United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.L., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

BUREAU OF LAND MANAGEMENT, 

Roseburg, OR, Employer 

__________________________________________ 

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Docket No. 14-364 

Issued: February 27, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Miriam D. Ozur, Esq., for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On December 6, 2013 appellant, through counsel, filed a timely appeal from the 

October 28, 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 met his burden of proof to establish more than 13 percent 

permanent impairment of his left and right legs, for which he received schedule awards. 

FACTUAL HISTORY 

OWCP accepted that on July 20, 2004 appellant, then a 46-year-old laborer, was injured 

when he sustained a fall from 10 feet after climbing over a log. It accepted that he sustained 

 1

 5 U.S.C. §§ 8101-8193. 
2

aggravation of spondylolisthesis, and later expanded the claim to include lumbosacral 

radiculopathy of both legs, chronic pain syndrome and reaction to spinal or lumbar puncture. On 

June 22, 2005 appellant underwent L5-S1 fusion surgery which was authorized by OWCP.2 

In a June 25, 2010 report, Dr. Annette Weller, an attending Board-certified physiatrist 

determined that appellant had 13 percent impairment of his whole person under Table 17-4 

through Table 17-9 of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (6th ed. 2009). 

On October 21, 2010 Dr. Morley Slutsky, a Board-certified preventive medicine 

physician serving as an OWCP medical adviser, stated that Dr. Weller’s rating was improper as 

it was based on whole person impairment. He calculated that appellant had 13 percent 

permanent impairment of his left leg and 13 percent permanent impairment of his right leg due to 

sensory loss associated with the sciatic nerve distributions to each leg. Dr. Slutsky applied the 

standards of Table 16-11 and Table 16-12 of the sixth edition of the A.M.A., Guides.3

In a February 8, 2011 decision, OWCP granted appellant schedule awards for 13 percent 

permanent impairment of his left and right legs. The awards ran for 74.88 weeks from June 25, 

2010 to December 1, 2011. 

By letter dated January 4, 2012, appellant requested an increased schedule award based 

on the addendum report of Dr. Hebrard, appellant’s attending physician. OWCP determined that 

there was a conflict in the medical evidence between Dr. Hebrard, and the government 

physicians, Dr. Slutksy and Dr. Stewart, regarding the extent of appellant’s permanent 

impairment. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of 

FECA, to Dr. Timothy Borman, an osteopath and Board-certified orthopedic surgeon, for an 

impartial medical examination. 

In a March 21, 2012 report, Dr. Borman calculated that, under Table 17-4 of the sixth 

edition of the A.M.A., Guides, appellant had 25 percent whole person impairment. He noted that 

“generally looking at the impairment ratings of doctors using peripheral nerve calculation 

method, [appellant] has minimal evidence of radiculopathy.” 

OWCP requested that Dr. Borman provide a supplemental report properly evaluating 

appellant’s impairment under The Guides Newsletter, “Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition” (July/August 2009). In a May 16, 2012 supplemental 

 2

 Appellant had undergone a prior nonwork-related spinal fusion procedure. 

3

 In a September 13, 2010 report, Dr. Michael Hebrard, an attending Board-certified physiatrist, calculated that 

appellant had 32 percent permanent impairment of his left leg and 32 percent permanent impairment of his right leg 

due to motor loss associated with the sciatic nerve distributions in each leg. He applied the standards of Table 16-11 

and Table 16-12 of the sixth edition of the A.M.A., Guides. It is unclear why Dr. Slutsky did not address 

Dr. Hebrard’s impairment rating in his October 21, 2010 report. In a December 14, 2011 report, Dr. Hebrard 

indicated that appellant had 32 percent permanent impairment of his left leg and 32 percent permanent impairment 

of his right leg under The Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009). On February 21, 2012 Dr. William Stewart, a Board-certified orthopedic surgeon serving as an 

OWCP medical adviser, expressed disagreement with this assessment. 
3

report, Dr. Borman again listed the findings of his March 21, 2012 examination, noting that he 

documented normal resisted muscle group strength testing to all muscle groups to both lower 

extremities. Straight leg raising provoked no lower extremity discomfort and light touch 

sensation was preserved to both lower extremities. Dr. Borman stated that deep tendon reflexes 

at the knees and ankles were symmetric. He reviewed The Guides Newsletter, “Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009) and stated: 

“Class 1 involves either sensory deficits and/or motor deficits. Based on my 

examination of March 21, 2012, [appellant] had no loss of sensation to the lower 

extremities and specifically no loss of sensation to the plantar aspect of either 

foot. In addition, [appellant] had no motor deficits to the lower extremities. 

Therefore, he would be assigned by default a Class 0 impairment regarding spinal 

nerve injury and/or dysfunction associated with a work injury of July 20, 2004.” 

In an April 22, 2013 decision, OWCP found that appellant had not met his burden of 

proof to establish more than 13 percent permanent impairment of either leg. It based its decision 

on the opinion of Dr. Borman. 

Appellant requested a hearing with an OWCP hearing representative. At the 

September 16, 2013 hearing, counsel argued that OWCP’s rating methodology for extremity 

impairment originating in the spine amounted to “junk science.” 

In an October 28, 2013 decision, an OWCP hearing representative affirmed the April 23, 

2013 decision denying appellant’s claim for additional schedule award compensation. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 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.6

 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.7

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8

 A 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 

6 Id. 

7

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

8 Pamela J. Darling, 49 ECAB 286 (1998). 
4

schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically 

enumerated under FECA. Moreover, neither FECA nor its implementing regulations provide for a 

schedule award for impairment to the back or to the body as a whole. Furthermore, the back is 

specifically excluded from the definition of organ under FECA.9

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.10

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

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) is to be applied.11 The Board has long recognized the discretion of OWCP to 

adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.12 

In particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating 

in the spine.13

 Section 8123(a) of FECA provides in pertinent part: “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.”14 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.15 In situations where 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.16 

 9 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990). 

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

11 See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, 

Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is 

included as Exhibit 4. 

12 D.S., Docket No. 14-12 (issued March 18, 2014). 

13 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 

14 5 U.S.C. § 8123(a). 

15 William C. Bush, 40 ECAB 1064, 1975 (1989). 

16 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 
5

ANALYSIS 

OWCP accepted that on July 20, 2004 appellant, then a 46-year-old laborer, was injured 

when he sustained a 10-foot fall after climbing over a log. It accepted that he sustained 

aggravation of spondylolisthesis, lumbosacral radiculopathy of both legs, chronic pain syndrome 

and reaction to spinal or lumbar puncture. On June 22, 2005 appellant underwent an authorized 

L5-S1 fusion surgery. OWCP granted him schedule awards for 13 percent permanent 

impairment to his left and right legs. 

Appellant claimed an additional schedule award of compensation based on an addendum 

report of Dr. Hebrard. OWCP then determined that there was a conflict in the medical opinion 

regarding the extent of his permanent impairment between Dr. Hebrard, appellant’s attending 

physician, and OWCP medical advisers, Dr. Slutsky and Dr. Stewart and referred appellant, 

pursuant to section 8123(a) of FECA, to Dr. Borman, an osteopath and Board-certified 

orthopedic surgeon, for an impartial medical examination and an opinion on the matter. 

In his May 16, 2012 report, Dr. Borman found that appellant did not have more than 13 

percent permanent impairment of his left leg and 13 percent permanent impairment of his right 

leg, for which he received a schedule award. He properly applied the standards of The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009). Dr. Borman stated, “Class 1 involves either sensory deficits and/or motor 

deficits. Based on my examination of March 21, 2012, [appellant] had no loss of sensation to the 

lower extremities and specifically no loss of sensation to the planar aspect of either foot. In 

addition, he had no motor deficits to the lower extremities. Therefore, [appellant] would be 

assigned by default a Class 0 impairment regarding spinal nerve injury and/or dysfunction 

associated with a work injury of July 20, 2004.” 

The Board finds that OWCP properly relied on his well-rationalized medical opinion to 

deny appellant’s claim for additional schedule award compensation. Appellant’s impairment 

rating is based on a complete and accurate factual history and he properly applied the relevant 

standards of the A.M.A., Guides. Dr. Borman’s opinion constitutes the weight of the medical 

evidence with respect to this matter. 

On appeal, counsel asserts that OWCP’s rating methodology for extremity impairment 

originating in the spine amounts to “junk science.” As noted, OWCP’s reliance on The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) was incorporated into the Federal (FECA) Procedure Manual and is a proper 

exercise of OWCP’s discretion.17

 17 See supra notes 11 through 13. In the present appeal, appellant, through counsel, filed a pleading alleging that 

OWCP’s use of The Guides Newsletter represented an unwarranted use of “junk science” standards. On 

December 23, 2013 the Director of OWCP filed a response to appellant’s pleading. The Director presented 

extensive argument rebutting appellant’s assertion that OWCP did not have the authority to implement the use of 

The Guides Newsletter. On December 27, 2013 appellant, through counsel, filed a reply to the Director’s brief. 
6

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 meet his burden of proof to establish that he has 

more than 13 percent permanent impairment of his left leg and 13 percent permanent impairment 

of his right leg, for which he received a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed.18

Issued: February 27, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 18 Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective December 27, 2014.