United States Department of Labor 

Employees’ Compensation Appeals Board 

_________________________________________ 

N.C., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

BARKSDALE AIR FORCE BASE, LA, 

Employer 

_________________________________________ 

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Docket No. 14-1882 

Issued: March 3, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 25, 2014 appellant filed a timely appeal from the February 26, 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 schedule award determination.2

 

ISSUE 

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

impairment due to her accepted conditions. 

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant asserted that she should receive a schedule award and provided additional evidence in 

support of her claim. However, the Board has no jurisdiction to review this evidence for the first time on appeal. 20 

C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952). 
2

FACTUAL HISTORY 

On August 10, 1971 appellant, then a 42-year-old secretary, was injured when her right 

shoe heel got caught in her dress, causing her to fall at work. She noted that she fell and bruised 

her right hand, left leg at the ankle, and twisted her right arm, shoulder, neck, entire back, and 

left leg. Appellant did not initially stop work. OWCP accepted her claim for neck and low back 

strain. It also accepted the claim for displacement of cervical intervertebral disc without 

myelopathy, intervertebral disc disorder with myelopathy, lumbar region, and degeneration of 

lumbar intervertebral disc. Additionally, as a result of lumbar traction, OWCP accepted injury to 

the teeth and a dental restoration cost.3 Appellant received appropriate compensation benefits.4

In a January 8, 2013 report, Dr. Austin Gleason, III, a Board-certified orthopedic 

surgeon, noted appellant’s history of injury and treatment and provided an impairment rating 

utilizing the American Medical Association, Guides to the Evaluation of Permanent Impairment, 

(6th ed. 2009) (hereinafter A.M.A., Guides). For the cervical spine, Dr. Gleason referred to page 

564, under motion segment lesions, for single level herniated disc and fusion, and diagnosed a 

class 2 impairment, or 11 percent to the total body. Regarding the lumbar spine, he referred to 

Table 17-4,5

 under motion segment lesions, for a two level spinal stenosis requiring 

decompression and diagnosed a class 3 impairments which gave her 19 percent impairment to 

the total body. Dr. Gleason used the Combined Values Chart to combine the 11 percent for the 

cervical spine with the 19 percent for the lumbar spine to equal 28 percent impairment to the 

total body.6

On April 18, 2013 appellant filed a claim for a schedule award. 

In a May 9, 2013 report, OWCP medical adviser noted that Dr. Gleason’s report was 

insufficient, as the A.M.A., Guides did not allow for a schedule award to the spine. He 

explained that a diagnosed injury originating in the spine could be considered only to the extent 

that it resulted in permanent impairment of the extremities as manifested through spinal nerve 

impairment and was best determined using the method discussed in the July/August 2009 issue 

of The Guides Newsletter.

7

 OWCP medical adviser opined that Dr. Gleason’s report was not 

 3

 The record reflects that appellant had preexisting conditions to include: bilateral carpal tunnel syndrome; 

bilateral total knee replacements; rheumatoid arthritis; restless leg syndrome; and fibromyalgia. On February 5, 

1980, appellant underwent excision of right calcific sebdeltoid bursitis, excision bilateral bunions, excision tailor’s 

bunions, and excision bilateral neurofibromas. 

4

 Appellant stopped work on January 13, 1972 and underwent surgery on March 23, 1972 for excision of a 

herniated disc. The record reflects that on September 5, 1983 she was involved in an off-duty automobile accident 

in which she sustained right shoulder, right arm, neck, and low back and left leg pain. On December 1, 1980 OWCP 

terminated appellant’s wage-loss compensation. On November 6, 2001 it accepted a March 21, 2001 claim for a 

recurrence. Appellant subsequently retired. 

5

 A.M.A., Guides 570. 

6 Id. at 542, Table 17-8. 

7

 Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, The Guides Newsletter (A.M.A., Chicago, 

IL), July/August 2009. 
3

sufficiently rationalized and advised that a second opinion should be obtained to determine the 

extent of impairment.

By letter dated May 24, 2013, OWCP referred appellant for a second opinion, along with 

a statement of accepted facts, a set of questions and the medical record to Dr. John Sklar, a 

Board-certified internist. 

In a July 11, 2013 report, Dr. Sklar reported his examination of appellant on July 3, 2013 

and described appellant’s history of injury and treatment. He found that, as appellant was unable 

to stand or ambulate, he was unable to conduct an examination. Dr. Sklar examined her and 

determined that the findings were consistent with the diagnoses of chronic nonspecific upper and 

lower back pain, which was a “symptom more of [appellant’s] fibromyalgia than it would be of 

her work injury many years ago.” He noted that spinal imaging revealed multiple level 

degenerative disease in the cervical and lumbar region, without any specific evidence of a lesion, 

which could be connected to appellant’s complaints. Dr. Sklar determined that electrodiagnostic 

testing was repeatedly negative for any evidence of radiculopathy and he found no evidence of 

radiculopathy affecting the upper or lower extremities related to her cervical and lumbar 

conditions. He advised that there was no evidence of peripheral neuropathy and that 

electrodiagnostic testing failed to demonstrate evidence of radiculopathy. Dr. Sklar concluded 

that under the A.M.A., Guides appellant had zero percent impairment for each upper and lower 

extremity. 

OWCP referred the record to an OWCP medical adviser. In an October 28, 2013 report, 

OWCP medical adviser reviewed the record and the statement of accepted facts. He determined 

that the date of maximum medical improvement was July 3, 2013, the date of Dr. Sklar’s 

evaluation. OWCP medical adviser agreed with Dr. Sklar’s finding of zero percent impairment 

of the upper and lower extremities. 

In an October 30, 2013 decision, OWCP denied appellant’s claim for a schedule award. 

Although there was no request for reconsideration of the schedule award decision, on 

February 26, 2014 it reiterated the denial of the schedule award. OWCP found that the medical 

evidence did not demonstrate a measurable impairment and the requirements were not met for 

entitlement to a schedule award. 

LEGAL PRECEDENT 

Section 8107 of FECA8

 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.9 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.10 The A.M.A., Guides has been adopted by the implementing regulations as the 

 8

 5 U.S.C. §§ 8101-8193. 

9 Id. at § 8107. 

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

appropriate standard for evaluating schedule losses.11 For decisions issued after May 1, 2009, 

the sixth edition will be used.12 

In addressing upper and lower extremity impairments, the sixth edition requires 

identifying the impairment for the Class of Diagnosis (CDX), which is then adjusted by grade 

modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical 

Studies (GMCS).13 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).14 

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 offers an approach to 

rating spinal nerve impairments consistent with sixth edition methodology.15 OWCP has 

adopted this approach for rating impairment to the upper or lower extremities caused by a spinal 

injury.16

ANALYSIS 

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

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

In support of her claim for a schedule award, appellant submitted a January 8, 2013 

report from Dr. Gleason, who opined that she had 28 percent impairment to the total body. 

FECA, however, does not provide for a schedule award based on whole person impairment.17 As 

Dr. Gleason did not provide an impairment rating in accordance with the requirements of FECA, 

his report is of limited probative value. 

On May 24, 2013 OWCP referred appellant for a second opinion examination, along with 

a statement of accepted facts, a set of questions and the medical record to Dr. Sklar, a Boardcertified internist. In his July 11, 2013 report, Dr. Sklar determined that the findings were 

consistent with the diagnoses of chronic nonspecific upper and lower back pain, which was a 

“symptom more of [appellant’s] fibromyalgia than it would be of her work injury many years 

ago.” Dr. Sklar explained that spinal imaging revealed multiple level degenerative disease in the 

 11 20 C.F.R. § 10.404. 

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

Chapter 2.808.5(a) (February 2013). 

13 A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010). 

14 Id. at 521. 

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

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

(January 2010). 

17 See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its 

implementing regulations provide for a schedule award for impairment to the body as a whole). 
5

cervical and lumbar region, without any specific lesion which could be connected with 

appellant’s complaints. He determined that, as repeat electrodiagnostic testing was negative for 

any evidence of radiculopathy affecting the upper or lower extremities related to her cervical and 

lumbar conditions, appellant had zero percent impairment for each upper extremity and lower 

extremity. 

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP medical adviser for an opinion concerning the nature and percentage 

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

18

In an October 28, 2013 report, OWCP medical adviser noted appellant’s history and 

reviewed Dr. Sklar’s report. He concurred with Dr. Sklar and concluded that there was no basis 

to rate any impairment to a scheduled body member. 

The evidence of record at the time of OWCP’s February 26, 2014 decision is insufficient 

to establish ratable impairment to a scheduled body member as a result of appellant’s accepted 

conditions. 

CONCLUSION 

The Board finds that OWCP properly denied appellant’s claim for a schedule award. 

 

18 Supra note 12 at Chapter 2.808.6(d) (August 2002). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 3, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board