United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-0428 

Issued: June 6, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 6, 2016 appellant, through counsel, filed a timely appeal from an October 8, 

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 case. 

ISSUE 

The issue is whether appellant has established increased impairment to the right lower 

extremity. 

On appeal, appellant argues the evidence of record is sufficient to warrant further 

development with respect to an increased right lower extremity permanent impairment. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has previously been before the Board. By order dated November 6, 2014, the 

Board remanded the case to administratively combine appellant’s claims involving lumbar 

injuries.2 As the Board indicated, on September 7, 2005 appellant, then a 53-year-old mail 

processor, filed a traumatic injury claim (Form CA-1) alleging that she had sustained a back 

injury while lifting mail. By decision dated January 10, 2006, OWCP accepted the claim for 

sprain of back, lumbar region under OWCP File No. xxxxxx323. On July 8, 2006 appellant filed 

another Form CA-1 alleging that she sustained an injury while pushing a lawn mower. OWCP 

accepted the claim for aggravation of lumbar sprain, under OWCP File No. xxxxxx973. The two 

claims were administratively combined into master File No. xxxxxx323. Under the master claim 

file, OWCP issued a schedule award decision dated September 9, 2009 for one percent bilateral 

lower extremity permanent impairment, one-half percent impairment to each lower extremity. 

In addition, on October 3, 2008 appellant filed a Form CA-1 alleging that on that same 

date she sustained a back and left leg injury when she fell while lifting mail. A new claim was 

created and by decision dated January 12, 2009, OWCP accepted the claim for sprain of back, 

lumbar region under OWCP File No. xxxxxx475. By decision dated September 4, 2013, OWCP 

expanded acceptance of the claim to include left thoracic or lumbosacral neuritis or radiculitis. 

Pursuant to this claim, OWCP issued a schedule award decision dated July 15, 2013 for 12 

percent permanent impairment to the left lower extremity. Appellant requested a hearing. The 

July 15, 2013 decision was affirmed by an OWCP hearing representative in a decision dated 

January 29, 2014. Appellant then requested an appeal of the January 29, 2014 decision, and on 

November 6, 2014 the Board found the three claims should be administratively combined. 

With respect to an increased permanent impairment of the lower extremities under the 

current combined claim, appellant submitted a March 7, 2013 report from Dr. Nicholas P. 

Diamond, an osteopath. Dr. Diamond provided a history and results on examination. As to 

manual muscle strength, he reported, “testing of the lower extremities is graded at 4+ to 5/5 on 

the right” and 4/5 on the left. Dr. Diamond then opined that appellant would have 20 percent left 

lower extremity under the American Medical Association, Guides to the Evaluation of 

Permanent Impairment, The Guides Newsletter for mild motor and sensory deficits. He 

identified L4, L5, and S1 nerve roots on the left. 

OWCP referred the March 7, 2013 report of Dr. Diamond to an OWCP medical adviser, 

Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, for review. In his July 27, 2013 

report, Dr. Berman opined that appellant had no additional permanent impairment to the left 

lower extremity. 

In an “updated” report dated June 21, 2013, Dr. Diamond again provided results of the 

March 7, 2013 examination. He now opined that appellant would have nine percent right lower 

extremity permanent impairment under The Guides Newsletter, based on mild motor deficit at 

L4. Dr. Diamond repeated his opinion with respect to 20 percent left lower extremity 

impairment. 

 2

 Docket No. 14-1325 (issued November 6, 2014). 
3

By decision dated September 26, 2013, OWCP found appellant had not established 

additional lower extremity impairment. Appellant, through counsel, requested a hearing before 

an OWCP hearing representative on October 17, 2013. A hearing was held on 

February 20, 2014. 

By decision dated May 9, 2014, the hearing representative remanded the case to OWCP. 

She noted that the OWCP medical adviser had not reviewed the June 21, 2013 report from 

Dr. Diamond or determined whether appellant had any further right lower extremity permanent 

impairment. The hearing representative remanded the case for a de novo decision on the claim 

for a schedule award of the right lower extremity. 

Appellant underwent lumbar surgery on September 17, 2013, performed by Dr. Stephen 

Cairone, an osteopath. The surgery was described as a partial lumbar laminectomy L4-5 and 

central decompression L4-5. OWCP referred appellant for a second opinion examination by 

Dr. Stephen Valentino, an osteopath, and requested an opinion as to whether the surgery was 

employment related. In a report dated November 19, 2013, Dr. Valentino provided a history and 

results on examination. He indicated that motor and sensory examinations were normal. 

Dr. Valentino opined that the surgery was not related to accepted work conditions. 

In a report dated November 20, 2013, Dr. Cairone provided results on examination. As 

to the right lower extremity, he reported 5/5 strength for quadriceps, hamstring, tibialis anterior, 

extensor hallucis longus, and gastrocnemius. 

Pursuant to the May 9, 2014 hearing representative decision, OWCP referred the case to 

Dr. Berman for an opinion as to whether the June 21, 2013 report from Dr. Diamond showed 

lower extremity impairment greater than one percent.3

 In a report dated June 4, 2014, 

Dr. Berman found that Dr. Diamond’s calculations were incorrect. With respect to L4, he 

reported that electromyogram (EMG) studies did not indicate L4 nerve root involvement. 

By decision dated July 7, 2014, OWCP found appellant had not established additional 

impairment for the right lower extremity of record based on the medical evidence. It discussed 

the June 4, 2014 report from the OWCP medical adviser, Dr. Berman. 

On July 11, 2014 appellant requested a hearing before an OWCP hearing representative. 

A hearing was held on November 19, 2014. 

In a brief report dated December 1, 2014, Dr. Diamond reported that he disagreed with 

this opinion that electromyogram (EMG) studies did not indicate L4 nerve root involvement. He 

referred to a February 13, 2007 report showing L4 and L5 radiculopathy on the right.4

 

Dr. Diamond also referred to EMG results regarding left radiculopathy dated November 4, 2008 

and May 22, 2013. 

 3

 This apparently refers to the September 9, 2009 schedule award, which found one percent bilateral permanent 

impairment of the lower extremities. As noted, appellant also received a schedule award for 12 percent permanent 

impairment of the left lower extremity on July 15, 2013. 

4

 The record contains a February 13, 2007 report from Dr. Stephen Masceri, a physiatrist, reporting EMG showed 

mild-to-moderate L4-5 radiculopathy on the right. 
4

In a report dated January 22, 2015, another OWCP medical adviser, Dr. Morley Slutsky, 

a Board-certified occupational medicine specialist, opined there was no lower extremity 

permanent impairment. He did not specifically discuss the right versus the left lower extremity. 

Dr. Slutsky referred to diagnostic testing and indicated that appellant had undergone a lumbar 

laminectomy. He opined that both before and after surgery appellant had not been found to have 

lower extremity motor or sensory deficit, noting the November 19 and 20, 2013 reports. 

By decision dated March 2, 2015, the hearing representative remanded the case to 

OWCP. He noted that the Board had found the three claims should be combined. According to 

the hearing representative, Dr. Slutsky had not discussed the permanent impairment ratings or 

findings of Dr. Diamond, or the December 1, 2014 report. 

In a report dated June 26, 2015, Dr. Slutsky reviewed the reports from Dr. Diamond. He 

opined that sensory and motor deficits under the A.M.A., Guides were determined by clinical 

examination, and testing such as EMG results were used for diagnostic purposes and as grade 

modifiers. Dr. Slutsky found the evidence did not establish motor or sensory deficits to the 

lower extremities. 

By decision dated July 1, 2015, OWCP found that the medical evidence of record failed 

to establish an additional schedule award. Appellant, through counsel, again requested a hearing 

before an OWCP hearing representative on July 9, 2015. By letter dated September 10, 2015, 

appellant’s counsel changed his request to a review of the written record. 

In a decision dated October 8, 2015, the hearing representative affirmed the July 1, 2015 

decision, finding that she found the medical evidence of record did not establish increased 

permanent impairment to the lower extremities. 

LEGAL PRECEDENT 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.5

 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.7 

 5

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

6 A. George Lampo, 45 ECAB 441 (1994). 

7

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

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

(January 2010). 
5

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

 

ANALYSIS 

Appellant’s counsel has requested that the Board review the October 8, 2015 decision 

with respect to the issue of increased right lower extremity impairment. He indicated that the left 

lower extremity determination was not contested. 

As to the right lower extremity, Dr. Diamond provided results on examination in his 

March 7, 2013 report. In his June 21, 2013 report, he opined that appellant has nine percent right 

lower extremity permanent impairment. The rating was based on The Guides Newsletter 

proposed Table 2 for the L4 nerve root, which provides nine percent impairment for a grade E 

“mild motor deficit.”9 

The Board notes that The Guides Newsletter evaluates motor deficits on the descriptions 

found in the A.M.A., Guides. As reported by Dr. Slutsky, motor deficits are based primarily on 

examination results. Motor deficits for the lower extremities are discussed in the A.M.A., 

Guides and are described as based on muscle strength testing, noting that strength testing is 

voluntary and requires full individual cooperation and concentration.10 To be valid, the results 

should be concordant with other observable pathologic signs and medical evidence, and if 

measurements are made by one evaluator they should be consistent on different occasions.11 

Dr. Diamond does not discuss the manual muscle testing that he performed. 

A mild motor deficit is described under Table 16-11 as “[g]rade 4/5 (Against gravity with 

some resistance), mild weakness.”12 The examination results provided by Dr. Diamond were 

“4+ to 5/5” on the right. Dr. Diamond provides no explanation as to why these findings would 

be consistent with a mild motor deficit as described under the A.M.A., Guides. Such an 

explanation is particularly important in the present case, in view of the other medical evidence of 

record. As noted by medical adviser Dr. Slutsky, there was a November 19, 2013 report from 

Dr. Valentino, a second opinion physician, and a November 20, 2013 report from attending 

physician Dr. Cairone. Neither of these reports showed a motor deficit on the right. 

Dr. Valentino reported a normal motor examination and Dr. Cairone described 5/5 for his right 

lower extremity strength results. 

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

9 The Guides Newsletter (July/August 2009). 

10 A.M.A., Guides 533. 

11 Id. 

12 Id. at Table 16-11. 
6

With respect to diagnostic studies, the A.M.A., Guides indicate that “electromyographic 

studies can help confirm motor function of specific muscles or group of muscles.”13 In his 

December 1, 2014 report, Dr. Diamond refers only to a February 13, 2007 EMG with respect to 

L4 radiculopathy on the right, a study performed over six years prior to his examination. 

Dr. Diamond does not discuss any contemporaneous studies to help confirm his opinion as to 

motor deficit on the right. 

OWCP referred the case to an OWCP medical adviser, Dr. Slutsky.14 In his January 22 

and June 26, 2015 reports, the OWCP medical adviser found there was no current permanent 

impairment to the right lower extremity, and supported his opinion with medical rationale. The 

Board finds this opinion represents the weight of the medical evidence. It is appellant’s burden 

of proof to establish an increased schedule award.15 The evidence of record does not establish an 

increased right lower extremity permanent impairment in this case. 

On appeal, counsel argues there is a conflict between the OWCP medical adviser and 

Dr. Diamond. For the reasons discussed above, the Board finds that Dr. Diamond’s report is of 

diminished probative value with respect to the issue presented. 

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.16 

CONCLUSION 

The Board finds that appellant has not established increased permanent impairment to her 

right lower extremity. 

 13 Supra note 10. 

14 When the claimant’s physician provides a permanent impairment report, the case is referred to an OWCP 

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

Claims, Chapter 2.808.6 (February 2013). 

15 Edward W. Spohr, 54 ECAB 806, 810 (2003). 

16 See Linda T. Brown, 51 ECAB 115 (1999). 
7

ORDER 

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

Compensation Programs dated October 8, 2015 is affirmed. 

Issued: June 6, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board