United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer 

__________________________________________ 

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Docket No. 14-833 

Issued: September 9, 2014 

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 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On March 4, 2014 appellant, through his attorney, filed a timely appeal from a 

January 27, 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 the claim. 

ISSUE 

The issue is whether appellant has established entitlement to a schedule award based on 

his accepted left arm and back conditions. 

FACTUAL HISTORY 

This case has previously been before the Board. In a March 25, 2013 order remanding 

case, the Board set aside OWCP’s August 20, 2012 decision denying appellant’s schedule award 

 1

 5 U.S.C. §§ 8101-8193. 
2

claim due to employment injuries of December 27, 2002 and April 9, 2003.2

 The facts and 

history contained in the prior appeal are incorporated by reference.3

 

On August 29, 2008 appellant filed a Form CA-7 claim for a schedule award. On 

February 1, 2010 he underwent L5-S1 laminectomy and fusion surgery. OWCP subsequently 

referred appellant to Dr. Bienvenido D. Ortega, a Board-certified neurologist, for a second 

opinion regarding his schedule award claim. In a March 20, 2010 report, Dr. Ortega reported his 

review of the medical record, including the statement of accepted facts and objective studies and 

noted that appellant reported complete resolution of left elbow shortly after the accident and that 

he had so far recovered fully following the February 1, 2010 surgery with no pain whatsoever. 

He opined that there was no medical evidence that appellant had any permanent impairment due 

to any current objective findings as a result of the work-related injury. 

On April 11, 2012 an OWCP medical adviser reviewed Dr. Ortega’s March 20, 2010 

impairment evaluation as well as an August 25, 2010 report from Dr. Bruce T. Cohn, a Boardcertified orthopedic surgeon, who released appellant to full-duty work. The medical adviser 

found no motor or sensory deficits of the bilateral lower extremities under the sixth edition of the 

American Medical Association’s supplemental publication (The Guides Newsletter) 

(hereinafter). He agreed with Dr. Ortega that there was no residual lower extremity impairment. 

In an April 20, 2012 decision, OWCP denied appellant’s schedule award claim. 

Appellant requested an oral hearing, which was held on July 18, 2012. A June 19, 2012 

report from Dr. John L. Dunne, an osteopath, noted the history of injury, a review of medical 

records and examination findings. He opined that appellant had zero percent impairment for a 

fully resolved contusion of the left elbow. Dr. Dunne also opined that there was 12 percent 

impairment of the whole person for the lumbar spine. He explained that there had been an 

alteration of motion segment integrity at a single level and explained the methodologies used to 

compute the impairment rating under Chapter 17 of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (A.M.A., Guides) (hereinafter). 

By decision dated August 20, 2012, an OWCP hearing representative affirmed the prior 

decision of April 20, 2012. She noted that Dr. Dunne’s report “neither utilizes the guidelines in 

The Guides Newsletter nor addresses Dr. Ortiz’ lack of any objective findings of ongoing 

herniation or radiculopathy.”4

Following the Board’s order on remand, OWCP referred the case record to its medical 

adviser to review Dr. Dunne’s June 19, 2012 report. In an April 29, 2013 report, Dr. Morton 

Slutsky, an OWCP medical adviser Board-certified in occupational medicine, noted his review of 

the record and opined that appellant had reached maximum medical improvement as of 

 2

 Docket No. 12-1932 (issued March 25, 2013). 

3

 This claim involves master case file number xxxxxx520, which was accepted for contusion of the back, 

contusion of the left elbow, lumbar sprain, lumbosacral neuritis or radiculitis and herniated disc as a result of the 

December 27, 2002 fall and subsidiary case file number xxxxxx026, which involved an April 9, 2003 temporary 

aggravation of lumbar sprain and lumbar disc herniation, resolved as of August 2, 2004. 

4

 While the hearing representative refers to the second opinion examiner as Dr. Ortiz, this should be Dr. Ortega. 
3

August 25, 2010. He advised that there was no basis for a left upper extremity rating related to 

the accepted left elbow condition, as this was the same rating Dr. Dunne had rated for the left 

elbow. Dr. Slutsky further advised that there was no basis for a lower extremity impairment 

rating in either extremity since there were no objective sensory/motor deficits in the lower 

extremities related to the accepted lumbar conditions. He noted that Dr. Dunne reported normal 

lower extremity strength and sensation. Dr. Slutsky also noted that Dr. Dunne based his rating 

on tables in Chapter 17 of the sixth edition of the A.M.A., Guides,

5

 which referred to impairment 

of the spine itself and not to the lower extremities. He explained that impairment of a lower 

extremity, referable to an accepted spinal injury, was covered by the July/August 2009 The 

Guides Newsletter and not the spine tables in Chapter 17. 

By decision dated July 25, 2013, OWCP denied appellant’s schedule award claim. The 

weight of the medical evidence was accorded to the medical adviser’s opinion. Appellant, 

through his attorney, requested a telephonic hearing, which was held on December 2, 2013. He 

testified that, while he was still working full duty as a letter carrier, he had difficulty with 

personal matters such as jogging and swimming due to his back condition. Appellant’s attorney 

argued that the July/August 2009 The Guides Newsletter was faulty and OWCP should apply a 

rating method more favorable to appellant, such as that determined by Dr. Dunne. 

In a decision dated January 27, 2014, an OWCP hearing representative found that the 

weight of the medical evidence rested with the opinion of OWCP’s medical adviser, Dr. Slutsky, 

finding that Dr. Dunne’s rating was not based on The Guides Newsletter. 

LEGAL PRECEDENT 

The schedule award provision of FECA6

 and its implementing federal regulations,7 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.8

 For decisions after 

February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.9

 

For decisions issued after May 1, 2009, the sixth edition is to be used.10 

 5

 A.M.A., Guides (6th ed. 2008). 

6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 

8 Id. at 10.404(a). 

9

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

(January 2010). 

10 FECA Bulletin No. 09-03 (issued March 15, 2009). 
4

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.11 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.12 

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

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.13 OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables outlined in a 

July/August 2009 The Guides Newsletter.

14 

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish a ratable 

impairment of the left upper extremity or either of his lower extremities due to his accepted left 

arm and back conditions. OWCP accepted that, under the current case file, he sustained lumbar 

sprain, lumbosacral neuritis or radiculitis and a herniated disc as a result of the December 27, 

2002 fall. Under subsidiary case file number xxxxxx026, it accepted that appellant sustained an 

April 9, 2003 temporary aggravation of his lumbar sprain and a lumbar disc herniation, resolved 

as of August 2, 2004. Appellant filed a schedule award claim. 

In his June 19, 2012 report, Dr. Dunne opined that there was zero percent impairment of 

the left upper extremity. Thus, there was no basis for a left upper extremity rating related to the 

accepted left elbow condition. Accordingly, appellant has not established entitlement to left 

upper extremity impairment. 

In his June 19, 2012 report, Dr. Dunne also opined that there was 12 percent whole 

person impairment based on the accepted spinal injury under Chapter 17 of the A.M.A., Guides. 

FECA does not authorize schedule awards for loss of use of the spine.15 A claimant may still be 

entitled to an award for loss of use of a limb where the cause of the impairment originated in the 

spine. Because the A.M.A., Guides does not provide a separate mechanism for rating spinal 

nerve injuries as impairments of the extremities, OWCP has adopted the standard set forth in The 

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

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

13 Rozella L. Skinner, 37 ECAB 398 (1986). 

14 FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 9 at 

Chapter 3.700, Exhibit 1, n.5 (January 2010); The Guides Newsletter is included as Exhibit 4. 

15 See J.Q., 59 ECAB 366 (2008). 
5

Guides Newsletter. In this case, Dr. Dunne failed to utilize the proper standard. Therefore, his 

opinion as to the extent of appellant’s permanent impairment was of limited probative value.16 

The Board finds that the weight of the medical evidence rests with the opinion of 

Dr. Slutsky, an OWCP medical adviser, who explained how Dr. Dunne’s impairment evaluation 

did not comport with the sixth edition of the A.M.A., Guides. The weight of the medical 

evidence is determined by its reliability, its probative value, its convincing quality, the care of 

analysis manifested and the medical rationale expressed in support of the physician’s opinion.17 

Dr. Slutsky reviewed Dr. Dunne’s impairment ratings. He agreed with Dr. Dunne that there was 

no ratable impairment for the left upper extremity. Dr. Slutsky also noted that, since Dr. Dunne 

reported normal lower extremity strength and sensation, there was no basis for lower extremity 

impairment. He correctly pointed out that Dr. Dunne’s impairment for the spine was not based 

on the standards set forth in The Guides Newsletter. Dr. Slutsky properly noted that, while 

Dr. Dunne provided an impairment rating by using the tables in Chapter 17, the A.M.A., Guides 

provides the appropriate method of evaluating extremity impairments resulting from a spinal 

nerve injury such as radiculopathy.18 When the examining physician does not provide an 

estimate of impairment that conforms to the A.M.A., Guides, OWCP may rely on the impairment 

rating provided by an OWCP medical adviser.19 Accordingly, the weight of the medical opinion 

evidence is accorded to Dr. Slutsky’s medical report. 

There are no other impairment evaluations of record which find a ratable permanent 

impairment to either the left upper extremity or the lower extremities. 

Appellant may request a schedule award or an increased schedule award based on 

evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish entitlement to 

a schedule award for permanent impairment based on the accepted left arm and back conditions. 

 16 James Kennedy, Jr., 40 ECAB 620, 627 (1989). 

17 I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991). 

18 See, e.g., P.G., Docket No. 12-30 (issued May 15, 2012). 

19 See supra note 15. 
6

ORDER 

IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 9, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board