United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, DOMINICK V. 

DANIELS PERFORMANCE & DISTRIBUTION 

CENTER, Kearny, NJ, Employer 

__________________________________________ 

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Docket No. 13-2073 

Issued: March 18, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 10, 2013 appellant, through his attorney, filed a timely appeal from a 

June 12, 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 the case. 

ISSUE 

The issue is whether appellant sustained permanent impairment due to his accepted 

employment injuries of May 29, 1996, January 31, 2000 and May 25, 2006. 

FACTUAL HISTORY 

On May 29, 1996 appellant, then a 48-year-old modified mail handler, sustained injury to 

his back as a result of reaching into a box. OWCP accepted the claim for low back syndrome 

 1

 5 U.S.C. § 8101 et seq.
2

(lumbago) and paid compensation. Appellant has two other employment-related back injuries. 

Under claim number xxxxxx921, OWCP accepted a lumbosacral strain of January 31, 2000. 

That claim was doubled into the instant claim. Under claim number xxxxxx604, OWCP 

accepted a lumbar sprain of May 25, 2006. On November 28, 2011 that claim was doubled into 

the current claim. 

On January 13, 2002 appellant filed a Form CA-7, claim for a schedule award. In an 

October 3, 2001 report, Dr. David Weiss, an osteopath, cited May 29, 1996 and January 31, 2000 

work injuries. He diagnosed additional low back conditions including bulging discs at three 

levels, aggravation of preexisting degenerative disc disease and lumbar radiculitis. Dr. Weiss 

opined that appellant reached maximum medical improvement on October 3, 2001 and had 19 

percent impairment of the left lower extremity and 3 percent impairment of the right lower 

extremity under the fifth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides). 

In an August 14, 2002 report, an OWCP medical adviser reviewed the medical records. 

He determined that Dr. Weiss’ findings on examination supported 11 percent impairment of the 

left leg and 3 percent to the right leg with maximum medical improvement reached on 

October 3, 2001. The medical adviser addressed discrepancies in Dr. Weiss’ application of the 

fifth edition of the A.M.A., Guides. 

On September 9, 2002 OWCP authored, but did not issue, a decision granting 

compensation for 3 percent impairment to the right lower extremity and 11 percent impairment 

to the left lower extremity. It set up a payment for the schedule award, but deleted it as there was 

no issuance of the decision. A claims examiner indicated that the claim required further 

development as an August 20, 1998 referee examination2

 established no continuing injuryrelated residuals or disability with no radiculopathy, intervening injuries and a pending 

termination of benefits.3

On June 9, 2006 appellant’s attorney inquired as to the status of the schedule award 

claim. OWCP did not respond. 

In February 2008, OWCP referred appellant to Dr. Andrew M. Hutter, a Board-certified 

orthopedic surgeon, for a second opinion examination regarding the nature and extent of his 

continuing employment-related medical residuals and disability. The February 5, 2008 statement 

of accepted facts noted that the claim file had been combined for appellant’s May 29, 1996 and 

January 31, 2000 work injuries. It did not mention the employment-related back injury of 

May 25, 2006 or describe the January 31, 2000 work injury. The second opinion specialist was 

 2

 In an August 20, 1998 report, Dr. Walter M. Flax, an impartial medical examiner, reviewed the case file, 

statement of accepted facts and examined appellant. He found that there was no evidence of functional loss, 

residuals or disability to appellant’s back. Dr. Flax further stated that there was no evidence of a herniated disc and 

opined that treatment was no longer indicated and appellant was capable of working with no restrictions or 

limitations. His credentials are not of record. 

3

 The record reflects a notice of proposed termination of compensation on September 9, 1998. OWCP accorded 

determinative weight to Dr. Flax, an impartial medical examiner, opined that there was no evidence of functional 

loss, residuals or disability related to appellant’s back. 
3

not asked to provide an impairment rating. Dr. Hutter provided a report dated 

February 29, 2008. 

On March 11, 2009 appellant’s attorney inquired regarding the status of the schedule 

award claim. On November 17, 2009 OWCP notified both appellant that permanent impairment 

determinations were under the sixth edition of the A.M.A., Guides. Appellant was advised to 

obtain a physician’s report concerning his lower extremity impairment. 

In a December 9, 2009 report, Dr. Ronald E. Gennace, a Board-certified orthopedic 

surgeon, presented findings on examination. Examination of the lower extremities was 

essentially normal except for slight decreased pinprick to light touch over the left thigh. In a 

December 9, 2009 impairment worksheet, Dr. Gennace provided a primary diagnosis of “lumbar 

disc” and a subsidiary diagnosis of lumbar radiculitis. He opined that appellant had 13 percent 

impairment of the left lower extremity impairment, due to peripheral nerve impairment. Under 

the box labeled “sensory,” Dr. Gennace noted class 1 and the box labeled “motor” was noted as 

class 0. 

In a January 7, 2010 report, Dr. Henry J. Magliato, an OWCP medical adviser reviewed 

the case file. He found that Dr. Gennane had not provided sufficient rationale to support his 

impairment rating. Dr. Magliato failed to explain how the tables and pages of the A.M.A., 

Guides were utilized to determine impairment. 

On July 13, 2010 OWCP referred appellant to Dr. P. Leo Varriale, a Board-certified 

orthopedic specialist, for examination and opinion on any permanent impairment. The 

February 5, 2008 statement of accepted facts was updated to note Dr. Hutter’s second opinion 

examination. 

In an August 10, 2010 report, Dr. Varriale reviewed a history of the May 29, 1996 back 

injury. He also cited a fall at work in 1980 where appellant injured his lower back resulting in 

progressive pain. Dr. Varriale reviewed the statement of accepted facts and provided findings on 

examination. He diagnosed lumbar strain and degenerative disc disease. Dr. Varriale found no 

objective motor or sensory impairment to the lower extremities and advised that appellant had no 

impairment. 

On August 26, 2010 Dr. Magliato reviewed the case file and Dr. Varriale’s report. He 

concurred that appellant had no lower extremity impairment. 

By decision dated March 30, 2011, OWCP denied appellant’s schedule award claim. It 

found that the weight of medical opinion from Dr. Varriale did not establish any employmentrelated impairment of a scheduled member. 

In a letter postmarked April 8, 2011, appellant’s attorney requested an oral hearing, 

which was held on August 10, 2011. On August 8, 2011 OWCP received a report from 

Dr. Weiss who advised that he was updating the October 3, 2001 examination findings to the 

sixth edition of the A.M.A., Guides and determined that appellant had 11 percent left leg 

impairment due to sensory loss involving the L3 and L5 nerve roots.
4

By decision dated October 26, 2011, an OWCP hearing representative set aside the 

March 30, 2011 decision and remanded the case to OWCP for further development. She 

determined that Dr. Varriale’s second opinion was based on a flawed statement of accepted facts 

which did not describe the May 25, 2006 employment injury or the medical records relative to 

that claim. The hearing representative directed OWCP to double claim number xxxxxx604 with 

the present claim and to prepare an undated statement of accepted facts. Thereafter, appellant 

was to be referred to a new second opinion examiner to determine whether he sustained any 

employment-related impairment of the lower extremities. 

In November 26, 2011 and February 8, 2012 letters, OWCP requested that appellant 

provide any relevant information and medical records related to the 1980 employment injury. 

In a November 28, 2011 decision, OWCP denied appellant’s request to participate in the 

selection of an impartial referee examination. 

On November 28, 2011 OWCP doubled case number xxxxxx604 with the current case, 

making case number xxxxxx510 the master file. In a December 1, 2011 letter, it advised 

appellant that all three claims, xxxxxx510, xxxxxx921 and xxxxx604 were combined. 

In a February 22, 2012 letter, appellant stated that he did not file a claim for the 1980 

work injury. 

OWCP updated the statement of accepted facts on March 27, 2012. It referred appellant 

together with a list of questions and the case file, to Dr. Jeffrey F. Lakin, a Board-certified 

orthopedic surgeon, for a second opinion examination. 

In an April 13, 2012 report, Dr. Lakin reviewed the history of injury, the medical records 

and the statement of accepted facts. He diagnosed low back syndrome, lumbosacral sprain, 

aggravation of lumbar sprain and opined that maximum medical improvement was reached on 

April 13, 2012. On examination, Dr. Lakin reported that appellant had normal sensation to both 

lower extremities with no sensory deficit or motor deficit. The May 31, 1996 and March 31, 

2000 MRI scans of the lumbar spine showed multilevel degenerative disc disease at L3-4, L4-5 

and L5-S1, bulging at L3-4, degenerative disc disease with diffuse bulging at L2-3, L3-4 and 

L4-5 but no evidence of a herniated nucleus pulposus. Dr. Lakin found that appellant had no 

(zero percent) impairment to the lower extremities as a result of the work-related injuries of 

May 29, 1996, January 31, 2000 and May 25, 2006. Under Table 15-14, page 425 of the sixth 

edition of the A.M.A., Guides, he stated that appellant was a Severity O as he had normal 

sensation to both lower extremities and no sensory deficit or motor deficit. Under Proposed 

Table 2, page 4 of The Guides Newsletter, July/August 2009, Rating Spinal Nerve Extremity 

Impairment, Dr. Lakin indicated that appellant was a class 0 as there is zero percent impairment 

to the lower extremities as a result of the work-related accidents. Appellant had no objective 

sensory or motor deficit and no impairment of the lower extremities as a result of the work 

injuries from May 29, 1996, which resulted in lumbago, low back syndrome; from the 

January 31, 2000 accident, which resulted in lumbosacral sprain and as a result of the May 25, 

2006 accident, which resulted in an aggravation of the lumbar sprain. 
5

On May 3, 2012 Dr. Magliato concurred with Dr. Lakin’s opinion. Dr. Lakin conducted 

an examination of appellant’s low back and found no lower extremity impairment. As there 

were no sensory or motor deficits, he did not use the Peripheral Nerve Impairment Tables in the 

sixth edition of the A.M.A., Guides. Dr. Magliato noted that, while Dr. Lakin found that 

maximum medical improvement was reached on April 13, 2012, he believed January 14, 2008 

was a more accurate date as Dr. Gennace stated that the condition was static and Dr. Hutter’s 

February 2008 second opinion examination, found no more treatment or testing was necessary. 

In response to a June 29, 2012 request for clarification, on July 3, 2012 Dr. Magliato 

advised that there was no (zero percent) impairment of each lower extremity as no radiculopathy 

stemmed from the accepted lumbar spine conditions. He further stated no impairment 

calculations were possible since Dr. Lakin found no sensory or motor deficits. 

By decision dated October 22, 2012, OWCP denied appellant’s schedule award claim. It 

found the weight of medical opinion represented by Dr. Lakin. 

On October 26, 2012 appellant’s counsel requested a hearing, which was held on 

March 26, 2013. He argued that appellant had permanent impairment of each lower extremity 

based on the evidence of record in 2002. 

By decision dated June 12, 2013, an OWCP hearing representative affirmed the 

October 22, 2012 decision. He accorded determinative weight to Dr. Lakin’s second opinion 

report. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 and its implementing regulations 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. FECA, however, does not 

specify the manner in which the percentage loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized 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 OWCP for evaluating schedule losses and the Board has concurred in such 

adoption.5

 

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.6

 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 

 4

 5 U.S.C. § 8107. 

5 See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

6 Pamela J. Darling, 49 ECAB 286 (1998). 
6

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

impairment originated in the spine.7 

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.8 

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

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

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

adviser providing rationale for the percentage of impairment specified.9

 

ANALYSIS 

The Board finds that the medical evidence fails to establish that appellant sustained 

permanent impairment to either lower extremity. OWCP accepted the condition of low back 

syndrome (lumbago) due to the employment injury of May 29, 1996. Under claim number 

xxxxxx921, OWCP accepted the condition of lumbosacral sprain due to the injury of 

January 31, 2000. Under claim number xxxxxx604, it accepted an aggravation of a lumbar 

sprain on May 25, 2006. OWCP combined each of appellant’s claims under the present file 

number on November 28, 2011. 

On December 9, 2009 Dr. Gennace performed a schedule award examination under the 

sixth edition of the A.M.A., Guides. He found that appellant had 13 percent impairment of the 

left lower extremity and indicated that appellant had class 1 sensory and class 0 motor. 

Dr. Gennace failed to reference any specific pages or tables from the sixth edition of the A.M.A., 

Guides or otherwise explain how he arrived at his impairment calculation. He did not identify 

any permanent impairment to the right leg. The Board notes that a 13 percent impairment of a 

lower extremity under The Guides Newsletter would represent a severe impairment. 

Dr. Gennace however noted essentially normal examination findings. Additionally, there is no 

evidence that he was aware of appellant’s May 25, 2006 work injury. An OWCP medical 

adviser reviewed Dr. Gennace’s report and worksheet and found that there was insufficient 

information to arrive at an impairment calculation. Thus, Dr. Gennace’s report is of diminished 

probative value. 

Dr. Varriale performed a second opinion impairment evaluation on August 10, 2010 and 

found that appellant had no permanent impairment to the lower extremities. Dr. Magliato 

concurred with Dr. Varriale’s determination. An OWCP hearing representative vacated the 

March 30, 2011 decision as Dr. Varriale’s opinion was not based on an accurate factual and 

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

8

 A.M.A., Guides 533. 

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6(d) (August 2002). 
7

medical background. The statement of accepted facts failed to describe the May 25, 2006 

employment injury or include the medical records relative to that claim. 

Dr. Weiss provided an “updated” report based on his October 3, 2001 examination. His 

opinion is of diminished probative value as it did not take into account the May 25, 2006 

employment injury and relied on stale examination findings. To be of probative value, a medical 

report must provide an opinion on the issue presented that is supported by medical rationale. 

The opinion of the physician must be based on a complete factual and medical background, must 

be one of reasonable medical certainty and supported by medical rationale explaining the nature 

of the relationship between the diagnosed condition and employment factors identified by the 

claimant. The weight of the medical evidence is determined by its reliability, its probative value, 

its convincing quality, the care of the analysis manifested and the medical rationale expressed in 

support of the physician’s opinion.10 The rating by Dr. Weiss was not based on an accurate 

factual and medical background and relied on examination findings from 2001. It is of 

diminished probative value. 

Thereafter, OWCP combined all three claims and prepared an updated statement of 

accepted facts. It referred appellant to Dr. Lakin for an impairment determination. In an 

April 13, 2012 report, Dr. Lakin reported that appellant had normal sensation to both lower 

extremities with no sensory or motor deficits. As appellant had no objective sensory or motor 

deficits, Dr. Lakin determined that he had no (zero percent) impairment of the lower extremities 

as a result of the work injuries of May 29, 1996, January 31, 2000 and May 25, 2006. 

Dr. Magliato reviewed Dr. Lakin’s report on May 3 and July 3, 2012 and agreed that appellant 

had no impairment of either lower extremity. There was no evidence or documentation to 

support any radiculopathy or neurologic deficit. Dr. Lakin properly concluded that there was no 

medical evidence of impairment to the lower extremities resulting from the accepted workrelated conditions. Therefore, there was no ratable impairment of a scheduled member under the 

sixth edition of the A.M.A., Guides. 

The Board finds that the weight of the medical evidence, as represented by Dr. Lakin’s 

report, does not establish a ratable impairment of the bilateral lower extremities as there is no 

medical evidence establishing impairment of the lower extremities, scheduled members, as a 

result of appellant’s accepted lumbar spine conditions. 

On appeal and before OWCP, counsel argued that a schedule award should be issued for 

impairment to appellant’s lower extremities based on evidence from 2002. Counsel also argued 

that OWCP erred in failing to adjudicate the claim in a timely manner. Review of the file 

reflects an August 20, 1998 impartial examination from Dr. Flax who found that appellant had 

no continuing injury-related residuals or disability with no radiculopathy. Dr. Flax was not 

asked to address permanent impairment. As to the length of time OWCP took in adjudicating the 

claim, the record reflects that appellant sustained a lumbar sprain on May 25, 2006. This 

necessitated additional development of the medical evidence beyond the 2002 impairment 

calculation. 

 10 Jennifer Atkerson, 55 ECAB 317 (2004). 
8

Counsel further contends that the opinions of Dr. Lakin and Dr. Magliato do not carry the 

weight of the medical evidence as a conflict was created with Dr. Weiss, who identified 

impairment to both lower extremities under the fifth and sixth editions of the A.M.A., Guides. 

Dr. Weiss’ October 3, 2001 report was based on the fifth edition of the A.M.A., Guides. It is not 

relevant as the sixth edition of the A.M.A., Guides was adopted. While Dr. Weiss provided an 

“updated” impairment rating utilizing the sixth edition of the A.M.A., Guides, his findings were 

based on the October 3, 2001 examination and did not include appellant’s subsequent work 

injury of May 25, 2006. Dr. Weiss’ opinion is not based on an accurate factual and medical 

background or recent examination. Accordingly, it is not sufficient to create a conflict in 

medical opinion with Dr. Lakin. 

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 has not established entitlement to a schedule award to his 

left or right lower extremities. 

ORDER 

IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 18, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board