

3

palpation of the right medial and lateral malleolar prominence, a normal vascular examination,
and absent reflexes in both feet. He obtained x-rays of the right lower extremity showing a
“bony prominence in the anterior talus neck and calcaneocuboid junction.” Dr. Frye diagnosed a
resolved right lateral ankle and forefoot contusion, idiopathic degenerative changes of the
talonavicular and calcaneocuboid joints, and diabetic peripheral neuropathy. He opined that the
diagnosed conditions were unrelated to the accepted injuries, because October 2001 imaging
studies documented degenerative changes that could not have developed so soon after the
September 1, 2001 injury. Dr. Frye explained that appellant had no permanent impairment
related to the accepted right lower extremity injuries as they had resolved without objective
residuals.
An OWCP medical adviser reviewed Dr. Frye’s report on April 15, 2014 noting that,
while OWCP had not accepted subtalar arthritis as work related, it should have been included in
Dr. Frye’s impairment rating as a preexisting condition. Based on this, OWCP requested a
supplemental opinion from Dr. Frye on April 18, 2014.
In a May 6, 2014 supplemental report, Dr. Frye referred to Table 16-2 and found
diagnosis-based impairment of subtalar arthritis with a two-millimeter cartilage interval, which
provided a default rating of five percent. He found no modifiers for functional history or
findings on physical examination. Dr. Frye, therefore, found five percent permanent impairment
of the right lower extremity.
An OWCP medical adviser reviewed Dr. Frye’s supplemental report on May 13, 2014.
He disagreed with Dr. Frye’s application of the net adjustment formula. The medical adviser
opined that as applied to appellant’s case, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or
(0-1) + (0-1), resulted in a net modifier of negative two, moving the default five percent for the
CDX for subtalar arthritis downward two places to three percent. He therefore found three
percent permanent impairment of the right lower extremity.4
By decision dated July 25, 2014, OWCP issued a schedule award for three percent
impairment of the right foot. The period of the award, 6.15 weeks, ran from March 26 to
May 8, 2014.
Appellant disagreed, and in an August 11, 2014 letter, through counsel, requested a
telephonic hearing before an OWCP hearing representative, held on March 25, 2015. At the
hearing, counsel asserted that OWCP mistakenly awarded 6.15 weeks of compensation for three
percent impairment of the right foot only, whereas she was entitled to 8.64 weeks of
compensation for three percent impairment of the right leg.
By decision dated July 7, 2015, an OWCP hearing representative set aside OWCP’s
July 25, 2014 schedule award determination, and remanded the case to OWCP for supplemental

4

In a June 12, 2014 letter, OWCP advised appellant that it could not pay her the three percent schedule award as
she was not “given due process rights or the ability to perfect [her] claim.” It afforded appellant 30 days to submit
new medical evidence supporting an impairment rating greater than the three percent determined by the medical
adviser. Counsel responded by June 27, 2014 letter, requesting that OWCP issued the schedule award.

4

opinion from OWCP’s medical examiner regarding the appropriate percentage of permanent
impairment.
In a July 30, 2015 addendum report, OWCP’s medical adviser opined that appellant had
no residuals of the accepted September 1, 2001 injuries. Therefore, there was no ratable
impairment of the right lower extremity for schedule award purposes.
By decision dated August 3, 2015, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record established that there were no injury-related residuals
on which to base an impairment rating.
Counsel disagreed and, in an August 11, 2015 letter, requested a telephonic hearing, held
on March 17, 2016. At the hearing, he argued that OWCP’s medical adviser exceeded his
authority by finding that there was no injury-related impairment after Dr. Frye had resolved the
issue as impartial medical examiner. Appellant submitted an undated statement describing
chronic right foot pain interfering with activities of daily living.
By decision dated May 6, 2016, an OWCP hearing representative affirmed OWCP’s
August 3, 2015 decision, finding that the July 25, 2014 schedule award was issued in error, as
the weight of the medical evidence established that the accepted September 1, 2001 injuries
resolved without residuals.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.7
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).8 Under the sixth edition, the evaluator identifies the impairment CDX, which
5

5 U.S.C. § 8107.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”

5

is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.9 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.10 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.11 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.12
ANALYSIS
OWCP accepted that appellant sustained sprains of the dorsum of her right foot and
lateral malleolus on September 1, 2011 when a bulk mail cart rolled over her foot. She claimed
schedule awards on January 12, 2004 and April 16, 2011. Dr. Grant, an attending Boardcertified orthopedic surgeon, assessed 24 percent permanent impairment rating based on
diagnoses of an open fracture and sprain of the right foot. As his opinion was based on an
inaccurate history, OWCP obtained a second opinion from Dr. Obianwu, who found six percent
permanent impairment of the right lower extremity due to subtalar arthritis caused by the
accepted injuries. It found a conflict of opinion between these two physicians, and selected
Dr. Frye, a Board-certified orthopedic surgeon, to resolve it.
Dr. Frye opined on March 26, 2014 that, as the accepted injuries had resolved without
residuals, appellant did not have a ratable impairment of the right leg. OWCP obtained a
supplemental report from Dr. Frye on May 6, 2014, finding five percent impairment of the right
leg due to preexisting subtalar arthritis.13 An OWCP medical adviser reviewed Dr. Frye’s
mathematical calculation on May 13, 2014, resulting in three percent impairment. OWCP then
issued a schedule award on July 25, 2014 for three percent impairment of the right foot.
Following a March 25, 2015 oral hearing, OWCP issued a July 7, 2015 decision setting
aside the July 25, 2014 schedule award, and remanding the case for a supplemental opinion by
OWCP’s medical adviser regarding the appropriate percentage of permanent impairment, as
9

A.M.A., Guides (6th ed. 2008), pp. 494-531.

10

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

11

Delphia Y. Jackson, 55 ECAB 373 (2004).

12

Anna M. Delaney, 53 ECAB 384 (2002).

13

OWCP sought this supplemental report based on the opinion of its medical adviser, on April 15, 2014, that
preexisting impairment must be rated. However, at this point, OWCP had not accepted any impairment as
employment related. The Board has held that where the claimant did not demonstrate any permanent impairment
caused by the accepted occupational exposure, the claim was not ripe for consideration of any preexisting
impairment. Thomas P. Lavin, 57 ECAB 353 (2006).

6

Dr. Frye had made it clear that there were no injury-related residuals. As OWCP’s medical
adviser confirmed on July 30, 2015 that appellant did not have residuals of the accepted right
foot and ankle injuries, OWCP denied the schedule award claim by decision issued
August 3, 2015. Following a second oral hearing, OWCP issued a May 6, 2016 decision
affirming the denial of the schedule award claim, as the medical evidence did not demonstrate
any objective residuals of the accepted injuries.
The Board finds that appellant has not established ratable permanent impairment of the
right lower extremity. Dr. Frye, the impartial medical examiner, provided detailed reports, based
on the statement of accepted facts, the complete medical record, and a comprehensive clinical
examination. He provided an extensive discussion of his medical reasoning, explaining that
degenerative changes demonstrated on October 2001 imaging studies established that diagnosed
subtalar arthritis could not have been related to the September 1, 2001 injuries as such changes
would have taken much longer to develop. Dr. Frye observed no objective findings of the
accepted right foot and lateral malleolus sprains. He therefore opined on May 6, 2014 that
appellant had no ratable impairment of the right lower extremity attributable to the accepted
injuries. OWCP properly accorded Dr. Frye’s opinion the weight of the medical evidence.14
On appeal, counsel contends that OWCP’s July 25, 2014 schedule award decision had not
been rescinded and therefore remained valid and binding. However, as explained above, OWCP
set aside the July 25, 2014 schedule award by July 7, 2015 and May 6, 2016 decisions, both
predicated on Dr. Frye’s well-reasoned opinion.
Appellant may request a schedule award or increased schedule award at any time, based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish ratable
permanent impairment of the right lower extremity.

14

Supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2016 is affirmed.
Issued: December 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blackwood, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-732
Issued: October 21, 2009

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal of March 21 and September 5, 2008
decisions of the Office of Workers’ Compensation Programs denying her claim for an increased
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of the left upper
extremity, for which she received schedule awards.
On appeal, appellant, through her attorney, asserts that Dr. Gregory Maslow, a Boardcertified orthopedic surgeon and impartial medical examiner, failed to provide range of motion
measurements for the left wrist, hand, fingers and thumb, did not properly assess pinch and grip
strength, failed to provide pinch and grip strength measurements and did not specify the thumb
joints to which range of motion measurements referred.

FACTUAL HISTORY
The Office accepted that on or before June 15, 2002 appellant, then a 49-year-old retail
sales associate, sustained left trigger thumb due to repetitive motion of the left hand in the
performance of duty.
After a brief absence, she returned to limited-duty work in
September 2002.
On April 1, 2003 appellant underwent a release of stenosing tenosynovitis of the left
thumb, palmar fasciectomy, excision of the pullet and radical excision of a nodular mass at the
ulnar collateral ligament at the metacarpophalangeal joint. She returned to limited duty on
April 21, 2003. Appellant required physical therapy through January 2004 due to incisional
pain. She returned to full-time unrestricted duty effective January 22, 2004.
On May 25, 2005 appellant claimed a schedule award. She submitted a January 5, 2005
impairment rating from Dr. David Weiss, an attending osteopathic physician, who provided a
history of injury and treatment, noting that appellant was right hand dominant. Appellant had
reached maximum medical improvement as of that day. She stated that her pain level was 4 to 6
out of 10. On examination of the left thumb, Dr. Weiss found full metacarpophalangeal and
interphalangeal extension and flexion and full palmar and radial abduction. Appellant was
“unable to touch the base of the fifth metacarpophalangeal joint and lack[ed] four cm
[centimeters] to closure.” There was marked carpometacarpal joint tenderness with a positive
grind test. Dr. Weiss used a hand dynamometer to obtain grip strength levels of 28 kilogram
(kg) on the right and 10 kg on the left. Pinch key testing was at 10 kg on the right and 5.5 kg on
the left. Dr. Weiss diagnosed stenosing tenosynovitis of the left thumb, a tumor mass of the left
thumb, carpometacarpal joint arthropathy to the left hand, status post left thumb release of
stenosing tenosynovitis with palmar fasciectomy and radial excision of the pulley. Referring to
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides). Dr. Weiss opined that appellant had a 30 percent
impairment of the left upper extremity due to pinch strength deficit and a 3 percent impairment
of the left upper extremity due to pain, according to Table 18-1, page 574.1 He added the two
percentages to equal a 33 percent permanent impairment of the left upper extremity.
On April 15, 2005 the Office referred Dr. Weiss’ report to an Office medical adviser for
review. In an April 26, 2005 report, the Office medical adviser opined that, according to Table
16-33, page 509,2 appellant’s pinch test strength was within normal limits for a nondominant

1

Table 18-1, page 574 of the fifth edition of the A.M.A., Guides is entitled “Algorithm for Rating Pain-Related
Impairment in Conditions Associated with Conventionally Ratable Impairment.”
2

Figure 16-33, page 509 of the fifth edition of the A.M.A., Guides is entitled “Average Strength of Lateral Pinch
by Occupation in 100 Subjects.”

2

hand. He opined that, according to Table 16-18, page 4993 and Table 16-29, page 507,4 “20
percent x 40 = 8 percent hand,” equaling a 7 percent impairment of the left upper extremity.
By decision dated July 20, 2005, the Office granted appellant a schedule award for a
seven percent permanent impairment of the left upper extremity. Following additional
development, by decision dated November 9, 2005, the Office set aside the July 20, 2005
decision and remanded the case to obtain a second opinion examination and schedule award
rating.
On January 5, 2006 the Office obtained a second opinion report from Dr. Zohar Stark, a
Board-certified orthopedic surgeon. On examination of the left hand, Dr. Stark noted reduced
pinch strength, tenderness on palpation of the metacarpal joint of the thumb and a loss of two cm
thumb abduction. He opined that these impairments were not related to the accepted left trigger
thumb or surgery.5 In a February 21, 2006 supplemental report, Dr. Stark opined that appellant
had 10 percent impairment of the left upper extremity due to reduced pinch strength and 1
percent impairment due to restricted thumb adduction. He was uncertain if the impairments were
work related.
By decision dated March 8, 2006, the Office denied modification, based on Dr. Stark’s
opinion. Following additional development, by decision dated June 7, 2006, the Office set aside
its March 8, 2006 decision, finding a conflict of medical opinion between Dr. Stark, for the
government and Dr. Weiss, for appellant.
On remand of the case, on August 14, 2006, the Office referred appellant, the medical
record and a statement of accepted facts to Dr. George P. Glenn, Jr., a Board-certified orthopedic
surgeon. It included bypass information from the Physician’s Directory System (PDS) for
approximately 12 physicians,6 indicating that they were not selected as Dr. Glenn had already
been appointed. Dr. Glenn submitted a September 12, 2006 report finding 13 percent
impairment of the left upper extremity according to the A.M.A., Guides due to pain, restricted
left thumb adduction and diminished pinch strength. In a November 5, 2006 report, an Office
medical adviser concurred with Dr. Glenn’s opinion.
By decision dated November 30, 2006, the Office granted appellant a schedule award for
an additional 6 percent impairment of the upper extremity, in addition to the 7 percent previously
awarded, for a total of 13 percent.

3

Table 16-18, page 499 of the fifth edition of the A.M.A., Guides is entitled “Maximum Impairment Values for
the Digits, Hand, Wrist, Elbow and Shoulder Due to Disorders of Specific Joints or Units.”
4

Table 16-29, page 507 of the fifth edition of the A.M.A., Guides is entitled “Digit Impairment Due to
Constrictive Tenosynovitis.”
5

In a February 9, 2006 report, an Office medical adviser concurred that appellant had no work-related impairment
of the left upper extremity.
6

The bypass information was presented as computer screen captures that do not show the entire field containing
physician contact data.

3

In a December 8, 2006 letter, appellant requested a hearing, held May 10, 2007. At the
hearing, counsel asserted that Dr. Stark’s report was not rationalized and should be disregarded.
Counsel also contended that Dr. Glenn could not serve as impartial medical examiner as the
Office did not properly utilize the Physicians Directory System in his selection. By decision
dated July 17, 2007, the Office set aside the November 30, 2006 decision, finding that the Office
did not properly utilize the PDS in selecting Dr. Glenn. The Office directed the appointment of a
new impartial medical examiner.
On remand of the case, the Office appointed Dr. Maslow, a Board-certified orthopedic
surgeon, as impartial medical examiner. In a March 6, 2008 report, Dr. Maslow reviewed the
medical record and a statement of accepted facts. On examination of the left thumb, he found
tenderness at the volar aspect of the metacarpophalangeal joint, a loss of 10 degrees radial
abduction, a loss of two cm radial adduction, a slightly diminished power grip due to pain and
diminished pinch strength when compared to the right hand. Referring to the A.M.A., Guides,
Dr. Maslow found one percent impairment of the thumb for restricted radial adduction according
to Table 16-8b, page 459.7 For loss of radial abduction, he found two percent impairment of the
thumb according to Table 168a, page 459.8 Dr. Maslow combined the one percent and two
percent impairments to equal three percent impairment of the thumb. According to Table 16-1,
page 438,9 3 percent impairment of the thumb equaled 1 percent impairment of the hand or,
according to Table 16-2, page 439,10 1 percent impairment of the upper extremity. Dr. Maslow
found that, according to Table 16-34, page 509, the loss of pinch strength equaled 10 percent
impairment of the upper extremity.11 He opined that appellant’s “main problem at the hand
[was] a painful scar,” equaling a two percent impairment of the upper extremity. Dr. Maslow
added the 10, 1 and 2 percent impairments to equal a 13 percent impairment of the left upper
extremity.
On March 13, 2008 the Office referred Dr. Maslow’s report to an Office medical adviser
for calculation of a schedule award. In a March 14, 2008 report, an Office medical adviser
concurred with Dr. Maslow’s impairment rating and application of the A.M.A., Guides.
By decision dated March 21, 2008, the Office found that appellant did not have more
than the 13 percent impairment previously awarded, based on Dr. Maslow’s opinion as the
weight of the medical evidence.

7

Table 16-8b, page 459 of the fifth edition of the A.M.A., Guides is entitled “Thumb Impairment Values Due to
Lack of Radial Abduction and to Ankylosis.”
8

Table 16-8a, page 459 of the fifth edition of the A.M.A., Guides is entitled “Thumb Impairment Values Due to
Lack of Radial Abduction and to Ankylosis.”
9

Table 16-1, page 438 of the fifth edition of the A.M.A., Guides is entitled “Conversion of Impairment of the
Digits to Impairment of the Hand.”
10

Table 16-2, page 439 of the fifth edition of the A.M.A., Guides is entitled “Conversion of Impairment of the
Hand to Impairment of the Upper Extremity.”
11

Table 16-34, page 509 of the fifth edition of the A.M.A., Guides is entitled “Upper Extremity Joint Impairment
Due to Loss of Grip or Pinch Strength.”

4

In an April 3, 2008 letter, appellant requested a hearing, held July 16, 2008. At the
hearing, appellant’s attorney asserted that Dr. Maslow could not serve as impartial medical
examiner as he relied on Dr. Glenn’s disqualified report. Also, Dr. Maslow provided no
measurements for left thumb abduction, adduction, grip strength or pinch strength. Counsel
asserted that there was no objective basis for Dr. Maslow’s schedule award rating. At the
hearing, appellant submitted her notes on Dr. Maslow’s examination, asserting that he tested her
pinch and grip strength by having her grasp a handle of a rubber hammer and squeeze his fingers.
By decision dated and finalized September 5, 2008, an Office hearing representative
affirmed the previous decision finding a 13 percent impairment of the left upper extremity, based
on Dr. Maslow’s opinion as the weight of the medical evidence. The hearing representative
found that the Office was not required to exclude Dr. Glenn’s report or err by providing it to
Dr. Maslow.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act12 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized 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 Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.13
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.14 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.15
ANALYSIS
The Office accepted that appellant sustained a left trigger thumb requiring surgical
release. On July 20, 2005 it issued a schedule award for seven percent permanent impairment of
the left upper extremity. This award was based on the January 5, 2005 report of Dr. Weiss, an
attending osteopathic physician, as interpreted by an Office medical adviser. On November 30,
2006 the Office granted appellant a schedule award for an additional six percent impairment of
12

5 U.S.C. §§ 8101-8193.

13

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

14

See Paul A. Toms, 28 ECAB 403 (1987).

15

A.M.A. Guides, Chapter 16, “The Upper Extremities,” pp. 433-521 (5th ed. 2001).

5

the left upper extremity, based on the September 12, 2006 report of Dr. Glenn, a Board-certified
orthopedic surgeon and impartial medical examiner. Appellant continued to claim a greater
percentage of permanent impairment than that awarded.
The Office disqualified Dr. Glenn as he was not properly selected.16 On March 6, 2008 it
obtained a second impartial medical opinion from Dr. Maslow, a Board-certified orthopedic
surgeon, who found that appellant had 13 percent impairment of the left upper extremity, 1
percent for restricted radial adduction of the thumb according to Table 16-8b of the A.M.A.,
Guides, 2 percent for loss of radial abduction according to Table 16-8a, 10 percent for
diminished pinch strength according to Table 16-34 and 2 percent for pain according to an
unspecified grading scheme. Based on Dr. Maslow’s opinion, the Office affirmed the 13 percent
schedule award by decisions dated March 21 and September 5, 2008.
On appeal, appellant, through her attorney, asserts that Dr. Maslow’s report is insufficient
to represent the weight of the medical evidence as he failed to provide measurements for ranges
of motion of the left thumb, pinch strength or grip strength. He also did not specify the joints in
which he observed the restricted motion. The Board finds that Dr. Maslow’s report is
incomplete and requires clarification.
The medical evidence required for a schedule award the evaluation should include a
detailed description of the impairment which contains, where applicable, measurements of
restricted motion, deficits in strength or sensation or other pertinent description of the
impairment. This description must be in sufficient detail so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its restrictions and
limitations.17 Dr. Maslow’s description of appellant’s impairments is incomplete. He calculated
impairments for restricted radial abduction and radial adduction of the thumb, but provided
neither measurement. Dr. Maslow assessed an impairment for diminished pinch strength, but did
not provide the kilogram rating for this measurement. Also, he noted a two percent impairment
due to pain but did not refer to a specific table or grading scheme of the A.M.A., Guides to
correlate his clinical findings.
As the Office undertook to obtain an impartial medical specialist’s opinion, it is now
obligated to obtain a sufficiently reasoned report as to the appropriate percentage of permanent
impairment of the left upper extremity.18 The Office should request a supplemental report from
Dr. Maslow regarding the specific measurements on which he based his schedule award
16

The Board notes that the Office did not err by failing to exclude Dr. Glenn’s report from the record as he was
improperly selected. The Office’s procedures require excluding a medical report from the record if leading
questions were posed to a second opinion or impartial physician. Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.6(d) (September 1995). See also Chapter 2.810.13. Brenda C.
McQuiston, 54 ECAB 816 (2003). There is no evidence of record, and appellant does not contend, that the Office
posed improper questions to Dr. Glenn. Therefore, the Board finds that the Office did not err by including
Dr. Glenn’s report in the record.
17

A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).

18

See, e.g., Elmer K. Kroggel, 47 ECAB 557 (1996) (the Board remanded the case for the Office to obtain a
supplemental report from the impartial medical specialist).

6

assessment. He should also specify those portions of the A.M.A., Guides relevant to his
impairment rating. Following this and such other development deemed necessary, the Office
shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 5 and March 21, 2008 are set aside, and the case
remanded to the Office for further development consistent with this decision.
Issued: October 21, 2009
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Austin, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas Mann, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0502
Issued: June 13, 2016

Case Submitted on the Record

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

JURISDICTION
On January 19, 2016 appellant, through counsel, filed a timely appeal from a
December 31, 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 met his burden of proof to establish greater than 10
percent permanent impairment of the left lower extremity for which he received schedule
awards.
On appeal counsel asserts that Dr. William Nemeth, a Board-certified orthopedic surgeon
who provided a second opinion evaluation for OWCP, did not examine appellant. As such his

1

5 U.S.C. § 8101 et seq.

opinion is of no probative value, and appellant should be referred to another qualified physician
for examination and an impairment evaluation.
FACTUAL HISTORY
On February 12, 2009 appellant, then a 49-year-old clerk,2 filed a traumatic injury claim
(Form CA-1) alleging that on January 26, 2009 he injured his left leg, arm, neck, and left
shoulder when he slipped and fell on slick pavement while walking near the security entrance at
work. He did not stop work.
In merit decisions dated August 24, 2009, February 6, 2010, and February 25, 2011,
OWCP denied the claim finding no injury resulting from the January 26, 2009 employment
incident. On February 8, 2012 it accepted that the January 26, 2009 employment incident caused
thoracic or lumbosacral neuritis or radiculitis, not otherwise specified.
A December 16, 2009 electrodiagnostic study of the left lower extremity was normal. A
January 5, 2010 magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated
degenerative disc and joint changes at L5-S1 with a synovial cyst versus disc fragment. A
March 29, 2012 MRI scan of the lumbar spine demonstrated moderate-to-severe narrowing of
both foramina which could displace the S1 nerve root, a synovial cyst at L5-S1, and milder
degenerative changes at L4-5.
On December 4, 2012 appellant filed a schedule award claim (Form CA-7). He
submitted an October 26, 2012 report in which Dr. Michael S. Perkins, Board-certified in
occupational medicine, noted a history that, as a result of the 1979 injury, appellant had ongoing
right leg spasticity with right foot drop and numbness of the entire left leg. Appellant described
the January 26, 2009 employment injury and noted the March 29, 2012 MRI scan findings.
Physical examination demonstrated right lower extremity spasticity. Dr. Perkins advised that
unsteadiness prevented lumbar motion measurements, and lower extremity spasticity prevented
straight leg raising. He diagnosed herniated lumbar disc. Dr. Perkins advised that appellant had
reached maximum medical improvement as of October 15, 2012 and, in accordance with
Table 17-4 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had a class 2 impairment. He
applied the net adjustment formula and concluded that appellant had 12 percent whole person
impairment. In a November 12, 2012 supplementary report, Dr. Perkins advised that, in
accordance with Table 16-10, 12 percent whole person impairment equaled 31 percent lower
extremity impairment.
On December 14, 2012 Dr. Ronald Blum, an OWCP medical adviser, who is a Boardcertified orthopedic surgeon, reviewed the record, including Dr. Perkins’ reports. He noted that
the spine is not a scheduled member and Dr. Perkins did not describe specific lower extremity
2

On July 22, 1979 appellant, then 19 years old, was in a nonemployment-related motor vehicle accident and
fractured his spine at C7 with resulting quadriparesis. He underwent cervical interbody fusion and had some return
of movement of the left leg.
3

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009).

2

sensory and motor deficits. As such, Dr. Perkins’ report was invalid and inadequate. He
recommended referral to an appropriate physician for an impairment evaluation in accordance
with the proper tables of the A.M.A., Guides.
OWCP referred appellant to Dr. Jerome O. Carter, a Board-certified orthopedic surgeon,
in January 2013. In a March 25, 2013 report, Dr. Carter described the work injury, his review of
the medical record including diagnostic study reports, and appellant’s complaints of constant
pain in the left hip, left knee, left ankle, left leg, and left foot with weakness in the left leg and
burning with sudden jerks and agitations. He reported findings, noting moderately decreased
sensation in the femoral, obturator, superior gluteal, interior gluteal, lateral femoral cutaneous,
posterior femoral cutaneous, saphenous, lateral plantar, medial plantar, sural, superficial
peroneal, common peroneal, and sciatic nerves on the left with decreased pinwheel sensation of
the entire left leg. The right was within normal limits. Bilateral strength testing showed
spasticity, right greater than left, which made it difficult to assess motor strength. Appellant was
unable to heel or toe walk. Dr. Carter advised that appellant reached maximum medical
improvement on October 12, 2012. He found that, under July/August 2009 The Guides
Newsletter, using proposed Table 2, appellant had class 1 moderate sensory deficits in the left L5
and S1 distributions. Dr. Carter applied the net adjustment formula to each nerve root, and
concluded that appellant had three percent left leg impairment due to L5 sensory loss, and two
percent for S1 sensory loss, for a total of five percent left leg impairment.
Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP medical adviser,
reviewed the record, including Dr. Carter’s report. He agreed with Dr. Carter’s findings,
concluding that appellant had five percent left lower extremity impairment, with maximum
medical improvement reached on March 25, 2013.
On June 18, 2013 OWCP granted appellant a schedule award for five percent left lower
extremity impairment, for 14.4 weeks, to run from March 25 to July 3, 2013. He timely
requested a review of the written record by an OWCP hearing representative.
In a December 12, 2013 decision, the OWCP hearing representative found that, as
Dr. Perkins did not evaluate appellant’s impairment in accordance with the July/August 2009
The Guides Newsletter, his opinion was of no probative value. He nonetheless found that
Dr. Carter, the OWCP referral physician, did not address whether appellant had additional left
lower extremity impairment due to the preexisting cervical injury and fusion surgery. The
hearing representative vacated the June 18, 2013 schedule award decision and remanded the case
to OWCP to obtain a supplemental report from Dr. Carter and for reexamination if required.
On remand, OWCP referred appellant for reexamination with Dr. Carter, with an
appointment scheduled for March 17, 2014. Appellant appeared for the appointment, but there
was a disagreement with the staff concerning cell phone usage, and appellant left. He was then
scheduled for a second opinion evaluation with Dr. William Nemeth, a Board-certified
orthopedic surgeon. In a May 27, 2014 report, Dr. Nemeth noted the 1979 cervical spine injury,
the employment injury, and appellant’s complaint of dull, achy, stabbing pain in the thigh area.

3

He advised that appellant had difficulty with activities of daily living due to spasticity and
stiffness in both lower extremities, and that he walked with a crutch. Dr. Nemeth stated:
“On exam[ination], [appellant] has a paraparetic spastic gait, walks slowly with
knees and hips flexed. He is somewhat difficult to examine because of the
previous C7 spinal cord injury. [Appellant] does have interosseous atrophy of
both hands, right worse than left. He has spasticity of the right upper extremity,
of the right lower extremity, and left lower extremity. I cannot do straight leg
raises because of that. [Appellant] has hyperreflexic deep tendon reflexes at the
knee jerk, 3+ but symmetrical, ankle 2+ and symmetric. His heel cords are right.
[Appellant] has decreased extensor hallucis strength on the left side. He has
decreased sensation in the superficial femoral nerve on the left side, and
hyperalgesia and hypesthesia in the area of the superficial femoral nerve.”
Dr. Nemeth diagnosed C7 spastic quadriplegia with lower extremity involvement, nonworkrelated, preexisting, and meralgia paraesthetica, left, from contusion and neuropractic injury of
the superficial femoral nerve, not L5 and S1 nerve roots. Dr. Nemeth advised that Dr. Perkins
did not use the proper methodology for rating appellant’s left leg impairment. He advised that,
based on his physical examination findings, under Table 16-12, Peripheral Nerve Impairment, of
the A.M.A., Guides, appellant had a grade C superficial femoral nerve impairment which yielded
seven percent permanent impairment of the left lower extremity.
In a June 26, 2014 report, Dr. Blum, the OWCP medical adviser, reviewed Dr. Nemeth’s
report. He advised that Dr. Nemeth erroneously identified the nerve as the superficial femoral
when it should have been the lateral femoral cutaneous nerve. Dr. Blum further noted that, while
Dr. Nemeth found 7 percent permanent impairment using the middle value for the range 1 to 13
percent under Table 16-12, the specific range for sensory loss in the lateral femoral cutaneous
nerve is identified as 1 to 5 percent in Table 16-12. He recommended the middle value, grade C,
or three percent impairment.
OWCP forwarded a copy of the medical adviser’s report to Dr. Nemeth who responded
on January 30, 2015. Dr. Nemeth advised that he agreed with Dr. Blum that he used the wrong
range on Table 16-12. However, he opined that appellant had a very severe deficit of the
cutaneous nerve which he characterized as class 1, severe, under Table 16-12, for five percent
left lower extremity impairment.
On February 20, 2015 Dr. Blum, the medical adviser, reviewed Dr. Nemeth’s January 30,
2015 report and agreed that appellant had five percent left lower extremity impairment. OWCP
then asked Dr. Blum if appellant, who had previously received a schedule award for five percent
left lower extremity impairment, was entitled to an additional award. In a March 9, 2015
response, he indicated that appellant was entitled to an additional award because the loss
described by Dr. Nemeth was separate from the loss initially identified. Dr. Blum concluded that
the 5 percent losses should be combined, which yielded a total left lower extremity impairment
of 10 percent.

4

By decision dated March 12, 2015 appellant was granted a schedule award for an
additional five percent left lower extremity impairment, to run for 14.4 weeks, from May 27 to
September 4, 2014.
On August 11, 2015 appellant, through counsel, requested reconsideration. Counsel
asserted that Dr. Nemeth did not examine appellant, and attached a signed and notarized affidavit
dated August 4, 2015. In the affidavit, appellant attested that when he saw Dr. Nemeth on
May 27, 2014:
“The doctor asked me to sit on a table with my legs dangling. I began to express
to him what was going on with my L-5 nerve injury and [thigh] pain. He did not
regard it as important, and looked at me for about five minutes. He then made a
few statements. One of which was, ‘You already have a disability. You have an
impairment, but not 31 percent.’ He then approached his file folder and glanced
at Dr. Perkins’ examination and said ‘I will have to use this.’ He then stated he
would fix it for me and that we were finished. However, as I attempted to walk
away, I noticed he was watching my [gait] and the fact that I was having trouble
with my stride, he then dropped his head, which was to me an indication that it
could be as Perkins stated: a 31 percent impairment rating. Dr. Nemeth never
touched my body. He did not physically examine me. He did not ask me any
substantial questions.”
Appellant then described his physical condition, describing continued intense pain, difficulty
sleeping, mental anguish, and lower extremity weakness. He concluded that he was required to
use a wheelchair at work.
In a merit decision dated December 31, 2015, OWCP denied modification of the
March 12, 2015 decision because the evidence submitted did not support an additional
impairment.
LEGAL PRECEDENT
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of any employment injury.4
The schedule award provision of FECA,5 and its implementing federal regulation,6 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

4

See Tammy L. Meehan, 53 ECAB 229 (2001).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

5

the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.8
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).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class of Diagnosis (CDX) condition, which 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) + (GMCSCDX).11 The sixth edition of the A.M.A., Guides also provides that, under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.15 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
7

20 C.F.R. § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
13

Pamela J. Darling, 49 ECAB 286 (1998).

14

Thomas J. Engelhart, 50 ECAB 319 (1999).

15

Rozella L. Skinner, 37 ECAB 398 (1986).

6

July/August 2009 The Guides Newsletter.16 Specifically, OWCP will address lower extremity
impairments originating in the spine through Table 16-1117 and upper extremity impairment
originating in the spine through Table 15-14.18
ANALYSIS
OWCP accepted that a January 26, 2009 employment injury caused thoracic or
lumbosacral neuritis or radiculitis, not otherwise specified. On June 18, 2013 OWCP granted
appellant a schedule award for 5 percent permanent impairment of the left lower extremity, and
on March 12, 2015 he was awarded an additional 5 percent impairment, for a total 10 percent left
lower extremity permanent impairment. The Board finds that appellant has not met his burden of
proof to establish more than 10 percent permanent impairment of the left lower extremity.
With regard to counsel’s assertion on appeal that Dr. Nemeth did not examine appellant,
in his May 27, 2014 report the physician described his findings on observation and examination.
Moreover, in his January 30, 2015 report, Dr. Nemeth opined that appellant had a very severe
nerve deficit, characterized as class 1, severe, and found that he was entitled to five percent left
leg impairment, the maximum allowed under Table 16-12.
The October 26, 2012 report from Dr. Perkins, opining that appellant had 31 percent left
leg impairment, was not in accordance with the A.M.A., Guides. He rated appellant’s
impairment under Table 17-4, Lumbar Spine Regional Grid.19 Under FECA a schedule award is
not payable for injury to the spine.20 As noted, the proper mechanism for rating impairment of
the upper or lower extremities caused by a spinal injury is provided in section 3.700 of OWCP
procedures, which memorializes proposed tables outlined in a July/August 2009 The Guides
Newsletter.21 The Board has long held that 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.22 As such, the Board
finds that Dr. Perkins’ opinion is of limited probative value regarding appellant’s left leg
impairment.
However, in the case at hand, both Dr. Nemeth and Dr. Blum, the OWCP medical
adviser, identified lower extremity peripheral nerve injuries. Section 16.4 of the A.M.A., Guides

16

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides Newsletter is included as Exhibit 4.
17

Supra note 3 at 533.

18

Id. at 425.

19

Id. at 570.

20

Supra note 13.

21

Supra note 16.

22

Carl J. Cleary, 57 ECAB 563 (2006).

7

describes the methodology to be followed in rating lower extremity peripheral nerve
impairments.23
In his May 27, 2014 report, Dr. Nemeth discussed examination findings. In his
January 30, 2015 report, he characterized appellant’s left leg impairment as class 1, severe, under
Table 16-12, for five percent left leg impairment, the maximum allowed.24 On February 20,
2015 Dr. Blum reviewed Dr. Nemeth’s January 30, 2015 report and agreed with his conclusion
that appellant had five percent left lower extremity impairment. On March 9, 2015 he indicated
that appellant was entitled to an additional award of five percent because the loss described by
Dr. Nemeth was separate from the loss initially identified. Dr. Blum concluded that the 5
percent losses should be combined, which yielded a total left leg impairment of 10 percent.
The Board finds that Dr. Nemeth’s opinion, as reviewed by Dr. Blum, represents the
weight of the medical evidence. The Board has carefully reviewed their reports and finds that
their opinions have reliability, probative value, and convincing quality with respect to its
conclusions regarding the relevant issue in the present case. Dr. Nemeth’s opinion was based on
a proper factual and medical history, and he thoroughly reviewed the factual and medical history
and accurately summarized the relevant medical evidence.25 He provided sufficient medical
rationale for his opinion by explaining that, after careful review of all medical documentation
and his clinical examination of appellant, appellant had five percent left lower extremity
impairment due to a peripheral nerve injury. Dr. Blum agreed and advised that this was in
addition to the five percent previously awarded. Appellant, therefore, has not established left
lower extremity impairment greater than the 10 percent previously awarded.
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 has not met his burden of proof to establish greater than 10
percent permanent impairment of the left lower extremity, for which he received schedule
awards.

23

Supra note 3 at 531-33.

24

Id. at 534-35.

25

See D.K., Docket No. 15-1312 (issued October 6, 2015).

8

ORDER
IT IS HEREBY ORDERED THAT the December 31, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 13, 2016
Washington, DC

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

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

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

9