United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.Y., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DELIVERY CENTER, Kansas City, MO, 

Employer 

__________________________________________ 

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Docket No. 16-0012 

Issued: May 17, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 October 2, 2015 appellant, through counsel, filed a timely appeal from an August 13, 

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 the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish that he is entitled 

to a schedule award for permanent impairment of his lower extremities. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

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

decisions are incorporated herein by reference.2

 The facts relevant to this appeal are as follows. 

OWCP accepted that on July 6, 2005 appellant, then a 47-year-old clerk, sustained a lumbar 

strain/sprain while sorting mail. Appellant initially stopped work and received continuation of 

pay, he returned to full duty on July 20, 2005. 

Appellant filed a claim for a schedule award (Form CA-7) on September 23, 2011. By 

decision dated November 10, 2011, OWCP denied his schedule award claim as he had not 

submitted medical evidence establishing permanent impairment. 

On November 11, 2011 Dr. M. Stephen Wilson, appellant’s treating orthopedic surgeon, 

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

Permanent Impairment (A.M.A., Guides) (2009) and The Guides Newsletter (July/August 2009) 

and found that appellant had a seven percent permanent impairment of both lower extremities. 

By decision dated April 30, 2012, an OWCP hearing representative affirmed OWCP’s 

November 10, 2011 decision, as Dr. Wilson had not explained how appellant’s accepted 

condition of lumbar sprain/strain caused a permanent impairment. Appellant requested 

reconsideration and provided a June 8, 2012 report wherein Dr. Wilson provided further support 

for his conclusion. 

OWCP referred appellant’s case to an OWCP medical adviser who, in an April 14, 2012 

report, concluded that Dr. Wilson’s report was deficient, and that his findings did not provide a 

reliable basis upon which to rate impairment. By decision dated September 21, 2012, it denied 

modification of the April 30, 2012 decision. Appellant appealed to the Board. 

On appeal, the Board found that Dr. Wilson’s impairment rating was in conformance 

with the protocols of the sixth edition of the A.M.A., Guides and The Guides Newsletter, and that 

the medical adviser rejected his opinion largely because other physicians who had examined 

appellant had not reported radicular pain, sensory deficit, or weakness. The Board remanded the 

case for OWCP to refer appellant to an appropriate medical specialist for examination and an 

opinion as to whether he sustained permanent impairment of either leg due to the residuals of his 

accepted injury.3

 The Board did not remand the case for an impartial medical evaluation. 

On June 20, 2014 OWCP referred appellant to Dr. David Clymer, a Board-certified 

orthopedic surgeon, for an impartial medical examination to resolve the conflict between the 

medical adviser and appellant’s treating physician, Dr. Wilson. In an August 4, 2014 medical 

report, Dr. Clymer summarized his physical findings and concluded that appellant probably did 

sustain a low back sprain or strain as a result of the lifting injury in 2005, and that this probably 

resulted in some temporary aggravation of the degenerative disc process as there was evidence of 

 2

 Docket No. 13-106 (issued March 18, 2014); Docket No. 10-1647 (issued March 1, 2011); Docket No. 09-1736 

(issued January 22, 2010). 

3

 Docket No. 13-106 (issued March 18, 2014). 
3

back irritability and magnetic resonance imaging (MRI) scan evidence of some disc bulging at 

the L4-5 and L5-S1 levels. He noted that although appellant had ongoing subjective discomfort, 

there was no clear evidence of significant objective radiculopathy. In addition, subsequent MRI 

scan studies have revealed no progression of the degenerative disc disease and, in fact they 

demonstrated significant improvement in the appearance of the discs in the low back. 

Dr. Clymer noted that appellant’s most recent MRI scan of October 3, 2013 revealed some facet 

degenerative change at L5-S1, but only a tiny signal irregularity in the annulus without any 

significant disc protrusion or disc extrusion which might cause any ongoing nerve root 

impingement. He concluded that appellant sustained only a temporary aggravation and that he 

would expect the lumbar disc pathology and his subjective symptoms to gradually improve and 

return to preinjury status. Dr. Clymer opined that, based on appellant’s normal MRI scan study 

of October 3, 2013, appellant’s temporary aggravation had ceased. He noted that he did not find 

objective evidence of ongoing radicular residuals in the lower extremities and noted that 

appellant had only moderate vague dysesthesia in the lower extremities which appeared to be in 

a nondermatomal distribution. Dr. Clymer noted no objective evidence of radiculopathy. He 

noted that as he did not find evidence of recurrent radicular signs and symptoms which could be 

related specifically to a current and active lumbar condition resulting from the July 6, 2005 work 

injury, he would not offer any opinion with regard to a permanent impairment rating which 

would correlate with specific radiculopathy at this time. 

By decision dated October 28, 2014, OWCP denied appellant’s claim for a schedule 

award. 

By letter dated November 3, 2014 appellant, through counsel, requested a telephonic 

hearing. 

In an April 23, 2015 report, Dr. Wilson opined that appellant sustained 11 percent 

permanent impairment to the right lower extremity due to chronic radicular symptoms in his 

right lower extremity causing mild sensory and mild motor deficits of the L5 spinal nerve. He 

noted that spinal impairment for the right lower extremity is based on the use of Table 2 of the 

A.M.A., Guides, Spinal Nerve Impairment, based on lower extremity impairments and factors 

causing sensory and motor deficits. Dr. Wilson observed permanent anatomical abnormalities 

and loss of function, which resulted in a class 1 (mild sensory deficit) of the L5 nerve with a 

mid-range default value of one percent, and a class 1 (mild motor deficit) of the L5 nerve with a 

mid-range default value of five percent, determined by appellant’s history of injury with 

continued complaints of pain, neuropathy, and weakness present at the time of the examination. 

He found grade modifiers 1 for functional history secondary to a pain disability questionnaire, a 

grade 2 modifier for physical examination with a positive straight leg raising test, and a grade 1 

modifier for clinical studies. Dr. Wilson noted that the total score for the modifiers was 

(2-1)+(2-1)+(1-1) =2, which shifted the rating to the E position of 2 percent for mild sensory 

deficit and 9 percent for mild motor deficit per proposed Table 2 of the A.M.A., Guides, and 

yielded an impairment of 11 percent to the right lower extremity due to L5 radiculopathy. 

At the hearing held on June 12, 2015 appellant’s counsel argued that Dr. Clymer’s 

opinion was unclear and that OWCP should have requested clarification. He also argued that the 

medical adviser could not serve as a second opinion therefore a conflict remained in the medical 

evidence between Dr. Wilson and Dr. Clymer necessitating an impartial medical examination. 
4

Appellant also testified that Dr. Clymer did not perform a thorough evaluation. He indicated that 

he has constant irritating pain in his lower back and had problems with his right knee, right 

ankle, and right thigh. 

In a decision dated August 13, 2015, the hearing representative noted that Dr. Clymer 

was not an impartial medical examiner (IME) because he had not examined appellant and 

therefore could not create a conflict in the evidence. However, he affirmed the denial of the 

schedule award as he found that the referee opinion of Dr. Clymer was better rationalized and 

based on an accurate factual and medical background. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.4

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.5

 The A.M.A., Guides, has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards 

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

7

 

Although the A.M.A., Guides include guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8

 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.9

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as impairment of the extremities. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter, (July/August 2009), 

offers an approach to rating spinal nerve impairments consistent with sixth edition 

 4

 5 U.S.C. § 8107. 

5 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

6

 20 C.F.R. § 10.404. 

7

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010). 

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

9 Thomas J. Englehart, 50 ECAB 319 (1999). 
5

methodology.10 OWCP has adopted this approach for rating impairment to the upper or lower 

extremities caused by a spinal injury.11

Section 8123(a) of FECA provides, if there is a disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician, who shall make an examination.12 In situations where there are 

opposing medical reports of virtually equal weight and rationale and the case is referred to an 

IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well 

rationalized and based on a proper factual background, must be given special weight.13

ANALYSIS 

OWCP accepted that appellant sustained a lumbar strain/sprain on July 6, 2005 during the 

course of his federal employment. It denied his claim for a schedule award based on the opinion 

of Dr. Clymer who found no objective evidence of ongoing radicular residuals in the lower 

extremities and only moderate vague dysesthesia in the lower extremities which appeared to be 

in nondermatomal distribution. The Board finds that the case is not in posture for decision. 

Appellant’s treating physician, Dr. Wilson, initially found that appellant had seven 

percent permanent impairment to both of his lower extremities. The medical adviser found this 

report deficient and OWCP denied appellant’s claim for a schedule award. However, the Board 

on prior appeal, remanded the case finding that Dr. Wilson’s impairment rating was in 

conformance with the sixth edition of the A.M.A., Guides, and instructed OWCP to further 

develop the medical evidence by referral to an appropriate medical specialist. No conflict 

existed in the medical opinion evidence at the time of the remand because, as explained by the 

hearing representative in the August 13, 2015 decision, the district medical adviser’s opinion that 

appellant had no physical examination findings to substantiate a schedule award did not create a 

conflict with Dr. Wilson’s opinion, as the medical adviser had not examined appellant.14 

On remand, OWCP referred appellant to Dr. Clymer as an IME physician. Dr. Clymer 

determined that although appellant had ongoing subjective discomfort, there was no clear 

evidence of significant objective radiculopathy and noted that subsequent MRI scan studies 

revealed no progression of his disc problems and actually demonstrated significant improvement 

in the appearance of the discs of the low back. He noted that appellant’s most recent MRI scan 

revealed some facet degenerative change at L5-S1, but only a tiny signal irregularity in the 

annulus without any significant disc protrusion or disc extrusion which might cause any ongoing 

nerve root impingement. Dr. Clymer found no objective evidence of ongoing radicular residuals 

 10 L.J., Docket No. 10-1263 (issued March 3, 2011). 

11 Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010). 

12 5 U.S.C. § 8123(a). 

13 Barbara J. Warren, 51 ECAB 413 (2000); see also B.C., Docket No. 15-0992 (issued August 11, 2015). 

14 See generally A.A., Docket No. 15-0898 (issued July 28, 2015); supra note 7 at Chapter 2.810.8g 

(September 2010). 
6

in the lower extremities and noted that appellant had only moderate vague dysesthesia in the 

lower extremities which appeared to be in a nondermatomal distribution. He noted no objective 

evidence of radiculopathy and found no evidence of recurrent radicular signs and symptoms 

which could be related specifically to a current and active lumbar condition resulting from the 

July 6, 2005 employment injury. Accordingly, Dr. Clymer stated that he would not offer any 

opinion with regard to permanent impairment rating which would correlate with specific 

radiculopathy. 

The Board finds that a conflict did not exist at the time of OWCP’s referral to Dr. Clymer 

as an IME physician. The Board in its March 18, 2014 decision found that Dr. Wilson’s findings 

were in fact within the protocols of the A.M.A., Guides and The Guides Newsletter and 

remanded the case to OWCP to refer appellant to an appropriate specialist for examination. 

Following the Board’s decision, OWCP sent appellant to Dr. Clymer for an IME examination to 

resolve the conflict between Dr. Wilson and the DMA, Dr. Daniel D. Zimmerman. 

In his April 14, 2012 report, the DMA, Dr. Zimmerman, stated generally that 

Dr. Wilson’s ratings were clouded by concerns regarding reliability and credibility and that as 

such, based on his general conclusions, his rating should be rejected. Chapter 2.810 of the 

Federal (FECA) Procedural Manual, Developing and Evaluating Medical Evidence makes clear 

that at a times when the opinion of the DMA is not strong enough to constitute a conflict with the 

opinion of the treating physician, but which is nevertheless of sufficient value, is sufficient to 

warrant further action. The Board finds that DMA, Dr. Zimmerman’s opinion did not contain a 

strong enough opinion to create a conflict. As such, the Board finds that Dr. Clymer should be 

converted to a second opinion physician and the case be referred to a new IME. 

The Board finds that the report from Dr. Clymer as a second opinion physician is now in 

conflict with the opinion of Dr. Wilson, who initially opined in a November 11, 2011 report that 

appellant had seven percent permanent partial impairment of both his lower extremities, pursuant 

to the A.M.A., Guides, as well as Dr. Wilson’s new report dated April 23, 2015, wherein 

Dr. Wilson opined that appellant sustained 11 percent permanent impairment to the right lower 

extremity due to chronic radicular symptoms in his right lower extremity. 

Therefore, the case must be remanded to OWCP for further development. This 

development shall include the appointment of an IME in accordance with 5 U.S.C. § 8123(a) to 

obtain a report regarding the percentage of permanent impairment of appellant’s lower 

extremities, according to a correct application of the sixth edition of the A.M.A., Guides. After 

this and any other development deemed necessary, OWCP shall issue an appropriate merit 

decision in the case. 

CONCLUSION 

The Board finds that this case is not in posture for decision. 
7

ORDER 

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

Compensation Programs dated August 13, 2015 is set aside and the case is remanded for further 

development consistent with this opinion. 

Issued: May 17, 2016 

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