United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.R., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, 

San Francisco, CA, Employer

__________________________________________

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Docket No. 18-1646

Issued: May 17, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 27, 2018 appellant filed a timely appeal from an April 4, 2018 merit decision 

and a June 29, 2018 nonmerit 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 to consider the merits of this case.2 

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. 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 additional evidence for the first time on 

appeal. Id.
2

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On December 22, 2014 appellant, then a 42-year-old maintenance worker, filed a traumatic 

injury claim (Form CA-1) alleging that on December 9, 2014 he sustained sharp low back pain

going down into his left leg while he was taking toilet paper rolls out of boxes and placing them 

in a garbage bag while in the performance of duty. He stopped work on December 15, 2014. 

OWCP accepted the claim for lumbar sprain, temporary aggravation of lumbar disc degeneration,

and lumbar radiculopathy. It paid appellant wage-loss compensation on the supplemental rolls as 

of January 29, 2015 and he was placed on the periodic rolls as of March 8, 2015. On April 17, 

2015 appellant underwent an OWCP-approved L5-S1 microdecompression partial facetectomy, 

foraminotomy, and discectomy.3 

On March 10, 2017 OWCP referred appellant for a second opinion examination with

Dr. Laura Sciaroni, a Board-certified orthopedic surgeon, to determine the status of his workrelated condition, the extent of his disability, and appropriate treatment. 

In an April 7, 2017 report, Dr. Sciaroni noted appellant’s history of injury and treatment.

She provided range of motion findings for the right and left lumbar spine to include: 20 degrees 

of flexion, 15 degrees of extension, and 20 degrees of lateral flexion, due to pain. Dr. Sciaroni 

noted that appellant was guarding with range of motion, self-limited with complaints of pain, and 

also noted that when he was not being formally examined he had lumbar flexion to at least 40 

degrees. She conducted additional tests and diagnosed back sprain, lumbar radiculopathy, and 

hand pain of unclear cause. Dr. Sciaroni opined that the lumbar injury was connected to the work 

injury by direct cause as well as aggravation of a previous lumbar disc herniation injury. She 

further indicated that there were no objective findings to support appellant’s complaints other than 

some degree of persistent back pain, that his hand complaints did not correspond with an industrial 

injury, and that he had reached maximum medical improvement (MMI). Dr. Sciaroni completed 

a work capacity evaluation (Form OWCP-5c) and prescribed sedentary work for up to four hours 

a day. 

On August 1, 2017 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated August 24, 2017, OWCP informed appellant that additional 

medical evidence was necessary to establish his schedule award claim. It advised him to submit a 

report from his treating physician which evaluated his permanent impairment pursuant to the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides).4 OWCP afforded appellant 30 days to submit the necessary evidence.

 

3 Appellant also has prior claims before OWCP. In OWCP File No. xxxxxx268, he alleged that on June 13, 2014 

he sustained an injury to the left foot when walking. OWCP administratively accepted the claim without formal 

adjudication. In OWCP File No. xxxxxx461, appellant alleged that on June 14, 2011 he sustained an injury when 

lifting trash bags out of the work truck and into a dumpster. OWCP accepted a lumbosacral strain as work related. 

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

In a September 14, 2017 report, Dr. Victoria Barber, a Board-certified orthopedic surgeon, 

noted appellant’s history, conducted a physical examination, and provided her findings. She

diagnosed status post L5-S1 microdiscectomy, residual low back pain, radiculopathy, and lower 

extremity weakness on the left. Dr. Barber determined that appellant continued to have residuals 

of lower back pain, but he was permanent and stationary. She provided range of motion findings 

for the lumbar spine to include: 10 degrees of extension, 40 degrees of flexion, 30 degrees for 

lateral bending on the right, and 20 degrees for lateral bending on the left. Dr. Barber also noted 

3/5 motor strength on the left, with 5/5 on the right. She utilized the fifth edition of the A.M.A., 

Guides,

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and explained that her findings were consistent with 13 percent whole person impairment. 

On February 8, 2018 OWCP referred the case to a district medical adviser (DMA) to 

determine if appellant had a work-related spinal injury which caused a permanent impairment of 

his lower extremities.

In a February 22, 2018 report, Dr. Slutsky, the DMA, utilized the A.M.A., Guides 

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

(The Guides Newsletter). He explained that Dr. Barber provided a nonspecific examination, as 

opposed to Dr. Sciaroni, who provided a very specific lower extremity examination and found 

evidence of lower extremity sensory or motor deficits associated with lumbar spine nerve roots. 

The DMA found that these findings were consistent with a normal lower extremity 

electromyography (EMG) scan and nerve conduction velocity (NCV) tests. He also noted that the 

most recent magnetic resonance imaging scan showed no nerve root impingement. The DMA 

explained that Dr. Barber found no lower extremity loss, only noted 3/5 weakness on the left, and 

provided no details regarding which muscles and lumbar nerve root innervations were involved. 

He also noted that she utilized the fifth edition of the A.M.A., Guides, as opposed to The Guides 

Newsletter July/August 2009 for rating nerve root deficits related to the spine. The DMA indicated 

that Dr. Sciaroni’s findings were more specific, consistent with the diagnostic testing, and reflected 

appellant’s best effort. He found that appellant had reached MMI on April 7, 2017. The DMA 

opined that the evidence did not demonstrate a permanent, measurable, scheduled impairment.

On March 12, 2018 OWCP requested clarification from the DMA with regard to his 

findings and history that appellant had not previously received a schedule award. In a March 25, 

2018 report, the DMA clarified that he merely noted that there was no mention of a prior schedule 

award. He explained that Dr. Sciaroni provided a specific lower extremity neurologic evaluation, 

whereas Dr. Barber’s examination was nonspecific. The DMA determined that there were no 

findings of specific lower extremity sensory or motor deficits related to lumbar spine nerve roots 

and, therefore, appellant was not eligible for a lower extremity impairment using The Guides 

Newsletter for rating nerve root deficits related to the spine. 

By decision dated April 4, 2018, OWCP denied appellant’s schedule award claim. It 

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

of a scheduled member or function of the body as required pursuant to 5 U.S.C. § 8107. 

On June 8, 2018 appellant requested reconsideration and submitted an April 6, 2018 report 

from Dr. Barber, amended on May 25, 2018. Dr. Barber explained that when she evaluated him

 

5 A.M.A., Guides (5th ed. 2001).
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on September 14, 2017 she had not been advised to use the sixth edition of the A.M.A., Guides. 

She opined that appellant had 13 percent whole person impairment. Dr. Barber referred to the 

sixth edition of the A.M.A., Guides, Table 17-4, Lumbar Spine Regional Grid,6and explained that 

he had findings consistent with a diagnosis class of 2 which equaled 14 percent whole person 

permanent impairment. She noted that this described an individual with intervertebral disc 

herniation single level, with medically documented findings with or without surgery and 

documented radiculopathy at clinical examination. Dr. Barber explained that her finding of 3/5 

motor strength on examination included slight elevation, flexion, and extension of the knee against 

resistance, dorsiflexion, plantar flexion, inversion and eversion of the foot, and extension of the 

extensor halluces. She noted that her findings were identified as being 3/5 on the left when 

compared with the right lower extremity, as opposed to Dr. Sciaroni, who had not identified any 

neurologic deficits, or found permanent impairment. 

By decision dated June 29, 2018, OWCP denied reconsideration of the merits of appellant’s 

claim. It determined that the additional medical report of Dr. Barber was cumulative and 

substantially similar to medical evidence previously considered.

LEGAL PRECEDENT -- ISSUE 1

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 As of May 1, 2009, the 

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

 

6 A.M.A., Guides 570.

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 

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

(January 2010).

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.C., Docket No. 17-1617 (issued January 8, 2018); Jay K. 

Tomokiyo, 51 ECAB 361, 367 (2000).

12 See supra note 10 at Chapter 2.808.5(c)(3) (March 2017).
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applied.13 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.14 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.15

ANALYSIS -- ISSUE 1

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

impairment of a scheduled member or function of the body, warranting a schedule award. 

In support of his claim appellant submitted a September 14, 2017 report from Dr. Barber

who utilized the fifth edition of the A.M.A., Guides and opined that appellant had 13 percent whole 

person permanent impairment. Dr. Barber’s September 14, 2017 report is of limited probative 

value as she neither used the sixth edition of the A.M.A., Guides nor The Guides Newsletter in 

calculating appellant’s permanent impairment.

16

 She also provided a whole person impairment

rating, which is of no probative value as a whole person permanent impairment rating is not 

permitted under FECA.17

The DMA, Dr. Slutsky, provided a February 22, 2018 report noting that he had reviewed

Dr. Barber’s report and explained why it was insufficient, as it did not address motor and sensory 

loss caused by accepted peripheral nerve injury. The DMA also reviewed Dr. Sciaroni’s April 7, 

2017 report and determined that his finding of no lower extremity sensory or motor deficits was 

consistent with appellant’s normal EMG and NCV testing. In a March 25, 2018 report, the DMA 

further indicated that there were no findings of specific lower extremity sensory or motor deficits 

related to lumbar spine nerve roots. He opined that appellant was not eligible for a lower extremity 

impairment using The Guides Newsletter for rating nerve root deficits related to the spine.

As appellant has not submitted medical evidence in conformance with the A.M.A., Guides, 

supporting permanent impairment of a scheduled member or function of the body, the Board finds 

that he has not met his burden of proof to establish his claim for a schedule award.

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

evidence of new exposure, or medical evidence showing a progression of an employment-related 

condition resulting in impairment or increased impairment. 

 

13 E.L, Docket No. 18-1492 (issued March 19, 2019); see also supra note 10 at Chapter 3.700, Exhibit 1, note 5 

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

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

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

16 A.R., id. 

17 A.L., Docket No. 08-1730 (issued March 16, 2009); Marilyn S. Freeland, 57 ECAB 607 (2006).
6

LEGAL PRECEDENT -- ISSUE 2

Section 8128 (a) of FECA does not entitle a claimant to review of an OWCP decision as a 

matter of right.18 OWCP has discretionary authority in this regard and has imposed certain 

limitations in exercising its authority.19 One such limitation is that the request for reconsideration 

must be received by OWCP within one year of the date of the decision for which review is sought.20

A timely application for reconsideration, including all supporting documents, must set forth 

arguments and contain evidence that either: (1) shows that OWCP erroneously applied or 

interpreted a specific point of law; (2) advances a relevant legal argument not previously 

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.21 If the request is timely, but fails to meet at least one of the requirements 

for reconsideration, OWCP will deny the request for reconsideration without reopening the case 

for a review on the merits.22

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a).

In his June 8, 2018 request for reconsideration, appellant did not argue that OWCP 

erroneously applied or interpreted a specific point of law or advance a relevant legal argument not 

previously considered by OWCP. Thus, he was not entitled to a review of the merits of his claim 

based on the first and second above-noted requirements under section 10.606(b)(3).23

In support of his reconsideration request, appellant submitted an April 6, 2018 report from

Dr. Barber, amended on May 25, 2018. Dr. Barber did not provide new examination findings, but 

rather restated her finding regarding motor strength testing. The Board finds that her April 6, 2018 

report, as amended, is substantially similar to her prior September 14, 2017 report. The Board has 

held that evidence which repeats or duplicates evidence already of record does not constitute a 

basis for reopening a case.24 Dr. Barber’s amended report did not provide relevant and pertinent 

 

18 This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment 

of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

19 20 C.F.R. § 10.607.

20 Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be 

received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the 

document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal 

Employees’ Compensation System. Id. at Chapter 2.1602.4b.

21 Id. at § 10.606(b)(3).

22 Id. at § 10.608(a), (b); see also C.C., Docket No. 18-0316 (issued March 14, 2019). 

23 See J.B., Docket No. 17-0628 (issued June 28, 2017).

24 E.N., Docket No. 16-1000 (issued September 20, 2016); D.K., 59 ECAB 141 (2007).
7

new evidence regarding appellant’s permanent impairment attributable to his accepted 

employment injuries. Thus, appellant was not entitled to a review of the merits of his claim based 

on the third above-noted requirements under section 10.606(b)(3).

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

CONCLUSION

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

impairment of a scheduled member or function of the body, warranting a schedule award. The 

Board further finds that OWCP properly denied his request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

ORDER

IT IS HEREBY ORDERED THAT the June 29 and April 4, 2018 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: May 17, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board