United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.B., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL 

TRAINING CENTER, Great Lakes, IL, 

Employer 

__________________________________________ 

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Docket No. 16-0237 

Issued: March 23, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 November 23, 2015 appellant, through counsel, filed a timely appeal from an 

October 22, 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 this case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish that he sustained 

permanent impairment of either lower extremity, warranting a schedule award. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On December 24, 2004 appellant, then a 61-year-old security guard, filed a traumatic 

injury claim (Form CA-1) under File No. xxxxxx938 alleging that he injured his left shoulder 

and the left side of his back and neck when he slipped and fell on ice at work on that day. On 

April 3, 2006 OWCP accepted his claim for lumbar sprain/strain and sprain/strain in an 

unspecified area of the left arm. 

On May 27, 2005 appellant filed another Form CA-1 under File No. xxxxxx394, alleging 

that he hurt his lower back while getting into a van at work on that day. The driver of the van 

drove off before he could get in the van. On October 26, 2005 OWCP accepted appellant’s 

claim for lumbar sprain/strain, lumbosacral sprain/strain, and aggravation of lumbar spondylosis 

with myelopathy. On February 2, 2007 it accepted his claim under File No. xxxxxx938 for 

aggravation of left carpal tunnel syndrome and authorized left carpal tunnel release performed on 

February 16, 2007. 

On March 28, 2011 appellant filed a claim for a schedule award (Form CA-7) in both 

claims. He submitted an August 12, 2011 medical report from Dr. William N. Grant, an 

attending Board-certified internist, who found that appellant, had 22 percent impairment of the 

left upper extremity and 25 percent impairment of each lower extremity under the sixth edition 

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

(A.M.A., Guides). 

On December 18, 2011 and February 20, 2012 Dr. David H. Garelick, an OWCP medical 

adviser who is a Board-certified orthopedic surgeon, reviewed the medical record, including 

Dr. Grant’s findings and determined that appellant had one percent impairment of the left arm 

and two percent impairment of each leg under the sixth edition of the A.M.A., Guides. He 

determined that Dr. Grant’s evaluation was of limited value as he did not cite objective medical 

evidence and was not an orthopedist. Dr. Garelick concluded that appellant reached maximum 

medical improvement on December 10, 2008 the date of an examination performed by 

Dr. Thomas F. Gleason, a Board-certified orthopedic surgeon.2

 

In a May 8, 2012 decision, OWCP granted appellant a schedule award for one percent 

impairment of the left upper extremity, based on its medical adviser’s opinion as the weight of 

the evidence. It paid him compensation for 3.12 weeks from December 10 to 31, 2008. 

By letter dated May 14, 2012, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. 

In a June 22, 2012 decision, an OWCP hearing representative set aside the May 8, 2012 

decision and remanded the case to OWCP. She directed OWCP to combine appellant’s claims 

under File Nos. xxxxxx938 and xxxxxx394, prepare a new statement of accepted facts 

 2

 In a December 10, 2008 report, Dr. Gleason diagnosed neck pain with cervical spondylosis, questionable lumbar 

radicular syndrome post prior surgeries in 1980 and 1983 with report of more recent onset of radiculopathy related 

to the accepted December 24, 2004 employment injury and more recent increased symptoms with 

electromyogram/nerve conduction studies that suggested bilateral S1 radiculopathy, more on the right, and 

degenerative disc disease, and recent postoperative changes that were exacerbated and stable. He concluded that 

appellant had reached maximum medical improvement on the date of his examination, December 10, 2008. 
3

addressing the mechanism of injury for the accepted work injuries and noting appellant’s 

complete medical history, and to refer him for a second opinion examination on whether his 

current medical conditions and any permanent impairment under the sixth edition of the A.M.A., 

Guides were causally related to his accepted December 24, 2004 and May 27, 2005 employment 

injuries. 

On remand, OWCP doubled File Nos. xxxxxx938 and xxxxxx394, with File No. 

xxxxxx938 as the master file. 

By letter dated July 19, 2012, OWCP notified appellant that he was scheduled for an 

August 21, 2012 appointment for a second opinion with Dr. Allan Brecher, a Board-certified 

orthopedic surgeon. 

In an August 21, 2012 report, Dr. Brecher reviewed the statement of accepted of facts and 

medical record and provided appellant’s medical and social background. A review of appellant’s 

systems revealed fatigue, eye and hearing problems, nose bleeds, heart trouble, shortness of 

breath, wheezing, frequent diarrhea and urination, abdominal pain, and musculoskeletal 

problems including, joint and back pain, weakness, and difficulty with walking. Neurologically, 

he had light-headedness, dizziness, numbness, and tingling sensations, problems with paralysis, 

possible memory loss, confusion, and depression. On examination, findings included a healed 

anterior cervical scar and a healed back scar. Appellant’s toe touch was two feet from the floor. 

He had a normal gait, and heel and toe walking. Appellant’s quadriceps and hamstrings were 

each five minus out of five. The extensor halluces longus was normal. Sensibility was intact. 

Appellant had normal hip, knee, and ankle motion. Dr. Brecher assessed diabetes, a history of 

cervical and lumbar spondylosis, and fusions in both regions. Appellant’s current symptoms 

suggested claudication. Dr. Brecher noted the December 2004 and May 27, 2005 work injuries. 

The latter work injury resulted in appellant’s lumbosacral sprain and aggravation of lumbar 

spondylosis. Dr. Brecher noted that appellant returned to full-duty work on April 19, 2005. 

In response to OWCP questions, Dr. Brecher stated that appellant had sprains of the 

lumbar spine with underlying spondylosis and a shoulder sprain. Appellant underwent a left 

rotator cuff repair and now that shoulder was the better shoulder. He had minimal weakness, but 

he had claudication. Dr. Brecher believed that this was a progression of his underlying 

degenerative spine disease which was not related to the accepted December 24, 2004 and 

May 27, 2005 lumbar and cervical sprains and shoulder sprain. He advised that appellant’s 

continuing problem was not related to the accepted conditions. Appellant actually had more 

problems with his right shoulder which was not an injured member. Regarding appellant’s 

work-related permanent or partial impairment, Dr. Brecher advised that his sprains were not high 

velocity injuries. He noted that, after the first injury, appellant was returned to full-duty work 

the next year. Appellant’s second injury was only an injury to his back that was a temporary 

aggravation of his underlying spondylosis. Dr. Brecher believed that appellant had continued 

progression of his spondylosis which caused claudication-like symptoms unrelated to his work 

injuries. He advised that appellant’s residual weakness was not related to the work injuries. 

Dr. Brecher concluded that appellant had two percent impairment of the arm due to tendinitis and 

weakness and five percent permanent impairment of both legs and arms due to weakness under 

the sixth edition of the A.M.A., Guides. 
4

In an October 15, 2012 decision, OWCP denied appellant’s claim for a schedule award. 

It found that the weight of the evidence rested with Dr. Brecher’s opinion that appellant’s current 

conditions and resulting impairment were not related to his accepted December 24, 2004 and 

May 27, 2005 employment injuries. 

By letter dated October 19, 2012, appellant, through counsel, requested a telephone 

hearing with an OWCP hearing representative. 

In a January 9, 2013 decision, an OWCP hearing representative set aside the October 15, 

2012 decision and remanded the case to OWCP to obtain a supplemental report from 

Dr. Brecher, who was to provide rationale to support his opinion that the aggravation of 

appellant’s lumbar spondylosis was temporary, and address whether appellant’s tendinitis and 

weakness in his left shoulder were due to his accepted December 24, 2004 work injuries and 

whether he had any residuals or impairment related to his accepted conditions under the sixth 

edition of the A.M.A., Guides. 

Following OWCP’s request, on October 16, 2013, Dr. Brecher explained why the 

aggravation of appellant’s lumbar spondylosis was temporary. He noted that appellant had a 

history of multiple lumbar surgeries and chronic failed back syndrome, but after the aggravation 

appellant returned to full-duty work on April 19, 2005. This reflected that appellant’s 

lumbosacral sprain and aggravation of lumbar spondylosis had returned to baseline. Dr. Brecher 

noted that this did not mean that appellant was without pain. Appellant had chronic pain and 

underwent multiple back surgeries. Dr. Brecher advised that the temporary aggravation resolved 

when appellant returned to work. He further advised that appellant’s tendinitis and weakness of 

the left shoulder resulted from his December 24, 2004 employment-related fall. Dr. Brecher 

found no impairment for appellant’s employment-related left carpal tunnel syndrome and left 

small trigger finger under the sixth edition of the A.M.A., Guides as his physical examination 

findings did not reveal any signs of these conditions. 

On December 31, 2013 OWCP accepted appellant’s claim for temporary aggravation of 

lumbar spondylosis that resolved as of April 19, 2005 and left small trigger finger. 

On January 5, 2014 Dr. Christopher Gross, an OWCP medical adviser who is Boardcertified in psychiatry and neurology, reviewed the medical record, including the reports of 

Drs. Brecher and Garelick, and Dr. Sanjai K. Shukla, an OWCP medical adviser and a Boardcertified orthopedic surgeon.3

 He utilized the sixth edition of the A.M.A., Guides and The 

Guides Newsletter July/August 2009 to rate appellant’s impairment. Dr. Gross noted 

Dr. Brecher’s October 16, 2013 findings and determined that resolved pathologies were class 0 

diagnoses with no impairment. He determined that appellant reached maximum medical 

improvement on December 10, 2008 the date of Dr. Gleason’s evaluation. Regarding the 

bilateral lower extremities, Dr. Gross related that neither Dr. Brecher nor Dr. Shukla used the 

preferred The Guides Newsletter July/August 2009 for disabilities relating to the spine. 

Dr. Shukla noted S1 sensory loss while Dr. Brecher’s most recent examination noted full 

sensation, but mild (5-/5) quadriceps weakness. Dr. Gross found that appellant had a grade 1 

 3

 In a December 18, 2011 report, Dr. Shukla found that appellant had two percent impairment of each lower 

extremity. He also found that appellant reached maximum medical improvement on December 10, 2008, the date of 

Dr. Gleason’s examination. 
5

diagnosis for right L4 radiculopathy with mild motor loss (The Guides Newsletter

July/August 2009, Table 2). Based on Table 16-6, page 516, he had a mild functional problem 

without an antalgic gait which represented a grade l modifier. Physical examination was not 

relevant as the neurologic findings were used to define impairment ranges. Clinical studies were 

also not relevant. Dr. Gross determined that appellant had a net adjustment of zero. He had five 

percent bilateral leg permanent impairment. Dr. Gross noted, however, Dr. Brecher’s finding 

that appellant had residual weakness not related to his injuries and that his lumbosacral pain and 

aggravation of lumbar spondylosis had returned to baseline. Therefore, he determined that since 

appellant’s weakness was attributed to preexisting conditions, appellant had no bilateral lower 

extremity impairment for his accepted conditions. This differed from Dr. Shukla’s rating since 

new medical evidence demonstrated that there were no sensory deficits. Dr. Gross concluded 

that appellant reached maximum medical improvement on August 21, 2012, the date of 

Dr. Brecher’s last examination.4

In a February 12, 2014 decision, OWCP denied appellant’s claim for a schedule award. 

It found that the weight of the evidence rested with Dr. Brecher’s opinion. 

By letter dated February 19, 2014, appellant, through counsel, requested a telephone 

hearing with an OWCP hearing representative. 

In an October 9, 2014 decision, an OWCP hearing representative set aside the 

February 12, 2014 decision and remanded the case to OWCP. She directed OWCP to clarify 

whether appellant’s claim had been accepted for lumbar spondylosis or an aggravation of lumbar 

spondylosis as Dr. Brecher had advised that the aggravation of the lumbar spondylosis had 

resolved, but found that there was impairment related to the underlying condition. 

By decision dated February 2, 2015, OWCP denied appellant’s schedule award claim for 

the lower extremities. It found that his claim under File No. xxxxxx938 was accepted for 

temporary aggravation of lumbar spondylosis that had resolved as of April 19, 2005. OWCP 

noted that it had not accepted appellant’s claim for an underlying spondylosis condition and, 

therefore, there was no need for its medical adviser to review his schedule award claim. 

In a February 11, 2015 letter, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative. A telephone hearing was held on August 5, 2015. 

In an October 22, 2015 decision, an OWCP hearing representative affirmed the 

February 2, 2015 decision. She found that Dr. Brecher’s opinion established that appellant 

sustained a work-related temporary aggravation of his underlying spondylosis condition and that 

he did not sustain any permanent impairment entitling him to a schedule award for his lower 

extremities. The hearing representative noted that appellant’s underlying lumbar condition had 

not been accepted by OWCP. 

 4

 It appears that Dr. Gross inadvertently listed the date of maximum medical improvement as August 21, 2013 

rather than August 21, 2012 as he accurately described Dr. Brecher’s August 21, 2012 examination findings. 
6

LEGAL PRECEDENT 

The schedule award provision of FECA,5 and its implementing federal regulations,6 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions and organs of the body. 

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

regulations as the appropriate standard for evaluating schedule losses.8 Effective May 1, 2009, 

FECA adopted the sixth edition of the A.M.A., Guides9

 as the appropriate edition for all awards 

issued after that date.10

The sixth edition requires identifying the impairment class for the diagnosed condition 

Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).11 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12

No schedule award is payable for a member, function, or organ of the body not specified 

in FECA or in the regulations.13 Because neither FECA nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the back,14 no claimant is entitled 

to such an award.15 However, in 1966, amendments to FECA modified the schedule award 

provision 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. As the schedule award provision of FECA includes the extremities, a 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Ausbon N. Johnson, 50 ECAB 304 (1999). 

8 Supra note 7; Mark A. Holloway, 55 ECAB 321, 325 (2004). 

9

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

10 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); see also, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) 

(February 2013). 

11 A.M.A., Guides 494-531. 

12 Id. at 521. 

13 Henry B. Floyd, III, 52 ECAB 220 (2001). 

14 FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19). 

15 Thomas Martinez, 54 ECAB 623 (2003). 
7

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.16

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

should be routed to OWCP’s 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.17

ANALYSIS 

OWCP accepted that appellant sustained lumbar sprain/strain, sprain/strain in an 

unspecified area of the left arm, aggravation of lumbar spondylosis with myelopathy, 

aggravation of left carpal tunnel syndrome, and left small trigger finger. It paid him a schedule 

award for one percent permanent impairment of the left upper extremity, which was set aside by 

an OWCP hearing representative. Subsequently, OWCP denied appellant’s claim for a schedule 

award for both lower extremities. The Board finds that he has not met his burden of proof to 

establish permanent impairment to either lower extremity due to his accepted conditions.18

The Board finds that the well-rationalized opinion of Dr. Brecher, an OWCP referral 

physician, constitutes the weight of the medical evidence regarding the extent of impairment to 

appellant’s bilateral lower extremities. It does not establish that appellant is entitled to schedule 

award compensation for either lower extremity. In an August 21, 2012 report, Dr. Brecher 

provided normal findings on examination of the lower extremities. While he advised that 

appellant had a continued progression of his underlying lumbar spondylosis which caused 

claudication-like symptoms and resulted in five percent impairment of each leg under the sixth 

edition of the A.M.A., Guides, Dr. Brecher opined that these conditions were not related to the 

accepted employment-related injuries.19 In his supplemental report dated October 16, 2013, 

Dr. Brecher clarified that appellant’s temporary aggravation of lumbar spondylosis had resolved 

as of April 19, 2005, the date he returned to full-duty work. He explained that this reflected that 

appellant’s accepted lumbosacral sprain and aggravation of lumbar spondylosis had returned to 

baseline. 

On January 5, 2014 Dr. Gross, an OWCP medical adviser, reviewed Dr. Brecher’s 

reports.20 He determined that appellant reached maximum medical improvement on 

August 21, 2012 the date of Dr. Brecher’s examination. The medical adviser found that 

appellant had no impairment to the lower extremities under the sixth edition of the A.M.A., 

 16 See Thomas J. Engelhart, 50 ECAB 319 (1999). 

17 See supra note 10 at Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 

2010); Frantz Ghassan, 57 ECAB 349 (2006). 

18 An employee seeking a schedule award has the burden of proof to establish permanent impairment. See 

Denise D. Cason, 48 ECAB 530 (1997). 

19 See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an 

employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought 

is causally related to his or her employment). 

20 See supra note 17. 
8

Guides resulting from either employment injury. He explained that Dr. Brecher attributed 

appellant’s residual weakness to a preexisting condition and not to the accepted employment 

injuries and found that appellant’s employment-related aggravation of lumbar spondylosis had 

returned to baseline. Dr. Gross further explained that the new medical evidence demonstrated 

that appellant had no sensory deficits. 

The Board finds that appellant has not shown that he is entitled to schedule award 

compensation for his lower extremities and, thus, he has not met his burden of proof. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For 

reasons stated above, the Board finds that the weight of the medical evidence does not establish 

that appellant sustained permanent impairment to either lower extremity, warranting a schedule 

award. 

Appellant may request a 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 his burden of proof to establish that he 

sustained permanent impairment of either lower extremity, warranting a schedule award. 
9

ORDER 

IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 23, 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