United States Department of Labor

Employees’ Compensation Appeals Board

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B.C., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

EDUCATION & TRAINING COMMAND, 

LACKLAND AIR FORCE BASE, TX, Employer

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Docket No. 17-1617

Issued: January 8, 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 July 21, 2017 appellant filed a timely appeal from a January 23, 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 this case.

ISSUE

The issue is whether appellant met his burden of proof to establish lower extremity 

permanent impairment due to his accepted lumbar condition, warranting a schedule award.

FACTUAL HISTORY

On August 6, 2015 appellant, then a 58-year-old information technology (IT) specialist, 

filed a traumatic injury claim (Form CA-1) for lower back and left leg conditions he alleged

arose in the performance of duty on July 28, 2015. He and a coworker were moving a loaded 

 

1 5 U.S.C. § 8101 et seq.
2

metal cart down a ramp when it started to veer off the ramp. Appellant indicated that they 

struggled to regain control of the cart and he injured his back. He did not stop work around the 

time he filed his claim.2

A September 3, 2015 lumbar x-ray revealed degenerative disc and joint disease at L4-5 

and L5-S1, without evidence of fracture or destructive lesion.

In a September 3, 2015 report, Dr. Jose V. Vela, an attending Board-certified internist 

and family practitioner, noted that appellant complained of low back and radiating left leg pain. 

He reported findings on physical examination and diagnosed lumbar strain. 

OWCP initially accepted that appellant sustained a lumbar sprain. It later expanded the 

accepted conditions to include lumbar intervertebral disc displacement. 

A December 9, 2015 lumbar magnetic resonance imaging (MRI) scan contained an 

impression of left paracentral disc herniation at L5-S1 with impingement of the exiting left L5 

nerve root and traversing left S1 nerve root, and a broad-based disc bulge at L2-3 with mild 

impingement of the anterior thecal sac. There was no fracture, tumor, abscess, sequestered, or 

extruded disc fragment, osteomyelitis, discitis, or retroperitoneal aneurysm. The findings 

showed mild degenerative disc and joint disease consistent with age, involving both the anterior 

and posterior elements of the lumbar spine. There was no evidence of dysmorphism, fracture, 

mass, tumor, retroperitoneal lesion, aneurysm, or suggestion of inflammatory change.

In a July 27, 2016 report, Dr. Vela reported the findings of his physical examination of

that date. He indicated that appellant exhibited mild tenderness to palpation of the lumbar 

paraspinal muscles and noted that straight leg raise testing in both legs was negative.

On November 4, 2016 appellant filed a claim for a schedule award (Form CA-7).

Appellant submitted an August 23, 2016 report in which Dr. Mark Mason, an attending 

Board-certified occupational medicine physician, discussed his factual and medical history and 

reported the findings of the physical examination he performed on that date. Dr. Mason noted 

that no electrodiagnostic studies were performed. He observed that appellant transitioned from 

one position to another with minimal difficulty. Dr. Mason noted that straight leg testing was 

tolerated to 40 degrees and that there were no distal symptoms with maximum tolerated straight 

leg raising. He advised that it was reasonable to say that appellant reached maximum medical 

improvement on July 27, 2016, the date that appellant last saw Dr. Vela, having completed all of 

the diagnostic workup and treatment. Dr. Mason indicated that no further material recovery from 

or lasting improvement to the compensable work condition could reasonably be anticipated from 

further treatment that appellant was interested in pursuing. He noted that, according to the sixth 

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

 

2 Beginning on October 18, 2015, appellant received wage-loss compensation on the daily roll for intermittent 

work stoppages. Some of these work stoppages were due to his attendance at physical therapy sessions to treat his 

work-related condition. 
3

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

3

appellant qualified for a left lower extremity permanent 

impairment rating of 14 percent due to his work injury.

Dr. Mason indicated that he used The Guides Newsletter, “Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition” (July/August 2009) (The Guides Newsletter) to assign the 

permanent impairment rating for the lumbar radiculopathies affecting appellant’s left lower 

extremity.4 For the L5 nerve, appellant qualified for a moderate sensory loss according to Table

17-7 and this qualified for a range of impairment between two and five percent of the left lower 

extremity with a grade C default value (within class 1) of three percent impairment. Dr. Mason 

indicated that, for the motor component of the L5 nerve, appellant qualified for mild motor 

deficit using Table 17-7 for physical examination, and qualified for range of impairment between 

zero and nine percent of the left lower extremity using proposed Table 2. The default grade C

default value (within class 1) was five percent. Hence, the default rating for sensory loss was

three percent of the left lower extremity and the default rating for motor loss was five percent of 

the left lower extremity. Dr. Mason indicated that these were modified by the grade modifiers

for functional history and clinical studies. For functional history, using Table 17-6, appellant

qualified under modifier 2 which resulted in a modifier adjustment of +1 (grade modifier 3 

minus class 1 equaled adjustment 1). For clinical studies, using Table 17-9, he qualified for 

grade modifier 2 and an adjustment of +1 (grade modifier 2 minus class 1 equaled modifier 

adjustment +1). Hence, the grade modifier adjustment under the net adjustment formula was +2. 

This moved appellant from the grade C default value (within class 1) to the maximum grade E 

value (within class 1). For the sensory component of the nerve, this qualified for five percent

permanent impairment of the left lower extremity. For the motor component, appellant qualified 

for a maximum of nine percent permanent impairment of the left lower extremity. Dr. Mason 

concluded that these values combined to equal 14 percent permanent impairment of the left 

lower extremity.

In November 2016, OWCP referred appellant’s case to Dr. Arthur S. Harris, an attending 

Board-certified orthopedic surgeon serving as an OWCP medical adviser, and requested that he 

evaluate the permanent impairment of appellant’s lower extremities.

In a November 22, 2016 report, Dr. Harris determined that appellant did not have 

permanent impairment of his lower extremities under the standards of the sixth edition of the 

A.M.A., Guides. He noted that appellant was seen for evaluation on August 23, 2016 by

Dr. Mason who documented his ongoing symptoms. Dr. Mason documented that a December 9, 

2015 MRI scan of appellant’s lumbar spine demonstrated a disc herniation at L5-S1 and a bulging 

disc at L2-3. Dr. Harris noted that Dr. Mason found that appellant had 14 percent permanent 

impairment of his left lower extremity for problems associated with L5 radiculopathy. He advised

that, from review of the medical record, a lumbar disc herniation at L5-S1 had been established.

Dr. Harris indicated that, although Dr. Mason found in his August 23, 2016 report that appellant 

had 14 percent left lower extremity impairment due to an L5 radiculopathy, his examination did

not demonstrate any neurologic deficit in either lower extremity. He found that, as appellant did 

not have documented neurologic deficits, he was not entitled to a permanent impairment rating 

based on the sixth edition of the A.M.A., Guides. Dr. Harris concluded that, for purposes of 

 

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

4 See infra notes 12 through 14.
4

calculating a schedule award utilizing the sixth edition of the A.M.A., Guides, appellant had zero 

percent permanent impairment of either lower extremity.

By January 23, 2017 decision, OWCP determined that appellant had not met his burden 

of proof to establish permanent impairment of his lower extremities due to his accepted 

employment condition. It based its determination on Dr. Harris’ November 22, 2016 report 

which evaluated the August 23, 2016 findings of Dr. Mason.

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.5 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 under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides 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 (2009).7

Neither FECA nor its implementing regulations provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole.8 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.9 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment.10 It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

ratings for the spine. The 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 procedure manual.11

In addressing lower extremity impairments, due to peripheral or spinal nerve root 

involvement, the sixth edition requires identifying the impairment for the Class of Diagnosis 

(CDX) condition, which is then adjusted by grade modifiers based on grade modifier for 

 

5 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’

compensation. 5 U.S.C. § 8107(c)(2).

6 20 C.F.R. § 10.404. 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

8 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

9 Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3)

(February 2013).

10 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

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

11 See supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.
5

Functional History (GMFH) and, if electrodiagnostic testing was done, grade modifier for 

Clinical Studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMCS - CDX).13

ANALYSIS

OWCP accepted appellant’s traumatic injury claim for lumbar sprain and expanded to 

include lumbar intervertebral disc displacement. Appellant filed a claim for a schedule (Form 

CA-7) and, in a May 30, 2017 decision, OWCP determined that appellant did not meet his 

burden of proof to establish permanent impairment of his lower extremities due to his accepted 

employment injury. OWCP based its determination on the November 22, 2016 report of

Dr. Harris, OWCP’s medical adviser, who reviewed the August 23, 2016 findings of Dr. Mason, 

an attending physician.

Dr. Mason indicated that he applied the standards of the sixth edition of the A.M.A, 

Guides, including The Guides Newsletter. He determined that appellant had 14 percent 

permanent impairment of the left lower extremity due to sensory and motor deficits associated 

with the L5 nerve root.

In his November 22, 2016 report, Dr. Harris, OWCP’s medical adviser, properly 

determined that appellant did not have permanent impairment of his lower extremities under the 

standards of the sixth edition of the A.M.A., Guides. He discussed Dr. Mason’s August 23, 2016 

evaluation noting that, although Dr. Mason found in his August 23, 2016 report that appellant had 

14 percent left lower extremity impairment due to left L5 radiculopathy, his examination did not 

demonstrate a neurologic deficit in either lower extremity. It is noted that Dr. Mason reported on 

August 23, 2016 that straight leg testing was tolerated to 40 degrees and that there were no distal 

symptoms with maximum tolerated straight leg raising. Dr. Harris acknowledged that a 

December 9, 2015 lumbar MRI scan demonstrated a disc herniation at L5-S1, but he correctly 

found that an L5 radiculopathy had not been established. The Board finds that Dr. Harris properly 

opined that, as appellant did not have documented neurologic deficits, he was not entitled to any 

permanent impairment rating based on the sixth edition of the A.M.A., Guides. In his August 23, 

2016 report, Dr. Mason specifically indicated that electrodiagnostic studies were not performed. 

As noted above, a schedule award is not payable under FECA for injury to the spine or back and 

The Guides Newsletter is designed to evaluate peripheral nerve impairments to the upper or lower 

extremities resulting from spinal injuries.14 Dr. Harris properly concluded that, for purposes of 

calculating a schedule award utilizing the sixth edition of the A.M.A., Guides, appellant had zero 

percent permanent impairment of either lower extremity.

On appeal appellant contends that the opinion of Dr. Harris should not have been 

accepted over that of Dr. Mason. In some instances, OWCP’s medical adviser’s opinion can 

constitute the weight of the medical evidence. As long as OWCP’s medical adviser explains his 

or her opinion, shows values and computation of impairment based on the A.M.A., Guides, and 

considers each of the reported findings of impairment, his or her opinion may constitute the 

 

12 A.M.A., Guides 515-21, 533.

13 Id. at 521.

14 See supra notes 8 through 12.
6

weight of the medical evidence.

15

 As explained above, Dr. Harris, OWCP’s medical adviser,

identified the errors in Dr. Mason’s impairment rating and then properly applied the standards of 

the sixth edition of the A.M.A., Guides to find that appellant had no lower extremity permanent 

impairment.

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.

CONCLUSION

The Board finds that appellant did not meet his burden of proof to establish lower 

extremity permanent impairment due to his accepted employment injury.

ORDER

IT IS HEREBY ORDERED THAT the January 23, 2017 merit decision of the Office 

of Workers’ Compensation Programs is affirmed.

Issued: January 8, 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

 

15 If the attending physician misapplied the A.M.A., Guides, no conflict would exist because the attending 

physician’s report would have diminished probative value and the opinion of OWCP’s medical adviser would 

constitute the weight of medical opinion. Supra note 6 at Part 2 -- Claims, Developing and Evaluating Medical 

Evidence, Chapter 2.810.8j (September 2010); M.P., Docket No. 14-1602 (issued January 13, 2015).