United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.J., Appellant 

and 

DEPARTMENT OF THE NAVY, SYSTEMS 

CENTER, North Charleston, SC, Employer 

__________________________________________ 

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Docket No. 14-528 

Issued: October 16, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 3, 2014 appellant, through counsel, filed a timely appeal from a September 6, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act1

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

Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant has an employment-related permanent impairment 

entitling him to a schedule award. 

FACTUAL HISTORY 

On May 15, 2000 appellant, then a 35-year-old accounting technician, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a low back injury on May 5, 2000 in the 

performance of duty. She alleged that she fell backward while attempting to sit in a chair. 

 1

 5 U.S.C. § 8101 et seq. 
2

OWCP accepted sprains of the neck, thoracic spine, right elbow, wrist and forearm and lumbar 

intervertebral disc displacement. 

Appellant submitted a claim for compensation (CA-7) on April 12, 2012 indicating he 

was claiming a schedule award. In a report dated April 2, 2012, Dr. Mark Netherton, a Boardcertified anesthesiologist, opined that, under the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment, appellant had a 31 percent 

whole body impairment based on lumbar radiculopathy and chronic pain syndrome. 

In an addendum report dated April 18, 2012, Dr. Netherton stated that, based on the sixth 

edition of the A.M.A., Guides, appellant had a 20 percent lower extremity impairment. 

Dr. Netherton assigned a class II impairment of the lower extremities after lumbar surgery and 

mild sensory and motor deficits from the L4-5 nerve root. By report dated May 16, 2012, an 

OWCP medical adviser opined that appellant did not have a ratable permanent impairment to 

either lower extremity. The medical adviser stated there was no objective evidence to support 

motor or sensory deficit. 

By decision dated May 21, 2012, OWCP determined that appellant was not entitled to a 

schedule award. It found the medical evidence did not establish entitlement to a schedule award. 

In a letter dated August 15, 2013, appellant’s representative found that the April 18, 2012 

report from Dr. Netherton did provide an opinion under the sixth edition of the A.M.A., Guides. 

Appellant inquired as to why this evidence was not sufficient to establish the claim for a 

schedule award. 

By report dated August 21, 2013, an OWCP medical adviser opined there was no 

evidence of a lower extremity impairment. The medical adviser indicated that The Guides

Newsletter must be used to determine a nerve impairment. 

By decision dated September 6, 2013, OWCP stated that the report of Dr. Netherton “was 

reviewed and an impairment rating was assessed.” It indicated that the report of the medical 

adviser was enclosed. 

LEGAL PRECEDENT 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.2

 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

 2

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 
3

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.4

 

ANALYSIS 

In the present case, appellant had requested reconsideration of the May 21, 2012 OWCP 

decision determining that appellant was not entitled to a schedule award based on the medical 

evidence.5

 She noted that Dr. Netherton had provided an opinion in his April 18, 2012 report 

under the sixth edition of the A.M.A., Guides. The September 6, 2013 decision does not make 

any findings on the issues presented. It stated only that “the report” of Dr. Netherton was 

reviewed and a copy of an OWCP medical adviser’s report was enclosed. 

It is a well-established principle that OWCP must make findings of fact and offer a 

statement of reasons in its final decisions.6 The September 6, 2013 decision does not make 

findings of fact or offer a statement of reasons. The decision appears to make a determination 

that the medical evidence is not sufficient to establish a schedule award, without discussing the 

medical evidence. If OWCP is finding that the weight of the evidence is represented by a report 

or reports of OWCP medical advisers, then it should discuss the reports and explain its finding 

that appellant is not entitled to a schedule award in this case. Dr. Netherton in his April 18, 2012 

report found that appellant had a nerve root injury at the L4-5 level which caused sensory and 

motor deficits and lower extremity impairment, pursuant to the A.M.A., Guides. OWCP has not 

explained why this evidence is not sufficient to support a schedule award. 

The case will be remanded to OWCP for a proper decision with findings of fact and a 

statement of reasons with respect to the issue presented. After such development as OWCP 

deems necessary, it should issue an appropriate decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP to issue 

a proper decision in accord with its regulations and Board precedent. 

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

4

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

5

 Even if the term reconsideration is not used, a written letter may properly be considered an application for 

reconsideration. See R.C., Docket No. 13-450 (issued April 26, 2013). 

6 Z.B., Docket No. 12-1164 (issued December 14, 2012); Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. 

§ 10.126.
4

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 6, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: October 16, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board