United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS

SERVICE, Laredo, TX, Employer

__________________________________________

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Docket No. 17-1504

Issued: May 25, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 27, 2017 appellant filed a timely appeal from a February 7, 2017 merit decision 

and a March 31, 2017 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.

ISSUES

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

impairment of his lower extremities due to his accepted employment injuries, thereby warranting 

a schedule award; and (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 17, 2005 appellant, then a 39-year-old supervisory deputy marshal, injured his 

low back when performing training exercises in the performance of duty. He did not stop work. 

OWCP accepted the claim for lumbar sprain/strain and later expanded acceptance of the claim to 

include displaced lumbar disc without myelopathy and aggravation of lumbar degenerative disc 

disease. Appellant underwent an authorized lumbar fusion on February 15, 2007.

An initial magnetic resonance imaging (MRI) scan of the lumbar spine on August 29, 

2005 revealed mild generalized disc bulge with evidence of an annular tear at L5-S1 and 

desiccated intervertebral disc spaces at L4-5 and L5-S1. On February 15, 2007 Dr. Lloyd A. 

Youngblood, a Board-certified neurosurgeon, performed a decompressive laminectomy, partial 

medial facetectomy, foraminotomy, and nerve root decompression bilaterally at L4, L5, and S1 

nerve roots; posterior lumbar interbody fusion; and microsurgical repair of dural defect at right 

L5. On April 5, 2007 Dr. Youngblood noted that appellant was doing well postoperatively. He 

noted residual L5 radiculopathy on the right, but his preoperative pain had largely resolved.

Dr. Youngblood returned appellant to light-duty work on April 16, 2007, part time, four hours a 

day.2

Appellant was treated by Dr. Robert G. Johnson, a Board-certified neurosurgeon and 

associate of Dr. Youngblood, on September 3, 2009 and March 2, 2010, who noted appellant’s 

surgery history and advised that appellant was doing well with only minimal neuritic pain in his 

right leg. On March 15, 2012 Dr. Johnson advised that appellant reported one episode of intense 

muscle spasm that had lasted five weeks, but had resolved. Appellant continued to cycle over 

100 miles a week and perform core exercises. Dr. Johnson noted that appellant was 

neurologically intact and in good physical condition. March 15, 2012 lumbar spine x-rays 

showed stable postoperative changes. 

On October 28, 2015 appellant filed a claim for a schedule award (Form CA-7). He 

submitted an undated impairment evaluation from Dr. Richard Radecki, a Board-certified 

physiatrist, which was based on a September 25, 2015 examination.

3

 Appellant presented with 

mild pain of the mid-back region in the lumbar area, some radiating pain into his legs, weakness, 

and left leg numbness. Dr. Radecki noted that appellant underwent fusion surgery without 

difficulties and was released back to full-time duty on July 10, 2007. He advised that appellant 

had reached maximum medical improvement (MMI). Dr. Radecki noted findings of no antalgic 

gait, negative straight leg raise in the seated position bilaterally, manual muscle testing of 5/5, no 

muscle atrophy, mild discomfort in the lumbar paraspinals bilaterally, intact transitional 

movements, intact sensation, and negative clonus, Babinski, and Romberg testing. He diagnosed 

status post multilevel fusion performed for degenerative disc changes and work-related injury.

Dr. Radecki opined that appellant had six percent whole person impairment pursuant to the

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

4

(A.M.A., 

 

2 Appellant eventually returned to full duty. He did not claim wage-loss compensation.

3 No medical evidence was submitted to the record after the March 15, 2012 reports until Dr. Radecki’s report.

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

Guides). He noted that pursuant to Table 17-6, appellant had a grade modifier 1 for descriptions 

of pain with strenuous or vigorous activity. For physical examination appellant had a grade

modifier of zero and clinical studies grade modifier was not utilized as it was used to make the 

diagnosis. Dr. Radecki diagnosed alteration of multiple segment levels status postsurgery. He

referenced Table 17-4, page 570 and indicated that using the lumbar spine regional grid system, 

appellant was a class 1 equal to single or multiple level medically documented findings with or 

without surgery resolution of radiculopathy or nonverifiable radicular pain at appropriate clinical 

levels. Dr. Radecki noted the default impairment was seven percent whole person. He advised 

that the neck grade modifier equalization would be -1 which yielded impairment of six percent 

whole person. Dr. Radecki opined that, under the A.M.A., Guides, appellant sustained six

percent whole person impairment.

In a November 19, 2015 letter, OWCP advised Dr. Radecki that, under FECA, awards for 

permanent impairment may not be paid for the spine, but that awards could be paid for 

impairment of the upper or lower extremities caused by injury to a spinal nerve. Therefore, if a 

work-related spinal nerve injury caused impairment to the extremities, he could render an 

impairment rating of the affected extremities by using the article entitled “Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition,” which was published in the July/August 2009 

The Guides Newsletter, a supplemental publication of the A.M.A., Guides. OWCP requested a 

supplemental report based on the foregoing. No response was received from Dr. Radecki.

On September 8, 2016 an OWCP medical adviser reviewed Dr. Radecki’s report. He 

noted that Dr. Radecki’s examination did not demonstrate any neurologic deficit in either leg and 

that appellant had normal gait mechanics. The medical adviser indicated that Dr. Radecki 

calculated his impairment rating based on Table 17-4, page 570-74 of the A.M.A., Guides which 

provides whole person impairment for mechanical low back pain, radiculopathy, and 

documented spinal pathology on diagnostic studies including an MRI scan. However, OWCP 

and FECA provide schedule awards only for the loss of use/impairments in the lower extremities 

and not for spinal pain. The medical adviser noted appellant’s diagnosed condition was status 

post posterior lumbar interbody fusion L4-S1 on February 15, 2007. He concluded that, under

the A.M.A., Guides, appellant had no impairment of the lower extremities resulting from the

accepted work injury of August 17, 2005. The date of MMI was noted as September 25, 2015, 

the date of Dr. Radecki’s evaluation. 

By decision dated September 14, 2016, OWCP denied appellant’s claim for a schedule 

award. It found that the evidence of record did not establish that appellant sustained permanent 

impairment of a scheduled member due to his accepted injury. On September 19, 2016 OWCP’s

decision was returned to sender as undeliverable. On February 7, 2017 OWCP reissued the 

September 19, 2016 decision and mailed it to appellant’s current address. 

On March 6, 2017 appellant requested reconsideration. In a February 21, 2017 statement,

he disagreed with the September 14, 2016 decision and requested reconsideration. Appellant

asserted that the Social Security Administration allowed impairment consistent with his injury 

and that the A.M.A., Guides allowed ratings for whole person impairment. He asserted that,

pursuant to the A.M.A., Guides, permanent impairments, including his back fusion, were to be 

rated. Appellant requested that an impairment rating be obtained from the physician who 
4

performed his surgery. He also resubmitted OWCP’s medical adviser’s September 8, 2016

report and OWCP’s September 14, 2016 decision. 

By March 31, 2017 decision, OWCP denied appellant’s request for reconsideration as the 

evidence submitted was insufficient to warrant a merit review.

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. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of

the A.M.A., Guides is May 1, 2009.8

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 A 

schedule award is not payable for the loss, or loss of use, of a part of the body that is not 

specifically enumerated under FECA.10 Moreover, neither FECA nor its implementing 

regulations provide for a schedule award for impairment to the back or to the body as a whole. 

Furthermore, the back is specifically excluded from the definition of organ under FECA.11

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.12

 

5 5 U.S.C. § 8107. 

6 20 C.F.R. § 10.404 (1999). 

7

Id.

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

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

Chapter 2.808.5a (February 2013).

9 Pamela J. Darling, 49 ECAB 286 (1998). 

10 Thomas J. Engelhart, 50 ECAB 319 (1999). 

11 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990). 

12 Supra note 10. 
5

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

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) (hereinafter The Guides Newsletter) is to be applied.13 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.14 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.15

ANALYSIS -- ISSUE 1

OWCP accepted that appellant sustained a work-related sprain/strain of the lumbar 

region, displaced lumbar disc without myelopathy, and aggravation of lumbar degenerative disc 

disease. Appellant underwent a lumbar fusion on February 15, 2007. On October 28, 2015 he

claimed a schedule award. OWCP denied appellant’s claim, finding that the medical evidence of 

record was insufficient to establish permanent impairment of a scheduled body member due to 

the accepted conditions.

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

impairment of his lower extremities due to his accepted employment injuries and, therefore, a 

schedule award is not warranted.

In support of his claim, appellant submitted a report from Dr. Radecki who found that 

appellant had six percent whole person permanent impairment under the sixth edition of the 

A.M.A., Guides. In making this determination, Dr. Radecki referenced Table 17-4 (Lumbar 

Spine Regional Grid) beginning on page 570. On November 19, 2015 OWCP advised

Dr. Radecki that awards for permanent impairment could not be paid for the spine under FECA. 

It requested that he provide a calculation for any affected extremities pursuant to the 

July/August 2009 The Guides Newsletter. Dr. Radecki did not respond to this request.

Thereafter, OWCP referred the case for review by an OWCP medical adviser. Its

procedures provide that, after obtaining all necessary medical evidence, the file should be routed 

to an OWCP medical adviser for an opinion concerning the nature and percentage of impairment 

in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the 

percentage of impairment specified.16

 

13 See G.N., Docket No. 10-0850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3 

-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4. 

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

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

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

Chapter 2.808.6(f) (February 2013). 
6

The Board finds that the medical adviser properly determined that appellant had no 

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

A.M.A., Guides and The Guides Newsletter. In his September 8, 2016 report, the medical 

adviser properly indicated that that Dr. Radecki’s opinion on lower extremity impairment of the 

lumbar spine was deficient because he improperly applied the standards of Table 17-4

17 to find 

lumbar spine impairment, rather than applying the standards of The Guides Newsletter. The 

Board has held that The Guides Newsletter provides the standards for evaluating any permanent 

impairment in the lower extremities referable from the lumbar spine.18 The medical adviser 

found no basis under The Guides Newsletter to rate impairment of either leg, noting that

Dr. Radecki did not report any neurologic deficit in either leg, and that appellant had normal gait 

mechanics.

Because Dr. Radecki’s impairment evaluation was not conducted in accordance with the 

standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter, it is of limited 

probative value and insufficient to establish that appellant has lower extremity impairment

attributable to his accepted conditions.19 Appellant has not submitted probative medical 

evidence sufficient to establish lower extremity impairment under The Guides Newsletter. Thus 

a schedule award is not warranted. 

On appeal appellant notes that Dr. Radecki submitted an impairment rating, but failed to 

mention that appellant developed lumbar spinal stenosis as a result of his back fusion. He noted 

experiencing ongoing leg symptoms requested a follow up visit with one of his physicians to 

confirm his symptoms and to obtain an impairment rating. As found, Dr. Radecki’s opinion is of 

limited probative value as he did not follow The Guides Newsletter. In a letter dated 

November 19, 2015, OWCP requested that Dr. Radecki provide an impairment rating based on 

applicable tables found in The Guides Newsletter, but he did not respond to this request. This 

decision does not preclude appellant from obtaining additional medical evidence and further 

pursuing the matter.

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.

LEGAL PRECEDENT -- ISSUE 2

Under section 8128(a) of FECA,20 OWCP has the discretion to reopen a case for review 

on the merits. It must exercise this discretion in accordance with the guidelines set forth in 

section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may 

 

17 See A.M.A., Guides 570, Table 17-4. 

18 See supra note 13.

19 See Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based upon the standards 

adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative 

value in determining the extent of a claimant’s impairment). 

20 5 U.S.C. § 8128(a).
7

obtain review of the merits of his or her written application for reconsideration, including all 

supporting documents, sets forth arguments and contain evidence which:

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or

“(ii) Advances a relevant legal argument not previously considered by OWCP; or

“(iii) Constitutes relevant and pertinent new evidence not previously considered 

by OWCP.”

21

Section 10.608(b) provides that any application for review of the merits of the claim 

which does not meet at least one of the requirements listed in section 10.606(b) will be denied by 

OWCP without review of the merits of the claim.22

ANALYSIS -- ISSUE 2

OWCP denied appellant’s schedule award claim because he failed to submit evidence 

sufficient to establish permanent impairment of a scheduled member due to his accepted work 

injury. Thereafter, it denied his reconsideration request, without conducting a merit review. 

The issue presented on appeal is whether appellant met any of the requirements of 

20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the 

claim. In his request for reconsideration, appellant did not show that OWCP erroneously applied 

or interpreted a specific point of law. He submitted a statement dated February 21, 2017 and 

stated his disagreement with the February 7, 2017 decision denying his claim for a schedule 

award. Appellant contended that the A.M.A., Guides and the Social Security Administration 

allowed whole person impairment. He asserted that pursuant to the A.M.A., Guides permanent 

impairments such as his back fusion were to be rated. Appellant requested that an impairment 

rating be obtained from the physician who performed his surgery. These assertions do not show 

a legal error by OWCP or a new and relevant legal argument. As noted, a schedule award is not 

payable for the loss, or loss of use, of a part of the body that is not specifically enumerated under 

FECA.23 Neither FECA nor its implementing regulations provide for a schedule award for 

impairment to the back or to the body as a whole and the back is specifically excluded from the 

definition of organ under FECA.24 The Board has also held that information regarding other 

federal agencies is not dispositive with regard to questions arising under FECA.25 Thus, these 

assertions do not show a legal error by OWCP or a represent a new and relevant legal argument.

 

21 20 C.F.R. § 10.606(b)(3).

22 Id. at § 10.608(b).

23 Supra note 10.

24 Supra note 11.

25 D.I., 59 ECAB 158, 162 (2007).
8

The underlying issue in this case is whether appellant submitted sufficient evidence to 

establish he sustained permanent impairment to a scheduled member due to his accepted work 

injury. That is a medical issue which must be addressed by relevant new medical evidence.26 

However, appellant did not submit any pertinent new and relevant medical evidence in support 

of his claim.

Appellant resubmitted an OWCP medical adviser’s report and an OWCP decision. 

However, this evidence is duplicative of evidence previously submitted and considered by 

OWCP. Evidence that repeats or duplicates evidence already in the case record has no 

evidentiary value and does not constitute a basis for reopening a case.27 Therefore, these reports 

are insufficient to require OWCP to reopen the claim for a merit review. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, 

or submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION

The Board finds that appellant failed to meet his burden of proof to establish permanent 

impairment of his lower extremities due to his accepted employment injuries, thereby warranting 

a schedule award. The Board further finds that OWCP properly denied his request for 

reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). 

 

26 See Bobbie F. Cowart, 55 ECAB 746 (2004).

27 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984).
9

ORDER

IT IS HEREBY ORDERED THAT the March 31 and February 7, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: May 25, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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