United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dagsboro, DE, Employer 

__________________________________________ 

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Docket No. 15-0707 

Issued: November 2, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

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 January 23, 2015 appellant, through counsel, filed a timely appeal from a July 29, 

2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 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 this case. 

 1

 Under the Board’s Rules of Procedures, an appeal must be filed within 180 days from the date of the last OWCP 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. 20 C.F.R. § 501.3(e)-(f). 

One hundred and eighty days from July 29, 2014 was January 25, 2015. As that date fell on a Sunday, the appeal 

was due on the next business day which was Monday, January 26, 2015. Since using February 2, 2015, the date the 

appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is 

considered the date of filing. The date of the U.S. Postal Service postmark is January 23, 2015, which renders the 

appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has established left lower extremity impairment greater 

than 10 percent impairment for which she previously received a schedule award. 

On appeal, appellant’s counsel contends that the most recent impartial medical examiner, 

Dr. Kates, did not resolve the conflict in the medical evidence as he simply agreed with the 

OWCP medical adviser. Counsel recommends that the case be remanded and referred for a new 

impartial medical examination. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts as set forth in the Board’s 

prior decision are incorporated herein. The relevant facts are set forth below.3

On October 6, 2003 OWCP issued a schedule award for six percent loss of use of the left 

leg. In a February 13, 2008 decision, the Board found that as the impartial medical examiner’s 

opinion with regard to the schedule award was deficient, the conflict in medical evidence as to 

appellant’s impairment had not been resolved and that the case should be remanded for further 

medical development. Such development was to include referral for another impartial medical 

examination with regard to appellant’s impairment. 

On June 25, 2009 OWCP referred appellant to Dr. Mark Levitsky, a Board-certified 

orthopedic surgeon, for a new impartial medical examination. In a July 29, 2009 report, 

Dr. Levitsky found that appellant had five percent permanent impairment which resulted in four 

percent impairment to her left lower extremity. In response to OWCP’s requests for 

clarification, Dr. Levitsky submitted addendums on September 8 and October 15, 2009 wherein 

he reiterated his findings, indicated that they were based on Table 15-18 of the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2008) (A.M.A., Guides), and noted that he did not determine dermatomal sensory deficit due to 

the fact that appellant could barely tolerate even light touching of her legs with fingers. He 

further explained that she had five percent left lower extremity impairment which results in four 

percent whole body impairment. 

In a decision dated November 17, 2009, OWCP found that the medical evidence 

established that appellant was entitled to a schedule award of four percent of the left lower 

extremity, and as she had already been paid based on six percent impairment, she was not 

entitled to an increased schedule award. However, in a February 24, 2010 decision, OWCP 

remanded the case, finding that Dr. Levitsky was unable to clarify his opinion despite two 

attempts, the conflict in the medical evidence was not resolved, and OWCP must refer appellant 

for another impartial medical examination. 

 3 D.W., Docket No. 07-1523 (issued February 13, 2008). On February 22, 2000 appellant, then a 25-year-old 

rural carrier, filed a traumatic injury claim alleging that on February 8, 2000 she was picking up a “tub of flats” 

when she felt a pain in her back, which gradually increased. OWCP accepted appellant’s claim for herniated disc 

L5-S1 and resulting lumbar surgery. 
3

On March 9, 2010 OWCP referred appellant to Dr. Jerry Case, a Board-certified 

orthopedic surgeon, for a new impartial medical examination. In an April 1, 2010 report, 

Dr. Case diagnosed status post laminectomy and discectomy L5-S1 (April 4, 2000) with residual 

left-sided sciatica. He concluded that based on the sixth edition of the A.M.A., Guides, appellant 

had nine percent permanent impairment of the left lower extremity. 

On April 15, 2010 OWCP referred appellant’s case to OWCP medical adviser. In an 

April 22, 2010 report, OWCP medical adviser Dr. Craig M. Uejo, a physician Board-certified in 

occupational medicine, concluded that Dr. Case did not accurately assign impairment based on 

the criteria of the sixth edition of the A.M.A, Guides. Dr. Uejo applied the A.M.A., Guides to 

Dr. Case’s physical findings and calculated that appellant had five percent impairment of the left 

lower extremity. 

In a decision dated April 28, 2010, OWCP determined that the opinion of OWCP medical 

adviser represented the weight of the medical evidence and that as appellant was entitled to a 

schedule award for five percent and she had already received six percent, she was not entitled to 

an increased schedule award. 

Appellant’s counsel had Dr. Nicholas P. Diamond, an osteopath, who had previously 

given an opinion based on the 5th edition of the A.M.A., Guides, update his opinion to apply the 

sixth edition of the A.M.A., Guides. In an August 24, 2010 report, Dr. Diamond diagnosed L5-

S1 herniated nucleus pulposus with free fragment according to a magnetic resonance imaging 

(MRI) scan; status post hemilaminectomy and discectomy L5-S1; and chronic residual left S1 

radiculopathy. He found that pursuant to Table 16-12, appellant had class 1 grade 4/5 motor 

strength deficit left extensor hallucis longus (sciatic) which equaled nine percent impairment, 

which he adjusted based on a grade modifier of 2 for functional history and 2 for clinical studies 

which he noted yielded a net adjustment of 2, which equaled a left lower extremity impairment 

after net adjustment of 13 percent. Dr. Diamond also noted a class 1 sensory deficit of the left 

S1 nerve root (sciatic) for four percent, adjusted by the functional history modifier of 2 and the 

clinical studies modifier of 2, for a net adjustment of 2, which equaled a left lower extremity 

impairment after adjustment of nine percent, or a total combined left lower extremity impairment 

of 21 percent.4

Appellant, through counsel, requested a hearing, and the hearing was held on 

September 15, 2010. 

In an April 5, 2011 decision, the hearing representative found that Dr. Case had not 

provided adequate rationale to carry the weight of medical opinion. The hearing representative 

also referenced the new report by Dr. Diamond, and remanded for OWCP to refer Dr. Diamond’s 

report to the OWCP medical adviser for review. 

Per the hearing representative’s instructions, in an April 5, 2011 report, Dr. Christopher 

Brigham, the OWCP medical adviser and a physician Board-certified in occupational medicine, 

first discussed motor deficits, and noted that in proposed Table 2 of the A.M.A., Guides 

Newsletter, July/August 2009 (A.M.A., Guides Newsletter), a class 1 rating for mild motor 

 4

 A.M.A., Guides 535, Table 6-12. 
4

deficits reported as 4/5 weakness of sensory nerve impairment there was a class rating for mild 

motor deficits reports as grade 4/5 weakness for the extensor halluces longus (EHL). He then 

found a functional history modifier of 0, as appellant was able to ambulate with a symmetrical 

gait and had not difficulty getting on and off the examination table. Dr. Brigham noted that 

physical examination modifier was excluded since this factor was used to assign the correct 

diagnostic severity. He assigned a grade modifier of 1 for clinical history based on imaging 

studies confirming mild pathology with disc injury at L5-S1. Dr. Brigham noted that the net 

adjustment compared to the diagnosis class was negative 1, which was a grade B and translated 

to three percent lower extremity impairment. He next addressed sensory deficit. Using proposed 

Table, 2, spinal nerve impairment, Dr. Brigham noted a moderate sensory deficit under a class 1 

rating, resulted in two percent lower extremity impairment. He noted that as the functional 

history grade modifier should only be applied for highest diagnosed based impairment, this was 

not applicable and that the grade modifier for physical examination was also excluded since this 

factor was used to place appellant’s condition in the correct diagnostic severity. With regard to 

the functional modifier for clinical studies, Dr. Brigham found a class 2 rating based on herniated 

nucleus pulposus at L5-S1, which would be consistent with possible S1 nerve root involvement. 

When applying the net adjustment of 0, he found that appellant remained a grade C with two 

percent lower extremity impairment. Combining the values, Dr. Brigham found five percent left 

lower extremity impairment. 

By decision dated April 19, 2011, OWCP denied appellant’s claim for an increased 

schedule award. It found that the opinion of Dr. Brigham was considered to be the weight of the 

medical evidence as he is an expert at applying the A.M.A. Guides. 

Appellant requested a hearing. In a June 27, 2011 decision, the hearing representative 

remanded the case for a referee report to resolve the conflict between Drs. Diamond and 

Brigham with regard to appellant’s impairment. 

On August 30, 2011 OWCP referred appellant to Dr. Andrew Gelman, a Board-certified 

orthopedic surgeon, for an impartial medical examination. In a September 14, 2011 opinion, 

Dr. Gelman noted that, pursuant to the 6th edition of the A.M.A., Guides, he derived four percent 

lower extremity default and the adjustment parameters would increase this to six percent 

impairment. 

On September 22, 2011 OWCP referred Dr. Gelman’s report to Dr. Morley Slutsky, a 

physician Board-certified in occupational medicine and OWCP medical adviser, who noted on 

September 25, 2011 that he could not determine if Dr. Gelman properly applied the A.M.A., 

Guides, and that Dr. Gelman did not document detailed calculations. He suggested that the case 

be sent back to Dr. Gelman for clarification. 

In an October 18, 2011 report, Dr. Gelman attempted to clarify his opinion. OWCP 

referred Dr. Gelman’s supplemental report back to OWCP medical adviser, and in an 

October 27, 2011 report, Dr. Slutsky determined that based on Dr. Gelman’s findings and the 

sixth edition of the A.M.A., Guides, appellant had a left lower extremity impairment of seven 

percent. 
5

By decision dated November 14, 2011, OWCP issued appellant an award for an 

additional one percent impairment of the left lower extremity, for a total of seven percent 

impairment. 

On November 18, 2011 appellant, through counsel, requested a hearing, which was held 

on March 28, 2012. 

In a March 22, 2012 report, Dr. Diamond indicated that he stood by his statement that 

appellant sustained 21 percent impairment, and noted various criticisms of Dr. Gelman’s report. 

In a decision dated June 13, 2012, the hearing representative remanded the case with 

instructions that OWCP refer the medical records back to Dr. Gelman for another supplemental 

report addressing his review of the medical record to include Dr. Diamond’s March 2012 report. 

In a June 29, 2012 report, Dr. Gelman reported it was unclear how Dr. Diamond arrived 

at his conclusions and calculations. In an October, 4, 2012 report, Dr. Gelman, noted that he 

continued to disagree with Dr. Diamond’s discussion and methodology. He maintained that 

appellant had a left lower extremity impairment rating of six percent due to the accepted 

diagnosis of L5-S1 herniated nucleus pulposus. 

In an October 12, 2012 decision, OWCP determined that the weight of the evidence 

continued to rest with Dr. Gelman, the impartial medical examiner, and that therefore appellant 

was not entitled to an increased schedule award. 

On October 23, 2012 appellant requested a hearing. This hearing was held on 

February 5, 2013. 

Counsel contended at the hearing that there was a lack of documentation of the use of the 

Physician Directory System (PDS) to select the IME Dr. Gelman. He claimed this ran afoul of 

the appropriate procedure as established by OWCP. 

By decision dated March 28, 2013, the hearing representative set aside the prior decision 

and remanded the case for referral to a new impartial medical examiner. OWCP determined that 

OWCP had neither documented Dr. Gelman’s selection as impartial medical adviser, nor did it 

follow its own procedures with regard to referring appellant to Dr. Gelman. 

On April 1, 2013 OWCP noted that there was a conflict in the medical evidence between 

appellant’s physician, Dr. Diamond, and the OWCP medical adviser, Dr. Brigham, on the extent 

of injury-related impairment. 

On April 9, 2013 OWCP referred appellant to Dr. Jonathan Louis Kates, a Boardcertified orthopedic surgeon, for an impartial medical examination. In a June 10, 2013 report, 

Dr. Kates reviewed the medical evidence and conducted a physical examination. He applied 

proposed Table 2 of The Guides Newsletter and noted that appellant had a moderate sensory 

deficit related primarily to the S1 nerve root, which was an impairment class 1. Dr. Kates noted 

that the grade modifier for clinical studies pursuant to Table 16-8 due to EMG changes was 

grade 1. He then calculated that the grade modifier of clinical studies was 0, and that GMCSCDX equals 0, which is grade 3, which equals two percent impairment. Dr. Kates noted that for 
6

the L5 nerve root, there is a mild motor deficit, which is also class 1. He noted a grade modifier 

for functional history adjustment of 1 as she has antalgic gait and a grade modifier for physical 

examination was not utilized because it was used to determine her impairment class. Dr. Kates 

noted a grade modifier for clinical studies of class 2 based on Table 16-8 of the A.M.A., Guides, 

and that this resulted in a net adjustment of 1, which is a grade D. He noted that this correlated 

on the proposed table for spinal nerves as seven percent deficit and when combined with 2 

percent deficit for the S1 spinal nerve resulted in nine percent total deficit for extremity. 

On July 18, 2013 OWCP referred the case to the OWCP medical adviser. Dr. Slutsky 

noted his agreement with most of Dr. Kates’ rating with the exception of the sensory findings. 

He noted that Dr. Kates noted that there was an area of paresthesia in the left S1 distribution, and 

that this equaled a mild sensory finding using Table 16-11, page 533 of the A.M.A., Guides. 

Dr. Slutsky stated that in order for a moderate loss to be present there must be deficits in light 

touch testing, which Dr. Kates did not document. He asked that Dr. Kates clarify this issue. 

Dr. Slutsky then provided his own calculations. He noted that pursuant to proposed Table 2 of 

The Guides Newsletter, sensory class mild severity is placed in class 1 with a grade C level to 

equal 1 percent of the left lower extremity. With regard to the left L5 lumbar nerve, applying 

Table 16-11 of the A.M.A., Guides, Dr. Slutsky found 4/5 left L5 strength, equal to severity 1 

(mild finding). With regard to motor class, pursuant to The Guides Newsletter, he found a mild 

L5 motor strength loss which is placed into class I with the default grade C equal to five percent. 

Dr. Slutsky noted grade modifiers of 1 for functional history, thereby disagreeing with Dr. Kates 

who found the functional history did not apply. He noted that appellant had an antalgic gait and 

no mention regarding use of external orthotic device, and concluded appellant was eligible for a 

grade modifier of 1. Dr. Slutsky agreed with Dr. Kates that the physical examination modifier 

was irrelevant as neurologic findings were used to define impairment range. For clinical studies, 

he assigned a grade modifier of 2, noting surgery found a large lateral recess and evidence of 

degenerative disc disease involving the L4-5 and L5-S1 disc space levels, and that 

intraoperatively there was a large disc fragment compressing on the nerve roots. Dr. Slutsky 

determined that the grade modifiers resulted in a net adjustment of 1 for a final grade C of 

sensory adjustment. For motor net adjustment, he noted a class of diagnosis of 1, functional 

history of 1, clinical studies of 2 for a net adjustment of 1 for a final grade of D. Dr. Slutsky 

concluded that appellant had a final sensory impairment of one percent and a final motor 

impairment of nine percent, which equaled 10 percent impairment of the left lower extremity. 

On July 26, 2013 OWCP issued an increased award for additional 3 percent impairment 

of the left lower extremity, for a total of 10 percent. By letter dated August 1, 2013, appellant 

requested a hearing, which was held on June 9, 2014. 

In a September 27, 2013 decision, the hearing representative remanded the case for 

clarification from Dr. Kates, noting that OWCP medical adviser may not resolve the conflict in 

medical evidence. 

By letter dated December 20, 2013, OWCP requested that Dr. Kates clarify whether 

appellant had a mild sensory finding or moderate loss (which required light touch testing) in 

accordance with Table 16-11, page 533 of the sixth edition of the A.M.A., Guides. In a 

January 28, 2014 response, Dr. Kates indicated that OWCP’s evaluation was correct in that his 

findings indicate a mild sensory finding as opposed to a moderate finding based on Table 16-11 
7

of the A.M.A., Guides, and that he concurred with the recalculation of final permanent partial 

disability. 

In a February 25, 2014 decision, OWCP determined that appellant was not entitled to 

impairment greater than 10 percent she had already received. 

In a February 14, 2014 report, OWCP medical adviser, Dr. Slutsky, noted that he agreed 

with Dr. Kates’ agreement with Dr. Slutsky’s prior opinion that the final impairment to the left 

lower extremity was 10 percent. He reiterated his prior calculations as set forth in his prior 

report of July 23, 2013, and concluded that appellant had 10 percent impairment of her left lower 

extremity based on 1 percent impairment for sensory deficits in S1 and 9 percent for motor 

deficits in L5. 

By decision dated February 25, 2014, OWCP found that appellant was not entitled to a 

schedule award greater than 10 percent for which she was previously paid. 

On February 28, 2014 appellant requested a hearing, which was held on June 9, 2014. 

On June 6, 2014 Dr. David Weiss, an osteopath and partner of Dr. Diamond, updated 

prior medical opinions from his office. He disagreed with Drs. Slutsky and Kates, and argued 

that there was no error on the degree of motor strength deficit found on physical examination 

versus the motor strength deficit used when calculating the impairment. Dr. Weiss noted that 

based on The Guides Newsletter and the physical examination according to Dr. Kates on June 10, 

2013, he calculated a class 1 mild sensory deficit left S1 nerve root of 1 percent with grade 

modifiers for functional history of 1 and clinical studies of 2, which yielded a net adjustment of 

1, or a left lower extremity after net adjustment of 1 percent. He also found a class 1 moderate 

motor strength deficit of the left extensor halluces longus (L5) of 13 percent, which after 

modifiers of 1 for functional history and 2 for clinical studies, yielded a net adjustment of 1, for a 

left lower extremity impairment due to motor strength deficit of 13 percent, or a final combined 

left lower extremity impairment of 14 percent. 

By decision dated July 29, 2014, hearing representative affirmed OWCP’s February 25, 

2014 decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA5

 and its implementing regulations6 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. OWCP evaluates the degree of permanent impairment according to the standards 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 
8

set forth in the specified edition of the A.M.A., Guides.

7

 The A.M.A., Guides has been adopted 

by the implementing regulations as the appropriate standard for evaluating schedule losses.8

 For 

impairment ratings calculated on or after May 1, 2009, the sixth edition will be used.9

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.10 A 

schedule award is not payable for the loss, or loss of use, of a part of the body that is not 

specifically enumerated under FECA.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. For peripheral nerve impairments to the upper or 

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

Newsletter, Rating Spinal Nerve Impairment Using the Sixth Edition (July/August 2009) is to be 

applied.13 The Board has long recognized the discretion of OWCP to adopt and utilize various 

editions of the A.M.A., Guides for assessing permanent impairment.14 In particular, the Board 

has recognized the adoption of this methodology for rating extremity impairment, including the 

use of The Guides Newsletter, as proper in order to provide a uniform standard applicable to each 

claimant for a schedule award for extremity impairment originating in the spine.15

 7 Id. 

8 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

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

11 M.P., Docket No. 14-777 (issued July 18, 2014). 

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

13 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). 

14 D.S., Docket No. 14-12 (issued March 18, 2014). 

15 R.L., Docket No. 14-1479 (issued October 28, 2014); see also E.D., Docket No. 13-2024 (issued April 24, 

2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 
9

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.16

In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving 

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a 

proper factual background, must be given special weight.17

ANALYSIS 

OWCP accepted appellant’s claim for L5-S1 herniated disc. On October 6, 2003 it issued 

a schedule award for six percent loss of use of the left leg. On November 14, 2011 OWCP 

issued an award for a total of seven percent impairment to appellant’s left lower extremity. On 

July 26, 2013 OWCP issued an additional schedule award for a total impairment to appellant’s 

left lower extremity of 10 percent. Appellant’s requests for an increased schedule award have 

been denied. 

Initially, the Board notes that OWCP had significant difficulty with obtaining a properly 

scheduled, well-rationalized, impartial medical examination. Initially, on February 13, 2008 the 

Board remanded this case to OWCP for a new impartial medical examination.18 Since that time, 

impartial medical examinations by Drs. Levitsky and Case have been rejected as these physicians 

were unable to provide a sufficiently well-rationalized opinion with regard to appellant’s 

impairment of her left lower extremity, despite multiple attempts to do so.19 The opinion of 

Dr. Gelman was rejected as OWCP did not properly follow its procedures in obtaining his 

opinion.20 Multiple OWCP medical advisers have considered appellant’s claim, including 

Drs. Brigham, Uejo, and Slutsky. However, while an OWCP medical adviser may review the 

opinion of a referee specialist in a schedule award case, the resolution of the conflict is the 

specialist’s responsibility and not that of the medical adviser.21 The Board notes that none of the 

 16 See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the 

standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule loses is of little 

probative value in determining the extent of a claimant’s permanent impairment). 

17 Manuel Gill, 52 ECAB 282 (2001). 

18 See supra note 2. 

19 When OWCP secures an opinion from an impartial medical examiner for the purpose of resolving a conflict in 

the medical evidence and the opinion from such examiner requires clarification or elaboration, OWCP has the 

responsibility to secure a supplemental report from the examiner for the purpose of correcting the defect in the 

original opinion. If the specialist is unable or unwilling to clarify or elaborate on his or her opinion as requested, the 

case should be referred to another appropriate impartial medical specialist. Guiseppe Aversa, 55 ECAB 164 (2003). 

20 The Board has held that OWCP has an affirmative obligation to assure that it followed its selection procedures 

in referring appellant for an impartial medical examination. J.S., Docket No. 14-648 (issued July 16, 2014). 

21 R.M., Docket No. 13-1221 (issued February 24, 2014). 
10

aforementioned physicians found that appellant had impairment greater than 10 percent of her 

left lower extremity. 

On April 1, 2013 OWCP found that there remained an unresolved conflict between the 

opinions of Dr. Diamond, appellant’s physician, and Dr. Brigham, an OWCP medical adviser, 

with regard to the degree of impairment to appellant’s left lower extremity. OWCP referred 

appellant to Dr. Kates for an impartial medical examination. In a June 10, 2013 medical opinion, 

Dr. Kates applied the sixth edition of the A.M.A., Guides, including The Guides Newsletter, and 

determined that appellant had nine percent total deficit of the left lower extremity. In reaching 

this conclusion, Dr. Kates noted that appellant had a moderate sensory deficit related primarily to 

the S1 nerve root, and that this was class 1. Dr. Kates found no grade modifier for physical 

examination because the sensory change was used to determine impairment class, and found that 

the functional history grade modifier did not apply to the S1 nerve root. He found a grade 

modifier for clinical studies due to EMG changes of grade 1. He then applied the formula, 

GMCS-CDX which resulted in 0, which is a grade 3, and equaled two percent impairment under 

The Guides Newsletter. With regard to the L5 nerve root, he found a mild deficit, which was a 

class 1. He then applied the grade modifier for functional history of 1 as she had an antalgic gait 

and a grade modifier of clinical studies for class 2. Applying the formula, Dr. Kates found a net 

adjustment of 1, which was a grade D, which correlated to seven percent impairment to 

appellant’s left lower extremity. He then combined the two percent impairment with the seven 

percent impairment and found that appellant had total nine percent impairment of the extremity. 

This case was then referred to Dr. Slutsky, OWCP medical adviser, and in a July 23, 

2013 report, Dr. Slutsky noted that he agreed with most of Dr. Kates’ rating with the exception 

of the sensory findings. Dr. Slutsky noted that Dr. Kates found that appellant had intact sharp 

and light touch testing in the lower extremities and that there was an area of paresthesia in the 

left S1 distribution. Dr. Slutsky noted that this equaled a mild sensory finding using the criteria 

set forth in Table 16-11 of the A.M.A., Guides. He recommended that OWCP ask Dr. Kates 

clarify his opinion. In a January 28, 2014 letter, Dr. Kates reported that OWCP was correct in 

that the findings in his report indicate a mild sensory finding as opposed to a moderate finding 

based on Table 16-11 of the A.M.A., Guides. Dr. Kates noted that he concurred with the 

recalculation of final permanent partial disability by the medical adviser. 

On February 14, 2014 Dr. Slutksy reiterated the calculations he first presented in his 

June 10, 2013 report. As of the date of the February 14, 2014 report, Dr. Kates no longer held 

the position that appellant was entitled to two percent impairment due to moderate sensory 

deficit. Rather, Drs. Slutsky and Kates agreed that appellant had a mild sensory finding for S1, 

which equaled a class 1 impairment, and that when grade modifiers were added of 1 for clinical 

studies, yielded a grade C rating of one percent. 

The Board therefore finds that appellant had one percent impairment based upon the S1 

spinal nerve as Drs. Slutsky and Kates properly applied The Guides Newsletter, proposed Table 

2, in reaching this calculation. However, there is confusion in the reports with regard to the 

findings with regard to the L5 motor deficit. Dr. Kates, in his June 10, 2013 report, noted that 

appellant was entitled to a class 1 deficit for a mild motor deficit to the L5 nerve root. He noted 

that when grade modifiers were applied, appellant had a net adjustment of 1, which was a grade 

D impairment, which equaled seven percent impairment. When Dr. Slutsky reviewed the report, 
11

he found the class of diagnosis was 1, with grade modifiers for functional history of 1 and 

clinical studies of 2, this yielded a net adjustment of 1, or a final grade of D. He then concluded 

that appellant had a final motor impairment of 9 percent and a final sensory impairment of 1 

percent, which equaled 10 percent impairment. However, Dr. Slutsky is mistaken. Pursuant to 

The Guides Newsletter, a grade D impairment for mild motor deficit for L5 is seven percent, 

which is the amount that Dr. Kates correctly found. Therefore, when The Guides Newsletter is 

properly applied, appellant would have one percent impairment for sensory deficit to S1 and 

seven percent impairment for motor deficit to L5, for a combined impairment of eight percent.22 

As 8 percent is less than the 10 percent schedule award of the left lower extremity issued by 

OWCP, appellant had no more than 10 percent impairment, and the Board finds that OWCP 

properly denied appellant a schedule award of greater than 10 percent of the left lower extremity. 

The Board finds that the weight of the medical evidence rests with the opinions of the 

impartial medical examiner, Dr. Kates. The Board rejects counsel’s argument that the case must 

be remanded yet again due to Dr. Kates not providing an opinion sufficient to constitute the 

weight of the medical evidence. Although Dr. Kates’ letter of January 28, 2014 is brief, he 

clearly reports that he concurred with the adjustment to his calculations, noting that his report 

supported mild sensory findings, not moderate. The Board finds that Dr. Kates’ opinion of 

June 19, 2013, as modified by his January 28, 2014 letter, was well-rationalized. The Board 

finds that Dr. Kates, as the impartial medical specialist, properly explained his conclusion with 

regard to impairment, and his report is entitled to special weight.23 

On appeal counsel contends that the reports of Dr. Weiss and Diamond represent the 

weight of the medical evidence. The Board rejects this argument. OWCP referred appellant to 

Dr. Kates to resolve the conflict between Dr. Diamond and Dr. Brigham with regard to the extent 

of appellant’s impairment to her left lower extremity. Counsel submitted a June 6, 2014 report 

by Dr. Weiss, an associate of Dr. Diamond, in support of his contention that appellant was 

entitled to 14 percent impairment of the left lower extremity. Dr. Weiss calculated that appellant 

was entitled to a left lower extremity impairment based on mild sensory deficit of the left S1 

nerve root of 1 percent, which is the same amount found by Dr. Kates and Dr. Slutsky. The 

difference is that Dr. Weiss found impairment of 13 percent of her left lower extremity based on 

moderate motor strength for L5. This issue was resolved by the impartial medical examiner, 

Dr. Kates, who determined that appellant had a mild motor deficit, not a moderate deficit. 

Dr. Weiss and his associate Dr. Diamond were on one side of the conflict of the medical opinion 

that the impartial medical specialist, Dr. Kates, resolved. Subsequent reports from a physician 

who was on one side of a medical conflict that an impartial specialist resolved are generally 

insufficient to overcome the weight accorded to the report of the impartial medical specialist or 

to create a new conflict.24 The Board notes that the findings of Dr. Weiss are not based on any 

new physical examination. Rather, Dr. Weiss merely provided calculations based on 

examination findings already in evidence. 

 22 A.M.A., Guides 604. 

23 See Barbara J. Warren, 51 ECAB 413 (2000). 

24 S.B., Docket No. 14-1703 (issued February 13, 2015). 
12

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. 

CONCLUSION 

The Board finds that appellant is not entitled to an increased schedule award for her left 

lower extremity greater than 10 percent impairment for which she previously received a schedule 

award. 

ORDER 

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

Compensation Programs dated July 29, 2014 is affirmed. 

Issued: November 2, 2015 

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