United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Atlanta, GA, Employer 

__________________________________________ 

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Docket No. 14-242 

Issued: May 9, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 15, 2013 appellant, through his attorney, 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 jurisdictions over the merits of this case. 

ISSUE 

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

impairment to a scheduled member or function of the body entitling him to a schedule award 

under 5 U.S.C. § 8107. 

FACTUAL HISTORY 

The case was before the Board on a prior appeal. In a decision dated August 15, 2011, 

the Board found that a conflict in the medical evidence existed on the issue of an employment-

 1

 5 U.S.C. § 8101 et seq. 
2

related permanent impairment.2

 As the Board noted, the conditions accepted as causally related 

to the June 4, 2002 motor vehicle accident were cervical and lumbar strains, left knee contusion 

and herniated discs at L4-5 and L5-S1. The case was remanded to OWCP for resolution of the 

conflict. The history of the case as provided in the August 15, 2011 Board decision is 

incorporated herein by reference. 

On return of the case record, OWCP selected Dr. Gordon Hardy, a Board-certified 

orthopedic surgeon, as a referee physician. An August 23, 2011 statement of accepted facts 

(SOAF) reported the accepted left knee condition as a sprain and indicated that the condition of 

aggravation of cervical degenerative disc disease was accepted as employment related. In a 

report dated October 6, 2011, Dr. Hardy provided a history and results on examination. He 

stated that appellant had some mild paracervical and paralumbar tenderness, with no radicular 

symptoms and full range of motion of both arms and legs, including both knees. He reported 

motor function and sensation were intact. Dr. Hardy stated that objective findings were 

“minimal.” He noted that under FECA no spinal impairment was permitted but impairments 

could be found under the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) and, for spinal nerve impairments affecting the extremities, the 

July/August 2009 The Guides Newsletter was used. The referee physician opined: 

“[Appellant] does have degenerative disc disease in the cervical and lumbar spine 

as documented by multiple magnetic resonance imaging (MRI) scans during his 

treatment course. However upon physical examination the patient has no 

evidence of radicular signs or symptoms in the upper or lower extremities today. 

Further, the most recent NOV study does not demonstrate any evidence of 

radiculopathy or nerve root impairment into the lower extremity as previously 

noted. 

“Therefore, based on the specific parameters as outlined above regarding FECA, 

Awards for Permanent Impairment in relation to a spinal nerve injury, there is no 

basis for impairment on upper or lower extremities caused by injury to a spinal 

nerve. The patient has a zero percent impairment rating at this time regarding his 

1umbar condition as well as his left knee sprain.” 

On January 6, 2012 OWCP prepared a new SOAF that indicated that accepted left knee 

injury was a contusion, and referred the case to Dr. Hardy for an additional report. By report 

dated July 16, 2012, Dr. Hardy noted that a left knee contusion was accepted, and reiterated that 

appellant had full range of motion in the knee. He opined that there was no impairment to the 

left knee and that the left knee contusion would have resolved during the course of treatment. 

By decision dated July 25, 2012, OWCP found appellant was not entitled to any schedule 

award based on the evidence of record. Appellant requested a hearing and, by decision dated 

January 22, 2013, OWCP’s hearing representative remanded the case. The hearing 

representative found that OWCP procedures required referral of the evidence to an OWCP 

medical adviser for an opinion as to permanent impairment. 

 2

 Docket No. 11-270 (issued August 15, 2011). 
3

In a report dated January 25, 2013, OWCP’s medical adviser indicated that he had 

reviewed the evidence. The medical adviser opined that the reports from Dr. Hardy were 

excellent reports that properly applied the A.M.A., Guides. 

By decision dated February 4, 2013, OWCP again found that appellant was not entitled to 

a schedule award. 

Appellant requested a hearing before an OWCP hearing representative, which was held 

on June 11, 2013. He submitted reports dated March 4, April 1 and June 3, 2013 from 

Dr. Bradley Katz, a Board-certified anesthesiologist, regarding lumbar pain treatment. 

In a decision dated September 6, 2013, OWCP’s hearing representative affirmed the 

February 4, 2013 OWCP decision. The hearing representative found the weight of the evidence 

was represented by Dr. Hardy. 

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.3

 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 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.5 

Neither FECA nor its 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.6

 For peripheral nerve impairments to the upper or lower 

extremities resulting from spinal injuries, OWCP procedures indicate that The Guides Newsletter

“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”(July/August 2009) is to be 

applied.7 

 3

 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(b). 

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

5

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

6 See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20). 

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

It is well established that when a case is referred to a referee specialist for the purpose of 

resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a 

proper factual and medical background, must be given special weight.8 

ANALYSIS 

In the prior decision, the Board found that a conflict existed with respect to a permanent 

impairment and the case was remanded for selection of referee physician in accord with 5 U.S.C. 

§ 8123(a). Dr. Hardy was selected as a referee physician and provided reports dated October 6, 

2011 and July 16, 2012. The referee physician opined that appellant did not have a permanent 

impairment under the A.M.A., Guides for spinal nerve injuries. Dr. Hardy explained that the 

objective findings were minimal, there were no radicular symptoms, the motor and sensory 

functions were intact, and there was full of range of motion. Based on these examination 

findings, Dr. Hardy found no ratable permanent impairment for spinal nerve injuries. 

By report dated July 16, 2012, Dr. Hardy noted that a left knee contusion was accepted, 

and reiterated that appellant had full range of motion in the knee. He opined that there was no 

impairment to the left knee and that the left knee contusion would have resolved during the 

course of treatment. 

As noted above, the opinion of a referee physician, if based on a proper factual and 

medical background and accompanied by medical rationale, is entitled to special weight. 

Medical rationale is a medically sound explanation for the opinion offered.9

 Dr. Hardy’s opinion 

was a logical, sound result of his examination findings and review of the evidence of record. 

The Board finds that the opinion of the referee physician, Dr. Hardy, is entitled to special weight 

and represents the weight of the evidence. OWCP’s medical adviser also concurred with the 

opinion of Dr. Hardy.10 Appellant submitted reports from Dr. Katz, who did not address the 

issue of an employment-related permanent impairment to a scheduled member or function of the 

body. These reports are of limited probative value to the issue presented. 

On appeal, appellant’s representative argues that OWCP should not rely on The Guides

Newsletter for impairment ratings, as the methodology is “pseudoscience” or “junk science.” As 

noted above, OWCP has adopted the use of The Guides Newsletter in its procedures for 

peripheral nerve impairments based on spinal nerve injuries. The Board has recognized that the 

methodology found in The Guides Newsletter should be used to properly determine an 

impairment to the extremities from spinal injuries.11 The argument that the methodology in The 

 8 Harrison Combs, Jr., 45 ECAB 716, 727 (1994). 

9 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical). 

10 The Board notes that while an OWCP medical adviser may review the findings of a referee physician it is the 

referee who must resolve the conflict. See Thomas J. Fragale, 55 ECAB 619 (2004). 

11 See M.W., Docket No. 13-928 (issued August 15, 2013). 
5

Guides Newsletter is flawed and represents “junk science” has been considered by the Board and 

found to be without merit.12 

The Board finds that OWCP properly determined that appellant was not entitled to a 

schedule award based on the weight of the medical evidence. Appellant may request a schedule 

award at any time before OWCP based on the submission of probative evidence as to an 

employment-related permanent impairment to a scheduled member or function of the body under 

5 U.S.C. § 8107 and 20 C.F.R. § 10.404. 

CONCLUSION 

The Board finds that appellant has not established an employment-related permanent 

impairment to a scheduled member or function of the body entitling him to a schedule award 

under 5 U.S.C. § 8107. 

ORDER 

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

Compensation Programs dated September 6, 2013 is affirmed. 

Issued: May 9, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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