United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
FORCES COMMAND, Fort Campbell, KY,
Employer
__________________________________________

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

Docket No. 13-964
Issued: November 25, 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 March 14, 2013 appellant, through his attorney, filed a timely appeal from a
February 8, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding a schedule award. 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 claim.
ISSUE
The issue is whether appellant has established entitlement to a schedule award due to his
work-related injuries.
FACTUAL HISTORY
On June 6, 1986 appellant, then a 46-year-old maintenance worker, filed a traumatic
injury claim alleging that he sustained injury to his back and hip on June 2, 1986 while moving a
1

5 U.S.C. § 8101 et seq.

picnic table in the performance of his work duties. OWCP accepted the claim for lumbar sprain
and left hip contusion. Appellant had preexisting spondylosis at L5-S1 with degenerative disc
disease. OWCP accepted a recurrence of disability in September 1988 and eventually placed
him on the compensation rolls. By decision dated September 10, 2008, it terminated appellant’s
compensation benefits effective September 10, 2008. Determinative weight was accorded to the
July 23, 2008 opinion of Dr. Bryant A. Bloss, a Board-certified orthopedic surgeon and OWCP
referral physician, who found appellant no longer suffered residuals of the accepted work-related
conditions. By decision dated June 21, 2010, OWCP denied reconsideration of its decision on
the grounds it was untimely filed and did not present clear evidence of error.
On September 9, 2009 appellant claimed schedule award compensation. In a July 22,
2010 letter, OWCP requested he provide medical evidence supporting a permanent impairment
related to the work incident. No further evidence was received. By decision dated August 25,
2010, OWCP denied the schedule award claim on the grounds that the medical evidence of file
failed to demonstrate a measurable impairment.
Appellant requested a telephonic hearing, which was held on January 4, 2011. In an
October 1, 2010 report, Dr. Martin Fritzhand, a Board-certified urologist, opined that appellant
reached maximum medical improvement by 1990. He also opined that appellant sustained 17
percent impairment to his left lower extremity as a result of the work injuries under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Dr. Fritzhand stated that appellant had 6 percent sensory
impairment and 11 percent motor impairment and cited to various figures and tables in the
A.M.A., Guides.
By decision dated February 15, 2011, OWCP’s hearing representative remanded the case
for OWCP’s medical adviser to review Dr. Fritzhand’s October 1, 2010 report.
In a February 24, 2011 report, OWCP’s medical adviser reviewed the medical evidence
of record and opined that appellant reached maximum medical improvement on June 2, 1990.
He reviewed Dr. Frizhand’s report and found appellant had chronic lower back pain and left leg
pain with lumbar degenerative disc disease with disc degeneration and spinal stenosis at L5-S1
with mild left disc bulge, producing left S1 radiculopathy with mild sensory and mild motor
deficit left leg. The medical adviser noted that Dr. Frizhand incorrectly used the peripheral nerve
impairment grids of the A.M.A., Guides.
He stated that The Guides Newsletter
July/August 2009 edition mandated the use of Table 2 for ratings pertaining to spinal nerve root
extremity impairment. Using those tables, the medical adviser found that a mild-to-moderate
sensory deficit of left S1 nerve root equaled three percent lower extremity impairment and mildto-moderate deficit of left S1 nerve root equaled five percent impairment, for a total left lower
extremity impairment of eight percent.
In a March 3, 2011 amended report, OWCP’s medical adviser noted the claim was
accepted only for lumbar sprain and hip contusion. The other conditions of lumbar degenerative
disc disease of the lumbar spine with foraminal stenosis, spondylosis and chronic pain syndrome
with left leg pain/weakness and sciatica were not part of the accepted conditions and thus could
not be rated for impairment. Therefore, the medical adviser stated that the final impairment of

2

the left lower extremity was zero percent for the accepted lumbar sprain and left hip contusion
conditions.
By decision dated March 7, 2011, OWCP denied appellant’s claim for a schedule award
on the grounds that the medical evidence was insufficient to support an impairment arising from
the June 2, 1986 work incident.
On March 15, 2011 appellant requested a telephonic hearing, which was held on
June 10, 2011. Counsel argued that appellant’s preexisting medical conditions should be
included in calculating the schedule award.
In a May 5, 2011 report, Dr. Fritzhand noted the history of injury and presented
examination findings. He opined that appellant reached maximum medical impairment by 1990.
Under the sixth edition of the A.M.A, Guides, Dr. Fritzhand opined that appellant has seven
percent left lower extremity impairment consisting of three percent motor impairment and four
percent sensory impairment. Citations to tables within the A.M.A., Guides was provided.
By decision dated September 7, 2011, OWCP’s hearing representative set aside its
decision and remanded the case file. OWCP was directed to expand the accepted condition to
include aggravation of appellant’s underlying degenerative disc disease and refer him for a
second opinion examination to determine whether the aggravation of degenerative disc disease
continued and whether he sustained a permanent impairment as a result of the work incident.
OWCP subsequently expanded the claim to include aggravation of degenerative lumbar
disc disease. In an October 11, 2011 report, Dr. Deborah St. Clair, a Board-certified orthopedic
surgeon and OWCP referral physician, noted the history of injury, reviewed appellant’s medical
file, including an updated statement of accepted facts and set forth examination findings. She
concluded that the aggravation returned to baseline after he ceased work and noted it was normal
to expect progression of his spinal detoriation that was present at the time of injury. Dr. St. Clair
further opined that the work injury had a permanent effect on appellant’s total functioning but
little effect anatomically upon the spine itself. She indicated that his spinal changes reflect
aging. Dr. St. Clair opined that there was no ratable impairment to the lower extremity resulting
from appellant’s spinal condition, but gave him a three percent whole person impairment for pain
under Chapter 3 of the A.M.A., Guides.
On November 16, 2011 OWCP’s medical adviser reviewed Dr. St. Clair’s October 11,
2011 report and found it to be thorough and objective. He stated that OWCP cannot recognize
whole person impairment and thus the three percent whole person impairment for pain was not
applicable. The medical adviser opined that Dr. St. Clair’s report did not supply a basis for an
impairment rating and thus appellant had zero percent permanent impairment of the left lower
extremity.
By decision dated November 17, 2011, OWCP denied appellant’s claim for a schedule
award.
On November 22, 2011 appellant requested a telephonic hearing. By decision dated
January 24, 2012, OWCP’s hearing representative found the case not in posture for a hearing.
The hearing representative found that Dr. St. Clair found that appellant’s degenerative disc
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disease was permanently aggravated and concluded that a conflict in medical opinion existed
between Dr. St. Clair and Dr. Fritzhand as to whether there was a permanent partial impairment
to a scheduled member. OWCP’s November 17, 2011 decision was set aside and the case
remanded to resolve this conflict.
In a February 3, 2012 statement of accepted facts, OWCP noted that a permanent
aggravation of degenerative disc disease had been accepted. To resolve the conflict of medical
opinion, it referred appellant to Dr. John Stanton, a Board-certified orthopedic surgeon, for an
impartial medical examination. In an April 12, 2012 report, Dr. Stanton noted the history of
injury, his review of the medical records and discussed his findings on examination. He advised
that there was no impairment based on appellant’s work-related condition with regards to the left
lower extremity. Dr. Stanton noted that appellant did not have significant numbness, only slight
loss of reflexes of the Achilles on left side compared to the right. No muscle atrophy, negative
straight leg raise testing and equal mobility of the lower extremity and almost equal strength on
both sides. Dr. Stanton concluded that appellant has progressive arthritic changes throughout his
body and, with regards to lumbar spine, has developed some bilateral, more left than right,
foraminal narrowing due to facet hypertrophy, which has caused complaints of pain down the
left lower extremity. The progression of this lumbar arthritis has made it impossible for
appellant to work, but this was not related to the work incident. Dr. Stanton opined that workrelated injury was nothing more than a contusion to the right hip and a strain of the lumbar spine,
which resolved no later than May 1989 when he reached maximum medical improvement.
Accordingly, he opined that appellant had no ratable impairment due to his work-related injury.
In a May 29, 2012 report, OWCP’s medical adviser reviewed Dr. Stanton’s impartial
report and concluded that appellant reached maximum medical improvement in May 1989 and
that Dr. Stanton appropriately applied the sixth edition of the A.M.A., Guides. He advised that
Dr. Stanton’s report did not support an impairment to a scheduled member as a result of the
June 2, 1986 work injury.
By decision dated May 29, 2012, OWCP denied appellant’s claim for a schedule award
based on the opinion of Dr. Stanton, the impartial medical specialist, and its medical adviser.
On June 4, 2012 appellant requested a telephonic hearing, which was held on
October 10, 2012. In a November 10, 2012 report, Dr. Fritzhand stated that his reports establish
that appellant sustained permanent impairment to the left lower extremity due to the allowed
work injury. He indicated that his findings were also corroborated by Dr. Stanton’s impartial
medical examination.
By decision dated November 28, 2012, OWCP’s hearing representative affirmed the
May 29, 2012 decision.
In a December 12, 2012 letter, appellant requested reconsideration based on
Dr. Fritzhand’s November 10, 2012 report not previously considered. A copy of Dr. Fritzhand’s
narrative November 10, 2012 report was resubmitted.
By decision dated February 8, 2013, OWCP denied modification of its November 28,
2012 decision. It reviewed Dr. Fritzhand’s new report but affirmed that the medical evidence did

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not establish a permanent impairment to a scheduled member of the body causally related to the
accepted injury and that appellant had not established entitlement to a schedule award.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.2 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.3 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides.4
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.5 Neither, FECA nor the regulations provide
for the payment of a schedule award for the permanent loss of use of the back/spine or the body
as a whole.6 However, a schedule award is permissible where the employment-related back
condition affects the upper and/or lower extremities.7
The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal
nerve extremity impairment.8 It was designed for situations where a particular jurisdiction, such
as FECA, mandated ratings for extremities and precluded ratings for the spine.9 The impairment
is premised on evidence of radiculopathy affecting the upper and/or lower extremities.10
When there exist opposing medical opinions of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the

2

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks compensation. 5 U.S.C.
§ 8107(c)(2).
3

20 C.F.R. § 10.404.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
5

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

6

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

7

Federal (FECA) Procedure Manual, Part 2, supra note 4 at Chapter 2.808.6a(3).

8

Federal (FECA) Procedure Manual, Part 3, supra note 4 at Chapter 3.700, Exhibit 4.

9

Id.

10

Id.

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opinion of such specialist, if sufficiently well rationalized and based upon a proper factual and
medical background, will be given special weight.11
ANALYSIS
OWCP accepted that appellant sustained a lumbar strain sprain and left hip contusion as a
result of the June 2, 1986 work incident and subsequently expanded the claim to include
permanent aggravation of degenerative lumbar disc disease. Appellant claimed a schedule
award. OWCP found a conflict in medical opinion between Dr. St. Clair, who opined that
appellant had no ratable impairment to the lower extremity, but three percent whole person
impairment for pain and Dr. Fritzhand, who opined that appellant had permanent impairment to
the left lower extremity as a result of the work injuries. It properly referred appellant to
Dr. Stanton for an impartial evaluation to resolve the conflict.12
In an April 12, 2012 report, Dr. Stanton reviewed the medical record and the statement of
accepted facts. He also presented findings on examination. Dr. Stanton noted that appellant did
not have significant numbness, only slight loss of reflexes of the Achilles on left side compared
to the right. Also there was no muscle atrophy, negative straight leg raise testing and equal
mobility of the lower extremity with almost equal strength on both sides. Dr. Stanton found that
the accepted conditions resolved by May 1989 and that maximum medical improvement was
reached at that time. He opined that there was no impairment based on appellant’s work-related
condition with regards to the left lower extremity and concluded that the progressive arthritic
changes appellant has with regards to lumbar spine were nonwork-related foraminal narrowing
due to facet hypertrophy, which has caused complaints of pain down the left lower extremity.
The progression of this lumbar arthritis has made it impossible for appellant to work, but this
was not related to the work incident.
On May 29, 2012 a second OWCP medical adviser reviewed Dr. Stanton’s April 12,
2012 report and concluded that Dr. Stanton appropriately applied the sixth edition of the A.M.A.,
Guides and concurred that there was no basis for an impairment rating to a scheduled member as
a result of the June 2, 1986 work injury.
Dr. Stanton provided examination findings and provided a well-rationalized opinion that
there was no continuing symptoms of appellant’s accepted conditions on which permanent
impairment could be based. Although he noted the progressive arthritic changes appellant has
with regards to lumbar spine has caused complaints of pain down the left lower extremity, he
specifically stated that this was due to foraminal narrowing due to facet hypertrophy, which was
nonwork related.
The Board finds that Dr. Stanton had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Stanton is a specialist in the appropriate field. His
opinion is sufficiently well rationalized and based upon a proper factual and medical background

11

R.C., 58 ECAB 238 (2006); Bernadine P. Taylor, 54 ECAB 342 (2003).

12

Manuel Gill, 52 ECAB 282 (2001).

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such that it is entitled to special weight and establishes no basis for permanent impairment of the
left leg causally related to appellant’s accepted conditions.
After Dr. Stanton’s evaluation, appellant submitted a November 10, 2012 report from
Dr. Fritzhand, who continued to opine that appellant sustained a permanent impairment to his left
lower extremity due to the work injury. He further states that Dr. Stanton’s findings are
consistent with his physical examination findings of May 5, 2011 and those findings form the
basis of the left lower extremity impairment. The Board notes that while Dr. Stanton found that
the progressive arthritic changes in appellant’s lumbar spine resulted in left leg pain, he
specifically opined that this was not a consequence of the work accident. Dr. Stanton provided a
well-rationalized opinion that the accepted aggravation of lumbar degenerative disc disease,
lumbar sprain and left hip contusion had resolved without any permanent impairment.
Therefore, it is not established that the impairment to the left lower extremity which
Dr. Fritzhand provided is causally related to the accepted work injury. Additionally, he was on
one side of a conflict resolved by Dr. Stanton and his November 10, 2012 report does not
otherwise provide new findings or medical rationale sufficient to establish that any left lower
extremity impairment was causally related to the June 2, 1986 work injury.13 Therefore,
Dr. Fritzhand’s report is insufficient to overcome Dr. Stanton’s opinion that the accepted
conditions had resolved without permanent impairment to a scheduled member causally related
to the June 2, 1986 work injury or to create a new medical conflict.14
The Board finds that OWCP properly denied appellant’s claim for a schedule award. On
appeal, counsel argues the decision is contrary to fact and law. However, the medical evidence
does not establish that appellant has permanent impairment to a scheduled member of the body
causally related to his 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.

13

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990).
14

See S.J., Docket No. 09-1794 (issued September 20, 2010) (submitting a report from a physician who was on
one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict). See also Michael Hughes, 52
ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, MORRISANIA
STATION, Bronx, NY, Employer
__________________________________________

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

Docket No. 18-1428
Issued: March 5, 2019

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 July 18, 2018 appellant filed a timely appeal from an April 24, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective July 23, 2017, due to his failure to attend a scheduled
medical examination.

1
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated December 6, 2018, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 18-1428 (issued December 6, 2018).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 13, 2004 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 27, 2004 he injured his left knee while in the
performance of duty delivering mail. He stopped work on the date of injury. On October 6, 2004
OWCP accepted the claim for left patella dislocation. It subsequently expanded acceptance of the
claim to include tear of medial meniscus of left knee. Appellant received wage-loss compensation
and medical benefits on the periodic rolls as of December 26, 2004.
By decision dated June 14, 2006, OWCP terminated appellant’s compensation benefits,
pursuant to section 8106(c)(2) of FECA,3 because he refused an offer of suitable employment. In
a March 15, 2007 decision, an OWCP hearing representative reversed the June 14, 2006
termination decision and remanded the case to OWCP to reinstate wage-loss compensation
benefits retroactive to the date of termination. By decision dated October 1, 2008, OWCP again
terminated appellant’s compensation benefits. In a December 23, 2008 decision, an OWCP
hearing representative again reversed the October 1, 2008 decision and remanded the case to
OWCP to again reinstate his compensation benefits retroactive to the date of termination. OWCP
returned appellant to the periodic compensation rolls.
By letter dated February 27, 2017, OWCP informed appellant that a second-opinion
evaluation would be scheduled and that he would receive an appointment letter from its scheduler.
The letter informed appellant that, if he failed to keep the appointment without an acceptable
reason, his benefits would be suspended in accordance with section 8123(d) of FECA (5 U.S.C.
§ 8123(d)). The appointment was scheduled on April 3, 2017 with Dr. Arnold Goldman, a Boardcertified orthopedic surgeon. Appellant telephoned OWCP on April 5, 2017 indicating that he was
out of the country and asked that the appointment be rescheduled. By notice dated May 19, 2017,
he was informed that the examination was rescheduled with Dr. Goldman at 1:00 p.m. on
June 5, 2017. OWCP sent the notice to appellant’s last known address. Appellant did not attend
the scheduled examination.
On June 26, 2017 OWCP proposed to suspend appellant’s compensation benefits pursuant
to section 8123(d) of FECA as he failed to attend the examination scheduled for June 5, 2017 with
Dr. Goldman. It advised him that he should provide a written explanation of his reasons, with
substantive corroborating evidence, within 14 days for failing to attend the scheduled examination.
OWCP mailed the notice to appellant’s last known address. No response was received.
By decision dated July 20, 2017, OWCP finalized its proposed suspension, effective
July 23, 2017. It noted that, on May 19, 2017, it directed appellant to report for examination by
Dr. Goldman, scheduled for June 5, 2017, but that he did not attend the examination or show good
cause for his failure to attend the examination. OWCP noted that appellant did not respond to its
June 26, 2017 letter.
On August 17, 2017 appellant requested a hearing with OWCP’s Branch of Hearings and
Review. He maintained that he did not receive the May 19 and June 26, 2017 correspondence.
Appellant attached a booking confirmation of flights to the Philippines on March 20, 2017,
3

Id. at § 8106(c)(2).

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returning on April 11, 2017 to substantiate that he had advised his claims examiner that he was out
of the country during that period of time. He contended that the claims examiner did not contact
him when he returned, did not ask him for anything, and did not reschedule his appointment.4
During the hearing, held on February 13, 2018, appellant testified that he did not receive
the May 19, 2017 appointment letter, the June 26, 2017 notice of proposed suspension, or the
July 20, 2017 decision.
By decision dated April 24, 2018, OWCP’s hearing representative affirmed the July 20,
2017 decision. He found that appellant’s testimony that he did not receive the appointment letter
was unsubstantiated, noting that in the absence of contrary evidence, a notice mailed to an
individual in the ordinary course of business was presumed to be received by the individual. The
hearing representative concluded that OWCP, therefore, properly suspended appellant’s
compensation benefits.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.5 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.6
OWCP’s regulations at section 10.320 provide that a claimant must submit to an examination by
a qualified physician as often and at such times and places as OWCP considers reasonably
necessary.7 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations provide that, if
an employee refuses to submit to or obstructs a directed medical examination, his or her right to
compensation is suspended until the refusal or obstruction ceases.8 OWCP’s procedures provide
that, before OWCP may invoke these provisions, the employee is to be provided a period of 14
days within which to present in writing his or her reasons for the refusal or obstruction.9 If good
cause for the refusal or obstruction is not established, entitlement to compensation is suspended in
accordance with section 8123(d) of FECA.10

4

On October 3, 2017 appellant telephoned OWCP and requested that it reschedule his second-opinion evaluation.
On October 18, 2017 OWCP notified him that his appointment with Dr. Goldman was rescheduled for 12:30 p.m. on
November 6, 2017. Appellant attended that examination, and his compensation was reinstated effective
October 4, 2017. He was returned to the periodic compensation rolls.
5

5 U.S.C. § 8123.

6

See P.B., Docket No. 17-1426 (issued June 19, 2018).

7

20 C.F.R. § 10.320.

8

5 U.S.C. § 8123(d); Id. at § 10.323.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
10

See D.K., Docket No. 18-0217 (issued June 27, 2018).

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ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation pursuant to 5
U.S.C. § 8123(d) of FECA, effective July 23, 2017, for failure to attend a medical examination.
OWCP scheduled a second-opinion evaluation on June 5, 2017 with Dr. Goldman.
Appellant did not appear for the scheduled examination. By decision dated July 20, 2017, OWCP
suspended his compensation benefits, effective July 23, 2017, based on his failure to appear. On
April 24, 2018 OWCP’s hearing representative affirmed the July 20, 2017 decision.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to undergo
a medical examination, is that of reasonableness.11 The Board has interpreted the plain meaning
of section 8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues.12
On February 26, 2017 OWCP advised appellant that it would refer him for a secondopinion evaluation and that, if he did not keep the appointment, his benefits would be suspended.
Appellant’s initial appointment of April 3, 2017 with Dr. Goldman was rescheduled. In
correspondence dated May 19, 2017, the scheduler informed appellant of the new examination
appointment at 1:00 p.m. on June 5, 2017. Appellant did not attend the scheduled June 5, 2017
examination.
In a notice dated June 26, 2017, OWCP informed appellant that he had 14 days to provide
reasons for failing to appear. Appellant did not respond to the June 26, 2017 notice. By decision
dated July 20, 2017, OWCP suspended his compensation, effective July 23, 2017, for failure to
attend the scheduled examination.
Appellant testified during the February 13, 2018 hearing that he did not receive the May 19,
2017 appointment letter which informed him of the June 5, 2017 second-opinion evaluation, the
June 26, 2017 notice of proposed suspension, or the July 20, 2017 decision.
Under the mailbox rule, it is presumed, absent evidence to the contrary, that a notice mailed
to an individual in the ordinary course of business was received by that individual.13 The case
record supports that each piece of correspondence listed above was addressed to appellant’s last
known address of record and there is no evidence of record that the mailing was undeliverable.
Thus, the Board finds that there is no evidence to rebut the presumption of receipt by him under
the mailbox rule.14

11

Id.

12

Id.

13

See P.P., Docket No. 18-0706 (issued October 26, 2018).

14

See C.S., Docket No. 11-1366 (issued December 12, 2011).

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Because appellant failed to attend the June 5, 2017 medical examination and did not
provide good cause for the failure to appear within 14 days of OWCP’s June 26, 2017 notice of
proposed suspension, the Board finds that OWCP properly suspended his wage-loss compensation,
effective July 23, 2017, in accordance with section 8123(d) of FECA.15
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective July 23, 2017, due to his failure to attend a scheduled
medical examination.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 5, 2019
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

15

See P.K., Docket No. 18-0179 (issued May 22, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Urbana, IL, Employer
__________________________________________

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

Docket No. 17-1881
Issued: May 1, 2018

Case Submitted on the Record

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

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from an August 16, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective December 1, 2016, as he had no further disability or
residuals causally related to his February 25, 1993 employment injury; and (2) whether he has
established continuing employment-related disability after December 1, 2016.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated February 2, 2007, the
Board reversed a June 22, 2006 OWCP decision terminating appellant’s entitlement to wage-loss
and schedule award compensation as he refused an offer of suitable work under 5 U.S.C.
§ 8106(c).2 The Board found that the medical evidence then of record was insufficient to support
that the offered position was medically suitable. The facts and circumstances as set forth in the
Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal are
set forth below.
On March 2, 1993 appellant, then a 32-year-old janitor, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 1993 he sustained back pain when he fell carrying a
bag of salt while in the performance of duty. OWCP accepted the claim for low back strain, an
aggravation of preexisting spinal stenosis at L3-4 and L4-5, and an aggravation of degenerative
disc disease at L5-S1. Appellant performed limited-duty employment until July 1993, when he
resumed his usual work duties. In June 1995, he underwent a lumbar laminectomy at L3-4, L4-5,
and L5-S1 and a discectomy at L5-S1. After sustaining intermittent periods of disability, appellant
stopped work in 1997 and did not return. OWCP paid him compensation for wage-loss disability.3
A computerized tomography (CT) scan of the lumbar spine dated June 22, 2004 revealed
evidence of a prior laminectomy at L4-5, but no acute changes. A magnetic resonance imaging
(MRI) scan study of the lumbar spine obtained April 6, 2006 showed bilateral neural foraminal
stenosis at L4-5 and L5-S1 and disc bulging at L3 through S1.
OWCP did not receive updated medical evidence regarding appellant’s condition from
2007 until 2013. By letter dated March 21, 2013, it requested that he submit a medical report from
his attending physician describing his current condition and its relationship to the accepted work
injury.
In a report dated May 30, 2013, Dr. James K. McKechnie, a Board-certified orthopedic
surgeon, noted that appellant “apparently was injured in 1993” and reviewed his history of a
laminectomy at multiple levels in 1996. He discussed his complaints of numbness and tingling in
his legs, with increasing weakness such that he used a cane. Dr. McKechnie diagnosed lumbar
degenerative disc disease, recurrent sciatica. To rule out spinal stenosis or a disc herniation he
referred appellant for an MRI scan study.

2

Docket No. 06-1607 (issued February 2, 2007). The Board also issued an order dated November 1, 2005
dismissing appellant’s appeal from a June 10, 2005 OWCP decision denying modification of its termination of his
compensation for refusing suitable work under section 8106(c)(2). Order Dismissing Appeal, Docket No. 05-1414
(issued November 1, 2005). It noted that he requested dismissal of the appeal so that he could request reconsideration
before OWCP.
3

By decision dated June 8, 2004, OWCP terminated appellant’s compensation for refusing suitable work under
section 8106(c). In decisions dated November 5, 2004 and June 22, 2006, it denied modification of its termination of
his compensation for refusing suitable work. As noted, the Board, in a decision dated February 2, 2007, reversed the
suitable work termination.

2

On March 2, 2015 OWCP notified appellant that a conflict in medical opinion existed and
referred him to Dr. Timothy A. VanFleet, a Board-certified orthopedic surgeon, for an impartial
medical examination.4 In a report dated April 3, 2015, Dr. VanFleet discussed the history of the
February 25, 1993 work injury. On examination, he found morbid obesity, normal hip and knee
range of motion, pitting edema below the knees, and a loss of sensation to light touch below the
knees. Dr. VanFleet related that x-rays showed some degenerative disc disease without
spondylolisthesis or a loss of disc space height. He opined that appellant’s current condition was
“related to his underlying obesity, his underlying diabetes, as well as an underlying degenerative
condition within the lumbar spine.” Dr. VanFleet advised that he had sustained a temporary
aggravation of an underlying condition due to his work injury, but found that his current condition
was unrelated to the 1993 work injury. He determined that appellant could not perform his usual
employment as a result of his morbid obesity, insulin-dependent diabetes, and possible mental
health status unrelated to his accepted employment injury.
Dr. VanFleet, in a supplemental report dated April 21, 2015, diagnosed obesity, diabetic
disease, and lumbar degenerative disc disease, all unrelated to appellant’s work injury. He advised
that appellant sustained a temporary aggravation of his lumbar degenerative disc disease at the
time of his work injury but that there was “no relationship to his current diagnosis at this time and
the accident in 1993.” Dr. VanFleet related that the temporary aggravation would have resolved
within four months of his surgery for lumbar spinal stenosis. He found that appellant was unable
to work due to the nonemployment-related conditions of obesity, diabetes, and lumbar
degenerative disc disease.
OWCP, on December 3, 2015, referred appellant to Dr. Allan Brecher, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated April 1, 2016, Dr. Brecher obtained a history of the 1993 work injury and
reviewed the medical evidence of record. He noted that in February 1993 appellant was in a motor
vehicle accident “when his car went into a snow drift.” Dr. Brecher noted that he was using a
walker and was currently undergoing tests for dizziness. On examination, he found full strength
of the lower extremities with intact sensation, and discomfort of the back with straight leg raise
bilaterally. Dr. Brecher related that appellant had chronic pain with insignificant findings on MRI
scan studies and “nothing on neurological examination.” He found no objective evidence of spinal
stenosis, noting that the examination findings were normal. Dr. Brecher opined that appellant
sustained a temporary aggravation of spondylosis due to his work injury that had resolved by
July 1993. He advised that he required no further medical treatment and that, based on his review
of the record, the diagnostic studies, and examination findings, he could return to his usual
employment without restrictions. Dr. Brecher noted that other medical complaints, such as
dizziness, might limit appellant’s work ability.
By letter dated August 29, 2016, OWCP notified appellant of its proposed termination of
his compensation and authorization for medical benefits. It found that the opinion of Dr. VanFleet,
as a second opinion examining physician, represented the weight of the evidence and established
that he had no further employment-related condition or disability. OWCP indicated that it had
4
The Board notes that at the time appellant was referred to Dr. VanFleet for an impartial medical examination.
However, OWCP later noted that he was properly considered a second opinion physician.

3

erroneously determined that a conflict in medical opinion existed and referred appellant to
Dr. Brecher. It advised that it would not utilize the opinion of Dr. Brecher as there was no medical
conflict.
Appellant, in a September 17, 2016 response, summarized the reports from physicians
finding that he was totally disabled. He questioned why Dr. VanFleet and Dr. Brecher did not
mention that he used a walker. Appellant maintained that Dr. VanFleet and Dr. Brecher found that
his disability was unrelated to his employment without reviewing x-rays and questioned why
OWCP was not using Dr. Brecher’s opinion. He submitted medical evidence from 2004 and 2005
and diagnostic studies of the brain, elbow, and right upper quadrant of the abdomen.
A February 16, 2016 magnetic resonance imaging (MRI) scan of the cervical spine,
received by OWCP on October 11, 2016, showed moderate-to-severe left foraminal stenosis and
mild right foraminal stenosis at C2-3 and mild right foraminal stenosis at C4-5.
A nurse practitioner completed a work restriction evaluation (Form OWCP-5c) on
November 2, 2016. She diagnosed spinal stenosis at L3-4 and an aggravation of degenerative disc
disease at L5-S1 and indicated that appellant was unable to work.
By decision dated December 1, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 1, 2016. It found that Dr. Brecher was
not a referee physician, but instead a second opinion physician. OWCP reviewed his report and
determined that it constituted the weight of the evidence and established that appellant had no
further residuals of his employment injury.
In a work capacity evaluation (Form OWCP-5c) dated January 10, 2017, Dr. Jesse P.
Butler, a Board-certified orthopedic surgeon, diagnosed L3-4 spinal stenosis and degenerative disc
disease. He found that appellant could not work and provided restrictions. Dr. Butler noted that
appellant’s injury was employment related.
Appellant, on January 23, 2017, requested reconsideration. He submitted physical therapy
reports dated October 2016. In a statement dated February 14, 2017, appellant reviewed
Dr. Brecher’s report. He contended that Dr. Brecher inaccurately found he was in a motor vehicle
accident on February 26, 1993 when he was instead stuck in a snow drift. Appellant advised that
he did not deny back pain or allege that he was dizzy due to his work injury.
By decision dated April 7, 2017, OWCP denied modification of its December 1, 2016
decision. It found that appellant had not submitted sufficient evidence to overcome the weight
afforded Dr. Brecher’s report, which was based on a recent physical examination and review of
the case record.
In a report dated May 25, 2017, Dr. Butler obtained a history of appellant experiencing
chronic pain that began at work due to a fall. He diagnosed chronic bilateral low back pain without
sciatica and status post laminectomy. Dr. Butler discussed appellant’s complaints of pain in his
whole body, diabetic neuropathy, and pain radiating into his legs. He found that he had chronic
low back pain status post laminectomy for congenital stenosis. Dr. Butler related, “[Appellant]
has asked for me to make commentary regarding the work relatedness of his current condition. I

4

have no opinion on this as I would not be able to make any determination based on a 16-year-old
workers’ compensation case in a 15-minute evaluation.”
On June 1, 2017 appellant requested reconsideration. He submitted numerous diagnostic
studies in support of his reconsideration request, including x-rays of the shoulder and elbow and a
December 23, 2015 emergency room report regarding his treatment on that date for pain and
swelling of the right elbow.
By decision dated August 16, 2017, OWCP denied modification of its April 7, 2017
decision. It found that appellant had not submitted medical evidence sufficient to show that he
had continuing disability due to his February 25, 1993 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an employee
has disability causally related to his federal employment, OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained low back strain, an aggravation of preexisting
spinal stenosis at L3-4 and L4-5, and an aggravation of degenerative disc disease at L5-S1 due to
a February 24, 1993 employment injury. Appellant underwent a lumbar laminectomy at L3-4, L45, and a lumbar laminectomy and discectomy at L5-S1. OWCP paid him wage-loss compensation
for total disability from 1997 onward. By decision dated December 1, 2016, it terminated
appellant’s wage-loss compensation and medical benefits, effective that date based on the report
of Dr. Brecher, a second opinion physician.

5

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

6

See I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

See Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

5

The Board finds that the weight of the medical evidence establishes that OWCP properly
terminated appellant’s wage-loss compensation and medical benefits as the opinion of Dr. Brecher
constitutes the weight of the evidence.
On April 1, 2016 Dr. Becher discussed appellant’s history of a work injury in 1993 and
reviewed the medical evidence of record. He provided examination findings of full lower
extremity strength and no loss of sensation, and found that appellant had chronic pain without
significant findings on diagnostic studies or abnormalities on neurological examination.
Dr. Brecher found no evidence of spinal stenosis. He advised that appellant had experienced a
temporary aggravation of spondylosis that had resolved by July 1993. Dr. Brecher determined that
appellant had no need for further medical treatment and that he had no limitations from resuming
his usual employment due to his work injury. He provided rationale for his opinion by explaining
that there were no objective findings on examination showing any further condition and noting
that his findings were supported by his review of the record and the diagnostic studies. Dr. Brecher
provided a thorough review of the factual and medical background and accurately summarized the
relevant medical evidence. Moreover, he provided detailed findings on examination and reached
conclusions regarding appellant’s condition which comported with his findings.10 Consequently,
Dr. Brecher’s opinion is entitled to the weight of the evidence and establishes that appellant had
no further disability or need for medical treatment due to his employment injury.11
Additionally, Dr. Brecher’s opinion is bolstered by the report of Dr. VanFleet, also an
OWCP referral physician. While OWCP initially indicated that Dr. VanFleet was a referee
physician, the record did not contain a conflict in opinion at the time of the referral and thus his
opinion is that of a second opinion physician.12 On April 3, 2015 Dr. VanFleet obtained a history
of the February 25, 1993 employment injury and advised that x-rays showed degenerative disc
disease with no loss of disc space or spondylolisthesis. He provided examination findings of
morbid obesity, normal hip and knee range of motion, pitting edema below the knees, and a loss
of sensation to light touch below the knees. Dr. VanFleet found that appellant had sustained a
temporary aggravation of an underlying condition due to his work injury that had resolved. He
opined that appellant was disabled from employment due to conditions unrelated to the accepted
employment injury. In an April 21, 2015 supplemental report, Dr. VanFleet diagnosed obesity,
diabetic disease, and lumbar degenerative disc disease, all unrelated to appellant’s work injury.
He advised that appellant sustained a temporary aggravation of his lumbar degenerative disc
disease at the time of his work injury, but that his current condition was unrelated to employment.
Dr. VanFleet’s opinion is reasoned and based on a proper factual history and supports the finding
that appellant had no further employment-related disability or residuals of his work injury.13
The remaining evidence submitted prior to OWCP’s termination of compensation is
insufficient to show that appellant had further disability or need for medical treatment due to his
employment injury. On May 30, 2013 Dr. McKechnie noted that he was apparently injured in
10

See Pamela K. Guesford, 53 ECAB 726 (2002).

11

See S.W., Docket No. 17-0215 (issued September 19, 2017).

12

See Y.S., Docket No. 15-1949 (issued April 11, 2016).

13

See T.M., Docket No. 16-1033 (issued June 22, 2017).

6

1993. He diagnosed lumbar degenerative disc disease, recurrent sciatica, and to rule out spinal
stenosis or a disc herniation. Dr. McKechnie did not address the cause of the diagnosed conditions.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship.14
Additionally, Dr. McKechnie did not address the relevant issue of whether appellant was disabled
from work due to his accepted injury.15
Appellant also submitted the results of a February 16, 2016 MRI scan study. However, a
diagnostic report which offers no opinion regarding causal relationship is of limited probative
value.16 On November 2, 2016 a nurse practitioner completed a form report regarding disability.
However, a nurse or nurse practitioner is not considered a “physician” under FECA and thus cannot
render a medical opinion.17
The Board finds that the weight of the evidence establishes that appellant had no
employment-related disability or need for medical treatment effective December 1, 2016, the date
OWCP terminated his wage-loss compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, he or she has the
burden of proof to establish that he or she has continuing disability after that date related to the
accepted injury.18 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal
relationship.19 A claimant must establish by the weight of the reliable, probative, and substantial
evidence that he or she had an employment-related disability which continued after termination of
compensation benefits.20

14

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

15

Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
16

See E.B., Docket No. 17-0305 (issued July 10, 2017).

17

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See also L.C., Docket No. 16-1717 (issued March 2, 2017) (a nurse is not considered a physician under FECA); A.F.,
Docket No. 17-1514 (issued April 10, 2018) (a report from a nurse practitioner is not considered probative medical
evidence).
18

See T.M., Docket No. 17-0915 (issued August 29, 2017); Manual Gill, 52 ECAB 282 (2001).

19

Id.

20

See J.A., Docket No. 15-0908 (issued August 6, 2015).

7

ANALYSIS -- ISSUE 2
As noted, given the Board’s finding that OWCP properly relied upon the opinion of
Dr. Brecher in terminating compensation, the burden of proof shifted to appellant to establish that
he remained entitled to compensation after that date.21
Appellant submitted an emergency room report dated December 22, 2015 describing his
treatment for right elbow pain and swelling and the results of diagnostic studies of the shoulder
and elbow. As this evidence is not relevant to the pertinent issue of whether he had any continuing
employment-related disability or need for medical treatment after December 1, 2016 due to his
accepted back injury, it is of little probative value.
In a work capacity evaluation dated January 10, 2017, Dr. Butler diagnosed stenosis at
L3-4 and degenerative disc disease. He indicated that appellant was unable to work and noted it
was an employment-related injury. Dr. Butler did not provide any rationale explaining the causal
relationship between any disability for work and the February 25, 1993 employment injury; thus,
his opinion is of diminished probative value.22
Dr. Butler, on May 25, 2017, noted that appellant experienced chronic pain beginning after
a fall at work. He discussed his complaints of whole body pain and diabetic neuropathy. Dr. Butler
diagnosed chronic bilateral low back pain without sciatica and status post laminectomy. He
declined to address whether appellant’s current condition was work related and, consequently, his
opinion is of little probative value.
Appellant contends that he injured his arm and shoulders due to his back injury.23
However, OWCP has not issued a final decision on this issue. The Board’s jurisdiction is limited
to reviewing final adverse decisions of OWCP issued under FECA.24 Thus, this issue is not before
the Board at this time.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective December 1, 2016 as he had no further disability or residuals causally

21

See Manual Gill, supra note 18.

22

See O.G., Docket No. 17-1501 (issued January 5, 2018).

23

Where appellant claims that a condition not accepted or approved by OWCP was due to his employment injury,
he bears the burden of proof to establish that the condition is causally related to the employment injury through the
submission of rationalized medical evidence. See Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
24

20 C.F.R. §§ 501.2(c) and 501.3(a).

8

related to his February 25, 1993 employment injury. The Board further finds that he has not
established continuing employment-related disability after December 1, 2016.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0621
Issued: August 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2014 appellant, through counsel, filed a timely appeal of a
December 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
concerning the termination of her monetary compensation based on her refusal of suitable work.
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 terminated appellant’s compensation effective
March 19, 2013 on the grounds that she refused an offer of suitable work, pursuant to 5 U.S.C.
§ 8106(c).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 2012 appellant, then a 56-year-old civilian pay technician, filed an
occupational disease claim alleging that on June 14, 2007 she first realized that her bilateral
carpal tunnel syndrome was due to her employment duties. OWCP accepted the claim for
bilateral carpal tunnel syndrome and authorized right carpal tunnel surgery which occurred on
October 8, 2012. Appellant stopped work on December 20, 2011.
OWCP referred appellant to Dr. Leon Sultan, a Board-certified orthopedic surgeon.
In an April 21, 2012 report, Dr. Sultan, reviewed the statement of accepted facts and
medical evidence and conducted a physical examination. He diagnosed bilateral carpal tunnel
syndrome which he attributed to appellant’s duties as a civilian pay technician. Dr. Sultan
concluded that she was totally disabled from her date-of-injury position, but was capable of
working full time in a limited-duty job with no repetitive movement of her wrists or hands. He
stated that the duties appellant was able to perform included working as a receptionist, light
clerical work, and answering the telephone. In concluding, Dr. Sultan related that following
bilateral carpal tunnel surgery and postoperative exercises she could return to work for eight
hours a day about three months after surgery.
On December 21, 2012 OWCP referred appellant back to Dr. Sultan for a determination
on her work capability.
In a January 10, 2013 report, Dr. Sultan provided physical and range of motion findings
for both hands and wrists. Based on this examination, he found appellant has restricted right
wrist dorsiflexion and palmar flexion and the right carpal tunnel syndrome appeared in
remission. However, Dr. Sultan noted that she had positive residual findings due to
postoperative changes. He concluded that appellant’s left carpal tunnel syndrome appeared to be
in remission as testing did not confirm any residual carpal tunnel. Dr. Sultan stated that left hand
sensory testing revealed unremarkable provocative testing and a well preserved hand. Based on
the positive right hand and wrist clinical findings, he indicated that appellant was capable of
working an eight-hour day in sedentary or strict light work. Restrictions included avoiding
repetitive activities such as computer work and typing and no lifting, pushing, or pulling more
than 20 pounds at a time with both hands. Work activities appellant was capable of performing
included: light file work; opening mail; and answering the telephone.
On January 24, 2013 the employing establishment offered appellant the light-duty
position of civilian pay technician. The job provided receptionist and telephone duties including:
greeting visitors; scanning paperwork; proof reading; and working with payroll, accounting. The
employing establishment noted the physical demands included up to one-hour of computer work
(intermittent only), no over head lifting and a maximum 20 pounds of lifting, pushing and
pulling. It stated that “[I]f necessary, assistive devices such as telephone headsets, worksite
adjustments, ergonomic assessments, or tools may be considered.” The job offer also provided
that the employee will be free to change positions as needed.
By letter dated January 28, 2013, OWCP advised appellant of its determination that the
civilian pay technician position offered by the employing establishment was suitable. It

2

indicated that the position was based upon the opinion of Dr. Sultan who opined that appellant
was capable of working eight hours a day with restrictions. The employing establishment
confirmed that the position remained available to appellant. OWCP instructed appellant that she
must, within 30 days, either accept the position or provide a written explanation of the reason she
did not accept the position or she could lose her right to compensation under 5 U.S.C. § 8106(c)
of FECA.
In a January 28, 2013 letter, appellant noted that she had been approved to receive social
security disability benefits and submitted a copy of the award.
On February 1, 2013 OWCP received a January 23, 2013 disabilty note from Dr. Gus
Katsigiorgis, a treating osteopathic and Board-certified orthopedic surgeon, indicating that she
had received medical treatment that day and was totally disabled from working.
In a February 4, 2013 letter, appellant stated that she refused the offered position as the
right carpal tunnel surgery was only partially successful and she continues to have diffulty
working with her right hand. She related that she had been approvded for social security
disability benefits and submitted an application for disability retirement with the Office of
Personnel Management. Appellant stated that she is currently attending physical therapy three
times a week and she continues to experience a lot of pain in her right arm and hand.
On February 15, 2013 OWCP received a February 1, 2013 report from Dr. Katsigiorgis
prescibing physical therapy and restricting activities. A physical examination revealed restricted
range of motion and tenderness of the right hand as well as increasing numbness.
In a March 1, 2013 letter, OWCP found the reasons given by appellant for refusing the
offered position were not valid. It gave her 15 additional days to accept the position or to make
arrangements to report to this position. OWCP noted that if appellant did not accept the position
within 15 days of the date of the letter, her right to compensation for wage loss or a schedule
award would be terminated pursuant to section 8106 of FECA. It would not consider any further
reasons for refusal. In a March 6, 2013 disabilty note, Dr. Katsigiorgis, indicated that appellant
had received medical treatment that day and was totally disabled from working.
By decision dated March 20, 2013, OWCP terminated appellant’s wage-loss
compensation benefits effective March 19, 2013 on the grounds that she refused an offer of
suitable work pursuant to 5 U.S.C. § 8106(c).
Subsequent to the decision OWCP received a March 14, 2013 report from
Dr. Katsigiorgis prescibing physical therapy and restricted activities. A physical examination
revealed restricted range of motion and tenderness of the right hand as well as increasing
numbness.
In an April 17, 2013 disabilty note, Dr. Katsigiorgis indicated that appellant had received
medical treatment that day and was totally disabled from working.
In a July 18, 2013 report, Dr. Katsigiorgis prescribed continued physical therapy and
resticted activity. A physical examination of both hands revealed tenderness and intact
neurovascularly.
3

In an August 13, 2013 report, Dr. Katsigiorgis noted the medical and work histories. A
physical examination of the right hand revealed tenderness and reduced range of motion in
dorsiflexion and palmar flexion. Dr. Katsigiorgis reported left hand thenar atrophy, a positive
carpal tunnel compression test for the left hand as well as positive Tinel’s and Phalen’s signs.
Diagnoses included continued symptomatology in the right hand following carpal tunnel release
and left carpal tunnel syndrome. Dr. Katsigiorgis recommened continued physical therapy and
indicated that appellant was disabled from working.
In a letter dated September 24, 2013, counsel requested reconsideration and submitted
physical therapy notes for services rendered on behalf of Dr. Katsigiorgis as well as progress
notes from himself in support of appellant’s request. He also argued that there was an
unresolved conflict in the medical opinion evidence.
By decision dated Decmeber 18, 2013, OWCP denied appellant’s request for
modification of the March 20, 2013 decision terminating her wage-loss compensation pursuant
to section 8106(c).
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for her is not entitled to compensation.2 Once OWCP accepts a claim, it has the burden
of justifying termination or modification of compensation benefits under section 8106(c) for
refusing to accept or neglecting to perform suitable work.3 The Board has recognized that
section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.4 To justify termination, OWCP
must show that the work offered was suitable and that appellant was informed of the
consequences of her refusal to accept such employment.5 According to OWCP procedure, a job
offer must be in writing and contain a description of the duties to be performed and the specific
physical requirements of the position.6 Section 10.516 of the Code of Federal Regulations7
provides that an employee who refuses or neglects to work after suitable work has been offered
or secured for the employee has the burden of showing that such refusal or failure to work was
reasonable or justified and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation.8
2

Id. at § 8106(c)(2).

3

Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

H. Adrian Osborne, 48 ECAB 556 (1997).

5

T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(a) (July 1997).
7

20 C.F.R. § 10.516.

8

See Camillo R. DeArcangelis, 42 ECAB 941 (1991).

4

ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized
right carpal tunnel surgery which occurred on October 8, 2012. In reports dated April 21, 2012
and January 10, 2013, Dr. Sultan, a Board-certified orthopedic surgeon and OWCP referral
physician, concluded that appellant’s positive clinical findings with regard to her right hand and
wrist will prevent her from full unrestricted work activity as a civilian pay technician, however,
she was capable of working eight hours a day in a limited-duty position such as answering the
telephone, light clerical work and working as a receptionist. In his January 10, 2013 report, he
indicated that she may engage in strict light or sedentary work for eight hours a day but should
avoid repeated activities such as typing or doing computer work, light clerical work activities
however would be permitted. Further, Dr. Sultan limited appellant to no more than 20 pounds of
lifting, pushing, and pulling.
On January 24, 2013 the employing establishment offered appellant a full-time position
as a civilian pay technician, requiring up to one hour of intermittent computer work and scanning
of paperwork. Appellant declined the position and noted that she had been approved for social
security disability. Dr. Katsigiorgis indicated in various reports and disability notes that she was
disabled from working and required continued physical therapy.
OWCP advised appellant by a January 28, 2013 letter that the offered position was
suitable work within her medical limitations. On March 1, 2013 it afforded her 15 days to accept
the position or her wage-loss compensation benefits would be terminated. OWCP terminated
appellant’s wage-loss compensation benefits and schedule award eligibility effective
March 19, 2013 under section 8106(c) of FECA on the grounds that she had refused an offer of
suitable work. The Board finds that the offered civilian pay technician position was suitable
work as it was within medical restrictions provided by Dr. Sultan.
The civilian pay technician position offered to appellant on January 24, 2013 required
light or sedentary employment activity. Dr. Sultan is clear in his work restrictions that appellant
avoid repetitive activities such as typing or computer work. The job offer provides for specific
amounts of time for each series of light-duty activities. Included in the duties is intermittent use
of a computer up to one hour a day. This singular activity of up to one hour a day does not
constitute a repetitive activity through the course of an eight-hour workday.
The Board therefore finds that the offered position was medically suitable and as such has
met its burden of proof in terminating appellant’s wage-loss compensation.
On appeal, appellant contends that the offered position was outside her work restrictions
and that OWCP failed to consider medical evidence submitted by her treating physician.
CONCLUSION
The Board finds that OWCP met its burden to terminate appellant’s compensation
benefits pursuant to 5 U.S.C. § 8106.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 18, 2013 is affirmed.
Issued: August 20, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, St. Paul, MN,
Employer
__________________________________________

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)
)
)

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

Docket No. 10-268
Issued: August 4, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal of a November 17, 2008 Office of
Workers’ Compensation Programs’ decision denying merit review. Because more than one year
has elapsed from the date of issuance of the Office’s last merit decision on July 30, 2008 and the
filing of the appeal on November 9, 2009, the Board lacks jurisdiction over the merits of the
claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
nonmerits of this claim.2

1

For final adverse decisions of the Office issued on and after November 19, 2008 a claimant has 180 days to
appeal to this Board. See 20 C.F.R. § 501.3(e).
2

For final adverse decisions of the Office issued prior to November 19, 2008, a claimant had up to one year to
appeal to this Board. See 20 C.F.R. § 501.3(d)(2).

ISSUE
The issue is whether the Office properly declined to reopen appellant’s claim for further
consideration of the merits of her claim in accordance with section 8128(a) of the Federal
Employees’ Compensation Act.
FACTUAL HISTORY
On July 18, 2008 appellant, then a 53-year-old mail processing clerk, filed a traumatic
injury claim alleging that she fell on June 16, 2008 at 11:45 am on the employing establishment
walkway injuring her right wrist and hand. The employing establishment stated that she gave
conflicting accounts of whether she tripped leaving or entering the building.
The Office requested additional factual and medical evidence from appellant in a letter
dated June 26, 2008. It allowed 30 days for a response. Appellant responded on July 10, 2008
and stated that she fell after returning from the parking lot with her daughter. The medical
evidence establishes that she sustained a right wrist fracture in the fall.
In a letter dated July 27, 2008, the employing establishment challenged appellant’s claim
on the grounds that she was not in the performance of her duties at the time the injury occurred.
It stated that she was not on the clock, that she was walking in the parking lot and that she was
conducting personal business at the time the injury occurred. The employing establishment
noted that appellant clocked back in at 11:50 a.m.
The Office denied her claim on July 30, 2008 finding that she was not in work status at
the time her injury occurred and that therefore the injury did not occur in the performance of her
job duties. It stated that, although appellant was on the employing establishment premises at the
time her injury occurred, there was no evidence that she was engaged in activities related to her
employment.
Appellant requested reconsideration on November 3, 2008 and submitted a narrative
statement alleging that on June 16, 2008 she went to lunch off the clock. She stated that as she
was returning from lunch she fell on the employing establishment walkway which was in poor
condition. Appellant stated that she was on the employing establishment premises on her way to
clock in when she fell. She noted that she did not have an assigned lunch area. By decision
dated November 17, 2008, the Office declined to reopen appellant’s claim for consideration of
the merits on the grounds that her request for reconsideration did not include new and relevant
evidence or raise substantial legal questions.
LEGAL PRECEDENT
The Act provides in section 8128(a) that the Office may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
3

5 U.S.C. §§ 8101-8193, 8128(a).

2

forth arguments or evidence and shows that the Office erroneously applied or interpreted a
specific point of law, or advances a relevant legal argument not previously considered by the
Office, or includes relevant and pertinent new evidence not previously considered by the Office.4
Section 10.608 of the Office’s regulations provide that when a request for reconsideration is
timely, but does meet at least one of these three requirements, the Office will deny the
application for review without reopening the case for a review on the merits.5
ANALYSIS
Appellant alleged that she fell on June 16, 2008 in the performance of duty, but the
Office denied her claim on the grounds that the evidence did not establish that she was
performing activities incidental to her federal employment at the time the injury occurred. In her
statement accompanying her request for reconsideration, she alleged that she returned from her
lunch to clock in at the employing establishment when she fell on the employing establishment
premises. As the central issue in this case is whether appellant was performing activities
incidental to her employment at the time the injury occurred, the Board finds that her narrative
statement is relevant to the issue in the case. The record does not contain another detailed
statement from her describing her account of the timing and events of June 16, 2008. As such,
appellant’s narrative statement constitutes relevant and pertinent new evidence and is sufficient
to require the Office to reopen her claim for consideration of the merits.6
CONCLUSION
The Board finds that this case is not in posture for decision as appellant submitted
relevant and pertinent new evidence in support of her request for reconsideration which requires
the Office to reopen her claim for consideration of the merits. On remand, the Office should
conduct any further development of the factual and medical evidence, to be followed by the
issuance of a decision on the merits of appellant’s claim.

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

6

The Board has accepted the general rule of workers’ compensation law that, as to employees having fixed hours
of work, injuries occurring on the premises of the employing establishment while the employee is going to or from
work, before or after working hours or at lunch time, are compensable. D.L., 58 ECAB 667 (2007).

3

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2008 Office of Workers’
Compensation Programs’ decision is set aside and remanded for additional development
consistent with this decision of the Board.
Issued: August 4, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE NAVY, U.S. MARINE
CORPS, Camp Lejeune, NC, Employer
__________________________________________

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Appearances:
Martin L. Kaplan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0253
Issued: February 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 16, 2016 appellant, through counsel, filed a timely appeal from an
October 26, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a schedule award.

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
On September 19, 2012 appellant, then a 51-year-old lead human resources assistant,
filed an occupational disease claim (Form CA-2) for a cervical and right upper extremity
condition that she attributed to the performance of her job duties over time, which included
typing, using a calculator, and answering the telephone. She indicated that she first became
aware of her claimed condition on August 15, 2012 and first realized on August 22, 2012 that it
was caused or aggravated by her employment.3 Appellant previously sustained an employmentrelated neck injury on April 21, 2003, which OWCP had accepted for cervical herniated disc
(C5-6) (xxxxxx6345). On December 19, 2012 she underwent anterior C6-7 discectomy and
fusion.
After development of the medical evidence, OWCP accepted that on or about August 15,
2012 appellant sustained a work-related permanent aggravation of cervical intervertebral disc
displacement (C5-6) without myelopathy, permanent aggravation of bilateral cervical radiculitis,
and permanent aggravation of cervical intervertebral disc degeneration. Appellant received
wage-loss compensation for temporary total disability for the period December 6, 2012 through
June 10, 2013.4
On May 11, 2016 appellant filed a claim for a schedule award (Form CA-7). In support
of her claim she submitted a December 15, 2015 report including an impairment rating from
Dr. Samy F. Bishai, a Board-certified orthopedic surgeon. Dr. Bishai reported appellant’s
medical history and noted that electromyogram (EMG) testing of her upper extremities on
July 16, 2015 showed changes most compatible with bilateral C5-6 radiculopathy.5 He indicated
that appellant complained of radiculopathies from the cervical region radiating into the upper
extremities, greater on the right side. Dr. Bishai reported the findings of his examination on
December 15, 2015 and indicated that appellant had reached maximum medical improvement
(MMI) on that date. His diagnoses included herniated cervical disc with bilateral radiculopathy
of the upper extremities, cervical degenerative disc disease, bilateral upper extremity brachial
neuritis, status postoperative anterior cervical disc excision and fusion, internal derangement of
the left shoulder joint, and bilateral C6 nerve root radiculopathy of the upper extremities.
In determining appellant’s upper extremity impairment, Dr. Bishai explained that
appellant continued to have pain in her neck and radiation down the upper extremities, more
3

OWCP previously accepted that on April 23, 2003 appellant sustained a traumatic injury in the form of a
herniated disc at C5-6.
4

On June 10, 2013 appellant advised OWCP that she was returning to work. She accepted a voluntary early
retirement (VERA) effective July 31, 2015.
5

Dr. Bishai also noted that his bilateral upper extremity neurological examination revealed signs and physical
findings of a moderate nerve root radiculopathy of the C6 nerve root on both right and left sides. He also reported a
motor deficit of moderate degree with diminished muscle and motor power of the biceps and radial wrist extensors
on both sides, but more severe on the right side. Additionally, Dr. Bishai noted that the neurological examination
revealed a sensory deficit of moderate degree affecting both right and left upper extremities, with the sensory deficit
in the region of the lateral forearm and hand, as well as in the thumb on both right and left sides, but more severe on
the right side. Lastly, he noted that appellant had reflex compromise of the pronator teres and brachioradialis
reflexes, more so on the right side of moderate degree.

2

severe on the right side. He further explained that the radiculopathy was definitely more severe
on the right side, but appellant experienced pain in both upper extremities. Dr. Bishai noted that
the diagnoses had been confirmed by EMG/nerve conduction velocity (NCV) studies of the
upper extremities showing a bilateral radiculopathy of the C6 nerve root. He advised that he
used The Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth
Edition” (July/August 2009) for his impairment rating calculations. Dr. Bishai indicated that, in
each upper extremity, appellant had moderate sensory deficit at grade C, which equaled three
percent upper extremity impairment and a moderate motor deficit at grade C, which equaled nine
percent upper extremity impairment. The total impairment rating in each upper extremity was
calculated by combining the C6 nerve root sensory deficit impairment of 3 percent with the C6
nerve root motor deficit impairment of 9 percent, which equaled 12 percent permanent
impairment in each upper extremity. Therefore, appellant had 12 percent permanent impairment
of the right upper extremity due to the C6 nerve root radiculopathy of the right side and 12
percent permanent impairment of the left upper extremity due to the C6 nerve root radiculopathy
of the left side. Dr. Bishai indicated that these permanent impairments were due to the accepted
work injuries.
In a June 23, 2016 report, Dr. Jovito Estaris, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, noted that he had reviewed the December 15,
2015 report of Dr. Bishai. He indicated that Dr. Bishai had not adequately supported his finding
that the permanent impairments he calculated for the upper extremities were due to the accepted
work injuries. Dr. Estaris noted that the record did not contain the July 16, 2015 EMG findings
that Dr. Bishai referenced and that the findings of the March 12, 2014 EMG testing of the right
upper extremity was negative for peripheral nerve entrapment and negative for muscle
denervation from a motor neuropathy or C5-T1 motor radiculopathy. He also noted that he
reviewed a medical report from Johnston Pain Clinic on May 6, 2016, and commented that the
more recent physical examination was inconsistent with Dr. Bishai’s March 30, 2016 physical
examination findings.6 Based on the purported inconsistencies in the diagnostic studies and
examination findings, Dr. Estaris recommended that OWCP refer appellant for a second opinion
evaluation to determine the existence and extent of any permanent impairment.
In August 2016 OWCP referred appellant to Dr. James A. Maultsby, a Board-certified
orthopedic surgeon, for a second opinion examination and impairment rating under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (A.M.A., Guides).
In a report produced on September 14, 2016,7 Dr. Maultsby detailed appellant’s factual
and medical history, including prior findings on examination and diagnostic testing. He
indicated that EMG testing of appellant’s upper extremities conducted on July 20, 2016 appeared
nonphysiological, and it was noted that no radiculitis was present.8 Dr. Maultsby indicated that
6

The referenced May 6, 2016 evaluation was performed by Tiniki White, a certified physician assistant (PA-C).
Additionally, the current record does not include a March 30, 2016 examination from Dr. Bishai.
7

Although the report is dated August 31, 2016, it was actually produced on September 14, 2016.

8

The referenced July 20, 2016 EMG is not part of the current record.

3

the findings of EMG testing of the upper extremities conducted on September 13, 2016 showed
normal results with no evidence of radiculitis or carpal tunnel syndrome. He noted that, upon
examination on August 31, 2016, appellant had full range of motion of her neck and shoulder
and that there was no muscle weakness. Dr. Maultsby reported that appellant exhibited a lack of
effort during the examination. He found that appellant had reached MMI as of the date of his
examination. Dr. Maultsby noted:
“It is my impression that [appellant] had a great deal of subjective complaints that
were not corroborated by physical findings. She has a solid surgical fusion at C56. For the impairment rating utilizing [The Guides Newsletter, “Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009)], she
has no nerve root injury or impairment of the upper extremities. Therefore, she
has a 0 impairment utilizing the spinal nerve/extremity impairment using the
[sixth edition of the A.M.A., Guides].”
In a report dated October 23, 2016, Dr. Estaris, serving as an OWCP medical adviser,
indicated that he had reviewed the September 14, 2016 report of Dr. Maultsby and agreed that
appellant did not have any permanent impairment in either upper extremity due to the accepted
work injuries.
In a decision dated October 26, 2016, OWCP determined that appellant had not
established permanent impairment to a scheduled member due to her accepted work injury. It
found that the September 14, 2016 report of Dr. Maultsby and the October 23, 2016 report of
Dr. Estaris showed that appellant did not have any permanent impairment in her right or left
upper extremity due to the accepted work injury.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.9 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.10 Effective May 1, 2009, schedule awards are determined in
accordance with the A.M.A., Guides (6th ed., 2009).11

9

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’
compensation. 5 U.S.C. § 8107(c)(1).
10

20 C.F.R. § 10.404.

11

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

4

Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.12 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.13 The A.M.A., Guides (6th ed., 2009) provides a specific methodology for rating
spinal nerve extremity impairment.14 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.15
ANALYSIS
OWCP accepted appellant’s occupational disease claim for permanent aggravation of
cervical intervertebral disc displacement (C5-6) without myelopathy, permanent aggravation of
bilateral cervical radiculitis, and permanent aggravation of cervical intervertebral disc
degeneration. Appellant underwent spinal surgery in December 2012, and returned to work in
June 2013. In May 2016, she filed a claim for a schedule award (Form CA-7) and submitted a
December 15, 2015 impairment rating from Dr. Bishai, who found 12 percent bilateral upper
extremity impairment due to motor and sensory deficits involving the C6 nerve root.16 The
district medical adviser (DMA) identified perceived deficiencies in Dr. Bishai’s impairment
rating, and consequently, recommended that OWCP refer appellant for a second opinion
evaluation. In a September 14, 2016 report, Dr. Maultsby, an OWCP-referral physician, found
that appellant had no (zero percent) impairment of her upper extremities due to her accepted
cervical condition(s). The DMA subsequently reviewed Dr. Maultsby’s findings and concurred
with the finding of zero percent bilateral upper extremity impairment. OWCP, therefore, denied
appellant’s claim for a schedule award based on the reports provided by Dr. Maultsby and the
DMA.
The Board finds that OWCP properly determined that appellant failed to meet her burden
of proof to establish permanent impairment to a scheduled member due to her accepted work
injury. The opinions of Dr. Maultsby and Dr. Estaris show that appellant did not have any
permanent impairment in her right or left upper extremity due to the accepted work injury.
In his September 14, 2016 report, Dr. Maultsby indicated that EMG testing from July 20,
and September 13, 2016 did not support a finding of radiculitis. He also noted that appellant had
a great deal of subjective complaints that were not corroborated by physical findings.
12

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

13

Federal (FECA) Procedure Manual, Part 2 supra note 11 at Chapter 2.808.5c(3).

14

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
15

See Federal (FECA) Procedure Manual, Part 3, supra note 11 at Chapter 3.700, Exhibit 4.

16

See Proposed Table 1, Spinal Nerve Impairment: Upper Extremity Impairments, The Guides Newsletter
(July/August 2009).

5

Additionally, Dr. Maultsby commented that appellant’s cervical spine had a solid surgical fusion.
He properly noted, “For the impairment rating utilizing [The Guides Newsletter, ‘Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition’ (July/August 2009)], she has no nerve root
injury or impairment of the upper extremities. Therefore, appellant has zero impairment utilizing
the spinal nerve/extremity impairment using the [sixth edition of the A.M.A., Guides].”
Dr. Maultsby’s finding of no permanent impairment was supported by the opinion of Dr. Estaris,
the DMA. In his October 23, 2016 report, Dr. Estaris explained that he agreed with the
assessment of Dr. Maultsby that appellant had no permanent impairment in either upper
extremity due to the accepted work injuries. Additionally, he had previously noted that the
July 16, 2015 EMG study, which Dr. Bishai relied upon was not part of the record, and a prior
right upper extremity EMG from March 2014 was negative for both peripheral nerve entrapment
and muscle denervation.
While Dr. Bishai found 12 percent bilateral upper extremity impairment due to C6 motor
and sensory deficits, the diagnostic study upon which he relied upon confirmed his
physical/neurological findings of cervical radiculopathy were not part of the record and;
therefore, the validity of the test results could not be confirmed. Moreover, the more recent
physical examination findings and diagnostic studies as outlined by both Dr. Maultsby and the
DMA do not support a finding of any permanent upper extremity impairment. Accordingly, the
Board finds that appellant has failed to establish entitlement to 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 failed to meet her burden of proof to establish a schedule.

6

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7