United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.P., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Orlando, FL, 

Employer

__________________________________________

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Docket No. 19-1118

Issued: October 25, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 27, 2019 

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.3

 

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.

3 The Board notes that following the March27, 2019 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.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On September 23, 2017 appellant, then a 55-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she injured both her right knee and middle to lower back that same date 

while in the performance of duty. She explained that she had adjusted the height of her stool and 

when she went to sit on it, the stool fell down. OWCP accepted appellant’s claim for cervical 

sprain, lower back strain, and right knee sprain. 

On August 8, 2018 appellant filed a claim for a schedule award (Form CA-7).

In a July 12, 2018 report Dr. Matthew D. Imfield, a Board-certified physiatrist, performed 

an examination of appellant’s lower extremities noting symmetric manual muscle testing, 

symmetric sensation, symmetric reflexes, and a negative straight leg raising test. An 

electromyogram (EMG) demonstrated results consistent with bilateral S1 radiculopathy with no 

acute changes. Dr. Imfield noted that the findings were consistent with an old injury or stenosis. 

The EMG also demonstrated no evidence for peripheral neuropathy; findings consistent with 

compression of the lateral popliteal neuropathy at the left fibular head; or findings consistent with 

bilateral compression of the medial plantar, lateral plantar, and Baxter’s nerve.

On July 19, 2018 Dr. David P. Kalin, a Board-certified family practitioner, indicated that 

he had utilized the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

4 and determined that appellant’s bilateral lumbar 

radiculopathy had resulted in five percent whole-body permanent impairment. He opined that 

appellant had reached maximum medical improvement (MMI) on July 19, 2018. Dr. Kalin noted 

that appellant had multiple preexisting morbidities, which had caused impairment. On 

examination he noted “full range of motion with minimal guarding” of the bilateral shoulders and 

all other extremities were within normal limits; a vertical postsurgical incision over the right knee; 

and diminished sensation circumferentially around the right knee, which was otherwise normal. 

Dr. Kalin diagnosed chronic cervical musculoskeletal ligamentous strain with multilevel mild 

degenerative spondylosis with facet arthropathy and postoperative changes following anterior 

cervical discectomy and fusion of C5-6 without evidence of hardware complication; mild rightsided neural foraminal stenosis; a history of post-traumatic bilateral lumbar radiculopathy; chronic 

cervicothoracic musculoskeletal ligamentous strain; a history of post-traumatic pain and “limited 

range of motion” with the bilateral shoulders; status post right knee replacement on April 14, 2016; 

history of cervicothoracic and thoracolumbar levoscoliosis; and status post left foot surgery for 

flat feet.

On September 10, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed Dr. Kalin’s July 19, 2018 report, the medical 

evidence of record, and a statement of accepted facts (SOAF). He found that Dr. Kalin’s 

impairment evaluation could not be considered probative for schedule award purposes under 

FECA, because he referenced no tables and provided no worksheets, narrative, or calculations to 

 

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

explain the method by which he arrived at his determination. The DMA further noted that FECA 

did not allow a schedule award for the spine, nor did it recognize whole person impairment. 

Referring to Dr. Kalin’s findings on physical examination on July 19, 2018, as well as

Dr. Imfield’s findings on July 12, 2018, he rendered impairment evaluations of the right and left 

lower extremities utilizing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment 

Using the Sixth Edition (July/August 2009) (The Guides Newsletter). The DMA noted that

Dr. Kalin had described strength within normal limits and diminished sensation around the right 

knee that was otherwise normal, which was consistent with a total knee replacement, but not spinal 

nerve dermatomal loss. Using Proposed Table Two for spinal nerve impairment resulting in lower 

extremity impairment, he noted no motor deficit for spinal nerves L3-5 and S1, resulting in a 

class 0 impairment for both lower extremities with a default value of zero and no net adjustment. 

As such, the DMA calculated zero percent impairment of the right and left lower extremities.

By decision dated October 1, 2018, OWCP denied appellant’s schedule award claim 

finding that she had not met her burden of proof to establish, through the medical evidence of 

record, permanent impairment of a scheduled member or function of the body.

On October 9, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.

In a follow-up report dated November 28, 2018, Dr. Kalin requested a diagnosis update for 

lumbosacral strain and lumbar radiculopathy, noting that Dr. Imfield had confirmed lumbar 

radiculopathy by EMG. On examination, he observed minimal swelling, full range of motion, and 

normal neurovascular status of the bilateral hands. 

The hearing took place on January 25, 2019. During the hearing, counsel noted that

Dr. Imfield’s July 12, 2018 electrodiagnostic testing report had been submitted to the record. 

OWCP’s hearing representative held the case record open for at least 30 days for the submission 

of additional evidence. No evidence was received.

By decision dated March 27, 2019, OWCP’s hearing representative affirmed the 

October 1, 2018 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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 

 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
4

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

Neither FECA nor its regulations provide for a schedule award for impairment to the back 

or to the body as a whole.9 Furthermore, the back is specifically excluded from the definition of 

organ under FECA.10 The sixth edition of the A.M.A., Guides does not provide a separate 

mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that 

FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter

offers an approach to rating spinal nerve impairment consistent with the sixth edition methodology.

For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, 

OWCP procedures indicate that The Guides Newsletter is to be applied.11 The Board has 

recognized the adoption of this methodology for rating extremity impairment 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

The claimant has the burden of proof to establish that the condition for which a schedule 

award is sought is causally related to his or her employment.13

ANALYSIS

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

impairment of a scheduled member or function of the body, warranting a schedule award. 

On July 12, 2018 Dr. Imfield conducted an electrodiagnostic consultation with regard to 

appellant’s lower extremities. On examination he noted symmetric manual muscle testing, 

symmetric sensation, symmetric reflexes, and a negative straight leg raising test. An EMG 

demonstrated results consistent with bilateral S1 radiculopathy with no acute changes. Dr. Imfield

noted that the findings were consistent with an old injury or stenosis. 

In a report dated July 19, 2018, Dr. Kalin indicated that he had utilized the sixth edition of 

the A.M.A., Guides to determine that appellant’s bilateral lumbar radiculopathy had resulted in 

five percent whole-body permanent impairment. He opined that appellant had reached MMI on

July 19, 2018. In accordance with its procedures, OWCP properly referred the evidence of record 

to its DMA, Dr. Katz. Dr. Katz found, in a September 10, 2018 report, that the impairment 

 

7

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700.2 and Exhibit 1 (January 2010).

9

See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

10 See 5 U.S.C. § 8101(19); see also G.S.,Docket No. 18-0827 (issued May 1, 2019); FrancescoC. Veneziani, 48 

ECAB 572 (1997).

11 Supra note 9at Chapter 3.700 (January 2010). The Guides Newsletteris included as Exhibit 4.

12 See E.D., Docket No. 13-2024 (issued April24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

13 See G.S.,supra note 10; Veronica Williams, 56 ECAB 367 (2005).
5

evaluation of Dr. Kalin could not be considered probative for the purpose of recommending a 

schedule award under FECA because he referenced no tables and provided no worksheets, 

narrative, or calculations to explain the method by which he arrived at his determination. The 

DMA also correctly noted that FECA does not allow a schedule award for the spine, nor does it 

recognize whole person permanent impairment. Referring to Dr. Kalin’s physical examination 

findings from the July 19, 2018 examination, as well as Dr. Imfield’s findings from July 12, 2018, 

the DMA rendered impairment evaluations of the right and left lower extremities utilizing the 

A.M.A., Guides and The Guides Newsletter. Dr. Imfield noted that Dr. Kalin had described 

strength within normal limits and diminished sensation around the right knee that was otherwise 

normal, which was consistent with a total knee replacement, but not spinal nerve dermatomal loss. 

Using Proposed Table Two for spinal nerve impairment resulting in lower extremity impairment, 

he noted no motor deficit for spinal nerves L3-5 and S1, resulting in a class 0 impairment for both 

lower extremities with a default value of zero and no net adjustment. As such, the DMA calculated 

zero percent impairment of the right and left lower extremities.

The Board finds that the DMA applied the appropriate tables and grading schemes of the 

sixth edition of the A.M.A., Guides and The Guides Newsletter to the clinical findings of 

Drs. Kalin and Imfield. The DMA’s calculations were mathematically accurate and there is no 

medical evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., 

Guides and The Guides Newsletter demonstrating a percentage of permanent impairment. The 

Board finds that he explained that Dr. Kalin’s rating was improperly based on whole person 

impairment and that he had not explained the method by which he arrived at his percentage of 

impairment, and that FECA does not allow a schedule award for the spine. The DMA further 

noted that clinical findings for the lower extremities had been normal, with diminished sensation 

around the right knee attributable to prior right knee replacement. The Board finds that the DMA

properly determined that appellant had zero percent permanent impairment of the lower 

extremities.14

Appellant has submitted no other medical evidence in conformance with the sixth edition 

of the A.M.A., Guides or The Guides Newsletter, establishing permanent impairment of a 

scheduled member or function of the body. The Board therefore finds that she has not met her

burden of proof to establish her claim for a schedule award. 

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 met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

 

14 See id.
6

ORDER

IT IS HEREBY ORDERED THAT the March 27, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 25, 2019

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