United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Grand Island, NE, Employer 

__________________________________________ 

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Docket No. 16-1299 

Issued: May 5, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 30, 2016 appellant filed a timely appeal from the December 3, 2015 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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 the claim. 

 1

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of OWCP’s 

decision. An appeal is considered filed upon receipt by the Clerk of the Appellant Boards. See 20 C.F.R. 

§ 501.3(e)-(f). The 180th day from OWCP’s December 3, 2015 decision was May 31, 2016. Because using June 6, 

2016, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date 

of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is May 30, 2016, 

which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant met her burden of proof to establish more than 11 percent 

permanent impairment of her left lower extremity, for which she previously received a schedule 

award. 

FACTUAL HISTORY 

This case has previously been on appeal before the Board.3 On February 9, 2011 

appellant, then a 49-year-old registered nurse, filed a traumatic injury claim (Form CA-1) 

alleging an injury in the lower back in the performance of duty. OWCP accepted L3-4 disc 

herniation and lumbar radiculopathy. On June 9, 2011 appellant underwent OWCP-approved 

lumbar surgery for a left leg hemilaminectomy. She received wage-loss compensation and was 

released to resume regular duty effective July 5, 2011. 

By decision dated October 19, 2012, OWCP granted appellant a schedule award for 15 

percent permanent impairment for her left leg. The period of the award was from September 22 

to October 20, 2012, a period of 43.2 weeks. OWCP explained that the schedule award began to 

run on September 22, 2012 because she was in receipt of wage-loss compensation through 

September 21, 2012 because a schedule award is not paid concurrently with wage-loss 

compensation for the same injury. 

In an August 15, 2013 decision, the Board set aside the October 19, 2012 schedule award, 

finding that the case was not in posture for decision. The Board determined that none of the 

physicians had properly explained how they arrived at their respective impairment ratings. The 

Board noted that FECA precluded impairment ratings for the spine, but referred to The Guides 

Newsletter, which offered an approach to rating spinal nerve extremity impairment consistent 

with sixth edition methodology. The Board further explained that OWCP has adopted this 

approach for rating impairment to the upper or lower extremities caused by a spinal injury. The 

Board remanded the case for a proper application of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment, (A.M.A., Guides) (6th ed. 2009) regarding the extent 

of impairment of the left lower extremity. The facts contained in the Board’s August 15, 2013 

decision are incorporated herein by reference. 

On remand, OWCP referred appellant for a second opinion evaluation, to Dr. Morgan 

LaHolt, a Board-certified orthopedic surgeon, along with a statement of accepted facts, a set of 

questions, and the medical record. 

In a report dated November 6, 2013, Dr. LaHolt, described appellant’s history of injury 

and provided results on examination. He referenced the A.M.A., Guides and The Guides 

Newsletter, and explained that, pursuant to Table 16-11,4

 he rated the residual sensory deficits 

due to L4 radiculopathy as grade 3 or six percent permanent impairment, given her 

impaired/sharp/dull recognition with retrained protective sensibility. Dr. LaHolt rated the motor 

 3

 Docket No. 13-0928 (issued August 15, 2013). 

4

 A.M.A., Guides 533. 
3

deficits as grade 1, or five percent permanent impairment given appellant’s weakness with 

dorsiflexion. He referred to Table 16-65 for functional history adjustment of the lower 

extremities and found a grade modifier of 1, as she had some difficulties with ambulating longer 

distances, but she was able to perform activities of daily living without difficulty. Dr. LaHolt 

explained that, although appellant did not complete the American Academy of Orthopedic 

Surgeons lower limb instrument, her social history was consistent with the medical records and 

he recommended a grade modifier of 1. He referred to Table 16-76 and found no adjustment due 

to physical examination. Dr. LaHolt also referred to Table 16-87 and found a grade modifier of 1 

for clinical studies. He explained the net adjustment formula (GMFH - CDX) + (GMPE - CDX) 

+ (GMCS - CDX) warranted no adjustments due to grade modifiers.8 

Dr. LaHolt concluded that appellant had reached maximum medical improvement (MMI) 

on December 6, 2011 and had 11 percent permanent impairment of the left lower extremity. 

In a November 29, 2013 report, OWCP’s medical adviser reviewed the findings of 

Dr. LaHolt and concurred that the 11 percent permanent impairment finding was correct. 

Accordingly, on December 4, 2013, OWCP determined that there was no increase in 

permanent impairment as appellant had previously been awarded 15 percent permanent 

impairment to the right leg and the medical evidence of record reflects only 11 percent 

impairment. 

On January 2, 2014 appellant requested a hearing before an OWCP hearing 

representative, which was held on July 15, 2014. In a separate letter of the same date, she also 

disputed the amount of compensation she received and argued that she had been incorrectly paid. 

On January 29, 2014 OWCP found preliminary overpayment of schedule award 

compensation in the amount of $7,721.28 due to the reduction in the schedule award. 

On March 5, 2014 OWCP finalized an overpayment of compensation in the amount of 

$7,721.28, which represented the difference between the previously paid 15 percent left lower 

extremity schedule award and the latest award for 11 percent. 

In a June 4, 2014 report, Dr. Frederick Catlett, a Board-certified family practitioner, 

indicated that appellant’s rating had been reduced from 15 percent to 11 percent. He explained 

in his examination that there was obvious flattening of the shin muscles on the left leg compared 

to the right, as well as decreased sharp and dull differentiation and reduced dorsiflexion of the 

foot. Dr. Catlett explained that appellant had a noticeable slap sound from the left foot when she 

walked and it was unlikely that a determination of disability could be reduced from 15 percent to 

11 percent, due to the way she walks. 

 5 Id. at 516. 

6 Id. at 517. 

7 Id. at 519. (1-1) + (NA) + (1-1) = 0. 

8 Id. at 521. 
4

By decision dated September 24, 2014, OWCP’s hearing representative remanded the 

case to Dr. LaHolt to clarify the rating regarding new evidence of either a foot slap or foot drop. 

Furthermore, the hearing representative requested clarification from the employing establishment 

of whether appellant’s pay rate was fixed or fluctuated. 

In a report dated November 12, 2014, Dr. LaHolt explained that he was providing 

clarification with regard to his impairment rating, in which he determined that appellant had an 

11 percent permanent impairment of the left lower extremity. He explained that the presence of 

foot drop or foot slap would not alter his opinion. Dr. LaHolt explained that he rated appellant as 

if the symptom was present. He referenced the A.M.A., Guides and The Guides Newsletter, and 

explained that, pursuant to Table 16-11,9

 motor deficit severity was determined based upon 

strength against gravity. Dr. LaHolt explained that, in appellant’s case, she was given a motor 

deficit rating of 1 given her 4/5 strength on examination. He confirmed that he did not notice a 

foot slap or foot drop on examination. However, Dr. LaHolt explained that the impairment 

rating would not change as appellant had not exhibited 3/5 strength. He explained that even if 

she experienced a decline in motor strength, this would not be expected after an appropriately 

treated lumbar radiculopathy, which was not a progressive condition. Dr. LaHolt indicated that 

4/5 strength in dorsiflexion could lead to intermittent foot slap as the leg fatigued. He referred to 

Table 16-1110 and explained that appellant had been rated a severe, class 3, for sensory deficit 

due to the examination findings of impaired sharp/dull recognition. Dr. LaHolt explained that, 

due to the lack of the cutaneous findings, it was his opinion that she was most appropriately rated 

at a severity level of 3. He further indicated that a severe sensory deficit was equivalent to a six 

percent lower extremity impairment rating maximum. Dr. LaHolt explained that, as no 

adjustments were made for the grade modifiers, the deficits of sensory and motor were combined 

to yield a total lower extremity impairment rating of 11 percent. 

In a January 6, 2015 report, OWCP’s medical adviser, verified the findings and 

calculations provided by Dr. LaHolt. He explained that he agreed with the 11 percent 

impairment of the left lower extremity of Dr. LaHolt. The medical adviser reiterated that the 

foot slap was “subsumed” in the weakness rating process, i.e., the 4/5 strength on the left leg. 

By decision dated January 21, 2015, OWCP determined that appellant had no more than 

an 11 percent permanent impairment of the left leg. 

On February 16, 2015 appellant requested a telephonic hearing, which was held on 

September 10, 2015. She confirmed that she was not appealing the pay rate, but rather she was 

appealing the reduction of her schedule award. Appellant argued that she was not properly 

examined by Dr. LaHolt. She indicated that it was obvious that she had a foot drop and he did 

not see her walk and the examination was “so brief it was ridiculous.” Appellant argued that the 

other physicians noticed her foot drop. 

By decision dated December 3, 2015, OWCP’s hearing representative affirmed the 

January 21, 2015 decision. 

 9 Id. at 533. 

10 Id. 
5

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.11 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 under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.12 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).13

Neither FECA nor the regulations provide for the payment of a schedule award for the 

permanent loss of use of the back/spine or the body as a whole.14 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.15 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology 

for rating spinal nerve extremity impairment.16 It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

FECA-approved methodology is premised on evidence of radiculopathy affecting the upper 

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are 

incorporated in the procedure manual.17

ANALYSIS 

In this case, OWCP accepted appellant’s traumatic injury claim for L3-4 disc herniation 

and lumbar radiculopathy. It also authorized a June 9, 2011 left L3-4 hemilaminectomy on 

June 9, 2011. Appellant filed a claim for a schedule award on April 16, 2012. On October 19, 

2012 OWCP granted a schedule award for 15 percent permanent impairment to the left leg. The 

Board remanded the claim for a proper application of the A.M.A., Guides. 

In a November 6, 2013 report, Dr. LaHolt provided results on examination. He utilized 

the A.M.A., Guides and The Guides Newsletter. Dr. LaHolt referred to Table 16-11,18 regarding 

 11 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ 

compensation. 5 U.S.C. § 8107(c)(2). 

12 20 C.F.R. § 10.404. 

13 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

14 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

15 Supra note 13 at Chapter 2.808.5c(3). 

16 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.

17 See supra note 13 at Chapter 3.700, Exhibit 4. 

18 A.M.A., Guides 533. 
6

sensory deficits and placed appellant in grade 3 due to her impaired/sharp/dull recognition with 

retrained protective sensibility. As to motor deficits, he placed her in grade 1 given her 

weakness with dorsiflexion which was not consistent during his examination. Dr. LaHolt found 

a grade modifier of 1 for functional history, no adjustment due to the physical examination grade 

modifier, and a grade modifier of 1 for clinical studies. He explained that the net adjustment 

formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) rendered no adjustment.19 

Dr. LaHolt found six percent lower extremity rating for sensory deficits and five percent for 

appellant’s motor deficits. He concluded that she reached MMI on December 6, 2011 and that 

she had an 11 percent permanent impairment of the left lower extremity. 

On November 12, 2014 Dr. LaHolt clarified that the presence of foot drop would not alter 

his opinion. He indicated that he rated appellant as if the symptom was present and explained his 

opinion utilizing the A.M.A., Guides and The Guides Newsletter. Dr. LaHolt explained that, 

once adjustments were made using the modifiers, the deficits of sensory and motor were 

combined to yield a total lower extremity impairment rating of 11 percent. He advised that there 

was no mathematical way to combine the numbers from a mild motor deficit with a severe 

sensory deficit to obtain a 15 percent rating. 

In a January 6, 2015 report, OWCP’s medical adviser, he concurred with the report of the 

second opinion physician, Dr. LaHolt, regarding the 11 percent impairment to the left leg. He 

explained that the foot slap was “subsumed” in the weakness rating process, i.e., the 4/5 strength 

on the left leg. The Board finds that Dr. LaHolt properly explained his findings as noted above, 

under the A.M.A., Guides and The Guides Newsletter. OWCP’s medical adviser concurred that 

the rating was proper pursuant to The Guides Newsletter. 

On appeal, appellant argued that she never appealed the amount of her award, but rather 

the date of September 21, 2012. She also argued that Dr. LaHolt was “incompetent” as he did 

not see her foot slap or atrophy in her left leg and no one could explain why she was sent to him. 

Furthermore, Dr. LaHolt did not make appellant walk, which was necessary to evaluate her. The 

Board notes that OWCP’s medical adviser and Dr. LaHolt properly explained how they arrived 

at an 11 percent left leg permanent impairment utilizing The Guides Newsletter. The date of 

MMI was December 6, 2011.20 Furthermore, appellant also argued that she was not fully 

compensated from her initial claim for compensation dated June 19, 2012 according to the 3⁄4 

rate. However, the only issue before the Board is whether she met her burden of proof to 

establish more than an 11 percent permanent impairment of her left leg, for which she already 

received 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. 

 19 Id. at 521. 

20 As noted above, the schedule award began to run on September 22, 2012 because appellant was in receipt of 

wage-loss compensation through September 21, 2012 and a schedule award is not paid concurrently with wage-loss 

compensation for the same injury. See S.W., Docket No. 10-2071 (issued July 11, 2011); J.B., Docket No. 08-1178 

(issued December 22, 2008). See also supra note 13 at Part 2 -- Claims, Entitlement to Schedule Awards, Chapter 

2.808.4a(3) (issued February 2013). 
7

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish that she has 

more than 11 percent permanent impairment of her left lower extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the December 3, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 5, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board