United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Huntersville, NC, Employer 

__________________________________________ 

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Docket No. 16-1482 

Issued: January 25, 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 11, 2016 appellant, through counsel, filed a timely appeal from a May 4, 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 over the merits of the case. 

ISSUE 

The issue is whether appellant has established more than one percent permanent 

impairment of her left lower extremity for which she has previously received 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 

On September 20, 2011 appellant, then a 58-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 31, 2011 she was exiting her truck while carrying a 

heavy tray of mail when she fell forward and felt a sharp pain in her back. OWCP accepted 

appellant’s claim for herniated intervertebral disc at L5-S1. It authorized a surgical 

microdiscectomy which occurred on February 2, 2012. Appellant returned to full duty on 

May 15, 2012. 

In a June 10, 2013 letter, Dr. Mark B. Hartman, appellant’s Board-certified orthopedic 

surgeon, concluded that, based on recent guidelines, he opined that appellant had 12 percent 

permanent impairment of her left lower extremity. On December 22, 2014 he indicated that 

appellant had reached maximum medical improvement. 

On April 9, 2015 appellant filed a claim for a schedule award (Form CA-7). 

On May 6, 2014 Dr. Joseph Nathan Chipman, a Board-certified neurologist, interpreted 

an electromyogram/nerve conduction velocity (EMG/NCV) study as abnormal, noting that it 

evinced chronic lumbar radiculopathy, paresthesia, and postlaminectomy syndrome of the 

lumbosacral region. By letter dated April 28, 2015, OWCP asked that Dr. Chipman provide an 

impairment rating. In a response dated April 28, 2015, Dr. Chipman declined as he noted that 

appellant saw him only once for an EMG/NCV study. 

By letter dated August 3, 2015, OWCP asked its medical adviser to evaluate appellant’s 

permanent impairment under the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009) (A.M.A., Guides). On August 4, 2015 an OWCP medical 

adviser responded that appellant was status post L5-S1 microdiscectomy on February 2, 2012. 

He noted that she had done well with some residual numbness in the S1 nerve distribution of her 

left leg. Applying Table 2 as set forth in the July/August 2009 The Guides Newsletter, he 

determined that appellant had a grade C, class 1 impairment for mild sensory deficit of S1, which 

would equal one percent permanent impairment of the left lower extremity. The medical adviser 

noted that Dr. Hartman did not document the support for his conclusion that appellant had 12 

percent permanent impairment. 

In an August 1, 2015 letter, received by OWCP on August 10, 2015, Keith L. 

Blankenship, a physical therapist, opined that pursuant to Table 2 of The Guides Newsletter, 

July/August 2009, appellant had one percent left lower extremity sensory impairment and four 

percent left lower extremity motor impairment for a combined permanent impairment of the left 

lower extremity of five percent.3

 

By decision dated August 11, 2015, OWCP issued a schedule award for one percent 

permanent impairment of the left lower extremity. 

 3

 Although Mr. Blankenship indicated that appellant had four percent right lower extremity motor impairment, 

this appears to be a clerical error. The Board finds, after reading his entire report, that Mr. Blankenship intended to 

state that appellant had four percent left lower extremity motor impairment. 
3

On August 17, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. At the hearing held on March 17, 2016, counsel contended that 

OWCP’s August 11, 2015 decision did not mention Mr. Blankenship’s report, that Dr. Hartman 

found 12 percent lower extremity impairment, and that appellant had considerable impairment 

that was not accurately rated. Appellant testified as to her ongoing issues and noted that her left 

leg was numb. 

By decision dated May 4, 2016, the hearing representative affirmed the August 11, 2015 

schedule award decision, noting that the opinion of OWCP’s medical adviser constituted the 

weight of the medical evidence, that there was “no evidence that a qualified physician reviewed 

Mr. Blankenship’s findings or agreed with his assessment,” and that Mr. Blankenship’s findings 

were not sufficient to warrant further development. 

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.4

 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 for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.5 The A.M.A., Guides, has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6

 Effective May 1, 2009, schedule awards 

are determined in accordance with the sixth edition of the A.M.A., Guides.

7

 

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 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 schedule 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.9

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

spinal nerve injuries as impairment of the extremities. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter, July/August 2009, offers 

 4

 5 U.S.C. § 8107. 

5 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

6

 20 C.F.R. § 10.404. 

7

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010). 

8 Pamela J. Darling, 49 ECAB 286 (1998). 

9 Thomas J. Englehart, 50 ECAB 319 (1999). 
4

an approach to rating spinal nerve impairments consistent with sixth edition methodology.10 

OWCP has adopted this approach for rating impairment to the upper or lower extremities caused 

by a spinal injury.11

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

should be routed to OWCP’s medical consultant for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical 

consultant providing rationale for the percentage of impairment specified.12

ANALYSIS 

OWCP accepted appellant’s claim for herniated intervertebral disc at L5-S1. Appellant 

underwent a surgical microdiscectomy on February 2, 2012, and returned to full duty on 

May 15, 2012. Subsequently, on April 9, 2015, appellant filed a claim for a schedule award. 

The Board finds that appellant has not submitted a well-rationalized opinion by a 

physician establishing that she has more than one percent permanent impairment of her left lower 

extremity. Dr. Chipman declined to provide an impairment rating. Dr. Hartman submitted a 

very brief letter indicating that appellant had 12 percent permanent impairment of her left lower 

extremity. However, Dr. Hartman did not indicate that he applied the A.M.A., Guides, nor did 

he provide an explanation as to how he arrived at the 12 percent impairment rating. As 

Dr. Hartman did not reference any tables or pages from the A.M.A., Guides or indicate that he 

actually applied the A.M.A., Guides, in making his impairment determination, his opinion is 

insufficient to establish permanent impairment.13 

OWCP properly referred appellant’s claim to its medical adviser for a determination as to 

appellant’s permanent impairment. OWCP’s medical adviser noted that appellant was status 

post L5-S1 microdiscectomy, and that she had done well with some residual numbness in the S1 

nerve distribution of her leg. He applied Table 2 as set forth in the July/August 2009 The Guides 

Newsletter, and determined that appellant had a grade C, class 1 impairment for mild sensory 

deficit of S1, which would equal one percent permanent impairment of the left lower extremity. 

The only medical evidence that properly applied the A.M.A., Guides is that of OWCP’s medical 

adviser and OWCP based its schedule award decision on that report.14 There is no rationalized 

medical evidence of record establishing greater permanent impairment. 

 10 L.J., Docket No. 10-1263 (issued March 3, 2011). 

11 Supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010). 

12 See supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) 

(February 2013). 

13 See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the 

Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of 

permanent impairment. 

14 See M.C., Docket No. 15-1757 (issued March 17, 2016) (the only medical evidence that demonstrated a proper 

application of the A.M.A., Guides was that of OWCP’s medical adviser, who found that appellant had 11 percent 

permanent right upper extremity impairment). 
5

Counsel contends on appeal that Mr. Blankenship’s opinion should have been considered 

by OWCP’s medical adviser when reaching his determination. Mr. Blankenship is a physical 

therapist. A physical therapist is not considered a physician as defined under FECA, and 

accordingly, his opinion does not constitute relevant and pertinent medical evidence for purposes 

of a schedule award.15 Moreover, there is no evidence that a physician reviewed and certified his 

report. Therefore, it was unnecessary for the medical adviser to review Mr. Blankenship’s 

report. 

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 increase impairment. 

CONCLUSION 

The Board finds that appellant has not established more than one percent permanent 

impairment of her left lower extremity, for which she has received a schedule award. 

ORDER 

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

Compensation Programs dated May 4, 2016 is affirmed. 

Issued: January 25, 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 

 15 See L.J., Docket No. 16-1231 (issued November 4, 2016); C.B., Docket No. 13-1734 (issued 

November 4, 2013).