United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Downey, CA, Employer 

__________________________________________ 

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Docket No. 16-0861 

Issued: September 27, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 22, 2016 appellant filed a timely appeal from a February 26, 2016 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 more than five percent permanent impairment of his 

left lower extremity, for which he has received a schedule award. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances presented 

in the prior appeal are incorporated herein by reference. The relevant facts are as follows. 

Appellant, a 25-year-old human resources specialist, filed a traumatic injury claim (Form 

CA-1) on October 22, 1976 alleging that he injured his lower back on October 9, 1976 while 

lifting a portable ramp. OWCP accepted the claim for lumbar strain, herniated lumbar disc, and 

lumbosacral degenerative disc disease. 

In a report dated May 29, 2007, Dr. Sangarapilla Manoharan, a specialist in emergency 

medicine, advised that appellant had left lower leg symptoms consisting of numbness and 

tingling in his left lower extremity, as well as weakness in his left leg. He noted that appellant’s 

symptoms were mainly tingling and numbness, as well as weakness in his left leg; he advised 

that there might be a problem with the nerves that supplied the left lower leg. Dr. Manoharan 

noted that appellant had surgery at L4-5, L5-S1 in 1976. He recommended referral to a back 

specialist who could consider whether appellant’s left leg symptoms were causally related to his 

accepted lower back condition. 

In June 2013 appellant filed a claim for a schedule award (Form CA-7) based on a partial 

loss of use of his lower extremities. 

In order to determine whether appellant had any permanent impairment stemming from his 

accepted lumbar strain, herniated lumbar disc and lumbosacral degenerative disc disease 

conditions, OWCP referred him to Dr. Richard A. Rogachefsky, Board-certified in orthopedic 

surgery, for a second opinion examination. In a February 28, 2014 report, Dr. Rogachefsky found 

that appellant had nine percent lower extremity impairment pursuant to the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (sixth edition). He advised that 

appellant underwent an L4 laminectomy and L5 discectomy on November 12, 1976. 

Dr. Rogachefsky noted that appellant’s status was post decompression laminectomy, discectomy, 

and neural foraminotomy; he had developed facet syndrome at the left L4-5 level, probably 

segmental instability and recurrent disc herniation, with some residual motor weakness and 

sensory deficit in the left lower extremity involving the L4, L5, and S1 nerve root, probably by 

perineural scarring. He concluded that his current diagnosis was spinal stenosis syndrome, postlaminectomy, long-term, with two levels of low back lumbar radiculitis. 

Dr. Rogachefsky noted that, under Table 16-12, page 534-35 of the A.M.A., Guides,

3

appellant had a peripheral nerve impairment of the lower extremity impairment for sciatica, 

based on a mild motor deficit in the left leg. This yielded seven percent lower extremity 

impairment under the A.M.A., Guides. Dr. Rogachefsky determined that the date of maximum 

medical improvement (MMI) was February 28, 2014. 

                                                             2

 Docket No. 14-1395 (issued July 6, 2015). 

3

 A.M.A., Guides 534-35. 
3

In a March 22, 2014 report, Dr. Arthur A. Harris, a specialist in orthopedic surgery and 

an OWCP medical adviser, found that appellant had five percent permanent impairment of the 

left lower extremity under the sixth edition of the A.M.A., Guides resulting from his accepted 

lower back conditions. He reported that appellant had undergone an L4-5 laminectomy with left 

L5-S1 disc excision on November 12, 1976 and chronic left lumbar radiculopathy. Dr. Harris 

noted that the sixth edition of the A.M.A., Guides did not provide a diagnosis-based impairment 

or any other method to calculate residual lower extremity impairment for lumbar radiculopathy; 

the July/August (2009) issue of The Guides Newsletter provided a separate approach to rating 

spinal nerve impairments consistent with sixth edition methodology. He noted that, utilizing this 

method, appellant had five percent permanent impairment of the left lower extremity for residual 

problems with mild motor weakness stemming from lumbar radiculopathy. Dr. Harris advised 

that it not did appear that Dr. Rogachefsky was aware of the approach to rate spinal nerve 

impairment, citing The Guides Newsletter. 

By decision dated April 21, 2014, OWCP granted appellant a schedule award for five 

percent permanent impairment of the left lower extremity for the period March 4 to June 9, 2014, 

for a total of 14.4 weeks of compensation. 

Appellant appealed to the Board on June 2, 2014. By decision dated July 6, 2015, the 

Board set aside the April 21, 2014 OWCP decision. The Board found that OWCP improperly 

relied on the report of its medical adviser, Dr. Harris, which contained findings and conclusions 

insufficiently thorough and comprehensible upon which to render a judgment and provided an 

inadequate basis for an impairment rating. The Board noted that Dr. Harris appeared to rate 

appellant’s motor deficits based on lumbar radiculopathy, but failed to identify any positive 

clinical findings of peripheral nerve impairment; further, he failed to indicate the applicable 

tables and figures of The Guides Newsletter he relied on in calculating his impairment rating. 

The Board found that the report of Dr. Rogachefsky, the second opinion examiner, was 

similarly lacking in probative value, because he failed to specify whether his nine percent lower 

extremity impairment rating pertained to the left or to the right lower extremity. The Board 

therefore remanded to OWCP for further development of the medical evidence and to determine 

whether appellant was entitled to a schedule award for impairment of the left lower extremity 

based on his accepted conditions. The Board directed OWCP to refer appellant to another 

second opinion examiner for an updated medical opinion; the examiner was to be instructed to 

make a specific finding as to whether appellant’s current impairment was attributable to the 

accepted conditions and provide a rationalized opinion based on The Guides Newsletter, in 

making findings and conclusions and in rendering his impairment rating. 

OWCP referred the case back to Dr. Rogachefsky. In his October 22, 2015 report, 

Dr. Rogachefsky related that appellant was seen and evaluated in his office on October 22, 2015. 

In discussing appellant’s impairment rating, he noted that appellant was seen on February 28, 

2014, at which time he performed an impairment evaluation using the sixth edition of the A.M.A., 

Guides. Dr. Rogachefsky noted that he had not been instructed to use The Guides Newsletter at 

that time. He then noted that he had recalculated the impairment rating for the spine using The 

Guides Newsletter. Dr. Rogachefsky related that appellant had reached MMI as of 

February 28, 2014. He determined that appellant’s Functional History (GMFH) grade modifier 

was grade 0, Physical Examination (GMPE) and Clinical Studies (GMCS) grade modifiers were 
4

not applicable, therefore, appellant had two percent permanent impairment of the left lower 

extremity for mild motor deficit stemming from lumbar radiculopathy under The Guides 

Newsletter. 

In a January 11, 2016 report, Dr. Michael M. Katz, OWCP’s medical adviser, reviewed 

Dr. Rogachefsky’s October 22, 2015 report. He agreed with Dr. Rogachefsky’s two percent 

impairment rating based on mild motor deficit for lumbar radiculopathy and combined that with 

an additional one percent impairment for mild sensory loss in the L4 spinal nerve, pursuant to 

Table 2 of The Guides Newsletter to find that appellant had three percent permanent impairment 

of the left lower extremity. 

By decision dated February 26, 2016, OWCP denied appellant’s request for an additional 

schedule award. It found based on the opinion of its medical adviser, Dr. Katz, appellant was not 

entitled to an additional schedule award for permanent impairment of his left lower extremity, 

greater than the five percent previously awarded. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 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 to all claimants, good administrative practice 

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

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

appropriate standard for evaluating schedule losses.6 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.7

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

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides 

Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition” 

(July/August 2009) is to be applied.8

                                                             4 Supra note 1. 

5

 20 C.F.R. § 10.404. 

6

 Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). See Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); 

see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

7 Veronica Williams, 56 ECAB 367, 370 (2005). 

8 See G.N., Docket No. 10-850 (issued November 12, 2010); see also 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. 
5

In addressing lower extremity impairments, due to peripheral or spinal nerve root 

involvement, the sixth edition requires identifying the impairment Class of Diagnosis (CDX), 

which is then adjusted by grade modifiers based on GMFH and if electrodiagnostic testing were 

done, GMCS.9

 The net adjustment formula is (GMFH-CDX) + (GMCS-CDX).10

ANALYSIS 

The Board finds that this case is not in posture for decision. 

The Board in its July 6, 2015 decision directed OWCP on remand to refer appellant to a 

second opinion examiner other than Dr. Rogachefsky, whose opinion not only was not rendered 

in accordance with The Guides Newsletter, but was lacking in probative value because he failed 

to specify whether his nine percent lower extremity impairment rating pertained to the left or to 

the right lower extremity. OWCP, however, disregarded the Board’s explicit instructions in its 

February 26, 2016 decision and referred the case back to Dr. Rogachefsky, and asked him to 

provide a new impairment rating pursuant to the July/August (2009) issue of The Guides 

Newsletter. 

The Board finds that Dr. Rogachefsky’s October 22, 2015 report is of limited probative 

value. In his October 22, 2015 report, Dr. Rogachefsky rated appellant’s permanent impairment 

under The Guides Newsletter; however, it is unclear from his report as to whether he based his 

impairment rating on the February 28, 2014 examination, or his current examination. In describing 

his impairment rating, Dr. Rogachefsky noted that he had examined appellant on February 28, 

2014 and that he was “recalculating” his impairment rating because he had not previously been 

advised to use The Guides Newsletter. He reiterated that appellant had reached MMI on 

August 28, 2014, without explaining why appellant had not reached MMI in 2015, since his rating 

of appellant’s permanent impairment decreased from seven percent to two percent. A medical 

report is of limited probative value if it is unclear whether findings from a previous report or more 

current medical examination findings of record were utilized to calculate a schedule award.11 

OWCP’s medical adviser, Dr. Katz, reviewed Dr. Rogachefsky’s October 22, 2015 report 

and found two percent impairment left lower extremity. He then combined that rating with an 

additional one percent impairment rating for mild sensory deficit of the L4 nerve, and found that 

appellant had a total of three percent permanent impairment rating of the left lower extremity 

under Table 2 of The Guides Newsletter. OWCP relied on Dr. Katz’s opinion based upon review 

of Dr. Rogachefsky’s report and denied an award for additional impairment for the left lower 

extremity in its February 26, 2016 decision, despite the fact that it was unclear as to whether 

Dr. Rogachefsky based his 2015 impairment rating on new examination findings, and despite the 

fact that the Board had directed it to refer appellant to a different second opinion examiner in its 

July 6, 2015 decision. 

                                                             9

 A.M.A., Guides 533. 

10 Id. at 521. 

11 See J.R., Docket No. 15-1847 (issued March 4, 2016). 
6

The Board, therefore, finds that OWCP erred by disregarding the plain face of the 

instructions it set forth in its July 6, 2015 decision. Accordingly, the Board will set aside 

OWCP’s February 26, 2016 decision and remand for referral of appellant, the case record and a 

statement of accepted facts to an appropriate second opinion medical specialist to evaluate 

appellant’s permanent impairment of his left lower extremity. 

On remand, OWCP should instruct the new second opinion examiner to make a specific 

finding as to whether appellant’s left lower extremity impairment was attributable to the 

accepted conditions. The second opinion examiner shall then provide an opinion regarding the 

degree of permanent impairment of appellant’s left lower extremity, based on the 

July/August 2009 issue of The Guides Newsletter, and provide an opinion as to the date of MMI. 

After such further development of the record as it deems necessary, OWCP shall issue a de novo

decision.12

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 26, 2016 decision be set aside and 

remanded in accordance with this decision. 

Issued: September 27, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             12 The Board notes that appellant has contested the date of MMI. This issue will be addressed on remand by the 

new second opinion physician.