United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.D., Appellant 

and 

DEPARTMENT OF JUSTICE, IMMIGRATION 

& NATURALIZATION, Rio Grande City, TX, 

Employer 

__________________________________________ 

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Docket No. 16-0841 

Issued: February 16, 2017 

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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 17, 2016 appellant, through counsel, filed a timely appeal from 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. 

 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

ISSUE 

The issue is whether appellant met his burden of proof to establish ratable permanent 

impairment to a scheduled member causally related to his June 11, 2000 employment injury. 

On appeal counsel contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On June 13, 2000 appellant, then a 30-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that, while working the sky watch on June 11, 2000, he 

leaned back and his chair broke, causing him to fall out of the chair. He noted that, at that time, 

the sky watch was fully extended, so he fell approximately 25 feet. Appellant alleged that, as a 

result of the fall, he bruised his heels, back, and buttocks. OWCP accepted his claim for closed 

fracture of lumbar vertebra at L2 without spinal cord injury and bilateral ankle sprain.3

On December 11, 2000 appellant filed a claim for compensation (Form CA-7) requesting 

a schedule award. By decision dated February 8, 2001, OWCP denied the claim. On 

October 20, 2011 appellant filed a claim for a recurrence of medical condition (Form CA-2a). 

OWCP denied his recurrence claim on January 9, 2012. 

In a July 1, 2014 progress note, Dr. Gregory A. Ward, appellant’s treating Board-certified 

neurosurgeon, diagnosed sciatica, lower back pain, spinal stenosis, lumbar region, and without 

neurogenic claudication, lumbosacral spondylosis without myelopathy, and other specified 

aftercare following surgery. He noted that appellant stated that he was doing fairly well, 

although he still had some paresthesias in his left leg and foot, but felt that his strength was back 

to normal. Dr. Ward also noted that appellant had some balance issues and a burning numbness 

from the left knee down into the left foot. He noted that appellant was able to heel and toe walk 

as well as tandem gait. Dr. Ward noted mildly limited lumbar range of motion. 

In a September 9, 2014 report, Dr. Thomas Martens, an osteopath, provided results on 

examination, conducted range of motion measurements, and reviewed his medical and 

occupational history. He diagnosed the following conditions due to appellant’s occupational 

claim: (1) closed fracture lumbar vertebrae without spinal cord injury, (2) bilateral ankle sprain, 

(3) contusion of foot and ankle, and (4) contusion of foot. Dr. Martens opined that the claimed 

traumatic work injury during the course of appellant’s employment caused these injuries. 

Utilizing Table 16-12 of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides), (6th ed. 2009) for peripheral nerve impairment -- 

lower extremity impairment,4

 Dr. Martens noted a diagnosis of multilevel lumbar disc 

herniation, end plate fracture, and lumbar radiculopathy was based on the diagnostic studies and 

 3

 The record does not indicate that appellant received wage-loss compensation on the supplemental or periodic 

rolls. 

4

 A.M.A., Guides 535. The Board notes that while Dr. Martens clearly applied Table 16-12 of the A.M.A., 

Guides, he improperly references Table 16-2 of the A.M.A., Guides when discussing peripheral nerve impairment. 
3

placed appellant in class 2 for a peripheral nerve impairment. Class 2 concerns the femoral 

nerve with moderate motor deficit, and notes a mid-range value of 14 percent. Dr. Martens 

assigned a grade modifier of 2 for functional history, as he noted that appellant had severe 

functional limitations. He found a grade modifier of 3 for physical examination, based on 

decreased protective sensibility with abnormal sensations for moderate pain in a clinically 

appropriate distribution that could prevent some activities. Dr. Martens determined that a 

modifier for clinical studies was not applicable as it had been used to determine the class. He 

determined appellant’s net adjustment based on grade modifiers as follows: (2-1) + (3-1) + (n/a) 

= 3. Dr. Martens determined that a grade modifier of 3 moved the value from 14 percent 

impairment to 19 percent impairment within the same class. Accordingly, he determined that 

appellant had 19 percent permanent impairment of the left lower extremity for peripheral nerve 

impairment. 

With regard to appellant’s left ankle condition, Dr. Martens referenced Table 16-2 of the 

A.M.A., Guides, entitled “Foot and Ankle Regional Grid -- Lower Extremity Impairment.5

 He 

noted the diagnostic criteria for appellant’s condition and placed him in class 1 for a diagnosis of 

moderate motion deficits and/or significant weakness, with a midrange default value of 10 

percent. Dr. Martens noted a grade 1 modifier for functional history and a grade 2 modifier for 

physical examination based on moderate palpatory findings, consistently documented, and 

supported by observed abnormalities. He noted a grade modifier for clinical studies was not 

applicable. Dr. Martens then calculated the net adjustment as follows: (1-1) + (2-1) + (n/a) = 1. 

Accordingly, he found 12 percent left ankle permanent impairment. 

With regard to the right ankle, Dr. Martens again applied Table 16-2, and noted that 

appellant had mild motion deficits on examination, for which he assigned a class 1 diagnostic 

criteria with a midrange default of five percent. He assigned a grade modifier of 1 for functional 

history and 1 for physical examination and he noted clinical studies were nonapplicable. 

Dr. Martens found a net adjustment of 0 based on the formula (1-1) + (1-1) + (n/a). Accordingly, 

he determined that appellant had a final right lower extremity impairment of five percent as it 

related to the right ankle condition. Using the Combined Values Chart, Dr. Martens indicated 

that appellant had 29 percent left lower extremity permanent impairment and 5 percent right 

lower extremity permanent impairment. 

On October 21, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On November 4, 2014 OWCP asked its medical adviser to review Dr. Martens’ report to 

determine an impairment rating. In a November 5, 2014 report, Dr. Michael M. Katz, a Boardcertified orthopedic surgeon and an OWCP medical adviser, reviewed Dr. Martens’ calculations 

and noted that he had incorrectly found 19 percent impairment based on the peripheral nerve 

impairment regional grid in that his calculations would actually yield 14 percent impairment, as 

the adjustment for grade modifiers would be +1 and move the default class to grade D. He also 

noted that Dr. Martens’ use of Table 16-12 for lower extremity peripheral nerve impairment was 

not the accepted method for rating spinal nerve impairment for the purpose of determining a 

probative schedule award under FECA. Dr. Katz noted that spinal nerve impairment is best 

 5 Id. at 501. 
4

determined using the method described in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment using the sixth edition (July/August 2009) (The Guides Newsletter).

Dr. Katz found Dr. Martens’ calculations for permanent bilateral ankle impairment 

proper. However, he had some questions with regard to his conclusions on physical 

examination, finding them inconsistent with the earlier findings of appellant’s neurosurgeon, 

Dr. Ward. Dr. Katz noted that review of Dr. Ward’s July 1, 2014 report indicated no complaints 

of focal weakness and intact motor strength and normal toe walking and was inconsistent with 

Dr. Martens’ determination of moderate femoral nerve weakness on the left and motion deficits 

of both ankles, moderate on the left. He opined that these deficits, as reported by Dr. Martens, 

would be inconsistent with Dr. Ward’s observation on physical examination that appellant’s gait 

was normal and that he was able to heel and toe walk as well as tandem gait. Dr. Katz opined 

that there was a significant conflict between Dr. Ward’s report of July 1, 2014 and Dr. Martens’ 

impairment evaluation of June 9, 2014 that could not be resolved on the basis of a medical 

records review. He therefore recommended a second opinion impairment evaluation with a 

Board-certified physiatrist. 

On February 19, 2015 OWCP referred appellant for a second opinion evaluation. In a 

March 6, 2015 second opinion evaluation, Dr. David Poindexter, a Board-certified physiatrist, 

conducted a physical examination and discussed appellant’s history of injury as well as his 

medical history. He noted that, on evaluation, appellant’s gait was within normal limits with 

normal heel and toe ambulation. Dr. Poindexter noted no tenderness to palpitation to the lumbar 

spine, and that his seated leg raise was positive at 70 to 80 degrees bilaterally. He found normal 

lumbar range of motion and that bilateral lower extremity sensory, motor, and reflexes were 

within normal limits. Dr. Poindexter noted that, under FECA, the lumbar injury is rated using 

The Guides Newsletter for spinal nerve injuries resulting in lower extremity impairment. He 

noted that appellant’s lower extremity sensation was normal as well as the lower extremity motor 

examination was 5/5 throughout. Therefore, Dr. Poindexter found that appellant had zero 

percent permanent impairment of the bilateral lower extremities due to the lumbar injury. 

Dr. Poindexter also noted that for the left ankle sprain, appellant’s injury healed without 

residual pain, stiffness, or functional deficit. He related that the examination was within normal 

limits with full range of motion and no tenderness to palpation. Utilizing Table 16-2 of the 

A.M.A., Guides,

6

 Dr. Poindexter placed appellant in class 0 with no significant objective 

abnormal findings and hence should receive zero percent permanent impairment for left lower 

extremity. For right ankle sprain, he determined that appellant’s injury also healed without 

residual pain, stiffness, or functional deficit. The examination was within normal limits with full 

range of motion and no tenderness to palpation. Utilizing Table 16-2, Dr. Poindexter placed 

appellant as class 0 with no significant objective abnormal findings, and noted zero percent right 

lower extremity permanent impairment. 

On April 7, 2015 OWCP referred Dr. Poindexter’s report to a new OWCP medical 

adviser. In an April 13, 2015 report, Dr. Ronald Blum, a Board-certified orthopedic surgeon and 

 6 Id. at 501. 
5

an OWCP medical adviser, agreed with the report of Dr. Poindexter and opined that appellant 

had zero percent permanent impairment to each lower extremity. 

By decision dated April 15, 2015, OWCP denied appellant’s claim for a schedule award. 

On April 24, 2015 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. At the hearing held on November 19, 2015 counsel argued that 

the reports of Dr. Poindexter and Dr. Blum contained no discussion of Dr. Martens’ examination. 

Counsel contended that, at the very least, OWCP should have obtained an impartial medical 

examination due to the conflict between the opinions of Dr. Martens and Dr. Poindexter. He also 

argued that neither Dr. Poindexter nor OWCP’s medical adviser mentioned objective test results, 

or the operative report which noted radiculopathy. 

By decision dated February 2, 2016, OWCP’s hearing representative affirmed the 

April 15, 2015 decision denying appellant’s claim for a schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA7 and its implementing regulations8 set forth the 

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

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

necessitates the use of single set of tables so that here may be uniform standards applicable to all 

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

appropriate standard for evaluating schedule losses.9 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.10

The sixth edition requires identifying the impairment class for the diagnosed condition 

Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).11 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 A 

 7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404.

9 Id. 

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

Chapter 2. 808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

11 A.M.A., Guides 494-531. 

12 Id. at 521. 

13 Pamela J. Darling, 49 ECAB 286 (1998). 
6

schedule award is not payable for the loss, or loss of use, of a part of the body that is not 

specifically enumerated under FECA.14

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.15

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

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, Rating Spinal Nerve Impairment using the sixth edition (July/August 2009) is to be 

applied.16 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.17 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 in the spine.18

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to the medical adviser for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale 

for the percentage of impairment specified.19

Section 8123(a) provides that, 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.20 The implementing regulations state 

that, if a conflict exists between the medical opinion of the employee’s physician and the medical 

opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint 

a third physician to make an examination. 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.21 In situations where there exist opposing medical reports of virtually equal 

 14 M.P., Docket No. 14-777 (issued July 18, 2014). 

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

16 See G.N., Docket No. 10-850 (issued November 12, 2010); see also supra note 10 at Chapter 3.700, Exhibit 1, 

n.5 (January 2010). 

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

18 R.L., Docket No. 14-1479 (issued October 28, 2014); see also E.D., Docket No. 13-2024 (issued April 24, 

2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 

19 See supra note 10 at Chapter 2.808.6(f) (February 2013). 

20 R.C., Docket No. 12-437 (issued October 23, 2012). 

21 20 C.F.R. § 10.321. 
7

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 rationale and based upon 

a proper factual background, must be given special weight.22

ANALYSIS 

The Board finds that this case is not in posture for decision due to an unresolved conflict 

in the medical opinion evidence. 

OWCP accepted appellant’s claim for closed fracture of lumbar vertebra at L2 and 

bilateral ankle sprain. Dr. Martens, in conducting a permanent impairment evaluation for 

appellant, determined that appellant had 29 percent permanent impairment of the left lower 

extremity based on 12 percent left ankle impairment and 19 percent impairment for peripheral 

nerve impairment pursuant to Table 16-12. The first OWCP medical adviser, Dr. Katz, found 

that Dr. Martens’ calculations of the peripheral nerve impairment were incorrect and that it was 

14 percent. While he noted that Dr. Martens’ calculations for bilateral ankle impairment were 

correct, he also noted that Dr. Martens’ use of Table 16-12 was not the accepted method of rating 

spinal nerve impairment for the purpose of determining a schedule award. OWCP has 

implemented guidelines that impairment to the upper or lower extremities caused by a spinal 

injury should be evaluated in accordance with the article Rating Spinal Nerve Extremity 

Impairment using the six edition in the July/August 2009 edition of the The Guides Newsletter

published by the A.M.A., Guides. OWCP has adopted The Guides Newsletter to rate spinal 

nerve impairments consistent with sixth edition methodology.23 Dr. Katz also noted some 

discrepancies in the findings on physical examination between Dr. Martens and Dr. Ward with 

regard to residual impairment. Therefore, at his suggestion, OWCP properly ordered a second 

opinion evaluation. 

The second opinion physician, Dr. Poindexter, determined that appellant had zero percent 

permanent impairment pursuant of the bilateral lower extremities due to the accepted lumbar 

injury pursuant to The Guides Newsletter. He also determined that pursuant to Table 16-2 of the 

A.M.A., Guides, appellant had no ratable impairment to either ankle. In reaching these 

conclusions, Dr. Poindexter found considerably less physical residuals than did the physician 

who conducted the permanent impairment rating on behalf of appellant, Dr. Martens. 

The case was next referred to a new OWCP medical adviser, Dr. Blum, who agreed with 

Dr. Poindexter that appellant had no ratable impairment to his lower extremities. Neither 

Dr. Poindexter nor Dr. Blum, in reaching their conclusions, discussed the findings of 

Dr. Martens, who found greater residuals and, accordingly, greater impairment of appellant’s 

lower extremities. 

The Board finds that this case must be remanded as there are significant discrepancies in 

physical findings between the reports of the examining physicians. Dr. Ward, appellant’s 

treating neurosurgeon, noted that appellant was doing fairly well. He noted that although 

 22 F.C., Docket No. 14-0560 (issued November 12, 2015). 

23 See A.W., Docket No. 14-0199 (issued September 16, 2015).
8

appellant did have some paresthesias in his left leg and foot, his strength was back to normal. 

Dr. Ward noted some balance issues and a burning numbness from the left knee down to the left 

foot. However, he noted that appellant was able to heel and toe walk as well as tandem gait. 

Dr. Ward assessed appellant with a mildly limited lumbar range of motion. Dr. Martens, who 

conducted an examination of permanent impairment for appellant, found severe functional 

limitations, including significant fatigability of the lower extremity, leg paresthesias, and issues 

with activities of daily living. Dr. Poindexter, who conducted a second opinion examination on 

behalf of OWCP, noted that appellant’s gait was within normal limits, that there was no 

tenderness to palpitation to the lumbar spine, that appellant had normal range of motion, and that 

bilateral lower extremity sensory, motor, and reflexes were within normal limits. He also 

determined that appellant’s lower extremity sensation was normal. These discrepancies in 

appellant’s physical status must be resolved in order for OWCP to make a proper schedule 

award. 

Dr. Martens erred in that he did not properly apply the A.M.A., Guides with regard to 

peripheral nerve impairment, and OWCP properly noted this error. However, the impairment 

rating of Dr. Poindexter is based on findings on physical examination that conflict with the 

findings of Dr. Martens, who examined appellant at his request. Due to the discrepancy between 

the objective findings of appellant’s physician, Dr. Martens, and the second opinion physician, 

Dr. Poindexter, the Board finds a conflict in medical evidence on the extent of appellant’s 

impairment for schedule award purposes.24

For a conflict to arise, the opposing physician’s opinions must be of equal weight.25 The 

Board finds that the opinions of Drs. Marten and Poindexter are of equal weight regarding their 

physical examination findings. OWCP’s medical advisers did not examine appellant. While an 

OWCP medical adviser may create a conflict in medical opinion, he or she may generally not 

resolve it.26 

As the Board finds that a conflict exists in the medical evidence with regard to the degree 

of appellant’s permanent impairment of his lower extremities, the Board will remand the case for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence. 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 due to an unresolved conflict 

in the medical opinion evidence. 

 24 See S.W., Docket No. 15-1740 (issued January 28, 2016). 

25 Darlene R. Kennedy, 57 ECAB 414 (2006). 

26 See L.S., Docket No. 15-1564 (issued March 4, 2016). 
9

ORDER 

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

Compensation Programs dated February 2, 2016 is set aside, and the case is remanded for further 

consideration consistent with this opinion. 

Issued: February 16, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board