United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 17-0088 

Issued: May 11, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 20, 2016 appellant, through counsel, filed a timely appeal from an August 26, 

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 has established a permanent impairment of the lower 

extremity for schedule award purposes. 

 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 January 23, 2008 appellant, then a 44-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that, on January 22, 2008, her vehicle was struck from behind by a 

school bus while it was parked at a curb. She alleged that she sustained injuries to her left 

buttock and left leg. Appellant stopped work after the injury and returned to restricted duties on 

or about April 1, 2008. On February 12, 2008 OWCP accepted her claim for lumbar sprain and 

sciatica. It paid appellant intermittent wage-loss benefits from March 8 to September 9, 2008. 

By letter dated March 11, 2009, the employing establishment informed OWCP that 

appellant was in receipt of Office of Personal Management disability retirement benefits 

effective March 6, 2009. It noted that limited-duty work would have remained available to her, 

if she had not voluntarily retired. 

Appellant filed a claim for a schedule award (Form CA-7) on August 13, 2010. 

In a report dated April 8, 2011, Dr. Jerold P. Gurley, Board-certified in orthopedic 

surgery, related that appellant presented with complaints of chronic lumbosacral back pain, 

bilateral lower extremity pain with weakness and peristhesias, as well as chronic neck and left 

arm pain, with peristhesias, and weakness following a work-related injury of January 22, 2008. 

He noted that lower extremity neurological examination demonstrated grade 5 motor strength 

throughout, no muscular atrophy, and sensory examination intact to light touch and pinwheel. 

Dr. Gurley related an impression of chronic lumbago, chronic cervicalgia, chronic cervical and 

lumbar radiculopathy, lumbar spondylosis at L5-S1, and noncompressive lumbar disc herniation 

at L5-S1. He noted that the diagnostic studies did not correlate with appellant’s symptoms. 

Dr. Gurley related that he lacked an explanation for her radicular leg symptoms and therefore 

recommended additional diagnostic studies. 

By letter dated March 27, 2012, appellant was referred to Dr. Mahal A. Ghanma, a 

Board-certified orthopedic surgeon, for a second opinion to determine to the status of her 

accepted medical conditions. 

On July 26, 2012 counsel wrote to OWCP requesting the status of her schedule award 

claim. 

In a report dated August 2, 2012 appellant’s treating physician, Dr. Ronald Celeste, a 

specialist in internal medicine, related that appellant had herniated discs of the spine, which were 

the product of the accepted injury in this claim. 

In a report dated August 6, 2012, Dr. Ghanma related that appellant had no objective 

findings to support that she still had a low back, cervical, left shoulder, or thoracic strain. 

Appellant also had no objective evidence of sciatica. Dr. Ghanma explained that she no longer 

had residuals of the work-related injuries and that her claim should not be expanded to include 

the current condition of degenerative disc disease as this condition was age related and 

degenerative in nature. 
3

By letter dated August 29, 2012, OWCP advised counsel that since appellant’s treating 

physician requested that appellant’s claim be expanded to include herniated disc, she did not 

appear to be at maximum medical improvement, and a second opinion evaluation was necessary. 

In an August 28, 2015 report, Dr. Catherine Watkins Campbell, a Board-certified family 

practitioner, conducted an examination for the purpose of providing an impairment rating for 

counsel. She noted that there was diffuse tenderness of the left lumbar and gluteal tenderness, 

with sciatic notch tenderness on the left. Dr. Watkins Campbell noted a normal sensory 

examination in the lower extremities, with normal reflexes and normal lumbar lordosis 

maintained. She noted that there was grade 3/5 strength deficit with hip flexion and a grade 4/5 

deficit with knee extension. Dr. Watkins Campbell noted that the right thigh measured 44 

centimeters and that the left thigh measured 42.5 centimeters. She noted a positive 

Trendelenburg sign on the left. After applying the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009), Dr. Watkins Campbell 

found that appellant had six percent permanent left lower extremity impairment. She noted that 

appellant had a class 1 impairment based on mild sensory deficit of the left sciatic nerve, as 

indicated in Table 16-12 of the A.M.A., Guides.3 Dr. Watkins Campbell based this 

determination on a history of fluctuating symptoms and examination findings over time. She 

applied a grade modifier for functional history of 2 based on positive Trendelenburg sign. 

Dr. Watkins Campbell found that a grade modifier for physical examination was not applicable 

as the examination findings were used to determine diagnostic class. She also noted that no 

grade modifier for clinical studies was available. Dr. Watkins Campbell noted that the net 

adjustment was 1 (2-1 = 1) and determined that appellant had a final grade D impairment which 

yielded six percent permanent impairment for appellant left lower extremity. 

In a September 26, 2015 report, OWCP’s medical adviser reviewed the evidence, 

including the report of Dr. Watkins Campbell. He determined that there seemed to be consistent 

evidence of lack of objective sensory, motor or diagnostic evidence related to lower extremity 

deficits of the lumbar spinal nerve roots. The medical adviser noted that there was no diagnostic 

evidence of lumbar nerve root involvement. As such, he determined that there was no lower 

extremity impairment using The Guides Newsletter, Rating Spinal Nerve Impairment 

(July/August 2009). The medical adviser noted that appellant was found to have normal lower 

extremity sensory changes and 5/5 strength by other physicians of record. However, he noted 

that the grade 3/5 strength deficit and thigh atrophy found by Dr. Watkins Campbell (if related to 

the lumbar spine) would be a new finding, would be serious, and require follow up by a surgeon 

for additional diagnostic testing. The medical adviser indicated that, if there was further 

controversy, then a second opinion with an orthopedic surgeon would be appropriate. 

By decision dated October 9, 2015, OWCP found that appellant’s claim for a schedule 

award was denied as she had not met the requirements for establishing a schedule award. It 

determined that the weight of the medical evidence rested with the opinion of OWCP’s medical 

adviser, as appellant’s physician had not properly applied the A.M.A., Guides. 

 3

 A.M.A., Guides 535. 
4

On October 19, 2015 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. At a hearing held on June 14, 2016, counsel noted that OWCP’s 

medical adviser indicated that a second opinion was advisable. He further contended that 

referral to an impartial medical examiner was necessary as there was a conflict between the 

opinion of appellant’s treating physician and that of the medical adviser. 

By decision dated August 26, 2016, OWCP’s hearing representative affirmed the 

October 9, 2015 decision, finding that OWCP’s medical adviser properly applied the A.M.A., 

Guides and found that appellant had no permanent impairment entitling her to a schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 and its implementing regulations5 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.6

 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.7

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

back or to the body as a whole.8 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.9 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 

July/August 2009, 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 The Guides 

Newsletter is to be applied.10

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404.

6 Id. 

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

(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

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

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

10 Supra note 7. 
5

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.11

ANALYSIS 

OWCP accepted appellant’s claim for lumbar sprain and sciatica. Appellant’s physician, 

Dr. Watkins Campbell, found that appellant had six percent permanent impairment based on the 

A.M.A., Guides. In reaching this conclusion, she found some mild physical findings on 

examination, including grade 3/5 strength deficit with hip flexion, a grade 4/5 deficit with knee 

extension, and a positive Trendelenburg sign. Dr. Watkins Campbell found that, pursuant to 

Table 16-12 of the A.M.A., Guides, appellant had a class 1 mild sensory deficit of the left sciatic 

nerve, resulting in six percent permanent impairment of the left lower extremity. OWCP’s 

medical adviser found that Dr. Watkins Campbell’s 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.

12 

OWCP’s medical adviser, thereafter determined that appellant had no permanent 

impairment as there was no diagnostic evidence of lumbar nerve root involvement. However, he 

did note that Dr. Watkins Campbell found grade 3/5 changes and thigh atrophy, that this would 

be a new finding, and that it would be serious and require follow up by a surgeon for additional 

diagnostic testing. The medical adviser indicated that, if there was further controversy, a second 

opinion with an orthopedic surgeon would be appropriate. 

In addition to discrepancy in findings between Dr. Watkins Campbell and OWCP’s 

medical adviser, the Board notes that in its August 29, 2012 development letter OWCP had 

determined a second opinion examination was necessary since appellant’s treating physician had 

requested that the claim be expanded to include the condition of herniated discs. 

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

Accordingly, the Board remands this case so that a new physician can conduct an 

examination and make findings on physical examination with regard to the degree of permanent 

impairment of appellant’s left lower extremity. Following any necessary further development, 

OWCP shall issue a de novo decision. 

CONCLUSION 

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

 11 See supra note 7 at Chapter 2.808.6(f) (February 2013). 

12 See A.D., Docket No. 16-0841 (issued February 16, 2017). 
6

ORDER 

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

Compensation Programs dated August 26, 2016 is set aside and the case is remanded for further 

consideration consistent with the above opinion. 

Issued: May 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board