United States Department of Labor

Employees’ Compensation Appeals Board

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G.S., claiming as widow of C.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Charlotte, NC, Employer

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Docket No. 18-1142

Issued: July 2, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 2018 appellant, through counsel, filed a timely appeal from a March 26, 2018 

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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish permanent 

impairment of the employee’s bilateral lower extremities, warranting a schedule award; and 

 

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

(2) whether appellant has met her burden of proof to establish permanent impairment of the 

employee’s left upper extremity, warranting a schedule award.

FACTUAL HISTORY

On September 16, 1997 the employee, then a 53-year-old regular rural carrier, filed a 

traumatic injury claim (Form CA-1) alleging that, on September 10, 1997, he injured his left 

shoulder, upper back, and lower back when he was involved in a motor vehicle accident while in 

the performance of duty. He subsequently worked modified duty. 

OWCP accepted the employee’s claim for trapezius strain of the left shoulder, cervical 

strain, lumbar strain, and L5-S1 herniation. 

The employee subsequently underwent the following surgical procedures: bilateral L5-S1 

decompression and microscopic discectomy on March 17, 1998; lumbar fusion surgery at L4-5 

and L5-S1; T10 and T11 laminectomy on August 19, 2008; and L3-4 bilateral decompressive 

laminectomy, lateral mass fusion, and a right L5-S1 hemilaminectomy and foraminotomy on 

February 22, 2010.

On July 31, 2004 the employee stopped work because the employing establishment could 

no longer accommodate his work restrictions. OWCP paid him wage-loss compensation on the 

periodic rolls effective August 8, 2004. 

The employee retired from federal service effective June 30, 2011. 

On September 27, 2016 the employee filed a claim for a schedule award (Form CA-7). 

In a letter dated October 3, 2016, the employee, through counsel, requested that OWCP 

arrange an impairment rating examination for the employee because he was unable to travel and 

had difficulty finding a doctor who would perform an impairment rating examination. 

In an October 12, 2016 examination note, Dr. Farrukh Sair, Board-certified in pain 

medicine and anesthesiology, related the employee’s complaints of chronic low back and neck 

pain. He reviewed the employee’s history, including his previous surgical procedures. Upon 

physical examination of the employee’s extremities, Dr. Sair observed normal movement of all 

extremities with no bony abnormalities and no edema. Examination of the employee’s lumbar 

spine demonstrated no paravertebral muscular tenderness and decreased extension. Dr. Sair

reported that examination of the employee’s hips showed tenderness of the bilateral sacroiliac (SI)

joints. He diagnosed lumbar post-laminectomy syndrome, low back pain, enthesopathy of the hip 

region, and cervical spondylosis. The employee continued to receive medical treatment for his 

complaints of chronic low back pain secondary to lumbar post-laminectomy pain syndrome and 

neck pain secondary to cervical spinal stenosis and submitted examination notes. None of the 

reports contained an impairment rating for purposes of a schedule award. 

OWCP referred the employee, along with a statement of accepted facts and the medical 

record to Dr. Seth Jaffe, a Board-certified orthopedist, for a second opinion examination in order 

to determine whether he had sustained a ratable permanent impairment due to his accepted 

September 10, 1997 employment injury in accordance with the sixth edition of the American 
3

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

3

and 

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition 

(July/August 2009) (The Guides Newsletter).

In an April 11, 2017 report, Dr. Jaffe related that the employee had sustained a workrelated injury on September 10, 1997 and noted that his claim had been accepted for trapezius 

strain of the left shoulder, cervical strain, lumbar strain, and herniation of the lumbar disc at L5-S1. 

Upon examination of the employee’s lumbar spine, he observed tenderness with range of motion

in the paraspinal muscles and in the bilateral sacroiliac joints. Examination of the employee’s 

bilateral lower extremities demonstrated motor strength of 5/5 and intact to light touch sensation. 

Dr. Jaffe indicated that the neurological examination showed difficulty with heel and toe walking 

and decreased sensation in the feet. Examination of the employee’s left shoulder showed 

tenderness with range of motion, both over the deltoid and over the acromioclavicular (AC) joint. 

Sensation was intact to light touch and muscle strength was 4/5. Dr. Jaffe diagnosed postlaminectomy syndrome and lumbago with sciatica on the left side. 

Regarding the employee’s work-related injuries, Dr. Jaffe opined that his accepted left 

shoulder and lumbar strains had resolved. He related that, according to the medical records, the 

employee had reached maximum medical improvement (MMI) “[sometime] in 2005.” Dr. Jaffe 

reported that, according to “[T]able 17” of the sixth edition of the A.M.A., Guides, the lumbar 

spine regional grid, the employee was a class 3. He assigned grade modifiers of 3 for functional 

history, 3 for physical examination, and 3 for clinical studies. Dr. Jaffe concluded that the 

employee had a final permanent impairment rating of 19 percent to the lumbar spine. 

Addendum notes were included at the conclusion of Dr. Jaffe’s report. In a May 3, 2017 

note, Dr. Jaffe related that, according to the The Guides Newsletter, the employee had 16 percent 

permanent impairment of the lower extremities due to moderate sensory deficits at L4, L5, and S1. 

He explained that some of the employee’s other apportionment previously awarded were for other 

deficits related to the spine and motor function non-nerve related. In a May 23, 2017 addendum 

note, Dr. Jaffe reported that the apportionment of the employee’s 16 percent permanent 

impairment rating of the lower extremities was 6 percent for L4, 6 percent for L5, and 4 percent 

for S1 nerve roots for a total of 16 percent permanent impairment. 

In a May 30, 2017 letter, the employee’s spouse informed OWCP that the employee had 

died on May 8, 2017. 

Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as an OWCP district 

medical adviser (DMA), reviewed the employee’s claim, including Dr. Jaffe’s permanent

impairment rating. In a June 20, 2017 report, he noted that the employee’s claim had been accepted 

for trapezius strain of the left shoulder, cervical strain, lumbar strain, and L5-S1 disc herniation. 

Dr. Fellars related that the employee had documented 5/5 strength in his lower extremities and 

normal sensation with nonfocal neurologic examination with respect to the spine. He further 

reported that examination of the employee’s left shoulder showed pain with range of motion and 

tenderness over the deltoid and AC joint. Muscle strength was 4/5. Dr. Fellars opined that,

according to The Guides Newsletter, proposed Table 2, the employee had zero percent lower 

 

3 A.M.A., Guides (6th ed. 2009).
4

extremity permanent impairment. He explained that, although the employee may have significant 

pain, based on the documentation, the employee had no sensory or motor disturbances to establish 

a lower extremity impairment according to The Guides Newsletter. Dr. Fellars noted his 

disagreement with Dr. Jaffe’s impairment rating as Dr. Jaffe documented that the employee had 

5/5 strength and normal sensory examination, but also reported changes in sensation at L4, L5, 

and S1. He reported that the employee had reached MMI on April 11, 2017.

By letter dated June 28, 2017, OWCP requested that Dr. Jaffe review Dr. Fellars’ June 20, 

2017 report and provide clarification on whether the employee had work-related lower extremity 

permanent impairment due to his accepted lumbar injury. 

In a June 30, 2017 addendum report, Dr. Jaffe noted his disagreement with Dr. Fellars’

permanent impairment rating based on the fact that the employee had no sensory deficits on 

examination. He explained that he did not just take into account the examination, but also 

diagnostic studies. Dr. Jaffe indicated that the employee had an abnormal electromyography 

(EMG) in 2009, abnormal x-rays, and abnormal scans. He reported that he continued to opine the 

same as in his addendum notes from May 2017. 

Dr. Fellars reviewed Dr. Jaffe’s June 30, 2017 addendum report and, in a July 18, 2017 

report, noted that Dr. Jaffe’s reports contained contradictory statements. He indicated that on page 

three of his report, Dr. Jaffe had documented normal strength and sensation as part of the 

employee’s lumbar examination, but he later reported there was obvious impairment. Dr. Fellars 

explained that per The Guides Newsletter, impairment is assigned based on examination, not the 

imaging studies. He opined that because the employee’s examination revealed normal strength 

and sensation, the employee had zero percent permanent impairment of each lower extremity due 

to his accepted lumbar injury.

By decision dated July 20, 2017, OWCP denied the employee’s claim for a schedule award. 

It found that the medical evidence of record failed to establish permanent impairment to his lower 

extremities as a result of his accepted lumbar injury. OWCP determined that the weight of medical 

evidence rested with Dr. Fellars, as the DMA, who found in his June 20 and July 18, 2017 reports,

that appellant had zero percent permanent impairment according to The Guides Newsletter.

On August 2, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

February 13, 2018. 

By decision dated March 26, 2018, an OWCP hearing representative affirmed the July 20, 

2017 schedule award decision.

LEGAL PRECEDENT -- ISSUES 1 & 2

The schedule award provisions of FECA4and its implementing regulations 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. FECA, however, does not 

 

4 5 U.S.C. § 8107.
5

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has 

been adopted by OWCP as a standard for evaluation of schedule losses and the Board has 

concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.6

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

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.7

Neither FECA nor its implementing regulations provide for a schedule award for 

impairment to the back or to the body as a whole.8 Furthermore, the back is specifically excluded 

from the definition of organ under FECA.9 For peripheral nerve impairments to the upper or lower 

extremities resulting from spinal injuries, OWCP’s procedures indicate that the July/August 2009 

edition of The Guides Newsletter is to be applied for rating spinal nerve impairments consistent 

with sixth edition methodology.

10

 The Board has long recognized the discretion of OWCP to adopt 

and utilize various editions of the A.M.A., Guides for assessing permanent impairment.11 In 

particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

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

the spine.12

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of the employee’s bilateral lower extremities, warranting a schedule award.

 

5 20 C.F.R. § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

6 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 3.700.2 and 

Exhibit 1 (January 2010).

7

Id. at Chapter 2.808.6; R.M., Docket No. 18-1313 (issued April 11, 2019); C.K., Docket No. 09-2371 (issued 

August 18, 2010).

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

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

10 See G.N., Docket No. 10-0850 (issued November 12, 2010); supra note 6 at Chapter 3.700 (January 2010). The 

Guides Newsletter is included as Exhibit 4.

11 D.S., Docket No. 14-0012 (issued March 18, 2014).

12 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
6

In reports dated June 20 and July 18, 2017, Dr. Fellars, serving as the DMA, noted 

inconsistencies with Dr. Jaffe’s April 11, 2017 second opinion impairment rating as he

documented that the employee had 5/5 strength and normal sensory examination, but also reported 

changes in sensation at L4, L5, and S1. He explained that, although the employee may have had 

significant pain, the record revealed that he had no sensory or motor disturbances on examination 

to establish lower extremity permanent impairment according to proposed Table 2 of The Guides 

Newsletter. Thus, Dr. Fellars concluded that the employee had zero percent lower extremity 

permanent impairment. He reported that the employee had reached MMI on April 11, 2017. 

The Board has carefully reviewed the opinion of Dr. Fellars and finds that his June 20 and 

July 18, 2017 reports were sufficiently rationalized to establish that the employee had zero percent 

lower extremity permanent impairment due to his accepted lumbar injury. Dr. Fellars’ opinion 

was based on a proper factual and medical history, which he reviewed, was based on an accurate 

application of the A.M.A., Guides and The Guides Newsletter, and provided medical rationale for 

his impairment rating. The Board finds that OWCP properly relied on the reports of Dr. Fellars to 

find that the employee did not sustain permanent impairment of his bilateral lower extremities due 

to his accepted lumbar injury.13 Appellant has not provided a rationalized medical opinion to 

dispute Dr. Fellars’ impairment rating or create a conflict in medical opinion regarding whether 

the employee has permanent impairment of his bilateral lower extremities due to his accepted 

lumbar injury.14 As the medical evidence of record was insufficient to establish permanent 

impairment of the employee’s bilateral lower extremities, appellant has not met her burden of 

proof to establish a schedule award claim.

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.

ANALYSIS -- ISSUE 2

The Board finds that this case is not in posture for decision regarding whether appellant 

has met her burden of proof to establish permanent impairment of the employee’s left upper 

extremity causally related to his accepted September 10, 1997 employment injury. 

As explained above, Dr. Fellars opined in his June 20 and July 18, 2017 reports that the 

employee had no permanent impairment of his bilateral upper extremities due to his accepted 

September 10, 1997 lumbar injury. The Board, however, notes that while OWCP referred the 

employee’s schedule award claim to Dr. Fellars and requested an impairment rating based on the 

employee’s accepted lumbar conditions, it failed to ask him to address whether he sustained 

permanent impairment due to his accepted left shoulder trapezius strain condition, for which he 

also requested a schedule award. As counsel pointed out in the February 13, 2018 telephonic

hearing, Dr. Fellars had not mentioned this additional work-related left shoulder condition, nor did 

 

13 See D.B., Docket No. 17-0930 (issued July 11, 2018).

14 When the examining physician does not provide an estimate of impairment conforming to the proper edition of 

the A.M.A., Guides, OWCP may rely on the impairment rating provided by the medical adviser. See P.B., Docket 

No. 17-1046 (issued January 2, 2018).
7

he provide an opinion on whether he sustained permanent impairment to his left upper extremity 

as a result of the September 10, 1997 employment injury.15 The Board notes that Dr. Fellars noted 

that examination of the employee’s left shoulder showed pain with range of motion, tenderness 

over the deltoid and AC joint, and 4/5 muscle strength testing. Dr. Fellars failed to address these 

examination findings even though the sixth edition of the A.M.A., Guides provides for permanent 

impairment of the upper extremity due to left shoulder symptoms, such as shoulder pain and 

shoulder strain.16

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.17 While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.18 As OWCP did not request that Dr. Fellars address whether the employee had 

permanent impairment of his left upper extremity causally related to his September 10, 1997 

employment injury, his report is insufficient to resolve the pertinent schedule award issue in this 

case. The Board, therefore, finds that the case must be remanded to OWCP. On remand OWCP 

should request that Dr. Fellars provide a supplemental report in which he addresses whether the 

employee has permanent impairment in accordance with the sixth edition of the A.M.A., Guides 

and The Guides Newsletter due to all of his accepted September 10, 1997 employment injuries. 

Following this and such further development deemed necessary, OWCP shall issue a de novo 

decision on the employee’s schedule award claim.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of the employee’s bilateral lower extremities, warranting a schedule award. The Board 

also finds that the case is not in posture for decision regarding whether appellant has met her 

burden of proof to establish permanent impairment of the employee’s left upper extremity, 

warranting a schedule award. 

 

15 See B.A., Docket No. 17-1360 (issued January 10, 2018); see also C.S., Docket No. 16-1585 (issued 

August 17, 2017).

16 See A.M.A., Guides, Table 15-5: Shoulder Regional Grid, 401-05.

17 See Vanessa Young, 56 ECAB 575 (2004).

18 Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell, 

34 ECAB 1233, 1237 (1983).
8

ORDER

IT IS HEREBY ORDERED THAT the March 26, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is 

remanded for further action consistent with this decision of the Board.

Issued: July 2, 2019

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