United States Department of Labor

Employees’ Compensation Appeals Board

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D.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Francisco, CA, Employer

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Docket No. 18-0024

Issued: May 7, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 2, 2017 appellant filed a timely appeal from a July 7, 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 claim.

ISSUE

The issue is whether appellant has more than 25 percent permanent impairment of his right 

lower extremity, for which he previously received a schedule award. 

FACTUAL HISTORY

On March 21, 2014 appellant, then a 58-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he injured his right knee and lower back when 

he misstepped while climbing out of the tractor. He stopped work following the injury. OWCP 

 

1 5 U.S.C. § 8101 et seq.
2

accepted the claim for lumbosacral strain with radiculopathy, right knee strain, right knee internal 

derangement and renal vein thrombosis. Appellant underwent an OWCP authorized total knee 

replacement on November 17, 2014, which Dr. William R. Campbell, an osteopath and Boardcertified orthopedic surgeon, performed. OWCP paid appellant intermittent wage-loss 

compensation on the supplemental rolls as of May 6, 2014 and on the periodic rolls as of 

July 27, 2014. Appellant returned to work on March 31, 2015.

On May 15, 2015 appellant filed a claim for a schedule award (Form CA-7).

In a May 14, 2015 report, Dr. Campbell noted appellant’s history of injury and set forth 

examination findings of appellant’s right knee. He opined that maximum medical improvement

(MMI) had been reached on May 14, 2015. Dr. Campbell calculated 21 percent whole person 

impairment under the fifth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).2 There was no documentation of appellant’s residual 

symptoms resulting from his lumbar spine injury. 

On July 9, 2015 OWCP referred Dr. Campbell’s May 14, 2015 report and the medical 

record to its medical adviser to determine if appellant sustained a permanent impairment and was 

entitled to a schedule award. In a July 18, 2015 report, Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon and OWCP medical adviser, opined that appellant reached MMI on 

May 14, 2015. He utilized Dr. Campbell’s May 14, 2015 examination findings and opined that,

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

3

appellant had 25 percent right lower extremity 

permanent impairment for knee replacement arthroplasty with good result. The medical adviser 

recommended that appellant be seen for reevaluation by Dr. Campbell to document his residual 

symptoms, if any, in regards to the lumbar spine.

By decision dated September 23, 2015, OWCP issued a schedule award for 25 percent 

permanent impairment of his right lower extremity. The period of the award ran for 72 weeks. 

On December 11, 2015 and January 26, 2016 appellant submitted claims for an additional 

schedule award (Form CA-7). In an October 22, 2015 report, Dr. Campbell opined that appellant 

reached MMI with regard to his lumbar condition. He opined, under the fifth edition of the 

A.M.A., Guides, that appellant had 10 percent permanent impairment of the whole person. 

By letter dated February 2, 2016, OWCP requested that Dr. Campbell submit a medical 

report regarding appellant’s work-related condition in accordance with the sixth edition of the 

A.M.A., Guides. Dr. Campbell was further advised that if appellant’s work-related injuries 

impaired his upper or lower extremities caused by an injury to the spinal nerve then he should 

render an impairment rating of the affected extremity using the article entitled “Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition” which was published in the 

July/August 2009 The Guides Newsletter. 

 

2 A.M.A. Guides (5th ed. 2001).

3 A.M.A., Guides (6th ed. 2009).
3

In a March 7, 2016 report, Dr. Campbell opined that appellant was at MMI as of 

March 7, 2016. Appellant’s lumbar spine examination, including the neurological examination of 

the lower extremities, was essentially normal. Dr. Campbell noted, in relevant part, “[t]he 

appropriate reference for the impairment rating should be the [sixth edition,] [A.M.A.,] Guides, 

impairment for radiculopathy in the diagnosis-based impairment (DBI) for the spinal region. 

Based on Chapter 17, using Table 17-1, the impairment rating for class 2, moderate, 12 percent 

whole person impairment for the lumbar spine, net adjustment zero.”

In an April 8, 2016 letter, OWCP again requested that Dr. Campbell submit a report in 

accordance with the sixth edition of the A.M.A., Guides and the July/August 2009 The Guides 

Newsletter to determine any impairment due to appellant’s lumbar radiculopathy. It afforded

Dr. Campbell 30 days to provide a new impairment rating. OWCP did not receive a response. 

By decision dated May 27, 2016, OWCP denied appellant’s claim for an additional 

schedule award. It determined that he did not provide sufficient medical evidence to establish an 

additional permanent impairment related to his lumbar spine condition. 

On June 17, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. A hearing was held on October 19, 2016. By decision dated December 7, 2016, 

OWCP’s hearing representative vacated the May 27, 2016 decision and remanded the case to 

OWCP for further development. The hearing representative noted that Dr. Campbell’s March 7, 

2016 report should have been reviewed by an OWCP medical adviser to determine whether a 

second opinion referral was necessary to determine appellant’s entitlement to an additional 

schedule award.

On January 9, 2017 OWCP forwarded the medical evidence to its medical adviser. In a 

January 15, 2017 report, Dr. Morley Slutsky, a Board-certified occupational medicine physician 

serving as an OWCP medical adviser, noted that Dr. Campbell had incorrectly based impairment 

on the spine and had offered an unacceptable rating for the whole person impairment. He opined 

that appellant reached MMI on June 18, 2015, the date of Dr. Campbell’s first impairment 

examination.4 Dr. Slutsky explained that appellant’s accepted conditions had stabilized and that 

no further treatment was planned. Using Dr. Campbell’s June 18, 2015 examination findings, the 

medical adviser opined that appellant’s final right lower extremity permanent impairment was 21 

percent. He advised that lumbar sprains did not result in permanent lower extremity sensory or 

motor deficits. With regard to appellant’s preexisting lumbar condition, the medical adviser 

reviewed the diagnostic evidence of record.5 He also noted that Dr. Campbell had found that 

appellant had normal lower extremity sensation and motor function on his March 7, 2016 

examination. Based on that examination, the medical adviser found that there was no basis for 

lower extremity impairment in either lower extremity due to the lumbar sprain or radiculopathy 

diagnoses under The Guides Newsletter (July/August 2009). He noted that while Dr. Campbell 

 

4 Dr. Campbell’s first impairment rating report was dated May 14, 2015.

5 Dr. Slutsky indicated that the May 7, 2014 magnetic resonance imaging (MRI) scan noted mild, multilevel 

degenerative changes, but no evidence of spinal nerve root involvement. The July 1, 2014 lower extremity 

electromyogram/nerve conduction velocity (EMG/NCV) study demonstrated chronic, mild bilateral L5 

radiculopathies.
4

had rated appellant under Chapter 17 of the A.M.A., Guides, Chapter 17 was not used by the 

Department of Labor and thus the 12 percent whole person permanent impairment assigned was 

not applicable. The medical adviser also provided impairment calculations under both DBI and 

range of motion (ROM) based impairment calculations for appellant’s right knee. He opined that 

the final right lower extremity permanent impairment rating was 21 percent.

By decision dated February 2, 2017, OWCP denied appellant’s claim for additional 

schedule award. It found that, based on its medical adviser’s review of the medical record, the 

medical evidence did not demonstrate permanent impairment of the right lower extremity greater 

than the 25 percent permanent impairment, for which appellant had previously received a schedule 

award. 

On February 13, 2017 appellant requested that an OWCP hearing representative review the 

written record. He contended that OWCP’s medical adviser was biased and that OWCP should 

appoint a neutral physician. Appellant also noted that his physician kept using the prior edition of 

the A.M.A., Guides. No additional evidence was submitted.

By decision dated July 7, 2017, an OWCP hearing representative affirmed OWCP’s 

February 2, 2017 decision. The hearing representative noted the medical evidence of record did 

not support an award for either lower extremity as a result of nerve root involvement as there was 

no motor or sensory deficit secondary to the employment injury. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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.8 The A.M.A., Guides has been adopted by the 

implementing regulations as the appropriate standard for evaluating schedule losses.9

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

in FECA or in the implementing regulations.10 Neither FECA nor its implementing federal 

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

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

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).

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

10 Thomas J. Engelhart, 50 ECAB 319 (1999).
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spine or the body as a whole; a claimant is not entitled to such a schedule award.11 The Board 

notes that section 8101(19) specifically excludes the back from the definition of organ.12 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.13

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.

14

 It was designed for 

situations 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.15 The 

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

standard applicable to each claimant for a schedule award for extremity impairment originating in 

the spine.16

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 nature and percentage 

of impairment in accordance with the A.M.A., Guides with an OWCP medical adviser providing 

rationale for the percentage of impairment specified.17

ANALYSIS

The Board finds that appellant has not established more than 25 percent permanent 

impairment of his right lower extremity, for which he previously received a schedule award. 

OWCP accepted the conditions of lumbosacral strain with radiculopathy, right knee strain, 

right knee internal derangement and renal vein thrombosis. It also authorized appellant’s 

November 17, 2014 right knee replacement. On September 23, 2015 appellant received a schedule 

award for 25 percent permanent impairment of the right lower extremity based on right leg 

pathology. 

 

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

12 5 U.S.C. § 8101(19).

13 W.D., Docket No. 10-0274 (issued September 3, 2016).

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

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

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

(January 2010). 

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

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

Chapter 2.808.6(d) (August 2002).
6

On December 11, 2015 appellant sought an additional schedule award based on spinal 

impairment. 

In his March 7, 2016 report, Dr. Campbell opined that appellant was at MMI. He noted 

tenderness to palpation and spasm and found appellant’s lumbar spine examination, including the 

neurological examination of the lower extremities, was essentially normal. Dr. Campbell provided 

10 percent whole person impairment rating under Chapter 17 of the A.M.A., Guides. FECA, 

however, specifically excludes the back or spine as an organ and, therefore, it does not come under 

the provisions for payment of a schedule award.18 FECA further does not provide for an 

impairment of the whole person.19 Dr. Campbell’s rating is of diminished probative value as it 

does not conform to the protocols for rating permanent impairment under FECA.

Pursuant to the December 7, 2016 remand of the case by OWCP’s hearing representative, 

OWCP’s medical adviser reviewed Dr. Campbell’s report along with the medical evidence of 

record on January 15, 2017. He indicated that the diagnostic testing and the medical reports failed 

to document any lower extremity symptoms or basis for an impairment to either lower extremity. 

Specifically, there was no evidence that a motor or sensory deficit existed secondary to the 

employment injury. Thus, the medical adviser determined that appellant had no permanent 

impairment secondary to his accepted lumbar spine condition. 

The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides to rate 

appellant’s lower extremity impairment and that his report constitutes the weight of the medical 

opinion evidence. As noted, an appellant may receive a schedule award for permanent impairment 

to the upper or lower extremities even though the cause of the impairment originated in the spine.20 

In this case, however, the medical adviser explained that appellant’s medical records failed to 

document any sensory or motor deficient of either lower extremity. As appellant has no evidence 

of lumbar radiculopathy affecting the lower extremities he was not entitled to a schedule award 

based on impairment to his lower extremities which originated in the spine.21 

On appeal appellant indicates that he disagrees with OWCP’s decision. However, for the 

reasons set forth above, there is no evidence which establishes greater than the 25 percent 

permanent impairment of his right lower extremity, for which he previously received a schedule 

award. 

Appellant may, at any time, request an increased schedule award based on evidence of a 

new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment at any time.

 

18 Francesco C. Veneziani, 48 ECAB 572 (1997). A schedule award is payable for a permanent impairment of the 

extremities that is due to a work-related back condition; see Denise D. Cason, 48 ECAB 530 (1997); J.S., Docket No. 

13-2129 (issued June 6, 2014).

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

20 J.S., supra note 17.

21 Supra note 14. 
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CONCLUSION

The Board finds that appellant has not established more than 25 percent permanent 

impairment of the right lower extremity, for which he previously received a schedule award. 

ORDER

IT IS HEREBY ORDERED THAT the July 7, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 7, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board