United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Detroit, MI, 

Employer 

__________________________________________ 

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Docket No. 16-0174 

Issued: April 11, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 9, 2015 appellant, through counsel, timely appealed a September 3, 2015 

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. § et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 Appellant, a 54-year-old custodian, 

injured his lower back on May 4, 2009 when he lifted a bucket of water and emptied it into a 

sink. OWCP accepted his claim for sciatica and lumbar radiculopathy. On September 16, 2010 

appellant filed a claim (Form CA-7) for a schedule award. OWCP denied the claim on 

November 1, 2012 and an OWCP hearing representative with the Branch of Hearings and 

Review affirmed that decision on April 8, 2013.3 The Board subsequently affirmed the hearing 

representative’s decision.4

 Appellant timely requested reconsideration and submitted a 

November 19, 2014 impairment rating from Dr. Catherine E. Watkins-Campbell.5

 

Dr. Watkins-Campbell found that appellant had 15 percent left lower extremity impairment 

based on motor and sensory deficits involving the L5 and S1 nerve roots.6

 By decision dated 

December 16, 2014, OWCP reviewed the merits of the schedule award claim, but denied 

modification.7

 Appellant appealed to the Board. 

In a July 2, 2015 decision, the Board determined that the case was not in posture for 

decision.8

 The Board found that Dr. Watkins-Campbell’s November 19, 2014 report was 

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

lumbar radiculopathy.” OWCP had not previously referred Dr. Watkins-Campbell’s impairment 

rating to its district medical adviser (DMA), and because of the report’s probative value, the 

Board remanded the case to OWCP for proper development of the new medical evidence. 

On remand, OWCP referred the case to its DMA, who recommended that appellant 

undergo a second opinion evaluation. 

Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon and OWCP-referral 

physician, examined appellant on August 7, 2015 and diagnosed mild chronic lumbar disc 

disease with no evidence of lumbar radiculopathy. He reviewed OWCP’s latest amended 

statement of accepted facts, appellant’s history of injury, his occupational history, and his current 

 2

 Docket Nos. 13-2011 (issued February 18, 2014) and 15-0606 (issued July 2, 2015). 

3

 OWCP based its denial on the January 4, 2011 evaluation of Dr. Nathan A. Fogt, a Board-certified orthopedic 

surgeon and OWCP-referral physician, who found zero percent upper or lower extremity impairment. Dr. Fogt also 

provided a February 13, 2012 supplemental report in which he reaffirmed his January 4, 2011 opinion. 

4 Supra note 2. 

5

 Dr. Watkins-Campbell is Board-certified in both family medicine and occupational medicine. 

6

 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 multi-level nerve root impairments, resulting in a 15 percent left lower 

extremity impairment. 

7

 OWCP continued to rely on Dr. Fogt’s January 4, 2011 second opinion evaluation. 

8 Supra note 2. The facts and circumstances outlined in the Board’s February 18, 2014 and July 2, 2015 decisions 

are incorporated herein by reference. 
3

work restriction. Dr. Obianwu also reviewed various medical records, as well as 

Dr. Watkins-Campbell’s report. Appellant’s current complaints included left buttocks pain after 

walking even short distances. He also complained of pain radiating over the posterior aspect of 

the left thigh to the left calf and ankle. Moreover, appellant reported a burning sensation in the 

bottom of the left foot. Additionally, he complained of significant symptoms each morning 

when he awakened, including intense discomfort across the lower back, which spread into the 

left lower extremity. Dr. Obianwu further noted that bending over was especially painful. 

On physical examination, Dr. Obianwu noted that appellant did not have any evidence 

clinically of an L5 radiculopathy in his lower extremities. There was no objective evidence of 

any lower extremity sensory or motor deficits. Dr. Obianwu explained that, for FECA 

impairment rating purposes, there was no spinal nerve injury detected on the current clinical 

examination. He further noted that the examination was marked by abnormal illness behavior, 

which included moaning and inappropriate movements. Dr. Obianwu indicated that some of the 

physical findings definitely did not make sense from an anatomical perspective. In conclusion, 

he found that there was no work-related spinal nerve injury causing impairment to the lower 

extremities.9

 

In an August 31, 2015 report, Dr. Morley Slutsky, the DMA Board-certified in 

occupational medicine, noted that the majority of physicians, including Dr. Obianwu, found no 

evidence of lower extremity sensory or motor deficits related to appellant’s accepted low back 

conditions.10 He further noted that this was quite different from Dr. Watkins-Campbell’s 

evaluation where she found left L5 and S1 deficits. Based on the majority view, the DMA found 

that there was no basis for lower extremity impairment under the American Medical Association, 

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

By decision dated September 3, 2015, OWCP reviewed the merits of the schedule award 

claim, but denied modification.11

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.12 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 (6th ed. 2009) as the appropriate 

 9

 Dr. Obianwu also commented on perceived “inconsistencies” in Dr. Watkins-Campbell’s examination and the 

conclusions she drew from her reported findings. 

10 Dr. Slutsky is Board-certified in occupational medicine. 

11 OWCP purportedly denied modification of its December 16, 2014 decision. However, that decision had 

already been set aside by the Board. See Docket No. 15-0606 (issued July 2, 2015). 

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

§ 8107(c)(2). 
4

standard for evaluating schedule losses.13 Effective May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides (2009).14

Neither FECA nor its implementing 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.15 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.16 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment.17 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 Federal (FECA) Procedure Manual.18

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.19 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”20 Where OWCP has referred the case to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well reasoned and based upon a proper factual background, must be given special 

weight.21

ANALYSIS 

The Board finds that the case is not in posture for decision as there is an unresolved 

conflict in medical opinion. The Board previously found that Dr. Watkins-Campbell’s 

November 19, 2014 report was “probative as to permanent impairment due to appellant’s 

accepted conditions of sciatica and lumbar radiculopathy.” Dr. Watkins-Campbell found 

15 percent left lower extremity impairment based on a combination of motor and sensory deficits 

 13 20 C.F.R. § 10.404 (2014). 

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

(January 2010); see also, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a 

(February 2013). 

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

16 See supra note 14 at Chapter 2.808.6a(3). 

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

Extremity Impairment Using the Sixth Edition (July/August 2009). 

18 See supra note 14 at Chapter 3.700, Exhibit 4. 

19 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on 

behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b). 

20 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

21 Gary R. Sieber, 46 ECAB 215, 225 (1994). 
5

involving the L5 and S1 nerve roots. The Board remanded the case for further consideration of 

this evidence. On remand, OWCP referred appellant to Dr. Obianwu for a second opinion 

evaluation. Based on his August 7, 2015 examination, Dr. Obianwu found that there was no 

objective evidence of any lower extremity sensory or motor deficits. Consequently, he 

concluded that there was no ratable impairment of the lower extremities. 

The Board finds that the reports of Dr. Obianwu and Dr. Watkins-Campbell are of 

virtually equal weight and rationale.22 Both physicians identified findings on physical 

examination, or the lack thereof, which ostensibly supported their respective opinions. Because 

there is an unresolved conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), the case will 

be remanded to OWCP for referral to an impartial medical examiner to determine the existence 

and extent of any spinal nerve extremity impairment. After OWCP has developed the case 

record consistent with the Board’s directive, a de novo decision shall be issued. 

CONCLUSION 

The case is not in posture for decision.

 22 See supra note 20. 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 3, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: April 11, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board