United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Beckley, WV, Employer

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Docket No. 18-1683

Issued: April 19, 2019

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 September 4, 2018 appellant, through counsel, filed a timely appeal from a July 3, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

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.3

ISSUE

The issue is whether appellant has met her burden of proof to establish more than four 

percent permanent impairment of each lower extremity, for which she has previously received 

schedule award compensation. 

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

On May 15, 2001 appellant, then a 48-year-old medical technician, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her low back when she prevented a 

patient’s fall while in the performance of duty. OWCP accepted the claim for lumbosacral strain.5 

On February 1, 2009 appellant filed a Form CA-7 claim for a schedule award.6 By decision 

dated March 12, 2009, OWCP found that, as she had not established a permanent impairment 

causally related to her accepted condition, she was not entitled to a schedule award. By decision 

dated August 20, 2009, an OWCP hearing representative affirmed the March 12, 2009 decision. 

Counsel filed an appeal with the Board on September 8, 2009. By decision dated May 14, 

2010,7the Board set aside the March 12 and August 20, 2009 OWCP decisions and remanded the 

case for a review of the medical record by an OWCP district medical adviser (DMA). 

Following review by a DMA who found that appellant had no lower extremity impairment 

related to the accepted condition, by decision dated June 8, 2010, OWCP again denied herschedule 

award claim.

 

2 5 U.S.C. §§ 8101 et seq.

3 The Board notes that, following the July 3, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id. 

4 Docket No. 14-0345 (issued December 24, 2014); Docket No. 09-0231 (issued May 14, 2010). 

5 A March 21, 2002 electromyograph and nerve conduction velocity (EMG/NCV) study demonstrated that the lower 

extremities and lumbar paraspinals were within normal limits. 

6 The record indicates that appellant returned to a light-duty clerical position in March 2003 and retired in 

March 2007. 

7 Docket No. 09-2231 (issued May 14, 2010). 
3

Additional development followed during which appellant submitted a July 22, 2011 report

from Dr. Martin Fritzhand, a Board-certified urologist. He described examination findings of 

absent Achilles tendon reflexes and diminished muscle strength over both lower extremities. 

Dr. Fritzhand utilized the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides)

8

and The Guides Newsletter “Rating 

Spinal Nerve Extremity Impairment using the sixth edition” (The Guides Newsletter) 

(July/August 2009) and determined that appellant had sustained impairment to the S1 nerve root. 

He found a class 1 impairment, applied the net adjustment formula, and concluded that appellant 

had bilateral four percent sensory impairments and five percent motor impairments for a combined 

nine percent permanent impairment of each lower extremity. 

On July 17, 2012 Dr. Arnold Berman, a Board-certified orthopedist serving as a DMA, 

reported that he reviewed Dr. Fritzhand’s July 22, 2011 report. The DMA found that appellant 

had four percent permanent impairment of each lower extremity. He noted his agreement with

Dr. Fritzhand’s opinion that appellant’s S1 nerve root deficit was a sufficient basis for rating 

permanent impairment pursuant to the sixth edition of the A.M.A., Guides and The Guides

Newsletter. However, the DMA indicated that Dr. Fritzhand’s rating was inconsistent with his 

examination findings and found that appellant had a mild sensory deficit under Table 16-11, which 

yielded one percent permanent impairment for sensory loss, as opposed to Dr. Fritzhand’s finding 

of a severe sensory deficit for five percent permanent impairment. He further found that

Dr. Fritzhand had not properly applied the net adjustment formula. The DMA concluded that 

appellant had one percent sensory deficit and three percent motor deficit, for a combined four 

percent permanent impairment of each lower extremity with July 22, 2011 the date of maximum 

medical improvement. 

By decision dated March 6, 2013, OWCP found the weight of the medical evidence rested 

with the opinion of the DMA and granted appellant a schedule award for four percent permanent 

impairment of each lower extremity, for a total lower extremity permanent impairment of eight 

percent. The award ran for a period of 23.04 weeks for the period July 22 to December 30, 2011. 

On November 5, 2013 an OWCP hearing representative affirmed the March 6, 2013 decision. 

On December 2, 2013 appellant, through counsel, filed a timely appeal with the Board. By 

decision dated December 24, 2014, the Board found the case not in posture for decision because a 

conflict had been created between Dr. Fritzhand and the DMA regarding their opinions of the

degree of permanent impairment of her lower extremities caused by the accepted back conditions. 

The Board set aside the November 5, 2013 decision and remanded the case for OWCP to refer 

appellant, the case record, and a statement of accepted facts (SOAF) for an impartial medical 

evaluation to determine the appropriate degree of her lower extremity impairment due to the 

accepted conditions.9 

On July 7, 2015 OWCP referred appellant to Dr. David Soulsby, a Board-certified 

orthopedic surgeon, to resolve the conflict in medical opinion. In an August 13, 2015 report,

 

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

9 Docket No. 14-0345 (issued December 24, 2014). 
4

Dr. Soulsby indicated that he had previously examined her on January 24, 2003.10 He advised 

that, because appellant demonstrated subjective symptoms without objective physical findings, she 

had no ratable lower extremity findings with zero percent permanent impairment. Dr. Soulsby 

also found four percent whole person impairment upon application of Chapter 17 of the A.M.A., 

Guides due to degenerative disc disease. 

By decision dated September 30, 2015, OWCP found the special weight of medical 

evidence rested with the impartial evaluation of Dr. Soulsby and found that appellant was not 

entitled to an increased schedule award. 

On October 6, 2015 counsel requested a hearing before an OWCP hearing representative. 

At the hearing, held on June 6, 2016, he maintained that Dr. Soulsby had not properly rated

appellant’s spinal impairment and, therefore, Dr. Soulsby opinion was insufficient to resolve the 

conflict in medical evidence. 

By decision dated July 28, 2016, an OWCP hearing representative set aside the 

September 30, 2015 decision. He noted that, under OWCP procedures, physicians previously 

connected with a claim were prohibited from serving as an impartial medical examiner (IME) and, 

therefore, as Dr. Soulsby had previously examined appellant on January 24, 2003, he was not 

qualified to resolve the conflict regarding her lower extremity impairment. The hearing 

representative remanded the case to OWCP to refer appellant to a new IME to resolve the conflict, 

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

On November 17, 2016 OWCP referred appellant to Dr. Andrew E. Landis, Boardcertified in orthopedic surgery, for an impartial medical evaluation. In a January 3, 2017 report, 

he noted his review of the SOAF and medical record, including diagnostic studies. Dr. Landis 

described appellant’s complaint of midline low back pain with numbness and burning. Physical 

examination demonstrated mild restriction in spinal range of motion with no evidence of spasm, 

no deformity of the lumbar spine, and tenderness to light touch over the lower back with no 

evidence of inflammation to account for the tenderness. Supine and sitting straight leg raising 

demonstrated low back pain without radiation. Heel and toe walking were done without difficulty 

and neurological examination revealed no motor weakness in either lower extremity with no 

atrophy present. Sensory examination revealed decreased sensation to light touch throughout the 

entire left lower extremity and with questionable decrease on the right, and sensation to pinprick 

was decreased throughout each lower extremity. Dr. Landis opined that all sensory changes were 

nonphysiologic and did not correspond to any dermatomal pattern. He indicated that appellant 

sustained a lumbosacral strain/sprain type of injury on May 15, 2001 that was superimposed on 

preexisting degenerative changes in the lumbar spine, noting that none of the diagnostic studies 

demonstrated disc herniation, nerve root impingement, or spinal stenosis. Dr. Landis advised that, 

since she had a normal EMG/NCV in 2002, the changes seen on the 2015 EMG/NCV would be a 

new finding unrelated to the 2001 employment injury. He opined that, at the time of his 

examination, there was no evidence of a credible neurological deficit involving either lower 

extremity, indicating that appellant’s subjective complaints and clinical findings were consistent 

with nonphysiologic findings and some degree of symptom magnification. Dr. Landis advised 

that there was no evidence on clinical examination that would be consistent with radiculopathy or 

 

10 The record indicates that Dr. Soulsby performed a second opinion evaluation on January 24, 2003. 
5

evidence of nerve root damage at any level of the lumbar spine and, therefore, nothing on which 

to base any impairment of either lower extremity. He further found that, under Chapter 17, The 

Spine and Pelvis, of the A.M.A., Guides, appellant had a class 1 impairment which, after applying 

grade modifiers and the net adjustment formula, yielded three percent whole person impairment. 

In correspondence dated April 24, 2017, OWCP informed Dr. Landis that schedule awards 

were not payable based upon a rating of the whole person or for an injury to the spine, but could 

be paid for impairment of the upper or lower extremities caused by injury to a spinal nerve. It 

attached a copy of the July/August 2009 The Guides Newsletter and asked that he utilize this in 

evaluating the degree of appellant’s lower extremity impairment. 

In a supplemental report dated May 17, 2017, Dr. Landis advised that The Guides 

Newsletter would not be applicable in appellant’s case because she had no nerve impairment. He 

reiterated his previous findings and that she had nonphysiologic subjective complaints in both 

lower extremities and, therefore, would not be entitled to an impairment rating based on a spinal 

nerve injury in either lower extremity. 

By decision dated November 20, 2017, OWCP found the special weight of the medical 

evidence rested with the impartial medical evaluation of Dr. Landis and found that appellant was 

not entitled to an increased schedule award. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on November 29, 2017. She did not testify at the hearing, held on April 18, 2018. Counsel 

asserted that Dr. Landis was unqualified to serve as an IME because he was unfamiliar with the 

A.M.A., Guides. He requested that the case be remanded for a new impartial evaluation. 

By decision dated July 3, 2018, an OWCP hearing representative affirmed the 

November 20, 2017 decision. She found that, contrary to counsel’s assertions, OWCP properly 

referred appellant to Dr. Landis who provided a detailed report resolving the conflict regarding 

appellant’s impairment due to the accepted back conditions. The hearing representative concluded 

that appellant had not established that she was entitled to a greater impairment than that previously 

awarded. 

LEGAL PRECEDENT

The schedule award provision of FECA,11 and its implementing federal regulations,

12 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 

 

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.
6

the A.M.A., Guides as the uniform standard applicable to all claimants.13 For decisions issued 

after May 1, 2009, the sixth edition will be used.14

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

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.15 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 scheduled 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.16

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

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.17 OWCP has adopted this approach for 

rating permanent impairment of the upper or lower extremities caused by a spinal injury, as 

provided in section 3.700 of its procedures, which memorializes proposed tables outlined in a 

July/August 2009 The Guides Newsletter.

18

 Specifically, it will address lower extremity 

impairments originating in the spine through Table 16-1119 and upper extremity impairment 

originating in the spine through Table 15-14.20

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.21 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.22 Where a case is 

referred to an IME for the purpose of resolving a conflict, the opinion of such specialist, if 

 

13 Id. at § 10.404(a).

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

2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010).

15 J.M., Docket No. 18-0856 (issued November 27, 2018); Pamela J. Darling, 49 ECAB 286 (1998).

16 J.M., id.; Thomas J. Engelhart, 50 ECAB 319 (1999).

17 R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).

18 Supra note 14 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

19 A.M.A., Guides, supra note 8 at 533.

20 Id. at 425.

21 5 U.S.C. § 8123(a).

22 C.R., Docket No. 18-1285 (issued February 12, 2019).
7

sufficiently well rationalized and based on a proper factual and medical background must be given 

special weight.23

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than four 

percent permanent impairment of each lower extremity, for which she previously received 

schedule award compensation.

OWCP accepted that appellant sustained lumbosacral sprain/strain and temporary 

aggravation of degenerative disc disease. On February 1, 2009 appellant filed a schedule award 

claim. By decision dated March 6, 2013, OWCP granted a schedule award for four percent

permanent impairment of each lower extremity. 

By decision dated December 24, 2014, the Board found that a conflict in medical evidence 

had been created between Dr. Fritzhand, an attending physician and Dr. Berman, OWCP’s DMA, 

regarding the degree of appellant’s lower extremity impairment. The Board remanded the case to 

OWCP to refer her for an impartial medical evaluation to determine the degree of her lower 

extremity impairment.24 The Board’s review of the medical evidence submitted prior to 

November 5, 2013, the most recent OWCP decision prior to the Board’s last decision, is res 

judicata absent any further review by OWCP under section 8128 of FECA.25

On November 17, 2016 OWCP referred appellant to Dr. Landis, for an impartial medical 

evaluation.26 In a comprehensive report dated January 3, 2017 and a supplemental report dated 

May 17, 2017, Dr. Landis opined that, based on his examination findings of no motor weakness in 

either lower extremity, no atrophy, and that all sensory changes were nonphysiologic and did not 

correspond to any dermatomal pattern, she, therefore, had no permanent impairment of a lower 

extremity due to the accepted spinal conditions, pursuant to the rating method found in The Guides 

Newsletter. 

The Board finds that Dr. Landis’ opinion constitutes the special weight of the medical 

evidence and is sufficient to establish that appellant is not entitled to an additional schedule award 

for the accepted lumbar conditions. When a case is referred to an IME to resolve a conflict, the 

resulting medical opinion, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.27 Dr. Landis provided a well-reasoned opinion based 

on a proper factual and medical history. He also accurately summarized the relevant medical 

 

23 Id.

24 Supra note 8.

25 B.W., Docket No. 18-1415 (issued March 8, 2019). 

26 As noted, OWCP had initially referred appellant to Dr. Soulsby for an impartial medical evaluation. However, 

as Dr. Soulsby had previously provided a second opinion evaluation on January 24, 2003, OWCP procedures 

precluded that he serve as an IME. Supra note 14 at Part 3 -- Medical, OWCP Directed Medical Examinations, 

Chapter 3.500.4.b(3)(b) (July 2011); see J.G., Docket No. 16-0328 (issued November 1, 2016).

27 A.G., Docket No. 18-0815 (issued January 24, 2019).
8

evidence and provided thorough physical examination findings. Dr. Landis provided detailed 

findings and medical rationale supporting his opinion, based upon the entire medical record, that 

appellant had no lower extremity impairment referable to the accepted lumbar conditions. As the

IME, his opinion was entitled to special weight.28 

Accordingly, the Board finds that OWCP properly relied on Dr. Landis’ findings as a basis 

for finding that appellant had not met her burden of proof to establish greater lower extremity 

impairment.

29

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 employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

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

impairment of each lower extremity, for which she has previously received schedule award 

compensation.

ORDER

IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 19, 2019

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

 

28 Id.

29 J.M., Docket No. 18-1387 (issued February 1, 2019).