United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

F.S., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Beaumont, TX, Employer 

__________________________________________ 

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Docket No. 16-0783 

Issued: September 26, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 March 9, 2016 appellant filed a timely appeal from a December 22, 2015 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. 

ISSUES 

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

percent permanent impairment of his right upper extremity, for which he previously received 

schedule awards; and (2) whether appellant met his burden of proof to establish permanent 

impairment of his lower extremities due to his accepted lumbar conditions. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 11, 2005 appellant, then a 46-year-old unit manager, filed a traumatic injury 

claim (Form CA-1), assigned OWCP File No. xxxxxx921, alleging that on August 9, 2005 he 

sustained a lower back injury at work. He noted that he felt a pull in his lower back while 

running from the front lobby in response to a body alarm. Appellant did not stop work. OWCP 

accepted his claim for sprain/strain of the lumbar region.2

On September 21, 2007 appellant filed a traumatic injury claim (Form CA-1) alleging 

that on the same date he sustained back and shoulder injuries at work when he fell from a chair 

to the floor. He stopped work on September 21, 2007 and returned to light-duty work in lateNovember 2007. Under File No. xxxxxx277, OWCP accepted that appellant sustained a sprain 

of his lumbar region and a strain of his right shoulder.3 

Under File No. xxxxxx277, appellant filed a notice of recurrence (Form CA-2a) on 

November 3, 2009 alleging that on the same date he sustained a recurrence of disability due to 

his accepted September 21, 2007 work injury. He noted having intense back pain and indicated 

that he experienced increased difficulty when engaging in lifting, navigating stairs, standing, and 

sitting at work. OWCP considered appellant’s recurrence claim to be a claim for a new injury 

sustained on November 3, 2009 and, under File No. xxxxxx980, it accepted that he sustained 

displacement of lumbar intervertebral disc without myelopathy, lumbosacral radiculitis (not 

otherwise specified), and closed dislocation of his right shoulder (unspecified). 

On April 8, 2011 appellant underwent OWCP-authorized arthroscopy and acromioplasty 

of his right shoulder. 

The findings of a February 17, 2012 magnetic resonance imaging (MRI) scan of 

appellant’s lumbar spine contained an impression of L3-4 bilateral facet hypertrophy, herniated 

disc at L4-5 into the floor of both neural foramina, foraminal stenosis on the left, and 

degenerative changes throughout the spine. 

On January 29, 2013 appellant filed a claim for a schedule award (Form CA-7) due to his 

September 21, 2007 work injury. 

 2

 The Board notes that OWCP File Number xxxxxx921 is the master file for the present case and that the other 

files mentioned in this decision are subsidiary files of the master file. 

3

 Under OWCP File No. xxxxxx345, OWCP also accepted that on August 5, 2009 appellant sustained tears of the 

lateral and medial menisci of his right knee and right hip/thigh contusions due to stepping into a ditch at work. On 

March 8, 2011 appellant underwent OWCP-approved right knee surgery, including arthroscopic chondroplasty of 

the patellofemoral joint, partial medial meniscectomy, and partial lateral meniscectomy. In an August 13, 2012 

report, an OWCP medical adviser provided a rating of 10 percent permanent impairment of the right lower extremity 

using the diagnosis-based impairment (DBI) rating method (right partial medial/lateral meniscectomies) under the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (A.M.A., Guides). In a September 13, 2012 decision, OWCP granted appellant a schedule award for 10 

percent permanent impairment of his left lower extremity. However, on September 17, 2014, OWCP amended its 

September 13, 2012 decision to reflect that he actually had 10 percent permanent impairment of his right lower 

extremity. The Board notes that the permanent impairment of appellant’s right lower extremity due to the right knee 

condition he sustained on August 5, 2009 is not the subject of the present appeal. 
3

In a February 8, 2013 report, Dr. Jennifer Johnson-Caldwell, an attending Board-certified 

internist, noted that appellant reported experiencing low back pain that radiated down both legs, 

right greater than left. She diagnosed lumbosacral neuritis, lumbar disc displacement, 

dislocation of right shoulder, and rotator cuff tear post repair. Dr. Johnson-Caldwell determined 

that appellant had seven percent permanent impairment of his right upper extremity using the 

DBI method under Table 15-5 (Shoulder Regional Grid) of the sixth edition of the A.M.A., 

Guides. With respect to the lower extremities, she indicated that appellant’s lumbar disc 

herniation and radiculopathy placed him under a class 3 default value of 19 percent on Table 17-

4 (Lumbar Spine Regional Grid). Dr. Johnson-Caldwell found that application of grade 

modifiers for functional history and physical examination to this default value (using Table 17-5) 

meant that appellant had 17 percent permanent impairment of his whole person. 

On April 9, 2013 an OWCP medical adviser determined that Dr. Johnson-Caldwell 

properly found that appellant had seven percent permanent impairment of his right upper 

extremity under the DBI impairment rating method of the sixth edition of the A.M.A., Guides. 

The medical adviser indicated that Dr. Johnson-Caldwell’s impairment rating for 17 percent 

permanent impairment of appellant’s whole person was not valid under the relevant standards. 

In a decision dated June 18, 2013, OWCP granted appellant a schedule award for seven 

percent permanent impairment of his right upper extremity. The award ran for 21.84 weeks from 

February 8 to July 10, 2013 and was based on OWCP’s medical adviser’s evaluation of the 

findings obtained by Dr. Johnson-Caldwell. 

Appellant continued to claim entitlement to additional schedule award compensation and 

he requested reconsideration of his claim on October 28, 2013. He submitted several new 

reports of attending physicians, but none of the reports contained an impairment rating. 

By decision dated February 20, 2014, OWCP denied modification of its June 18, 2013 

decision. It determined that appellant did not establish more than seven percent permanent 

impairment of his right upper extremity due to his September 21, 2007 work injury, for which he 

previously received a schedule award. OWCP further found that appellant had not established 

permanent impairment of his lower extremities due to his accepted lumbar conditions. 

The findings of June 2, 2014 electromyogram and nerve conduction velocity 

(EMG/NCV) testing of appellant’s lower extremities contained an impression of moderate 

subacute L4-S1 radiculopathy on the right and the left, and diffuse axonal sensory motor 

peripheral neuropathy of both lower extremities. There was no evidence of tarsal tunnel 

syndrome. 

OWCP referred appellant for a second opinion evaluation regarding permanent 

impairment to Dr. Jerome O. Carter, a Board-certified physical medicine and rehabilitation 

physician. In a report dated August 13, 2014, Dr. Carter used the range of motion (ROM) rating 

method to determine that appellant had eight percent permanent impairment of his right upper 

extremity under the sixth edition of the A.M.A., Guides. He also found that appellant did not 

have any permanent impairment of his lower extremities under the standards of The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition 
4

(July/August 2009) (The Guides Newsletter).4

 On September 18, 2014 an OWCP medical 

adviser agreed with Dr. Carter’s impairment rating. 

By decision dated September 24, 2014, OWCP determined that, based on the opinions of 

Dr. Carter and OWCP’s medical adviser, appellant had permanent impairment of his right upper 

extremity totaling eight percent. It further found that appellant did not have any permanent 

impairment of either lower extremity. In another decision dated September 24, 2014, OWCP 

granted appellant a schedule award for an additional one percent permanent impairment of his 

right upper extremity. Appellant thereby received schedule award compensation for permanent 

impairment of his right upper extremity totaling eight percent. 

Appellant continued to claim entitlement to additional schedule award compensation and 

requested reconsideration of his claim on January 30, 2015. 

Appellant submitted a January 16, 2015 report from Dr. Frank L. Barnes, an attending 

Board-certified orthopedic surgeon, who determined that he had 20 percent permanent 

impairment of his right upper extremity under the ROM rating method of the sixth edition of the 

A.M.A., Guides.5

 Dr. Barnes also determined that appellant had 17 percent permanent 

impairment of his lumbar spine under Table 17-4 (Lumbar Spine Regional Grid) of the sixth 

edition of the A.M.A., Guides.

6

 He indicated that appellant had reached maximum medical 

improvement on November 28, 2014. 

In a February 6, 2015 letter, OWCP advised Dr. Barnes that, under FECA, an award for 

permanent impairment could not be paid for the spine, but that such an award could be paid for 

permanent impairment of the upper or lower extremities caused by injury to a spinal nerve. It 

requested that Dr. Barnes provide a supplemental report and indicated that, if appellant had a 

work-related spinal nerve injury which caused impairment to his extremities, he should render an 

impairment rating for the affected extremities by using The Guides Newsletter. 

In a supplemental report received on March 23, 2015,7 Dr. Barnes determined that 

appellant had 22 percent permanent impairment of his right upper extremity under the ROM 

rating method of the sixth edition of the A.M.A., Guides. He noted, “I am informed by the U.S. 

Department of Labor that there are no awards for impairment of the spine. Therefore the spine 

will not be rated.” Dr. Barnes further indicated that there was no evidence of nerve damage in 

appellant’s upper or lower limbs on the basis of the injuries to his spine. He posited that, 

therefore, no rating could be given for nerve damage. Dr. Barnes advised that the generalized 

 4 See infra note 20. Dr. Carter noted that there was normal sensation of spinal dermatomes from L1 through S1 as 

well as normal 5/5 motor strength in both lower extremities. 

5

 In one portion of the report, Dr. Barnes indicated that appellant had 28 percent permanent impairment of his 

right upper extremity, but the content and context of his report shows that he actually provided an opinion that 

appellant had 20 percent permanent impairment of his right upper extremity. 

6

 Dr. Barnes mentioned Table 17-2 (Cervical Spine Regional Grid) but the content and context of his report 

shows that he meant to refer to Table 17-4 (Lumbar Spine Regional Grid). 

7

 Dr. Barnes’ supplemental report, like his initial report, was dated January 16, 2015. It contained some text in 

common with his initial report dated January 16, 2015. 
5

weakness of appellant’s lower limbs did not correspond to the distribution of the motor nerves in 

the lower limbs. He indicated that the finding of weakness was probably due to pain avoidance 

or anticipation of pain, rather than nerve damage. 

In April 2015 OWCP referred appellant for a second opinion examination to Dr. Zvi 

Kalisky, a Board-certified physical medicine and rehabilitation physician, in order to evaluate his 

permanent impairment due to the accepted work injuries. Dr. Kalisky examined appellant on 

May 15, 2015. 

Dr. Kalisky arranged for appellant to undergo new EMG/NCV testing as part of the 

second opinion examination. The testing was performed on June 9, 2015 by Dr. Goran Jezik, a 

Board-certified physical medicine and rehabilitation physician. Dr. Jezik noted in the impression 

section of his report that there was electrodiagnostic evidence of motor polyneuropathy affecting 

the lower extremities, with mild active peripheral denervation on needle EMG examination, 

consistent with the clinical diagnosis of generalized diabetic peripheral neuropathy. It was 

indicated that there was an otherwise normal electrodiagnostic evaluation of the lower 

extremities. There was no clear myotomal involvement on needle EMG examination root screen 

of the lower extremities to conclusively support the diagnosis of lumbosacral radiculopathy or 

plexopathy on either side. There was no electrodiagnostic evidence of generalized muscle 

disease affecting the lower extremities. 

In a report dated June 22, 2015, Dr. Kalisky discussed appellant’s factual and medical 

history, including his history of past diagnostic testing.8

 He noted that EMG/NCV testing results 

obtained on June 9, 2015 showed no electrodiagnostic evidence of lumbosacral radiculopathy, 

lumbosacral plexopathy, or lower extremity peripheral neuropathy. Dr. Kalisky reported the 

findings of his May 15, 2015 physical examination, noting that Waddell signs were positive for 

superficial tenderness, nonorganic distribution of tenderness, axial loading, simulated rotation, 

and give-away weakness in all muscle groups in the bilateral lower extremities. The sensory 

examination was intact and, upon motor examination, there was give-away weakness in all 

muscle groups in the bilateral lower extremities that would be inconsistent with ambulation.9 

Using the ROM method of evaluating upper extremity impairment, Dr. Kalisky 

determined that appellant had eight percent permanent impairment of his right upper extremity 

under the standards of the sixth edition of the A.M.A., Guides. He found that, utilizing Table 2 

of The Guides Newsletter, appellant belonged in class 0 for his L3, L4, L5, and S1 nerve roots, 

which meant that he had zero percent permanent impairment of his right lower extremity and 

zero percent permanent of his left lower extremity. Dr. Kalisky indicated that he based this 

 8

 Dr. Kalisky noted that appellant injured himself when he fell from a chair at work, but he inadvertently listed the 

date of the incident as November 3, 2009 rather than the actual date of September 21, 2007. He indicated that 

June 2, 2014 EMG and NCV testing of the lower extremities revealed evidence of moderate subacute L4-S1 

radiculopathy on the right and left, and evidence of diffuse axonal sensory motor peripheral neuropathy of the lower 

extremities. 

9

 Dr. Kalisky diagnosed lumbar sprain/strain with thoracic and lumbar chronic pain complaints, pain radiation to 

the bilateral lower extremities with no objective findings of radiculopathy, multiple positive Waddell signs 

suggesting symptom magnification, displacement of lumbar intervertebral disc without myelopathy, right shoulder 

contusion, and status post right shoulder arthroscopy and acromioplasty. 
6

conclusion on the fact that appellant had no specific dermatomal distribution of pain or 

paresthesias, that there were no objective valid motor or sensory findings of radiculopathy 

identified during the May 15, 2015 evaluation, and that the EMG/NCV study of the lower 

extremities was negative. 

By decision dated July 13, 2015, OWCP denied modification of its September 24, 2014 

decision. It determined that appellant had not established more than eight percent permanent 

impairment of his right upper extremity due to his September 21, 2007 work injury, for which he 

previously received schedule awards. OWCP further found that appellant had not established 

permanent impairment of his lower extremities due to his accepted lumbar conditions. 

In a form and letter dated October 5, 2015 and received by OWCP on October 9, 2015, 

appellant requested reconsideration of OWCP’s July 13, 2015 decision. In his letter, appellant 

argued that his claim for greater permanent impairment was supported by medical evidence 

already of record, including the reports of Dr. Johnson-Caldwell and Dr. Barnes and the report of 

June 2014 EMG/NCV testing. 

By decision dated December 22, 2015, OWCP denied modification of its July 13, 2015 

decision. It determined that appellant had not established more than eight percent permanent 

impairment of his right upper extremity due to his September 21, 2007 work injury, for which he 

previously received schedule awards. OWCP further found that appellant had not established 

permanent impairment of his lower extremities due to his accepted lumbar conditions. 

LEGAL PRECEDENT -- ISSUE 1 

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.10 Section 

8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss 

of use of specified members, functions, and organs of the body.11 FECA, however, does not 

specify the manner by which the percentage loss of a member, function, or organ shall be 

determined. To ensure consistent results and equal justice under the law, good administrative 

practice requires the use of uniform standards applicable to all claimants. Through its 

implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.12 

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first 

 10 See 20 C.F.R. §§ 1.1-1.4. 

11 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

12 20 C.F.R. § 10.404; see also, Ronald R. Kraynak, 53 ECAB 130 (2001). 
7

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into 

the second printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A., 

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.14

ANALYSIS -- ISSUE 1 

The first issue on appeal is whether appellant has met his burden of proof to establish 

more than eight percent permanent impairment of his right upper extremity, for which he 

previously received schedule awards. The Board finds that this case is not in posture for 

decision with respect to this issue. 

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth 

edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No 

consistent interpretation had been followed regarding the proper use of the DBI or ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.15 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians 

were at odds over the proper methodology for rating upper extremity impairment, having 

observed attending physicians, evaluating physicians, second opinion physicians, impartial 

medical examiners, and district medical advisers use both DBI and ROM methodologies 

interchangeably without any consistent basis. Furthermore, the Board observed that physicians 

interchangeably cited to language in the first printing or the second printing when justifying use 

of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the 

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.17

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the December 22, 2015 decision with 

respect to its determination of appellant’s right upper extremity permanent impairment. Utilizing 

a consistent method for calculating permanent impairment for upper extremities to be applied 

uniformly, and after such other development as may be deemed necessary, OWCP shall issue a 

de novo decision on appellant’s claim for an upper extremity schedule award. 

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

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

Claims, Chapter 2.808.5a (February 2013). 

14 Isidoro Rivera, 12 ECAB 348 (1961). 

15 T.H., Docket No. 14-0943 (issued November 25, 2016). 

16 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

17 See supra note 15.
8

LEGAL PRECEDENT -- ISSUE 2 

Neither FECA nor the 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.18 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.19 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology 

for rating spinal nerve extremity impairment.20 It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper 

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are 

incorporated in the procedure manual.21 

ANALYSIS -- ISSUE 2 

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

impairment of his lower extremities due to his accepted lumbar conditions. 

Appellant submitted a February 8, 2013 report in which Dr. Johnson-Caldwell, an 

attending physician, concluded that he had 17 percent permanent impairment of his whole person 

under the standards of the sixth edition of the A.M.A., Guides.

22 The Board notes that the 

submission of this report does not establish appellant’s claim for permanent impairment of his 

lower extremities due to his September 21, 2007 work injury. The February 9, 2013 report of 

Dr. Johnson-Caldwell is of limited probative value on this matter because neither FECA, nor its 

implementing regulations provide for a schedule award for impairment to the back, spine, or to the 

body as a whole.23

Appellant also submitted a January 16, 2015 report in which Dr. Barnes, an attending 

physician, determined that he had 17 percent permanent impairment of his lumbar spine under 

Table 17-4 (Lumbar Spine Regional Grid) of the sixth edition of the A.M.A., Guides. This 

report also is of limited probative value regarding permanent impairment of the lower extremities 

because, as noted above, a schedule award is not payable for the back or spine under FECA.24 

 18 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.5c(3). 

20 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.

21 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4. 

22 Dr. Johnson-Caldwell indicated that appellant’s lumbar disc herniation and radiculopathy placed him under a 

class 3 default value of 19 percent on Table 17-4 (Lumbar Spine Regional Grid) of the sixth edition of the A.M.A., 

Guides. She found that application of grade modifiers for functional history and physical examination to this default 

value meant that appellant had 17 percent permanent impairment of his whole person. 

23 See supra note 18. 

24 See id.
9

The Board notes that Dr. Barnes indicated in a second report dated January 16, 2015, “I am 

informed by the U.S. Department of Labor that there are no awards for impairment of the spine. 

Therefore the spine will not be rated.”25 He further advised that there was no evidence of nerve 

damage in appellant’s upper or lower limbs on the basis of the injuries to his spine. Dr. Barnes 

posited that, therefore, no rating could be given for nerve damage.26 

The findings of June 2, 2014 electromyogram EMG testing of appellant’s lower 

extremities contained an impression of moderate subacute L4-S1 radiculopathy on the right and 

the left, and diffuse axonal sensory motor peripheral neuropathy of both lower extremities. The 

Board finds that this report is of limited probative value on the relevant issue of the present case 

because it does not contain an opinion regarding whether appellant had permanent impairment of 

his lower extremities due to his September 21, 2007 work injury.27

Moreover, the record contains other evidence showing that appellant did not have 

permanent impairment of his lower extremities due to his September 21, 2007 work injury. In a 

report dated June 22, 2015, Dr. Kalisky, an OWCP referral physician, provided an opinion that 

appellant did not have permanent impairment of his lower extremities due to his September 21, 

2007 work injury. He found that the most current electrodiagnostic testing showed that appellant 

did not have a radiculopathy extending from the back into the lower extremities.28 In reaching 

his impairment determination, Dr. Kalisky applied the standards of the sixth edition of the 

A.M.A., Guides, including the standards of The Guides Newsletter.

29

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. 

 25 Although there is no schedule award for the back under FECA, an impairment from a spinal nerve affecting the 

lower extremities can be determined using The Guides Newsletter. See M.O., Docket No. 15-1830 (issued 

January 6, 2016). 

26 Dr. Barnes advised that the generalized weakness of appellant’s lower limbs did not correspond to the 

distribution of the motor nerves in the lower limbs. He indicated that the finding of weakness was probably due to 

pain avoidance or anticipation of pain, rather than nerve damage. 

27 On appeal appellant argues that the reports of Dr. Johnson-Caldwell and Dr. Barnes and the report of June 2014 

EMG and NCV testing establish his claim for permanent impairment of his lower extremities. However, the Board 

has explained why these reports do not establish such impairment. 

28 Dr. Kalisky relied on EMG and NCV testing results obtained in June 2015 which showed no evidence of 

lumbosacral radiculopathy, lumbosacral plexopathy, or lower extremity peripheral neuropathy. The testing revealed 

findings suggestive of generalized diabetic peripheral neuropathy but there is no indication that the condition 

causing these findings was work related. 

29 See supra notes 20 and 21. In addition, Dr. Carter, an OWCP referral physician, produced an August 13, 2014 

report in which he found that appellant did not have any permanent impairment of his lower extremities under the 

standards of The Guides Newsletter. 
10

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish permanent 

impairment of his lower extremities due to his accepted lumbar conditions. The Board further 

finds that this case is not in posture for decision regarding whether appellant met his burden of 

proof to establish more than eight percent permanent impairment of his right upper extremity, for 

which he previously received schedule awards. 

ORDER 

IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded 

for further action consistent with this decision. 

Issued: September 26, 2017 

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