United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, North Chicago, IL, Employer 

__________________________________________ 

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Docket No. 16-1455 

Issued: December 9, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 7, 2016 appellant, through counsel, filed a timely appeal from an April 28, 2016 

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 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 her bilateral lower extremities warranting a schedule award. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On July 26, 2010 appellant, then a 43-year-old psychiatric nursing assistant, filed a 

traumatic injury claim (Form CA-1) alleging that she injured her lower back, spine, and buttock 

that day while breaking a patient’s fall at work. OWCP accepted the claim for sprain of back, 

lumbar region. 

On March 6, 2014 appellant filed a claim for a schedule award (Form CA-7). She 

submitted medical evidence, including a January 31, 2014 disability certificate from Dr. Shaku 

Chhabria, an attending Board-certified neurologist. Dr. Chhabria advised that appellant could 

return to light-duty work on February 17, 2014. She opined that appellant had reached 

maximum medical improvement (MMI). 

By letter dated March 12, 2014, OWCP advised appellant of the deficiencies of her claim 

and requested a medical report from her treating physician assessing her permanent impairment 

based on the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides)

3

 and establishing the date on which she had reached 

MMI. 

Appellant submitted medical evidence, including a progress note dated August 26, 2014 

and signed by Dr. Chhabria on September 1, 2014. Dr. Chhabria noted appellant’s history of 

injury and medical, family, and social background. She noted that a system review was negative. 

Dr. Chhabria reported normal findings on examination, which included normal sensory and 

motor examination of the arms and legs. On inspection, she reported exaggerated lordosis, 

limited range of motion in all directions, standing forward, scar from a previous surgery, 

significant muscle spasm, moderate paraspinal spasm, and a positive straight leg raising test at 45 

degrees on the right. Dr. Chhabria provided an impression of sciatica, chronic lumbar 

radiculopathy, lumbar disc prolapse with compression radiculopathy, and status post 

laminectomy. 

In an October 31, 2014 medical report, Dr. Neil Allen, an attending Board-certified 

internist and neurologist, noted a history of the accepted July 26, 2010 employment injury and 

appellant’s medical and functional background. Dr. Allen provided findings on examination of 

the lumbar spine and bilateral lower extremities and reviewed diagnostic test results. He utilized 

the July/August 2009 The Guides Newsletter, proposed Table 2, and Table 15-14, page 425 in 

the sixth edition of the A.M.A., Guides to find that appellant had 23 percent permanent 

impairment for motor deficits and 6 percent impairment for sensory deficits, which totaled 29 

percent permanent impairment of the left lower extremity. 

 3

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

On May 1, 2015 an OWCP district medical adviser (DMA) reviewed the medical record 

and found that appellant had no impairment of either lower extremity. He utilized section 16.4 

on page 531 of the A.M.A., Guides and July/August 2009, The Guides Newsletter of the sixth 

edition of the A.M.A., Guides to rate impairment of appellant’s lumbar spine. Regarding 

impairment to appellant’s left lower extremity, he referred to Dr. Chhabria’s September 1, 2014 

note which found normal lower extremity sensory and motor examinations. Using Table 16-11, 

page 533 and The Guides Newsletter, July/August 2009 of the A.M.A., Guides, the DMA 

determined that appellant had a class 0 for bilateral extremity sensory and motor loss with a 

value of zero percent permanent impairment. 

In a July 27, 2015 decision, OWCP denied appellant’s claim for a schedule award. It 

found that the DMA’s report represented the weight of the medical opinion evidence and 

established that she had no permanent impairment as a result of her accepted employment injury. 

By letter dated August 3, 2015, appellant, through counsel, requested a telephone hearing 

with an OWCP hearing representative which was held on March 7, 2016. 

In an April 28, 2016 decision, OWCP’s hearing representative affirmed the July 27, 2015 

decision, finding the weight of the medical evidence rested with the opinion of the DMA. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The 

method used in making such determination is a matter which rests in the sound discretion of 

OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as the appropriate standards for evaluating schedule 

losses.5

The sixth edition requires identifying the impairment class for the diagnosed condition 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE) and Clinical Studies (GMCS).6

 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). 

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.7

 In 

 4 Id.

5

 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

6 Supra note 3 at 494-531. 

7 W.D., Docket No. 10-274 (issued September 3, 2010); Richard R. LeMay, 56 ECAB 341 (2005); Pamela J. 

Darling, 49 ECAB 286 (1998). 
4

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.8

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 provides an alternative 

approach to rating spinal nerve impairments, under the July/August 2009 edition of The Guides 

Newsletter of the sixth edition.9 OWCP has adopted this approach for rating impairment of the 

upper or lower extremities caused by a spinal injury, which has been memorialized in section 

3.700 of its procedures. Specifically, lower extremity impairments originating in the spine are 

found in Table 16-1110 and upper extremity impairment originating in the spine are found in 

Table 15-14.11

Before the A.M.A., Guides can be utilized, a description of impairment must be obtained 

from the claimant’s physician. In obtaining medical evidence required for a schedule award, the 

evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decreases in strength or 

disturbance of sensation, or other pertinent descriptions of the impairment. This description 

must be in sufficient detail so that the claims examiner and others reviewing the file will be able 

to clearly visualize the impairment with its resulting restrictions and limitations.12

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a medical adviser for an opinion concerning the nature and percentage of 

permanent impairment in accordance with the A.M.A., Guides with the medical adviser 

providing rationale for the percentage of impairment specified.13 

ANALYSIS 

The Board finds that appellant failed to establish any permanent impairment to her 

bilateral lower extremities. OWCP accepted appellant’s claim for sprain of back, lumbar region 

 8 K.H., Docket No. 09-341 (issued December 30, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999). 

9

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

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

10 Supra note 3 at 533. 

11 Id. at 425. 

12 Vanessa Young, 55 ECAB 575 (2004). 

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

Chapter 2.808.6(f) (February 2013). 
5

as a result of a June 26, 2010 employment injury. On March 6, 2014 appellant filed a claim for a 

schedule award. 

In support of her claim, appellant submitted reports from Dr. Chhabria, her attending 

physician. While Dr. Chhabria indicated in her January 31, 2014 disability certificate that 

appellant had reached MMI and could return to light-duty work on February 17, 2014, she did 

not offer an opinion as to whether appellant had any permanent impairment due to the June 26, 

2010 employment injury. Similarly, in an August 26, 2014 progress note, Dr. Chhabria did not 

provide a medical opinion as to whether appellant had reached MMI or sustained any impairment 

causally related to the accepted lumbar condition. As noted, the evaluation made by the 

attending physician must include a description of the impairment that is of sufficient detail so 

that the claims examiner and others reviewing the file will be able to clearly visualize the 

impairment with its resulting restrictions and limitations.14 As Dr. Chhabria did not discuss any 

permanent impairment due to the accepted work injury, her reports are of diminished probative 

value and therefore insufficient to establish appellant’s permanent impairment. 

While Dr. Allen referenced the July/August 2009 The Guides Newsletter in his 

October 31, 2014 report, he did not provide an evaluation in accordance with Table 16-11, page 

533 of the A.M.A., Guides, sensory and motor severity for the lower extremities.15 Rather, his 

evaluation was done under Table 15-14, page 425 of the A.M.A., Guides, sensory and motor 

severity for the upper extremities.16 Dr. Allen concluded that appellant had 23 percent 

impairment for motor deficits and six percent impairment for sensory deficits, which totaled 29 

percent permanent impairment of the left lower extremity. 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 As such, the Board finds that Dr. Allen’s opinion is of limited 

probative value regarding appellant’s left lower extremity impairment. 

On May 1, 2015 an OWCP DMA reviewed the medical record and disagreed with 

Dr. Allen’s impairment rating.18 He explained that Dr. Allen’s October 31, 2014 examination 

findings were drastically different from Dr. Chhabria’s September 1, 2014 examination findings. 

The DMA used Dr. Chhabria’s examination results and applied Table 16-11, page 553 and The 

Guides Newsletter, July/August 2009, using Proposed Table 2 of the sixth edition of the A.MA., 

Guides. He determined that appellant had zero percent right leg and zero percent left leg 

permanent impairment. The DMA noted no motor or sensory deficits in either lower leg and 

found no ratable impairment. The Board finds that OWCP’s DMA properly concluded that 

appellant has no permanent impairment of her lower extremities resulting from the accepted 

 14 Supra note 12. 

15 Supra note 3 at 533. 

16 Supra note 3 at 425. 

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

18 Supra note 14. 
6

condition and that, therefore, there was no ratable impairment of a scheduled member under the 

sixth edition of the A.M.A., Guides. 

Appellant failed to submit sufficient medical evidence to establish permanent impairment 

to a specified member, organ, or function of the body listed in FECA or its implementing 

regulations as a result of her employment-related accepted sprain of back, lumbar region. Thus, 

she has not met her burden of proof. 

On appeal counsel contends that OWCP’s decision is contrary to fact and law. For 

reasons stated above, the Board finds that appellant failed to establish that she sustained 

permanent impairment to either lower extremity, warranting a schedule award. 

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 not met her burden of proof to establish a schedule 

award for a permanent impairment of her bilateral lower extremities. 

ORDER 

IT IS HEREBY ORDERED THAT the April 28, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 9, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board