United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.M., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 13-2075 

Issued: March 5, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 11, 2013 appellant, through his attorney, filed a timely appeal from a 

June 26, 2013 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of the decision. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he has a 

permanent impairment of the left lower extremity due to the accepted low back conditions. 

On appeal, appellant’s attorney asserts that, at the very least, a conflict in medical 

evidence has been created and referral for an impartial evaluation is warranted. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On May 17, 2011 appellant, then a 50-year-old city carrier, filed a traumatic injury claim 

alleging that he injured his middle back when exiting his postal vehicle on May 12, 2011. He 

stopped work on May 16, 2011. A May 30, 2011 magnetic resonance imaging (MRI) scan study 

of the lumbar spine demonstrated disc bulging and facet arthritis at L4-5 and L5-S1. Appellant 

returned to full duty on August 24, 2011. 

In a September 21, 2011 decision, an OWCP hearing representative reversed a July 1, 

2011 decision that denied appellant’s claim and directed OWCP to accept left sciatica and left L5 

radiculopathy. OWCP accepted these conditions on November 10, 2011. An August 29, 2012 

lower extremity electrodiagnostic study was abnormal, demonstrating left L5-S1 radiculopathy. 

In an October 10, 2012 progress note, Dr. Jeremy I. Simon, a Board-certified physiatrist, who is 

also Board-certified in pain medicine, noted seeing appellant in follow up for his employment 

injury. Physical examination demonstrated 5/5 lower limb strength and intact sensation in the 

lower extremity dermatomes. 

On November 30, 2012 appellant claimed a schedule award and submitted an August 21, 

2012 report, updated on October 15, 2012, in which Dr. David Weiss, an osteopath, reported his 

review of the medical record including MRI scan and electrodiagnostic studies, appellant’s 

history, and his complaint of daily lumbar pain radiating to the left leg with numbness and 

tingling. Dr. Weiss noted that appellant was a letter carrier who had modified his daily living 

activities due to the work injury. An August 21, 2012 examination showed a slightly antalgic 

gait and no tenderness to palpation of the lumbar spine. Sitting root sign and straight leg raising 

were negative. Leg strength was 5/5, and sensory examination revealed diminished light touch at 

L4, L5 and S1. Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and sprain, 

bulging lumbar disc at L4-5, aggravation of preexisting age-related lumbar degenerative disc 

disease, left lumbar radiculopathy, and status post interventional pain management with lumbar 

epidural blocks. He rated impairment under the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2

stating that it was based on the history provided by appellant, his examination, his employment 

duties and a medical records review. Under Proposed Table 2, found in the July/August A.M.A., 

Guides Newsletter, appellant had a class 1 moderate sensory impairment of the left L4 nerve root 

for three percent impairment. Dr. Weiss found net adjustment scores of two for functional 

history and one for clinical studies which, after applying the net adjustment formula, yielded a 

net adjustment of one for a final left lower extremity impairment of four percent due to a 

moderate sensory impairment of the L4 nerve root. He repeated his impairment evaluation for 

the left L5 nerve root, finding a class 1 impairment of three percent with modifiers of two each 

for functional history and clinical studies, which yielded a net adjustment of two, for a total five 

percent left lower extremity impairment due to an L5 moderate sensory impairment. Dr. Weiss 

then evaluated the S1 nerve root, finding a severe sensory deficit for a four percent impairment 

with modifiers of two each for functional history and clinical studies with a net adjustment of 

two, for a total four percent impairment for an S1 severe sensory impairment. He combined the 

impairment values for L4, L5 and S1, finding a total left leg impairment of 13 percent. 

 2

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

By report dated November 29, 2012, Dr. Morley Slutsky, an OWCP medical adviser 

Board-certified in occupational medicine, noted his review of the record including Dr. Weiss’ 

report. He advised that there was no basis for a lower extremity rating related to the accepted 

lumbar condition, indicating that Dr. Simon found intact lower extremity sensation and strength 

on October 10, 2012. Dr. Slutsky observed that Dr. Weiss, who found moderate sensory deficits 

at L4 and L5 dermatomes and a severe sensory deficit in the left S1 dermatome, only tested for 

light touch. He advised that, in accordance with Table 16-11 of the A.M.A., Guides, sensory 

loss testing must include light touch testing, sharp/dull discrimination testing, and protective 

sensation, and, thus, Dr. Weiss’ examination did not comport with the A.M.A., Guides. 

Dr. Slutsky concluded that, as there was no impairment rating that properly evaluated appellant’s 

left lower extremity in accordance with the A.M.A., Guides, appellant had not established 

entitlement to a schedule award. 

By decision dated December 26, 2012, OWCP denied appellant’s claim for a schedule 

award on the grounds that the medical evidence did not demonstrate a measurable impairment. 

Appellant, through his attorney, timely requested a hearing, that was held on April 11, 2013. He 

described the May 12, 2011 work injury and his symptoms of radiating left lower extremity pain 

with numbness, sharp tingling and some weakness. Appellant testified that he was working 

modified duty at the time of the injury and, after his return to work on August 24, 2011, has 

continued to work modified duty. His attorney argued that he should be referred for a secondopinion evaluation or that a conflict in medical evidence had been created. 

In a decision dated June 26, 2013, an OWCP hearing representative found that the weight 

of the medical evidence rested with the opinion of Dr. Slutsky finding that Dr. Weiss did not 

support his sensory findings in accordance with the methodology found in the A.M.A., Guides. 

LEGAL PRECEDENT 

The schedule award provision of FECA,3

 and its implementing federal regulations,4 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5

 For decisions after 

February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.6

 

For decisions issued after May 1, 2009, the sixth edition is to be used.7

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. at 10.404(a). 

6

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 

(January 2010). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 
4

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator 

identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by 

grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and 

Clinical Studies (GMCS).9

 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + 

(GMCS-CDX).10 Under Chapter 2.3, evaluators are directed to provide reasons for their 

impairment rating choices, including choices of diagnoses from regional grids and calculations 

of modifier scores.11

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.12 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether 

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.13

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.14 OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables outlined in a JulyAugust 2009 The Guides Newsletter.

15 

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish that he has a 

ratable impairment of the left lower extremity. OWCP accepted that he sustained left sciatica 

and left L5 radiculopathy and appellant filed a schedule award claim. The Board finds that the 

weight of the medical evidence rests with the opinion of Dr. Slutsky, an OWCP medical adviser, 

 8

 A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.” 

9 Id. at 494-531. 

10 Id. at 521. 

11 Id. at 23-28. 

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

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

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

15 FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 6 at Chapter 3.700, Exhibit 1, n.5 

(January 2010); The Guides Newsletter is included as Exhibit 4. 
5

who explained why Dr. Weiss’ impairment evaluation did not comport with the sixth edition of 

the A.M.A., Guides. 

In his November 29, 2012 report, Dr. Slutsky described an October 10, 2012 report in 

which Dr. Simon, an attending physiatrist, advised that appellant had intact sensation in the 

lower extremity dermatomes. He indicated that the impairment evaluation done by Dr. Weiss, an 

attending osteopath, did not comport with the A.M.A., Guides because the A.M.A., Guides

provided that sensory loss testing must include light touch testing, sharp/dull discrimination 

testing and protective sensation. 

In his October 15, 2012 report, based on physical examination done on August 21, 2012, 

Dr. Weiss advised that appellant had diminished light touch sensation on the left at L4, L5 and 

S1 which demonstrated sensory impairments of 4 percent, 5 percent and 4 percent respectively, 

for a total 13 percent left lower extremity. 

Section 16.4a of the sixth edition of the A.M.A., Guides, provides that sensory deficit 

testing must include light touch testing, sharp/dull discrimination testing and describes the 

methodology to be used in interpreting sensory deficits.16 The burden is upon the employee to 

establish that he or she is entitled to schedule award compensation.17 When the examining 

physician does not provide an estimate of impairment that conforms to the A.M.A., Guides, 

OWCP may rely on the impairment rating provided by an OWCP medical adviser.18 As 

Dr. Weiss did not indicate that he tested sharp/dull discrimination, his evaluation does not 

comport with the A.M.A., Guides and is insufficient to establish entitlement to a schedule award. 

Therefore, appellant’s arguments on appeal are without merit. 

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 did not establish that he has a permanent impairment of 

the left lower extremity due to the accepted low back conditions. 

 16 A.M.A., Guides, supra note 2 at 532. 

17 D.H., 58 ECAB 358 (2007). 

18 J.Q., 59 ECAB 366 (2008). 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 5, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board