United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Tucson, AZ, Employer 

__________________________________________ 

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Docket No. 15-0898 

Issued: July 28, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 18, 2015 appellant, through counsel, filed a timely appeal from an October 28, 

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 met her burden of proof to establish that she has more than 

three percent impairment of her right leg and more than three percent impairment of her left leg, 

for which she received a schedule award. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

OWCP accepted that on May 2, 2006 appellant, then a 52-year-old agriculture specialist, 

sustained thoracic and lumbosacral neuritis and displacement of a lumbar intervertebral disc 

without myelopathy due to climbing, lifting, and bending while inspecting fruit containers. 

Appellant stopped work on May 19, 2006 and received compensation on the daily rolls 

beginning July 2, 2006. She later returned to full-time work for the employing establishment. 

In a November 27, 2007 decision, OWCP granted appellant a schedule award for three 

percent impairment of her right leg and three percent impairment of her left leg. The award ran 

for 17.28 weeks from July 9 to November 6, 2007. The award was based on a November 7, 

2007 report of Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as an OWCP 

medical adviser. Dr. Berman had evaluated the medical evidence of record, including several 

reports of Dr. Robert I. Winer, an attending Board-certified neurologist. 

In a September 16, 2008 report, Dr. Steven M. Allon, an attending orthopedic surgeon, 

reported the findings of his physical examination on that date. He determined that, under the 

standards of the fifth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (5th ed. 2001), appellant had 29 percent permanent impairment of her left 

leg due to sensory deficit and motor loss and 12 percent permanent impairment of her right leg 

due to sensory deficit. 

Appellant claimed an increased schedule award. After extensive development of the 

evidence, OWCP determined that there was a continuing conflict in the medical opinion 

evidence regarding her leg impairment and referred appellant to Dr. Scott Sexton, a Boardcertified orthopedic surgeon, for an impartial medical examination and opinion on the matter. 

Dr. Sexton produced reports dated February 28 and August 23, 2011, and July 11, 2013. In his 

July 11, 2013 report, Dr. Sexton determined that appellant did not have any permanent 

impairment of either leg under the standards of the sixth edition of the A.M.A., Guides 

(6th ed. 2009). On July 19, 2013 Dr. Morley Slutsky, a Board-certified occupational medicine 

physician serving as an OWCP medical adviser, stated that he agreed with Dr. Sexton that 

appellant did not have any permanent impairment of either leg.2

In a July 25, 2013 decision, OWCP denied appellant’s claim for increased schedule award 

compensation. It found that the July 11, 2013 report of Dr. Sexton and the July 19, 2013 report of 

Dr. Slutsky demonstrated that appellant had no more than a three percent impairment of her right 

leg or more than three percent impairment of her left leg, for which she received a schedule 

award. 

Appellant submitted a November 1, 2013 report in which Dr. Allon “updated” his 

September 16, 2008 impairment rating report. The report used the same physical examination 

findings that Dr. Allon obtained on September 16, 2008 and applied the standards of the sixth 

edition of the A.M.A., Guides to these findings. Dr. Allon determined that, under The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

 2

 Dr. Slutsky indicated that the medical evidence did not show any evidence of sensory or motor deficits 

stemming from the low back and extending into the legs. 
3

(July/August 2009),3

 appellant had five percent impairment of her right leg and 16 percent 

impairment of her left leg. 

By decision dated January 30, 2014, an OWCP hearing representative set aside OWCP’s 

July 25, 2013 decision and remanded the case to OWCP for further development. He indicated 

that the November 1, 2013 report of Dr. Allon should be sent to an OWCP medical adviser for 

evaluation. 

In a March 23, 2014 report, Dr. Berman, again serving as an OWCP medical adviser, stated 

that he had reviewed the November 1, 2013 report of Dr. Allon and noted, “His recommendation 

was for 16 percent left lower extremity and 5 percent impairment right lower extremity. However, 

subsequent examinations were carried out since that time, and these examinations do not document 

the same findings.” Dr. Berman concluded that there was no medical evidence of record which 

showed that appellant had more than three percent impairment of her right leg or more than three 

percent impairment of her left leg. 

In an April 7, 2014 decision, OWCP again denied appellant’s claim for increased schedule 

award compensation due to leg impairment. It noted that Dr. Berman had explained that no 

medical evidence, including the November 1, 2013 report of Dr. Allon, showed that appellant had 

more than three percent impairment of her right leg or more than three percent impairment of her 

left leg, for which she received a schedule award. 

Appellant, through counsel, requested a review of the written record by an OWCP 

hearing representative. Counsel asserted that there was a conflict in the medical opinion 

evidence that was created between the November 1, 2013 report of Dr. Allon and the March 23, 

2014 report of Dr. Berman. 

In an October 28, 2014 decision, OWCP hearing representative affirmed OWCP’s 

April 7, 2014 decision. He found that Dr. Berman properly determined that the November 1, 

2013 report of Dr. Allon did not show that appellant had more than three percent impairment of 

her right leg or more than three percent impairment of her left leg. The hearing representative 

indicated that Dr. Allon’s November 1, 2013 impairment rating was based on old examination 

findings from 2008 and noted, that given the limited probative value of Dr. Allon’s November 1, 

2013 report, there was no conflict between it and the March 23, 2014 opinion of Dr. Berman. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 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. 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 

 3 See infra note 12. 

4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 
4

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 has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.7

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

 A 

schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically 

enumerated under FECA.9

 Moreover, neither FECA nor its implementing 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.10

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.11

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.12 The Board has long recognized the discretion of OWCP to 

adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.13 

In particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating 

in the spine.14

 6 Id. 

7

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

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

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

10 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990). 

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

12 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, Exhibit 1, n.5 (January 2010). The Guides Newsletter is included as 

Exhibit 4. 

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

14 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 
5

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.15 When the case is referred to an 

impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based on a proper factual background, must be 

given special weight.16 OWCP’s medical adviser may review the opinion, but the resolution of 

the conflict is the responsibility of the impartial medical specialist.17

While an OWCP medical adviser may create a conflict in medical opinion, he or she may 

generally not resolve it. Furthermore, a reasoned opinion by an OWCP medical adviser will not 

usually constitute the weight of the medical evidence in an accepted disability case, even if the 

medical adviser is a Board-certified specialist in the appropriate filed of medicine and the 

attending physician is not a specialist and offers no rationale. This is because the medical 

adviser has not examined the claimant while the attending physician has.18 

In some instances, OWCP medical adviser’s opinion can constitute the weight of the 

medical evidence. This occurs in schedule award cases where an opinion on the percentage of 

permanent impairment and a description of physical findings is on file from an examining 

physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In 

this instance, a detailed opinion by the medical adviser may constitute the weight of the medical 

evidence.19

ANALYSIS 

OWCP accepted that on May 2, 2006 appellant sustained thoracic and lumbosacral 

neuritis and a displacement of a lumbar intervertebral disc without myelopathy caused by 

climbing, lifting, and bending to inspect fruit containers. In a November 27, 2007 decision, it 

granted her a schedule award for three percent impairment of her right leg and three percent 

impairment of her left leg. 

Appellant claimed that she was entitled to additional schedule award compensation due to 

her leg impairment. She submitted a November 1, 2013 report in which Dr. Allon, an attending 

Board-certified orthopedic surgeon, “updated” his previous September 16, 2008 impairment 

rating report. The report used the same physical examination findings that Dr. Allon obtained on 

September 16, 2008 and applied the standards of the sixth edition of the A.M.A., Guides to these 

 15 5 U.S.C. § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB 

435 (2003). 

16 B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB 

313 (2003); David W. Pickett, 54 ECAB 272 (2002). 

17 V.G., 59 ECAB 635 (2008); Thomas J. Fragale, 55 ECAB 619 (2004); see also Richard R. LeMay, 56 ECAB 

341 (2005). 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.8g (September 2010). 

19 Id. at Chapter 2.810.8j; John L. McClanic, 48 ECAB 552 (1997). 
6

findings. Dr. Allon determined that appellant had five percent impairment of her right leg and 16 

percent impairment of her left leg. 

The Board finds that appellant did not show that she has more than three percent 

impairment of her right leg or more than three percent impairment of her left leg. 

In a March 23, 2014 report, Dr. Berman, a Board-certified orthopedic surgeon serving as an 

OWCP medical adviser, explained that no medical evidence of record, including the November 1, 

2013 report of Dr. Allon, showed that appellant had more than three percent impairment of her 

right leg or more than three percent impairment of her left leg, for which she received a schedule 

award. The Board finds that Dr. Berman’s evaluation of the medical evidence, including the 

November 1, 2013 report of Dr. Allon, was correct with respect to the matter of appellant’s leg 

impairment. The Board has held that an impairment rating that is not based on reasonably current 

examination findings is of little probative value.20 Given that Dr. Allon’s November 1, 2013 

impairment rating used physical examination findings that were more than four years old, his 

rating of appellant’s leg impairment is clearly of little probative value. 

On appeal counsel argues that there was a conflict in the medical opinion evidence between 

the November 1, 2013 report of Dr. Allon and the March 23, 2014 report of Dr. Berman. 

However, because the November 1, 2013 report of Dr. Allon is obviously stale on the relevant 

issue of the present case, there is no such conflict in the medical evidence.21

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 did not meet her burden of proof to establish that she has 

more than a three percent impairment of her right leg and more than a three percent impairment 

of her left leg, for which she received a schedule award. 

 20 See W.M., Docket No. 12-773 (issued March 29, 2013) (where a physician sought in June 2011 to update a 

prior impairment rating, but the Board found that the May 2004 findings which served as the basis for the updated 

rating constituted stale medical evidence); P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found that 

a physician’s January 2010 impairment rating was of reduced probative value because the physician relied on 

October 2007 findings as the basis for this updated impairment rating). 

21 See supra notes 15 through 17. On appeal counsel argues that Dr. Berman, in his role as an OWCP medical 

adviser, impermissibly resolved a conflict in the medical opinion evidence. However, Dr. Berman’s actions were 

proper as there was no current conflict in the medical opinion evidence and he merely determined that Dr. Allon’s 

November 1, 2013 impairment rating was not derived in accordance with the relevant standards of the A.M.A., 

Guides. See supra notes 18 and 19. 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 28, 2014 merit decision of the Office 

of Workers’ Compensation Programs is affirmed. 

Issued: July 28, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board