United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSILE RANGE, NM, Employer
__________________________________________

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

Docket No. 07-563
Issued: October 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2006 appellant filed a timely appeal from an October 5, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. As there is no merit decision within one year of the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the October 5, 2006 nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was not
timely filed and did not demonstrate clear evidence of error.

1

See 5 U.S.C. § 501.2(c).

FACTUAL HISTORY
On March 6, 1991 appellant, then a 34-year-old industrial hygienist, filed an occupational
disease claim alleging that he sustained anxiety and depression due to factors of his federal
employment. The Office accepted his claim for post-traumatic stress disorder and methylene
chloride exposure.
By letter dated June 29, 1999, the Office referred appellant to Dr. Thomas Kurt, Boardcertified in preventive medicine, and Dr. Curtis J. Spier, a Board-certified anesthesiologist, for
second opinion examinations. The appointment with Dr. Kurt was scheduled for July 12, 1999
in Dallas, Texas. The appointment with Dr. Spier was scheduled for July 19, 1999 in El Paso,
Texas. In the June 29, 1999 referral letters, the Office notified appellant that he should
immediately inform the Office and the physician if he was unable to attend the appointment.
Appellant did not appear for either appointment.
On July 20, 1999 the Office notified appellant that it proposed to suspend his
compensation under 5 U.S.C. § 8123(d) because he failed to keep the medical appointments
scheduled with Dr. Spier and Dr. Kurt. The Office requested that he submit a written
explanation of his reasons for obstructing the examinations within 14 days. By decision dated
August 5, 1999, the Office suspended appellant’s compensation under section 8123(d) for
refusing to submit to a scheduled medical examination. The Office noted that he had not
responded to its request that he explain in writing his failure to attend the scheduled medical
appointments.
Appellant requested an oral hearing, which was held on July 19, 2000. At the hearing, he
submitted a statement arguing that the Office erred in referring him for an appointment on
July 12, 1999 with a physician over 600 miles from his residence and in failing to provide him
with more notice prior to the appointments. Appellant additionally contended that the Office did
not show that specialists were not available closer to his geographical area. He further
maintained that he was not afforded due process.
In a decision dated September 1, 2000, the Office hearing representative affirmed the
August 5, 1999 decision suspending appellant’s compensation. The hearing representative noted
that he did not challenge the selection or the location of the physicians prior to missing the
scheduled appointments.
Appellant appealed to the Board. On January 30, 2001 the Board noted that it had not
received the case record and remanded the case for reconstruction of the case record and an
appropriate decision protecting his appeal rights.2 In a decision dated March 29, 2001, the Office
reissued its August 5, 1999 decision suspending appellant’s compensation.

2

Order Remanding Case, Docket No. 00-2819 (issued January 30, 2001).

2

In a letter dated September 4, 2001, received by the Office on September 3, 2002,
appellant requested reconsideration.3 He challenged the location of the physician’s appointments
and alleged due process violations. In a decision dated September 9, 2002, the Office denied
modification of its March 29, 2001 decision.4 The Office noted that it had properly informed
him of the July 12 and 19, 1999 medical appointments and of the consequences for failing to
attend the appointments.
By letter dated September 6, 2006, appellant requested reconsideration of the
September 9, 2002 decision. He argued that he was unable to adequately respond to the
suspension of his compensation due to his mental condition. Appellant also contended that the
Office’s September 9, 2002 decision contained inadequate explanations and did not attach
relevant portions of the case record. In its September 9, 2002 decision, the Office failed to
consider the lack of appropriate notice he received of the medical appointments and that a
selected physician was outside his commuting area. Citing to Billie J. Gardner,5 appellant
contended that the Office failed to document the lack of physicians available within his
commuting area prior to suspending his compensation. He noted that he had fully participated in
second opinion examinations closer to his residence both prior to and subsequent to the
suspension of compensation. Appellant again asserted that until recently his mental condition
prevented him from adequately raising these arguments and from understanding the
consequences of failing to keep the July 1999 medical appointments.
In a decision dated October 5, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.6
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.7 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.8 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
3

In a letter dated April 6, 2001, appellant argued that the Board had reversed the suspension of compensation. By
letter dated March 27, 2002, he indicated that he was challenging the Office’s suspension of his compensation in
federal court.
4

The Office again paid appellant compensation beginning April 6, 2001, the date that he agreed to participate in a
medical examination.
5

53 ECAB 356 (2002).

6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

8

Veletta C. Coleman, 48 ECAB 367 (1997).

3

limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear
evidence of error” on the part of the Office.9 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.12 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.13
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.14 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.15 As appellant’s
September 6, 2006 request for reconsideration was submitted more than one year after the last
merit decision of record, it was untimely. Consequently, he must demonstrate clear evidence of
error by the Office in suspending his compensation for refusing to submit to a medical
examination.16

9

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
10

See Nelson T. Thompson, 43 ECAB 919 (1992).

11

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

12

Id.

13

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB ___ (Docket No. 04-1451, issued December 22, 2005).

16

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB ___ (Docket No. 05-1637, issued October 18, 2005).

4

Appellant contended that his mental condition prevented him from properly responding
to the suspension of his compensation. He has not, however, submitted any medical evidence
supporting that his mental condition prevented him from comprehending the Office’s
instructions or adequately responding to the suspension of compensation. Thus, appellant has
not raised a legal argument sufficient to establish clear evidence of error.
Appellant additionally argued that the September 9, 2002 Office decision contained
inadequate explanations and did not attach appropriate portions of the case record. The
September 9, 2002 decision, however, properly addressed the arguments he raised in his
September 4, 2001 request for reconsideration, which the Office received on September 3, 2002.
Consequently, appellant’s argument does not show clear evidence of error by the Office.
Appellant also argued that the Office, in the September 9, 2002 decision, did not consider
that it referred him to a physician in a location remote from his residence and did not consider
that it failed to provide him with sufficient time prior to the scheduled appointments. Citing to
Gardner, he contended that the Office must show that it attempted to locate appropriate
specialists in a claimant’s geographical error prior to suspending compensation.17 In Gardner,
the Board held that the Office may refer a claimant to a distant city for a referral examination
after documenting that there are no appropriate specialists in the claimant’s geographical
location.18 In Gardner, however, the claimant informed the Office and the physician prior to the
date of the scheduled examination that he was unable to attend the medical appointment because
of the short notice and the distance between the location of the physician and his residence.19 In
this case, appellant did not inform the Office that he could not attend the physician’s
appointments either after receiving the June 29, 1999 referral letter or after receiving the July 20,
1999 notice of proposed suspension of compensation. The term “clear evidence of error” is
intended to represent a difficult standard. The evidence must prima facie shift the weight of the
evidence in favor of appellant.20 Appellant has not raised a legal argument which establishes “on
its face” that the Office’s merit decision was erroneous.
As the evidence submitted by appellant is insufficient to prima facie shift the weight of
evidence in favor of the claimant and raise a substantial question as to the correctness of the
Office’s last merit decision, he has not established clear evidence of error.21
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was not
timely filed and did not demonstrate clear evidence of error.
17

See supra note 5.

18

Id.

19

Id.

20

See G.H., 58 ECAB ___ (Docket No. 06-1417, issued November 27, 2006).

21

See Veletta C. Coleman, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 5, 2006 is affirmed.
Issued: October 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Parkville, MD, Employer
__________________________________________

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

Docket No. 20-0312
Issued: July 6, 2021

Case Submitted on the Record

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

JURISDICTION
On November 22, 2019 appellant, through counsel, filed a timely appeal from an
October 29, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

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

Counsel did not appeal from the November 4, 2019 hearing representative’s decision affirming a June 11, 2019
decision denying appellant’s claim for wage-loss compensation on March 6, 14, and 12, 2019. He identified only the
nonmerit decision dated November 22, 2019 on the application for review (Form AB-1). Therefore, the Board will
not consider the November 4, 2019 OWCP decision on appeal. See 20 C.F.R. § 501.3; see also L.J., Docket No.
19-0211 (issued July 10, 2019).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 23, 2019, as she no longer had
residuals or disability causally related to her accepted August 3, 2017 employment injury; and
(2) whether appellant has established continuing employment-related disability after
April 23, 2019.
FACTUAL HISTORY
On August 3, 2017 appellant, then a 40-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained neck, back and left shoulder injuries in
the performance of duty when a speeding truck struck the driver side of her postal vehicle. She
stopped work that day. On November 20, 2017 OWCP accepted the claim for other muscle spasm
and neck muscle strain. It paid appellant on the supplemental rolls for temporary total disability
through August 2, 2018. OWCP paid appellant for partial disability on the supplemental rolls
following appellant’s return to limited-duty part-time work on August 3, 2018.
In a report dated August 14, 2017, Dr. Michael A. Randolph, a Board-certified internist,
related that appellant had been under his care since August 4, 2017, following a motor vehicle
accident. He diagnosed cervicalgia, other dorsalgia, and other muscle spasm and found her
disabled from work. In reports dated September 18 and December 11, 2017 and March 14, 2018,
Dr. Randolph advised OWCP that appellant was currently under the care of Dr. Mark Coleman, a
Board-certified anesthesiologist and pain medicine physician. He informed OWCP that
Dr. Coleman would make the final determination regarding appellant’s ability to return to work.
On April 2, 2018 OWCP referred appellant, together with a statement of accepted facts
(SOAF), medical record, and list of questions, for a second opinion evaluation with
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, for a determination of whether
appellant’s work-related conditions had resolved and whether appellant could return full time to
her date-of-injury job. The SOAF noted other muscle spasm and neck muscle strain as the
accepted conditions.
In an April 20, 2018 report, Dr. Smith reviewed the SOAF, as well as appellant’s history
of injury and medical history. He related that the SOAF only contained the condition of cervical
strain and he provided cervical range of motion findings, and related that appellant had a normal
neurologic examination. Dr. Smith reported that appellant had subjective complaints of pain,
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the October 29, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

which restricted her cervical motion; however, he was unable to palpate any paraspinal rigidity of
soft tissue spasm, which would preclude appellant from normal neck movement. He opined that
appellant was capable of returning to her date-of-injury job without restrictions. Dr. Smith also
concluded that the accepted cervical muscle strain and spasm had resolved without residuals based
on his clinical finding and there was no need for further medical treatment.
Appellant began care with Dr. Cheryl Kalb, a chiropractor. Dr. Kalb, in a July 9, 2018
report, diagnosed cervical and thoracic sprain/strain, paravertebral muscle spasm and myositis,
lower extremity dysfunction, lumbago, and lumbar, cervical, and thoracic segmental joint
dysfunction. She noted that appellant had been involved in a work-related motor vehicle accident
and provided examination findings. A review of a July 11, 2018 magnetic resonance imaging scan
of the cervical and thoracic spine revealed mild C5-6, C6-7 disc bulging and no evidence of spinal
stenosis, foraminal stenosis, or disc herniation. Dr. Kalb noted that appellant had been off work
since August 3, 2017, the date of the motor vehicle accident, and anticipated resolution of the
injury with six to eight weeks contingent based upon the therapy she proposed. She concluded
that appellant’s July 9, 2017 accident was the cause of her physical symptoms.
In duty status reports (Form CA-17) dated August 17, October 17, November 12, and
December 7, 2018, Dr. Randolph released appellant to return to work for five hours per day with
restrictions. In each of these reports, he related clinical findings of neck and back muscle spasm.
In a November 21, 2018 report, Dr. Randolph placed appellant totally off work for the
period October 13 to 20, 2018 due to muscle spasms arising from her accepted August 3, 2017
employment injury. He explained that the muscle relaxant therapy could cause lethargy and
attached information regarding side effects of the prescribed medication, Skelazin.
Dr. Randolph, in progress reports dated November 12 and December 6, 2018, related that
appellant was seen in follow-up for recurrent back and neck spasms. He provided appellant’s
physical examination findings including cervical and lumbar muscle spasm, on range of motion
testing. Dr. Randolph related diagnoses of neck and lower back muscle, fascia, and tendon strain,
back muscle spasm, cervicalgia, and thoracic ligament sprain. In his December 6, 2018 report, in
addition to noting cervical and lumbar spasm on examination, he also noted thoracic spasms.
Dr. Randolph opined that recent weather changes contributed to the spasms and that her prescribed
medication has caused some lethargy.
On January 18, 2019 the employing establishment offered appellant a modified assignment
working three hours per day, which appellant accepted under protest.
In a January 28, 2019 return-to-duty letter, the employing establishment noted that
appellant had last reported to work in her modified position on January 22, 2019. It instructed her
to return to duty or provide medical evidence of incapacity to work.
On March 22, 2019 OWCP advised appellant of its proposed termination of her wage-loss
compensation and medical benefits. It found that Dr. Smith’s opinion represented the weight of
the evidence and established that she had no further injury-related conditions or disability.
Appellant was advised that she had 30 days to submit additional evidence.

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By decision dated April 23, 2019, OWCP terminated appellant’s wage-loss compensation
and authorization for medical benefits, effective that day, finding that she had no further disability
or condition causally related to her accepted August 3, 2017 employment injury. It found that the
opinion of Dr. Smith constituted the weight of the evidence and established that she had no further
residuals of her accepted conditions.
On April 30, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 15, 2019.
Subsequent to appellant’s request for a telephonic hearing, OWCP received a March 22,
2019 report from Dr. Randolph, which noted a normal cervical examination, summarized the
treatment provided, and diagnosed back muscle spasm, lower back fascia strain, neck muscle,
fascia, and tendon strain and back wall of thorax muscle and tendon strain. In an April 26, 2019
report, Dr. Randolph noted that appellant was seen for upper back pain and spasm. He related
findings on physical examination of neck spasm and tenderness. In a disability note dated April 26,
2019, Dr. Randolph released her to return to work that day, for five hours a day, pursuant to the
restrictions that had been in place since August 2018.
OWCP also received Form CA-17s dated August 17, March 22, April 24, May 24, June 21,
and July 19, 2019 from Dr. Randolph relating appellant able to work a five-hour day with
restrictions. In each of these form reports, Dr. Randolph related clinical findings of neck and back
muscle spasms.
In a May 23, 2019 report, Dr. Randolph noted his disagreement with Dr. Smith’s opinion
and asserted that Dr. Smith’s opinion was based on review of an incomplete medical record.
In a report dated June 21, 2019, Dr. Randolph related that appellant complained of left side
cervical pain. He noted physical examination findings including cervical and thoracic muscle
spasm. Dr. Randolph diagnosed thorax wall muscle and tendon strain, low back strain, neck fascia
and tendon muscle strain.
In notes dated June 21, July 19, and September 24, 2019, Dr. Randolph noted that appellant
remained under his care and that she was capable of working a five-hour day with restrictions,
which were unchanged since August 2018.
Dr. Randolph, in July 19 and August 20, 2019 progress notes, noted that appellant was
currently working and had been cleared to work five hours per day. Examination findings were
detailed including continued findings of cervical, thoracic, and lumbar spine spasm. Appellant’s
diagnoses were unchanged.
By decision dated October 29, 2019, the hearing representative affirmed the April 23, 2019
decision, terminating her wage-loss compensation and medical benefits, effective April 23, 2019.
She also found that appellant had no continuing disability after April 23, 2019 causally related to
the accepted conditions.

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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 or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.6
OWCP’s 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
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or IME) who shall make an examination.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 23, 2019.
The evidence of record establishes that there remains a conflict between Dr. Smith, the
second opinion physician, and Dr. Randolph, appellant’s treating physician, as to whether
appellant had residuals from her accepted conditions as of April 23, 2019. In his April 20, 2018
report, Dr. Smith described the August 3, 2017 employment injury and noted review of the SOAF
and that the claim had been accepted for cervical muscle strain and spasm. He indicated that
appellant’s physical examination revealed no objective findings of the accepted conditions.
Dr. Smith found that appellant had no evidence of cervical spasm, atrophy, trigger points, or any
deformity and a normal neurological examination. He opined that the accepted conditions had
5

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

6

A.C., Docket No.19-1522 (issued July 27, 2020); A.G., Docket No. 18-0749 (issued November 7, 2018); T.L.,
Docket No. 18-0536 (issued November 27, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
7

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

S.P., Docket No. 20-0196 (issued June 24, 2020); J.W., Docket No. 19-1014 (issued October 24, 2019); L.W.,
Docket No. 18-1372 (issued February 27, 2019).
9
S.P., id.; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).
10

5 U.S.C. § 8123(a). C.R., Docket No. 19-1132 (issued October 1, 2020); see also G.B., Docket No. 16-0996
(issued September 14, 2016) (OWCP improperly terminated the claimant’s wage-loss compensation and medical
benefits as there was an unresolved conflict of medical opinion between her treating physician and a second opinion
specialist).

5

resolved, that she could return to work without restrictions, and there was no need for further
medical treatment.
Appellant’s treating physician, Dr. Randolph, however, submitted reports relating
appellant’s physical examinations as of August 4, 2017. In his progress reports through the date
of the termination of appellant’s wage-loss compensation and medical benefits, he continued to
relate that on physical examination appellant had continued neck and back spasms, clinical
findings of appellant’s accepted muscle spasm condition. Dr. Randolph also continued to indicate
that he was treating appellant for back muscle spasm, lower back fascia strain, neck muscle, fascia,
and tendon strain, and back wall of thorax muscle and tendon strain. He also continued to relate
that appellant was only capable of working with restrictions for five hours a day. The two
physicians, thus, disagreed as to whether appellant’s accepted muscle spasm, and neck strain had
resolved.11 The Board finds that an unresolved conflict of medical evidence remains between the
opinions of Dr. Smith and Dr. Randolph as to whether appellant had residuals and disability from
the accepted conditions.
As a conflict remains in the medical opinion evidence prior to April 23, 2019 as to whether
appellant’s accepted conditions had resolved and no longer caused disability, the Board finds that
OWCP has not met its burden of proof to terminate her wage-loss compensation and medical
benefits.
CONCLUSION
The Board further finds that OWCP has not met its burden of proof to terminate her wageloss compensation and medical benefits, effective April 23, 2019.12

11

Id.

12

In light of the disposition of this case, Issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Thousand Oaks, CA, Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-481
Issued: September 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 9, 2008 appellant filed a timely appeal from a September 10, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
affirming a November 5, 2007 merit decision of the Office. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether appellant established that he sustained a back condition in the
performance of duty causally related to his federal employment.1

1

The Board notes that appellant’s claim originally included carpal tunnel syndrome as a claimed condition. By
decision dated October 15, 2008, the Office accepted his claim for right carpal tunnel syndrome and therefore the
Board has no jurisdiction over the carpal tunnel syndrome aspect of his appeal.

FACTUAL HISTORY
On September 25, 2007 appellant, a 47-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for possible carpal tunnel syndrome and other conditions.2 He first
became aware of his condition on June 2, 2007 and realized the condition was caused or
aggravated by his federal employment on August 21, 2007. Appellant stopped work on June 2,
2007 and has not returned to full duty.3
On September 21, 2007 appellant alleged that, on June 2, 2007, while at work, he felt
numbness and pain in his face, back and shoulder, which radiated into his right arm, right hand
and right leg. He also reported feeling dizzy, nauseous and that his vision was blurry. Because
of the pain, discomfort and fearing that he might die at any moment, appellant was afraid to drive
a car and telephoned his sister, who picked him up from work and drove him to the emergency
room.
On June 2, 2007 Dr. Eric Moll, Board-certified in emergency medicine, diagnosed multilevel bone spurs in the cervical and thoracic spine. He recommended that appellant follow up
with his primary care physician for further pain control and provided a referral to a neurosurgeon
for consultation and physical therapy.
On June 20, 2007 Dr. Gretchen H. Jacobson, a Board-certified neurosurgeon, reported
that a cervical magnetic resonance imaging (MRI) scan was unremarkable. She noted that she
did not think that the small disc bulge at T2-3 was causing appellant’s symptoms. Dr. Jacobson
opined that this small disc bulge could be producing some of his leg and right flank numbness,
but not his arm pain nor facial numbness.
Appellant submitted a June 27, 2007 report signed by Dr. Eric Chun, Board-certified in
family medicine, who diagnosed right-sided weakness with paresthesias and gait instability.
Appellant submitted an August 6, 2007 report signed by Dr. Mark R. Mitchell, a Boardcertified diagnostic radiologist, who reported that an MRI scan of appellant’s cervical spine
revealed a three millimeter (mm) right paramedian protrusion at the T2-3 level indenting the
right side of the spinal cord which was reducing the anterior posterior dimension of the dural sac
to approximately seven mm. At the T3-4 level Dr. Mitchell observed a three to four mm
indentation of the right posterolateral dural sac due to the probable proliferation around the facet

2

The record reflects that appellant has several prior claims which were accepted by the Office. He filed a claim,
case file number xxxxxx425, for an injury occurring August 13, 1990 which was accepted for “injury/body.” Under
case file number xxxxxx286 appellant’s injury of May 13, 1992 was accepted for exposure to fumes. Under case
file number xxxxxx899, his injury of May 21, 1999 was accepted for lower back strain. Under case file number
xxxxxx786, appellant’s injury of November 5, 2005 was accepted for left wrist sprain, for which no time was lost.
The record also reflects all of these claims were retired.
3

The record reflects that appellant and his attorney submitted evidence in support of his claim containing reports
and notes diagnosing and providing treatment for conditions ranging from anxiety to respiratory infections. As this
appeal concerns the denial of a claim for back injury, reports and notes concerning diagnosis of or treatment for
conditions unrelated to the back or spine are not relevant.

2

joint. The MRI scan revealed two mm of posterior disc bulging at the C3-4 level as well as mild
to moderate foraminal stenosis at multiple levels, the worst of which was at the C5-6 level.
By letter dated October 1, 2007, the Office notified appellant that the evidence he
submitted in support of his claim was insufficient because none of the medical evidence
established a diagnosed condition was caused by a factor of his employment or an employment
incident. It advised appellant that he needed to submit additional evidence in support of his
claim and provided guidance concerning the type of evidence required.
Appellant submitted no additional evidence in support of his claim and by decision dated
November 5, 2007, the Office denied his claim because the evidence of record was insufficient
to establish that he sustained an injury as defined by the Federal Employees’ Compensation Act.
Appellant disagreed and, through his attorney, requested an oral hearing.
Appellant submitted a May 23, 2008 report from Dr. Marvin Pietruszka, Board-certified
in anatomic and clinical pathology, who reported findings upon examination and a review of
appellant’s employment and medical history. Dr. Pietruszka reported that physical examination
of appellant’s spine revealed tenderness and myospasm of the posterior cervical paraspinal
musculature, primarily on the right. He observed that appellant experienced pain in all his joints
during range of motion testing. Dr. Pietruszka noted that appellant exhibited decreased strength
in the musculature of his upper right extremity as compared to the left. Specifically, he noted
that appellant’s forearm musculature, as well as that of the upper portion of the extremity, were
functioning with a limitation of 40 percent less than that on the left. Dr. Pietruszka also observed
that appellant had decreased strength in his lower extremity musculature. Appellant exhibited
hypesthesia to pinprick of the lower right extremity down to the great toe of his right foot.
Dr. Pietruszka reported that x-rays taken October 25, 2007 of appellant’s cervical spine
revealed marked straightening of the normal lordotic curve. An x-ray of appellant’s thoracic
spine revealed a slight rotation of the upper thoracic vertebrae and an x-ray of his lumbar spine
revealed marked straightening and reversal of the normal curve. X-rays of his right and left
shoulder taken October 25, 2007 revealed no abnormalities.
Dr. Pietruszka diagnosed right carpal tunnel syndrome, cervical and lumbar discopathy,
right hemiparesis of unknown etiology and hyperlipidemia. He also diagnosed appellant with
anxiety/stress disorder, sleep disorder, hypertension aggravated by work-related injury, history of
migraine headaches, bilateral hearing loss, hyperkeratosis of the skin of both heels, hepatic
steatosis and left de Quervain’s tenosynovitis.
Dr. Pietruszka opined that appellant’s cervical and lumbar discopathy were aggravated by
movement. He opined that appellant’s description of his job injuries and the mechanism of
injury of his lower back and cervical spine was consistent with the “mechanism of injury as
described by the patient.” Dr. Pietruszka explained that: “The mechanism by which [appellant]
suffers pain due to his lumbar and cervical discopathy … relates to the transmission of nerve
impulses stimulated by pressure sensitive, heat sensitive and pain sensitive nerve fibers via
afferent nerve fibers which ultimately stimulate a cerebral response….” He opined that appellant

3

was disabled from work and asserted that appellant was precluded from working his usual job
because the duties exacerbated his medical conditions.
By letter dated June 3, 2008, appellant’s attorney argued that appellant’s medical
conditions were not attributable to nonwork factors, particularly his skydiving hobby. Counsel
asserted that Dr. Pietruszka’s report was comprehensive and, because of its thoroughness,
entitled to special consideration and the weight accorded second opinion physicians. Citing the
Office’s procedural manual as well as several cases, counsel argued that this claim was one
where doubling was appropriate because appellant sustained spinal injuries and carpal tunnel
syndrome. Counsel also provided a narrative of appellant’s job description, the duties he
performs on a daily basis and a history of his injury and medical treatment.
A hearing was conducted on June 3, 2008 and appellant’s attorney argued that appellant’s
claim was for both carpal tunnel and spinal injuries, because the injury claimed on his CA-2
form was carpal tunnel and other testing. Counsel, noting that the Office’s development letter
mentioned both the carpal tunnel and spinal conditions, argued that the Office’s November 5,
2007 decision was improper as it only addressed the carpal tunnel condition.
Appellant testified that he was a master skydiver and had been skydiving since 1980. He
reported that he has never sustained any skydiving-related injuries and never saw a physician in
connection with a condition attributable to his skydiving hobby. Appellant reported that he dove
at least twice a month and that he stopped skydiving in 2005.
Appellant testified that while casing mail he started to feel dizzy as well as pain and
numbness in his hand and arms. He alleged that he reported his condition to his supervisor who
told him to just hang in there. Appellant testified that he went to the emergency room where a
physician told him he had a herniated disc and that he should follow up with his primary care
physician.
By report dated June 4, 2007, Dr. Chun reported findings upon examination and
diagnosed cervical and thoracic spondylosis. On July 31, 2007 he diagnosed cervical
radiculopathy. Appellant also submitted reports from a certified physician’s assistant and
physical therapists.
Appellant submitted a November 1, 2007, report signed by Dr. Paul F. Parks, a Boardcertified orthopedic surgeon, who reported that an MRI scan of appellant’s cervical and upper
thoracic spine revealed a small right-sided disc protrusion at the T2-3 level. Dr. Parks noted that
the results of this MRI scan did not explain appellant’s symptoms and recommended an MRI
scan of his thoracic and lumbar spine. He diagnosed degeneration of the thoracic intervertebral
disc.
On November 4, 2007 Dr. Edward Helmer, a radiologist, reported that an MRI scan of
appellant’s thoracic spine revealed degenerative facet disease with ligamentum flavum buckling
that was causing mild indentation on the dorsolateral aspect of the dural sac. He noted that there
was a focal disc bulge at the T1-2 level, degenerative disc disease at the T2-3 level and
degenerative facet disease on the right side of the T3 level as well as in the mid-thoracic region.
An MRI scan of appellant’s lumbar spine revealed an asymmetric disc bulge at the L5-S1 level.

4

Appellant submitted a November 5, 2007 report signed by Dr. Charles S. Brenner, a
Board-certified orthopedic surgeon, who diagnosed appellant with bilateral carpal tunnel
syndrome with cervical spine stenosis and right C6 radiculopathy. Dr. Brenner noted that an
MRI scan revealed significant foraminal stenosis particularly at the C5-6 level.
By decision dated September 10, 2008, the hearing representative affirmed the Office’s
November 5, 2007 decision with regard to appellant’s claimed back condition but set aside and
remanded the carpal tunnel claim for further development.4
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
Appellant, through his attorney, alleged that he sustained a back condition in the
performance of duty.7 As noted above, his burden is to establish that identified factors of his
employment caused or contributed to the presence or occurrence of his back condition and to
establish, through production of probative rationalized medical evidence, that his alleged back
condition is causally related to the identified employment factors.8 The Board finds the Office
properly denied appellant’s claim because the evidence of record is insufficient to satisfy
appellant’s burden of proof.

4

See supra note 1.

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

See supra note 1.

8

See supra note 6.

5

The burden of proof in this case is with appellant, not the Office. The record reflects that
appellant’s claim was denied because the medical evidence did not establish that he sustained an
injury as defined by the Act and that the evidence of record was insufficient to establish that his
alleged back condition was causally related to his federal employment.
Counsel argues that Dr. Pietruszka’s report is sufficiently well reasoned such that it
satisfies appellant’s burden of proof.9 The Board finds, however, that Dr. Pietruszka’s report is
substantively deficient and therefore inadequate to satisfy appellant’s burden of proof.
Dr. Pietruska’s report merely repeated a narrative of appellant’s job description and medical
history identical to that provided by appellant’s attorney in his letter dated June 3, 2008.
Although Dr. Pietruszka’s report provided a review of appellant’s medical history and
proffered findings upon examination, he provided no substantive opinion on the causal
relationship between any of the conditions he diagnosed and any identified factor of appellant’s
federal employment. The Board has consistently held that medical reports lacking a rationale on
causal relationship are of diminished probative value.10 A rationalized medical opinion is based
on a complete factual and medical background and is supported by medical rationale.11 As noted
above, rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and employment factors.
While Dr. Pietruszka opined that appellant’s medical history, his findings upon
examination, review of appellant’s job description and appellant’s description of injury were
consistent with the mechanism of injury, at no time did he explain what the mechanism of injury
was as it related to any specific employment duty, nor did he provide specific details concerning
how appellant’s job caused, contributed or produced this injury. His causal relationship opinion
provided a generalized explanation of the neurological mechanics underlying how appellant’s
alleged cervical and lumbar condition produced pain, rather than a rationalized opinion
concerning how a specific employment factor caused or contributed to the cervical and lumbar
condition that he diagnosed.
The remaining medical evidence of record is similarly insufficient to satisfy appellant’s
burden. The reports from Drs. Brenner, Chun, Helmer, Jacobson, Kong, Mitchell, Moll and
Parks are of diminished probative medical value as none of these reports contained an opinion on
the causal relationship between appellant’s condition and identified factors of his employment.
As noted above, reports lacking such an opinion are of diminished probative value.12 As none of
9

Counsel for the appellant also argued the hearing representative erred by not “mention[ing] that the ‘underlying
conditions’ relevant here [were] two previous (the Office approved) work injuries to the claimant’s upper and lower
back.” This claim is not for a consequential injury or for recurrence of other injuries. This claim is an occupational
injury claim. Appellant can file a claim for those contentions with the Office, but they are not before the Board at
this time.
10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

Froilan Negron Marrero, 33 ECAB 796 (1982).

12

See supra note 10.

6

the reports from these physicians proffered an opinion on the causal relationship between
appellant’s condition and identified factors of his employment, they are of diminished probative
value and are insufficient to satisfy his burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.13 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment14 or that work activities produce symptoms revelatory
of an underlying condition15 does not raise an inference of causal relationship between a claimed
condition and employment factors.
Appellant also submitted reports from a certified physician’s assistant and physical
therapists. These reports are of no probative value because physicians’ assistants and physical
therapists do not constitute physicians’ under the Act and thus their reports do not constitute
medical evidence.16
Appellant’s attorney argued that the Office’s decision improperly placed the weight of
the medical evidence on Wikipedia articles about skydiving submitted by the employing
establishment. The Board notes that such materials are of no evidentiary value as the underlying
issue here is a medical issue and these articles are of general application and therefore not
determinative of whether a specific condition claimed is related to particular employment
factors.17 At no time did the Office or the hearing representative find that appellant’s condition
was caused by a skydiving incident.
Appellant’s attorney also argued that the Office improperly denied appellant’s claim
because the evidence of record was sufficient to satisfy his burden of proof. Appellant’s CA-2
claim form did not contain a detailed description of any specific employment-related factors he
believed that caused or contributed to his condition. Although appellant and his attorney
provided a list of his job responsibilities and a narrative of the employment tasks performed
during any given day, neither his claim form nor any of the other evidence of record contained
specific information of how his employment conditions were responsible for causing his alleged
back injury.
An employee cannot simply allege that his employment caused or contributed to his
condition and, thus, be entitled to compensation; each employment factor alleged must be
supported by probative and reliable evidence.18 A mere generalized allegation that he sustained
13

D.I., 59 ECAB___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

14

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
15

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

16

See George H. Clark, 56 ECAB 162 (2004); Thomas L. Agee, 56 ECAB 465 (2005).

17

Gloria J. McPherson, 51 ECAB 441, 448 (2000).

18

Roger Williams, 52 ECAB 468 (2001).

7

a nonspecific back injury, standing alone, is insufficient to demonstrate or establish that the
claimed condition was caused or produced by factors of his employment.19
As there is no other probative evidence of record, appellant has not met his burden of
proof to establish that he sustained a back condition in the performance of duty causally related
to his federal employment.
CONCLUSION
The Board finds that appellant has not established that he sustained a back condition in
the performance of duty causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT September 10, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: September 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

19

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms do not, in the opinion of
the Board, constitute evidence of a sufficiently substantial nature).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, North Reading, MA,
Employer
__________________________________________

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

Docket No. 13-1360
Issued: December 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 20, 2013 appellant filed a timely appeal of a February 20, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) concerning 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 case.
ISSUE
The issue is whether appellant has established that she has greater than six percent
impairment of her left arm, for which she received a schedule award.
FACTUAL HISTORY
On July 19, 1999 appellant, then a 50-year-old mail processor, filed a traumatic injury
claim alleging that she injured her left shoulder on that day in the performance of duty. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for a left shoulder sprain and an August 29, 2002 claim for a recurrence of
disability.
In a January 12, 2012 report, Dr. Daniel W. Bienkowski, a treating Board-certified
orthopedic surgeon, noted a history of the employment injury and medical treatment and
provided physical examination findings. He diagnosed chronic left shoulder tendinitis associated
with a long thoracic nerve palsy as a result of the accepted July 19, 1999 employment injury.
Dr. Bienkowski stated that appellant had reached maximum medical improvement and had a 25
percent impairment of her left arm. Appellant subsequently filed a claim for a schedule award.
On April 23, 2012 Dr. Bienkowski responded to OWCP’s February 24, 2012 letter
requesting that he provide an impairment rating based upon the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
Using Table 1-5 “the generic template” of the A.M.A., Guides, he found that appellant had a
moderate or class 2 impairment due to her shoulder tendinitis and impingement of the long
thoracic nerve palsy. Dr. Bienkowski stated that the shoulder impairment rating was based on
Table 15-2, Table 15-5 and Table 15-7. He also used Table 16-4 to determine appellant’s long
thoracic nerve injury as mild.
On November 5 and 11, 2012 Dr. David I. Krohn, an OWCP medical adviser, reviewed
Dr. Bienkowski’s reports. He concluded that appellant had a six percent left upper extremity
impairment. Using Table 15-5, page 402, Dr. Krohn assigned grade C with a default value of
three percent for the diagnosis of chronic tendinitis. He found that the grade modifier at Table
15-7, page 406, for Functional History (GMFH) was zero, noting pain with strenuous activity.
The grade modifier for Physical Examination (GMPE) at Table 15-8, page 408 was one, noting
history of acute trauma. The grade modifier for Clinical Studies (GMCS) at Table 15-9, page
410 was zero. Pursuant to the formula set forth at Table 15-21, page 411, Dr. Krohn added the
grade modifiers which resulted in grade D or four percent left upper extremity impairment.
Citing to Table 15-21, page 437, he assigned class 1 to appellant’s long thoracic nerve which
corresponded to a grade C or two percent left upper extremity impairment. Dr. Krohn found that
the grade modifier at Table 15-7, page 406, for functional history was zero, noting a mild
problem. The grade modifier for physical examination at Table 15-8, page 408 was zero. The
grade modifier for clinical studies at Table 15-9, page 410 was also zero. Dr. Krohn then
combined the four percent impairment for left shoulder tendinitis with the two percent long
thoracic nerve palsy to total a six percent left arm impairment. He stated that Dr. Bienkowski
did not describe how he used Table 15-5 and Table 15-7 to determine an impairment rating for
tendinitis and that the use of Table 16-4 was not appropriate in determining a long thoracic nerve
impairment.
By decision dated February 20, 2013, OWCP granted a schedule award for a six percent
left upper extremity impairment. The period of the award was for 18.72 weeks and ran from
January 12 to May 22, 2012.

2

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides as the
appropriate edition for all awards issued after that date.5 The sixth edition of the A.M.A., Guides
provides a diagnosis-based method of evaluation utilizing the World Health Organization’s
International Classification of Functioning, Disability and Health (ICF).6 Under the sixth
edition, the evaluator identifies the impairment class for the diagnosed condition (CDX), which
is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.7 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9
ANALYSIS
OWCP accepted appellant’s claim for left shoulder sprain. By decision dated
February 20, 2013, it granted her a schedule award for a six percent left arm permanent
impairment, based on Dr. Krohn’s opinion. The Board finds that OWCP properly relied upon
Dr. Krohn’s opinion to find that appellant had a six percent left upper extremity impairment.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

Id. at pp. 383-419.

8

Id. at 411.

9

Tommy R. Martin, 56 ECAB 273 (2005).

3

In reports dated January 12 and April 23, 2012, Dr. Bienkowski, a treating Boardcertified orthopedic surgeon, concluded that appellant had a 25 percent impairment of her left
arm. He cited to “the generic table” Table 1-5, in finding a moderate or class 2 impairment due
to appellant’s shoulder tendinitis and impingement of the long thoracic nerve palsy.
Dr. Bienkowski then related generally that his impairment rating was based on Table 15-2, Table
15-5, Table 15-7 and Table 16-4. The Board notes that he failed to explain how he arrived at the
impairment rating using the tables he specified. There is no explanation as to how
Dr. Bienkowski diagnosed the impairment, the grade of the impairment, how he determined the
grade modifiers or how the grade modifier were applied in reaching the final impairment. It is
well established that, when the attending physician fails to provide an estimate of impairment
conforming to the A.M.A., Guides, his opinion is of diminished probative value. OWCP may
rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings of the
attending physician.10
On November 5 and 12, 2012 Dr. Krohn reviewed Dr. Bienkowski’s reports and found
that appellant had six percent left upper extremity impairment under the sixth edition of the
A.M.A., Guides. Under Table 15-5, page 403, he properly classified appellant’s condition as a
grade C based on her left shoulder clinical findings. Dr. Krohn found that at Table 15-7, page
406, GMFH was zero. The GMPE at Table 15-8, page 408 was one. The GMCS at Table 15-9,
page 410 was zero. Pursuant to the formula set forth at Table 15-21, page 411, Dr. Krohn added
the grade modifiers which resulted in grade D or four percent left upper extremity impairment.
Citing to Table 15-21, page 437, he assigned a class 1 to appellant’s long thoracic nerve which
corresponded to a grade C or two percent left upper extremity impairment. Dr. Krohn found that
the GMFH at Table 15-7, page 406 was zero. The GMPE at Table 15-8, page 408 was also zero.
The GMCS at Table 15-9, page 410. Dr. Krohn combined the four percent impairment for left
shoulder tendinitis with the two percent impairment for long thoracic nerve palsy, using the
Combined Values Chart at page 604. This resulted in a six percent left upper extremity
impairment. Dr. Krohn provided the only impairment rating of record in accordance with the
applicable protocols and tables. OWCP properly granted a schedule award for a six percent left
upper extremity in its February 20, 2013 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment
CONCLUSION
The Board finds that appellant has not established that she is entitled to a greater than six
percent permanent impairment, for which she received a schedule award.

10

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010); Linda Beale, 57 ECAB 429 (2006).

4

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

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 08-1173
Issued: October 3, 2008

Case Submitted on the Record

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

JURISDICTION
On March 12, 2008 appellant filed a timely appeal from an October 3, 2007 decision of
the Office of Workers’ Compensation Programs, adjudicating his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of his
right upper extremity.
FACTUAL HISTORY
On June 16, 2003 appellant, then a 38-year-old letter carrier, filed an occupational disease
claim alleging that he developed right carpal tunnel syndrome and trigger finger of his middle
and little fingers due to the repetitive motions involved in his job. The Office accepted his claim
for right carpal tunnel syndrome and trigger finger of the third and fifth fingers of his right hand.
On June 17, 2004 appellant underwent surgery consisting of a right carpal tunnel release and

trigger releases of the right middle and little finger. He subsequently filed a claim for a schedule
award.
In notes dated September 27, 2002, Dr. Gary M. Pess, an attending Board-certified
orthopedic surgeon specializing in hand surgery, stated that appellant was experiencing pain,
locking, clicking, numbness and tingling in his right hand. Findings on physical examination
included tenderness over the middle and little finger A1 pulleys with gross locking and clicking.
There was a positive Tinel’s sign over the carpal tunnel and decreased sensation in the median
nerve distribution. Dr. Pess diagnosed right middle and little fingers trigger fingers and possible
right carpal tunnel syndrome.
In an October 2, 2002 nerve conduction study and electromyography (EMG) report,
Dr. Alan D. Deutsch, a Board-certified neurologist and psychiatrist, noted the following test
results: mild prolongation of right median sensory nerve distal latency with slowing of sensory
nerve velocity across the wrist to palm segment, normal right median motor nerve conduction
studies, normal right ulnar sensory and motor nerve conduction studies and normal EMG
examination of selected muscles of the right upper extremity. He diagnosed mild right carpal
tunnel syndrome.
On May 20, 2005 Dr. Pess indicated that appellant’s condition was improving following
his June 17, 2004 surgery but he still had some residual discomfort, swelling and stiffness.
However, he had reached a point of maximum medical improvement.
In an August 15, 2005 report, Dr. David Weiss, an osteopath, specializing in orthopedic
medicine, reviewed appellant’s medical history and provided findings on physical examination.
He stated that he had daily right wrist pain, described as a 4 on a 0 to 10 scale, and stiffness.
Appellant did not have any numbness, tingling or swelling in his right wrist. He had no locking
sensation in his right hand middle and little fingers. Appellant experienced difficulty with
grasping objects, pulling and pushing and had decreased grip strength. Dr. Weiss diagnosed
cumulative and repetitive trauma disorder, right carpal tunnel syndrome, stenosing tenosynovitis
to the right middle and little finger, status post right endoscopic carpal tunnel release and status
post release of the A-1 pulley of the middle and little finger of the right hand. He stated:
“Examination of the right hand and wrist reveals … no thenar or hypothenar
atrophy. Fist presentation is normal to the distal palmar crease. Range of motion
reveals dorsiflexion [extension] of … 75 degrees, palmar flexion of … 75
degrees, radial deviation of … 20 degrees and ulnar deviation of … 35 degrees.
The Tinel[’s] sign is positive. The one-minute Phalen[’s] sign is negative. Carpal
compression test is positive. Resistive thumb abduction is graded at 5/5. There is
no tenderness noted over the A-1 pulley in the long or little finger. There is no
trigger phenomena in either the long or little fingers.
“Grip strength testing performed via Jamar Hand Dynamometer at Level III
reveals 20 kg [kilograms] of force strength on the right versus 38 kg of force
strength on the left. This equates out to a strength deficit index of 47 percent to
the right hand.

2

“Pinch key testing reveals 7 kg in the right hand versus 10 kg in the left hand.
“Semmes-Weinstein Monofilament testing reveals a diminished light touch
sensibility at 2.83 mgs [milligrams] over the median nerve distribution on the
right hand.”
***
“The following is a rating of [appellant’s] impairment on the basis of [the
American Medical Association, Guides to the Evaluation of Permanent
Impairment Fifth Edition:
“Right lateral pinch deficit = 10 percent, Table 16-34, [page] 509
“Grade 4 sensory deficit right median nerve = 10 percent, Table 16-10, [page] 482
[and] Table 16-15, [page] 492
“Total combined right upper extremity [impairment] 19 percent
“[F]rom this examiner’s viewpoint, [appellant] reached maximum medical
improvement on August 15, 2005.”
On October 28, 2005 Dr. Pess stated that he had reviewed the report of Dr. Weiss and
agreed that appellant had a 19 percent impairment of his right upper extremity.
On January 26, 2007 the Office asked Dr. Morley Slutsky, a Board-certified specialist in
preventive medicine and a district medical adviser, to review the report of Dr. Weiss and
determine appellant’s impairment. On January 31, 2007 Dr. Slutsky stated that appellant had a
10 percent impairment of the right upper extremity based on the report of Dr. Weiss. He stated:
“[Appellant] was noted to have a normal strength exam[ination] in the upper
extremity and in particular in the median nerve distribution in 2002 (before
corrective endoscopic carpal tunnel release had been performed). Dr. Weiss also
found the same result[;] he noted that [appellant’s] [r]esistive thumb abduction
(controlled by the median nerve) is graded at 5/5. This was consistent with
[appellant’s] EMG/NCV [electromyography/nerve conduction velocity] test
which showed, ‘normal right median motor nerve conduction studies.’ In
addition to this, Dr. Weiss incorrectly rated impairment [due] to carpal tunnel
syndrome using lateral pinch strength deficits. Median nerve motor dysfunction
is supposed to be rated using Table 16-11, page 484, not using lateral grip
strength deficits[,] per The Carpal Tunnel Section, page 495. Based upon this
discussion of normal median nerve clinical findings and EMG testing, coupled
with an incorrect rating by Dr. Weiss, I do not feel there is any impairment rating
for median nerve motor dysfunction. Therefore the final median nerve rating will
be based upon the clinical sensory dysfunction per [p]age 495….
“The following rating calculations are performed according to The [A.M.A.,
Guides] 5th Edition.

3

“RIGHT MEDIAN NERVE IMPAIRMENT[:]
UEI [Upper Extremity
Impairment] Due to Sensory/Pain Deficit -- Median Nerve. Grade median nerve
sensory deficit using Table 16-10, page 482. I agree with Grade 4 which
corresponds to 25 percent deficit. Maximum UEI due to Sensory Deficit Median
Nerve-Using Table 16-15, page 492. Maximum Sensory Deficit for Median
Nerve below mid forearm equals 39 percent UEI. Total Sensory Median Nerve
Impairment. Grade Deficit 25 percent [times] Maximum UEI for Median Nerve
Sensory Deficit 39 percent = 9.75 percent UEI = 10 percent UEI.”
By decision dated February 15, 2007, the Office granted appellant a schedule award for
10 percent impairment of his right upper extremity from August 15, 2005 to March 21, 2006, or
31.20 weeks.1
Appellant requested an oral hearing that was held on July 18, 2007. By decision dated
October 3, 2007, the Office denied appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
Section 8107 of the Act2 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified edition of the A.M.A., Guides.3
The fifth edition of the A.M.A., Guides, regarding impairment due to carpal tunnel
syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an

1

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 10 percent equals 31.20 weeks of
compensation.
2
3

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

4

impairment rating not to exceed five percent of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”4
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.5
ANALYSIS
In this case, Dr. Weiss found that the first carpal tunnel scenario applied to appellant’s
condition. He found that he had a sensory deficit in his right upper extremity causally related to
his accepted right carpal tunnel syndrome. Using the fifth edition of the A.M.A., Guides,
Dr. Weiss rated appellant’s sensory deficit as Grade 4, 25 percent, and multiplied this by the
maximum median nerve sensory impairment, at the midforearm, 39 percent,6 which resulted in
9.75 percent impairment, rounded to 10 percent, for sensory deficit impairment. Dr. Weiss
combined the 10 percent sensory deficit with 10 percent for lateral pinch deficit, based on Table
16-34 at page 509 of the A.M.A., Guides, resulting in a 19 percent combined impairment of the
right upper extremity, according to the Combined Values Chart at page 604 of the A.M.A.,
Guides.
Dr. Slutsky agreed with Dr. Weiss that appellant had a 10 percent impairment of the right
upper extremity for sensory deficit, based on Table 16-10 at page 482 and Table 16-15 at page
492 of the fifth edition of the A.M.A., Guides. He noted that Dr. Weiss also found that appellant
had a 10 percent impairment due to lateral pinch strength deficits based on Table 16-34 at page
509 of the A.M.A., Guides. However, motor deficit due to carpal tunnel syndrome is rated using
the same procedures at page 495 as for rating sensory deficit. Further, the A.M.A., Guides
provides that, “In compression neuropathies, additional impairment values are not given for
decreased grip strength.7 The medical evidence does not support a motor deficit in appellant’s
right upper extremity. As noted, in 2002, prior to his right carpal tunnel release, Dr. Deutsch
stated that electrodiagnostic testing revealed a normal right upper extremity median motor nerve.
Although Dr. Weiss found that appellant experienced difficulty with grasping objects, pulling
and pushing and decreased grip strength, he did not provide any objective test results to support
these findings. In light of the fact that objective testing revealed a normal median motor nerve in
2002 and there are no tests showing a change in the motor nerve, right upper extremity
impairment due to motor deficit is not established.

4

A.M.A., Guides 495.

5

Kimberly M. Held, 56 ECAB 670 (2005).

6

Table 16-15 provides for a maximum impairment of 39 percent for sensory deficit of the median nerve
regardless of whether the area involved is below or above the midforearm. A.M.A., Guides 492, Table 16-15.
7

A.M.A., Guides 494.

5

Accordingly, Dr. Slutsky’s determination that appellant had a 10 percent impairment of
his right upper extremity due to sensory deficit of the median nerve is consistent with the A.M.A,
Guides and Dr. Weiss’ findings on physical examination. The Board finds that the weight of the
medical evidence establishes that appellant has no more than a 10 percent impairment of his right
upper extremity causally related to his accepted right carpal tunnel syndrome.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of his right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 3, 2007 is affirmed.
Issued: October 3, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Faxon, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-966
Issued: November 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 10, 2011 appellant, through his representative, filed a timely appeal from the
September 17, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which increased his schedule award. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 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 has more than a 13 percent impairment of his right arm
and a 10 percent impairment of his left arm, for which he received schedule awards.
FACTUAL HISTORY
On February 7, 2003 appellant, a 53-year-old rural letter carrier, filed an occupational
disease claim for compensation benefits alleging that his bilateral carpal tunnel syndrome was a
1

5 U.S.C. § 8101 et seq.

result of casing mail and driving his route. OWCP accepted his claim for bilateral carpal tunnel
syndrome and left ulnar nerve lesion.
Appellant received a schedule award for an 11 percent impairment of his right upper
extremity. An OWCP hearing representative set aside the award, however, because the findings
on examination differed significantly between appellant’s evaluating family physician,
Dr. John W. Ellis, and the second-opinion physician, Dr. Michael Shawn Smith, a physiatrist.
The hearing representative declared a conflict and remanded the case for further development of
the evidence. OWCP referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Joel Frazier, a Board-certified orthopedic surgeon, to resolve the conflict
and evaluate appellant’s impairment under the recently adopted sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.2
Dr. Frazier described his findings on physical examination and the results of a current
electrodiagnostic study. He diagnosed bilateral carpal, cubital and ulnar tunnel syndrome; failed
right carpal tunnel release and left carpal tunnel and ulnar nerve release at the elbow with
persistent neuropathy, denervation and atrophy of both hands; and left flexor tenosynovitis with
locking trigger finger. Dr. Frazier found that appellant was not permanent and stationary and
had not reached maximum medical improvement.
OWCP denied appellant’s schedule award claim.
Appellant’s attending osteopathic surgeon, Dr. J.D. Duncan, found maximum medical
improvement. He used the fifth edition of the A.M.A., Guides to find a 45 percent impairment of
the right upper extremity due to carpal tunnel syndrome, a 39 percent impairment of the left
upper extremity due to carpal tunnel syndrome and a 7 percent impairment of the left upper
extremity due to left ulnar sensory deficits.
On May 5, 2010 Dr. Frazier reevaluated appellant’s impairment and found an 18 percent
impairment of the right upper extremity and a 15 percent impairment of the left upper extremity
based on range of motion and entrapment compression. He used the sixth edition of the A.M.A.,
Guides. An OWCP medical adviser noted, however, that Dr. Frazier did not describe the
abnormality adequately enough to permit review and did not specify which nerves were involved
in the compression neuropathies.
OWCP determined a second impartial medical specialist was warranted because
Dr. Frazier’s most recent report was still insufficient to resolve matters. It referred appellant,
together with the medical record and a statement of accepted facts, to Dr. Andrew Olshen, a
Board-certified physiatrist.
Dr. Olshen reviewed appellant’s medical record and related his history. He described his
findings on physical examination and diagnosed right carpal tunnel syndrome, left carpal tunnel
syndrome and left ulnar neuropathy characterized by axonal loss. Dr. Olshen found that
appellant, who was more than a year post his most recent surgery, had reached maximum
medical improvement.
2

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

2

Using Table 15-23, page 449 of the sixth edition of the A.M.A., Guides, Dr. Olshen
determined that appellant’s left ulnar neuropathy was grade 3 or severe: Test findings showed
axon loss, history showed constant symptoms, and physical findings showed atrophy. The
default impairment value for a grade 3 or severe neuropathy was eight percent, but Dr. Olshen
modified the default value to seven percent because appellant’s functional QuickDASH score of
23 was mild.
Dr. Olshen found that appellant’s left carpal tunnel neuropathy was grade 2 or moderate:
test findings showed a motor conduction block, history showed constant symptoms and physical
findings showed decreased sensation. The default impairment value for a grade 2 neuropathy
was five percent. Dr. Olshen did not modify the default value. Because the nerve qualifying for
the larger impairment is given the full impairment, while the nerve qualifying for the smaller
impairment is rated at half the impairment listed, Dr. Olshen determined that appellant had a 10
percent impairment of the left upper extremity (7 percent plus half of 5 percent).
Finally, Dr. Olshen found that appellant’s right carpal tunnel neuropathy was grade 3 or
severe: as with the left ulnar nerve, test findings showed axon loss, history showed constant
symptoms and physical findings showed atrophy. The default impairment value for a grade 3 or
severe neuropathy was eight percent; appellant’s QuickDASH score was 43, or moderate.
Dr. Olshen increased the default value to a final impairment rating of nine percent.
An OWCP medical adviser accepted Dr. Olshen’s ratings. He explained that because
appellant previously received an 11 percent award for loss of right wrist motion (4 percent) and
right median nerve loss (7 percent), the previous median nerve loss should be subtracted from the
current nerve loss, entitling appellant to an additional 2 percent.
On September 17, 2010 OWCP issued a schedule award for a 10 percent impairment of
appellant’s left upper extremity and a 13 percent impairment of his right (less the previously paid
11 percent for an additional impairment of 2 percent).
On appeal, appellant argues that his claim should have been settled under the fifth edition
of the A.M.A., Guides, as two evaluations were performed before the rules were changed. He
also believes there was no good medical reason not to accept Dr. Frazier’s May 5, 2010 medical
opinion on the impairment of his left upper extremity. Appellant noted that those who gave him
a higher rating spent more time with him. He asks the Board to review whether OWCP handled
his claim properly and did not shop around for a lower rating.
LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body.3 Such loss or loss of use is known as

3

5 U.S.C. § 8107.

3

permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative or lacks rationale, OWCP must submit the case record together with a
detailed statement of accepted facts to a second impartial specialist for a rationalized medical
opinion on the issue in question.7 Unless this procedure is carried out by OWCP, the intent of
section 8123(a) of FECA will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence.8
ANALYSIS
A conflict in medical opinion arose when appellant’s physician, Dr. Ellis, and OWCP’s
referral physician, Dr. Smith, reported significantly different findings on examination. This led
to a significant discrepancy in appellant’s impairment rating. To resolve this conflict, OWCP
properly referred appellant to Dr. Frazier for an impartial or referee medical evaluation.
Dr. Frazier, however, found that it was premature to evaluate appellant’s permanent
impairment because he had not yet reached maximum medical improvement.9 Because Dr. Ellis
and Dr. Smith agreed that appellant had reached maximum medical improvement, Dr. Frazier’s
4

20 C.F.R. § 10.404. As of May 1, 2009, any decision regarding a schedule award must be based on the sixth
edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
5

5 U.S.C. § 8123(a).

6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

7

See Nathan L. Harrell, 41 ECAB 402 (1990).

8

Harold Travis, 30 ECAB 1071 (1979).

9

Impairment should not be considered permanent until the clinical findings indicate that the medical condition is
static and well stabilized. See Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable until maximum
improvement -- meaning that the physical condition of the injured member of the body has stabilized and will not
improve further -- has been reached).

4

opinion created a second conflict, one that warranted referral to a second impartial medical
specialist.
Dr. Duncan, the attending osteopathic surgeon, reinforced the conflict by joining Dr. Ellis
in finding maximum medical improvement. His opinion on appellant’s impairment, however,
was entitled to little weight because he based it on the outdated fifth edition of the A.M.A.,
Guides. Dr. Frazier returned with a rating under the sixth edition, but his opinion was also
entitled to little weight. He incorrectly combined impairment for loss of motion with impairment
due to entrapment or compression neuropathy. The A.M.A., Guides explains that diagnosisbased impairment is the method of choice for calculating impairment, while range of motion is
used principally as an adjustment factor. When other grids refer the evaluator to the range of
motion section, or when no other diagnosis-based system is applicable, range of motion
impairment serves as a stand-alone rating, one that cannot be combined with a diagnosis-based
estimate, such as impairment due to entrapment or compression neuropathy.10 By giving a
rating, Dr. Frazier implied that appellant had reached maximum medical improvement, but he
did not make an explicit finding, and he did not explain any change of opinion. Because
Dr. Frazier’s second report did not resolve the extent of appellant’s permanent impairment and
because a conflict still existed on the issue of maximum medical improvement, OWCP properly
referred appellant to a second impartial medical specialist, Dr. Olshen.11
OWCP provided Dr. Olshen with a copy of appellant’s medical record and a statement of
accepted facts so he could base his opinion on a proper medical and factual history. Dr. Olshen
found that appellant had reached maximum medical improvement, as he was more than a year
post his most recent surgery.12 He described his findings on examination and applied the sixth
edition of A.M.A., Guides. The Board therefore finds that his findings are entitled to special
weight in resolving the extent of appellant’s impairment.
Dr. Olshen correctly used Table 15-23, on page 449 of the A.M.A., Guides, to rate
impairment due to entrapment or compression neuropathies. Test findings, history and physical
findings confirmed a severe left ulnar neuropathy with a default impairment value of eight
percent. Dr. Olshen correctly modified the default value to seven percent to reflect appellant’s
QuickDASH score, which showed only a mild functional loss.
For the left median neuropathy, Dr. Olshen followed the same procedure but misapplied
the QuickDASH score. Appellant’s left wrist condition was moderate; the default impairment
rating was five percent. His QuickDASH score again showed only a mild functional loss;
therefore, the default value should be modified to four percent. Dr. Olshen incorrectly left the
default value unchanged at five percent, which would have the effect of inflating the final
impairment rating by one percent.
10

A.M.A., Guides 461.

11

See April Ann Erickson, 28 ECAB 336 (1977).

12

The A.M.A., Guides provide that postoperatively, a sufficient amount of time for optimal physiologic recovery
and rehabilitation should have elapsed before an individual is considered to be at maximum medical improvement
and to qualify for a permanent impairment rating. Lesions at the wrist may take six to nine months for maximal
recovery of nerve function, and more proximal focal axon loss lesions may take one to two years. Id. at 447.

5

In cases of multiple, concurrent focal nerve compromise syndromes in the same upper
extremity, such as an ulnar and median neuropathy, the nerve qualifying for the larger
impairment is given the full impairment. The nerve qualifying for the smaller impairment is
given half the impairment listed in Table 15-23. The impairments are then combined.13
Following this procedure, appellant’s larger (ulnar) impairment remains seven percent. His
smaller (median) impairment is given half its value, or two percent. These combine for a final
left upper extremity impairment rating of nine percent.14 The Board will modify OWCP’s
September 17, 2010 decision to reflect this proper application of the A.M.A., Guides.
Dr. Olshen made a similar error when he rated appellant’s right median neuropathy. The
neuropathy was severe, with a default impairment value of eight percent. The QuickDASH score
of 43 showed a moderate functional loss, which lowers the default value to seven percent.
Dr. Olshen incorrectly raised the default value to nine percent. Because appellant previously
received a schedule award for an 11 percent total impairment of his right upper extremity, he is
not entitled to additional compensation for that extremity. The Board will modify OWCP’s
September 17, 2010 decision to reflect a 7 percent total impairment of the right upper extremity.
Appellant argues that OWCP should have settled his claim under the fifth edition, but
there was such a discrepancy in the first two ratings he received under the fifth edition that the
issue remained unresolved. Neither Dr. Ellis nor Dr. Smith established his entitlement under the
fifth edition. When OWCP referred the matter to Dr. Frazier for resolution of the conflict, the
fifth edition was out of use. As of May 1, 2009, any decision regarding a schedule award had to
be based on the new sixth edition. Dr. Frazier applied the sixth edition in his May 5, 2010
report, but as the Board noted earlier, he incorrectly combined range of motion with a diagnosisbased estimate, and he did not explain why appellant was now at maximum medical
improvement. Further, Dr. Frazier found only a six percent impairment of the left upper
extremity due to entrapment or compression neuropathy, which was less than the impairment
found by Dr. Olshen. His rating, therefore, would not have been advantageous for appellant.
The Board has carefully reviewed this claim and finds no evidence that OWCP referred
him to Dr. Frazier to “shop around” for a lower rating. FECA requires an impartial or referee
medical specialist to resolve medical conflicts. OWCP properly referred appellant to Dr. Olshen
because a second impartial medical specialist is necessary when the first is unable to resolve the
matter satisfactorily.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a seven percent impairment of his right arm and a nine
percent impairment of his left arm. Dr. Olshen’s opinion is entitled to special weight, although
13

Id. at 448.

14

Id. at 604 (Combined Values Chart).

6

his use of the QuickDASH scores to modify default impairment values must be corrected to
comply with the A.M.A., Guides.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: November 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7