United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Santa Clarita, CA, Employer 

__________________________________________ 

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Docket No. 16-0810 

Issued: September 22, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 10, 2016 appellant, through counsel, filed a timely appeal of a February 2, 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish a ratable 

impairment of a scheduled member. 

 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

FACTUAL HISTORY 

On January 16, 2011 appellant, then a 35-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she developed right-sided lower back pain on 

December 29, 2010. She attributed her condition to working parcels. OWCP accepted 

appellant’s claim on April 13, 2011 for lumbar sprain. 

On January 14, 2015 appellant filed a claim for compensation (Form CA-7) and 

requested a schedule award. In a report dated November 9, 2014, Dr. John J. Kayvanfar, an 

orthopedic surgeon, found that appellant had 14 percent impairment of the whole person due to 

intervertebral disc herniation. He further opined that 14 percent whole person impairment was 

equal to 35 percent impairment of the right and left lower extremity. 

In a letter dated February 2, 2015, OWCP requested that appellant’s physician provide an 

opinion as to whether her condition had reached maximum medical improvement (MMI). 

Dr. Kayvanfar completed a report on January 11, 2014 and described appellant’s history of 

injury and medical treatment history. He reported her low back pain, upper back pain, radiation 

to the groin, and pain that traveled to her buttock area and the front of her legs. Dr. Kayvanfar 

described numbness and tingling in appellant’s posterior thighs to her knees. He diagnosed 

status post lumbosacral strain and sprain, lumbosacral L5-S1 spondylosis, annular tear, and 

posterior paracentral focal disc herniation. Dr. Kayvanfar opined that appellant had reached 

MMI on November 18, 2013. He concluded that appellant had 11 percent impairment of the 

whole person based on the fifth edition of the American Medical Associations, Guides to the 

Evaluation of Permanent Impairment (2001). In a note dated April 2, 2014, Dr. Kayvanfar 

found that appellant had 14 percent impairment of the whole person due to intervertebral disc 

herniation based on the sixth edition of the A.M.A., Guides.

3

 He reviewed appellant’s MRI scan 

and found that she had a class II lumbar spine impairment. In a supplemental report dated 

November 9, 2014, Dr. Kayvanfar reiterated his conclusion and noted that the impairment rating 

was based on page 570 of the A.M.A., Guides at Table 17-4 class II. He added that Table 16-10 

on page 530 reveals that 14 percent whole person impairment is the equivalent of 35 percent 

impairment of the right and left lower extremity. 

On March 19, 2015 OWCP’s medical adviser reviewed appellant’s claim for a schedule 

award and found that she had no ratable impairment of either the right or left lower extremities. 

He noted that Dr. Kayvanfar did not provide any findings or citations to the A.M.A., Guides in 

support of impairments of the lower extremities and relied on sections of the A.M.A., Guides

pertaining to spinal pathology. 

By decision dated April 21, 2015, OWCP denied appellant’s claim for a schedule award 

as she failed to submit medical evidence in accordance with the A.M.A., Guides establishing 

impairment of a scheduled member. 

Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review on 

April 27, 2015. He and appellant appeared at the oral hearing in front of an OWCP hearing 

representative on November 18, 2015. Counsel argued that OWCP’s medical adviser failed to 

adequately review Dr. Kayvanfar’s November 9, 2014 report. 

 3

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

By decision dated February 2, 2016, the hearing representative denied appellant’s claim 

for a schedule award finding that she did not have a ratable impairment of a scheduled member. 

OWCP’s hearing representative found that appellant had an accepted low back condition due to 

her employment duties, but that the medical evidence failed to establish impairment to her lower 

extremities due to the accepted conditions. She found that appellant’s physician did not provide 

his findings and conclusions in accordance with the A.M.A., Guides and that OWCP’s medical 

adviser reviewed the medical evidence and found that appellant had no impairment of her lower 

extremities due to the accepted back injuries. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

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

making such determination is a matter which rests in the 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. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

6

 No schedule award is payable for a member, function, or organ of the body not 

specified in FECA or in the regulations.7

 Because neither FECA nor the regulations provide for 

the payment of a schedule award for the permanent loss of use of whole person or the back or 

spine,8 no claimant is entitled to such an award.9 

Amendments to FECA, however, 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. As 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to a limb 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. Recognizing that certain jurisdictions, such as 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- 

Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

7 W.D., Docket No. 10-274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976). 

8

 FECA itself specifically excludes the back from the definition of organ. 5 USC § 8101(19). 

9 W.D., supra note 7. Timothy J. McGuire, 34 ECAB 189 (1982). 

10 W.D., supra note 7. Rozella L. Skinner, 37 ECAB 398 (1986). 
4

federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine, 

the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with 

sixth edition methodology.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 a July/August 2009, The Guides 

Newsletter.

12 

ANALYSIS 

The Board finds that appellant has not submitted the necessary medical evidence to meet 

her burden of proof to establish permanent impairment of a scheduled member. 

OWCP accepted appellant’s occupational disease claim for sprain of the lumbar spine 

and displacement lumbar intervertebral disc without myelopathy. In support of her claim for 

permanent impairment of the lower extremities due to her accepted spine conditions, appellant 

submitted three reports from Dr. Kayvanfar. Dr. Kayvanfar opined that she had reached MMI on 

November 18, 2013. In his January 2014 report, he listed findings of low back pain, upper back 

pain, radiation to the groin, and pain that traveled to her buttock area and the front of her legs. 

Dr. Kayvanfar described numbness and tingling in appellant’s posterior thighs to her knees. He 

diagnosed status post lumbosacral strain and sprain, lumbosacral L5-S1 spondylosis, annual tear, 

and posterior paracentral focal disc herniation. Dr. Kayvanfar initially provided an impairment 

rating of 11 percent impairment of the whole person based on the fifth edition of the A.M.A., 

Guides. As noted above, FECA does not provide for impairment ratings based on the whole 

person and OWCP has adopted the sixth edition of the A.M.A., Guides for evaluation of 

schedule awards. Due to these deficiencies, this report fails to establish appellant’s claim for a 

schedule award. 

In his April 2, 2014 report, Dr. Kayvanfar found based on the sixth edition of the A.M.A., 

Guides that appellant had 14 percent impairment of the whole person due to intervertebral disc 

herniation and a class II lumbar spine impairment. On November 9, 2014 he found that appellant 

had 14 percent impairment of the whole person due to intervertebral disc herniation. 

Dr. Kayvanfar further opined that 14 percent whole person impairment was equal to 35 percent 

impairment of the right and left lower extremity. 

While the sixth edition of the A.M.A., Guides, lists impairments to the lumbar spine13

these are not the applicable provisions as adopted by OWCP for evaluation of injuries to the 

spine resulting in lower extremity impairments. As noted above, in order to establish impairment 

to the lower extremities due to a spinal injury, the physician must provide findings and citations 

as set forth in the July/August 2009 The Guides Newsletter.

14 Dr. Kayvanfar did not rate 

 11 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.5c(3) (February 2013); Federal (FECA) 

Procedure Manual, supra note 6 at Exhibit 4 (January 2010). 

12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) 

(Exhibits 1, 4). 

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

14 J.C., Docket No. 15-1780 (issued March 17, 2016). 
5

appellant’s impairment based on these standards and his rating is therefore insufficient to 

establish that appellant is entitled to a schedule award of the lower extremities due to the 

accepted conditions of sprain of the lumbar spine and displacement lumbar intervertebral disc 

without myelopathy. OWCP’s medical adviser reviewed Dr. Kayvanfar’s physical findings and 

found that appellant had no ratable impairment of either lower extremity. 

Appellant failed to submit sufficient medical evidence to establish permanent impairment 

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

regulations. 

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 has not met her burden of proof to establish a ratable 

impairment of a scheduled member. 

ORDER 

IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board