United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, CUPEY STATION, 

San Juan, PR, Employer

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Docket No. 19-0250

Issued: May 6, 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 November 1, 2018 appellant filed a timely appeal from a September 25, 2018 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.

1

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 16 percent 

permanent impairment of each lower extremity, for which he previously received schedule award

compensation.

 

1 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.

§ 501.5(b). By order dated March 13, 2019, the Board exercised its discretion and denied the request as appellant’s

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the

record. Order Denying Request for Oral Argument, Docket No. 19-0250 (issued March 13, 2019).
2

FACTUAL HISTORY

On October 15, 2013 appellant, then a 44-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging lower extremity injuries resulting from the performance of his 

federal duties. He noted that he first became aware of his claimed condition on August 10, 2001 

and related it to his federal employment on September 17, 2013. Appellant stopped work on 

August 10, 2001. 

OWCP, by decision dated January 27, 2015, accepted appellant’s claim for aggravation 

displacement of lumbar intervertebral disc without myelopathy, aggravation of bilateral thoracic 

or lumbosacral neuritis or radiculitis not otherwise specified, aggravation of degeneration of 

cervical intervertebral disc, other internal derangement of the right knee, and aggravation of 

osteoarthrosis unspecified of the right lower leg.

On August 31, 2015 appellant filed a claim for a schedule award (Form CA-7) due to his 

accepted employment injuries. In support of his claim, he submitted an April 10, 2015 report from

Dr. Samy F. Bishai, an attending orthopedic surgeon. Dr. Bishai diagnosed herniated lumbar disc 

at L5-S1, bilateral radiculopathy of the lower extremities, more severe left side, degenerative disc 

disease of the lumbar and cervical spines, internal derangement of the right knee joint, and 

degenerative arthritis of the right and left hip joints. He referred to the sixth edition of the 

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

Guides)

2

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

Edition (July/August 2009) (The Guides Newsletter) and determined that appellant had 16 percent 

permanent impairment of the left lower extremity due to radiculopathy of the L5 nerve root on the 

left side. Dr. Bishai found that he had reached maximum medical improvement (MMI) on 

April 10, 2015, the date of his examination.

On November 2, 2015 OWCP routed Dr. Bishai’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving 

as an OWCP district medical adviser (DMA), for review and a determination of permanent 

impairment of the left lower extremity and the date of MMI. 

In a November 13, 2015 report, Dr. Magliato noted deficiencies in Dr. Bishai’s report 

including that he had not specifically identified the nerve roots or peripheral nerves and class 

placement used to calculate his left lower extremity impairment ratings. He also did not rate 

impairment of appellant’s right lower extremity, although he mentioned right-sided radiculopathy, 

which was not as severe as the left side, in his report. Dr. Magliato recommended that OWCP 

obtain an addendum report from Dr. Bishai containing a detailed description of the nerve roots or 

peripheral nerves used to calculate his impairment rating and an evaluation of appellant’s right 

lower extremity permanent impairment.

By letter dated March 18, 2016, OWCP requested that Dr. Bishai review Dr. Magliato’s 

report and provide an addendum report within 30 days.

 

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

Dr. Bishai, in an addendum report dated April 5, 2016, reiterated the findings set forth in 

his prior April 10, 2015 report. He advised that appellant’s condition had not changed a great deal 

since his last examination. Dr. Bishai again determined that he had reached MMI as of 

April 10, 2015. He advised that he would provide a revised impairment rating based on appellant’s 

bilateral lower extremity radiculopathy, the only condition for which he had reached MMI, after 

reviewing all the medical records related to his condition.

In an additional addendum report dated April 6, 2016, Dr. Bishai again reiterated the

findings set forth in his April 10, 2015 report and utilized the sixth edition of the A.M.A., Guides

and The Guides Newsletter for calculating permanent impairment of appellant’s bilateral lower 

extremities. He reiterated that appellant had a class 2 impairment for bilateral lower extremity 

radiculopathy at the L5 nerve root under Table 17-4 on page 570. Dr. Bishai assigned a grade 

modifier of 2 for functional history (GMFH) because appellant had pain with normal activity. He 

assigned a grade modifier of 2 for physical examination (GMPE) because appellant had a positive 

straight leg raising test bilaterally. Dr. Bishai assigned a grade modifier of 2 for clinical studies 

(GMCS) as electromyogram/nerve conduction velocity (EMG/NCV) studies and a magnetic 

resonance imaging (MRI) scan of the lumbar spine were positive. He applied the net adjustment 

formula of (GMFH - CDX) (2-2) + (GMPE - CDX) (2-2) + (GMCS - CDX) (2-2) to find a net

adjustment of 0 or grade C. Dr. Bishai determined that appellant had moderate sensory deficit at 

grade C which yielded a finding of three percent lower extremity impairment. He further 

determined appellant had a moderate motor power deficit at grade C which yielded 13 percent 

lower extremity impairment. Dr. Bishai combined these values to conclude that he had a total of 

16 percent permanent impairment of each lower extremity due to radiculopathy of the L5 nerve 

root on the right and left sides.

On May 2, 2016 Dr. Magliato referred to The Guides Newsletter and agreed with

Dr. Bishai’s assessment that appellant had 16 percent permanent impairment of each lower 

extremity. He also determined that appellant had no permanent impairment of his bilateral upper 

extremities. Dr. Magliato advised that appellant had reached MMI on April 6, 2016, the date of

Dr. Bishai’s examination.

OWCP, by decision dated August 25, 2016, granted appellant a schedule award for 16 

percent permanent impairment of each lower extremity. The period of the award ran for 92.16 

weeks for the period April 6 through January 11, 2016, and was based on the opinions of Dr. Bishai

and Dr. Magliato.3

On March 23, 2018 appellant filed a claim for an increased schedule award (Form CA-7) 

due to his accepted employment injuries.

OWCP subsequently received a March 8, 2018 report by Dr. Mark A. Seldes, a Boardcertified family practitioner. Dr. Seldes reviewed appellant’s medical records, examined him, and 

provided physical and neurological examination findings. He diagnosed herniated lumbar disc at 

L5-S1, bilateral radiculopathy of the lower extremities, greater on the left side, degenerative disc 

 

3 On September 2, 2016 OWCP reissued the August 25, 2016 schedule award decision to reflect that the period of 

the award ran from April 6, 2016 through January 11, 2018. It paid the schedule award compensation in the amount 

of $14,598.26.
4

disease of the lumbar and cervical spines, patellofemoral syndrome of the right knee joint, and 

degenerative arthritis of the right and left knee joints. Dr. Seldes used the diagnosis-based 

impairment (DBI) rating method of the sixth edition of the A.M.A., Guides to calculate appellant’s 

right lower extremity permanent impairment. He found that, under Table 16-3, page 509, a 

diagnosis of muscle/tendon strain of tendinitis with moderate motion deficits represented a class 1 

impairment. Dr. Seldes assigned a grade modifier of 2 for GMFH under Table 16-7, page 516 due 

to an antalgic limp with asymmetric shortened stance and appellant’s routine use of a cane that he 

used on the day of his examination. He assigned a grade modifier of 2 for GMPE due to a moderate 

reduction in appellant’s range of motion (ROM). Dr. Seldes did not assign a GMCS. He applied 

the net adjustment formula of (GMFH - CDX) (2-1) + (GMPE - CDX) (2-1) to find a net

adjustment of 3 or grade E. Dr. Seldes again referenced Table 16-3 and found that, under the

diagnosis of strain, tendinitis with moderate motion deficits and/or significant weakness 

represented a grade E or 13 percent permanent impairment of the right lower extremity. He also 

used the ROM methodology to rate appellant’s right lower extremity impairment. Using Table 

16-3, page 549, Table 16-25, page 550, and Table 2-1, page 20, Dr. Seldes calculated 30 percent 

permanent impairment of the right lower extremity. He, therefore, concluded that appellant had 

30 percent impairment of the right lower extremity, as the ROM method provided a higher 

impairment rating than the DBI method. Dr. Seldes determined that appellant had reached MMI 

on the date of his examination.

In a development letter dated March 29, 2018, OWCP requested that appellant submit a 

report from his physician regarding his work-related condition in accordance with the sixth edition 

of the A.M.A., Guides. It advised that if appellant’s work-related injuries impaired his extremities 

caused by an injury to the spinal nerve then the physician should render an impairment rating of 

the affected extremity using The Guides Newsletter.

Appellant resubmitted Dr. Seldes’ March 8, 2018 report in response to OWCP’s 

development letter.

OWCP, on June 22, 2018, routed Dr. Seldes’ report, a SOAF, the case file, and a set of 

questions, to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP 

DMA, for review and a determination of permanent impairment of the bilateral lower extremities. 

In a June 29, 2018 report, the DMA reviewed the medical record and Dr. Seldes’ March 8, 

2018 report. He noted that the medical record established a diagnosis of right knee strain. The 

DMA disagreed with Dr. Seldes’ 30 percent bilateral lower extremity impairment rating as it was 

based on the ROM method. He explained that the sixth edition of the A.M.A., Guides did not 

allow for an impairment rating based on the ROM method for appellant’s diagnosed condition. 

The DMA noted that diagnoses in the particular regional grids that may alternatively be rated using

the ROM methodology were followed by an asterisk. He advised that the diagnosis of right knee 

strain was not followed by an asterisk. The DMA referenced appellant’s previous schedule awards

for 16 percent permanent impairment of each lower extremity and concluded that, based on the 

above, he had no increased bilateral lower extremity permanent impairment.

By decision dated September 25, 2018, OWCP denied appellant’s claim for an additional 

schedule award based on the opinion of the DMA.
5

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulations,

5

set 

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.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).8 In determining impairment for the lower extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity

to be rated. With respect to the knee, reference is made to Table 16-3 (Knee Regional Grid) 

beginning on page 509.9 After the class of diagnosis (CDX) is determined from the Knee Regional 

Grid (including identification of a default grade value), the net adjustment formula is applied using 

the grade modifier for functional history (GMFH), grade modifier for physical examination 

(GMPE), and grade modifier for clinical studies (GMCS). The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).10

 Under Chapter 2.3, evaluators are directed to provide 

reasons for their impairment rating choices, including choices of diagnoses from regional grids 

and calculations of modifier scores.11

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.12

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

8 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.

9

Id. at 509, Table 16-3.

10 Id. at 515-22.

11 Id. at 23-28.

12 See supra note 7 at Chapter 2.808.6(f) (March 2017).
6

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 16 

percent permanent impairment of each lower extremity, for which he previously received schedule 

award compensation.

OWCP accepted appellant’s claim for aggravation displacement of lumbar intervertebral 

disc without myelopathy, aggravation of bilateral thoracic or lumbosacral neuritis or radiculitis not 

otherwise specified, aggravation of degeneration of cervical intervertebral disc, other internal 

derangement of the right knee, and aggravation of osteoarthrosis unspecified of the right lower leg. 

By decision dated August 25, 2016, it granted him schedule award compensation for 16 percent 

permanent impairment of each lower extremity. On March 23, 2018 appellant filed a claim for an 

increased schedule award due to his accepted employment injuries.

Appellant’s physician, Dr. Seldes, utilized the DBI method to rate appellant’s right lower 

extremity impairment. Utilizing Table 16-3, page 509, Table 16-7, page 516 of the sixth edition 

of the A.M.A., Guides, he determined that appellant had 13 percent permanent impairment of the 

right lower extremity due to muscle/tendon strain of tendinitis with moderate motion deficits. 

Dr. Seldes also used the ROM method to rate appellant’s right lower extremity impairment. Using 

Table 16-3, page 549, Table 16-25, page 550, and Table 2-1, page 20, he determined that appellant

had 30 percent impairment of the right lower extremity. Dr. Seldes concluded that appellant had 

30 percent impairment of the right lower extremity, as the ROM method provided a higher 

impairment rating than the DBI method.

Dr. Harris, a DMA, disagreed with Dr. Seldes’ impairment rating because it was based on 

the ROM method. He correctly opined that the ROM rating method was not available as an 

alternative to the DBI rating method because appellant’s diagnosis of right knee strain was not 

eligible for ROM rating method under the A.M.A., Guides.

13

 The DMA referenced appellant’s 

previous schedule award compensation for 16 percent permanent impairment of each lower 

extremity, which is higher than Dr. Seldes’ 13 percent right lower extremity permanent impairment 

rating based on the DBI methodology. He maintained that, based on the above, appellant had no 

increased bilateral lower extremity permanent impairment. 

The Board finds that the DMA properly applied the A.M.A., Guides to find that appellant 

had no more than 16 percent permanent impairment of each lower extremity, for which he 

previously received schedule award compensation. As such, appellant has not met his burden of 

proof to establish increased permanent impairment greater than what was previously awarded.

On appeal appellant contends that he is entitled to an increased schedule award for his right 

knee. For the reasons discussed above, he has not established entitlement to a greater schedule

award.

 

13 See A.M.A., Guides 543.
7

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 16 

percent permanent impairment of each lower extremity, for which he previously received schedule 

award compensation.

ORDER

IT IS HEREBY ORDERED THAT the September 25, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 6, 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