United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

I.S., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Sanford, FL, Employer

__________________________________________

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Docket No. 17-1257

Issued: December 21, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 19, 2017 appellant, through counsel, filed a timely appeal from a February 6, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of the merits of this case.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq. 
2

ISSUE

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

impairment of a scheduled member, warranting a schedule award. 

On appeal counsel asserts that OWCP’s medical adviser did not properly read and 

evaluate the report of appellant’s attending physician.

FACTUAL HISTORY

On April 25, 2011 appellant, then a 45-year-old transportation security officer (screener) 

filed a traumatic injury claim (Form CA-1) alleging that she injured her mid to lower back when 

pulling and loading luggage on April 23, 2011. On June 13, 2011 OWCP accepted sprain of 

back, lumbar region, and lumbosacral spondylosis without myelopathy. Appellant missed 

intermittent periods of work thereafter and was paid appropriate compensation. On June 18, 

2012 she filed a claim for compensation (Form CA-7) for total disability beginning June 3, 2012. 

Appellant was then placed on the periodic compensation rolls. 

A March 25, 2013 magnetic resonance imaging (MRI) scan of the thoracic spine 

demonstrated disc degeneration at multiple levels of the mid and upper thoracic sine. 

Appellant began treatment with Dr. Samy F. Bishai, an orthopedic surgeon, on 

March 26, 2013. Following examination, he diagnosed lumbosacral spondylosis and 

degenerative disc disease of the cervical spine and recommended additional studies. 

An April 4, 2013 electromyography (EMG) and nerve conduction velocity (NCV) study 

of the lower extremities was abnormal with findings suggestive of L2-3 radiculopathy. An 

April 15, 2013 cervical spine MRI scan showed osteophyte complexes associated with disc 

degeneration, facet arthropathy, and hypertrophy at C5-6 and C6-7 with bilateral neural 

foraminal narrowing. April 30, 2013 EMG/NCV studies of the arms were essentially normal. 

OWCP referred appellant to Dr. Jonathan D. Black, a Board-certified orthopedic surgeon, 

for a second opinion examination. In an August 27, 2013 report, Dr. Black noted his review of 

the medical evidence and found that she was neurologically intact on examination. He 

diagnosed lumbar degenerative disc disease and opined that appellant’s subjective complaints 

outweighed objective findings. Dr. Black concluded that she had no employment-related 

disability and could return to work as a transportation security officer. 

November 6, 2013 upper extremity EMG/NCV studies demonstrated mild right carpal 

tunnel syndrome. On December 23, 2013 appellant began treatment with Dr. Robert Reppy, an 

osteopath and an associate of Dr. Bishai. Dr. Reppy provided examination findings and 

diagnosed lumbosacral spondylosis, spinal stenosis of the cervical spine, and degenerative disc 

disease of the cervical and lumbar spines. Appellant also began pain management in 

March 2014 with Dr. Padmaja Yatham, an anesthesiologist. 

OWCP determined that a conflict in medical evidence had been created between the 

opinions of Dr. Reppy and Dr. Black regarding the accepted conditions and whether appellant 
3

continued to be totally disabled. It referred her to Dr. Emmanuel D. Scarlatos, a Board-certified 

orthopedic surgeon, for an impartial evaluation. 

In an April 29, 2014 report, Dr. Scarlatos noted physical examination findings and 

diagnosed cervicalgia with multilevel degenerative arthrosis and disc disease at C5-6 and C6-7, 

preexisting and unrelated; multi-level degenerative disc disease and lumbosacral spondylosis at 

L3 through S1 without spinal stenosis or nerve root impingement, preexisting, and acute 

lumbosacral myofascial strains, resolved. He opined that objective examination findings 

supported that appellant had a soft tissue low back injury on April 23, 2011 that had resolved and 

noted some degree of symptom magnification. Dr. Scarlatos indicated that any disabling 

residuals were not employment related and that the preexisting degenerative disc disease was not 

totally disabling. He concluded that appellant was physically capable of resuming her former 

duties as a transportation security officer with no restrictions. 

In an April 29, 2014 report, Dr. Richard M. Blecha, a Board-certified orthopedic surgeon, 

noted diagnoses of lumbar spondylosis, foraminal stenosis at L4-5 and L5-S1, moderate to 

severe, cervical spondylosis, cervical stenosis at C5-6 and C6-7, and cervical degenerative disc 

disease at C5-6. 

On June 3, 2014 OWCP proposed to terminate appellant’s wage-loss compensation and 

medical benefits. It found that the special weight of the medical evidence rested with the referee 

opinion of Dr. Scarlatos. 

In correspondence dated May 28, 2014, received by OWCP on June 5, 2014, appellant 

maintained that additional conditions of foraminal stenosis at L4, L5, and S1, moderate to severe 

cervical spondylosis, cervical stenosis at C5, C6, and C7, and cervical degenerative disc disease 

at C5 and C6 should be accepted. On June 16, 2014 she disagreed with the proposed termination 

of benefits. 

Dr. Reppy also responded to the proposed termination. In a June 16, 2014 report, he 

disagreed with the findings and conclusions of Dr. Black and Dr. Scarlatos and reiterated 

diagnoses of lumbar disc disease with radiculopathy, sacroiliitis, cervical stenosis, and 

degenerative disc disease of the cervical spine. 

In a supplemental report dated August 14, 2014, Dr. Scarlatos reiterated his prior findings 

and conclusions. 

Dr. Yatham and Dr. Reppy continued to treat appellant. 

On August 29, 2014 OWCP again proposed to terminate appellant’s wage-loss 

compensation and medical benefits. Appellant again disagreed with the proposed termination 

and submitted copious medical evidence. This included a September 15, 2014 report in which

Dr. Harvey Bishow, an orthopedic surgeon, advised that appellant’s many cervical and lumbar 

diagnoses were caused by the April 23, 2011 employment injury. Dr. Reppy also again 

disagreed with the proposed termination in a September 19, 2014 report. 
4

On October 2, 2014 OWCP finalized the termination of wage-loss compensation and 

medical benefits effective October 3, 2014. Appellant, through counsel, timely requested a 

hearing with OWCP’s Branch of Hearings and Review. 

In reports dated October 21, 2014 and May 27, 2015, Dr. Reppy reiterated his findings 

and conclusions. 

A hearing was held on May 12, 2015 regarding the termination of appellant’s wage-loss 

compensation and medical benefits. 

In an impairment evaluation dated June 9, 2015, Dr. Reppy advised that, for diagnoses of 

radiculopathy of the upper and lower extremities and degenerative spondylosis, in accordance 

with the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (hereinafter A.M.A., Guides),3appellant had 22 percent whole person 

impairment. He specifically indicated that, regarding her lower extremities, in accordance with 

Table 16-11 she had class 1 impairments for motor and sensory loss. Dr. Reppy found modifiers 

of 1 for functional history and clinical studies, and applied the net adjustment formula, finding a 

class C sciatic nerve impairment. He determined that, under Table 16-12, Peripheral Nerve 

Impairment, a class C impairment yielded nine percent permanent impairment of each leg. 

Dr. Reppy also found that, under Table 15-21, Peripheral Nerve Impairment, appellant had 13 

percent permanent impairment of each arm. He further found that, in accordance with Table 

17-4, Lumbar Spine Regional Grid, she had a class 1 impairment for the diagnosis of 

degenerative spondylosis, she had nine percent whole person impairment. Dr. Reppy then 

converted all impairment to whole person impairment, concluding that appellant had a total 22 

percent whole person impairment. 

On July 28, 2015 an OWCP hearing representative affirmed the October 2, 2014 

termination decision. 

In correspondence dated September 28, 2016, counsel inquired about appellant’s 

impairment evaluation. By letter dated November 2, 2016, OWCP notified him that it had no 

record of receiving a schedule award claim. On December 1, 2016 appellant submitted one page 

only of a schedule award claim (Form CA-7). On January 24, 2017 OWCP notified her of the 

evidence needed to support her claim for permanent impairment. 

By report dated January 25, 2017, Dr. Arthur S. Harris, a Board-certified orthopedic 

surgeon and OWCP medical adviser, reviewed the record including Dr. Reppy’s June 9, 2015 

report and found that maximum medical improvement had been reached that day. OWCP’s

medical adviser noted that a September 2, 2010 MRI scan of the lumbar spine demonstrated 

lumbar disc protrusion at L5-S1. He concluded that, in accordance with the A.M.A., Guides, 

appellant had zero percent permanent impairment of the right lower extremity and zero percent 

impairment of the left lower extremity. The medical adviser explained that Dr. Reppy did not 

rate her spinal nerve impairments in accordance with the approach outlined in The Guides

Newsletter July/August 2009 and, instead, utilized the charts for peripheral nerve impairments. 

 

3 A.M.A., Guides (6th ed. 2009).
5

OWCP requested that Dr. Harris further explain his impairment opinions. In a 

February 6, 2007 report, Dr. Harris advised that, in accordance with The Guides Newsletter, for 

the disc protrusion at L5-S1, based on Dr. Reppy’s report that appellant had mild symptoms 

which interfered with activity, she had a functional history modifier of 1 bilaterally. He found 

that, with no evidence of either right or left lower extremity neurologic deficit, the physical 

examination modifier was 0, and with no electrodiagnostic testing demonstrating lumbar 

radiculopathy, clinical studies were also consistent with a 0 modifier bilaterally. OWCP medical 

adviser then applied the net adjustment formula and concluded that appellant had zero percent 

permanent impairment of each lower extremity. 

In a decision dated February 6, 2017, OWCP denied appellant’s schedule award claim, 

finding the medical evidence of record insufficient to establish lower extremity permanent 

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

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of any employment injury.4 

The schedule award provision of FECA,5and 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 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.7 For decisions issued 

after May 1, 2009, the sixth edition will be used.8

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.9 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 

 

4

See Tammy L. Meehan, 53 ECAB 229 (2001).

5

5 U.S.C. § 8107. 

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

Chapter 2.808.5a (February 2013); id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

9 Pamela J. Darling, 49 ECAB 286 (1998).
6

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.10

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.11 OWCP has adopted this approach for 

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 the

July/August 2009, The Guides Newsletter.

12

 

ANALYSIS

OWCP accepted sprain of back, lumbar region, and lumbosacral spondylosis without 

myelopathy. Dr. Reppy, an attending physician, submitted an impairment evaluation dated 

June 9, 2015. This was reviewed by Dr. Harris, OWCP’s medical adviser on January 25 and 

February 1, 2017. The medical adviser advised that Dr. Reppy did not properly follow the 

July/August 2009, The Guides Newsletter. The Board finds that appellant has not established

permanent impairment of a scheduled member of her body.

In his June 9, 2015 impairment evaluation, Dr. Reppy concluded that appellant had 22 

percent whole person impairment. However, whole person impairment is not permitted under 

FECA.13 Furthermore, Dr. Reppy also rated appellant for a diagnosis of degenerative 

spondylosis under Table 17-4, found in The Spine and Pelvis chapter of the A.M.A., Guides.

14

 

As noted, under FECA a schedule award is not payable for injury to the spine.15 Dr. Reppy also 

provided an upper extremity impairment rating based on cervical diagnoses which have not been 

accepted. Therefore, his ratings for the upper extremity and that specifically for the cervical 

spine will be disregarded.

16

 Dr. Reppy, however, did rate appellant’s lower extremities, finding

nine percent permanent impairment of both legs based on lower extremity radiculopathy. He

reported that, under Table 16-11, she had a mild motor deficit of each lower extremity for a class 

1 impairment, identified modifiers of 1 for functional history and clinical studies, and applied the 

net adjustment formula. However, rather than utilizing proposed Table 2, he rated appellant 

under Table 16-12, Peripheral Nerve Impairment, finding a class 1 impairment of the sciatic 

nerve, for nine percent permanent impairment of both legs lower extremities. 

 

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

11 Rozella L. Skinner, 37 ECAB 398 (1986).

12 FECA Transmittal Docket No. 10-0004 (issued January 9, 2010); supra note 8 at Chapter 3.700, Exhibit 1, note 

5 (January 2010); The Guides Newsletter is included as Exhibit 4.

13 B.P., Docket No. 08-1457 (issued February 2, 2009).

14 A.M.A., Guides, supra note 3 at 557-601.

15 Supra note 9.

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

employment injury).
7

The Board has long held that an opinion which is not based upon the standards adopted 

by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little 

probative value in determining the extent of a claimant’s impairment.17 Thus, Dr. Reppy’s 

opinion is of limited probative value regarding impairment due to the accepted lumbar 

conditions.

Dr. Harris, OWCP’s medical adviser, utilized the proposed table and identified a lumbar 

disc protrusion at L5-S1 for a class 1 impairment. He then followed the process identified in The 

Guides Newsletter and applied grade modifiers, concluding that appellant had no impairment of 

either lower extremity based on no electrodiagnostic evidence of radiculopathy and mild 

symptoms which did not interfere with activity.18 The Board concludes that appellant has not 

established permanent impairment due to the accepted conditions.19 

Contrary to counsel’s assertion on appeal, the Board finds that Dr. Harris properly 

applied the appropriate portions of The Guides Newsletter as reflected in OWCP procedures, to

Dr. Reppy’s physical findings. There is no probative medical evidence of record to establish 

permanent impairment. Therefore, OWCP’s February 6, 2017 decision finding that appellant 

had not established permanent impairment to a scheduled member was proper under the facts and 

circumstances of this case.20

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION

The Board finds that appellant has failed to establish permanent impairment of a

scheduled member, warranting a schedule award. 

 

17 Carl J. Cleary, 57 ECAB 563 (2006).

18 The Board notes that the record contains an April 4, 2013 EMG/NCV study that demonstrated L2-3 

radiculopathy. However, The Guides Newsletter instructs that, to be of rating value, electrodiagnostic testing must 

be done when a claimant is near maximum medical improvement. The April 4, 2013 study was done more than two 

years before Dr. Reppy’s evaluation on June 9, 2015, when Dr. Harris found appellant to be a maximum medical 

improvement. 

19 See supra note 16. 

20 See H.S., Docket No. 16-1624 (issued January 13, 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the February 6, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 21, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board