United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Palatine, IL, Employer 

__________________________________________ 

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Docket No. 16-1144 

Issued: March 1, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 10, 2016 appellant, through counsel, filed a timely appeal from a November 23, 

2015 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 this case. 

ISSUE 

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

impairment 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

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

FACTUAL HISTORY 

On December 5, 2006 appellant, a 38-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging an injury on December 2, 2006 as a result of falling on ice while 

delivering mail. OWCP accepted the claim for sprain of left shoulder and upper arm, sprain of 

left hip and thigh, lumbar sprain, lumbar disc herniation at L4-5, and spinal stenosis at L5-S1.3 

Appellant received wage-loss compensation and medical benefits and returned to full-time, 

limited-duty work on March 2, 2009. She returned to full-time, full-duty work on 

August 10, 2009. OWCP accepted that appellant sustained a recurrence of total disability on 

June 1, 2010 and May 1, 2013 and authorized spinal surgery, which she underwent on 

August 31, 2010.4 Appellant returned to a full-time, limited-duty position as a letter carrier, 

effective April 15, 2013, with the following restrictions: lifting and carrying no more than 20 

pounds. 

On December 11, 2012 appellant, through counsel, filed a claim for a schedule award 

(Form CA-7). She submitted an October 9, 2012 report from Dr. Neil Allen, a Board-certified 

neurologist, who opined that she had 15 percent whole person impairment based on Chapter 17 

of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter, A.M.A., Guides). 

In a December 13, 2012 report Dr. David L. Spencer, a Board-certified orthopedic 

surgeon, noted that appellant was doing well until December 11, 2012 when she was sitting on a 

stool at work and the leg broke causing her to fall flat on her buttocks. He found that range-ofmotion testing of the lumbar spine was limited and painful and opined that she sustained a 

contusion to her spine. Dr. Spencer recommended a course of steroid treatment and took 

appellant off work for two weeks. On December 27, 2012 he reported that she had not improved 

sufficiently to return to work and therefore he was recommending no work and physical therapy 

for three to four weeks. 

On January 24, 2013 Dr. Avi J. Bernstein, a Board-certified orthopedic surgeon, reported 

that appellant was pursuing physical therapy and he was releasing her to return to work on 

January 28, 2013 with a 20-pound lifting restriction. On February 21, 2013 he noted that she 

continued to complain of right leg symptoms. Dr. Bernstein indicated that appellant had been 

seen by a Dr. Wolf in the past and had a negative electromyography (EMG). He referred her to 

pain management for evaluation of possible spinal cord stimulator. 

                                                             3

 In a February 28, 2013 letter, OWCP advised appellant that it had combined her claims under File Nos. 

xxxxxx958, xxxxxx741, and xxxxxx056 under master File No. xxxxxx668 for administrative case management 

purposes. 

4

 On October 13, 2011 appellant filed a notice of recurrence (Form CA-2a) alleging that on October 5, 2011 she 

sustained a recurrence of her October 5, 2011 employment injury. By decisions dated December 13, 2011, March 8, 

and September 20, 2012, OWCP denied her recurrence claim because the medical evidence of record was 

insufficient to establish a recurrence of her medical condition commencing October 5, 2011 causally related to her 

October 5, 2011 work injury. 
3

In a January 14, 2013 report,5 Dr. Christopher Gross, a Board-certified orthopedic 

surgeon and OWCP medical adviser, reviewed the medical evidence of record and found that 

after Dr. Allen’s October 9, 2012 impairment rating appellant fell at work on 

December 11, 2012. Appellant was placed on a course of steroids and sent home from work for 

two weeks. Dr. Gross concluded that appellant was no longer at maximum medical 

improvement (MMI) and therefore he could not provide a permanent impairment rating. He 

noted that there was no evidence to suggest any impairment to appellant’s right lower extremity. 

Dr. Gross reported that once Dr. Spencer cleared her to go back to work, and documented her 

physical examination, he would be able to provide an impairment rating for the accepted lumbar 

conditions. 

By letter dated May 1, 2013, OWCP requested additional information from appellant’s 

treating physician for further consideration to be given to her claim for a schedule award. It 

stated that its medical adviser was unable to provide an impairment rating on January 14, 2013 

because she was no longer at MMI as she fell at work on December 11, 2012, received medical 

treatment, and was taken off work. OWCP afforded appellant 30 days to submit additional 

medical evidence, including a physician’s report assessing her permanent impairment based on 

the sixth edition of the A.M.A., Guides and establishing that she had reached MMI. 

In response, appellant submitted reports dated March 21 through April 30, 2013 from 

Dr. Richard Noren, a Board-certified anesthesiologist, who diagnosed bilateral sacroiliac (SI) 

joint dysfunction and administered steroid injections. 

In a June 10, 2013 letter, OWCP advised appellant that because the medical evidence of 

record indicated that she had not yet reached MMI that her schedule award claim could not be 

considered. 

On March 24, 2014 appellant, through counsel, filed a second claim for a schedule award 

(Form CA-7) and submitted an August 29, 2013 functional capacity evaluation and a July 23, 

2013 EMG and nerve conduction velocity (NCV) study, which was normal and demonstrated no 

evidence of a lumbar radiculopathy. Appellant further submitted reports dated June 28 through 

September 5, 2013 from Dr. April Fetzer, a Board-certified physiatrist, who diagnosed chronic 

low back pain with left lumbar radiculopathy status post L4 through S1 fusion. On July 29, 2013 

Dr. Fetzer opined that appellant had reached MMI and released her to full-duty work. 

In a July 3, 2014 letter, OWCP advised appellant of the deficiencies of her schedule 

award claim and afforded her 30 days to submit a physician’s report establishing that she had 

reached MMI and a permanent impairment rating based on the sixth edition of the A.M.A., 

Guides. 

In a July 14, 2014 report, Dr. Bernstein noted that appellant sustained a fall at work on 

May 9, 2014 and another fall at work on July 5, 2014 when she rolled her left ankle. Appellant 

also reported increasing low back pain radiating down her right leg since the incident. 

Dr. Bernstein diagnosed significant increasing low back pain and provided restrictions of lifting 

no more than 10 pounds. 

                                                             5

 The Board notes that the report date “January 14, 2012” is a harmless, typographical error. 
4

On July 22, 2014 Dr. Jeffrey L. Visotsky, a Board-certified orthopedic surgeon, 

diagnosed lateral epicondylitis and extensor carpi radialis brevis origin tear. On August 20, 2014 

he noted that appellant was seen for a follow-up of a left lateral epicondylectomy and was to 

maintain an off-work status. 

By decision dated September 24, 2014, OWCP terminated appellant’s wage-loss 

compensation benefits as her actual earnings as a modified letter carrier exceeded the current 

wages of her date-of-injury position. 

On November 26, 2014 Dr. Michael Hellman, a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed the medical evidence of record and concluded that appellant 

had reached MMI on July 29, 2013, the date Dr. Fetzer released appellant to full duty. He found 

that appellant’s shoulder and hip sprains had fully resolved and therefore she had no permanent 

impairment of the left upper or lower extremity under the A.M.A., Guides. Utilizing section 

16.4, page 531, of the A.M.A, Guides and the July/August 2009, The Guides Newsletter, 

Dr. Hellman performed an impairment rating of her left and right lower extremities as related to 

her lumbar spine condition. He found that Dr. Fetzer’s July 29, 2013 and Dr. Bernstein’s 

July 14, 2014 report both indicated that appellant had no sensory or motor deficits. Dr. Hellman 

explained that he disagreed with Dr. Allen’s impairment rating because his assessment was 

improperly based on Chapter 17 of the A.M.A., Guides and failed to properly utilize the 

July/August 2009, The Guides Newsletter. He noted that appellant had some recent injuries that 

were not reflected under the current claim. Appellant fell at work on May 9, 2014, rolled her left 

ankle on July 5, 2014, was diagnosed with epicondylitis and underwent surgery on July 24, 2014. 

Dr. Hellman explained that he could not evaluate her permanent impairment related to these 

injuries as she had not reached MMI for these conditions. 

By decision dated February 12, 2015, OWCP denied appellant’s schedule award claim 

finding that the medical evidence of record failed to establish a ratable impairment as required to 

obtain a scheduled member.6

 

On February 18, 2015 counsel requested an oral hearing before a representative of the 

Branch of Hearings and Review. Appellant submitted physical therapy reports dated 

February 12 through April 14, 2015. 

In a February 9, 2015 report, Dr. Bernstein noted that “on Tuesday, [appellant] tweaked 

her back delivering mail” and suffered right-sided buttock pain to knee and questioned whether 

she had SI joint dysfunction. On March 12, 2015 he noted that appellant continued to have pain 

in the SI joint, but felt that she was capable of getting back to work and would continue with 

physical therapy. On March 19, 2015 Dr. Bernstein diagnosed low back pain and SI joint pain 

and recommended an injection for the SI joint pain. On June 4, 2015 he found continued 

symptoms and reported that he was trying to obtain a magnetic resonance imaging scan. 

                                                             6

 On February 9, 2015 appellant, through counsel, filed a claim for a recurrence of disability (Form CA-2a). In a 

March 19, 2015 letter, OWCP advised appellant that, based on her description of the circumstances that prompted 

the filing of the claim, she was claiming a new traumatic injury, and therefore should file a new traumatic injury 

claim. 
5

A telephonic oral hearing was held before an OWCP hearing representative on 

September 3, 2015. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

Subsequently, appellant submitted an August 14, 2015 narrative statement indicating that 

she was at home due to SI joint dysfunction and a physical therapy report dated August 19, 2015. 

She further submitted an August 31, 2015 report from Dr. Bernstein who noted that she had 

some improvement with her SI joint injection, which was starting to wear off and still she 

considered the SI joint a problem. Dr. Bernstein recommended an updated injection and 

continued physical therapy. 

By decision dated November 23, 2015, OWCP’s hearing representative affirmed the 

February 12, 2015 schedule award decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA,7

 and its implementing federal regulations,8 set 

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

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

back or to the body as a whole.11 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.12 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.13

                                                             7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. 

9 Id. at § 10.404(a). 

10 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). 

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

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

13 Supra note 10 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4. 
6

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his or her employment.14

ANALYSIS 

The Board finds that the medical evidence of record fails to establish that appellant 

sustained any permanent impairment to a scheduled member of the body causally related to the 

December 2, 2006 employment injury. OWCP accepted her claim for sprain of left shoulder and 

upper arm, sprain of left hip and thigh, lumbar sprain, lumbar disc herniation at L4-5, and spinal 

stenosis at L5. The medical evidence of record does not establish that appellant sustained a 

permanent impairment due to any of her accepted conditions. 

The Board finds that OWCP’s medical adviser, Dr. Hellman, properly reviewed the 

medical record and found no basis for rating impairment to a scheduled member of the body.15 

Dr. Hellman found that appellant’s shoulder and hip sprains had fully resolved and that therefore 

she had no permanent impairment of the left upper or lower extremity under the A.M.A., Guides. 

Utilizing section 16.4, page 531, of the A.M.A., Guides and the July/August 2009, The Guides 

Newsletter, utilizing the treating physician’s reports he performed an impairment rating of her 

left and right lower extremities as related to her lumbar spine condition. Dr. Hellman found that 

Dr. Fetzer’s July 29, 2013 and Dr. Bernstein’s July 14, 2014 report both indicated that appellant 

had no sensory or motor deficits. Moreover, the Board notes that the EMG/NCV study dated 

July 23, 2013 was normal and demonstrated no evidence of a lumbar radiculopathy. 

Dr. Hellman explained that he disagreed with Dr. Allen’s impairment rating because his 

assessment was improperly based on Chapter 17 of the A.M.A., Guides and failed to properly 

utilize the July/August 2009, The Guides Newsletter. He noted that appellant had some recent 

injuries that were not reflected under the current claim. Dr. Hellman explained that he could not 

evaluate her permanent impairment related to her later injuries as she had not reached MMI for 

these conditions. He determined that appellant had reached MMI as of July 29, 2013, the date 

Dr. Fetzer released her to full duty. The Board finds that OWCP’s medical adviser properly 

concluded that record of evidence contains no medical evidence of impairment to the left upper 

extremity or bilateral lower extremities resulting from the accepted conditions. Therefore, 

appellant has not met her burden of proof to establish permanent impairment under the sixth 

edition of the A.M.A., Guides for any of her accepted conditions. 

FECA does not authorize schedule awards for loss of use of the spine.16 A claimant may 

still receive an award for loss of use of a limb where the cause of the impairment originated in 

the spine. Because the A.M.A., Guides does not provide a separate mechanism for rating spinal 

                                                             14 See Veronica Williams, 56 ECAB 367 (2005). 

15 The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the 

examining physician to determine the permanent impairment. See supra note 10, Part 3 -- Medical, OWCP Directed

Medical Examinations, Chapter 3.200.4 (October 1990); Tommy R. Martin, 56 ECAB 273 (2005). 

16 See M.R., Docket No. 14-0833 (issued September 9, 2014). 
7

nerve injuries as impairments of the extremities, OWCP has adopted the standard set forth in The 

Guides Newsletter.

17 

In his October 9, 2012 report, Dr. Allen opined that appellant had 15 percent whole 

person impairment based on Chapter 17 of the sixth edition of the A.M.A., Guides. Chapter 17 

addresses whole person impairment of the spine, not upper extremity impairment18 and thus he is 

found to have failed to utilize the proper standard. The Board finds that his impairment rating is 

inconsistent with FECA and the A.M.A., Guides. Appellant has submitted no other current 

medical evidence in conformance with the sixth edition of the A.M.A., Guides, or The Guides 

Newsletter, addressing how she has a ratable impairment of a scheduled body member. 

Accordingly, the weight of the medical opinion evidence is accorded to Dr. Hellman’s 

November 26, 2014 report. Consequently, appellant failed to establish that she has a ratable 

impairment of a scheduled body member.19

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

the findings and reasons set forth above, the Board finds that appellant’s arguments are not 

substantiated. 

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 a schedule 

award. 

                                                             17 See supra note 13. 

18 See L.T., Docket No. 15-423 (issued March 26, 2015). See supra note 11. 

19 Id. See J.Q., 59 ECAB 366 (2008) (when the examining physician does not provide an estimate of impairment 

that conforms to the A.M.A., Guides, OWCP may rely on the impairment rating provided by an OWCP medical 

adviser). 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 23, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 1, 2017 

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