United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Detroit, MI, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-0606 

Issued: July 2, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 27, 2015 appellant, through counsel, timely appealed a December 16, 2014 

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 a ratable impairment of the lower extremities due to 

his employment-related lumbar condition. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

FACTUAL HISTORY 

This case was previously before the Board.2 Appellant, a 53-year-old custodian, injured 

his low back in the performance of duty on May 4, 2009.3

 OWCP accepted the claim for sciatica 

and lumbar radiculopathy. On September 16, 2010 appellant filed a claim (Form CA-7) for a 

schedule award. The last time the case was before the Board, OWCP had denied appellant’s 

claim by decision dated November 1, 2012, which the Branch of Hearings and Review had 

affirmed on April 8, 2013. OWCP relied on the January 4, 2011 second opinion evaluation of 

Dr. Nathan A. Fogt, who found zero (0) percent upper or lower extremity impairment.4 In a 

February 18, 2014 decision, the Board affirmed OWCP’s denial of the schedule award based on 

Dr. Fogt’s opinion. The Board found that the then-current record did not establish a ratable 

impairment of the lower extremities due to the accepted lumbar condition.5

On December 10, 2014 appellant’s counsel filed a timely request for reconsideration. In 

support of the request, he submitted a November 19, 2014 impairment rating from 

Dr. Catherine E. Watkins-Campbell, who is Board-certified in both family medicine and 

occupational medicine. Dr. Watkins-Campbell found 15 percent left lower extremity 

impairment. She rated appellant for spinal nerve extremity impairment involving the L5 and S1 

nerve roots. With respect to the left S1 nerve root, Dr. Watkins-Campbell found a moderate 

sensory deficit (two percent) and a mild motor deficit (three percent) for a combined five percent 

impairment. The left L5 nerve root revealed a mild sensory (2 percent) deficit and a mild motor 

(9 percent) deficit for a combined 11 percent impairment. Dr. Watkins-Campbell then combined 

the multilevel nerve root impairments, resulting in a 15 percent left lower extremity impairment. 

In a decision dated December 16, 2014, OWCP reviewed the merits of the schedule 

award claim, but denied modification of the Board’s February 18, 2014 decision.6 It determined 

that the findings of the second opinion physician, Dr. Fogt, represented the weight of the medical 

evidence regarding appellant’s impairment. 

 2

 Docket No. 13-2011 (issued February 18, 2014). 

3

 Appellant was injured lifting a bucket of water, which he then emptied into a sink. 

4

 Dr. Fogt, a Board-certified orthopedic surgeon and OWCP referral physician, diagnosed employment-related 

lumbar sprain/strain and radicular back pain. He advised that appellant reached maximum medical improvement. 

Dr. Fogt also indicated that appellant was able to perform his custodian duties. Additionally, Dr. Fogt found zero 

(0) percent impairment of the upper or lower extremities under the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2008). In a February 13, 2012 

supplemental report, he reaffirmed his January 4, 2011 opinion. OWCP forwarded the case to its district medical 

adviser (DMA), and in a report dated September 1, 2012, Dr. Brian M. Tonne concurred with Dr. Fogt’s finding of 

zero percent lower extremity impairment. 

5

 The facts of the Board’s February 18, 2014 decision is incorporated herein by reference. 

6

 OWCP is not authorized to review Board decisions. Although the February 18, 2014 decision was the latest 

merit decision, the hearing representative’s April 8, 2013 decision is the appropriate subject of possible modification 

by OWCP. 20 C.F.R. § 501.6(d). 
3

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.7

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2008).9

Neither FECA nor the regulations provide for the payment of a schedule award for the 

permanent loss of use of the back/spine or the body as a whole.10 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.11 The sixth edition of the A.M.A., Guides (2008) provides a specific methodology 

for rating spinal nerve extremity impairment.12 It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

FECA-approved methodology is premised on evidence of radiculopathy affecting the upper 

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are 

incorporated in the FECA procedure manual.13

ANALYSIS 

The Board finds that the case is not in posture for decision. OWCP previously had 

determined that appellant had no ratable impairment based on the January 4, 2011 and 

February 13, 2012 reports of Dr. Fogt, an OWCP referral physician. Although appellant’s 

July 20, 2009 electromyography (EMG) revealed mild left L5 lumbar radiculopathy, Dr. Fogt’s 

January 4, 2011 neurological examination revealed no clinically relevant sensory deficits related 

to appellant’s accepted work injury. In its prior decision, the Board explained that 

notwithstanding appellant’s positive clinical studies, the neurological examination findings 

 7

 For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(2). 

8

 20 C.F.R. § 10.404. 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

10 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.6a(3). 

12 The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment using the sixth edition (July/August 2009). 

13 See supra note 9 at Chapter 3.700, Exhibit 4. 
4

define the impairment value assigned under the A.M.A., Guides (6th ed. 2008).14 The Board 

further explained that, without objective evidence of sensory and/or motor deficits on 

neurological examination, the appropriate impairment designation is “[c]lass 0” which 

corresponds to no ratable lower extremity impairment.15 As noted, Dr. Fogt’s neurological 

examination revealed no clinically relevant sensory deficits, and therefore, he found no ratable 

impairment. Dr. Tonne, the DMA, concurred with Dr. Fogt’s findings. Accordingly, the Board 

affirmed OWCP’s April 8, 2013 decision denying appellant’s claim for a schedule award. 

Subsequently, Dr. Watkins-Campbell examined appellant on November 19, 2014 and 

provided a left lower extremity rating ostensibly in accordance with the FECA-approved 

methodology for rating spinal nerve extremity impairment. She found 15 percent left lower 

extremity impairment based on a combination of motor and sensory deficits involving the L5 and 

S1 nerve roots. Dr. Watkins-Campbell noted that the 2009 and 2012 electrodiagnostic studies 

confirmed mild chronic bilateral L5 radiculopathy. She also noted that physical examination 

findings revealed evidence of both L5 and S1 radiculopathy in the left lower extremity. 

Dr. Watkins-Campbell’s findings included decreased sensation to pinprick in the entire left leg in 

a stocking distribution. She also noted a grade 4/5 deficit with dorsiflexion of the left foot and 

ankle. The left L5 nerve root revealed a mild sensory deficit (two percent), which was based on 

decreased sensation to pinprick. There was also a mild motor deficit (nine percent) based on 

grade 4/5 strength with respect to ankle dorsiflexion. The sensory and motor deficits at L5 

represented a combined left lower extremity impairment of 11 percent impairment. With respect 

to the left S1 nerve root, Dr. Watkins-Campbell found a moderate sensory deficit (two percent) 

based on pain in the S1 distribution. She also found a mild motor deficit (three percent) based on 

appellant’s difficulty toe walking. The combined left S1 nerve root impairments represented 5 

percent lower extremity impairment, and the combined L5 and S1 nerve root impairments 

resulted in a 15 percent left lower extremity impairment. Dr. Watkins-Campbells’ report is 

probative as to permanent impairment due to appellant’s accepted conditions of sciatica and 

lumbar radiculopathy. 

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

arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP 

shares responsibility in the development of the evidence to see that justice is done.16

Appellant has filed a timely request for reconsideration of a denied schedule award and 

submitted a new impairment rating that is ostensibly based on the FECA-approved methodology 

for rating spinal nerve extremity impairment. Accordingly, the December 16, 2014 decision 

shall be set aside, and the case remanded to OWCP for further proper development of the new 

 14 In addition to the July 20, 2009 EMG, the record included a June 5, 2012 EMG that demonstrated mild chronic 

bilateral L5 radiculopathies without ongoing denervation. This latest study when compared to appellant’s 2009 left 

lower extremity study revealed an interval improvement in that there was no active denervation. A follow-up study 

on June 12, 2012 showed evidence for a mild distal axonal sensory polyneuropathy. Additionally, the report noted 

there had not been any significant interval change compared with the 2009 study. 

15 See supra note 13, Proposed Table 2. 

16 William J. Cantrell, 34 ECAB 1223 (1983). 
5

medical evidence.17 After such further development as deemed necessary, OWCP shall issue a 

de novo decision regarding entitlement to a schedule award. 

CONCLUSION 

The case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: July 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 17 John J. Carlone, 41 ECAB 354 (1989).