United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.A., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Fort Worth, TX, Employer 

__________________________________________ 

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Docket No. 15-179 

Issued: March 24, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 3, 2014 appellant filed a timely appeal from a July 23, 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 more than one percent permanent impairment of his 

left leg for which he received a schedule award. 

FACTUAL HISTORY 

On October 3, 2013 appellant, then a 37-year-old cook supervisor, filed a traumatic injury 

claim (Form CA-1) alleging that on October 1, 2013 he was moving trays from the rack to the 

serving line when he felt a sudden onset of pain in his lower back, causing him to fall to the 

 1

 5 U.S.C. § 8101 et seq.
2

ground. He complained of lower back pain with numbness, and tingling radiating into his legs 

and feet. 

By decision dated December 2, 2013, OWCP accepted the claim for herniated lumbar 

disc at L4-5. The claim was later expanded to include displacement of lumbar intervertebral disc 

without myelopathy. 

Appellant sought treatment with various providers and was referred to Dr. Jack M. Klem, 

a Board-certified neurosurgeon, for a neurological consultation pertaining to his work-related 

injury. 

On March 3, 2014 appellant underwent a left lateral L4-5 discectomy and decompressive 

foraminotomy to decompress the left L4 and L5 nerve roots. Dr. Klem noted the pre- and 

postoperative diagnosis as left L4 and L5 radiculopathy with motor weakness secondary to left 

lateral L4-5 disc herniations. The surgery was approved by OWCP. 

On April 27, 2014 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated May 13, 2013, OWCP requested that appellant submit an impairment 

evaluation from his attending physician in accordance with the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). It provided 

him 30 days to submit the requested impairment evaluation. 

In a June 17, 2014 report, Dr. Klem reported that appellant had done well postoperatively 

with resolution of his lower back pain and radiculopathy. He noted some residual numbness to 

the distal left lower extremity. Dr. Klem provided findings on physical examination which 

revealed full strength movement of all extremities, well-healed lumbar incision, stable and steady 

gait, no observable discomfort upon standing from a sitting position or with ambulation, and 

some residual numbness to the distal left lower extremity. He diagnosed post-left lateral L4-5 

discectomy with resolution of lower back pain and radiculopathy. Dr. Klem opined that 

appellant had reached maximum medical improvement (MMI) and had 12 percent impairment 

given his slight residual numbness. He noted that appellant’s impairment had been greater prior 

to surgery given the motor weakness to his left foot, which had since improved to symmetrical 

strength. Dr. Klem stated that, because the surgical intervention decompressed the affected 

nerve root which was causing the sensory and motor changes, appellant only had a slight residual 

sensory deficit which accounted for his remaining impairment. 

OWCP properly routed Dr. Klem’s report and the case file to Dr. James W. Dyer, a 

Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), for 

review and a determination on whether appellant sustained a permanent partial impairment of the 

left lower extremity and date of MMI. 

In a July 3, 2014 report, Dr. Dyer reported that appellant reached MMI on June 17, 2014, 

the date of Dr. Klem’s examination. The DMA noted that, beginning November 1, 2013, 

appellant had chronic lower back pain with radiation to the left knee and right thigh. The pain 

was described as numbness and stabbing, which increased with lifting trays of mail and 

prolonged standing and sitting. Dr. Dyer disagreed with Dr. Klem’s 12 percent left lower 

extremity impairment rating, stating that he did not properly utilize the A.M.A., Guides for 
3

impairment due to left L4 slight or mild residual numbness of the left leg. He stated that 

Dr. Klem probably used the A.M.A., Guides peripheral nerve impairment grids when calculating 

his impairment rating rather than the mandated use of The Guides Newsletter for spinal nerve 

root extremity impairment of the left L4 root.2

 Dr. Dyer referred to Table 2 of The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment, to determine class 1 grade C severity of 

left L4 mild sensory deficit resulting in a schedule award for one percent impairment of the left 

lower extremity.3

 

By decision dated July 23, 2014, OWCP granted appellant a schedule award claim for 

one percent permanent impairment of the left leg. It found that the weight of the medical 

evidence rested with Dr. Dyer serving as OWCP’s DMA. The date of MMI was noted as 

June 17, 2014, the date of Dr. Klem’s examination. The award covered a period of 2.88 weeks 

from June 17 to July 7, 2014. 

LEGAL PRECEDENT 

The schedule award provision of FECA 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.4 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 (6th ed. 2009) has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.5

It is the claimant’s burden to establish that he has sustained a permanent impairment of 

the scheduled member or function as a result of any employment injury.6 OWCP procedures 

provide that, to support a schedule award, the file must contain competent medical evidence 

which shows that the impairment has reached a permanent and fixed state and indicates the date 

on which this occurred (date of maximum medical improvement), describes the impairment in 

sufficient detail so that it can be visualized on review, and computes the percentage of 

impairment in accordance with the A.M.A., Guides.

7

 2 The Guides Newsletter, 6th edition (July/August 2009). 

3 Id. at page 6, Table 2. 

4

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

5 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

6

 Tammy L. Meehan, 53 ECAB 229 (2001). 

7

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

Chapter 2.808.5 (February 2013). 
4

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 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.9

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

spinal nerve injuries as extremity impairment.10 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.11 FECA-approved methodology is premised on evidence of 

radiculopathy affecting the upper and/or lower extremities.12

In addressing lower extremity impairments, due to peripheral or spinal nerve root 

involvement, the sixth edition requires identifying the impairment Class of Diagnosis condition 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH) and if 

electrodiagnostic testing were done, Clinical Studies (GMCS).13 The net adjustment formula is 

(GMFH - CDX) + (GMCS - CDX).14

ANALYSIS 

OWCP accepted appellant’s claim for herniated lumbar disc at L4-5 and displacement of 

lumbar intervertebral disc without myelopathy. On March 3, 2014 appellant underwent a left 

lateral L4-5 discectomy and decompressive foraminotomy. The Board notes that a schedule 

award is not payable under FECA for injury to the spine15 or based on whole person 

impairment.16 However, a claimant may be entitled to a schedule award for permanent 

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

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

10 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 

(January 2010). 

11 See G.N., Docket No. 10-850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, note 5 

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

12 Supra note 7 at 2.808.5c(3).

13 A.M.A., Guides 533. 

14 Id. at 521. 

15 Supra note 8. 

16 N.M., 58 ECAB 273 (2007). 
5

impairment to an extremity even though the cause of the impairment originated in the spine.17 

The issue is whether appellant has more than one percent permanent impairment of the left lower 

extremity for which he received a schedule award. The Board finds that he has not met his 

burden of proof to establish that he has impairment of the left lower extremity greater than the 

one percent already awarded.18 

In a June 17, 2014 report, Dr. Klem diagnosed post-left lateral L4-5 discectomy with 

resolution of lower back pain and radiculopathy. He provided findings on physical examination 

which revealed full strength movement of all extremities, well-healed lumbar incision, stable and 

steady gait, no observable discomfort upon standing from a sitting position or with ambulation, 

and some residual numbness to the distal left lower extremity. Dr. Klem opined that appellant 

had 12 percent impairment given his slight residual numbness and had reached MMI. He noted 

that appellant’s impairment was much greater prior to surgery given the motor weakness to his 

left foot which had since improved to symmetrical strength. Dr. Klem explained that because the 

surgical intervention decompressed the affected nerve root which was causing the sensory and 

motor changes, appellant only had a slight residual sensory deficit which accounted for his 

remaining impairment. 

Dr. Dyer, serving as OWCP’s DMA, reviewed Dr. Klem’s report and disagreed with his 

12 percent impairment rating, stating that he did not properly utilize the A.M.A., Guides for 

impairment due to left L4 slight or mild residual numbness of the left leg. He stated that 

Dr. Klem probably used the A.M.A., Guides peripheral nerve impairment grids rather than the 

mandated The Guides Newsletter for spinal nerve root extremity impairment of the left L4 root.19 

Dr. Dyer referred to Table 2 of The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment, to determine class 1 grade C severity of left L4 mild sensory deficit resulting in a 

schedule award for one percent impairment of the left lower extremity.20 

The Board finds that the opinion of Dr. Dyer is thorough and well rationalized.21 

Dr. Dyer utilized the case record and Dr. Klem’s June 17, 2014 examination to find one percent 

impairment of the left lower extremity. The DMA did not disagree with Dr. Klem’s findings and 

examination pertaining to appellant’s status post-left lateral L4-5 discectomy such that a conflict 

in medical evidence was created.22 Rather he disagreed with Dr. Klem’s use of the A.M.A., 

Guides and properly explained that, in accordance with OWCP procedures, The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment, must be utilized to determine appellant’s 

nerve impairment to the left lower extremity resulting from the spinal injury.23 Using Table 2 of 

 17 Supra note 9. 

18 W.R., Docket No. 13-492 (issued June 26, 2013). 

19 Supra note 2. 

20 Supra note 3. 

21 Supra note 18. 

22 See J.J., Docket No. 14-1143 (issued December 10, 2014); Mary L. Henninger, 52 ECAB 408 (2001). 

23 Supra note 11. 
6

The Guides Newsletter, Dr. Dyer properly determined class 1 grade C severity of left L4 mild 

sensory deficit resulting in a schedule award for one percent impairment of the left lower 

extremity.24 

The Board notes that Dr. Klem’s report is not sufficient to establish that appellant has 

more than one percent permanent impairment of the lower left extremity. While the treating 

surgeon provided a 12 percent impairment rating, he did not indicate use of the A.M.A., Guides

in accordance with the schedule award provision of FECA. Moreover, Dr. Klem failed to 

provide any explanation as to how he arrived at a 12 percent impairment rating and did not 

reference any specific sections, pages, or tables of the A.M.A., Guides or The Guides Newsletter. 

Board precedent is well settled that when an attending physician’s report gives an estimate of 

impairment but does not address how the estimate is based upon the A.M.A., Guides, OWCP 

may follow the advice of its DMA where he or she has properly applied the A.M.A., Guides.25 

Thus, Dr. Klem’s rating is not sufficient to establish that appellant has more than one percent 

permanent impairment of the left leg for which he was granted a schedule award.26

Accordingly, the Board finds Dr. Dyer correctly applied the A.M.A., Guides and The 

Guides Newsletter to find that appellant had one percent permanent impairment of the left leg, 

for which he had received a schedule award.27 Appellant has not submitted sufficient evidence 

to establish that he has more than one percent impairment to the left lower extremity. 

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 that he has more than one percent 

permanent impairment of the left lower extremity for which he received a schedule award. 

 24 Supra note 3. 

25 See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31 

ECAB 846 (1980). 

26 C.S., Docket No. 08-1466 (issued December 1, 2008). 

27 Y.K., Docket No. 11-1623 (issued June 25, 2012). 
7

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

decision dated July 23, 2014 is affirmed. 

Issued: March 24, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board