United States Department of Labor

Employees’ Compensation Appeals Board

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G.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Kansas City, MO, Employer

__________________________________________

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Docket No. 19-0063

Issued: June 21, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 9, 2018 appellant filed a timely appeal from a June 13, 2018 merit decision 

and an August 3, 2018 nonmerit 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.2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish more than 

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

schedule award, and more than 0 percent permanent impairment of his left lower extremity; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the August 3, 2018 decision, OWCP and the Board 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.
2

(2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP 

hearing representative. 

FACTUAL HISTORY

On August 24, 1963 appellant, then a 23-year-old distribution clerk, filed a notice of

traumatic injury (Form CA-1) alleging that he had reinjured his back following a September 1962 

employment injury.3 He retired from the employing establishment in 1995. OWCP accepted the 

claim for lumbosacral sprain and authorized medical treatment, including several surgical 

procedures in 1964, 1965, 1994, 1998, 2012, and 2013. In 2014 it expanded acceptance of 

appellant’s claim to include additional conditions of a 1998 lumbar wound infection, L4-5 pseudoarthritis, lumbar post-laminectomy syndrome L4-S1, and lumbar radiculopathy.

By decision dated February 26, 2015, OWCP awarded appellant a schedule award for 10 

percent permanent impairment of his right lower extremity and 0 percent permanent impairment 

of his left lower extremity. The award ran for 28.8 weeks for the period November 13, 2014 to 

June 2, 2015. 

On March 15, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. By decision dated October 21, 2015, an OWCP hearing 

representative denied appellant’s request for an oral hearing. He found that as the injury occurred 

in 1962 there was no right to an oral hearing and the issue in the case could be equally addressed 

by requesting reconsideration. 

On January 20, 2016 appellant filed a claim for an increased schedule award (Form CA-7). 

In a January 28, 2016 report, Dr. M. Stephen Wilson, an orthopedic surgeon, noted the 

history of appellant’s injury, his review of the medical records, and his examination findings. He 

provided an impairment rating pursuant to the sixth edition of the American Medical Association, 

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

4

and The Guides Newsletter, 

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

(July/August 2009) opining that appellant had a total right lower extremity permanent impairment 

of 28 percent and a total left lower extremity permanent impairment of 28 percent. For both the 

right lower and left lower extremities, Dr. Wilson found 11 percent permanent impairment due to 

L4 nerve deficits, 11 percent permanent impairment due to L5 deficits, and 6 percent permanent 

impairment due to S1 nerve deficits, which combined to equal a total permanent impairment of 28 

percent. He also opined that appellant had reached maximum medical improvement (MMI) at the 

time of his examination.

On August 24, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as 

an OWC district medical adviser (DMA), reviewed an updated statement of accepted facts (SOAF) 

 

3 On September 7, 1962 appellant, filed a notice of traumatic injury (Form CA-1) alleging that on that day he 

sustained an acute lumbosacral sprain while bending over and repositioning mail trays in the performance of duty. 

OWCP assigned this File No. xxxxxx227. 

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

and the medical record, including Dr. Wilson’s January 28, 2016 report, which represented the 

date of MMI. The DMA indicated that Dr. Wilson had erroneously combined the impairments for 

appellant’s L4, L5, and S1 radiculopathy instead of using the Combined Values Chart as 

recommended in the A.M.A., Guides and The Guides Newsletter, July/August 2009. He noted that

Dr. Wilson’s examination demonstrated that appellant had impaired sensation in the bilateral L4, 

L5, and S1 dermatomes as well as weakness in the bilateral L4, L5, and S1 innervated muscles. 

Using Dr. Wilson’s examination findings, the DMA opined that appellant had 26 percent total

permanent impairment of the right lower extremity and 26 percent total permanent impairment of 

the left lower extremity. As appellant previously received a schedule award for 10 percent 

permanent impairment of the right lower extremity and 0 percent permanent impairment of the left 

lower extremity, the DMA opined that appellant was entitled to an additional schedule award for 

16 percent permanent impairment of the right lower extremity and 26 percent permanent

impairment of the left lower extremity. 

On February 13, 2017 Dr. Kevin Komes, a Board-certified physiatrist and second opinion 

specialist, noted appellant’s history of injury, reviewed the medical records and presented 

examination findings, which demonstrated weakness in the right L4, L5, and S1 muscles without 

neurologic deficit. He noted that appellant reached MMI on September 15, 2014 and that appellant 

had a previous impairment rating of 10 percent permanent impairment of the right lower extremity 

and zero percent permanent impairment of the left lower extremity. Dr. Komes indicated that there 

were no progressive abnormalities on radiographic studies of the lumbosacral spine that would 

indicate the advancement of any of the accepted conditions. Additionally there was no new 

evidence of pathology in the thoracic, lumbar, or sacral region which should affect any previous 

impairment ratings. Dr. Komes noted that there was significant medical evidence of a progressive 

neuropathy which accounted for appellant’s progressive symptoms. He did not perform an 

impairment calculation.

OWCP forwarded Dr. Komes’ report to Dr. Arthur S. Harris, the DMA. In a March 26, 

2017 report, he rereviewed the medical record, including Dr. Komes’ February 13, 2017 report, 

which he indicated represented the date of MMI. Utilizing Dr. Komes’ findings of weakness in 

the L4, L5, and S1 innervated muscles and The Guides Newsletter July/August 2009, the DMA 

calculated 13 percent permanent impairment of the right lower extremity and 0 percent permanent

impairment to the left lower extremity. As appellant previously received a schedule award for 10 

percent permanent impairment to the right lower extremity, the DMA found that he was entitled 

to an additional award for 3 percent permanent impairment. 

By decision dated June 13, 2018, OWCP awarded appellant an additional three percent 

permanent impairment to the right lower extremity and zero percent permanent impairment to the 

left lower extremity. The award ran for 8.64 weeks for the period February 13 through April 14, 

2017, a fraction of a day.

On June 19, 2018 appellant, through counsel, requested a telephonic hearing of OWCP’s 

June 13, 2018 decision.

By decision dated August 3, 2018, an OWCP hearing representative denied the request for 

an oral hearing. She referenced 5 U.S.C. § 8124 and found a right to a hearing existed for injuries 

occurring after July 4, 1966, and because appellant’s injury occurred on August 24, 1963 he had 
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no right to a hearing. The hearing representative further found that appellant could pursue 

alternative appellate remedies under FECA such as requesting reconsideration before OWCP or 

an appeal to the Board.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA5and its implementing regulations6set 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.

7

 The A.M.A., Guides has been adopted by the 

implementing regulations as the appropriate standard for evaluating schedule losses.8

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

in FECA or in the implementing regulations.9 Neither FECA nor its implementing federal 

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

spine, or the body as a whole; a claimant is not entitled to such a schedule award.10 The Board 

notes that section 8101(19) specifically excludes the back from the definition of organ.11 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.12

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.

13

 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 

 

5 Supra note 1.

6 20 C.F.R. § 10.404.

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Id. 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 2.808.5.a (March 2017).

8

Id.; see C.G., Docket No. 18-0392 (issued August 14, 2018); Jacqueline S. Harris, 54 ECAB 139 (2002).

9 G.S., Docket No. 18-0827 (issued May 1, 2019); Thomas J. Engelhart, 50 ECAB 319 (1999).

10 See C.G., supra note 8; Jay K. Tomokiyo, 51 ECAB 361 (2000).

11 5 U.S.C. § 8101(9).

12 See C.G., supra note 8; W.D., Docket No. 10-0274 (issued September 3, 2016).

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

Impairments Using the Sixth Edition (July/August 2009).
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nerve extremity impairment are incorporated in the Federal (FECA) Procedure Manual.14 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.15

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.16 

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

17

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision. 

In support of his claim for an increased schedule award, appellant submitted a January 28, 

2016 report from Dr. Wilson, who used appropriate tables in the sixth edition of the A.M.A., 

Guides and The Guides Newsletter and opined that appellant had 28 percent permanent impairment 

of both lower extremities. The DMA reviewed Dr. Wilson’s report and concluded, in an 

August 24, 2016 report, that Dr. Wilson erroneously combined the impairments for appellant’s L4, 

L5, and S1 radiculopathy instead of using the Combined Values Chart as recommended in the 

A.M.A., Guides and The Guides Newsletter. He indicated that the correct calculation resulted in 

26 percent permanent impairment of each lower extremity. As appellant previously received 10 

percent permanent impairment to the right lower extremity and zero percent impairment to the left 

lower extremity, the DMA indicated that appellant was entitled to an additional 16 percent 

impairment of the right lower extremity and 26 percent impairment of the left lower extremity. 

OWCP subsequently referred the record to Dr. Komes, a second opinion physician, who 

opined in a report dated February 13, 2017 that the accepted conditions had not significantly

changed appellant’s thoracic, lumbar or sacral pathology, which would result in additional 

impairment. As Dr. Komes did not provide an impairment calculation, the DMA used Dr. Komes’

examination findings and found 13 percent permanent impairment of appellant’s right lower 

extremity and 0 percent permanent impairment of his left lower extremity. This equated to an 

additional award of three percent impairment to the right lower extremity from the original 

schedule award. 

As noted above, if there is disagreement between an employee’s physician and an OWCP 

referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall 

 

14 See supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

15 See C.G., supra note 8; D.S., Docket No. 14-0012 (issued March 18, 2014).

16 5 U.S.C. § 8123(a); see A.G., Docket No. 18-0815 (issued January 24, 2019); A.R., Docket No. 18-0632 (issued 

October 19, 2018).

17 See A.G., id.; C.H., Docket No. 18-1065 (issued November 29, 2018).
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make an examination.18 The Board finds that there is an unresolved conflict in the medical 

evidence regarding the extent of the permanent impairment of appellant’s bilateral lower 

extremities due to his accepted conditions. Therefore, the case must be remanded to OWCP for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence in accordance with 5 U.S.C. § 8123(a). 

After such further development as OWCP deems necessary, it shall issue a de novo

decision.19

CONCLUSION

The Board finds that the case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the June 13, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case remanded for further proceedings consistent with 

this opinion of the Board.

Issued: June 21, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

18 5 U.S.C. § 8123(a); see A.G., supra note 16; G.W., Docket No. 17-0957 (issued June 19, 2017); R.S., Docket No. 

10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).

19 In light of the disposition of the first issue, the second issue is rendered moot.