United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Miami, FL, Employer

__________________________________________

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Docket No. 19-0288

Issued: July 12, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 20, 2018 appellant, through counsel, filed a timely appeal from a 

September 21, 2018 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.

 

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.
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

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

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On September 9, 2004 appellant, then a 42-year-old carrier technician, filed a traumatic 

injury claim (Form CA-1) alleging that on September 8, 2004 she developed pain in her lower 

back and down her left leg while delivering mail in the performance of duty. OWCP accepted the 

claim for lumbosacral strain and herniated lumbar disc at L4-5 and L5-S1.

On May 18, 2007 appellant returned to limited-duty work until her position was withdrawn 

by the employing establishment on December 1, 2010. On December 1, 2011 she again returned 

to limited-duty work.

On June 4, 2012 appellant filed a claim for a schedule award (Form CA-7).

OWCP subsequently received a medical report dated June 20, 2012 by Dr. Martin 

Fritzhand, a Board-certified urologist. He described examination findings of nerve root damage 

as the Achilles tendon reflexes were absent and sensory loss in both feet. Dr. Fritzhand utilized 

Table 16-11 of the sixth edition of the American Medical Association, Guides to the Evaluation 

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

4

and Proposed Table 2 of The Guides Newsletter,

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The 

Guides Newsletter) and determined that appellant had sustained a severe level 3 sensory deficit of

the S1 nerve root secondary to the pathology found on a magnetic resonance imaging (MRI) scan 

and on physical examination, which represented a class 1 impairment. He calculated grade 

modifiers, applied the net adjustment formula, and concluded that she had four percent sensory 

impairment of each lower extremity. Dr. Fritzhand concluded that appellant had reached 

maximum medical improvement (MMI) by September 2006.

On August 1, 2012 Dr. H.P. Hogshead, a Board-certified orthopedic surgeon serving as an 

OWCP district medical adviser (DMA), reported that he reviewed Dr. Fritzhand’s June 20, 2012 

report. He recommended a second opinion impairment evaluation by an experienced orthopedic 

surgeon familiar with The Guides Newsletter. Dr. Hogshead explained that Dr. Fritzhand’s four 

percent bilateral lower extremity permanent impairment ratings based on a class 1 impairment for 

severe S1 sensory nerve loss were more severe and not in agreement with the findings of other 

examiners of record, noting a report dated May 29, 2012 by Dr. Andres Vegas, a Board-certified 

 

3 Docket No. 17-0303 (issued May 1, 2017).

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

anesthesiologist.

5

 Dr. Hogshead advised that an electrodiagnostic study may also be necessary if 

requested by the second opinion physician.

In a letter dated October 2, 2014, counsel requested a status update on appellant’s schedule 

award claim.

On October 8, 2014 OWCP requested that an OWCP DMA review the medical record and 

provide an impairment rating based on the sixth edition of the A.M.A., Guides and the date 

appellant reached MMI. On that same date, Dr. Hogshead again reviewed the case file and 

reiterated his recommendation for a second opinion impairment evaluation.

On June 27, 2017 QTC Medical Services, OWCP’s scheduling contractor, referred 

appellant, together with a statement of accepted facts (SOAF), the medical record, and a set of 

questions, to Dr. Clinton G. Bush, III, a Board-certified orthopedic surgeon, for a second opinion 

evaluation to determine the extent of her employment-related permanent impairment based on the 

sixth edition of the A.M.A., Guides and establish her work restrictions and the date she reached 

MMI.

In a report dated July 6, 2017, Dr. Bush diagnosed degenerative spondylosis and multilevel 

disc herniations of the lumbosacral spine without myelopathy or radiculopathy. He found that

appellant had no sensory or motor neurological deficits consistent with radiculopathy in the lower

extremities. Referring to Table 17-4 (Lumbar Spine Regional Grid) on page 570 of the sixth 

edition of the A.M.A., Guides, Dr. Bush determined that she had a class 1 impairment for

intervertebral disc herniation, which yielded a default value of seven percent. He calculated grade 

modifiers, applied the net adjustment formula, and concluded that appellant had nine percent whole 

person permanent impairment. Dr. Bush determined that she had reached MMI on March 31, 

2014, the date of the first primary medical record presented for his review. 

On December 12, 2017 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as an OWCP DMA, reviewed the SOAF and medical record, including Dr. Bush’s July 6, 2017 

report. He utilized the sixth edition of the A.M.A., Guides and The Guides Newsletter and found 

that appellant had zero percent permanent impairment of each lower extremity. Dr. Harris 

reasoned that she had no neurologic deficit consistent with radiculopathy in the lower extremity. 

He indicated that while a lumbar MRI scan demonstrated spinal pathology, radiculopathy had not 

been established. Dr. Harris noted that his permanent impairment rating of the bilateral lower 

extremities differed from Dr. Bush’s nine percent whole person permanent impairment rating 

because Dr. Bush calculated impairment ratings based on Table 17-4, pages 570 to 574, which 

provided impairment for mechanical low back pain, radiculopathy, and documented spinal 

pathology on diagnostic studies, including an MRI scan. He maintained that both OWCP and 

FECA provided schedule awards only for the loss of use/impairments in the lower extremities and 

not for spinal pain. As such, Dr. Harris indicated that he calculated impairment only for the loss 

of use of the lower extremities as discussed. He concluded that appellant had reached MMI on

July 6, 2017, the date of Dr. Bush’s impairment evaluation. Dr. Harris disagreed with Dr. Bush’s

finding that the date of MMI was March 31, 2014 as the case file did not contain any medical 

 

5

In his May 29, 2010 report, Dr. Vegas found that appellant had grossly intact sensation to light touch in her

bilateral upper and lower extremities on neurological examination.
4

records documenting that appellant had reached MMI on that date or any time prior to Dr. Bush’s 

July 6, 2017 impairment evaluation.

By decision dated January 11, 2018, OWCP denied appellant’s claim for a schedule award, 

finding that there was no evidence to establish that she sustained permanent impairment of a 

scheduled member or function of the body due to the accepted September 8, 2004 employment 

injuries. It accorded the weight of the medical evidence to Dr. Harris’ December 12, 2017 opinion.

On January 25, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on July 10, 2018.

By decision dated September 21, 2018, an OWCP hearing representative affirmed the 

January 11, 2018 decision denying appellant’s schedule award claim, finding that the opinion of

Dr. Harris constituted the weight of the medical evidence.

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish that he or she sustained a permanent

impairment of a scheduled member or function as a result of any employment injury.6

The schedule award provisions of FECA,7and its implementing federal regulations,8set 

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 

the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued after 

May 1, 2009, the sixth edition will be used.10

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.11 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.12 The sixth edition of the A.M.A., Guides provides a specific 

 

6 See Tammy L. Meehan, 53 ECAB 229 (2001).

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

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

2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010).

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

12 Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.808.5(c)(3) (March 2017).
5

methodology for rating spinal nerve extremity impairment.13 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 Federal (FECA) Procedure Manual.14

In addressing lower extremity impairments, due to peripheral or spinal nerve root 

involvement, the sixth edition requires identifying the impairment for the class of diagnosis (CDX) 

condition, which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS).15 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).16

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

should be routed to a DMA for an opinion concerning the percentage of permanent impairment 

using the A.M.A., Guides.

17

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.18 

For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.19

ANALYSIS

The Board finds that the case is not in posture for decision.

OWCP accepted appellant’s claim for lumbosacral strain and herniated lumbar disc at L4-

L5 and L5-S1. On June 4, 2012 appellant filed a schedule award claim which OWCP denied by 

decision dated January 11, 2018. By decision dated September 21, 2018, an OWCP hearing 

representative affirmed the January 11, 2018 decision denying appellant’s schedule award claim. 

The Board finds that there is an unresolved conflict in the medical opinion evidence 

between Dr. Fritzhand, the attending physician, and Dr. Harris, OWCP’s DMA, regarding the 

extent of the permanent impairment of appellant’s bilateral lower extremities.

 

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

14 See Federal (FECA) Procedure Manual, supra note 10 at Chapter 3.700, Exhibit 4 (January 2010).

15 Supra note 4 at 515-21, 533.

16 Id. at 521.

17 See Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.808.6(f) (February 2013); see also Tommy R.

Martin, 56 ECAB 273 (2005). 

18 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

19 C.H., Docket No. 18-1065 (issued November 29, 2018).
6

In a June 20, 2012 report, Dr. Fritzhand determined that appellant had four percent 

permanent impairment of each lower extremity pursuant to the sixth edition of the A.M.A., Guides

and The Guides Newsletter (July/August 2009). He found that, under Table 16-11 of the A.M.A., 

Guides, she had a severe level 3 sensory deficit of the S1 nerve root. Dr. Fritzhand further found 

that appellant’s S1 nerve root sensory deficit represented a class 1 impairment under Proposed 

Table 2 of The Guides Newsletter. He calculated grade modifiers, applied the net adjustment 

formula, and concluded that she had four percent sensory permanent impairment of each lower 

extremity. Dr. Fritzhand determined that appellant had reached MMI by September 2006. 

In a December 12, 2017 report, Dr. Harris determined that appellant had no permanent 

impairment of her bilateral lower extremities under the standards of the sixth edition of the A.M.A., 

Guides and The Guides Newsletter. He explained that no neurologic deficit consistent with 

radiculopathy was reported in either extremity. Dr. Harris also explained that while a lumbar MRI 

scan demonstrated spinal pathology, radiculopathy had not been established. He further explained

that FECA only allowed schedule awards for the loss of use/impairments in the lower extremities, 

and not for spinal pain. Dr. Harris concluded that MMI occurred on July 6, 2017, the date of the 

second opinion impairment evaluation performed by Dr. Bush. He explained that the case file did 

not contain any medical records documenting that appellant had reached MMI any time prior to

Dr. Bush’s evaluation.

As noted above, if there is disagreement between an employee’s physician and an OWCP 

referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall 

make an examination.20 As there is an unresolved conflict in the medical evidence regarding the 

extent of the permanent impairment of appellant’s bilateral lower extremities due to her accepted 

employment conditions, the case must be remanded to OWCP for referral to an impartial medical 

specialist for resolution of the conflict in the medical opinion evidence in accordance with 5 U.S.C. 

§ 8123(a). After such further development as OWCP deems necessary, it shall issue a de novo

decision on appellant’s schedule award claim.

CONCLUSION

The Board finds that the case is not in posture for decision. 

 

20 See supra note 19.
7

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

action consistent with this opinion of the Board.

Issued: July 12, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board