United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.R., Appellant

and

DEPARTMENT OF THE ARMY, FORT 

JACKSON, SC, Employer

__________________________________________

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Docket No. 19-0521

Issued: July 29, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 9, 2019 appellant, through counsel, filed a timely appeal from a November 30, 

2018 merit decision of the Office of Workers’ Compensation Programs. 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 a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On October 19, 2010 appellant, then a 53-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that while in the performance of duty on October 15, 2010 he 

injured his left lower back and right elbow when his foot got hung up on a door liner causing him 

to fall. OWCP accepted the claim for a lumbar sprain. Appellant stopped work on October 15, 

2010 and resumed his regular employment on November 18, 2010. 

Appellant received treatment in 2015 for bilateral hip pain. On May 28, 2015

Dr. Shervin V. Oskouei, a Board-certified orthopedic surgeon, diagnosed severe bilateral 

degenerative joint disease of the hips, worse on the left. He recommended a left hip arthroplasty. 

In a permanent impairment worksheet dated June 10, 2016, Dr. Benjamin Levinson, a 

Board-certified internist, found that appellant had 23 percent permanent impairment of the left 

lower extremity due to osteoarthritis and avascular necrosis of the hip, 7 percent permanent 

impairment of the right lower extremity due to degenerative joint disease of the hip, and 2 percent 

whole person impairment due to degenerative changes. 

On August 29, 2016 appellant filed a claim for schedule award compensation (Form CA-7). 

In a development letter dated August 31, 2016, OWCP notified appellant of the type of 

evidence needed to establish his schedule award claim, including a statement from his physician 

that the accepted condition had reached maximum medical improvement (MMI) and an 

impairment rating utilizing the appropriate provisions of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3It advised 

that the physician should assess any permanent impairment of his affected extremities under The 

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

Guides Newsletter) (July/August 2009). OWCP afforded appellant 30 days for the submission of 

the necessary evidence. No additional evidence was received.

By decision dated October 25, 2016, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence was insufficient to establish that he had reached MMI or had 

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

On November 1, 2016 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. 

 

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

At the telephonic hearing, held on May 11, 2017, appellant asserted that he had injured his 

left hip as a result of his employment injury. Counsel requested that OWCP’s hearing

representative review the June 13, 2016 report from Dr. Levinson.

By decision dated July 25, 2017, OWCP’s hearing representative affirmed the October 25, 

2016 decision. She noted that OWCP had accepted only a lumbar sprain as employment related. 

The hearing representative found that there was no evidence establishing that appellant had 

sustained any permanent impairment causally related to his accepted lumbar sprain.

On December 14, 2017 appellant, through counsel, requested reconsideration. 

Thereafter, appellant submitted an impairment evaluation dated June 10, 2016 from

Dr. Levinson, who obtained a history of appellant falling on August 10, 2010 while exiting his 

vehicle, following which he experienced left hip pain. He diagnosed hip osteoarthritis and chronic 

low back pain. 

On January 29, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed the medical evidence of record and found that

Dr. Levinson’s impairment evaluation was not probative for schedule award purposes as he did 

not rate appellant’s impairment based on the accepted condition. He recommended OWCP refer 

appellant for a second opinion examination.

On October 19, 2018 OWCP referred appellant to Dr. Henry Clark Deriso, a Boardcertified orthopedic surgeon, for a second opinion examination.4

 

In a report dated November 7, 2018, Dr. Deriso reviewed appellant’s history of an 

October 15, 2010 employment injury, accepted for a lumbar sprain. He noted that several years 

after the injury appellant was diagnosed with hip osteoarthritis. On examination Dr. Deriso found 

positive straight leg raise with no muscle atrophy. He noted that appellant had recently had a 

magnetic resonance imaging (MRI) scan. Dr. Deriso diagnosed a history of lumbar disc strain and 

a nonemployment-related hip arthroplasty. He requested a copy of the MRI scan.

In a November 8, 2018 telephone call, OWCP advised appellant to submit a copy of any 

recent MRI scan for review by the second opinion examiner. 

In a supplemental report dated November 20, 2018, Dr. Deriso related that he had reviewed 

x-rays that had revealed multilevel degenerative disc disease unrelated to an injury. He advised 

that he was rendering a preliminary opinion regarding the extent of appellant’s impairment that 

might alter after review of an MRI scan. Dr. Deriso found that he had no objective evidence 

showing an impairment due to his October 2010 back strain. He noted that appellant had no “real 

radicular pain” and that the examination revealed “no focal lesions and [appellant] has essentially 

some incredulous responses in regard to his examination.” Dr. Deriso opined that appellant had 

no residuals of his back strain and thus no criteria indicating an impairment rating.

 

4 OWCP initially referred appellant to Dr. John B. Bieltz, an osteopath, for a second opinion examination; however,

Dr. Bieltz failed to submit a supplemental report as requested. Consequently, it referred appellant to Dr. Deriso. 
4

By decision dated November 30, 2018, OWCP denied modification of its July 25, 2017 

decision. It found that the relevant issue was not whether appellant’s claim should be expanded to 

include a bilateral hip condition, but rather whether he had established a ratable impairment due 

to his accepted lumbar sprain.

On appeal counsel contends that there exists a conflict in medical opinion and that OWCP 

erred in failing to give deference to the attending physician. 

LEGAL PRECEDENT

The schedule award provision of FECA,5and its implementing federal regulations,

6

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.8

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of 

diagnosis (CDX), which is then adjusted by grade modifiers based on functional history (GMFH), 

physical examination (GMPE) and clinical studies (GMCS).10 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons 

for their impairment choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.12

 

5 Supra note 2.

6 20 C.F.R. § 10.404.

7 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award 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).

8 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9 Supra note 3 at page 3, section 1.3, ICF: A Contemporary Model of Disablement.

10 Id. at 494-531.

11 Id. 411.

12 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 
5

Neither FECA nor its regulations provide for a schedule award for impairment to the back 

or to the body as a whole.13 Furthermore, the back is specifically excluded from the definition of 

organ under FECA.14 The sixth edition of the A.M.A., Guides does not provide a separate 

mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that 

FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter

offers an approach to rating spinal nerve impairments consistent with sixth edition methodology. 

For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, 

OWCP procedures indicate that The Guides Newsletter is to be applied.15

The claimant has the burden of proof to establish that the condition for which a schedule 

award is sought is causally related to his or her employment.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 nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.17

ANALYSIS

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

OWCP referred appellant to Dr. Deriso for an opinion regarding whether appellant was 

entitled to a schedule award based on his accepted condition of lumbar sprain. On November 7, 

2018 Dr. Deriso diagnosed lumbar disc strain and a hip arthroplasty unrelated to appellant’s

employment. In an addendum dated November 20, 2018, he indicated that his opinion regarding 

the impairment rating was preliminary and might change upon review of an MRI scan. Dr. Deriso 

opined that appellant had degenerative disc disease unrelated to the accepted employment injury. 

He advised that appellant had no significant radicular pain or focal lesions on examination. 

Dr. Deriso found that appellant had no residuals of his back strain and that there was no basis to 

render an impairment rating.

OWCP denied appellant’s claim based on the findings of Dr. Deriso in his November 7 

and 20, 2018 reports. Pursuant to its procedures, however, it should have routed the evidence from

Dr. Deriso to a DMA for review regarding the nature and percentage of impairment.

18

 OWCP’s 

procedures provide that it should request that the DMA “verify the calculations of the attending 

physician or second opinion examiner” and rate the impairment consistent with the provision of 

 

13 See J.L., Docket No. 18-1380 (issued May 1, 2019). FECA itself specifically excludes the back from the 

definition of organ. 5 U.S.C. § 8101(19). 

14 5 U.S.C. § 8101(19).

15 Supra note 7 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

16 See G.S., Docket No. 18-0827 (issued May 1, 2019).

17 Supra note 7 at Chapter 2.808.6(f) (March 2017).

18 Id.; see also L.T., Docket No. 18-1405 (issued April 8, 2019).
6

the A.M.A., Guides.

19

 As this was not done, the case must be remanded for referral to a DMA to 

determine the nature and extent, if any, of appellant’s impairment due to his accepted condition.

20

 

Following this and such further development as deemed necessary, OWCP shall issue a de novo

decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 30, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: July 29, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

19 Supra note 7 at Chapter 2.808.6(f)(1); see also R.H., Docket No. 17-1017 (issued December 4, 2018).

20 See L.T., supra note 18.