United States Department of Labor

Employees’ Compensation Appeals Board

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J.F., Appellant

and

DEPARTMENT OF COMMERCE, NATIONAL 

OCEANIC & ATMOSPHERIC 

ADMINISTRATION, Greer, SC, Employer

__________________________________________

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Docket No. 18-0993

Issued: July 2, 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 April 16, 2018 appellant filed a timely appeal from a January 24, 2018 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 met his burden of proof to establish more than three percent 

permanent impairment of the right lower extremity, for which he previously received a schedule 

award.

FACTUAL HISTORY

On August 25, 2014 appellant, then a 49-year-old electronics technician, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, he sustained a back injury when his 

government vehicle was hit from behind while traveling to a job site while in the performance of 

duty. He stopped work. OWCP accepted appellant’s claim for lumbar sprain and thoracic or 

lumbosacral radiculitis. It later expanded his claim to include a broken tooth (No. 29).

In a February 11, 2016 report, Dr. Philip Julius Hodge, a Board-certified neurological 

surgeon, noted a date of injury of August 25, 2014. Upon examination of appellant’s lumbar spine, 

he reported positive for back pain. Neurological examination was intact. Dr. Hodge reported that 

according to the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),3appellant had seven percent permanent impairment of

the spine. He noted that appellant had reached maximum medical improvement (MMI). 

Appellant also received treatment from Dr. David L. Shallcross, Board-certified in 

physical medicine and rehabilitation, who, in a February 16, 2016 office visit report, noted that 

examination of appellant’s lumbar spine showed diminished range of motion in flexion and 

extension. Dr. Shallcross indicated that appellant had reached MMI and had 10 percent spinal and 

10 percent whole person impairment. 

In an August 5, 2016 report, Dr. Charles Christopher Kanos, a Board-certified neurological 

surgeon, diagnosed lumbar pain with radiation down both legs and lumbar spondylolisthesis. 

Upon physical examination of appellant’s lumbar spine, Dr. Kanos observed tenderness and 

normal lower extremity strength. He reported: “I agree with the [seven] [percent] impairment to 

[appellant’s] lumbar spine and that he is at MMI.”

In letters dated February 8 and 15, 2017, Dr. Kanos opined that appellant had additional 

diagnosis of grade 1 L5-S1 spondylolisthesis, as seen on a September 8, 2014 lumbar spine MRI 

scan. He opined that appellant’s diagnoses were related to his injury since he did not have 

symptoms prior to his injury. Dr. Kanos reported that appellant had seven percent permanent 

impairment to the right lower extremity due to his lumbar radiculopathy.

On March 17, 2017 appellant filed a claim for schedule award (Form CA-7). He noted that

Dr. Hodge and Dr. Kanos provided permanent impairment ratings of 7 percent and Dr. Shallcross 

provided a permanent impairment rating of 10 percent. 

 

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

On April 7, 2017 OWCP routed the case file to Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review as to whether 

appellant sustained permanent impairment as a result of his accepted lumbar injury.

In an April 10, 2017 report and letter, Dr. Kanos explained: “I think [appellant] [has] had 

MMI and I would relate it to [February 11, 2016], which was Dr. Hodge’s initial date.” He 

reported that, based on Chapter 3.700 exhibit 4 of OWCP’s Federal (FECA) Procedure Manual,

appellant’s impairment to the right lower extremity was 10 percent. 

In an April 11, 2017 report, Dr. Harris indicated that he reviewed appellant’s case, 

including Dr. Kanos’ August 5, 2016 and February 15, 2017 impairment rating reports. He noted 

his disagreement with Dr. Kanos’ rating of seven percent permanent impairment of the lumbar 

spine and/or lower extremity. Dr. Harris explained that he disagreed with Dr. Kanos’ impairment 

rating because Dr. Kanos did not provide any explanation for his conclusion. He related that he 

calculated appellant’s impairment based on the information in the August 5, 2016 report, which 

revealed decreased light touch sensation in appellant’s right L4, L5, and S1 dermatomes, and did 

not appear to be severe in nature. 

Dr. Harris reported that appellant’s accepted conditions were lumbar sprain and 

thoracic/lumbosacral radiculitis. Utilizing The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), he opined that 

appellant had one percent permanent impairment of the lower extremity for residual problems with 

mild pain/impaired sensation from right L4 lumbar radiculopathy (CDX 1C). Dr. Harris also 

reported that appellant had one percent impairment of the lower extremity for residual problems 

with mild pain/impaired sensation from right L5 lumbar radiculopathy (CDX 1C). He also noted 

one percent impairment of the lower extremity for residual problems with mild pain/impaired 

sensation from his S1 lumbar radiculopathy (CDX 1C). Dr. Harris calculated that appellant had a 

total of three percent right lower extremity impairment. He noted a date of MMI of 

February 15, 2017.

In a letter dated April 25, 2017, OWCP informed Dr. Kanos that it had received his 

April 10, 2017 letter, which noted that appellant had 10 percent permanent impairment of the right 

lower extremity. It requested that Dr. Kanos review and comment on the April 11, 2017 DMA 

impairment rating report. OWCP afforded him 30 days to submit the requested information. No 

reply was received within 30 days. 

By decision dated June 13, 2017, OWCP granted appellant a schedule award for three 

percent right lower extremity impairment based on Dr. Harris’ impairment rating. The period of 

the award, equivalent to 8.64 weeks, ran from February 15 to April 16, 2017. 

On July 10, 2017 appellant requested an oral hearing before a representative of OWCP’s

Branch of Hearings and Review, which was held on December 4, 2017. 

In a January 10, 2018 report, Dr. Kanos indicated that appellant had 10 percent permanent 

impairment of the right lower extremity, which was the sole impairment of the right lower 

extremity resulting from the August 25, 2014 work injury. He also indicated that appellant reached 

MMI as of February 11, 2016. Dr. Kanos related that appellant’s subjective complaints included 
4

constant right low back pain with right leg pain and numbness. He further noted that appellant’s 

objective findings included a lumbar MRI scan, which showed L5-S1 spondylolisthesis with 

stenosis. 

By decision dated January 24, 2018, an OWCP hearing representative affirmed the 

June 13, 2017 schedule award decision. He found that the weight of the medical evidence rested 

with the opinion of Dr. Harris, an OWCP medical adviser, who opined in his June 11, 2017 report 

that appellant had three percent permanent impairment of his right lower extremity due to his workrelated lumbar injury. The hearing representative further noted that, although appellant’s treating 

physicians provided several opinions regarding the degree of permanent impairment, none of them 

provided measurements, citations, and calculations to support the opinions rendered. 

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set 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 

specify the manner in which the percentage of loss of a member shall be determined. For consistent 

results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., 

Guides as the uniform standard applicable to all claimants and the Board has concurred in such 

adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.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 Furthermore, the 

back is specifically excluded from the definition of organ under FECA.9 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 

impairments consistent with sixth edition methodology. For peripheral nerve impairments to the 

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

Guides Newsletter is to be applied.10

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. at 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010).

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

10 Supra note 8 at Chapter 3.700. The Guides Newsletter is included as Exhibit 4.
5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than three 

percent permanent impairment of the right lower extremity impairment, for which he previously 

received a schedule award.

In support of his claim, appellant submitted several medical reports from his physicians

containing opinions on the issue of permanent impairment. In a February 16, 2016 report,

Dr. Shallcross opined that appellant had reached MMI and had 10 percent spinal impairment. In 

a February 11, 2016 report, Dr. Hodge related that according to the sixth edition of the A.M.A., 

Guides appellant had seven percent impairment to the spine. As noted above, however, neither 

FECA nor its regulations provide for a schedule award for impairment to the back or to the body 

as a whole.11 Because Dr. Shallcross and Dr. Hodge determined appellant’s impairment rating as 

pertaining to his lumbar spine, which is not recognized under FECA, these reports are of no 

probative value. 

Appellant was also treated by Dr. Kanos. In an August 5, 2016 report, Dr. Kanos reported 

that appellant had reached MMI. In an April 10, 2017 report and letter, he related that based on 

Chapter 3.700 exhibit 4, appellant’s impairment to the right lower extremity was 10 percent.

Dr. Kanos, however, did not provide any medical rationale or explain the protocols that he used in 

making his impairment determination. The Board has held that when the attending physician fails 

to provide an estimate of impairment confirming to the A.M.A., Guides or does not discuss how 

he arrives at the degree of impairment based on physical findings, his opinion is of diminished 

probative value in establishing the degree of impairment.12 

In an April 11, 2017 report, Dr. Harris, the DMA, reviewed appellant’s case file, including

Dr. Kanos’ seven percent impairment rating, and disagreed with his findings. The Board has 

reviewed the opinion of Dr. Harris and finds that his April 11, 2017 report was sufficiently wellrationalized to establish that appellant had three percent permanent impairment of the right lower 

extremity. Dr. Harris’ opinion was based on a proper factual and medical history, which he 

reviewed, and on the proper tables and procedures in the A.M.A., Guides. He referenced The 

Guides Newsletter and explained that appellant had three percent permanent impairment of the 

right lower extremity. 

The Board finds that OWCP properly relied on the report of Dr. Harris to find that appellant 

did not establish more than three percent permanent impairment of the right lower extremity due 

to his accepted lumbar injury.13 Dr. Harris based his impairment rating on the medical evidence 

in the record, correctly applied the A.M.A., Guides and The Guides Newsletter, and provided 

medical rationale for his impairment rating. As appellant has not provided a rationalized medical 

opinion to dispute Dr. Harris’ impairment rating or create a conflict in medical opinion, the Board 

 

11 Supra note 7.

12 See L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 552 (1997).

13 See D.B., Docket No. 17-930 (issued July 11, 2018).
6

finds that he has not established more than three percent permanent impairment of the right lower 

extremity due to his accepted lumbar injury.14

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 his burden of proof to establish more than three 

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 2, 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

 

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).