United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.D., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL AIR 

STATION MIRAMAR, San Diego, CA, Employer

__________________________________________

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Docket No. 17-1565

Issued: February 21, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 10, 2017 appellant filed a timely appeal from a June 14, 2017 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 permanent 

impairment of his lower extremities for schedule award purposes. 

FACTUAL HISTORY

The case has previously been before Board.2 The facts set forth in the Board’s prior 

decision are incorporated herein by reference. The relevant facts are as follows. 

 

1 5 U.S.C. § 8101 et seq.

2 Docket No. 09-1220 (issued March 15, 2010). 
2

On May 1, 1980 appellant, then a 42-year-old maintenance worker, filed a traumatic 

injury claim (Form CA-1) alleging that, on April 30, 1980, he fell off of a bench, resulting in low 

back pain and leg pain. OWCP accepted appellant’s claim under File No. xxxxxx252 for acute 

low back strain. Appellant was disabled from work due to this injury from April 30 through 

November 13, 1980. He returned to work on November 14, 1980. Appellant also filed a 

separate claim alleging that on August 4, 1987 he sustained an acute low back strain when he 

slipped and fell. OWCP accepted his claim under File No. xxxxxx406 for acute low back strain. 

Appellant was disabled due to the August 4, 1987 injury intermittently from August 6, 1987 until 

he returned to light duty on April 18, 1988. He again became disabled from work on 

June 2, 1988. OWCP administratively combined the two cases under File No. xxxxxx406. 

Appellant also had nonwork-related conditions of preexisting congenital scoliosis, foraminal 

stenosis and spondylolisthesis. 

On September 9, 2005 appellant filed a claim for a schedule award (Form CA-7). 

In a September 27, 2005 report, Dr. Laurence M. McKinley, appellant’s Board-certified 

orthopedic surgeon, related that appellant had 10 percent permanent whole body impairment due 

to the accepted employment injuries.

In a November 16, 2005 opinion, an OWCP medical adviser reported that appellant’s 

accepted conditions, including lumbosacral strain and compression fractures, did not cause 

neuralgic deficit in either lower extremity. He determined that, although appellant did have 

limited range of motion, there was no documentation of any neurologic deficit in either lower 

extremity. As such, the medical adviser determined that appellant had zero percent permanent 

impairment of his lower extremities resulting from the accepted work injuries. 

By decision dated November 28, 2005, OWCP denied appellant’s schedule award claim. 

It determined that the medical evidence of record did not support permanent impairment of a 

scheduled member or function of the body as required under 5 U.S.C. § 8107. 

On December 6, 2005 appellant requested a hearing before an OWCP hearing 

representative. On November 30, 2006 OWCP’s hearing representative set aside the 

November 28, 2005 decision and remanded the case for further development of the medical 

evidence. The hearing representative noted that the evidence of record was contradictory as to 

what conditions had preexisted the accepted injuries, what conditions had actually been accepted 

by OWCP, and what conditions were related to the accepted injury. 

In a February 14, 2007 report, Dr. Hendrick J. Arnold, an orthopedic surgeon, conducted 

a second opinion evaluation for OWCP. He found that appellant had no physical findings in his 

lower extremities that were ratable for permanent impairment, but that appellant had permanent 

aggravations of underlying spinal stenosis, scoliosis, and degenerative disc disease.

By decision dated February 21, 2007, OWCP denied appellant’s claim for a schedule 

award, but accepted the additional conditions of permanent aggravation of preexisting spinal 

stenosis, lumbar scoliosis, and degenerative disc disease. 

On March 23, 2007 appellant requested a hearing before an OWCP hearing 

representative. In an August 8, 2007 decision, an OWCP hearing representative set aside the 

February 21, 2007 decision. She found a conflict in the medical opinion evidence between
3

Dr. McKinley and Dr. Arnold regarding whether appellant had sustained a ratable impairment to 

either of his lower extremities as a result of the accepted work-related conditions, and remanded 

the case for referral to a referee physician.

On remand OWCP referred appellant to Dr. Jeffrey J. Sabin, a Board-certified orthopedic 

surgeon, for an impartial medical opinion. Dr. Sabin, in a December 17, 2007 report, opined that 

appellant had no lower extremity impairment because his scoliosis and stenosis conditions were 

degenerative in nature and would worsen with aging.

By decision dated January 18, 2008, OWCP denied appellant’s claim for a schedule 

award for his lower extremities based on the report of Dr. Sabin. 

On January 31, 2008 appellant requested a review of the written record by an OWCP 

hearing representative. On May 14, 2008 OWCP’s hearing representative set aside the 

January 18, 2008 decision and on remand directed OWCP to obtain a supplemental report from

Dr. Sabin after advising him that impairment of an extremity caused by an accepted back 

condition can be the basis for an award. 

In a supplemental report dated May 23, 2008, Dr. Sabin opined that there could not be a 

permanent aggravation of stenosis, scoliosis, and degenerative disc disease, only a temporary 

aggravation and that the acceptance by OWCP of such permanent aggravation was flawed. He 

noted that, even if this aggravation was accepted, it would still not relate to lower extremity 

impairment. 

By decision dated September 12, 2008, OWCP denied appellant’s schedule award claim,

finding that the weight of the medical evidence of record, as represented by the report of

Dr. Sabin, established that appellant did not have a lower extremity impairment causally related 

to his accepted condition. 

On October 9, 2008 appellant again requested review of the written record by an OWCP 

hearing representative. By decision dated March 18, 2009, OWCP’s hearing representative 

affirmed the September 12, 2008 decision.

Appellant appealed to the Board. By decision dated March 15, 2010, the Board 

determined that the report of Dr. Sabin was deficient in that he failed to properly comply with 

OWCP’s hearing representative’s instructions. The Board further noted that OWCP failed to 

refer the medical evidence to an OWCP medical adviser and that appellant should have been 

referred to an impartial medical specialist for an independent evaluation of his left and right 

lower extremity impairment based on correct application of the American Medical Association, 

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

3

and the statement of 

accepted facts.

4

On April 20, 2010 OWCP referred appellant to Dr. John Douthit, a Board-certified 

orthopedic surgeon, for an impartial medical examination. In a May 10, 2010 report, Dr. Douthit 

 

3

(6th ed. 2009).

4

Id.
4

opined that appellant had no evidence of radiculopathy with no reflex loss, weakness, pain, or 

atrophy and normal parameters for range of motion of all joints. He noted his agreement with 

Drs. Arnold and Sabin in that he found no abnormal physical findings of appellant’s lower 

extremities on which to base a rating. Dr. Douthit noted that he could not find any gait 

disturbances caused by an injury or impairment of his lower extremities. He noted that 

appellant’s posture and gait were due to his back condition as other examiners had emphasized

his injury was to the back. Dr. Douthit indicated that the lower extremity impairment would in 

most cases be accounted for in the spine impairment rating assuming that there are no other 

primary lower extremity diagnosed requiring concomitant rating. He concluded that he found no 

objective impairment of his lower extremities but would offer to rate his spine condition. 

By decision dated May 20, 2010, OWCP denied appellant’s schedule award claim based 

on the opinion of Dr. Douthit.

On June 9, 2010 appellant requested an oral hearing before an OWCP hearing 

representative. On October 22, 2010 an OWCP hearing representative granted appellant’s 

request to withdraw his request for a hearing.

The case lay dormant until on September 9 and 17, 2014 when appellant filed a claim for 

an additional schedule award (Form CA-7). 

Appellant submitted multiple progress reports from Dr. Daniel Barba, his treating Boardcertified orthopedic surgeon. In a report dated October 14, 2014, Dr. Barba related that appellant 

indicated that his low back pain had plateaued and that he otherwise denied any radiating leg 

pain, numbness, tingling, or weakness. He diagnosed lumbar degenerative scoliosis and healed 

L1 vertebral body compression fracture clinically stable with no exacerbation in his chronic pain 

complaints. 

On March 17, 2015 OWCP referred appellant to Dr. Thomas P. Moore, a Board-certified 

orthopedic surgeon, for a second opinion examination. In an April 2, 2015 opinion, Dr. Moore 

listed appellant’s diagnoses as low back pain, idiopathic scoliosis, degeneration of lumbar spine 

and intervertebral discs, and spinal stenosis. He noted that appellant’s scoliosis existed prior to 

his injury and did not result in any restrictions. Dr. Moore indicated that appellant was at 

maximum medical improvement (MMI) with regard to his back. He noted that appellant’s 

impairment to his legs was not directly related to his work injuries, but rather secondary to 

appellant’s spinal stenosis. Dr. Moore indicated that it was probably the result of natural aging 

and underlying degenerative changes of his lumbar spine. 

On May 14, 2015 OWCP referred appellant’s case to OWCP’s medical adviser. In a 

May 16, 2015 response, the medical adviser concluded that, with lack of lower extremity sensory 

and motor deficits, appellant did not have lower extremity permanent impairment, for which he 

would be entitled to a schedule award.

By decision dated June 2, 2015, OWCP denied appellant’s schedule award claim. It

noted that his treating physician and the second opinion physician were in agreement that no 

impairment existed to appellant’s lower extremity as a result of his employment-related injuries.

On August 17, 2015 appellant requested reconsideration. In an accompanying letter, he

requested an impartial medical evaluation. Appellant alleged that Dr. Barba was more concerned 
5

with the number of patients he saw and not with the issues he presented to him as a patient. He 

alleged that he told Dr. Barba that the pain had severely increased in his back and down his legs. 

Dr. Barba argued that he did not have a proper diagnosis and was requesting proper tests. 

By decision dated November 9, 2015, OWCP denied modification of its prior decision. It

noted that appellant requested another medical opinion, but indicated that as there was no 

conflict, a referee examination or a new second opinion were not warranted. 

On February 12, 2016 appellant again requested reconsideration. In an accompanying 

letter, he questioned how Dr. Barba or Dr. Moore could make a qualified diagnosis and provide 

reliable reports when he had not undergone x-ray evaluation for over four years. Appellant

alleged that his condition continued to worsen. He again requested another impartial 

examination with an orthopedic surgeon and asked that OWCP authorize further objective 

diagnostic testing. 

By letter dated August 18, 2016, OWCP referred appellant to Dr. William V. Watson, a 

Board-certified orthopedic surgeon, for a second opinion evaluation. In a report dated 

November 30, 2016, Dr. Watson noted that appellant’s claim had been accepted for aggravation 

of preexisting spinal stenosis. He also believed that the compression fracture at L1 was directly 

related to the original injury. However, Dr. Watson noted that appellant’s idiopathic scoliosis 

was preexisting, although the injury did cause an aggravation. He believed that the aggravation 

of his preexisting curvature with continued evidence of his healed L1 compression fracture and 

x-ray evidence of scoliosis and spinals stenosis reached MMI on October 14, 2014 and that his 

condition has plateaued. Dr. Watson noted that, as of the date of his examination, appellant had 

no complaints of physical findings relating to the lower extremities. He believed that further 

medical care should be taken outside the realm of workers’ compensation. 

By decision dated November 3, 2016, OWCP denied modification of its prior decision. It

determined that the requirements had not been met to establish entitlement to a schedule award 

because the weight of the medical opinion in the case established that appellant did not have a 

ratable impairment under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404. 

In August 23, 2016 x-ray report, Dr. Daniel Wardrop, a Board-certified radiologist, found

levoscoliosis, advanced multi-level disc degeneration, and advanced facet osteoarthrosis, 

resulting in significant neural foraminal stenosis at L3-4, L4-5, and L5-S1. 

On April 12, 2017 appellant again requested reconsideration. In support thereof, he

submitted a report by a physician assistant, Stephanie Marie Pierce, diagnosing low back pain, 

spinal stenosis in lumbar region, and spondylosis without myelopathy or radiculopathy, lumbar 

region. Appellant also submitted reports by Dr. Leek, noting that he gave appellant epidural 

injections from November 11 through 23, 2016. In a November 3, 2016 report, Dr. Leek

diagnosed spinal stenosis lumbar region; radiculopathy lumbar region; spondylosis, lumbar 

region; and spondylolisthesis, lumbar region. 

By decision dated June 14, 2017, OWCP denied modification of its November 2, 2016 

decision because the preponderance of the medical evidence found that any impairment appellant 

was experiencing was the result of his degenerative condition and the aging process rather than 

the accepted work injuries. 
6

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing regulations6set forth the 

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

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

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law to all claimants, good administrative practice

necessitates 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.

7

 The A.M.A., Guides has been adopted 

by the implementing regulations as the appropriate standard for evaluating schedule losses.8 

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

in FECA or in the implementing regulations.9 Neither FECA nor the implementing federal 

regulations provide for payment of a schedule award for the permanent loss of use of the back, 

the spine or the body as a whole; a claimant is not entitled to such a schedule award.10 The 

Board notes that section 8101(19) specifically excludes the back from the definition of organ.11 

A claimant may receive a schedule award for any permanent impairment to the upper or lower 

extremities even though the cause of the impairment originated in the spine.12

The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal 

nerve impairment, set forth in the July/August 2009 The Guides Newsletter.

13

 It was designed 

for situation in which 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 Federal (FECA) Procedure Manual.14 

The Board has recognized the adoption of this methodology as proper in order to provide a 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any 

physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 --

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010). 

8 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

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

10 See Jay K. Tomokiyo, 51 ECAB 361 (2000).

11 5 U.S.C. § 8101(19).

12 W.D., Docket No. 10-274 (issued September 3, 2016). 

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

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

14 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4

(January 2010). 
7

uniform standard applicable to each claimant for a schedule award for extremity impairment 

originating in the spine.15

ANALYSIS

OWCP accepted appellant’s claims for low back strain (from both the April 30, 1980 and 

August 8, 1987 employment injuries); and permanent aggravation of a preexisting spinal 

stenosis, lumbar scoliosis, and degenerative lumbar disc disease (from the August 4, 1987 

injury). 

The Board finds that appellant has failed to establish permanent impairment of a 

scheduled member or function of the body warranting a schedule award. As previously noted, 

no schedule award is payable for permanent loss of use of the back, spine or body as a whole, 

but, appellant may receive a schedule award for permanent impairment to the upper or lower 

extremities even though the cause of impairment originated in the spine.16 

However, appellant failed to establish permanent impairment to his lower extremities due 

to his accepted back condition. No physician provided an opinion that appellant had a permanent 

impairment of his lower extremities. Dr. McKinley determined that appellant had no neurolgic 

deficit in either lower extremity. Dr. Arnold, who conducted a second opinion examination on

February 14, 2007, found that appellant had no physical findings in his lower extremities that 

would establish permanent impairment. Although Dr. Sabin conducted an impartial medical 

examination, Dr. Sabin’s report was found deficient by this Board. Therefore, appellant was 

referred to Dr. Douthit for a new impartial medical examination. Dr. Douthit found no objective 

impairment in appellant’s lower extremities. Dr. Moore conducted a second opinion evaluation 

on April 2, 2015, and determined that any impairment in appellant’s legs was not directly related 

to his employment injury, but probably the result of natural aging and underlying degenerative 

changes in the lumbar spine. Dr. Watson, who conducted a second opinion examination on 

November 30, 2016, noted that appellant had no complaints of physical findings in his lower 

extremities. In addition, none of OWCP’s medical advisers found any impairment in appellant’s 

lower extremities. 

Dr. Wardrop interpreted x-rays, but he did not reach any opinion with regard to 

permanent impairment of the lower extremities. Therefore, his report is of no probative value.17 

Dr. Leek and Dr. Barba also did not address whether appellant had any permanent impairment of 

the lower extremities. Medical reports which do not address the issue of permanent impairment 

are irrelevant in a schedule award claim.18 

Appellant also submitted evidence from Ms. Pierce, a physician assistant. However, 

physician assistants are not considered physicians under FECA, and therefore her opinion is of 

 

15 D.S., Docket No. 14-12 (issued March 18, 2014). 

16 J.S., Docket No. 13-2129 (issued June 6, 2014). 

17 G.M., Docket No. 14-2057 (issued May 12, 2015). 

18 See J.D., Docket NO. 17-0767 (issued November 28, 2017). 
8

no probative value.19 The Board, therefore, finds that appellant has not established his 

entitlement to a schedule award.

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of new exposure or medical evidence showing a progression of an employmentrelated condition resulting in impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his lower extremities for schedule award purposes.

ORDER

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

Compensation Programs dated June 14, 2017 is affirmed.

Issued: February 21, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

19 5 U.S.C. § 8101(2) provides that the term physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. L.L., Docket No. 13-829 (issued August 20, 2013) (a physician assistant is not a physician under 

FECA). See 5 U.S.C. § 8101(2).