United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Wood River, IL, Employer

__________________________________________

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Docket No. 18-0394

Issued: August 15, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 18, 2017 appellant filed a timely appeal from a December 11, 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.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 has met his burden of proof to establish more than four 

percent permanent impairment of his left lower extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as 

follows.

Appellant, then a 61-year-old former customer service supervisor, filed an occupational 

disease claim (Form CA-2) which was accepted for lumbar sprain.

4

 He had previously undergone 

a left, L5-S1 microdiscectomy.5

On April 20, 2010 OWCP granted appellant a schedule award for four percent permanent 

impairment of his left lower extremity and zero permanent impairment of his right lower extremity 

pursuant to the fifth edition of the American Medical Association, Guides to the Evaluation of 

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

6

Appellant subsequently exercised her appeal rights multiple times, including appeals with 

the Board. By decisions and orders dated November 26, 20127and January 17, 2013,8the Board

found that the medical reports by OWCP’s referral physicians were of diminished probative value 

and remanded appellant’s case for further development of the medical evidence. By decision dated 

August 17, 2017, the Board determined that a March 26, 2015 report of Dr. Richard Katz, an 

OWCP second opinion examiner and Board-certified in physical medicine and rehabilitation, was 

of diminished probative value. It therefore remanded the case to OWCP for a supplemental report 

from Dr. Katz.9

On September 5, 2017 OWCP requested that Dr. Katz provide a rationalized opinion on 

whether appellant had additional permanent impairment of his bilateral lower extremities due to 

 

3 Docket No. 11-0198 (issued August 3, 2011); Order Remanding Case, Docket No. 12-1279 (issued November 26, 

2012); Docket No. 13-0600 (issued July 26, 2013); and Docket No. 16-1585 (issued August 17, 2017). 

4 Appellant retired in 2013.

5 The February 20, 2008 surgical procedure was performed by Dr. Randall Rogalsky, a Board-certified orthopedic 

surgeon.

6 A.M.A., Guides (5th ed. 2001).

7 Docket No. 12-1279 (issued November 26, 2012).

8 Docket No. 13-0600 (issued July 26, 2013).

9 Docket No. 16-1585 (issued August 17, 2017).
3

his accepted lumbar sprain according to the sixth edition of the A.M.A., Guides10 and The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition

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

In a November 1, 2017 report, Dr. Katz discussed appellant’s history of injury and noted 

that his claim was accepted for lumbar sprain. He reported additional diagnoses of chronic lumbar 

degeneration, radiculopathy, ongoing mechanical back pain, and lumbar stenosis. Dr. Katz related 

appellant’s complaints of ongoing low back pain and left lower extremity radicular pain. Upon

physical examination of appellant’s lumbar spine, he observed superficial palpation lateral to the 

spine or axial compression and reduced range of motion in flexion, extension, lateral flexion, and 

rotation. Straight leg raise testing, Thomas test, and femoral stretch tests were negative. Dr. Katz 

indicated that sensory examination was notable for slight numbness/tingling in the left lateral three 

toes. He reported that chart review, history, and physical examination were consistent with largely 

resolved left lumbar S1 radiculopathy, mild residual reflux change, low back pain, and left-sided 

foot numbness. Regarding appellant’s initial schedule award claim, Dr. Katz related that appellant 

did not have any additional neurological impairment, work related or otherwise. He referenced 

the July/August 2009 edition of The Guides Newsletter and indicated that the rating for S1 

radiculopathy revealed a rating of four percent permanent impairment for “severe sensory deficit.”

Dr. Katz noted that appellant had no motor deficits.

In a November 24, 2017 report, Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon 

and a DMA, reviewed appellant’s claim and noted that he agreed with Dr. Katz’s findings in his 

November 1, 2017 report that appellant had no new clinical findings to warrant additional 

permanent impairment of the left lower extremity. He referenced the sixth edition of the A.M.A., 

Guides, Table 16-1, page 495, and indicated that appellant had no new objective findings in his 

left leg. The DMA explained that because appellant’s left leg numbness was old, he had class 0 

impairment with zero percent impairment in the left lower extremity. He opined that appellant 

had no new or additional impairment greater than the four percent previously granted.

By decision dated December 11, 2017, OWCP found that appellant was not entitled to 

more than four percent permanent impairment of the left lower extremity. It determined that the 

weight of medical opinion rested with the March 26, 2015 and November 1, 2017 reports of

Dr. Katz, the second opinion examiner, and the November 24, 2017 report of the DMA, who 

concluded that appellant was not entitled to an additional schedule award greater than the four 

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

schedule award. 

LEGAL PRECEDENT

The schedule award provisions of FECA11 and its implementing regulations12 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

 

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

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.
4

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.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate 

schedule awards.14

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.15 However, a schedule award is 

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

extremities.16 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for 

rating spinal nerve extremity impairment.17 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.18

ANALYSIS

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

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

schedule award.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s July 14, 2016 decision because the Board has 

already considered this evidence in its August 27, 2017 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.19

Following the Board’s most recent decision, OWCP referred appellant’s claim to Dr. Katz, 

the second opinion examiner for a supplemental report. In a November 1, 2017 report, Dr. Katz 

referenced the July/August 2009 edition of The Guides Newsletter and indicated that the rating for 

S1 radiculopathy revealed a rating of four percent permanent impairment for “severe sensory 

 

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

14 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).

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

16 Supra note 14 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(c)(3) 

(March 2017).

17 The methodology and applicable tables were initially published in The Guides Newsletter. Id.

18 See supra note 14 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

19 See K.K., Docket No. 17-1061 (issued July 25, 2018). The Board will, therefore, not review the evidence 

addressed in the prior appeal.
5

deficit.” He noted that sensory examination was notable for slight numbness/tingling in the left 

lateral three toes. Dr. Katz explained that his chart review, history, and physical examination were 

consistent with largely resolved left lumbar S1 radiculopathy, mild residual reflux change, low 

back pain, and left-sided foot numbness. He noted that appellant had no motor deficits. 

Accordingly, Dr. Katz concluded that appellant had no additional permanent impairment of the 

left lower extremity according to the sixth edition of the A.M.A., Guides. 

In a November 24, 2017 report, Dr. Ugokwe, a DMA, reviewed Dr. Katz’s November 1, 

2017 report and agreed with his findings that appellant had no new clinical findings to warrant any 

additional impairment of the left lower extremity. 

The Board has reviewed the opinion of Dr. Katz and finds that his November 1, 2017 report 

was sufficiently rationalized to establish that appellant had four percent permanent impairment of 

the left lower extremity. Dr. Katz’s 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 provided medical rationale for his impairment rating. The DMA, upon 

his review of the record, agreed with Dr. Katz’s findings. Accordingly, the Board finds that OWCP 

properly relied on the reports of Dr. Katz and the DMA to find that appellant had not established

more than four percent permanent impairment of the left lower extremity due to his accepted 

lumbar injury.20 As appellant has not provided a rationalized medical opinion establishing greater 

impairment the Board finds that he has not established more than four percent permanent 

impairment of the left lower extremity due to his accepted lumbar injury.21 

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 four 

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

schedule award.

 

20 See D.B., Docket No. 17-0930 (issued July 11, 2018); M.T., Docket No. 16-0296 (issued May 20, 2016).

21 When the treating physician does not provide a rating 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).
6

ORDER

IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 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