United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Reno, NV, Employer

__________________________________________

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Docket No. 18-0920

Issued: September 23, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 29, 2018 appellant, through counsel, filed a timely appeal from a February 5, 

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.3

 

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.

3 The Board notes that following the February 5, 2018 decision, OWCP received additional evidence. 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 

evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met her burden of proof to establish that she has greater 

than five percent permanent impairment of the right lower extremity, for which she previously 

received a schedule award.

FACTUAL HISTORY

This case was previously before the Board.4 The facts and circumstances as set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On April 7, 2011 appellant, a 56-year-old purchasing agent, filed a traumatic injury claim 

(Form CA-1) alleging an injury when she tripped over a telephone cord and fell onto her face while 

in the performance of duty. OWCP accepted the claim for nasal bone fracture, contusion of her 

right elbow and forearm, lumbar sprain, displacement of lumbar intervertebral disc without 

myelopathy, aggravation of degenerative disc disease of the lumbar spine, and right lateral 

epicondylitis. OWCP paid appellant wage-loss compensation on the supplemental rolls through 

December 30, 2011. 

On May 25, 2016 appellant filed a claim for a schedule award (Form CA-7).

In an April 18, 2016 report, Dr. Kenneth Pitman, a Board-certified anesthesiologist, opined

that appellant had reached maximum medical improvement (MMI). 

In support of her claim for a schedule award appellant submitted a July 13, 2016 report 

from Dr. Michael E. Hebrard, a Board-certified physiatrist, who reviewed her history of injury, 

her medical record and accepted employment-related conditions, his findings on physical 

examination, and applied the sixth edition of the American Medical Association, Guides to the 

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

5

 Dr. Hebrard noted that since 2012 she 

had been using a motorized scooter which was prescribed due to her back injury, that she could 

not walk one block, and that standing was problematic. On physical examination he noted that 

appellant’s lumbar spine range of motion (ROM) was limited by more than 50 percent and there 

was mild laxity with ulnar and radial stressing of the right elbow; sensory examination revealed 

paresthesia in the L4 through S1 dermatome distributions bilaterally with light and sharp touch;

deep tendon reflexes were unelicitable in the upper and lower extremities bilaterally; motor 

strength of the elbow was 4/5 bilaterally for flexion and extension; Jamar testing on the second 

ring, rapid alternating technique, averaged 18 and 10 on the right and 12, 14, and 12 on the left; 

good effort was evidenced by blanching of knuckles on each attempt; hip flexion was 4/5 

bilaterally; knee extension and flexion were 4/5 bilaterally; a positive sacroiliac (SI) joint 

compression test bilaterally and a positive Finkelstein test on the right wrist; and that she 

 

4 Docket No. 13-0624 (issued June 26, 2013).

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

demonstrated an antalgic gait on the right. Dr. Hebrard concluded that appellant’s conditions had 

never fully healed from the traumatic injury.6 

In rating appellant’s permanent impairment of her lumbar spine, Dr. Hebrard referenced 

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

(July/August2009) (The Guides Newsletter) and noted that he was rating the right side only, given 

the corroborating electromyography (EMG) evidence on the right, but not on the left. He found 

that appellant had a spinal nerve root impairment of L4-5 on the right. Dr. Hebrard opined that 

appellant had a moderate sensory deficit at L4 which equated to three percent permanent 

impairment and mild motor deficit which equated to five percent permanent impairment, totaling 

eight percent impairment for sensory and motor deficits at L4. For the right L5 rating, he found a 

moderate sensory deficit for three percent permanent impairment, mild motor deficit for five 

percent permanent impairment, totaling eight percent permanent impairment for sensory and motor 

deficit at L5. Using the Combined Values Chart on page 604, Dr. Hebrard found 15 percent 

permanent impairment for the spinal nerve root impairment on the right. 

On November 8, 2016 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed the medical evidence of record. He provided an

opinion as to permanent impairment of appellant’s right upper extremity permanent impairment, 

and reviewed the rating by Dr. Hebrard of her spinal conditions. Regarding appellant’s right 

elbow, the DMA found that her most impairing diagnosis was collateral ligament injury with 

instability, occasional, which was a CDX of 1 with a default impairment rating of five percent. He 

noted that Dr. Hebrard’s nine percent impairment rating was not an available choice for any of the 

impairments on page 399 of the A.M.A., Guides. The DMA also noted that Dr. Hebrard observed 

“mild laxity” of the right elbow with ulnar and lateral stress to the elbow and opined that the 

presence of laxity did not imply the existence of instability, and in search of the records, he was 

unable to find documentation of an episode of elbow instability. He indicated concerns with the 

ratings provided by Dr. Hebrard as he had assigned no grade modifiers for his determination of 

spinal nerve impairment. Given the lack of detail regarding the determination of spinal nerve 

impairment to the lower extremity, the DMA recommended a second opinion evaluation to 

determine appellant’s work-related permanent impairment. 

OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon,

for a second opinion evaluation to determine the nature and extent of her employment-related 

permanent impairment. In his March 8, 2017 report, Dr. Swartz noted that he had reviewed a 

statement of accepted facts (SOAF), the medical record, and performed a physical examination. 

He noted mild tenderness in the right lateral epicondyle and a negative Cozen’s test referable to 

the right lateral elbow; a negative reverse Cozen’s test referable to the right medial epicondyle; 

range of motion (ROM) testing of the right elbow as compared to the left elbow demonstrated

extension 0/0 degrees, flexion 130/130 degrees, pronation 90/90 degrees, and supination 70/70 

 

6 Utilizing the Elbow Regional Grid, Table 15-4, page 399, of the sixth edition of the A.M.A., Guides Dr. Hebrard 

found that appellant’s most impairing diagnosis was a class 1 collateral ligament injury, with recurrent instability and 

atrophy on clinical examination. He determined a class of diagnosis (CDX) of 1 and assigned a grade modifier of 2 

for physical examination (GMPE) due to pain with normal activity and medications to control symptoms. Dr. Hebrard

assigned a grade modifier of 2 for functional history (GMFH) due to a 2 centimeter atrophy in the right dominant hand 

and biceps. No grade modifier was provided for clinical studies (GMCS). Using the net adjustment formula (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Hebrard calculated that appellant had a net adjustment of (2-1) + (2-1) 

+ (n/a) = 2, equaling a default grade E. Based on these calculations, he concluded that appellant had nine percent 

permanent impairment of the right elbow. 
4

degrees; and 5/5 strength in both elbows; and no evidence of instability to the right elbow or the 

left elbow. Dr. Swartz opined that, pursuant to the A.M.A., Guides Table 15-4, Elbow Regional 

Grid, page 399, appellant’s most impairing diagnosis was chronic lateral epicondylitis of the right 

elbow, noting it was relatively mild and symptomatic in colder weather. He found a CDX of 1 

with a default impairment rating of one percent. Dr. Swartz assigned a GMFH of 1, with no GMPE 

or GMCS applicable, and found one percent permanent impairment of the right upper extremity. 

Examination of her lumbar spine revealed tenderness in the lower lumbar segments from L4-S1, 

without spasm, although Dr. Swartz reported that she was significantly obese which made 

discerning spasm difficult; mild tenderness over both SI joints and mild tenderness in both 

iliolumbar ligament regions; mild tenderness in the right sciatic notch, but not on the left; mild 

tenderness over both lateral hips; lumbar flexion of 60 degrees, lumbar extension of 10 degrees, 

lateral flexion of 20 degrees to the right and to the left, and rotation of 40 degrees to the right and 

to the left; reflexes were absent in the lower extremities; and sensation was intact in both the upper 

and lower extremities. He determined that appellant had reached MMI on March 8, 2017. 

Regarding the lumbar spine, Dr. Swartz opined that appellant’s most impairing diagnosis 

was chronic low back and right lower extremity pain, with February 9, 2016 magnetic resonance 

imaging (MRI) scan findings of moderate-sized right paramedian disc protrusion with marked 

right lateral recess stenosis, impinging on the emerging right L4 nerve root, and noting only 

borderline bilateral foraminal stenosis. He noted EMG findings dated December 18, 2015 of

possible right L4-5 radiculopathy versus local superior gluteal neuropathy, a normal neurologic 

examination in the lower extremities, and normal straight-leg raise testing bilaterally. Dr. Swartz

noted, however, that her objective complaints had been consistent in the low back and right lower 

extremity and that the MRI scan and electrodiagnostic studies correlated with these objective 

findings. In addition to tenderness in the right sciatic notch the neurological problems appeared 

to be involving the L3-4 level and the L4 nerve root on the right. Utilizing The Guides Newsletter,

he found that pursuant to page 6, Table 2, the electrodiagnostic studies supported a five percent 

lower extremity impairment. Dr. Swartz found a GMFH of one due to mild antalgic gait and use 

of a cane, a GMCS of one for an EMG study revealing 1+ polyphasic motor unit activity and an 

indication of fibrillation potentials and a positive shockwave. There was no GMPE provided. 

Using the net adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he calculated 

that appellant had a net adjustment of (1-1) + (n/a) + (1-1) = zero, equaling a default grade C. 

Based on these calculations, Dr. Swartz concluded that appellant had five percent permanent 

impairment of the right lower extremity related to her accepted lumbar spine conditions. 

On April 14, 2017 the DMA reviewed the medical evidence of record, including the second 

opinion report of Dr. Swartz, and provided updated impairment ratings.7 Regarding appellant’s 

lumbar condition, the DMA found a CDX of 1 with a default impairment rating of five percent. 

He assigned a GMFH of 1 and a GMCS of 1 and found GMPE was not applicable. Using the net 

adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), the DMA calculated that 

appellant had a net adjustment of (1-1) + (n/a) + (1-1) = zero, equaling a default grade C, for five

percent permanent impairment of the right lower extremity. 

 

7 The DMA found that for appellant’s right upper extremity that her most impairing diagnosis was epicondylitis 

(lateral or medial, painful injury, residual symptoms) with a CDX of 1 with a default impairment rating of one percent. 

He assigned a GMFH of 1 and GMPE of 1, and no GMCS. Using the net adjustment formula (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX), the DMA calculated that appellant had a net adjustment of (1-1) + (1-1) + (n/a) = 

zero, equaling a default grade C for one percent permanent impairment of the right upper extremity.
5

By decision dated May 31, 2017, OWCP granted appellant a schedule award for one

percent permanent impairment of the right upper extremity and five percent permanent impairment 

of the right lower extremity. The award ran for 17.52 weeks for the period March 8 to July 8, 2017. 

On June 8, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

Appellant submitted progress reports and procedure notes from June 23 to September 28, 

2017 from Dr. Pitman as well as notes from a nurse practitioner.

A telephonic hearing was held before an OWCP hearing representative on 

November 15, 2017. Appellant provided testimony and the case record was held open for 30 days 

for the submission of additional evidence. 

Appellant subsequently submitted progress reports dated October 26 and December 20, 

2017 from Dr. Pitman consisting of diagnostic reports.

By decision dated February 5, 2018, an OWCP hearing representative affirmed the prior 

schedule award decision with respect to the right lower extremity and remanded the case for further 

development regarding the right upper extremity based upon the necessity of consideration of a 

ROM-based impairment rating.8

LEGAL PRECEDENT

The schedule award provision of FECA,9and its implementing federal regulations,10 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 2009.11 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.12

 

8 FECA Bulletin No. 17-06 (issued May 8, 2017).

9 Supra note 2.

10 20 C.F.R. § 10.404. By decision dated February 5, 2018, an OWCP hearing representative remanded appellant’s 

schedule award claim of her right upper extremity for further development as to the extent of her permanent 

impairment under the ROM method of evaluating permanent impairment. Therefore, the issue of the extent of 

appellant’s right upper extremity schedule award is not presently before the Board. See 20 C.F.R. § 501.2(c).

11 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); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

12 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
6

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).13 Under the sixth edition, the evaluator identifies the CDX, which is then 

adjusted by grade modifiers of GMFH, GMPE, and GMCS.14 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15 Evaluators are directed to provide reasons 

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

calculations of modifier scores.16

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

or to the body as a whole.17 Furthermore, the back is specifically excluded from the definition of 

organ under FECA.18 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.19

A 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.20

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that she has 

greater than five percent permanent impairment of the right lower extremity, for which she 

previously received a schedule award. 

In his July 13, 2016 report, Dr. Hebrard indicated that appellant’s lumbar spine ROM was 

limited by more than 50 percent and provided specific physical examination findings. Referring 

to The Guides Newsletter, he found that appellant had a spinal nerve root impairment of L4-5 on 

the right. Dr. Hebrard opined that appellant had a moderate sensory deficit at L4 which equated 

to three percent permanent impairment and mild motor deficit which equated to five percent 

permanent impairment, totaling eight percent impairment for sensory and motor deficits at L4. For 

the right L5 rating he found a moderate sensory deficit for three percent permanent impairment, 

mild motor deficit for five percent permanent impairment, totaling eight percent permanent 

 

13 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

14 Id. at 494-531.

15 Id. at 411.

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

17 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). 

18 5 U.S.C. § 8101(19).

19 Supra note 6 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

20 See G.S., Docket No. 18-0827 (issued May 1, 2019).
7

impairment for sensory and motor deficit at L5. Using the Combined Values Chart on page 604, 

he found 15 percent permanent impairment for the spinal nerve root impairment on the right. 

Following review by a DMA, OWCP properly referred appellant to Dr. Swartz for a second 

opinion evaluation to determine the nature and extent of her employment-related permanent 

impairment. In his March 8, 2017 report, Dr. Swartz provided physical examination findings and

determined that appellant had reached MMI on March 8, 2017. Regarding the lumbar spine he

utilized The Guides Newsletter to find five percent permanent impairment of the right lower 

extremity due to her spinal nerve impairment pursuant to page 6, Table 2. Dr. Swartz found a 

GMFH of 1due to mild antalgic gait and use of a cane, a GMCS of 1 for an EMG study revealing 

1+ polyphasic motor unit activity and an indication of fibrillation potentials and a positive 

shockwave. There was no GMPE provided. Using the net adjustment formula (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX), he calculated that appellant had a net adjustment of (1-1) + (n/a) 

+ (1-1) = zero, equaling a default grade C. Based on these calculations, Dr. Swartz concluded that 

appellant had five percent permanent impairment of the right lower extremity related to her 

accepted lumbar spine conditions. 

In accordance with its procedures, following the second opinion evaluation, OWCP 

properly referred the evidence of record to a DMA for review. On April 14, 2017 the DMA

reviewed the medical evidence of record, including the March 8, 2017 report of Dr. Swartz, and 

concluded that the rating provided by Dr. Swartz for the right lower extremity, five percent 

permanent impairment, was appropriate.

The Board finds that the DMA correctly applied the appropriate tables and grading schemes 

of The Guides Newsletter to Dr. Swartz’s physical examination findings. The DMA’s calculations 

were in accord with the rating provided by the second opinion report of Dr. Swartz. Both the DMA 

and Dr. Swartz noted the lack of a thorough explanation regarding Dr. Hebrard’s lower extremity 

impairment rating, and no additional clarification was received from Dr. Hebrard. There is no 

medical evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., 

Guides or The Guides Newsletter demonstrating a greater percentage of permanent impairment of 

the right lower extremity. Accordingly, the Board finds that as appellant has not submitted medical 

evidence establishing more than five percent permanent impairment of her right lower extremity, 

she has not met her burden of proof.

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 her burden of proof to establish greater than 

five percent permanent impairment of the right lower extremity, for which she previously received 

a schedule award.
8

ORDER

IT IS HEREBY ORDERED THAT the February 5, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 23, 2019

Washington, DC

Christopher J. Godfrey, 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