United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.R., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, HILL AIR FORCE 

BASE, UT, Employer 

__________________________________________ 

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Docket No. 15-1265 

Issued: February 3, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 20, 2015 appellant filed a timely appeal from an April 23, 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 501.3,2 the Board has jurisdiction 

over the merits of the case.3

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this 

evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final 

decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 

3

 Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. 

§ 501.5(b). By order dated November 25, 2015, the Board denied the request, finding that the arguments on appeal 

could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 

15-1265 (issued November 25, 2015). The Board’s Rules of Procedure provide that any appeal in which a request 

for oral argument is not granted by the Board will proceed to a decision based on the case record and any pleadings 

submitted. 20 C.F.R. § 505.5(b). 
2

ISSUE 

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

impairment due to the accepted lumbar conditions. 

On appeal appellant asserts that she is entitled to full compensation due to her 

employment injury. She also questions whether she was entitled to receive FECA wage-loss or 

schedule award compensation in addition to Office of Personnel Management (OPM) retirement 

compensation. 

FACTUAL HISTORY 

On August 28, 2013 appellant, then a 58-year-old supply technician, filed a traumatic 

injury claim (Form CA-1) alleging that on August 13, 2013 she injured her lower back when 

lifting heavy boxes. She returned to work in a modified-duty status.4

 On October 30, 2013 

OWCP accepted lumbar back sprain. 

Appellant came under the care of Dr. William Brandt, a Board-certified physiatrist, in 

November 2013. A November 19, 2013 magnetic resonance imaging (MRI) scan of the lumbar 

spine demonstrated minor degenerative disc disease at L4-5 and L5-S1 with no evidence of 

herniation or extruded fragment. 

Appellant voluntarily resigned from the employing establishment, effective 

November 29, 2013. She noted that she had a graduate degree and was resigning because she 

had been given no opportunity to advance.5

In February 2014, OWCP referred appellant to Dr. Michael E. Callahan, a Board-certified 

orthopedic surgeon, for a second-opinion evaluation. In a March 13, 2014 report, Dr. Callahan 

described the history of injury and noted his review of the medical record and appellant’s 

complaints of intermittent muscle spasms and constant back pain, aggravated by activity. He 

performed a physical examination, noting that appellant recently had lower extremity vein 

surgery. Back range of motion was diminished, with guarding present. Strength examination 

was normal in both lower extremities. Dr. Callahan diagnosed temporary acute exacerbation of 

preexisting degenerative disc disease and degenerative joint disease of the lumbar spine. He 

advised that she had not reached maximum medical improvement, and provided restrictions in 

lifting, bending, stooping, twisting, pushing, and pulling for a 12-month period. Dr. Callahan 

advised that walking and standing were limited to two hours. 

On March 21, 2014 appellant filed a Form CA-7 claim for a schedule award. In 

correspondence dated March 31, 2014, OWCP noted that Dr. Callahan advised that she had not 

reached maximum medical improvement and informed her of the evidence needed to establish 

spinal nerve extremity impairments. 

 4

 The modified assignment was for sedentary work only and required no lifting, carrying, pushing, or pulling over 

10 pounds; no bending, twisting, squatting, stooping, kneeling, or crawling; no climbing ladders; no overhead 

shoulder lifting; and no back lifting. 

5

 Appellant also indicated that she had an accepted claim and was also a disabled veteran. The record indicates 

that she receives Department of Veterans Affairs (VA) benefits for asthma and sleep apnea. 
3

Appellant filed a second schedule award claim on April 6, 2014. She submitted an 

April 24, 2014 report in which Dr. Michael M. Hess, a Board-certified orthopedic surgeon, noted 

the history of injury and appellant’s complaint of nonradiating back pain. Dr. Hess advised that 

her physical examination was not reliable because she demonstrated three of five Waddell signs 

in that she had a negative sitting straight leg raise and a positive lying supine straight leg raise 

which would be a positive distraction sign; a positive simulation sign and a compression on her 

head that caused pain in her low back; and a positive regional sign in that she had sensory loss 

that was not in the dermatome distribution. He indicated that, in accordance with Table 17-4 of 

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

(hereinafter A.M.A., Guides),6

 appellant had three percent whole person impairment, noting no 

clinical studies, a zero physical examination grade modifier based on inconsistent examination 

findings, and a functional history modifier of two. 

On April 30, 2014 appellant filed a Form CA-7, claims for compensation, for the period 

December 1, 2013 to April 19, 2014. The employing establishment noted that appellant had 

voluntarily resigned on November 29, 2013. 

On May 12, 2014 OWCP additionally accepted temporary aggravation of degeneration of 

lumbar disc L4-5 and L5-S1. In a May 12, 2014 letter, it informed appellant of the evidence 

needed to support her claims for compensation. 

By decision dated July 16, 2014, OWCP denied appellant’s claims for compensation for 

the period December 1, 2013 to April 19, 2014. It noted that she submitted no evidence to 

explain why she could not perform the duties of the modified position from which she resigned.7

 

On October 6, 2014 OWCP informed Dr. Hess that under FECA, awards for permanent 

impairment could not be paid for the spine and could not be given for a whole person 

impairment. OWCP advised that if a spinal nerve caused an extremity impairment, it was proper 

to use the July/August 2009 The Guides Newsletter to rate an extremity impairment. Dr. Hess 

was asked to submit an impairment rating in accordance with The Guides Newsletter, found in 

Exhibit 4, Chapter 3.700, of OWCP procedures. He was asked to indicate a date of maximum 

medical improvement. 

In an October 28, 2014 report, Dr. Hess advised that appellant would have reached 

maximum medical improvement on November 13, 2013. He reported that, because appellant’s 

physical examination was unreliable, as noted in his prior report, he could not give an effective 

extremity impairment, indicating that appellant had no objective evidence of spinal nerve 

involvement.8

In a January 23, 2015 report, Dr. Morley Slutsky, an OWCP medical adviser who is 

Board-certified in occupational medicine, noted his review of the medical record including 

 6

 A.M.A., Guides (6th ed. 2009). 

 7

 Appellant did not file an appeal with the Board from the July 16, 2014 decision. For final adverse OWCP 

decisions issued on and after November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20 

C.F.R. § 501.3(e); D.G., Docket No. 12-770 (issued April 20, 2012). 

8

 Dr. Brandt continued to submit treatment notes. He did not provide an impairment rating. 
4

Dr. Hess’ reports. He advised that maximum medical improvement was reached on 

November 13, 2013. The medical adviser noted that multiple doctors, including Dr. Hess, did 

not find objective evidence of lower extremity sensory, motor, or reflex changes related to the 

accepted low back conditions and, as such, there was no basis for a lower extremity impairment 

rating using July/August 2009 The Guides Newsletter. 

By decision dated April 23, 2015, OWCP denied appellant’s claim for a schedule award 

because the medical evidence did not demonstrate measurable impairment in accordance with the 

A.M.A., Guides.

9

LEGAL PRECEDENT 

The schedule award provision of FECA,10 and its implementing federal regulations,11 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.12 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.13

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.14 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.15

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.16 OWCP has adopted this approach for 

 9

 The decision was initially issued on April 15, 2015. Because it was mailed to an incorrect address, the decision 

was reissued on April 23, 2015. 

10 5 U.S.C. § 8107. 

11 20 C.F.R. § 10.404. 

12 Id. at § 10.404(a). 

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

Chapter 2.803.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exihibit 1 

(January 2010). 

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

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

16 Rozella L. Skinner, 37 ECAB 398 (1986). 
5

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 JulyAugust 2009 The Guides Newsletter.

17 

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

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

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.18

ANALYSIS 

The Board finds that appellant did not meet her burden of proof to establish permanent 

impairment due to the accepted lumbar conditions, which are lumbar strain and temporary 

aggravation of degeneration of lumbar disc L4-5 and L5-S1. 

The only physician who provided an impairment rating was appellant’s treating 

physician, Dr. Hess. In an April 24, 2014 report, Dr. Hess explained that appellant’s physical 

examination was unreliable at that time, noting three of five positive Waddell signs. He 

indicated that, under Table 17-4 of the A.M.A., Guides, appellant had three percent whole person 

impairment. 

As noted above, under FECA a schedule award is not payable for injury to the spine.19 

However, 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.20 Chapter 17 of the 

A.M.A., Guides in entitled “The Spine and Pelvis.”21 Table 17-4 is used to rate the lumbar 

spine.22 

Following a request by OWCP for Dr. Hess to submit an impairment rating in accordance 

with The Guides Newsletter, in an October 28, 2014 report, Dr. Hess advised that appellant 

reached maximum medical improvement on November 13, 2013. He reported that, because 

appellant’s physical examination was unreliable, he could not give an effective extremity 

impairment, indicating that she had no objective evidence of spinal nerve involvement.23 On 

January 23, 2015 Dr. Slutsky, OWCP medical adviser, reviewed the record, including Dr. Hess’ 

reports. He concluded that, as appellant had no lower extremity sensory of motor impairments, 

she would not be entitled to a lower extremity schedule award under The Guides Newsletter. 

 17 FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

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

Chapter 2.808.6(f) (February 2013). 

19 Supra note 14. 

20 Supra note 15. 

21 Supra note 6 at 557-601. 

22 Id. at 570. 

23 Dr. Brandt continued to submit treatment notes. He did not provide an impairment rating. 
6

The Board finds that OWCP medical adviser, Dr. Slutsky, properly reviewed the medical 

record and evaluated appellant’s condition in accordance with OWCP procedures found in the 

July/August 2009 The Guides Newsletter, using Proposed Table 2.24 There is no medical 

evidence in conformance with the A.M.A., Guides showing any lower extremity impairment. 

The Board finds that, as the medical adviser properly applied the A.M.A., Guides to Dr. Hess’ 

clinical findings, his opinion represents the weight of the medical evidence in this case.25 

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 permanent 

impairment due to the accepted lumbar conditions. 

ORDER 

IT IS HEREBY ORDERED THAT the April 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 3, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 24 Supra note 14. 

 25 See N.B., Docket No. 15-1390 (issued November 6, 2015).