United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-1719 

Issued: April 26, 2017 

Appearances: Case Submitted on the Record

Victor A. Walker, for the appellant1

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 August 24, 2016 appellant, through her representative, filed a timely appeal from a 

July 27, 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. 

ISSUE 

The issue is whether appellant has established permanent impairment of the bilateral 

lower extremities warranting a schedule award. 

 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 March 21, 2006 appellant, then a 57-year-old manual distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she experienced neck pain, a tingling 

sensation down her left arm, and pressure in her chest as a result of repetitive neck movement 

while casing mail. She did not stop work. 

On March 7, 2007 OWCP accepted appellant’s claim for aggravation of cervical 

spondylosis without myelopathy. It subsequently expanded her claim to include other specified 

disorder of bursae and tendons in the bilateral shoulder region, cervical disc syndrome, extrinsic 

asthma with acute exacerbation, lumbar sprain/strain, adjustment disorder with depressed mood, 

chronic pain syndrome, right shoulder keloid scar, lesion of the ulnar nerve of the right elbow, 

lumbar radiculitis, and displacement of lumbar intervertebral disc without myelopathy. 

Appellant stopped work on January 27, 2008 and returned to work on February 11, 2008. 

OWCP paid appellant wage-loss compensation. On March 28, 2008 appellant began light duty 

as a modified mail processor working five hours a day. OWCP continued to pay appellant wageloss compensation until February 12, 2010. 

On March 2, 2010 and April 21, 2011 appellant received a schedule award for seven 

percent permanent impairment of the right upper extremity3

 and eight percent permanent 

impairment of the left upper extremity4 as a result of her accepted bilateral shoulder conditions. 

OWCP granted an additional 21 percent permanent impairment of the right upper extremity5 on 

November 7, 2011 and additional permanent impairment of 26 percent to the left upper 

extremity6 on January 22, 2014. 

On April 16, 2013 appellant underwent an electromyogram and nerve conduction 

velocity (EMG/NCV) testing of the lower extremities by Dr. Jairo D. Libreros-Cupido, a 

neurologist. Dr. Libreros-Cupido noted that the EMG/NCV revealed bilateral L4-5, L5-S1 

radiculopathy and prolonged left H reflex compatible with L5-S1 radiculopathy. 

 3

 The award was based on the January 12, 2010 medical report of Dr. Raul F. Nodal, a Board-certified 

neurologist, and the February 10, 2010 report of Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon 

serving as OWCP’s medical adviser. 

4

 The award was based on the February 28, 2011 medical report of Dr. Samy F. Bishai, an orthopedic surgeon, 

and the April 6, 2011 report of Dr. Hogshead, OWCP’s medical adviser. 

5

 The award was based on the October 12, 2011 medical report of Dr. Bishai and the November 1, 2011 report of 

OWCP’s medical adviser. He determined that appellant had 28 percent permanent impairment of the right upper 

extremity, but due to her previous award of 7 percent impairment, she was awarded 21 percent impairment. The 

award ran from August 22, 2011 to November 22, 2012. 

6

 The award was based on the July 8, 2013 medical report of Dr. Bishai and the December 13, 2013 and 

January 22, 2014 reports of OWCP’s medical adviser. He determined that appellant had 34 percent impairment of 

the left upper extremity, but due to her previous award of 8 percent permanent impairment, she was granted an 

additional 26 percent permanent impairment. The award ran from July 8 to December 14, 2013. 
3

Appellant received medical treatment from Dr. Bishai, an orthopedic surgeon. In a 

February 19, 2015 narrative report, Dr. Bishai related her complaints of back pain with radiation 

down the lower extremities, neck pain radiating down the upper extremity, and right and 

shoulder left shoulder joint pain. On examination he related that appellant’s straight leg raise 

testing was 60 degrees on both sides and sciatic nerve stretching test was positive at 60 degrees 

on both sides. Dr. Bishai indicated that neurological examination of the lower extremities 

showed motor deficit of moderate intensity affecting the extensor hallicus longus and moderate 

sensory deficit of diminished sensation bilaterally on the lateral aspect of the thigh. He also 

noted that an April 16, 2013 EMG/NCV testing of the lower extremities showed bilateral L4-5 

and L5-S1 radiculopathy. Dr. Bishai opined that appellant had bilateral radiculopathy of the L5 

nerve root and signs and symptoms of radiculopathy of the S1 nerve root bilaterally. 

Dr. Bishai referenced the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides)

7

 and the July/August 2009 edition of 

The Guides Newsletter. He determined that, according to Table 17.4 on page 570 of the Lumbar 

Spine Regional Grid for Spinal Nerves, she had a class 2 diagnosis for sensory and motor deficits 

of the L5 nerve root. Dr. Bishai assigned grade modifiers of 2 for Functional History (GMFH) 

and Clinical Studies (GMCS) and 3 for Physical Examination (GMPE). He calculated that 

according to the net adjust formula appellant had a net adjustment of +1 or grade D. Dr. Bishai 

applied the proposed Table 2 for Spinal Nerve Impairments of the Lower Extremities in the 

July/August 2009 The Guides Newsletter and determined that she had 16 percent permanent 

impairment of the bilateral lower extremities due to moderate sensory and motor deficits of the 

L5 nerve root. 

Dr. Bishai reported that appellant also had S1 nerve root radiculopathy. He indicated that 

according to Table 2 of the July/August 2009 The Guides Newsletter she had 12 percent 

permanent impairment of the lower extremities due to moderate sensory and motor deficits of the 

S1 nerve root. Dr. Bishai combined the impairment ratings for the conditions of L5 

radiculopathy and S1 radiculopathy for a combined rating of 26 percent permanent impairment 

of each lower extremity. He reported that appellant had reached maximum medical 

improvement (MMI) as of that date. 

On April 27, 2015 appellant submitted a claim for a schedule award (Form CA-7). 

In a May 8, 2015 report, Dr. James Dyer, a Board-certified orthopedic surgeon and 

OWCP medical adviser, noted appellant’s accepted conditions and objective findings of chronic 

lower back and leg pain. He related that an April 16, 2013 electrodiagnostic study confirmed 

mild bilateral radiculopathy at L4-5 and L5-S1 and that imaging demonstrated lumbar 

degenerative disc disease at L4-5 and L5-S1 with stenosis. Dr. Dyer indicated that according to 

the July/August 2009 The Guides Newsletter for spinal nerve root extremity impairment, 

appellant had two percent permanent impairment for mild sensory deficit and seven percent 

impairment for mild motor deficit of the L5 nerve root for a total of nine percent permanent 

impairment. He reported that she had one percent permanent impairment for mild sensory deficit 

and four percent permanent impairment for mild motor deficit at the S1 nerve root for a total of 

 7

 A.M.A., Guides (6th ed. 2009). 
4

five percent permanent impairment. Dr. Dyer calculated that appellant had total permanent 

impairment of 14 percent impairment for each lower extremity. He noted that Dr. Bishai 

assigned rating for moderate sensory motor deficit of the L5 and S1 nerve roots, instead of mild 

deficit. 

By letter dated May 15, 2015, OWCP requested that Dr. Bishai review Dr. Dyer’s May 8, 

2015 report and provide comments on Dr. Dyer’s impairment rating. 

Dr. Bishai responded to OWCP’s May 15, 2015 letter and provided a June 2, 2015 report. 

He explained that although Dr. Dyer believed that appellant had a mild case of radiculopathy, he 

found that she had moderate radiculopathy based on the electrodiagnostic studies and his clinical 

examination. Dr. Bishai indicated that appellant continued to complain of pain in her lower back 

with radiation down the legs. He noted that her condition had not changed a great deal since her 

last visit and provided examination findings similar to the February 19, 2015 report. Dr. Bishai 

recommended another electrodiagnostic study in order to clarify her condition. 

In a June 10, 2015 report, Dr. Libreros-Cupido related appellant’s complaints of low back 

pain and keloid scar in the right shoulder. Another electrodiagnostic study of the lower 

extremities was performed and he reported bilateral L4-5, L5-S1 radiculopathy and prolonged 

left H reflex compatible with left S1 radiculopathy unchanged from the April 16, 2013 

electrodiagnostic study. 

Dr. Bishai reviewed Dr. Libreros-Cupido’s electrodiagnostic study and, in a report dated 

June 11, 2015, related that he maintained his initial impairment rating on February 19, 2015. He 

reported that his opinion stood that appellant had reached MMI as of February 19, 2015. 

In a July 28, 2015 report, OWCP’s medical adviser Dr. Hogshead related that, upon 

review of the medical evidence of record, the evidence of a lower extremity radiculopathy was 

questionable. He recommended a competent second opinion and a repeat electrodiagnostic 

study. 

OWCP referred appellant, along with a statement of accepted facts and the medical 

record, to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for a second opinion 

examination in order to conduct an electrodiagnostic study of appellant’s bilateral lower 

extremities and provide an opinion regarding her entitlement to a schedule award. 

In a September 2, 2015 report, Dr. Dinenberg described appellant’s work injury and 

noted her accepted conditions. He related her current complaints of back pain radiating down the 

bilateral lower extremities and of weakness in the bilateral lower extremity. Dr. Dinenberg 

discussed appellant’s medical records. Upon examination, he observed 5/5 strength of the hip 

flexors, quadriceps, hamstrings, gastroc soleus, tibialis anterior, and extensor halluces longus 

bilateral. Dr. Dinenberg also reported decreased sensation to light touch and insensate to light 

touch beginning several centimeters above the knee joint and extending to include appellant’s 

foot bilateral in a stocking distribution. Straight leg raise testing was negative bilaterally. 

Dr. Dinenberg reported that lumbar flexion was to 30 degrees and extension to 10 degrees. He 

also noted tenderness on lumbosacral spine to palpation in the paraspinous region both on the 
5

left, right, and midline. Dr. Dinenberg diagnosed lumbar sprain and strain without evidence of 

radiculopathy. 

Dr. Dinenberg reported that appellant’s objective findings included diminished range of 

motion of the lumbar spine and tenderness of the lumbar spine to palpation. He also noted that 

the sensory examination was nonanatomic with decreased sensation in the stocking distribution. 

Dr. Dinenberg indicated that appellant could perform the job of modified mail processor with 

restrictions. He recommended a functional capacity evaluation and noted that an 

electrodiagnostic study would be performed. Dr. Dinenberg reported that appellant had reached 

MMI on February 19, 2015, as previously noted by Dr. Bishai. 

In a September 16, 2015 report, Dr. Thomas Newman, a Board-certified neurologist, 

noted that he conducted EMG/NCV testing of appellant’s lower extremities and lumbar 

paraspinal muscles that day. He related that she had a history of lower back pain with pain in 

both lower extremities. Dr. Newman indicated that, on brief examination, he observed no 

intrinsic atrophy. He reported that the EMG/NCV study was normal. Dr. Newman indicated 

that there was no electrical evidence of nerve entrapment, peripheral neuropathy, or lumbar 

radiculopathy present. 

Dr. Dinenberg reviewed Dr. Newman’s September 16, 2015 electrodiagnostic study and 

related, in a September 23, 2015 addendum report, that the results demonstrated a normal 

electrodiagnostic study of both lower extremities with no electrodiagnostic evidence of nerve 

entrapment or generalized peripheral neuropathy. He reiterated that after his physical 

examination of appellant, his impression was that she had a lumbar sprain without evidence of 

radiculopathy on examination. Dr. Dinenberg explained that given the normal results of the 

September 16, 2015 EMG/NCV study and no evidence of radiculopathy during his examination 

on August 21, 2015, she had no permanent impairment of her bilateral lower extremities. He 

completed a work capacity evaluation form, which indicated that appellant was capable of 

working full time with restrictions. 

In an October 19, 2015 report, OWCP’s medical adviser, Dr. Hogshead, again reviewed 

appellant’s records, including Dr. Dinenberg’s September 2 and 23, 2015 reports, and noted that 

there had been no evidence of radiculopathy of the bilateral lower extremities during the physical 

examination and electrodiagnostic study. He agreed with Dr. Dinenberg’s conclusion that she 

had no permanent impairment of the bilateral lower extremities due to her accepted lumbar 

condition. 

OWCP denied appellant’s claim for schedule award in a decision dated 

December 9, 2015. It determined that the medical evidence of record was insufficient to 

establish permanent impairment of the bilateral lumbar extremities due to her accepted lumbar 

condition. OWCP noted that, according to Dr. Dinenberg’s August 21, 2015 second opinion 

report, Dr. Newman’s September 16, 2015 EMG/NCV study report, and the October 19, 2015 

report of OWCP’s medical adviser, there was no evidence of nerve entrapment, peripheral 

neuropathy, or lumbar radiculopathy. 

On June 8, 2016 appellant, through her representative, requested reconsideration. In an 

attached statement, the representative reviewed her history of injury and how OWCP had 
6

handled her schedule award claim. He alleged that the medical reports and opinions of OWCP’s 

referral physicians were not thorough and were not more probative than the reports of appellant’s 

treating physicians. The representative further asserted that EMG/NCV testing may be normal in 

patients who had radiculopathy. He explained that the main reason to perform the EMG/NCV 

study was to rule out any other conditions that may mimic radiculopathy. The representative 

further noted that Dr. Dyer, an OWCP medical adviser, did not dispute appellant’s diagnosis of 

radiculopathy, but merely found a lesser degree of impairment. He noted that he was enclosing 

medical reports, which clearly showed that appellant’s condition had not changed and that she 

still suffered a permanent impairment to her lower extremities. 

In reports dated December 9, 2015 to May 31, 2016, Dr. Bishai indicated that appellant 

continued to complain of severe pain in her lower back with radiation down the legs and pain in 

her neck with radiation to the upper extremities. He reported that neurological examination of 

the lower extremities showed motor deficit of moderate intensity affecting the extensor hallicus 

longus and moderate sensory deficit of diminished sensation bilaterally on the lateral aspect of 

the thigh. Dr. Bishai opined that based on his examination and Dr. Libreros-Cupido’s 

electrodiagnostic study, appellant had bilateral radiculopathy of the L5 nerve root and signs and 

symptoms of radiculopathy of the ankle plantar flexors and moderate sensory deficit affecting 

the posterior aspect of the leg and the lateral aspect of the foot on both sides. He indicated that 

he disagreed with Dr. Dinenberg’s conclusions and noted that Dr. Dinenberg spent only 10 

minutes doing an examination of a very complicated case. Dr. Bishai opined that appellant’s 

condition had not changed since the last examination and asserted that he continued to stand 

behind his initial impairment rating. 

In a July 22, 2016 report, Dr. Jovito Estaris, Board-certified in occupational and 

preventive medicine and an OWCP medical adviser, reviewed the record and discussed 

appellant’s medical reports. He indicated that, although Dr. Bishai mentioned moderate sensory 

deficits and moderate motor deficits of appellant’s bilateral lower extremities, there had been no 

new objective examination testing performed to support those findings. Dr. Estaris further noted 

that Dr. Dinenberg had not noted the “stocking glove” decrease sensation over appellant’s lower 

extremities on his examination and that Dr. Newman’s EMG/NCV study was normal. He 

reported that he agreed with Dr. Dinenberg that she had no ratable impairment of the lower 

extremities secondary to her accepted lumbar condition. Dr. Estaris concluded that, since there 

was no radiculopathy by medical examination or clinical studies, there was no impairment 

pursuant to the July/August 2009 edition of The Guides Newsletter. 

By decision dated July 27, 2016, OWCP denied modification of its December 9, 2015 

denial decision. It found that the weight of the medical evidence rested with the July 22, 2016 

report of Dr. Estaris, OWCP’s medical adviser, who determined that appellant had no ratable 

impairment of the lower extremities secondary to her lumbar condition. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 
7

loss or loss of use, of scheduled members or functions of the body.8

 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.9

 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.10

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.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.13 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 (July/August 2009 edition) of the sixth 

edition is to be applied.14 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.15 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 

 8

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

9

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

May 1, 2009, the sixth edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards 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). 

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

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

13 Supra note 10 at Chapter 3.700, Exhibit 4 (January 2010). 

14 Supra note 10 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4. 

15 D.S., Docket No. 14-0012 (issued March 18, 2014). 
8

in the spine.16 FECA approved methodology is premised on evidence of radiculopathy affecting 

the upper and/or lower extremities.17

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

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

shall appoint a third physician (known as a referee physician or impartial medical specialist) who 

shall make an examination.18 This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.19 When there exists 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.20 

ANALYSIS 

OWCP accepted appellant’s March 21, 2006 occupational disease claim for various 

conditions, including lumbar radiculitis, lumbar strain/sprain, and displacement of lumbar 

intervertebral disc without myelopathy. On April 27, 2015 appellant filed a claim for a schedule 

award based on the February 19, 2015 report of Dr. Bishai, her treating physician, who opined 

that she had 26 percent permanent impairment of each lower extremity for bilateral 

radiculopathy of the lower extremities secondary to her lumbar condition. OWCP denied her 

schedule award claim and determined that the weight of the medical evidence rested with the 

July 22, 2016 report of Dr. Estaris, OWCP’s medical adviser, who determined that she had no 

ratable impairment of the lower extremities secondary to her lumbar condition. 

The Board finds that this case is not in posture for decision as there is an unresolved 

conflict in medical opinion. 

In support of her schedule award claim, appellant submitted the February 19, 2015 report 

of Dr. Bishai, who found that she had 26 percent permanent impairment of each lower extremity 

pursuant to the A.M.A., Guides. Dr. Bishai utilized Table 2 of the July/August 2009 edition of 

The Guides Newsletter and based his conclusions on findings of moderate sensory and motor 

deficit of the L5 and S1 nerve roots. In a May 8, 2015 report, Dr. Dyer, an OWCP medical 

adviser, reviewed Dr. Bishai’s February 19, 2015 impairment rating and determined that 

appellant had 14 percent permanent impairment of each lower extremity based on findings of 

mild sensory and motor deficits. In a June 11, 2015 report, Dr. Bishai disagreed with Dr. Dyer’s 

impairment rating. He noted that a June 10, 2015 EMG/NCV study of the lower extremities 

 16 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 

17 See supra note 10 at Chapter 2.808.5(c)(3) (February 2013). 

18 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009). 

19 20 C.F.R. § 10.321. 

20 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001). 
9

confirmed his initial February 19, 2015 impairment rating. Dr. Hogshead, a second OWCP 

medical adviser, reviewed the record and recommended a second opinion examination with an 

electrodiagnostic study. 

Dr. Dinenberg, a second opinion physician, in reports dated September 2 and 23, 2015 

found that the sensory examination was nonanatomic with decreased sensation in the stocking 

distribution. He also noted that a September 16, 2015 EMG/NCV study was normal with no 

electrical evidence of nerve entrapment, peripheral neuropathy, or lumbar radiculopathy. A third 

medical adviser, Dr. Estaris, reviewed Dr. Dinenberg’s second opinion reports and, the medical 

record and, in a July 22, 2016 report, agreed with Dr. Dinenberg that appellant had no ratable 

permanent impairment of the bilateral lower extremities secondary to her accepted lumbar 

condition. He explained that since there was insufficient evidence of radiculopathy in her 

bilateral lower extremities she had no ratable impairment of the bilateral lower extremities 

pursuant to the July/August 2009 edition of The Guides Newsletter. 

The Board finds that there is an unresolved conflict in the medical evidence between 

appellant’s treating physicians and OWCP’s referral physicians regarding permanent impairment 

of the bilateral lower extremities. Appellant’s treating physician, Dr. Bishai opined that 

appellant had 26 percent permanent impairment of each lower extremity due to findings of 

moderate sensory and motor deficit. He based his opinion on examination findings and 

electrodiagnostic studies by Dr. Libreros-Cupido dated August 16, 2013 and June 10, 2015. 

Dr. Dyer, an OWCP medical adviser, found a 14 percent permanent impairment of each 

lower extremity due to mild sensory and motor deficit in her lower extremities. OWCP’s second 

opinion physician, Dr. Dinenberg, and medical adviser, Dr. Estaris, however, determined that 

appellant had no ratable impairment of the lower extremities secondary to her accepted lumbar 

conditions, based on physical examination and the September 16, 2015 electrodiagnostic testing. 

Accordingly, the Board finds a conflict in medical evidence as to whether appellant has 

any permanent impairment in her lower extremities after applying the A.M.A., Guides. 

As noted above, if there is disagreement between a claimant’s physician and OWCP’s 

referral physician, OWCP will appoint a referee physician or impartial medical specialist who 

shall make an examination.21 As there is an unresolved conflict in the medical evidence, the case 

must be remanded to OWCP for referral to an impartial medical specialist for resolution of the 

conflict in the medical opinion evidence in accordance with 5 U.S.C. § 8123(a). After such 

further development as OWCP deems necessary, it shall issue a de novo decision. 

CONCLUSION 

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

 21 Supra note 18. 
10

ORDER 

IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this opinion. 

Issued: April 26, 2017 

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