United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Boston, MA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 18-1492

Issued: March 19, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 31, 2018 appellant, through counsel, filed a timely appeal from an April 16, 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 his burden of proof to establish a permanent 

impairment of his left lower extremity causally related to his accepted employment injury, 

warranting a schedule award.

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances of this case 

as presented in the prior appeal are incorporated herein by reference.3 The relevant facts are as 

follows. 

On October 10, 2010 appellant, then a 57-year-old transportation security officer 

(screener), filed a traumatic injury claim (Form CA-1) alleging that he injured his lower back when 

lifting a bag while in the performance of duty. He stopped work on October 19, 2010 and returned 

to limited-duty work on October 24, 2010. OWCP assigned OWCP File No. xxxxxx049 and 

accepted the claim for a lumbar sprain.4

On December 20, 2016 Dr. Polly Fraga, a Board-certified internist, indicated that appellant 

had reached maximum medical improvement (MMI) as of that day.

In a report dated January 12, 2017, Dr. Joseph B. Fitzgerald, a Board-certified orthopedic 

surgeon, based upon a review of medical evidence and physical examination, diagnosed L4 lumbar 

radiculopathy, L4 herniated disc, and lumbar spondylosis. Using the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),

5 he 

determined that appellant had 11 percent left lower extremity permanent impairment for motor and 

sensory deficits. In reaching this determination, Dr. Fitzgerald assigned a class 1 for L4 with a 

default impairment of three percent for mild sensory deficits and five percent for mild motor 

deficits. Next, he applied grade modifiers of two for functional history and one for physical 

examination, resulting in a net adjustment to grade D or four percent left lower extremity 

permanent impairment for L4 mild sensory loss and seven percent left lower extremity permanent 

impairment for L4 mild motor deficit or 11 percent left lower extremity permanent impairment. 

On January 22, 2017 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated April 13, 2017, OWCP informed appellant that additional 

evidence was necessary to establish his schedule award claim. Specifically it advised him that

Dr. Fitzgerald’s impairment rating was insufficient to support his claim as the impairment rating 

was based on medical conditions not accepted by OWCP. OWCP afforded appellant 30 days to 

 

3 Docket No. 14-1450 (issued September 11, 2015).

4 Appellant subsequently filed another claim for traumatic injury on August 14, 2012, alleging back, neck and 

hernia conditions. OWCP assigned that claim File No. xxxxxx985, which it denied. It remains in closed status. 

OWCP combined OWCP File Nos. xxxxxx049 and xxxxxx985 on December 23, 2013, with OWCP File No. 

xxxxx049 listed as the master file.

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

submit evidence of a permanent impairment causally related to the accepted condition of lumbar 

sprain. 

In response to OWCP’s request, appellant submitted an October 19, 2010 progress note 

signed by Gail Spellman, a nurse practitioner, and magnetic resonance imaging (MRI) scans dated 

March 5, 2011 and November 4, 2012. He also submitted an April 28, 2017 letter from Dr. Fraga, 

in which she noted that appellant had experienced back pain and symptoms since 

October 19, 2010.

By decision dated September 19, 2017, OWCP denied appellant’s schedule award claim,

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body due to the accepted employment injury.

On September 26, 2017 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. The hearing was held on March 7, 2018. Counsel noted during 

the hearing that appellant’s lumbar conditions were either preexisting or aggravated by the 

employment injury.

By decision dated April 16, 2018, OWCP’s hearing representative affirmed the denial of 

appellant’s schedule award claim. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for 

evaluating schedule losses.8 The effective date of the sixth edition of the A.M.A., Guides is 

May 1, 2009.9 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 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id.

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

2.808.6 (March 2017); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
4

impairments of the body are to be included.

10

 A schedule award is not payable under section 8107 

of FECA for an impairment of the whole person.11

A schedule award is not payable for a member, function, or organ of the body not specified 

in FECA or in the implementing regulations.12 As neither FECA nor the regulations provide for 

the payment of a schedule award for the permanent loss of use of the back or spine, no claimant is 

entitled to such an award.13 However, as FECA makes provision for the extremities, a claimant 

may be entitled to a schedule award for permanent impairment to an extremity even though the 

cause of the impairment originates in the spine, if the medical evidence establishes impairment as 

a result of the employment injury.

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 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

ANALYSIS

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

impairment of his left lower extremity causally related to his accepted employment injury, 

warranting a schedule award.

In his January 12, 2017 report, Dr. Fitzgerald rated appellant’s left lower extremity based 

the diagnoses of L4 lumbar radiculopathy, L4 herniated disc, and lumbar spondylosis. A schedule 

 

10 J.H., Docket No. 17-1916 (issued January 19, 2019); see Raymond E. Gwynn, 25 ECAB 247 (1983); Federal 

(FECA) Procedure Manual, supra note 9 at Schedule Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of 

OWCP’s procedures provides that the impairment rating of a given scheduled member should include any preexisting 

permanent impairment of the same member or function.

11 See A.L., Docket No. 08-1730 (issued March 16, 2009); Marilyn S. Freeland, 57 ECAB 607 (2006); Gordon G. 

McNeill, 42 ECAB 140 (1990).

12 See Tania R. Keka, 55 ECAB 354 (2004).

13 See id.; FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

14 See J.H., supra note 10; George E. Williams, 44 ECAB 530 (1993). 

15 See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 9 at Chapter 3.700, Exhibit 1, 

note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.

16 D.S., Docket No. 14-0012 (issued March 18, 2014).

17 See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014).
5

award can be paid only for a condition related to an employment injury. The claimant has the 

burden of proving that the condition for which a schedule award is sought is causally related to his 

or her employment.

18 Dr. Fitzgerald did not offer rationalized medical opinion which established 

that these diagnoses were causally related to the accepted employment injury, appellant is not 

entitled to a schedule award for permanent impairment of the left lower extremity arising from 

these diagnoses.19 The Board also finds that Dr. Fitzgerald did not specifically identify any lower 

extremity impairment due to appellant’s accepted lumbar sprain. Dr. Fitzgerald did not indicate 

that the work-related injury had affected any residual usefulness, in whole or in part, of the left 

lower extremity.20

While counsel has also contended that OWCP should have considered Dr. Fitzgerald’s 

diagnosed conditions to be preexisting and therefore included in a permanent impairment 

evaluation, the Board has explained that a preexisting, underlying condition should be considered 

when determining entitlement to a schedule award, but only to the extent that the work-related 

injury has affected any residual usefulness in whole or in part of the scheduled member.21 Since 

appellant has not established that the accepted condition of lumbar sprain caused a permanent 

impairment of a scheduled member, appellant is not entitled to a schedule award based solely on 

any preexisting conditions.

The remaining medical evidence is insufficient to support appellant’s claim. Dr. Fraga’s

December 20, 2016 note and April 28, 2017 letter do not address whether appellant had any 

permanent impairment of his left lower extremity. Evidence which does not address the issue of 

permanent impairment is irrelevant in a schedule award claim.22 Ms. Spellman’s October 19, 2010 

progress notes are not relevant as they do not constitute competent medical evidence as a nurse

practitioner is not a physician under FECA.23

Appellant has submitted no medical evidence in conformance with the sixth edition of the 

A.M.A., Guides, or The Guides Newsletter establishing that he has permanent impairment of a 

scheduled member or function of the body due to his accepted lumbar sprain condition. 

Consequently, appellant has not established entitlement to a schedule award.

 

18 Veronica Williams, 56 ECAB 367 (2005).

19 See G.F., Docket No. 16-0997 (issued November 15, 2016). 

20 Supra note 9 at Chapter 2.808.7(a)(1); 20 C.F.R. § 10.404(c).

21 See G.R., Docket No. 18-0735 (issued November 15, 2018). 

22 See P.D., Docket No. 17-1565 (issued February 21, 2018); J.D., Docket No. 17-0767 (issued 

November 28, 2017).

23 See J.M., Docket No. 17-1603 (issued April 10, 2018); G.A., Docket No. 09-2153 (issued June 10, 2010). Section 

8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, 

chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. 

§ 8101(2).
6

Appellant may request a schedule award or an increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

CONCLUSION

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

impairment of his left lower extremity causally related to his accepted employment injury,

warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 19, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board