United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.C., Appellant

and

SMALL BUSINESS ADMINISTRATION, 

OFFICE OF DISASTER ASSISTANCE, 

Herndon, VA, Employer

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Docket No. 21-0288

Issued: July 1, 2021

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

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 22, 2020 appellant, through counsel, filed a timely appeal from a 

November 30, 2020 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.

 

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 her burden of proof to establish greater than one 

percent permanent impairment of the left lower extremity, for which she previously received a 

schedule award. 

FACTUAL HISTORY

This case has previously been before the Board on another issue.

3

 The facts and 

circumstances as set forth in the Board’s prior decision and order are incorporated herein by 

reference. The relevant facts are as follows. 

On October 11, 2011 appellant, then a 52-year-old seasonal, intermittent customer service 

representative, filed a traumatic injury claim (Form CA-1) alleging that on October 7, 2011 she 

sustained neck and back injuries when she was involved in a motor vehicle accident while in travel 

duty status in Pennsylvania.4 Appellant stopped work and returned to full-time, limited duty on 

October 12, 2011. OWCP accepted her claim for neck sprain. It subsequently expanded 

acceptance of her claim to include aggravation of lumbar degenerative disc disease at L4-5 and 

L5-S1, aggravation of cervical degenerative disc disease at C5-6, aggravation of lumbar herniated 

disc at L4-5 and L5-S1, aggravation of cervical herniated disc at C4-5, and aggravation of left 

neuroforaminal stenosis.5 In March 2014 appellant’s term appointment ended. 

An electromyography and nerve conduction velocity (EMG/NCV) study performed on 

March 12, 2019 suggested the presence of left S1 radiculopathy. 

In a September 18, 2019 impairment rating report, Dr. Joshua B. Macht, a Board-certified 

internist, indicated that appellant was seen for an impairment evaluation with regards to an 

October 7, 2011 motor vehicle accident, which caused injury to her head, neck, and back. He 

discussed the medical treatment that appellant had received, including surgery for C5 through C7 

fusion in 2017. Dr. Macht recounted that appellant continued to complain of constant neck and 

back pain radiating throughout the bilateral upper extremities. Upon examination of appellant’s 

lumbar spine, he observed tenderness about the lower lumbar spine and left lumbar paraspinal 

region and diminished sensation to light touch involving the left hand. Dr. Macht also noted 

diminished sensation involving the left lower leg and plantar aspect of the left foot. Motor strength 

of the upper and lower extremities were symmetric and intact. Dr. Macht provided range of motion 

(ROM) findings of appellant’s back, neck, and bilateral shoulders. He discussed appellant’s 

diagnostic testing and noted that a recent March 2019 EMG/NCV study showed no evidence of 

cervical radiculopathy. Dr. Macht reported diagnoses of aggravation of cervical herniated disc at 

C4-6 and cervical degenerative disc disease at C5-6, status post C5 through C7 fusion surgery, and 

aggravation of lumbar herniated discs and degenerative disc disease L4-5 and L5-S1. 

 

3 Docket No. 16-1200 (issued June 5, 2017).

4 Appellant’s official duty station was Vallejo, California.

5 OWCP paid appellant wage-loss compensation on the supplemental rolls from March 25 through

December 14, 2013. 
3

Dr. Macht referred to the sixth edition of the American Medical Association, Guides to the 

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

6

and The Guides Newsletter, Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) 

and indicated that, under Table 2 of The Guides Newsletter, the class of diagnosis (CDX) for mild 

sensory deficit in the left S1 distribution due to her lower back injury resulted in a class 1 

impairment with a default value of one percent permanent impairment. He assigned a grade 

modifier for functional history (GMFH) of 1 due to her lower limb questionnaire and calculated 

that appellant had one percent permanent impairment of the left lower extremity. Dr. Macht also 

indicated that, since a recent EMG/NCV study showed no evidence of cervical radiculopathy, the 

only assignable impairment for appellant’s accepted cervical injury would be due to her limited 

ROM of the shoulders. He reported that, according to Table 15-34, Shoulder Range of Motion, 

page 475, of the A.M.A., Guides, appellant had seven percent permanent impairment of each upper 

extremity. Dr. Macht assigned a GMFH of 3 on the right and a GMFH of 4 on the left due to her 

QuickDASH score. He reported that, based on rounding rules, appellant had eight percent 

permanent impairment of each upper extremity due to her bilateral symmetric shoulder ROM. 

Dr. Macht also indicated that appellant had a history of bilateral carpal tunnel syndrome, 

moderate on the right and mild on the left, which was unrelated to her neck injury. He referred to 

Table 15-23, Entrapment/Compression Neuropathy Impairment, page 449, and indicated that

appellant had a grade modifier for test findings of 1, grade modifier for history of 2, and grade 

modifier for physical findings of 1, which resulted in three percent permanent impairment of each 

upper extremity. Dr. Macht concluded that appellant had a total of 11 percent permanent 

impairment of each upper extremity for her bilateral carpal tunnel syndrome and loss of ROM of 

the shoulders and 1 percent left lower extremity permanent impairment as a result of her lower 

back injury. He noted that appellant had reached maximum medical improvement (MMI) as of 

September 5, 2019. 

On March 13, 2020 appellant filed a claim for a schedule award (Form CA-7). 

OWCP referred appellant, along with a statement of accepted facts (SOAF), to Dr. Michael 

Katz, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA), 

for review as to whether appellant sustained permanent impairment as a result of her accepted 

October 7, 2011 employment injury. In an April 11, 2020 report, Dr. Katz noted that appellant’s 

claim was accepted for neck sprain, degeneration of lumbar and cervical disc disease, displacement 

of L4 disc and displacement of cervical intervertebral disc without myelopathy, and spinal stenosis. 

He indicated that he reviewed Dr. Macht’s September 18, 2019 impairment rating report and that 

he agreed with the impairment rating of one percent permanent impairment of the left lower 

extremity for mild sensory deficit at S1. Dr. Katz utilized Table 2 of The Guides Newsletter and 

noted that the CDX for mild sensory deficit at S1 resulted in a class 1 impairment with a default 

value of one percent permanent impairment. He assigned a GMFH of 1 and a grade modifier for 

clinical studies (GMCS) of 1. Dr. Katz utilized the net adjustment formula (GMFH - CDX) + 

(GMCS - CDX) = (1-1) + (1-1) = 0, which resulted in no adjustment for a total of one percent 

permanent impairment of the left lower extremity. 

 

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

Regarding permanent impairment of appellant’s upper extremities, Dr. Katz indicated that 

he disagreed with Dr. Macht’s determination of 11 percent permanent impairment of each upper 

extremity. He noted that Dr. Macht’s bilateral upper extremity permanent impairment was based 

on loss of shoulder ROM and bilateral carpal tunnel syndrome, which were not directly related to 

appellant’s spinal conditions and were not accepted conditions. Dr. Katz reported that appellant 

had no motor or sensory deficits at C5, C6, C7, C8, and T1 on the left or right upper extremities, 

which resulted in class 0 or no ratable permanent impairment. He noted a date of MMI of 

September 5, 2019. 

By decision dated June 10, 2020, OWCP granted appellant a schedule award for one

percent permanent impairment of the left lower extremity. The period of the award ran for 2.8 

weeks from September 5 to 25, 2019 and was based on the April 11, 2020 DMA report. 

On June 19, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 17, 2020.

Appellant submitted reports dated April 21 through June 30, 2020 by Dr. Matthew 

Johnson, an osteopath who specializes in pain management, regarding her continued treatment for 

her cervical and lumbar conditions. 

By decision dated November 30, 2020, OWCP’s hearing representative affirmed the 

June 10, 2020 decision, finding that appellant had no greater than one percent permanent 

impairment of the left lower extremity, for which she previously received schedule award. 

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8set 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 of loss of a member 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 and the Board has concurred in such 

adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.10

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

Chapter2.808.5 (a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
5

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.11 

Under the sixth edition, for lower extremity impairments, the evaluator identifies the impairment 

of the CDX, which is then adjusted by GMFH, grade modifier for physical examination (GMPE), 

and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS -

CDX).13 The standards for evaluation of permanent impairment of an extremity under the A.M.A., 

Guides are based on all factors that prevent a limb from functioning normally, such as pain, sensory 

deficit, and loss of strength.14

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.15 Furthermore, the 

back is specifically excluded from the definition of an organ under FECA.16 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 

July/August 2009 edition of The Guides Newsletter is to be applied.17 

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than one 

percent permanent impairment of the left lower extremity, for which she previously received a 

schedule award. 

Appellant submitted a September 18, 2019 report from Dr. Macht to support her claim for 

a schedule award. Dr. Macht reviewed appellant’s history and conducted an examination. He 

determined that, for mild sensory deficit in the left S1 distribution due to her lower back injury, 

appellant had one percent permanent impairment of the left lower extremity according to Table 2 

of The Guides Newsletter. Dr. Macht explained that the only assignable impairment for appellant’s 

accepted cervical injury resulted from loss of bilateral shoulder ROM. Utilizing the ROM 

methodology under Table 15-34, page 475, of the A.M.A., Guides, he found that appellant had 

 

11 A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability, and Health (ICF): A 

Contemporary Model of Disablement.

12 Id. at 493-556.

13 Id. at 521.

14 C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010); 

Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

16 See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

17 Supra note 10 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
6

seven percent permanent impairment of each upper extremity. Dr. Macht assigned grade 

modifiers, which yielded eight percent permanent impairment of each upper extremity. He also 

opined that, under Table 15-23, page 449, appellant had 3 percent permanent impairment of each 

upper extremity due to bilateral carpal tunnel syndrome for a total of 11 percent permanent 

impairment of each upper extremity.

OWCP properly referred the evidence of record to Dr. Katz, serving as the DMA. In his 

April 11, 2020 report, Dr. Katz concurred with Dr. Macht’s finding that appellant had one percent 

permanent impairment of the left lower extremity for mild left sensory deficit at S1. However, he 

disagreed with Dr. Macht’s 11 percent permanent impairment of each upper extremity since it was 

based on conditions that were not accepted conditions. Dr. Katz correctly explained that 

impairments for spinal conditions were assessed based on the presence of spinal nerve impairment 

and noted that appellant’s bilateral carpal tunnel syndrome and loss of shoulder ROM were not 

causally related to appellant’s accepted lumbar and cervical injuries. 

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

schedules of the A.M.A., Guides and The Guides Newsletter to find that appellant had one percent 

permanent impairment of the left lower extremity.18 He utilized Table 2 of The Guides Newsletter 

and noted that the CDX for mild sensory deficit at S1 resulted in a class 1 impairment. Dr. Katz 

assigned grade modifiers and utilized the net adjustment formula for a total of one percent 

permanent impairment of the left lower extremity. Dr. Katz’ report is detailed, well-rationalized, 

and based on a proper factual background, and thus his opinion represents the weight of the 

medical evidence.19 As such, the Board finds that appellant has not met her burden of proof to 

establish greater than one percent left lower extremity permanent impairment that was previously 

awarded.

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 one 

percent permanent impairment of the left lower extremity, for which she previously received a 

schedule award. 

 

18 See T.B., Docket No. 20-0642 (issued September 30, 2020).

19 See V.S., Docket No. 19-1679 (issued July 8, 2020); T.F., Docket No. 19-0157 (issued April 21, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the November 30, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 1, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board