United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Yonkers, NY, Employer
__________________________________________

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

Docket No. 12-1135
Issued: November 20, 2012

Case Submitted on the Record

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

JURISDICTION
On April 27, 2012 appellant filed a timely appeal from March 26 and January 4, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant has established entitlement to a schedule award due to her
work-related injuries.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board
has decided the appeal on the record.

FACTUAL HISTORY
On May 29, 2008 appellant, then a 34-year-old mail carrier, filed a traumatic injury claim
alleging that, on April 23, 2008, while in the performance of her duties, she felt a sharp pain in
her right buttocks which radiated to her back and right leg and neck. She stopped work on the
date of injury and sought treatment in a local emergency room. OWCP accepted the conditions
of lumbar sprain and neck sprain. On June 30, 2008 appellant returned to work in a limited-duty
part-time position. She stopped working on July 18, 2008 and filed a recurrence of disability,
which OWCP accepted.
Appellant returned to work part-time limited duty on
September 21, 2010.
To determine if appellant had any injury-related residuals that prevented her from
working, OWCP referred appellant to Dr. Lawrence Schulman, a Board-certified orthopedic
surgeon, for a second opinion. In an April 13, 2010 report, Dr. Schulman noted the history of
injury, and his review of the medical records, set forth examination findings and diagnosed
traumatic lumbosacral musculoskeletal disorder and traumatic cervical musculoskeletal disorder
with accompanying mechanical pain and strain. He opined that the work-related incident was a
causative factor in developing neck and low back symptoms. Dr. Schulman opined that
appellant had a partial mild disability referable to her injuries and that she was capable of
returning to lighter or sedentary work with restrictions. He recommended that she be hired as a
mail carrier with a pull cart for four hours per day. Dr. Schulman opined that maximum medical
improvement was reached and no further treatment was indicated other than a home exercise
program.
On August 2, 2010 appellant requested a schedule award.
In letters dated August 11 and September 14, 2010, OWCP advised appellant’s physician,
Dr. Eugene J. Liu, a physiatrist, of the evidence necessary to establish permanent impairment
under FECA as a result of the accepted conditions. It noted that awards for permanent
impairment may not be paid for the spine, but awards can be paid for impairment of the upper or
lower extremities caused by injury to a spinal nerve. OWCP also stated that impairment
determinations were calculated under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and requested supportive
medical evidence.3 No response was received from Dr. Liu.
By decision dated October 20, 2010, OWCP denied the schedule award claim on the
basis that the evidence of file was insufficient to establish that appellant had sustained permanent
impairment to a scheduled member under FECA due to the accepted conditions.
On October 25, 2010 appellant, through her attorney, requested a telephonic hearing,
which was held on February 10, 2011. Appellant’s physicians, including Dr. Liu, submitted
status reports and return to work certificates. However, no opinion was provided regarding
permanent impairment.

3

As previously noted, appellant returned to part-time limited-duty work on September 21, 2010.

2

On March 24, 2011 appellant stated that the oral hearing was requested in error and that
she did not want her attorney to represent her. She indicated that she wished to proceed with
reconsideration after she obtained an impairment examination. On May 2, 2011 OWCP’s
Branch of Hearings and Review granted appellant’s request to withdraw her hearing request and
noted that appellant’s claim would proceed with reconsideration.
By decision dated July 7, 2011, OWCP denied appellant’s reconsideration request
without a merit review of the claim. It noted that Dr. Schulman, the second opinion examiner,
did not indicate that appellant had a permanent impairment and other evidence was irrelevant to
the issue of whether she sustained a permanent impairment as a result of her injury.
On December 28, 2011 appellant again requested a schedule award.
In a December 28, 2011 letter, appellant requested reconsideration as OWCP erred in
interpreting the law as Dr. Schulman, the second opinion specialist, had already determined the
loss of use and it was OWCP’s responsibility to determine the extent of loss of use. She also
advised OWCP of her change of address. Appellant noted a new schedule award claim was
filed. In a February 9, 2012 letter, she requested “an appeal of the decision regarding the
schedule award. I feel I am entitled and OWCP already has documentation from second opinion
doctor, Dr. Schulman, to support my entitlement.”
By decision dated January 4, 2012, OWCP denied appellant’s claim for a schedule award
on the basis there was no medical evidence to support a permanent impairment to a member or
function of the body.
OWCP further developed the issue of whether appellant had any permanent impairment
due to her employment injury of April 23, 2008 by scheduling her for a second opinion
examination with Dr. Marvin Gilbert, a Board-certified orthopedic surgeon. In a March 1, 2012
letter, appellant was notified of the second opinion examination with Dr. Gilbert on
March 22, 2012. She did not appear for the scheduled examination.
By decision dated March 26, 2012, OWCP denied modification of the January 4, 2012
decision.4
LEGAL PRECEDENT
FECA provides that, if there is permanent disability involving the loss or loss of use of a
member or function of the body, the claimant is entitled to a schedule award for the permanent
impairment of the scheduled member or function.5 Neither FECA nor the regulations specify the
4

Also on March 26, 2012, OWCP proposed to suspend appellant’s compensation for not appearing for her
scheduled appointment with Dr. Gilbert. As it did not issue a final decision on this matter prior to the filing of the
instant appeal, the issue of suspension of benefits under 5 U.S.C. § 8123(d) is not presently before the Board. See
20 C.F.R. § 501.2(c).
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

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manner in which the percentage of impairment for a schedule award shall be determined. For
consistent results and to ensure equal justice for all claimants OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.6 For schedule awards after May 1,
2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides.7
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.8 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.9
OWCP’s regulations also provide that a copy of the decision shall be mailed to the
employee’s last known address.10 The Board has found that, in the absence of evidence to the
contrary, a letter properly addressed and mailed in the due course of business, such as in the
course of OWCP”s daily activities, is presumed to have arrived at the mailing address in due
course.11 This is known as the “mailbox rule.”
ANALYSIS
OWCP accepted the conditions of lumbar sprain and neck sprain. Appellant claimed a
schedule award, which OWCP denied in January 4 and March 26, 2012 decisions.12
The evidence of record contains no medical opinion regarding any possible permanent
impairment due to the April 23, 2008 employment injury. Appellant’s treating physician did not
provide an opinion regarding permanent impairment due to the April 23, 2008 employment
injury, despite OWCP’s request to do so. While Dr. Schulman, a second opinion specialist,
indicated in his April 13, 2008 report that appellant had reached maximum medical improvement
6

A. George Lampo, 45 ECAB 441 (1994).

7

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

8

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(b) (August 2002).
10

Kenneth E. Harris, 54 ECAB 502 (2003).

11

See Shakeer Davis, 52 ECAB 448 (2001). In this case, OWCP mailed a copy of the preliminary decision to
both appellant and her attorney at their address of record. No evidence had been presented to rebut the presumption
of receipt. Thus, it is presumed that the preliminary decision reached both appellant and her attorney.
12

On appeal, appellant contends that she never received the January 4, 2012 decision. The record reflects,
however, that this decision was sent to the address she provided on December 28, 2011. The Board has held that, in
the absence of evidence to the contrary, it is presumed that a notice mailed to an individual in the ordinary course of
business was received by that individual. Under the mailbox rule, evidence of a properly addressed letter together
with evidence of proper mailing may be used to establish receipt. Joseph R. Giallanza, 55 ECAB 186 (2003).

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and was partially disabled as a result of the employment injury, he did not offer an opinion as to
whether appellant had any permanent impairment due to the April 23, 2008 employment injury.13
Appellant did not otherwise submit a medical report which addressed whether appellant had
permanent impairment of a scheduled body member causally related to her work injury along
with an explanation of how any such impairment is determined pursuant to the A.M.A., Guides.
Thus, there is no medical evidence which demonstrates the April 23, 2008 employment injury
caused a permanent impairment.
On appeal, appellant contends that in her February 9, 2012 letter she had requested an
appeal and not reconsideration. The Board notes that while appellant had requested an appeal of
the schedule award decision she sent her request to OWCP and requested further development of
her schedule award claim. In these circumstances, it was not unreasonable to treat this as a
request for reconsideration.14
The medical evidence does not establish that appellant has permanent impairment to a
scheduled member of the body causally related to her accepted injury. Consequently, appellant
has not established entitlement to a schedule award.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a 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 entitlement to
a schedule award for permanent impairment.

13

OWCP did not ask Dr. Schulman to render an opinion on permanent impairment due to the April 23, 2008
employment injury. It sought to develop the matter by referring appellant to Dr. Gilbert for a second opinion on any
permanent impairment attributable to the April 23, 2008 employment injury. As noted, appellant did not appear for
the scheduled examination with Dr. Gilbert.
14

Cf. Jack D. Johnson, 57 ECAB 593 (2006) (the Board has held that there may be a request for reconsideration
in situations where a letter does not contain the word “reconsideration”).

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ORDER
IT IS HEREBY ORDERED THAT the March 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MICHIGAN AIR NATIONAL GUARD,
SELFRIDGE AIR NATIONAL GUARD BASE,
MI, Employer
__________________________________________

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

Docket No. 10-2022
Issued: July 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 3, 2010 appellant, through his attorney, filed a timely appeal of the July 7,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) affirming the
denial of his traumatic injury claim in Office File No. xxxxxx218 and a recurrence of disability
claim in Office File No. xxxxxx528. Pursuant to the Federal Employees’ Compensation Act,1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE -- OWCP FILE NO. xxxxxx218
The issue is whether appellant established that he sustained a back injury on June 30,
2009 in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

ISSUE -- OWCP FILE NO. xxxxxx528
The issue is whether appellant has established that he sustained a recurrence of disability
commencing June 30, 2009 causally related to his April 23, 2008 employment-related injury.
On appeal, counsel contends that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY -- OWCP FILE NOS. xxxxxx218 and xxxxxx528
Under file number xxxxxx528, OWCP accepted that on April 23, 2008 appellant, then a
26-year-old electronic integrated systems mechanic, sustained aggravation of lumbar
degenerative disc disease at L4-5 and L5-S1 as a result of twisting his body on a ladder as he
screwed a clamp with a screwdriver. Following injury, he returned to full-duty work on
September 12, 2008. On September 1, 2009 appellant filed a recurrence of disability claim under
file number xxxxxx528 alleging that on June 30, 2009 he stopped work after he experienced a
light pop and pain in his low back when he tried to lean up from a table where he was reading
schematics and troubleshooting an engine problem. The employing establishment noted that he
was accommodated with a job assignment working 10 hours a day, 4 days per week, within
medically defined limitations.
Appellant submitted a May 9, 2008 lumbar magnetic resonance imaging (MRI) scan
report from Dr. Sneha R. Patel, a Board-certified radiologist, which revealed postsurgical
changes on the right at L5-S1 with enhancing granulation along the right lamina and surrounding
the traversing right S1 nerve root. There had been a resection of a previously noted right
paracentral disc herniation. There was a persistent broad-based predominantly nonenhancing
central disc protrusion without causing significant mass effect. There was moderate bilateral
neural foramen stenosis at L5-S1 from degenerative disc disease, and bilateral facet and
ligamentum flavum degenerative changes. There were stable degenerative changes of the
remainder of the lumbar spine, most prominent at L3-4 and L4-5.
In a July 13, 2009 report, Deanna Braidwood advised that appellant was treated at
Washington Family Medicine Practice. Appellant was unable to work from June 30 to
July 23, 2009. In a July 24, 2009 report, Ms. Braidwood stated that appellant was unable to
work through August 24, 2009.
A July 17, 2009 lumbar MRI scan report from Dr. Rimma L. Aronov, a Board-certified
radiologist, revealed probable mild compression of the descending right S1 nerve root by a
moderate broad-based central and right paracentral disc protrusion at L5-S1. There was
degeneration of the intervertebral discs and small central disc protrusions at L4-5 and L3-4, and a
small nonacute Schmorf’s node at L1-2.
In a July 24, 2009 report, Dr. Umesh Singla, a radiologist, advised that appellant had
lumbago.
In a report dated August 20, 2009, Dr. Milos Marjanovic, a Board-certified
anesthesiologist, obtained a history of the April 23, 2008 employment injury and medical
treatment and appellant’s family background. He noted his complaint of low back pain. On

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physical and neurological examination, Dr. Marjanovic reported essentially normal findings with
the exception of positive tenderness to palpation in the lumbar paravertebrals. He reviewed a
July 2009 MRI scan. Dr. Marjanovic diagnosed discogenic pain. On September 17, 2009 he
performed a lumbar discogram which was positive with concordant pain at L3-4, L4-5 and L5S1 and negative at L2-3.
In a September 17, 2009 report, Dr. Roli R. Agrawal, a Board-certified radiologist,
advised that a computerized tomography scan of appellant’s lumbar spine demonstrated central
broad-based disc protrusion at L3-4 and L4-5 with no significant spinal canal or neural foraminal
stenosis. There was central and left paracentral disc protrusion at L5-S1 with compression of
both S1 spinal nerves, left more than right.
In an October 22, 2009 report, a physician whose signature is illegible advised that
appellant had lumbar degenerative disc disease.
By letter dated November 17, 2009, OWCP advised appellant that the evidence submitted
did not establish that he sustained a recurrence of disability of the April 23, 2008 employment
injury. Rather, appellant’s claim would be adjudicated as a new traumatic injury and was
assigned file number xxxxxx218. OWCP addressed the medical evidence needed to establish his
claim.
Appellant submitted a July 23, 2008 disability certificate from Dr. Gail S. Williams, a
Board-certified internist, which advised that he should remain off work until he underwent an
evaluation for epidural injections on August 4, 2008. In a September 15, 2008 disability
certificate, Dr. Williams advised that appellant could work with physical restrictions.
Reports dated October 30, 2008 through February 6, 2009 from Dr. Sarah Gouy,
Dr. Djordje Varga, Dr. Jessica Lupo and Dr. Joseph Lupo, chiropractors, advised that appellant
had disc bulges and protrusions at L3-4, L4-5 and L5-S1 and a central annular tear at L3-4. His
physical restrictions were listed and he was able to work with the restrictions through
March 9, 2009.
In a March 31, 2009 disability certificate, Dr. Mark J. Hornyak, a neurologist, advised
that appellant could return to work on April 1, 2009 with physical restrictions.
In a December 22, 2009 decision, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that he sustained a back injury causally related to the accepted
June 30, 2009 employment incident.
In a January 8, 2010 letter, appellant, through his attorney, requested a telephonic hearing
with OWCP’s hearing representative.
A December 4, 2009 radiological report from Dr. Mark I. Burnstein, a Board-certified
radiologist, revealed a spinal fusion with fluoroscopic time digital spot films.
In an April 9, 2009 report, Dr. Jeffrey F. Wirebaugh, a Board-certified family
practitioner, advised that the April 23, 2008 employment injury aggravated appellant’s

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preexisting lumbar disc disease at L4-5 and L5-S1 with radiculopathy into the right lower
extremity.
During the April 16, 2010 telephonic hearing, appellant contended that he did not sustain
a new injury on June 30, 2009. Rather, he sustained a recurrence of disability due to his
April 23, 2008 employment injury.
In a July 7, 2010 decision, OWCP’s hearing representative affirmed the December 22,
2009 decision, finding the medical evidence insufficient to establish that appellant sustained a
back injury that was caused or aggravated by the accepted June 30, 2009 employment incident in
OWCP file number xxxxxx218. He also found that the medical evidence was insufficient to
establish that appellant sustained a recurrence of disability on June 30, 2009 due to his April 23,
2008 employment injury in OWCP file number xxxxxx528.
LEGAL PRECEDENT -- ISSUE 1 -- OWCP FILE NO. xxxxxx218
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).

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causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS -- ISSUE 1 -- OWCP FILE NO. xxxxxx218
OWCP accepted that appellant leaned up from a table where he was reading schematics
and troubleshooting an engine problem on June 30, 2009 while working as an electronic
integrated systems mechanic. The Board finds that the medical evidence of record is insufficient
to establish that his back condition was caused or aggravated by the June 30, 2009 employment
incident.
Dr. Marjanovic’s August 20, 2009 reports provided essentially normal findings on
physical and neurological examination, noting positive tenderness to palpation in the lumbar
paravertebrals. He advised that appellant had discogenic pain for which he performed a lumbar
discogram September 17, 2009. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.10 Dr. Marjanovic failed to
explain how leaning up from a table would cause or contribute to the diagnosed discogenic pain
and resultant surgery. Further, the Board notes that a physician’s mere diagnosis of pain, without
more by way of medical rationale, does not constitute a basis for payment of compensation as
pain is a symptom, not a medical condition.11 The Board finds that Dr. Marjanovic’s reports are
insufficient to establish that appellant sustained an injury causally related to the accepted
employment incident.
The diagnostic test reports of Dr. Aronov, Dr. Singla, Dr. Agrawal and Dr. Burnstein did
not provide an opinion addressing whether the diagnosed lumbar conditions and spinal fusion
were causally related to the June 30, 2009 employment incident.12 The Board finds that this
evidence is insufficient to establish appellant’s claim.
Dr. Patel’s May 9, 2008 diagnostic test report diagnosed appellant’s lumbar conditions.
Dr. Williams’ July 23, 2008 disability certificate advised that appellant was disabled for work
through August 4, 2008. In a September 15, 2008 disability certificate, he advised that appellant
could return to work with physical restrictions. Dr. Hornyak’s March 31, 2009 disability
certificate stated that appellant could return to work on April 1, 2009 with physical restrictions.
Dr. Wirebaugh’s April 9, 2009 report found that the April 23, 2008 employment injury
aggravated appellant’s preexisting lumbar disc disease at L4-5 and L5-S1 with radiculopathy into
the right lower extremity. None of these reports are relevant in establishing causal relation as
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

11

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

12

See cases cited, supra note 10.

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they predate the June 30, 2009 employment incident and fail to address whether appellant
sustained an injury causally related to the June 30, 2009 employment incident. The Board finds
that this evidence is insufficient to establish appellant’s claim.
The reports of Dr. Gouy, Dr. Varga, Dr. Jessica Lupo and Dr. Joseph Lupo, chiropractors,
are insufficient to establish appellant’s claim. The physicians diagnosed several lumbar
conditions, none of which included subluxation as demonstrated by x-ray. The term physician
under section 8101(2) of the Act includes chiropractors only to the extent that their reimbursable
services are, limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.13 As Dr. Gouy, Dr. Varga, Dr. Jessica Lugo and
Dr. Joseph Lugo did not diagnose spinal subluxation based on x-rays; the Board finds their
reports are of no probative medical value.14
The October 22, 2009 report which contained an illegible signature and Ms. Braidwood’s
reports do not constitute probative medical evidence. A medical report may not be considered as
probative evidence if there is no indication that the person completing the report is a physician as
defined at section 8101(2) of the Act.15 The Board finds, therefore, that the disability certificates
and reports do not establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted June 30, 2009
employment incident. Appellant did not meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 2 -- OWCP FILE NO. xxxxxx528
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.16 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.17
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
13

5 U.S.C. § 8101(2).

14

See Michelle Salazar, 54 ECAB 523 (2003).

15

R.M., 59 ECAB 690 (2008).

16

20 C.F.R. § 10.5(x).

17

Id.

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establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.18
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.19
ANALYSIS -- ISSUE 2 -- OWCP FILE NO. xxxxxx528
OWCP accepted that appellant sustained aggravation of lumbar degenerative disc disease
at L4-5 and L5-S1 on April 23, 2008 while working as an electronic integrated systems
mechanic. Following this injury, he returned to full-duty work. At the time he claimed a
recurrence of total disability commencing June 30, 2009 causally related to his accepted
employment injury of April 23, 2008 while he was performing modified-duty work. Appellant
must demonstrate either that his condition has changed such that he could not perform the
activities required by his modified job or that the requirements of the limited light-duty job
changed.20 The Board finds that the record contains no evidence that the limited light-duty job
requirements were changed or withdrawn or that appellant’s employment-related condition has
changed such that it precluded him from performing limited light-duty work.
None of the medical evidence submitted by appellant establishes that he sustained a
recurrence of disability commencing June 30, 2009 due to the April 23, 2008 employment injury.
Although the reports from Dr. Marjanovic, Dr. Aronov, Dr. Singla, Dr. Agrawal and
Dr. Burnstein indicated that appellant had lumbar conditions, none of the evidence addressed
whether he sustained the claimed recurrence of disability due to the accepted employment
injury.21
Dr. Patel’s diagnostic test report, Dr. Williams’ disability certificates and
Dr. Hornyak’s and Dr. Wirebaugh’s reports predate the alleged recurrence of disability and are,
therefore, of diminished probative value as to the claimed period of disability. The chiropractic
reports of Dr. Gouy, Dr. Varga, Dr. Jessica Lupo and Dr. Joseph Lupo are of no probative value
as they did not diagnose subluxation as demonstrated by x-ray.22 Lastly, the reports which
contained an illegible signature and signed by Ms. Braidwood are of no probative value as there
is no indication that the evidence was signed by a physician.23

18

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
19

James H. Botts, 50 ECAB 265 (1999).

20

See supra note 18.

21

See cases cited supra note 10.

22

See supra note 14.

23

R.M., supra note 15.

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Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the
limited-duty requirements which would prohibit him from performing the limited light-duty
position, he assumed after he returned to work.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a back injury in the
performance of duty on June 30, 2009, as alleged in File No. xxxxxx218. The Board further
finds that appellant has failed to establish that he sustained a recurrence of disability
commencing June 30, 2009 causally related to his April 23, 2008 employment injury in File No.
xxxxxx528.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 14-1187; 14-1215
Issued: February 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2014 appellant, through counsel, filed timely appeals from the
November 14, 2013 and March 19, 2014 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). The last merit decision of record was the April 30, 2013
decision of OWCP. Because more than 180 days elapsed between the last merit decision and the
filing of appeals on April 28, 2014, and pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3,2 the Board lacks jurisdiction to review the merits
of the claims.3

1

5 U.S.C. §§ 8101-8193.

2

Appellant also filed an appeal of an OWCP “decision” dated February 26, 2014 but the Board notes that this
represents an informational letter rather than a final decision of OWCP and therefore it is not appealable to the
Board. 20 C.F.R. § 501.2(c). The appeals for Docket No. 14-1187 and Docket No. 14-1215 concern different work
injuries initially developed under separate file numbers (xxxxxx003 and xxxxxx402), but beginning in early 2013
these cases were administratively associated with the same file number (xxxxxx003).
3

See 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as the request were untimely filed and failed to demonstrate
clear evidence of error.
FACTUAL HISTORY
OWCP accepted that on October 5, 2009 appellant, then a 34-year-old letter carrier,
sustained a medial meniscus tear of her left knee due to a fall down stairs at work. Appellant
stopped work on October 5, 2009 and began to receive compensation on the daily rolls.4
On January 12, 2010 Dr. Jeffrey F. Augustin, an attending Board-certified orthopedic
surgeon, performed a left knee arthroscopy with lateral meniscectomy and excision of plica. The
surgery was authorized by OWCP.
In a June 17, 2010 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective June 17, 2010 on the grounds that she ceased to have residuals of her
October 5, 2009 work injury after that date. It based its termination action on a May 30, 2010
report of Dr. Augustin and a May 3, 2010 report of Dr. Jerome D. Rosman, a Board-certified
orthopedic surgeon, who served as an OWCP referral physician.
By decision dated November 17, 2010, OWCP modified its June 17, 2010 termination
decision to reflect that only appellant’s wage-loss compensation was terminated effective
June 17, 2010. It indicated that the proposed notice of termination sent to appellant failed to
mention that her medical benefits related to the October 5, 2009 work injury would be
terminated.
On June 26, 2012 appellant alleged that she sustained a left knee injury at work on
June 20, 2012 when she stepped down off a curb. She indicated that she felt a tug and twist in
her knee and heard a popping sound.5
In an August 9, 2012 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a left knee injury in the
performance of duty on June 20, 2012.
On October 22, 2012 Dr. Allen Glushakow, an attending Board-certified orthopedic
surgeon, performed left knee surgery, including abrasion arthroplasty, chondroplasty,
arthrotomy, and partial lateral meniscectomy. He noted that during the surgery he observed an
effusion and osteochondral fracture of the medial femoral condyle and an acute tear of the lateral
meniscus. The surgery was not authorized by OWCP.
4

Appellant later began to receive compensation on the periodic rolls.

5

This claim was initially developed under file number xxxxxx402, but beginning in early 2013 the documents for
this claim were administratively associated with file number xxxxxx003, the file created for appellant’s October 5,
2009 injury.

2

In a decision dated February 20, 2013, an OWCP hearing representative modified
OWCP’s August 9, 2012 decision to accept the condition of left knee sprain as occurring on
June 20, 2012 “with entitlement to medical benefits being limited to the claimant’s emergency
room visit on June 20, 2012.” He stated, “The district office denial of the claim for any other left
knee condition and for benefits subsequent to June 20, 2012 is affirmed.”
In an April 30, 2013 decision, OWCP advised appellant that her claim for a traumatic
injury on June 20, 2012 had been formally accepted for a left knee sprain. It noted that, per its
February 20, 2013 decision, authorization for medical treatment was limited to treatment at the
emergency room on June 20, 2012. OWCP stated, “If the current accepted condition(s) need to
be revised or additional complications related to the current accepted condition(s) need to be
added, your physician should explain in writing, with medical rationale, the relationship between
any additional condition and the work injury or the current accepted condition(s) noted above.”
In an informational letter dated June 10, 2013, OWCP advised appellant that her claim
for compensation for the period October 22, 2012 to March 18, 2013 was not payable. It
informed appellant that, in its November 17, 2010 decision, it had terminated her wage-loss
compensation effective June 17, 2010.
In a July 17, 2013 letter received on that date, counsel, on behalf of appellant, sought
compensation for appellant’s October 22, 2012 left knee surgery and any periods of disability
related to her accepted work-related knee condition. He stated, “[Appellant] underwent surgery
by Dr. Glushakow under the above file in October 2012. Clearly, this is new evidence and was
not available on June 17, 2010. She is now disabled as a result of the effects of the surgery.”6
In a November 14, 2013 decision, OWCP denied appellant’s case finding that she filed an
untimely reconsideration request which failed to demonstrate clear evidence of error in a prior
OWCP decision. It indicated that the June 10, 2013 “decision” for which appellant was
considered to have requested reconsideration was an informational letter rather than a final
decision of OWCP and therefore appellant could not request reconsideration of this decision.
OWCP found that appellant’s July 17, 2013 reconsideration request was not timely filed with
respect to the November 17, 2010 decision (which modified the June 17, 2010 decision) and that
her application for review did not show clear evidence of error in that decision. It stated, “Your
attorney does not argue that the decision dated November 17, 2010 was incorrect when it was
issued.”
On January 30, 2014 appellant filed a claim for disability due to her work-related left
knee condition, alleging that she was unable to work for periods beginning June 20, 2012.
In an informational letter dated February 26, 2014, OWCP advised appellant that it only
accepted that she sustained a left knee sprain on June 20, 2012 and that her case was only open
for payment of medical bills related to an emergency room visit on June 20, 2012. It indicated
that appellant had previously been provided with appeal rights in connection with prior decisions
on this matter.
6

Counsel also stated he wished to “appeal” June 17, 2010 and June 10, 2013 “decisions” of OWCP. As noted
above, the June 10, 2013 document was an informational letter rather than a final decision of OWCP.

3

In a March 5, 2014 letter received on the same date, counsel, on behalf of appellant,
indicated that he was submitting evidence which he felt supported coverage of appellant’s
October 22, 2012 surgery. In the attached June 25, 2013 report, Dr. Glushakow explained why
he felt that appellant’s need for repeat left knee surgery on October 22, 2012 was due to her
June 20, 2012 injury rather than an earlier injury. He stated:
“While the [October 22, 2012] operative report did not show a tear of the medial
meniscus, there was an effusion and osteochondral fracture of the medial femoral
condyle as well as an acute tear of the lateral meniscus. In addition, a marked
synovitis was noted requiring a subtotal synovectomy, all of which is described in
the operative report. [Appellant] had made a full recovery from the surgery
performed on January 12, 2010. Prior operative report[s] did not note an
osteochondral fracture and did not note synovitis. Therefore, the combination of
these findings point to the cause of her surgery being the incident of
June 20, 2012.”7
In a March 19, 2014 decision, OWCP refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It found that the March 5, 2014 letter submitted by counsel
on behalf of appellant was an untimely reconsideration request and did not show clear evidence
of error in OWCP’s prior decisions, including its decision dated April 30, 2013.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.11
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
7

Counsel also stated that he wished to “appeal” the April 30, 2013 decision of OWCP and that he wished to
‘request reconsideration.”
8

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

4

nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”12 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.13
In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.14 An employee seeking compensation for disability and/or a specific condition under
FECA has the burden of establishing the essential elements of his or her claim including the fact
that the individual is an “employee of the United States” within the meaning of FECA, that the
claim was timely filed within the applicable time limitation period of FECA, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.15 It is well
established that proceedings under FECA are not adversarial in nature, and while the claimant
has the burden to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence.16
ANALYSIS
OWCP accepted that on October 5, 2009 appellant sustained a medial meniscus tear of
her left knee due to a fall down stairs at work. On January 12, 2010 appellant underwent
OWCP-authorized left knee arthroscopy with lateral meniscectomy and excision of plica. In a
June 17, 2010 decision, OWCP terminated her wage-loss compensation and medical benefits
effective June 17, 2010 on the grounds that she ceased to have residuals of her October 5, 2009
work injury after that date. By decision dated November 17, 2010, it modified its June 17, 2010
termination decision to reflect that only appellant’s wage-loss compensation was terminated
effective June 17, 2010. OWCP indicated that the proposed notice of termination sent to
appellant failed to mention that her medical benefits related to the October 5, 2009 work injury
would be terminated.
Appellant’s claim for her October 5, 2009 injury was dormant until October 2012 after
she underwent left knee surgery. On October 22, 2012 Dr. Glushakow, an attending Boardcertified orthopedic surgeon, performed left abrasion arthroplasty, chondroplasty, arthrotomy,
and partial lateral meniscectomy. The surgery was not authorized by OWCP. In a July 17, 2013
letter received on that date, counsel, on behalf of appellant, sought compensation for appellant’s
12

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a
(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake.”
14

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

15

J.F., Docket No. 09-1061 (issued November 17, 2009).

16

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

5

October 22, 2012 left knee surgery and any period of disability related to her accepted workrelated left knee condition.
Under a separate case file (now combined with the file for the October 5, 2009 injury),
appellant alleged in late June 2012 that she sustained a left knee injury at work on June 20, 2012
due to stepping down off a curb. After initially being denied, her claim for a June 20, 2012 work
injury was accepted for left knee sprain in OWCP decisions dated February 20 and
April 30, 2013.17 In a March 5, 2014 letter, counsel, on behalf of appellant, indicated that he was
submitting evidence which he felt supported coverage of appellant’s October 22, 2012 surgery.18
The Board finds that OWCP improperly found that counsel’s communications on behalf
of appellant constituted a request for reconsideration of its November 17, 2010 decision which
modified its June 17, 2010 termination decision to reflect that only appellant’s wage-loss
compensation was terminated effective June 17, 2010. It is clear, however, that in a July 17,
2013 letter, counsel expressly sought compensation for appellant’s October 22, 2012 left knee
surgery and any periods of disability related to her accepted work-related knee condition. In a
March 5, 2014 letter, he indicated that he was submitting evidence which he felt supported
coverage of appellant’s October 22, 2012 surgery. Medical evidence was submitted in support of
this claim, including a June 25, 2013 report in which Dr. Glushakow stated that the October 22,
2012 surgery was necessitated by a work-related injury. Moreover, appellant filed a claim for
disability due to her work-related left knee condition, alleging that she was unable to work for
periods beginning June 20, 2012.19 Consequently, OWCP improperly analyzed appellant’s case
and wrongly determined, in November 14, 2013 and March 19, 2014 decisions, that she filed an
untimely request for merit review and failed to show clear evidence of error in its November 17,
2010 decision.20
The Board finds that appellant has an outstanding claim related to her October 22, 2012
left knee surgery and any periods of disability arising after June 20, 2012. The case shall be
remanded to OWCP for consideration of this claim. OWCP should consider all the relevant
documents relating to both appellant’s accepted October 5, 2009 left knee injury and her
accepted June 20, 2012 left knee injury.21 After carrying out this development, OWCP shall
issue an appropriate decision on the matter.

17

However, OWCP found in these decisions, with respect to the June 20, 2012 injury, appellant’s authorization
for medical treatment was limited to treatment at the emergency room on June 20, 2012.
18

On January 30, 2014 appellant filed a claim for disability due to her work-related left knee condition, alleging
that she was unable to work for periods beginning June 20, 2012.
19

Although counsel used the words “appeal” and “reconsideration” in some of his letters, the content and context
of the letters show that he actually sought payment for appellant’s October 22, 2012 left knee surgery and any
periods of disability arising after June 20, 2012.
20

See supra notes 7 through 12.

21

Beginning in early 2013, these cases were administratively associated with the same file number (xxxxxx003).

6

CONCLUSION
The Board finds that the case shall be remanded to OWCP for consideration of her
outstanding claim for payment related to her October 22, 2012 left knee surgery and any periods
of disability arising after June 20, 2012.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2014 and November 14, 2013
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
to OWCP for proceedings consistent with this decision of the Board.22
Issued: February 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

22

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

7


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
D.C., Appellant
and
DEPARTMENT OF COMMERCE,
DECENNIAL CENSUS, Dallas, TX, Employer
________________________________________

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

Docket No. 12-831
Issued: September 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 5, 2012 appellant, through her attorney, filed a timely appeal from the
February 2, 2012 Office of Workers’ Compensation Programs’ (OWCP) wage-earning capacity
determination. 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 OWCP properly determined the constructed position of a
receptionist again represented her wage-earning capacity effective August 5, 2011.
FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a December 20, 2010
decision, the Board found that OWCP met its burden of proof to establish that the constructed
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-582 (issued December 20, 2010).

position of receptionist reflected appellant’s wage-earning capacity effective June 9, 2009. The
facts and history contained in the prior appeal are incorporated by reference.
OWCP accepted a recurrence due to a May 25, 2010 surgery for a right total knee
replacement and was totally disabled. Appellant received appropriate compensation and
benefits.
On January 20, 2011 OWCP referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Emmanuel Obianwu,
a Board-certified orthopedic surgeon.
In a report dated February 11, 2011, Dr. Obianwu described appellant’s history of injury
and treatment and examined appellant. Regarding the right knee, he determined that it got stuck
in position, especially when she woke up in the morning, the right knee was still painful, despite
the total knee arthroplasty and there was discomfort present medially and laterally and nothing
helped her pain. Dr. Obianwu advised that appellant related that she had pain in her low back,
neck and discomfort on both sides which spread into both shoulder blades and there was no
involvement of the upper extremities and there was no paresthesias and numbness of the fingers.
He examined her and determined that she had full extension of the right knee, flexion of 95
degrees, no warmth, swelling, instability or tenderness and the Lachman’s test was negative.
Dr. Obianwu further noted that while sitting, appellant could bring both lower extremities up so
that the hips were flexed at 90 degrees and the knees were fully extended and that she could
maintain this position for some time. He determined that the only residual he attributed to the
work injury was a right total knee arthroplasty and the prognosis was excellent as there appeared
to be no need for ongoing treatment due to the work injury. Dr. Obianwu diagnosed posttraumatic osteoarthritis of the right knee, right total knee arthroplasty, normal cervical spine,
normal lumbar spine, no evidence of cervical radiculopathy and abnormal illness behavior. He
advised that appellant reached maximum improvement in January 2011, six months after her
surgery. Regarding her ability to work as a receptionist, Dr. Obianwu indicated that her
restrictions were permanent and included no walking and no more than a half hour of standing.
He opined that appellant was capable of sedentary work for eight hours daily.
In a March 7, 2011 report, Dr. Jeffrey Shapiro, a Board-certified orthopedic surgeon,
noted that for the right knee appellant was 10 months status post right total knee arthroplasty and
continued to complain of pain. He examined her right knee and determined that she had a wellhealed surgical incision, no joint effusion, full knee extension and 120 degrees of flexion.
Dr. Shapiro also noted that appellant had good stability to varus and valgus stress at 0, 30 and 90
degrees of flexion. He reviewed right knee x-rays that showed maintenance position of all
prosthetic components and determined that she had no objective findings to substantiate her
complaints of continued pain. Dr. Shapiro advised that appellant related that she was walking
with difficulty and had back pain. He recommended physical therapy.
On March 22, 2011 OWCP notified appellant that it proposed to reduce her compensation
for wage loss due to her accepted injury. It found that the factual and medical evidence
established that she was no longer totally disabled for work but was instead partially disabled
and she had the capacity to earn wages as a receptionist at the rate of $440.80 a week. OWCP
provided appellant 30 days to submit evidence or argument concerning her ability to earn wages.

2

OWCP provided a calculation sheet regarding appellant’s salary. It indicated that her pay
rate when injured on August 3, 2000 was $257.81 a week; the current adjusted pay rate for her
job on the date of injury was $347.42 a week, she was currently capable of earning $440.80 a
week, the pay rate for a receptionist. OWCP determined that appellant had no loss of
wage-earning capacity. It concluded that based upon a three-fourths compensation rate, her
compensation would be $0.00 a week or $0.00 every four weeks. Appellant was provided 30
days to submit additional evidence or argument in support of any objection to the proposed
reduction.
In a March 30, 2011 work capacity evaluation, Dr. Shapiro indicated that appellant could
work from June 24 to December 24, 2011 with restrictions that included: no prolonged standing
or walking, no operating a motor vehicle, no squatting, kneeling or climbing.
In a letter dated April 25, 2011, OWCP advised Dr. Shapiro that it had received his
March 7, 2011 medical report in which he found no complaints of pain or objective findings. It
also noted that he provided a March 30, 2011 work capacity form stating that from June 23 to
December 24, 2011, appellant had restrictions of no prolonged standing or walking, no operating
a motor vehicle, no squatting, kneeling or climbing. OWCP requested that Dr. Shapiro review
the enclosed job description for a receptionist and provide an opinion as to whether appellant
was currently capable of performing the position. No response was received.
In an April 18, 2011 disability certificate, Dr. Shapiro opined that appellant was unable to
work.
In a letter dated May 13, 2011, OWCP advised appellant that a conflict of medical
opinion had arisen between her physician, Dr. Shapiro, who advised that she was unable to work
at all, and Dr. Obianwu, who advised that she was able to work with restrictions.
On June 7, 2011 OWCP referred appellant along with a statement of accepted facts, and
the medical record to Dr. Marty Kosinski, a Board-certified orthopedic surgeon, for an impartial
medical evaluation to resolve the conflict in opinion between appellant’s physician, Dr. Shapiro
and Dr. Obianwu, the second opinion physician, regarding the physical limitations/restrictions
imposed by residuals of her work injury.
In a June 15, 2011 report, Dr. Shapiro advised OWCP that he had reviewed the job
description for a receptionist. He opined that apart from her complaints of chronic pain,
appellant should be able to perform this position.
In a June 20, 2011 report, Dr. Kosinski noted appellant’s history of injury and treatment
and examined her. He further noted that she complained of pain on the lateral side of the knee,
that she had diminished sensation on the skin lateral to the incision which was standard
occurrence after a total knee arthroplasty. Furthermore, Dr. Kosinski indicated that appellant
moved deliberately getting on and off the foot stool, she had a well-healed scar about the right
knee and mild swelling about the right knee, a well-healed scar about the left knee. He advised
that it was difficult if not impossible to obtain a reliable neurological examination. Dr. Kosinski
diagnosed post-traumatic arthritis, right knee, status post right total knee arthroplasty and a
normal examination of the neck and back. He opined that he could not offer an opinion

3

regarding the closed head injury as that was not his specialty. Dr. Kosinski opined that there was
no evidence of any cervical radiculopathy and the right knee residuals continued to the extent
that appellant had a total knee arthroplasty, which was related to the initial diagnoses of anterior
cruciate ligament (ACL) tear and meniscal tears of the right knee. He opined that her current
condition was attributable to the August 3, 2000 work injury. Dr. Kosinski advised that
appellant was capable of performing the job duties of a receptionist and she could perform the
job listed in the job classification. Furthermore, appellant’s restrictions were permanent.
Dr. Kosinski indicated that she continue with her treatment for the right knee and advised that no
further treatment was warranted for the neck or back.
By decision dated August 5, 2011, OWCP reduced appellant’s compensation under 5
U.S.C. § 8115 to reflect her capacity to earn wages as a receptionist. It noted that she did not
provide any additional evidence or argument.
On August 12, 2011 appellant’s representative requested a telephonic hearing, which was
held on November 15, 2011. During the hearing, appellant alleged that she was not working and
had applied for social security benefits. She testified that she could not work as a receptionist as
she could not sit for long periods due to pain. Furthermore, appellant had mental and physical
conditions that precluded her from working.
On January 9, 2012 counsel submitted new medical evidence. In an October 5, 2011
report, Dr. Shapiro diagnosed osteoarthritis of the left knee and advised that appellant felt that
she was “in too much pain to be able to stand up and perform the duties of her job.”
In a report dated October 24, 2011, Dr. Shapiro indicated that appellant presented with
complaints of severe pain all over her body. He indicated that she had pain in her left hip and
left knee as well as a number of other locations and she believed that she was unable to work due
to this severe pain. Dr. Shapiro examined appellant and determined that the right knee showed a
well-healed surgical incision with full extension, no joint effusion and 125 degrees of flexion.
He diagnosed: osteoarthritis, left knee; status post right total knee arthroplasty; probable mild
osteoarthritis, left hip and advised that appellant was in severe pain and is disabled.
In letters dated November 17, 2011, counsel argued that the accepted statements of facts
was defective as they did not clearly state that post-traumatic arthritis was accepted by work
even though the impartial medical examiner opined that this was an indirect and proximate result
of the knee injury. He advised that this would be another reason to vacate the wage-earning
capacity decision. Counsel further noted that the number of hours that appellant was officially to
work was based on a weekly rate; however, the date-of-injury job was 23 hours a week at $13.75
an hour. He argued that OWCP should consider the 23 hours as a receptionist as not full-time
work.
In a February 2, 2012 decision, OWCP affirmed its prior decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

4

wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
OWCP procedures provide that, [i]f a formal loss of wage-earning capacity decision has
been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance the [claims examiner] will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.4
Chapter 2.814.11 of the procedure manual contains provisions regarding the modification
of a formal loss of wage-earning capacity. The relevant part provides that a formal loss of wageearning capacity will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has changed; or (3) the claimant has been vocationally rehabilitated. OWCP
procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met. If OWCP is
seeking modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.5
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination.6 This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination. This narrow exception is only
applicable for brief periods of medical disability. It does not apply to situations where there is a
wage-earning capacity determination in place and the employee claims additional wage-loss
compensation due to the withdrawal of light-duty work.7
ANALYSIS
Appellant’s claim was accepted for cervical radiculopathy, head contusion, headache and
anterior cruciate ligament tear and medial meniscus tears of the right knee. She received
compensation for total disability. OWCP issued a formal wage-earning capacity determination
on June 9, 2009.
OWCP subsequently accepted that appellant sustained a recurrence due to a May 25,
2010 surgery for a right total knee replacement and was totally disabled. It subsequently
provided her with compensation and benefits. The Board notes that when appellant claimed a
recurrence of disability beginning May 25, 2010, this was for a closed or temporary period of
disability, as the disability was for a scheduled surgery and postoperative recovery. As noted
3

Katherine T. Kreger, 55 ECAB 633 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
5

Id. at Chapter 2.814.11 (June 1996).

6

Sandra D. Pruitt, 57 ECAB 126 (2005).

7

K.R., Docket No. 09-415 (issued February 24, 2010).

5

above, OWCP may accept a limited period of disability without modifying a standing
wage-earning capacity determination.8 Thus, the original wage-earning capacity determination
remained in place.9
In this case, appellant was off for about six months and OWCP referred her for a second
opinion on January 20, 2011 with Dr. Obianwu, who found that she was capable of performing
the sedentary duties of a receptionist. Dr. Shapiro subsequently advised that she was unable to
work and OWCP determined that a conflict existed. Section 8123(a) of FECA provides, if there
is disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.10 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.11 OWCP referred appellant to
Dr. Kosinski, who in a June 20, 2011 report, examined appellant, provided findings and
concluded that appellant could perform the duties of a receptionist and noted that he had
reviewed the job duties in the job classification.
The Board finds that OWCP properly determined that the medical evidence established
that appellant could perform the duties of a receptionist. The evidence establishes that
appellant’s employment injury no longer totally disables her for work. Appellant was able to
resume earning wages as a receptionist.
Consequently, OWCP properly determined that appellant could perform the duties of a
receptionist effective August 5, 2011. The Board notes that counsel made arguments regarding
post-traumatic arthritis and noted that the impartial medical examiner indicated it was an indirect
and proximate cause of the knee injury. The Board notes that the knee injury was accepted and
appellant received appropriate compensation and benefits. The impartial medical examiner was
accorded the special weight given to impartial medical examiners and he opined that appellant
could perform the duties of a receptionist. He made further arguments about the receptionist
position and the amount of hours she was able to work, but they were not supported by any
additional new evidence. As noted in the prior Board decision, OWCP met its burden of proof in
reducing appellant’s compensation based on the constructed position of a receptionist. In this
case, as the period of disability was a limited period, no modification of the previous
wage-earning capacity determination was necessary.
The Board notes that appellant may request modification of the wage-earning capacity
determination, supported by new evidence or argument, at anytime before OWCP.

8

See supra note 6.

9

As noted, infra, both wage-earning capacity decisions rated appellant’s earning capacity based on her ability to
perform the job of a receptionist.
10

5 U.S.C. § 8123(a).

11

Barbara J. Warren, 51 ECAB 413 (2000).

6

CONCLUSION
The Board finds that appellant was able to earn wages in the constructed position of a
receptionist beginning August 5, 2011.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: September 11, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND
STATIONS, Colts Neck, NJ, Employer
__________________________________________

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

Docket No. 12-773
Issued: March 29, 2013

Case Submitted on the Record

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

JURISDICTION
On February 23, 2012 appellant, through his attorney, filed a timely appeal of a
November 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than eight percent impairment of his right lower
extremity for which he has received a schedule award.
On appeal, counsel argued that there was an unresolved conflict of medical opinion
evidence between OWCP’s medical adviser and appellant’s physician, Dr. David Weiss, an
osteopath.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. Appellant filed a traumatic
injury claim alleging that on October 21, 1999 he experienced a sharp pain in his lower back
while driving in the performance of duty. His x-rays of October 27, 1999 demonstrated an
apparent spondylolisthesis at L5-S1. OWCP accepted appellant’s claim for aggravation of
preexisting spondylolisthesis and preexisting spondylosis on November 8, 1999. Appellant
underwent a magnetic resonance imaging (MRI) scan on November 17, 1999 which
demonstrated a minimal disc bulge at T12-L1 with no evidence of a herniated disc or spinal
stenosis. Electrodiagnostic studies on December 20, 1999 of the right lower extremity including
nerve conduction studies and an electromyogram (EMG) were normal. OWCP authorized an
anterior lumbar interbody fusion and posterior lumbar fusion with reduction of spondylolisthesis
on February 2, 2000. On April 17, 2000 appellant underwent an anterior lumbar discectomy at
L5-S1, anterior lumbar interbody fusion and body bone cage fixation due to lumbar
spondylolisthesis at L5-S1, lumbar spinal stenosis, spondylosis L5-S1 and degenerative disc
disease L5-S1. An MRI scan on March 24, 2003 demonstrated a herniated disc at L3-4 on the
left and L4-5 on the right. Appellant had some scar tissue posterior to the L5-S1 fusion, but no
significant spinal stenosis.
Appellant requested a schedule award on September 15, 2004. In support, he submitted a
report dated May 24, 2004 from Dr. Weiss applying the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 and determining that appellant
had 37 percent impairment of the right lower extremity. OWCP’s medical adviser reviewed the
record and found 32 percent impairment of the right lower extremity. Due to the disagreement
between these physicians, OWCP found a conflict and referred appellant to Dr. Ian Fries, a
Board-certified orthopedic surgeon, who determined that appellant had 11 percent impairment.
Due to a mathematical error in Dr. Fries’ calculations, a new OWCP medical adviser reduced the
impairment rating to eight percent. On August 2, 2007 appellant underwent electrodiagnostic
studies which were read as normal with no evidence of a lumbosacral motor radiculopathy on
either side. By decision dated July 10, 2008, OWCP granted appellant a schedule award for
eight percent impairment of the right lower extremity. Appellant underwent an MRI scan on
August 12, 2008 which demonstrated the posterior transpedicular spinal fusion at L5-S1 with no
gross disc extrusion or evidence of central spinal stenosis. The MRI scan demonstrated
multilevel degenerative changes and facet joint arthropathy. OWCP’s hearing representative
affirmed this decision on February 24, 2009. Appellant appealed to the Board and in its decision
and order dated March 16, 2010,3 the Board found that at the time of Dr. Fries report there was
no conflict of medical opinion evidence. The Board remanded the case for additional
development of the medical evidence from Dr. Weiss and the original medical adviser. The facts
and circumstances of the case as set out in the Board’s prior decision are adopted herein by
reference.

2

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

3

Docket No. 09-1561 (issued March 16, 2010).

2

Following the Board’s decision, OWCP requested additional medical evidence from
Dr. Weiss on April 30, 2010 based on the sixth edition of the A.M.A., Guides.4 On June 25,
2010 Dr. Weiss updated a report dated September 27, 2006. He did not reexamine appellant.
Dr. Weiss repeated his findings of intermittent low back pain and stiffness with numbness and
tingling in the right lower extremity down to the calf. He repeated appellant reported radicular
pain. On physical examination, Dr. Weiss described a persistent right lower extremity list. He
also found that that sitting root sign was positive on the right at 35 degrees above the horizontal
producing radicular pain down the right lower extremity and on the left at 45 degrees producing
complaints of pain into the left gluteal region. On the right, straight leg raising was also positive
producing radicular pain down the right lower extremity. Dr. Weiss found some loss of strength
on manual muscle testing in the hip flexors and gastrocnemius. He reported a perceived sensory
deficit over L4, L5 and S1 dermatomes involving the right lower extremity. Dr. Weiss found
that appellant’s circumferential gastrocnemius was one centimeter less on the right than left. He
applied the sixth edition of the A.M.A., Guides and found that appellant had a class 1 sensory
deficit of the right L4 nerve foot, one percent impairment. Dr. Weiss found a class 2 Functional
History (GMFH) as appellant could not perform gainful employment and a class 2 Clinical
Studies (GMCS) factor based on appellant’s MRI scan. After applying the appropriate formula,
he determined that appellant had two percent impairment of the right lower extremity. Dr. Weiss
also determined that appellant had four percent impairment due to class 1 sensory deficits of the
right L5 and S1 nerve roots with similar functional history and clinical studies grades resulting in
nine percent impairment. He found a class 1 IV/V motor strength deficit of the right
gastrocnemius or 9 percent impairment with a net adjustment of 2 resulting in 13 percent
impairment. Dr. Weiss also found a class 2 III/IV motor strength deficit of the right hip flexors
or 14 percent impairment. He concluded that appellant’s combined right lower extremity
impairment was 33 percent.
OWCP referred Dr. Weiss’ updated calculations to OWCP’s medical adviser on
July 21, 2010. Dr. Henry J. Magliato, a Board-certified orthopedic surgeon, reviewed Dr. Weiss’
ratings and stated that based on the August 12, 2008 MRI scan there was no evidence of disc
extrusion, spinal stenosis or dural or nerve root compression. He found that the 33 percent right
lower extremity radiculopathy was not supported by the MRI scan which was performed after
Dr. Weiss’ original findings.
OWCP referred appellant for a second opinion evaluation with Dr. Aldo Iulo, a Boardcertified orthopedic surgeon, on August 25, 2010. In a report dated August 25, 2010, Dr. Iulo
found that appellant had no obvious atrophy of the muscles of the lower extremities with
symmetrical reflexes. He found normal muscle strength. Appellant stated that he had decreased
sensation to touch and pinprick in a stocking distribution. Dr. Iulo diagnosed lumbar
spondylolisthesis and lumbar degenerative spondylosis with right sciatica and a one level spine
fusion at L5-S1. He found hypesthesia in the L5 and S1 distribution with a nonanatomical
functional component. Dr. Iulo applied the sixth edition of the A.M.A., Guides and found that
appellant had sciatica with mild problems based on the sensory deficit with subjective sciatic
pain, class 1 for mild sensory deficit and grade B with a residual permanency of three percent of

4

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

3

the right lower extremity.5 He found that appellant had reached maximum medical
improvement. Dr. Iulo found that appellant had a grade 1 impairment of the sciatic nerve, class 1
with functional history adjustment of 1, clinical studies adjustment of 1 and grade B resulting in
a lower extremity rating of three percent.
Dr. Magliato reviewed this report on October 12, 2010 and found that a mild sensory
deficit in the right L5-S1 distribution with a nonantomical functional component. He found a
four percent lower extremity impairment due to the lack of grade modifiers rather than three
percent. Dr. Magliato opined that appellant had four percent impairment of the right lower
extremity and reached maximum medical improvement on September 12, 2002.
By decision dated October 29, 2010, OWCP denied appellant’s claim for an additional
schedule award on the grounds that the medical evidence did not establish more than eight
percent impairment of his right lower extremity for which he had received a schedule award.
Counsel requested a hearing. He changed this request to a review of the written record on
December 6, 2010.
By decision dated March 8, 2011, the Branch of Hearings and Review vacated the
October 29, 2010 decision and remanded for Dr. Iulo to provide the calculations with grade
modifiers in accordance with the A.M.A., Guides.
In a report dated May 13, 2011, Dr. Iulo stated that the peripheral nerve impairment was
to the sciatic nerve, grade 1, class 1. He stated that the functional history adjustment was 1 and
that the clinical studies adjustment was 0. Dr. Iulo concluded that the grade was B with the final
impairment of three percent of the right lower extremity. Dr. Magliato reviewed this report on
May 23, 2011 and noted that Dr. Iulo found appellant had a class 1, grade 1 peripheral nerve
impairment of the sciatic nerve or grade C impairment of four percent.6 Dr. Iulo then used
functional history modifier of 1 and clinical studies modifier of 0 and did not use the Physical
Examination (GMPE) modifier as this was used to determine the appropriate nerve. Applying
the formula under the A.M.A., Guides, appellant had a net adjustment of negative one or three
percent impairment of the right lower extremity.
By decision dated June 13, 2011, OWCP denied appellant’s claim for an additional
schedule award.
Counsel requested a before an OWCP hearing representative. He alleged a conflict
between Dr. Weiss and Dr. Iulo. In a report dated October 10, 2011, Dr. Weiss reviewed the
medical evidence in the file and disagreed with Dr. Iulo’s application of the grade modifiers. He
stated that he believed his updated impairment rating of June 25, 2010 was appropriate noting
that Dr. Iulo did not use Semmes Weinstein Monofilament testing.
By decision dated November 23, 2011, OWCP’s hearing representative found that
Dr. Iulo’s report was entitled to the weight of the medical evidence and established that appellant
5

A.M.A., Guides 533.

6

Id. at 535, Table 16-12.

4

had no more than eight percent impairment of his right lower extremity for which he had
received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions 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 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. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.9
The peripheral nerve rating process of the A.M.A., Guides requires that the physician
identify the specific nerve, grade the sensory and motor deficit using Table 16-11 and use Table
16-12 to define the impairment. The examiner is then to adjust the impairment using the
functional history and clinical studies only.10
ANALYSIS
The Board finds that the weight of the medical evidence establishes that appellant has no
more than eight percent impairment of his right lower extremity for which he has received a
schedule award. The Board originally remanded this case for Dr. Weiss to provide an update of
his medical report based on the sixth edition of the A.M.A., Guides. Dr. Weiss did so on
June 25, 2011 finding that appellant had 33 percent impairment of his right lower extremity due
to sensory and motor deficits of peripheral nerves. Following his most recent examination of
appellant on September 27, 2006, appellant underwent an MRI scan on August 12, 2008 which
demonstrated the posterior transpedicular spinal fusion at L5-S1 with no gross disc extrusion or
evidence of central spinal stenosis. The MRI scan demonstrated multilevel degenerative changes
and facet joint arthropathy. Dr. Magliato opined that this MRI scan demonstrated no evidence of
disc extrusion, spinal stenosis or dural or nerve root compression. He found that the 33 percent
right lower extremity radiculopathy was not supported by the MRI scan.
As Dr. Weiss had not reviewed the most recent diagnostic studies in formulating his
updated impairment rating, OWCP properly referred appellant to a second opinion physician to
7

5 U.S.C. §§ 8101-8193, 8107.

8

20 C.F.R. § 10.404.

9

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

A.M.A., Guides, 533, Peripheral Nerve Rating Process.

5

determine his impairment based on examination and all the diagnostic studies. Dr. Iulo
examined appellant on August 25, 2010 and found normal muscle strength. However, appellant
demonstrated hypesthesia in the L5 and S1 distribution with a nonanatomical functional
component. Dr. Iulo applied the sixth edition of the A.M.A., Guides, identifying the sciatic
nerve in Table 16-1211 and classifying the severity of the impairment as mild in accordance with
Table 16-11.12 He properly found that a mild impairment correlated to a class 1 grade C or four
percent impairment of the sciatic nerve.13 Dr. Iulo found that appellant had a functional history
adjustment of 1 due to a mild problem with gait,14 clinical studies adjustment of 0 due to the
normal electrodiagnostic studies on December 20, 1999 and August 2, 2007. He applied the net
adjustment formula, which is grade modifier for functional history minus class of diagnosis plus
grade modifier for clinical studies minus class of diagnosis to reach (1-1) + (0-1) or -1, reducing
the severity grade to B resulting in a lower extremity rating of three percent.15
Following Dr. Iulo’s reports, Dr. Weiss disagreed with his conclusions and opined that
his own rating of 33 percent was correct. The Board finds that this report while expressing
disagreement is not based on a new physical examination. It is based on a physical examination
from May 24, 2004. Dr. Weiss’ May 24, 2004 physical examination findings constitute stale
medical evidence and cannot create a conflict with Dr. Iulo’s examination which is more recent
by four years.16 The Board finds that there is no unresolved conflict and that appellant has no
more than eight percent impairment of his right lower extremity for which he has received a
schedule award.
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 no more than eight percent impairment of his right
lower extremity for which he received a schedule award.

11

Id. at 535 Table 16-12.

12

Id. at 533, Table 16-11.

13

Supra note 11.

14

Id. at 516, Table 16-6.

15

Id. at 521 (GMFH -- CDX) + (GMCS -- CDX). The A.M.A., Guides provide that physical examination
adjustment is not reconsidered in rating peripheral nerves. A.M.A., Guides 533.
16

See H.C., Docket No. 11-1407 (issued May 11, 2012) (Finding that Dr. Weiss did not reexamine appellant and
based his physical findings on a 2004 examination such that his report constituted stale medical evidence and did not
create a conflict of medical opinion evidence).

6

ORDER
IT IS HEREBY ORDERED THAT the November 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 29, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Concurring Opinion: Judge Haynes
I concur with the holding in this appeal.
This separate opinion concerns the difficulties created by medical reports such as the one
by Dr.Weiss, presented by appellant, in this appeal. The report in question is dated
September 27, 2006 and June 25, 2010. There is no advantage for appellant or the finder of fact
in this confused presentation of relevant fact and opinion evidence. The values of clarity,
simplicity and efficiency are always better served if a medical report is dated to reflect the time it
was complete and contains clear references to other evidence as needed.
Appellant could have presented OWCP and the Board with an addendum or a
supplemental report to augment the earlier findings of Dr. Weiss. In its current form, the report
must confuse and delay the careful reader who must parse the text by date. The hurried or
inattentive reader may be entirely misinformed.17 Evidence presented in this format is less clear
and all parties suffer for that reason.
Recent Board precedent shows that this OWCP has found “date-blended” or “composite”
reports to be unpersuasive.18 It is difficult to imagine circumstances where a report offering
17

On page four of his seven-page report, Dr. Weiss notes that, for background, he reviewed only his own report
dated May 24, 2004. As the majority opinion notes, there is other relevant diagnostic evidence in the file which was
apparently not part of the consideration he gave to appellant’s permanent impairment rating in 2010.
18

P.S. Docket No. 12-649 (issued February 14, 2013); J.C. Docket No. 11-241 (issued September 22, 2011).

7

opinions reached in 2010, based on a physical examination in 2006, referring to a background
report created in 2004, could hold serious probative value. Clearly identified, separate reports,
with appropriate references are always preferable.
A new opinion which relies on significantly older evidence does not revive stale evidence
with a collection of recent and less recent dates.

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

8