United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Indianapolis, IN, Employer 

__________________________________________ 

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Docket No. 16-1550 

Issued: May 5, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 27, 2016 appellant, through counsel, filed a timely appeal from an April 22, 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. 

ISSUE 

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

impairment to a scheduled member, 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 

Appellant, a 42-year-old mail handler, filed an occupational disease claim (Form CA-2) 

on June 2, 2006, alleging that she developed a sciatica/lumbar nerve condition causally related to 

factors of her federal employment. OWCP accepted the claim for lumbar strain and lumbar 

radiculopathy. 

The Board notes that the instant claim was administratively combined with two other 

claims: a May 3, 2009 injury assigned File No. xxxxxx785, which OWCP accepted for lumbar 

sprain, lumbosacral joint/ligament sprain and lumbosacral neuritis and/or radiculitis; and a 

June 20, 2007 injury assigned File No. xxxxxx421 which OWCP accepted for lumbar sprain. 

On May 1, 2012 appellant underwent a magnetic resonance imaging (MRI) scan, the 

results of which showed stenotic changes at the L4-5 level, with evidence of disc protrusion at 

that level; L5-S1 moderate central and left posterolateral disc osteophyte bulge with moderate 

mass effect on the left lateral recess and the S1 nerve root; L3-4 left lateral recess stenosis, 

possibly affecting the L4 nerve root; and moderate left neural foraminal stenosis; possibly 

affecting the L3 nerve. 

On July 25, 2012 appellant filed a claim for a schedule award (Form CA-7) based on a 

partial loss of use of her right and left lower extremities. 

By decision dated January 25, 2013, OWCP denied appellant’s claim for a schedule 

award finding that she had not established permanent impairment causally related to her accepted 

lumbar conditions. 

By letter dated January 31, 2013, appellant, through counsel, requested an oral hearing 

before OWCP’s Branch of Hearings and Review, which was held on May 16, 2013. 

In a June 14, 2013 report, Dr. Martin Fritzhand, a Board-certified urologist, advised that 

appellant had well documented L4 and S1 radiculopathies. He noted on examination that she 

walked with a limp gait and had some difficulty forward bending. Dr. Fritzhand further noted 

that she had nerve root damage shown by a diminished right Achilles tendon reflex, atrophy 

involving the right leg, and reduced muscle strength in both lower extremities. He advised that 

he utilized Table 16-11, page 535 of the American Medical Association, Guides to the 

Evaluation of Impairment (6th ed. 2009) (A.M.A., Guides), to find an impairment of severity 

level 1, for a mild motor deficit for each lower extremity. Dr. Fritzhand also relied on Proposed 

Table 2 of the July/August 2009 The Guides Newsletter, finding that appellant had documented 

involvement of both the L4 and S1 nerve roots, class 1 impairments. He found that appellant had 

a grade modifier for Functional History (GMFH) of 1 according to Table 16-6,3 and a grade 2 

modifier for Clinical Studies (GMCS) at Table 16-8.4 Applying the net adjustment formula of 

(GMFH-CDX) + (GMCS-CDX), or (2-1) + (1-1) resulted in a net modifier of +1, raising the 

 3

 Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is titled “Functional History 

Adjustment: Lower Extremities.” 

4

 Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is titled “Clinical Studies Adjustment: Lower 

Extremities.” 
3

default CDX from C to D, equaling seven percent permanent impairment of the left and right 

upper extremities, secondary to the L4 impairment rating, in addition to four percent permanent 

impairment of each lower extremity, secondary to the S1 impairment for each lower extremity. 

Dr. Fritzhand concluded, based on the Combined Values Chart that appellant had 11 percent 

lower extremity permanent impairment. 

By decision dated August 1, 2013, OWCP’s hearing representative set aside the 

January 25, 2013 decision, finding that Dr. Fritzhand’s June 14, 2013 report constituted 

sufficient evidence to warrant further development of the medical evidence. She remanded to 

the district office for referral of appellant’s medical records, to an OWCP medical adviser to 

determine whether appellant had any impairment from her accepted lumbar conditions. 

In a report dated August 24, 2013, Dr. Morley Slutsky, Board-certified in occupational 

medicine and an OWCP medical adviser, found that the medical evidence appellant submitted 

did not provide a basis for a ratable impairment under FECA. He reviewed appellant’s lumbar 

MRI scans of May 17, 2011 and April 30, 2010 and noted that the report of her recent 

electromyelogram (EMG) testing, which was reported to be positive for chronic bilateral 

radiculopathy, was unavailable for review. Dr. Slutsky advised that the majority of physicians of 

record either found no motor deficits in appellant’s lower extremities or reported motor strength 

deficits that were nonspecific or limited by pain. OWCP’s medical adviser further opined that 

the majority of physicians of record found that she had no specific lower extremity sensory loss 

and normal lower extremity reflexes. 

With regard to Dr. Fritzhand’s finding of motor loss in appellant’s bilateral L4 and S1 

distributions, Dr. Slutsky advised that such a finding was inconsistent with her diagnostic test 

results and the examination findings of the other physicians of record. He concluded that, based 

on the medical evidence of record, and on appellant’s normal lower extremity strength and 

sensation, there was no basis for a rating of lower extremity impairment under the 

July/August 2009 The Guides Newsletter. 

By decision dated October 3, 2013, OWCP denied appellant’s claim for a schedule 

award, finding that she had not established permanent impairment causally related to her 

accepted lumbar radiculopathy condition. 

By letter dated October 7, 2013, appellant, through counsel, requested an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review, which was held on 

March 12, 2014. 

A May 22, 2013 report indicated that appellant underwent EMG and nerve conduction 

velocity (NCV) testing. The tests showed findings that were consistent with chronic bilateral L5 

and S1 radiculopathy; reinnervation changes were more severe on the left L5 muscles; and no 

nerve entrapment was demonstrated. 

By decision dated April 30, 2014, OWCP’s hearing representative set aside the 

October 3, 2013 decision, finding that Dr. Slutsky’s August 24, 2013 report did not merit the 

weight of the medical evidence of record, as he did not consider the findings set forth in 

appellant’s May 1, 2012 lumbar MRI scan or her May 22, 2013 EMG/NCV test. He remanded 
4

to the district office for referral of appellant’s medical records, including Dr. Fritzhand’s 

June 14, 2013 report, to an OWCP medical adviser to consider these diagnostic tests and 

determine whether she had any impairment from her accepted lumbar conditions, and whether 

the medical evidence of record was sufficient to demonstrate appellant’s entitlement to a 

schedule award. 

In a May 23, 2014 report, Dr. Slutsky noted that he reviewed the May 1, 2012 lumbar 

MRI scan and the bilateral lower extremity EMG/NCV testing and concluded that these 

diagnostic tests did not provide any basis for finding ratable impairment under the 

July/August 2009 The Guides Newsletter. He advised that, although the changes shown by the 

diagnostic MRI scans and the May 22, 2013 EMG/NCV test showed lumbar nerve root 

involvement, these findings did not translate into physical deficits (sensory/motor/reflex) in the 

lower extremities. OWCP’s medical adviser reiterated that the majority of the physicians of 

record, including Dr. Fritzhand, found no sensory loss in either lower extremity related to the 

lumbar spine nerve roots and no lower extremity motor deficits or reflex abnormalities related to 

the lumbar spine nerve roots. Accordingly, based on these clinical findings, which, he opined, 

were the key factors used to rate lower extremity deficits related to spinal nerve roots under the 

July/August 2009 The Guides Newsletter, Dr. Slutsky found no basis for a lower extremity 

impairment rating. 

By decision dated June 5, 2014, OWCP denied appellant’s claim for a schedule award, 

finding that she had not established permanent impairment causally related to her accepted 

lumbar radiculopathy condition. 

By letter dated June 11, 2014, appellant, through counsel, requested an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review. 

By decision dated December 15, 2014, an OWCP hearing representative set aside 

OWCP’s June 5, 2014 decision. He noted that, while Dr. Slutsky found no basis for lower 

extremity impairment because Dr. Fritzhand’s examination findings were inconsistent with those 

made by prior physicians of record, he did not examine her and made no findings based on his 

own examination. The hearing representative, therefore, found that Dr. Slutsky’s opinion 

regarding permanent impairment was insufficient to represent the weight of medical opinion. He 

remanded the case and instructed the district office to refer appellant to a second opinion 

physician for an impairment evaluation, to determine whether she had permanent impairment 

causally related to her accepted lumbar conditions in accordance with the July/August 2009 The 

Guides Newsletter. 

In order to determine whether appellant had sustained any ratable permanent impairment 

from his accepted conditions, OWCP referred appellant to Dr. Norman Mindrebo, Boardcertified in orthopedic surgery, for a second opinion examination and impairment evaluation. In 

a February 19, 2015 report, Dr. Mindrebo found that appellant had no ratable permanent 

impairment causally related to her accepted lumbar radiculopathy condition. He advised on 

examination that there was no palpable paravertebral muscle spasm of the lumbar spine and no 

buttock spasm. Dr. Mindrebo noted that the straight leg raise examination was negative in both 

legs and that there were no motor deficits to strength testing of the hips, knees, or ankles 

including her feet and great toes. He advised that appellant had preexisting cervical and lumbar 
5

spondylosis with severe facet joint arthropathy and associated degenerative disc disease, and 

opined that there was no specific injury date to explain the disc bulge on the left side at L5-S1, a 

finding which was often associated with degenerative disc changes and lumbar spondylosis as a 

natural progression of her disease. Dr. Mindrebo concluded that her work-related injuries were 

temporary exacerbations of her underlying degenerative disc disease, which had obviously 

progressed, based on the MRI scan studies which were basically serial in nature from 2007 until 

2012. 

Dr. Mindrebo concurred with Dr. Slutsky’s opinion that because appellant had no motor 

deficits, deep tendon reflex deficits, and no sensory deficits to the lower extremities, she did 

meet the criteria for a permanent impairment secondary to her underlying degenerative lumbar 

spondylosis. He advised that, as she had severe lumbar spondylosis at multiple levels which 

appeared degenerative in nature, she had a preexisting, worsening condition which was 

temporarily exacerbated, but had long since resolved. As a result Dr. Mindrebo opined that 

while her underlying disease process had progressed, her objective, diagnostic findings were not 

related to her employment. 

In a May 21, 2015 report, Dr. Daniel D. Zimmerman, a specialist in internal medicine and 

an OWCP medical adviser, concurred with Dr. Mindrebo’s findings and conclusions and found 

that appellant had no ratable permanent impairment of either lower extremity due to a lumbar 

spine condition, pursuant to the July/August 2009 The Guides Newsletter. 

By decision dated June 19, 2015, OWCP denied appellant’s claim for a schedule award, 

finding that she had not established any permanent impairment causally related to her accepted 

lumbar radiculopathy condition. 

By letter dated June 30, 2015, counsel requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated April 22, 2016, an OWCP hearing representative affirmed the June 19, 

2015 decision. 

LEGAL PRECEDENT 

The schedule award provisions of FECA5

 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members of the body. It, however, does 

not specify the manner in which the percentage 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 a standard for evaluation of schedule losses and the Board has 

 5

 5 U.S.C. § 8107 
6

concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides.

7

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).8

 Under the sixth edition, the evaluator identifies the impairment for the Class 

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

History, Physical Examination (GMPE), and Clinical Studies.9

 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). 

Neither FECA nor its regulations provide for a schedule award for impairment to the 

back or to the body as a whole.10 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.11 The sixth edition of the A.M.A., Guides does not provide a 

separate mechanism for rating spinal nerve injuries as impairments of the extremities. 

Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The 

Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth 

edition methodology. For peripheral nerve impairments to the upper or lower extremities 

resulting from spinal injuries, OWCP procedures indicate that July/August 2009 The Guides 

Newsletter is to be applied.12

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

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

impairment using the A.M.A., Guides.

13

ANALYSIS 

OWCP accepted that appellant sustained the conditions of lumbar strain and lumbar 

radiculopathy. On July 25, 2012 appellant claimed a schedule award for impairment of the 

extremities originating in the spine. She provided a June 14, 2013 report from Dr. Fritzhand, 

who rated 11 percent bilateral lower extremity permanent impairment under the A.M.A., Guides

 6 Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

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

Chapter 2.808.5(a) (February 2013); see also, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

8

 A.M.A., Guides at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement” (6th ed. 2009). 

9 Id. at 494-531 (6th ed. 2009). 

10 See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004). 

11 See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997). 

12 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The 

Guides Newsletter is included as Exhibit 4. 

13 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013). 
7

and the July/August 2009 The Guides Newsletter, finding that she had mild motor deficit for 

each lower extremity based on documented involvement of both the L4 and S1 nerve roots. 

OWCP obtained a second opinion from Dr. Mindrebo, who found in his February 19, 2015 

report that appellant had no ratable permanent impairment causally related to her accepted 

lumbar radiculopathy condition. Dr. Mindrebo based this opinion on the fact that she had no 

motor deficits, deep tendon reflex deficits, and no sensory deficits to the lower extremities. He 

opined that she had severe, degenerative lumbar spondylosis at multiple levels, but that this was 

a preexisting, worsening condition which was temporarily exacerbated, and which had long since 

resolved. Dr. Mindrebo therefore opined that, while her underlying disease process had 

progressed, the objective, diagnostic findings shown by MRI scan and EMG/NCV test were 

unrelated to her employment. An OWCP medical adviser concurred with Dr. Mindrebo’s rating 

and methodology. 

The Board finds that OWCP properly accorded Dr. Mindrebo’s impairment rating the 

weight of the medical evidence. Dr. Mindrebo’s opinion was based on a statement of accepted 

facts and the complete medical record. He provided a detailed impairment rating, utilizing the 

appropriate portions of the A.M.A., Guides and The Guides Newsletter. Dr. Mindrebo described 

how objective clinical and electrodiagnostic findings did not provide the basis for a ratable 

impairment attributable to appellant’s lumbar radiculopathy condition. OWCP properly found 

that appellant had no ratable permanent impairment attributable to his accepted lumbar 

radiculopathy condition and therefore was not entitled to a schedule award under the A.M.A., 

Guides. Therefore, OWCP’s April 22, 2016 decision was proper under the law and facts of this 

case. 

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. 

CONCLUSION 

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

impairment to a scheduled member of her body causally related to her accepted lumbar 

radiculopathy condition, thereby entitling her to a schedule award under 5 U.S.C. § 8107. 
8

ORDER 

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

Compensation Programs dated April 22, 2016 is affirmed. 

Issued: May 5, 2017 

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