United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Oklahoma City, OK, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-445 

Issued: May 4, 2015 

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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 17, 2014 appellant filed a timely appeal from a December 10, 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 this case. 

ISSUE 

The issue is whether appellant has established that he sustained more than 31 percent 

permanent impairment to his right lower extremity and more than 31 percent impairment to his 

left lower extremity, for which he received schedule awards. 

On appeal, appellant takes issue with the date of maximum medical improvement. 

 1

 5 U.S.C. § 8101-8193. 
2

FACTUAL HISTORY 

This case was previously before the Board. By decision dated May 18, 2009, the Board 

set aside OWCP’s February 11 and August 1, 2008 decisions, which denied appellant’s requests 

for review of the written record and for reconsideration, respectively, based on the premise that 

he was seeking review of its September 17, 2003 decision, the Board remanded the case to 

OWCP for further proceedings consistent with the Board’s decision and order.2 The facts and 

findings contained in the Board’s prior decision are incorporated herein by reference. The facts 

germane to the present appeal are set forth below. 

By decision dated September 27, 2002, OWCP awarded appellant 14 percent impairment 

for loss of use of the right lower extremity. The award ran for 40.32 weeks for the period 

March 28, 2002 to January 4, 2003. Appellant retired on disability from the employing 

establishment on August 25, 2006. 

Appellant filed a claim for an increased schedule award. 

By decision dated November 21, 2013, OWCP denied appellant’s claim as the medical 

evidence was insufficient to establish permanent impairment to a scheduled member due to the 

accepted work injury. 

Appellant requested reconsideration and submitted additional medical evidence. 

Evidence pertinent to impairment included the February 20, 2014 report of Dr. John Ellis, a 

Board-certified family practitioner, who noted the history of injury and appellant’s complaints, 

reviewed medical records, and set forth examination findings. Diagnoses due to work injury 

included muscle tendon unit strain of back, deranged discs in the back, fusions at multiple disc 

levels from L2 through S1, and bilateral L3, L4, L5, and S1 spinal nerve impairment. Dr. Ellis 

opined that appellant reached maximum medical improvement on February 20, 2014. He noted 

that appellant was temporarily totally disabled since June 15, 2006 and was now permanently 

and totally disabled as a result of his work injury. Utilizing the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment3 (hereinafter the 

A.M.A., Guides), Dr. Ellis found for the right lower extremity, appellant had 4 percent L3 spinal 

nerve impairment; 6 percent L4 spinal nerve impairment; 11 percent L5 spinal nerve impairment; 

and 14 percent S1 spinal nerve impairment, for 35 percent total impairment. Under Table 15-20, 

page 434, the total combined permanent impairment of the right lower extremity was 31 percent. 

For the left lower extremity, Dr. Ellis found appellant had 4 percent L3 spinal nerve impairment; 

6 percent L4 spinal nerve impairment; 11 percent L5 spinal nerve impairment; and 14 percent S1 

spinal nerve impairment, for 35 percent total impairment. Under Table 15-20, page 434, the total 

combined permanent impairment of the left lower extremity was 31 percent. 

 2

 Docket No. 08-2253 (issued May 18, 2009). Appellant’s May 4, 2000 occupational disease claim was accepted 

for aggravation of spinal stenosis, lumbar region; and degeneration of lumbar or lumbosacral intervertebral disc. 

OWCP authorized multiple surgical procedures of the lumbar spine. By decision dated August 21, 2009, OWCP 

accepted appellant’s recurrence of July 19, 2006. 

3

 A.M.A., Guides (6th ed. 2008). 
3

In June 11 and September 24, 2014 reports, Dr. Ronald Blum, an OWCP medical adviser, 

reviewed the statement of accepted facts and the medical evidence of record, including Dr. Ellis’ 

February 20, 2014 report. Based on Dr. Ellis’ findings, Dr. Blum found appellant had 31 percent 

impairment for the right lower extremity and 31 percent impairment for the left lower extremity. 

Utilizing The Guides Newsletter, proposed Table 2, class 1 impairment for each of the 

extremities was calculated as follows: For L3 nerve impairment, mild sensory deficit, grade C, 

was one percent and mild motor deficit, grade C was three percent, for combined four percent 

impairment. For L4, mild sensory deficit, grade C, was one percent, for mild motor deficit, 

grade C, was five percent, for combined six percent. For L5, moderate sensory deficit, grade D, 

was 4 percent; mild motor deficit, grade D, was 7 percent; for combined 11 percent. For S1, 

severe sensory deficit, grade E, was 4 percent, and moderate motor deficit, grade E, was 10 

percent, for combined 14 percent. The total combined in accordance with page 604 of A.M.A., 

Guides was 31 percent (4 + 6 + 11 + 14). Dr. Blum found that since appellant previously 

received 14 percent permanent impairment for the right lower extremity based on motor and 

sensory deficits in the L4-S1 nerve root, that amount should be subtracted from the current 

determination (31-14) to yield 17 percent additional impairment for the right lower extremity. In 

a September 24, 2014 report, he found maximum medical improvement was achieved on 

February 20, 2014, the date of Dr. Ellis’ evaluation. 

By decision dated October 20, 2014, OWCP vacated the November 21, 2013 decision as 

it found that appellant provided a new impairment rating dated February 20, 2014 by Dr. Ellis 

which demonstrated a higher percentage of impairment than previously awarded. 

By decision dated December 10, 2014, OWCP awarded appellant 17 percent left lower 

extremity and 31 percent right lower extremity impairment.4

 The date of maximum medical 

improvement was February 20, 2014 and the period of award ran 138.24 weeks from 

February 20, 2014 to October 14, 2016. 

On appeal, appellant contests the date of maximum medical improvement, noting it 

should be earlier. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations 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.5

 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

 4

 This appears to be typographical error as it should have read 17 percent right lower extremity and 31 percent left 

lower extremity impairment. 

5

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 
4

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

appropriate standard for evaluating schedule losses.6 

A claimant may seek an increased schedule award if the evidence establishes that he 

sustained an increased impairment at a later date causally related to his employment injury.7

 

Moreover, OWCP procedures provide that a claim for an increased schedule award may be based 

on an incorrect calculation of the original award or an increased impairment at a later date which 

is due to work-related factors. In such a situation, an increased schedule award may be payable 

if supported by the medical evidence.8

The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability and Health (ICF). 

For upper and lower extremity impairments, the evaluator identifies the impairment class for the 

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

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

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Evaluators are 

directed to provide reasons for their impairment rating choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.10 

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 

 6 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

7 Linda T. Brown, 51 ECAB 115, 116 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994). 

8

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

Chapter 2.808.7.b (August 2002). 

9 R.Z., Docket No. 10-1915 (issued May 19, 2011). 

10 J.W., Docket No. 11-289 (issued September 12, 2011). 

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

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

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

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

July/August 2009 The Guides Newsletter.

14 

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 percentage of 

impairment using the A.M.A., Guides.

15 

OWCP procedures state that any previous impairment to the member under consideration 

is included in calculating the percentage of loss, except when the prior impairment is due to a 

previous work-related injury, in which case the percentage already paid is subtracted from the 

total percentage of impairment.16 

ANALYSIS 

OWCP accepted that appellant sustained work-related aggravation of lumbar spinal 

stenosis and degeneration of lumbar intervertebral disc and authorized several surgical 

procedures of the lumbar spine. By decision dated September 27, 2002, it awarded appellant 14 

percent permanent impairment of the right lower extremity. Appellant requested an increased 

schedule award based on medical evidence from Dr. Ellis dated February 20, 2014 showing 

progression of his employment-related condition resulting in increased impairment. By decision 

dated December 10, 2014, OWCP awarded 17 percent left lower extremity impairment and 31 

percent right lower extremity impairment. As previously noted, a typographical error occurred 

as the award should reflect 17 percent right lower extremity impairment and 31 percent left 

lower extremity impairment.17 The period of the award ran for 138.24 weeks from the date of 

maximum medical improvement of February 20, 2014. 

In his February 20, 2014 report, Dr. Ellis opined that appellant achieved maximum 

medical improvement on February 20, 2014. He also noted that appellant had 31 percent right 

lower extremity impairment and 31 percent left lower extremity impairment. While Dr. Ellis 

noted impairment percentages due to spinal nerves at L3, L4, L6, and S1, he did not specify how 

he arrived at his calculations or cite to the appropriate sections in the A.M.A., Guides. Thus, his 

report is of limited probative value. 

The Board finds that OWCP properly determined appellant’s permanent impairment 

rating based upon the reports of Dr. Ellis and Dr. Blum, the medical adviser, who properly 

applied the appropriate portions of the A.M.A., Guides and The Guides Newsletter to Dr. Ellis’ 

clinical findings in determining the bilateral 31 percent lower extremity impairments.18 

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

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

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

Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No. 

12-1857 (issued February 26, 2013). 

16 Federal (FECA) Procedure Manual, Id. at Chapter 2.808.7.a(1) (February 2013). 

17 See supra note 5. 

18 See supra note 8 at Chapter 2.810.8(j) (January 2010). 
6

Dr. Blum used Dr. Ellis’ examination findings in conjunction with Proposed Table 2 of the The 

Guides Newsletter and found appellant had 31 percent right lower extremity impairment and 31 

percent left lower extremity impairment. He provided detailed explanations and calculations for 

each nerve impairment and explained how and why the impairments to each nerve root were 

proportioned for sensory deficits and motor deficits. For L3 nerve impairment, this amounted to 

mild sensory deficit one percent and mild motor deficit three percent, for a combined four 

percent impairment under A.M.A., Guides page 604. For L4 nerve impairment, this amounted to 

mild sensory deficit one percent and mild motor deficit five percent, for combined six percent. 

For L5 nerve impairment, this amounted to moderate sensory deficit four percent and mild motor 

deficit seven percent. While Dr. Blum found this equated to a totaled 11 percent impairment, 

proper combination under page 604 equates to 9 percent impairment.19 For S1 nerve 

impairment, this amounted to severe sensory deficit 4 percent and moderate motor deficit 10 

percent. While Dr. Blum found a combined value of 14 percent, proper calculation under page 

604 amounts to 12 percent impairment. The total combined impairment of 4 plus 6 plus 9 plus 

12 equals 31 percent. Therefore, Dr. Blum’s erroneous calculations in utilizing the Combined 

Values Chart on page 604 are harmless error in light of the fact the total percentage remains 31 

percent for each lower extremity. As appellant previously received 14 percent impairment to his 

right lower extremity, the medical adviser properly subtracted that amount from the current 

determination of 31 percent to yield 17 percent additional right lower extremity impairment. 

There is no other evidence demonstrating a higher percentage of impairment pursuant to the 

A.M.A., Guides. Therefore, OWCP properly issued the December 10, 2014 schedule award for 

17 percent impairment of the right lower extremity and 31 percent impairment of the left lower 

extremity. 

On appeal appellant contests the date of maximum medical improvement, noting it 

should be earlier. Maximum medical improvement refers to a date from which further recovery 

or deterioration is not anticipated, although over time there may be some expected change. Only 

when an impairment has reached maximum medical improvement can a permanent impairment 

rating be performed.20 The period covered by a schedule award commences on the date that the 

employee reaches maximum medical improvement from residuals of the employment injury.21 

In this case, both Dr. Ellis and Dr. Blum found that appellant reached maximum medical 

improvement on February 20, 2014. Furthermore since the record reflects appellant is not on 

OWCP continuing periodic compensation rolls, this date of maximum medical improvement is to 

his advantage as it reflects a higher pay rate, than would an earlier date.

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. 

 19 The Guides Newsletter at page 3 states that motor and sensory impairments are to be combined. 

20 See A.M.A., Guides 26; Patricia J. Penney-Guzman, 55 ECAB 757 (2004). 

21 Albert Valverde, 36 ECAB 233, 237 (1984). 
7

CONCLUSION 

The Board finds that appellant did not sustain greater than 31 percent permanent 

impairment to the right lower extremity and 31 percent permanent impairment to the left lower 

extremity, for which he received a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the December 10, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 4, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board