United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.Q., Appellant 

and 

U.S. POSTAL SERVICE, LOADING & 

DISTRIBUTION CENTER, Kearney, NJ, 

Employer 

__________________________________________ 

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Docket No. 14-1623 

Issued: February 13, 2015 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 17, 2014 appellant, through counsel, filed a timely appeal of a June 5, 2014 

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 established that he is entitled to a greater than four 

percent right lower extremity impairment for which he received a schedule award. 

FACTUAL HISTORY 

On December 7, 2011 appellant, then a 48-year-old mail handler, filed a traumatic injury 

claim alleging that on December 6, 2011 he injured his lower back and neck when the dock plate 

 1

 5 U.S.C. § 8101 et seq. 
2

slammed into the edge of the trailer that he had begun to unload. OWCP accepted the claim for 

lumbosacral joint sprain, temporary lumbar disc disease aggravation at L3-4 and temporary 

lumbar spondylosis aggravation without myelopathy. 

On October 2, 2013 appellant filed a claim for a schedule award. 

In a November 26, 2013 report, Dr. Emmanuel E. Jacob, an examining Board-certified 

physiatrist, conducted a physical examination for purposes of an impairment rating. He 

reviewed the medical and employment injury history and diagnosed L3-4 lumbar displacement, 

L3-4 lumbar interbody fusion and L4 right root lumbar radiculopathy. Using Table 16-11, page 

533 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides), Dr. Jacob considered appellant’s sensory and motor 

deficits for L4 nerve root and determined a severity of 1 or mild and placed into class 1. He then 

used Table 16-12, pages 534-35 to find a one percent sensory deficit and a five percent motor 

deficit. Using the net adjustment formula, Dr. Jacob assigned a grade modifier 1 for functional 

history, he found the physical examination grade modifier was not relevant, and assigned a grade 

modifier of 1 for clinical studies, which resulted in a final net adustment of zero. As the next 

adjustment was zero, he found no change in impairment ratings. Dr. Jacob then combined the 

impairment sensory and motor impairment ratings for the L4, nerve root to find a total six 

percent right lower extremity impairment. 

On March 5, 2014 an OWCP medical adviser reviewed the accepted conditions in 

Dr. Jacob’s November 26, 2013 impairment rating report. On page two of the report, the 

medical adviser opined that appellant had a four percent right lower extremity impairment while 

on page six he concluded the permanent impairment to be six percent. 

On June 5, 2014 OWCP requested clarification from the medical adviser as to whether 

appellant had four percent right lower extremity impairment or six percent right lower extremity 

impairment. No response was received. 

By decision dated June 5, 2014, OWCP granted appellant a schedule award for a four 

percent permanent impairment of the right lower extremity. 

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 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 
3

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 

In addressing lower extremity impairments, the sixth edition requires identifying the 

impairment class for the Class of Diagnosis (CDX), which is then adjusted by grade modifiers 

based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies 

(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7

 

The schedule award provision of FECA8

 and its implementing regulations9 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.10 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.11 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).12 

In addressing lower extremity impairments, the sixth edition requires identifying the 

impairment class for the diagnosed condition, which is then adjusted by grade modifiers based 

 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 Claim, 

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

 A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010). 

8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404. 

10 Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, supra note 4.

11 Supra note 5. 

12 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. 
4

on GMFH, GMPE and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - 

CDX) + (GMCS - CDX).13 

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed through OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.14

ANALYSIS 

The sixth edition of the A.M.A., Guides provide that lower extremity impairments be 

classified by diagnosis which is then adjusted by grade modifiers according to the formula noted 

above.15 Appellant’s accepted diagnosed conditions were lumbosacral joint sprain, temporary 

lumbar disc disease aggravation at L3-4 and temporary lumbar spondylosis aggravation without 

myelopathy. The Board finds that this case is not in posture for decision. 

The evidence relevant to the impairment rating for appellant’s right lower extremity 

included reports from Dr. Jacob and an OWCP medical adviser. Dr. Jacob concluded that 

appellant had a six percent right lower extremity impairment using Table 16-11, page 533 and 

Table 16-12, pages 534-35 to determine his sensory and motor deficits. The medical adviser 

reviewed Dr. Jacob’s report and provided right lower extremity impairment ratings of four 

percent and six percent. OWCP requested clarification from the medical adviser, which it had 

not received when issuing the June 5, 2014 schedule award decision. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter.16 While appellant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.17 Accordingly, once 

OWCP undertakes to develop the medical evidence further, it has the responsibility to do so in 

the proper manner.18 As it undertook development of the medical evidence by requesting 

clarification from the medical adviser regarding the extent and degree of right lower extremity 

impairment, it had an obligation to secure the report adequately addressing the relevant issue 

prior to issue a decision.19 

 13 Supra note 7. 

14 See supra note 5 at Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 

2010); Frantz Ghassan, 57 ECAB 349 (2006).

15 Supra notes 8, 9. 

16 R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57 

ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004). 

17 D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004). 

18 See A.A., 59 ECAB 726 (2008); Melvin James, 55 ECAB 406 (2004).

19 Id.; see also Peter C. Belkind, 56 ECAB 580 (2005).
5

CONCLUSION 

The Board finds that this case is not in posture for decision. The case is remanded for 

further evidentiary development, to be followed by the issuance of a de novo decision. 

ORDER 

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

Compensation Programs dated June 5, 2014 is set aside and the case remanded for further 

proceedings consistent with the above opinion. 

Issued: February 13, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board