United States Department of Labor 

Employees’ Compensation Appeals Board 

____________________________________________ 

K.S., Appellant 

and 

DEPARTMENT OF THE ARMY, MEDICAL 

COMMAND, Fort Shafter, HI, Employer 

___________________________________________

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Docket No. 15-0741 

Issued: August 10, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 February 13, 2015 appellant filed a timely appeal from a January 13, 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 appellant’s claim for a schedule award. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a permanent 

impairment caused by her accepted employment injuries. 

FACTUAL HISTORY 

On September 30, 2010 appellant, worked as a 62-year-old information receptionist. She 

injured her lower back when she bent down to switch a cable for her keyboard and her computer 

                                                             1

 5 U.S.C. § 8101 et seq.
2

began to fall, causing her to jerk her back. Appellant stopped work on October 4, 2010. She 

later returned to modified duty. OWCP accepted the claim for lumbar sprain. 

On October 4, 2010 Dr. Matthew Hine, Board-certified in occupational medicine, saw 

appellant for back pain. Appellant reported pain on palpation of the lower back, straight leg 

raising was negative for radicular signs, and the legs had normal motor sensory and reflex 

testing. Dr. Hine diagnosed a lumbar sprain. 

A January 22, 2011 magnetic resonance imaging (MRI) scan revealed an L2 compression 

fracture. Appellant underwent an L5-S1 epidural injection on April 18, 2011, a left sacroiliac 

joint injection on April 25, 2011, and a second epidural injection at the L5-S1 level on 

August 8, 2011. She was also treated with a transcutaneous electrical nerve stimulation unit. 

In a February 3, 2011 report, Dr. Carl Hodel, Board-certified in emergency medicine and 

an associate of Dr. Hine diagnosed lumbar dysfunction; sacroiliac dysfunction; anterior torque 

right ilia; mild to moderate acute L2 compression fracture; spinal stenosis at L3-4, L4-5; lumbar 

myalgia, and hip flexor contracture. Dr. Hodel kept appellant on modified duty. He and 

associates continued to treat appellant and note her status. 

Dr. Tetsuto Numata, a Board-certified orthopedic surgeon and an OWCP referral 

physician, examined appellant on February 7, 2012. In a March 27, 2012 report, he listed 

findings that included a normal sensory and motor examination. Dr. Numata diagnosed L2 

compression fracture due to work injury; preexisting lumbar degenerative spondylosis; and 

preexisting degenerative spinal stenosis at L3-4 and L4-5. He opined that the compression 

fracture remained symptomatic but advised that she could work sedentary to light duty. 

A November 15, 2012 MRI scan read by Dr. Matthew I. Yuh, a Board-certified 

diagnostic radiologist, revealed: chronic mild L2 anterior compression fracture; no acute 

compression fractures; mild degenerative lumbar disc disease. No level of severe central canal 

stenosis. 

In a July 12, 2013 report, Dr. Hodel assessed closed lumbar vertebra fracture without 

spinal cord injury, lumbar spinal stenosis, and pelvic cross syndrome. He reported that appellant 

was stable and stationary for rating purposes. 

On July 12, 2013 appellant filed a Form CA7 claim for a schedule award. 

On September 4, 2013 OWCP referred appellant for a second opinion, along with the 

statement of accepted facts, a set of questions and the medical record, to Dr. Neelesh B. 

Fernandes, a Board-certified physiatrist, to determine any permanent impairment. 

In an October 1, 2013 report, Dr. Fernandes noted appellant’s history of injury and 

treatment and examined appellant. On examination, he found light touch sensation grossly intact 

in both legs. Manual muscle testing was also normal throughout the legs. Patrick’s test was 

negative bilaterally. Dr. Fernandes diagnosed L2 vertebra compression fracture with 25 percent 

loss of height anteriorly. In rating impairment, he utilized the American Medical Association, 

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

Dr. Fernandes advised that there were no sensory or motor deficits noted in the bilateral lower 
3

extremities. Because of this, and because the back could not be rated, the lower extremity 

impairment rating was zero percent pursuant to the A.M.A., Guides.

On February 10, 2014 an OWCP medical adviser reviewed the medical record and 

confirmed that appellant had a zero percent impairment of each leg. 

By decision dated April 15, 2014, OWCP denied appellant’s claim for a schedule award. 

On April 23, 2014 appellant requested a hearing. She reported that her back strain had 

not gone away. 

In an October 1, 2014 decision, an OWCP hearing representative found that the case was 

not in posture for a hearing. She explained that OWCP did not allow appellant’s physician an 

opportunity to provide an impairment rating before it referred appellant to Dr. Fernandes. The 

hearing representative also found that OWCP should accept the condition of L2 compression 

fracture. She remanded the case for OWCP to issue a development letter to Dr. Hodel asking 

that he provide an impairment rating under The Guides Newsletter, July/August 2009. The 

hearing representative directed that any impairment report from Dr. Hodel should be reviewed by 

an OWCP medical adviser. If no response was received within the allowed timeframe, OWCP 

should issue a de novo decision based on the medical evidence of record. 

On November 13, 2014 OWCP expanded the claim to include: closed fracture of the 

lumbar vertebra at L2 without spinal cord injury. 

In a separate letter also dated November 13, 2014, OWCP requested that Dr. Hodel, 

provide, within 30 days, an opinion on impairment based upon the A.M.A., Guides. 

In a November 21, 2014 report, Dr. Hodel opined that appellant was stable and stationary 

and ready for rating. She continued to have pain in her back and would require further 

medication for pain and other therapy. 

In a letter dated December 8, 2014, OWCP informed appellant and her physician that 

Dr. Hodel’s November 21, 2014 report indicated that she had reached maximum medical 

improvement, but he did not indicate whether he would issue an impairment rating. It explained 

that, if the physician was unable or unwilling to provide an impairment rating report, appellant 

should advise OWCP in writing. A copy of the October 1, 2013 impairment rating provided by 

the second opinion physician, Dr. Fernandes was provided for Dr. Hodel’s review and comment. 

Dr. Hodel provided a December 19, 2014 status report, but this report did not include an 

impairment rating. 

By decision dated January 13, 2015, OWCP denied appellant’s claim for a schedule 

award. It found that the medical evidence of record did not support a permanent impairment to a 

scheduled member or function of the body. 
4

LEGAL PRECEDENT 

 A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proof to establish that the condition for which a schedule award is 

sought is causally related to his or her employment.2

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. 3

 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 for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.4

 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5

 Effective May 1, 2009, schedule awards 

are determined in accordance with the sixth edition of the A.M.A., Guides.

6

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.7

 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.8

 

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

spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings 

for extremities and precludes ratings for the spine, The Guides Newsletter, July/August 2009, 

offers an approach to rating spinal nerve impairments consistent with sixth edition 

                                                             2 Veronica Williams, 56 ECAB 367 (2005). 

3

 5 U.S.C. § 8107. 

4 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

5

 20 C.F.R. § 10.404. 

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010). 

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

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

 OWCP has adopted this approach for rating impairment to the upper or lower 

extremities caused by a spinal injury.10 

ANALYSIS 

The evidence of record is insufficient to establish that appellant is eligible for a schedule 

award in accordance with the sixth edition of the A.M.A., Guides. OWCP accepted her claim for 

sprain of her back, lumbar region, and closed fracture of the lumbar vertebra at L2 without spinal 

cord injury. 

Appellant claimed a schedule award on July 12, 2013. However, she did not submit any 

evidence from a physician finding that she had permanent impairment of a scheduled body 

member, caused or aggravated by her accepted conditions, and which followed the A.M.A., 

Guides or The Guides Newsletter in rating permanent impairment. In a letter dated December 8, 

2014, OWCP informed appellant and her physician that while he indicated that she was 

permanent and stationary, he did not provide an impairment rating. It provided appellant and the 

physician with a copy of the October 1, 2013 report, from Dr. Fernandes, the second opinion 

physician, and requested that Dr. Hodel review the report and comment on it. Dr. Hodel did not 

provide an opinion on impairment. 

The Board finds that in his October 1, 2013 report, Dr. Fernandes described his 

examination, history of injury, and treatment. Dr. Fernandes utilized the A.M.A., Guides and 

found no sensory or motor deficits in the bilateral lower extremities. The medical evidence fails 

to establish a ratable impairment. On February 10, 2014 an OWCP medical adviser reviewed the 

medical evidence and concurred that appellant had no ratable impairment of either leg pursuant 

to the A.M.A., Guides. 

Appellant has not submitted any medical evidence to support a schedule award under the 

sixth edition of the A.M.A, Guides, or The Guides Newsletter, under FECA. 

On appeal, appellant argues that she is in constant pain and should receive some type of 

compensation. She has the burden to submit medical opinion evidence from Dr. Hodel or any 

other physician establishing permanent impairment. 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 met her burden of proof to establish permanent 

impairment caused by her accepted employment injuries. 

                                                             9 L.J., Docket No. 10-1263 (issued March 3, 2011). 

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

(January 2010). 
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ORDER 

IT IS HEREBY ORDERED THAT the January 13, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 10, 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