United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

South Burlington, VT, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1535

Issued: August 27, 2020

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 11, 2019 appellant, through counsel, filed a timely appeal from May 14, 2019 merit 

decisions 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 permanent 

impairment of a scheduled member or function of the body. 

FACTUAL HISTORY

On October 5, 2013 appellant, then a 44-year-old city letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained herniated discs, causing symptoms in his 

lower back, hips, and right leg/foot, as a result of the his federal employment duties, including 

walking his mail delivery route and driving a postal vehicle. He noted that he first became aware 

of his condition on June 15, 2013 and first realized its relation to his federal employment on 

September 16, 2013. Appellant did not stop work, but began working in a limited-duty position.

OWCP accepted his claim for central disc herniation at L5-S1 and bilateral lumbar radiculopathy. 

In a report dated January 29, 2014, Dr. Mary T. Flimlin, Board-certified in physical 

medicine and rehabilitation, noted that appellant primarily complained of low back pain which 

radiated into his right hip. She indicated that, on physical examination, appellant exhibited 

negative results of straight leg raise testing, absent right Achilles reflex, left Achilles reflex of 1, 

and grossly normal strength for all major muscle groups. Dr. Flimlin advised that a January 24, 

2014 electromyogram and nerve conduction velocity (EMG/NCV) study contained an impression 

of relatively normal results with a slight decrease in the complex action potential of the peroneal

area (no elicitable F-wave), a finding which could be considered a normal variant. A September 4, 

2013 magnetic resonance imaging (MRI) scan of the low back showed, inter alia, left foraminal 

disc protrusion and herniation at L2-3, mild facet hypertrophy at L3-4, and disc bulges at L4-5 and 

L5-S1. 

In an undated note received by OWCP on September 6, 2016, Dr. Flimlin indicated that 

appellant had reached maximum medical improvement (MMI). 

On December 1, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated December 15, 2016, OWCP informed appellant that he 

should submit a detailed narrative medical report from his treating physician that calculated lower 

extremity permanent impairment utilizing The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which was a 

supplemental publication of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the 

requested evidence.

In a March 8, 2017 report, Dr. Mesfin Seyoum, Board-certified in family medicine, 

discussed appellant’s factual and medical history and reported findings on physical examination. 

On examination of the lumbosacral spine, he observed slightly limited lumbar range of motion 

with back pain at extreme ranges, as well as paraspinal tenderness and muscle spasms. Dr. Seyoum 

advised that the sensory examination revealed mildly decreased sensation of the bilateral L5 and 

 

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

S1 dermatomes, while the motor examination revealed 4/5 motor strength of the bilateral extensor 

halluces longus and plantar flexor muscles, and deep tendon reflects of 1+/4 in the right knee and 

ankle compared to 2+/4 on the left side. Appellant’s QuickDASH questionnaire indicated a mild 

deficit of the lower limb, a pain disability questionnaire indicated mild pain-related impairment,

and he reported difficulty in performing activities of daily living. Dr. Seyoum discussed 

appellant’s testing results and diagnosed lumbosacral neuritis and lumbar disc displacement. He 

then utilized The Guides Newsletter to calculate appellant’s permanent impairment under the 

diagnosis-based impairment (DBI) rating method. Dr. Seyoum noted that appellant had lumbar 

radiculopathy involving the bilateral L5 and S1 nerve roots and calculated the percentage of 

impairment based on each nerve root. 

With regard to the right L5 nerve root, Dr. Seyoum referenced Proposed Table 2 and noted 

that appellant’s condition fell under a class of diagnosis (CDX) of 1 with default values for lower 

extremity permanent impairment of one percent (due to mild sensory deficit) and five percent (due 

to mild motor deficit). Referring to Tables 16-6 and 16-8 on pages 516 and 519 of the sixth edition 

of the A.M.A., Guides, he calculated a grade modifier for function history (GMFH) of 1 (mild 

deficit on the lower limb questionnaire) and a grade modifier for clinical studies (GMCS) of 2 

(positive lumbar spine MRI scan findings). Application of the net adjustment formula required +1

movement from the default sensory and motor deficit values and resulted in nine percent 

permanent impairment associated with the L5 nerve root. With regard to the right S1 nerve root,

Dr. Seyoum found that appellant’s condition fell under a CDX of 1 with default values of one

percent (due to mild sensory deficit) and three percent (due to mild motor deficit). He noted that 

adjustment was not applicable as it had been applied to the right L5 nerve root already, resulting 

in four percent permanent impairment associated with the S1 nerve root. Adding the percentages

of impairment for the right L5 and S1 nerve roots together, Dr. Seyoum determined that appellant 

had a total right lower extremity impairment of 13 percent. He performed similar calculations for 

appellant’s left L5 and S1 nerve roots to determine that he had a total left lower extremity 

impairment of 13 percent. 

On April 20, 2017 OWCP routed Dr. Seyoum’s report, a statement of accepted facts, and 

the case file to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP 

district medical adviser (DMA), for an opinion on permanent impairment under the standards of 

The Guides Newsletter and the sixth edition of the A.M.A., Guides. 

In an April 24, 2017 report, the DMA reviewed the medical evidence of record and noted 

that the January 29, 2014 EMG/NCV study was within normal limits, and that Dr. Flimlin had 

observed physical examination findings of grossly normal strength for all major muscle groups. 

He maintained that there was a conflict of opinion between Dr. Seyoum’s rating of significant 

permanent impairment and her essentially normal physical examination and diagnostic testing 

results. The DMA noted that, as this difference presented a conflict of information that could not 

be resolved on the basis of a medical records review, he recommended a second opinion

examination to evaluate appellant’s permanent impairment. 

On May 8, 2017 OWCP referred appellant for a second opinion examination to Dr. Mark 

Bernhard, an osteopath Board-certified in physical medicine and rehabilitation. It requested that 

he provide an opinion on permanent impairment under the standards of The Guides Newsletter and 

the sixth edition of the A.M.A., Guides. 
4

In a report dated May 19, 2017, Dr. Bernhard reviewed the medical record and noted that 

appellant presented complaining of low back pain, but no radiation of pain to his lower extremities. 

He performed a physical examination of appellant’s lumbosacral spine and lower extremities and 

noted that appellant’s date of MMI was the same as the date of his examination. On examination 

of the lumbosacral spine, Dr. Bernhard noted tenderness to palpation of the right, normal 

alignment, and no tenderness of the sacroiliac joint, pelvic brims, or buttocks. Range of motion 

testing indicated deficits of 10 degrees for true lumbar flexion, 3 degrees for sacral flexion, 3 

degrees for extension, 5 degrees for left lateral bending, and 2 degrees for right lateral bending. 

Dr. Bernhard noted bilateral knee/ankle jerks and straight leg raising were within normal limits, 

while sensation to light touch and pinprick was intact bilaterally. Muscle strength was within 

normal limits in both lower extremities. Dr. Bernhard noted that, in contrast to Dr. Seyoum’s 

report, he did not find asymmetry of the deep tendon reflexes or reduced strength of the bilateral 

extensor halluces muscles.

Dr. Bernhard then utilized The Guides Newsletter to calculate appellant’s permanent 

impairment under the DBI rating method. Referencing Proposed Table 2, he noted that appellant’s 

nerve root injury fell under a default value of one for the right and left L5 roots, as well as for the 

right and left S1 roots, due to mild sensory deficit. Dr. Bernhard observed that the findings on 

examination were confined predominantly to the bilateral L5 and S1 nerve roots with diminished 

sensory findings to light touch and pinprick at L5 and S1 bilaterally. He noted that appellant had 

a GMFH of 1 in both lower extremities given some degree of difficulty in performing heavy work 

and the need for anti-inflammatory medication. Appellant had a GMCS of 1 due to normal clinical 

studies. Dr. Bernhard indicated that rating the right L5 nerve root resulted in an adjustment one 

grade to the left of the one percent default value for mild sensory deficit (moving from grade C to 

grade B) and warranted a finding of one percent permanent impairment due to right L5 sensory 

deficit. Rating the right S1 nerve root also resulted in movement one grade to the left of the one 

percent default value for mild sensory deficit, but warranted a finding of zero percent impairment.

Dr. Bernhard therefore concluded that appellant had one percent permanent impairment of his right 

lower extremity. He performed a similar calculation to conclude that appellant had one percent 

permanent impairment of his left lower extremity. 

On June 29, 2017 OWCP routed Dr. Bernhard’s May 19, 2017 report back to the DMA for 

review and an opinion on permanent impairment. In a June 30, 2017 report, the DMA concurred 

with Dr. Bernhard’s calculation of one percent permanent impairment of each lower extremity. 

He explained that Dr. Bernhard’s determination of impairment was more consistent with

Dr. Flimlin’s findings than with those of Dr. Seyoum, and noted that Dr. Bernhard had performed 

his calculations in accordance with standards of the sixth edition of the A.M.A, Guides. 

In a report dated October 18, 2017, Dr. Seyoum maintained that Dr. Bernhard’s May 19, 

2017 report contained an inconsistency as he noted intact sensation to light touch and pinprick in 

one portion of the report and also noted diminished sensory findings to light touch and pinprick at 

L5 and S1 bilaterally in another portion. He asserted that Dr. Bernhard had not specified whether 

his sensory examination had been performed on the lower extremities. 

By decision dated October 27, 2017, OWCP granted appellant a schedule award for one

percent permanent impairment of each lower extremity. The award ran for 5.76 weeks from 

May 19 through June 28, 2017 and was based on the rating reports of Dr. Bernhard and the DMA.
5

On November 6, 2017 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Prior to a hearing being held, OWCP’s hearing representative issued a February 9, 2018 

decision setting aside OWCP’s October 27, 2017 decision and remanding the case to OWCP for 

further development. She determined that there was an unresolved conflict in the medical opinion 

evidence regarding permanent impairment between Dr. Seyoum and Dr. Bernhard. The hearing 

representative directed OWCP, on remand, to refer appellant to an impartial medical specialist for

examination and evaluation of his permanent impairment, to be followed by issuance of a de novo

decision. 

Appellant submitted a February 21, 2018 report from Dr. Seyoum who repeated the 

objections to Dr. Bernhard’s May 19, 2017 impairment rating contained in his October 18, 2017 

report. Dr. Seyoum opined that an updated EMG/NCV study was necessary to accurately assess 

appellant’s radiculopathy. 

On August 30, 2018 OWCP referred appellant to Dr. Amit Sahasrabudhe, a Board-certified 

orthopedic surgeon, for an impartial medical examination and opinion on permanent impairment 

under the standards of The Guides Newsletter and the sixth edition of the A.M.A., Guides. 

In a report dated October 18, 2018, Dr. Sahasrabudhe discussed appellant’s history of 

injury and reviewed the medical reports of record. On examination of the lower back, he observed 

no tenderness to palpation, mild limitation of range of motion, mild low back pain on extension, 

and a negative straight leg raise test bilaterally. On examination of the lower extremities,

Dr. Sahasrabudhe observed no tenderness to palpation, full range of motion with 5/5 strength, 

grossly intact sensation to light touch bilaterally from L2 to S1, 2+ dorsalis pedis pulses, and 1+ 

patellar tendon and Achilles reflexes. He advised that appellant reached MMI as of May 19, 2017. 

Dr. Sahasrabudhe noted that appellant’s claim was accepted for lumbar disc displacement at L4-5 

and lumbar neuritis/radiculopathy, but indicated that the June 6, 2018 MRI scan demonstrated 

spinal canal stenosis at L4-5 which would explain his reported ongoing lower back pain and

intermittent radicular complaints. He then referenced The Guides Newsletter and noted that there 

were no unequivocal ratable sensory or motor deficits seen during the October 18, 2018

examination. Dr. Sahasrabudhe indicated that Dr. Bernhard noted in his May 19, 2017 report that 

appellant denied radicular symptoms and advised that, although Dr. Bernhard found impairment, 

he reported normal sensory and motor examination findings. He also discussed Dr. Seyoum’s

clinical findings, noting that they differed from his own. Dr. Sahasrabudhe further indicated that,

as appellant had normal examination findings during the October 18, 2018 examination, according 

to Proposed Table 2 there would be no impairment given for motor or sensory deficits of the lower 

extremities, resulting in zero percent permanent impairment of each lower extremity.

By decision dated November 5, 2018, OWCP denied appellant’s claim for an increased 

schedule award. It explained that this denial was based on the fact that Dr. Sahasrabudhe, the 

impartial medical specialist, determined in an October 18, 2018 report that appellant had no 

permanent impairment of either lower extremity. OWCP found that, because Dr. Sahasrabudhe’s 

October 18, 2018 report fully resolved the conflict in the medical opinion evidence regarding 

permanent impairment, further review by a DMA was not necessary. 
6

On November 12, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review with respect to the November 5, 2018 

schedule award decision. 

The hearing regarding the schedule award was held on March 1, 2019. 

By decision dated May 7, 2019, OWCP’s hearing representative remanded the case file for 

referral to a DMA in order to review the October 18, 2018 report of Dr. Sahasrabudhe, to be 

followed by issuance of a de novo decision. 

By decision dated May 14, 2019, a representative of OWCP’s Branch of Hearings and 

Review, acting on OWCP’s discretionary authority to review an award for or against payment of 

compensation, vacated the May 7, 2019 decision and affirmed the November 5, 2018 schedule 

award decision. The representative explained that, under OWCP’s procedures, if a case had been 

referred for referee evaluation to resolve the issue of permanent impairment, it was not necessary 

to route the file to another DMA to review the referee calculations as long as the referee’s report 

fully resolved the conflict and provided a thorough explanation of impairment according to the 

sixth edition of the A.M.A., Guides. 

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing 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 to 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

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.8 However, a schedule 

award is permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.9 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for 

rating spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5(a) (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010). 

8 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); 

Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

9 See supra note 7 at Chapter 2.808.5c(3) (March 2017).
7

ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy 

affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve 

extremity impairment are incorporated in the Federal (FECA) Procedure Manual.10

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

11

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

specialist, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.12

ANALYSIS

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.

OWCP properly declared a conflict in medical opinion based on the differing opinions 

regarding the extent of appellant’s bilateral lower extremity impairment. Whereas appellant’s

treating physician, Dr. Seyoum, found 13 percent permanent impairment of each lower extremity,

Dr. Bernhard, an OWCP referral physician, found 1 percent permanent impairment of each lower 

extremity. On remand from its October 27, 2017 decision granting appellant a schedule award for 

one percent permanent impairment of each lower extremity, OWCP properly referred appellant to

Dr. Sahasrabudhe for an impartial medical examination and opinion on permanent impairment. In 

his October 18, 2018 report, Dr. Sahasrabudhe applied the FECA-approved methodology for 

rating spinal nerve extremity impairment and correctly found that appellant had zero percent 

permanent impairment of each lower extremity.

When a case is referred to an impartial medical specialist to resolve a conflict, the resulting 

medical opinion, if sufficiently well-reasoned and based upon a proper factual background, must 

be given special weight. The Board finds that OWCP properly relied on Dr. Sahasrabudhe’s 

October 18, 2018 opinion.13 Dr. Sahasrabudhe provided a well-reasoned report based on a proper 

factual and medical history. Additionally, his report included detailed findings on physical 

examination, provided a thorough review of the record, and provided medical rationale supporting 

his opinion. Dr. Sahasrabudhe properly referenced The Guides Newsletter and explained that 

appellant exhibited no unequivocal sensory or motor deficits during the October 18, 2018 

 

10 See supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

11 5 U.S.C. § 8123(a).

12 D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 

1010 (1980).

13 The Board notes that OWCP properly found that, under its procedures, it was not necessary to route

Dr. Sahasrabudhe’s October 18, 2018 referee’s report to another DMA to review the referee calculations, as

Dr. Sahasrabudhe’s report fully resolved the conflict of medical opinion and provided a thorough explanation of his 

calculation of impairment. See supra note 7 at Chapter 2.808.6g (March 2017).
8

examination. He indicated that, as appellant had normal examination findings, according to 

Proposed Table 2 of The Guides Newsletter, there would be no impairment given for motor or 

sensory deficits of the lower extremities. As the impartial medical specialist, Dr. Sahasrabudhe’s

well-reasoned October 18, 2018 opinion is entitled to special weight.14 Accordingly, OWCP 

properly found that appellant currently had zero percent permanent impairment of each lower 

extremity under the sixth edition of the A.M.A., Guides.

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 permanent 

impairment of a scheduled member or function of the body. 

 

14 See id.
9

ORDER

IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: August 27, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board