United States Department of Labor

Employees’ Compensation Appeals Board

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T.D., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Jacksonville, FL, 

Employer

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Docket No. 17-1495

Issued: January 4, 2018

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 June 26, 2017 appellant filed a timely appeal from a June 15, 2017 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.

ISSUE

The issue is whether appellant has established permanent impairment of a scheduled 

member due to her work-related injuries, warranting a schedule award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.

2

 The facts of the case as presented in the 

prior Board decision are incorporated herein by reference. The relevant facts are set forth below.

On April 15, 2013 appellant, then a 35-year-old laborer/custodian, filed a traumatic injury 

claim (Form CA-1) alleging that, on that date, she injured her lower back while lifting a bag 

from a recycling hamper. She stopped work on the date of injury. By decision dated June 6, 

2013, OWCP accepted appellant’s claim for displacement of the lumbar vertebral disc without 

myelopathy at L4-5 and L5-S1. It paid her compensation on the periodic rolls commencing 

June 2, 2013 and on the supplemental rolls for intermittent disability commencing May 4, 2014. 

On June 9, 2015 appellant filed a claim for a schedule award (Form CA-7).

By letter dated June 11, 2015, addressed to Dr. Claudio E. Vincenty, Board-certified in 

anesthesiology and pain medicine, OWCP noted that schedule awards for the spine were not 

payable under FECA. However, it also noted that such awards could be paid for impairment of 

the upper or lower extremities caused by injury to a spinal nerve. OWCP requested that

Dr. Vincenty submit a report containing an impairment rating rendered in accordance with the 

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

Impairment (A.M.A., Guides)

3

and with reference to The Guides Newsletter, Rating Spinal 

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

By letter dated June 25, 2015, Dr. Vincenty noted that appellant was at maximum 

medical improvement (MMI) as of June 9, 2015 and had 12 percent permanent impairment from 

an interventional pain management point of view. He noted that the rating of impairment was 

made according to the A.M.A., Guides, of a moderate problem in the lumbar spine with a range 

of 10 percent to 15 percent. Dr. Vincenty indicated that appellant’s work-related injury was a 

disc herniation at L4-5 and a bulge at L5-S1. He concluded that appellant was neurologically 

grossly intact.

On July 30, 2015 OWCP referred the case to a district medical adviser (DMA). The 

DMA was asked to review the medical evidence and provide a calculation of appellant’s 

permanent impairment for loss of use of the bilateral lower extremities along with a date of 

MMI, in accordance with the sixth edition of the A.M.A., Guides.

On August 4, 2015 Dr. James Dyer, a Board-certified orthopedic surgeon acting as the 

DMA, reviewed the medical evidence of record and responded to OWCP’s inquiries. He noted 

appellant’s date of MMI as June 9, 2015. Dr. Dyer observed that Dr. Vincenty had found 12 

percent whole person impairment rating for a schedule award based on a spinal impairment

rating. He noted that FECA did not provide schedule awards for spinal impairment, nor did it 

consider extent of whole person impairment. Dr. Dyer advised that appellant did not have any 

deficits of the lower extremities on physical examination, and that, as such, she had zero percent 

 

2 Docket No. 16-30 (issued March 4, 2016).

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

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

the left lower extremity.

In a report dated August 6, 2015, Dr. Vincenty noted that appellant’s pain had improved 

and that she was able to walk for extended periods, but that there remained numbness in her left 

toes. He noted normal gait and posture, with normal muscle strength of all muscles.

By decision dated August 18, 2015, OWCP denied appellant’s claim for a schedule 

award. It found that the medical evidence of record failed to establish ratable permanent 

impairment of a scheduled member or function of the body.

On October 7, 2015 appellant filed a timely appeal to the Board.

By decision dated March 4, 2016, the Board affirmed the August 18, 2015 decision. The 

Board found that OWCP properly relied on the August 4, 2015 report of Dr. Dyer, which noted 

that FECA did not provide for schedule awards for spinal impairment, or for whole person 

impairment. The Board also found that the evidence of record did not establish objective deficits 

of the lower extremities on physical examination by Dr. Vincenty. 

In a report dated November 11, 2016, Dr. Ali Chahlavi, a Board-certified neurosurgeon, 

diagnosed an L4-L5 herniated disc with stenosis. He performed a decompressive laminectomy 

with partial facetectomy and foraminotomy at L4 and L5, decompressing the L4 and L5 nerve 

roots. The procedure was completed with no complications.

In a diagnostic report dated December 28, 2016, Dr. Elizabeth Bathala, a Board-certified 

diagnostic radiologist, examined the results of a magnetic resonance imaging (MRI) scan of 

appellant’s lumbar spine. She noted impressions of stable degenerative change in the lower 

lumbar spine at L4-L5 with no new disc pathology and a diffuse low signal throughout marrow 

structures, likely related to incomplete fatty marrow replacement, red marrow conversion, or, 

less likely, a diffuse infiltrative process.

On March 3, 2017 appellant again filed a claim for a schedule award.

By letter dated March 7, 2017, OWCP requested additional information from

Dr. Vincenty in support of a schedule award. It requested that Dr. Vincenty submit a report

containing an impairment rating rendered according to the A.M.A., Guides and with reference to 

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

(July/August 2009).

By letter dated March 26, 2017, Dr. Vincenty responded to OWCP’s inquiry. He noted a 

date of MMI of June 9, 2015, with a permanent impairment rating of 12 percent. Dr. Vincenty 

noted that appellant underwent a decompressive laminectomy procedure on November 9, 2016. 

With this letter, he enclosed his previously submitted June 25, 2015 letter.

On March 28, 2017 OWCP forwarded appellant’s claim to a DMA to review appellant’s 

request for a schedule award based on the additional medical evidence.
4

In a report dated April 9, 2017, the DMA reviewed appellant’s medical history and

Dr. Vincenty’s letter dated March 26, 2017. He noted that in this letter, which enclosed

Dr. Vincenty’s previously-reviewed June 25, 2015 letter containing an impairment rating and 

date of MMI, it was noted that appellant was neurologically intact, meaning that there was no 

evidence of lower extremity sensory or motor deficits related to spinal nerve roots. Based on the 

information provided, the DMA opined that there was no basis for a payment of a schedule 

award for lower extremity permanent impairment. He further noted that the date of MMI was

November 2, 2016, the date of the impairment examination by Dr. Vincenty.4

By decision dated June 15, 2017, OWCP denied appellant’s claim for a schedule award. 

It found that the medical evidence of record failed to establish that she had sustained ratable 

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

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing federal regulations6set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions and organs of the body. 

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 for all 

claimants under the law, good administrative practice requires the use of uniform standards 

applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.8 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.9 It is well established that in 

determining the amount of a schedule award for a member of the body that sustained an 

employment-related permanent impairment, preexisting impairments of the body are to be 

included.10

 

4 The Board notes that the case record does not contain an impairment examination and rating from Dr. Vincenty 

dated November 2, 2016.

5

Id. at § 8107.

6 20 C.F.R. § 10.404.

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

8

Id.

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

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

Claims, Chapter 2.808.5(a) (February 2013).

10 See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the 

impairment rating of a given scheduled member should include any preexisting permanent impairment of the same 

member or function.
5

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.11 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.12 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.13

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.14

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) is to be applied.15 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.16 

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.17

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s 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.18

 

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

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

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

14 Supra note 9.

15 See G.N., Docket No. 10-850 (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.

16 D.S., Docket No. 14-12 (issued March 18, 2014).

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

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

Chapter 2.808.6(f) (February 2013).
6

ANALYSIS

On March 3, 2017 appellant filed a claim for a schedule award due to her accepted work 

injury of April 15, 2013. The Board finds that the medical evidence of record does not establish 

permanent impairment of a scheduled member, warranting a schedule award.

OWCP received a report from Dr. Chahlavi dated November 11, 2016 and a report from

Dr. Bathala dated December 28, 2016. However neither of these reports provided an assessment 

of appellant’s permanent impairment, pursuant to The Guides Newsletter, establishing ratable 

permanent impairment of a scheduled body member.19 As such these reports are of limited 

probative value in establishing appellant’s entitlement to a schedule award. 

Following the Board’s March 4, 2016 decision OWCP received further evidence in 

support of appellant’s March 3, 2017 schedule award claim. By letter dated March 26, 2017,

Dr. Vincenty responded to OWCP’s inquiry of March 7, 2017. He noted a date of MMI of 

June 9, 2015, with an impairment rating of 12 percent. Dr. Vincenty noted that appellant 

underwent a decompressive laminectomy procedure on November 9, 2016 and enclosed his 

previously-reviewed June 25, 2015 letter.

The Board notes that Dr. Vincenty’s March 26, 2017 letter did not actually contain a new 

impairment rating, date of MMI, or description of the extent of her impairment. The March 26, 

2017 letter merely reiterated the same conclusions found in Dr. Vincenty’s June 25, 2015 letter, 

which was already reviewed by the Board on prior appeal. The March 26, 2017 letter enclosed 

the June 25, 2015 letter in addition to referencing it as the basis for Dr. Vincenty’s March 26, 

2017 impairment rating and date of MMI.

The Board’s findings in its March 4, 2016 decision with regard to Dr. Vincenty’s 

June 25, 2015 letter also apply to Dr. Vincenty’s March 26, 2017 letter, because the latter merely 

repeated, referenced, and contained the former as an enclosure.20 As previously determined by 

the Board, Dr. Vincenty rated appellant’s permanent impairment of the spine and provided a 

whole person impairment rating, which are not allowable under FECA. However, he did not 

provide a rating of any permanent impairment of appellant’s lower extremities, due to injury to a 

spinal nerve, with reference to The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment using the Sixth Edition (July/August 2009). Dr. Vincenty did not actually render a 

new impairment rating in his letter of March 26, 2017. Rather, he simply wrote a cover letter for 

his prior June 25, 2015 impairment rating. 

The record also contains the April 9, 2017 report of the DMA who reviewed appellant’s 

medical history and Dr. Vincenty’s letter dated March 26, 2017. The DMA did not support a 

finding of a permanent impairment as he noted Dr. Vicenty’s observation that there was no 

evidence of lower extremity sensory or motor deficits related to spinal nerve roots. 

 

19 See C.D., Docket No. 16-1489 (issued April 12, 2017). 

20 Findings made in prior Board decisions are res judicata absent any further review by OWCP under section 

8128 of FECA. See H.G., Docket No. 16-1191 (issued November 25, 2016).
7

Therefore, the evidence of record before the Board contains no probative evidence of a 

permanent impairment for schedule award purposes.

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.

CONCLUSION

The Board finds that appellant has not established permanent impairment of a scheduled 

member due to her work-related injuries, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated June 15, 2017 is affirmed.

Issued: January 4, 2018

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