United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.C., Appellant 

and 

DEPARTMENT OF THE ARMY, 

TRAINING DOCTRINE COMMAND, 

Fort Rucker, AL, Employer 

__________________________________________ 

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Docket No. 15-1671 

Issued: May 24, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 3, 2015 appellant filed a timely appeal from a May 21, 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 claim. 

ISSUE 

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

impairment of a scheduled member, warranting a schedule award. 

On appeal appellant contends that OWCP did not review all of the medical evidence. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 2, 1996 appellant, then a 43-year-old heating and air conditioning mechanic, 

filed an occupational disease claim (Form CA-2) alleging that, while working in the steam pits 

during the week of January 16 through 23, 1996, he experienced low back pain. On May 29, 

1996 OWCP accepted appellant’s claim for lumbar strain. This was subsequently expanded to 

include an L4-5 herniated disc. Appellant underwent a lumbar laminectomy for recurrent L4-5 

herniated disc on April 4, 1998. He stopped work in January 1996 after the injury. Appellant 

returned to work on May 30, 1996 and worked in light-duty status intermittently through 

September 1999. In September 1999, he elected to retire from civil service and has not returned 

to work. On September 12, 2001 appellant underwent a repeat discectomy with a fusion at L4-5. 

On July 31, 2002 he elected to receive compensation benefits from FECA due to his workrelated accepted conditions and subsequent treatment. Appellant has been receiving 

compensation benefits on the periodic rolls beginning July 31, 2002. 

On December 9, 2010 OWCP had referred appellant to Dr. Darrell J. Potter, a Boardcertified orthopedic surgeon, for a second opinion to determine whether appellant continued to 

have any residuals of his accepted conditions. In a February 1, 2011 report, Dr. Potter diagnosed 

intervertebral disc herniation with arthrodesis. He stated that appellant had failed back surgery 

syndrome and that, by March 2003, he was no longer able to work. Dr. Potter noted that his 

present symptoms were related to the residuals of his herniated nucleus pulposa and subsequent 

surgeries. He indicated that the short periods appellant worked between 1996 and 2003 were 

because his job duties were of a very limited capacity, and because significant adjustments had 

been made to allow him to maintain employment. Dr. Potter also determined that under the sixth 

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

Impairment (A.M.A., Guides), appellant had 25 percent whole person impairment based on the 

lumbar spine regional grid.2

 

Appellant’s treating physicians continued to find appellant totally disabled. 

On June 21, 2012 OWCP referred appellant to Dr. Tai Q. Chung, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine his continued disability. 

Dr. Chung listed an impression of lumbar disc herniation L4-5 status post lumbar discectomy 

and fusion. She noted that appellant had ongoing pain and tenderness in the lumbar spine and 

restricted range of motion. Dr. Chung noted that there was evidence that the surgical procedures 

to treat his work-related injury caused his disability. She recommended a sedentary job. 

On September 5, 2012 OWCP referred appellant to Dr. Roland Hester, a Board-certified 

orthopedic surgeon, to resolve a conflict with regard to appellant’s work restrictions and ability 

to work. In an October 23, 2012 report, Dr. Hester noted that appellant’s lumbar strain had 

resolved and that the L4-5 herniated disc had been fused and was no longer causing disability. 

However, he determined that there were significant residuals from the surgery. Dr. Hester 

opined that appellant could not perform his date-of-injury job but could work in a sedentary 

 2

 A.M.A., Guides 570, Table 17-4. 
3

position. On December 20, 2012 the claims examiner declined to pursue vocational 

rehabilitation as appellant’s limitations did not meet the requirements for sedentary employment. 

Dr. John C. Wessner, appellant’s treating Board-certified internist, also indicated in a 

June 25, 2013 note, that appellant was unable to work in any capacity and that this condition was 

permanent. 

On September 3, 2014 appellant filed a claim for a schedule award (Form CA-7). By 

letter dated September 8, 2014, OWCP advised him to submit a medical report in support of his 

schedule award claim. It noted that this report should include objective findings on examination, 

subjective complaints and diagnosis of the condition affecting appellant’s extremities, as well as 

a percentage of impairment of the affected extremities with an explanation as to how it was 

calculated using the A.M.A., Guides (6th ed. 2009). 

In a September 16, 2014 note, Dr. Wessner stated that appellant has been disabled based 

on well-documented lumbar disc disease. He noted that appellant continued to experience severe 

back pain on a daily basis and that his condition had not improved despite surgery, therapy, and 

medication. Dr. Wessner believed that appellant’s disability was total and permanent at this 

stage and that he had reached maximum medical improvement. 

By decision dated October 15, 2014, OWCP denied appellant’s claim for a schedule 

award as he had not established employment-related permanent impairment of a scheduled 

member. 

On October 28, 2014 appellant requested a review of the written record by an OWCP 

hearing representative. Subsequent to his request, he submitted multiple reports detailing his 

treatment in 1996. Appellant resubmitted the aforementioned January 24, 2011 report by 

Dr. Potter which found 25 percent whole person impairment as well as reports by his treating 

Board-certified orthopedic surgeon, Dr. Max E. Burr, from 1996, which included previously 

considered operative reports. 

By decision dated May 21, 2015, the hearing representative affirmed OWCP’s 

October 15, 2014 decision. He found that appellant had not submitted any evidence establishing 

a permanent impairment of his lower extremities causally related to his accepted back injury. 

LEGAL PRECEDENT 

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proof to establish that the condition for which a schedule award is 

sought it causally related to his or her employment.3

Section 8107 of FECA 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.4

 FECA, 

 3 Veronica Williams, 56 ECAB 367 (2005). 

4

 5 U.S.C. § 8107. 
4

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.5

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

appropriate standard for evaluating schedule losses.6

 Effective May 1, 2009, schedule awards 

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

7

 

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8

 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 schedule 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.9

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

spinal neve injuries as impairment of the extremities. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter, July/August 2009, offers 

an approach to rating spinal nerve impairments consistent with sixth edition methodology.10 

OWCP has adopted this approach for rating impairment to the upper or lower extremities caused 

by a spinal injury.11

An opinion on permanent impairment is of limited probative value if it is not derived in 

accordance with the standards adopted by OWCP and approved by the Board as appropriate for 

evaluating schedule losses.12

ANALYSIS 

The Board finds that the weight of the medical evidence does not establish a ratable 

impairment of a scheduled member as a result of the accepted lumbar condition. 

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

6

 20 C.F.R. § 10.404. 

7

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010). 

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

9 Thomas J. Englehart, 50 ECAB 319 (1999). 

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

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

(January 2010). 

12 R.L., Docket No. 14-1479 (issued October 28, 2014). 
5

OWCP accepted appellant’s claim for lumbar strain and L4-5 herniated disc. On 

September 3, 2014 appellant filed a claim for a schedule award. In response to OWCP’s request 

for medical evidence in support of his claim, appellant submitted a September 16, 2014 note 

wherein Dr. Wessner opined that appellant had reached maximum improvement. However, 

Dr. Wessner did not make any physical findings in this brief note, nor did he apply the A.M.A., 

Guides. Therefore, his report is insufficient to meet appellant’s burden of proof. 

Appellant requested that OWCP consider other medical evidence in the record. He 

submitted multiple reports from Dr. Burr from 1996 detailing his treatment for his back. 

However, these reports were written 18 years prior to appellant’s claim for a schedule award and 

prior to appellant reaching maximum medical improvement. In 1996 appellant was still actively 

seeking treatment and had not yet reached maximum medical improvement. It is well 

established that a schedule award cannot be determined and paid until a claimant has reached 

maximum medical improvement.13 Furthermore, reports written in 1996 are not relevant to 

appellant’s condition at the time he filed for a schedule award 18 years later. Appellant also 

resubmitted the second opinion report by Dr. Potter, who determined that appellant had 25 

percent whole person impairment based on the lumbar spine regional grid in his February 1, 

2011 report. A schedule award cannot be granted for impairment to the cervical spine and FECA 

does not provide for an impairment of the whole person.14 FECA also excludes the back as an 

organ and, therefore, the back does not come under the provisions for payment of a schedule 

award.15 Thus, Dr. Potter’s January 24, 2011 report is of limited probative value.16 The Board 

notes that neither Dr. Chung nor Dr. Hester reached any conclusion with regard to permanent 

impairment. Therefore, the Board finds that appellant failed to meet his burden of proof to 

establish his claim for a schedule award. 

Appellant argues on appeal that he has serious injury to his back that is permanent. 

However, as there is no medical evidence in conformance with the sixth edition of the A.M.A., 

Guides showing a ratable impairment of a scheduled member, appellant has not met his burden 

of proof to establish a claim for a schedule award. 

Appellant may request a schedule award or increased schedule award based on evidence 

of any 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 failed to meet his burden of proof to establish a 

permanent impairment of a scheduled member caused by his employment injury. 

 13 D.H., Docket No. 13-1642 (issued January7, 2014). 

14 N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004). 

15 5 U.S.C. § 8101(a); Francesco C. Venesiani, 48 ECAB 572 (1997). 

16 S.S., Docket No. 13-2044 (issued February 20, 2014). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated May 21, 2015 is affirmed. 

Issued: May 24, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board