United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Oklahoma City, OK, Employer

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Docket No. 20-0667

Issued: November 25, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 4, 2020 appellant, through counsel, filed a timely appeal from a December 19, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2and 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 permanent 

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

FACTUAL HISTORY

This case has been previously before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

On March 26, 2007 appellant, then a 51-year-old dietitian, filed a traumatic injury claim 

(Form CA-1) alleging that on March 7, 2007 she injured her low back when she slipped and fell 

on a wet floor, landing on her right hip and shoulder, while in the performance of duty. She stopped 

work on March 7, 2007 and did not return.

In an April 19, 2007 report, Dr. Richard Kirkpatrick, a Board-certified orthopedic surgeon, 

noted that an April 4, 2007 magnetic resonance imaging (MRI) scan of the lumbar spine 

demonstrated significant degenerative disc disease with a broad right lateral disc protrusion and 

bony spurring at L5-S1. 

OWCP accepted the claim for displacement of a lumbar vertebral disc without myelopathy. 

It paid appellant wage-loss compensation on the periodic rolls.4

Appellant remained under medical treatment. In a June 28, 2013 report, Dr. Myra A. 

Gregory, an osteopathic physician Board-certified in family practice, diagnosed fibromyalgia, 

chronic fatigue syndrome, depression irritable bowel syndrome, obesity, gastro-esophageal reflux 

disease, migraines, neck pain, and left shoulder pain. She found appellant totally disabled from 

work. On October 29, 2013 OWCP obtained a second opinion from Dr. James E. Butler, III, a 

Board-certified orthopedic surgeon, who diagnosed degenerative cervical and lumbar disc disease 

and fibromyalgia unrelated to the accepted lumbar injury.

OWCP found a conflict of medical opinion between Dr. Gregory, for appellant, and

Dr. Butler, for the government, regarding the nature and extent of appellant’s continuing workrelated condition. To resolve the conflict, it selected Dr. Sami R. Framjee, a Board-certified 

orthopedic surgeon, as an impartial medical specialist. Dr. Framjee submitted a July 2, 2014 

report, in which he reviewed a statement of accepted facts (SOAF) and the medical record. On 

examination, he observed normal sensation in both lower extremities. Dr. Framjee diagnosed 

nonspecific mechanical low back pain and L5-S1 degenerative disc disease unrelated to the 

 

3 Docket No. 10-1648 (issued June 16, 2011).

4 By decisions dated October 19 and November 2, 2009, OWCP terminated appellant’s wage-loss compensation 

and schedule award entitlement effective October 25, 2009 due to her refusal of suitable work. A hearing 

representative affirmed the termination by decision dated May 13, 2010, a hearing representative affirmed the 

termination. By decision dated June 16, 2011, the Board reversed the May 13, 2010 termination decision finding that 

the offered position was not suitable.
3

accepted March 7, 2007 employment injury. He opined that the accepted lumbar injury had ceased 

without residuals and that appellant had attained maximum medical improvement (MMI).

By notice dated October 1, 2014, OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on Dr. Framjee’s opinion as the special weight of the 

medical evidence. It provided appellant 30 days to submit opposing evidence. No additional 

evidence was received. By decision dated December 1, 2014, OWCP finalized the termination of 

appellant’s wage-loss compensation and medical benefits effective December 14, 2014.

Appellant requested an oral hearing before a representative of OWCP’s Branch of Hearings 

and Review, which was held on July 9, 2015. By decision dated September 4, 2015, OWCP’s 

hearing representative affirmed the termination of appellant’s wage-loss compensation and 

medical benefits.

On July 14, 2017 appellant filed a claim for a schedule award (Form CA-7). In support of 

her claim, she provided a February 3, 2016 electromyogram and nerve conduction velocity

(EMG/NCV) study report, by Dr. Janice M. Keating, a Board-certified neurologist, who found a 

mild sensory motor polyneuropathy affecting both lower extremities, with no definite evidence of 

right-sided radiculopathy.

In an April 12, 2017 report, Dr. M. Stephen Wilson, a Board-certified orthopedic surgeon,

discussed appellant’s medical history and reported his findings on examination. On examination 

of the lumbosacral spine, he observed restricted motion in all planes, decreased two-point 

discrimination in the right L5 dermatome, and a positive straight leg raising test at 50 degrees on 

the right. Dr. Wilson diagnosed an acute lumbar injury with disc displacement due to an L5-S1 

disc protrusion, causing right-sided radiculopathy. He opined that appellant had attained MMI. 

Dr. Wilson then utilized American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides)

5

and The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) to calculate her

permanent impairment under the diagnosis-based impairment (DBI) rating method. He noted that 

appellant had chronic lumbar radiculopathy involving the right L5 nerve root and calculated the 

percentage of impairment based on that nerve root. Dr. Wilson referenced Proposed Table 2 and 

noted that her condition fell under a class of diagnosis (CDX) of 1 with default values for lower 

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

of the L5 motor nerve due to complaints of pain, neuropathy, and mild weakness. Referring to 

Table 16-6 and 16-8 on pages 516 and 519 of the sixth edition of the A.M.A., Guides,

6 he

calculated a grade modifier for functional history (GMFH) of 3 (pain with vigorous activity and a 

Pain Disability Questionnaire (PDQ) score of 124, which he noted would not be utilized), and a 

grade modifier for clinical studies (GMCS) of 1. Dr. Wilson applied the net adjustment formula, 

resulting in a net adjustment of plus one, which raised the default CDX grade of C upward to D, 

equaling two percent permanent impairment of the right lower extremity for mild sensory deficit 

and seven percent permanent impairment for mild motor deficit. He added the percentages for a 

 

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

6

Id.
4

total of nine percent permanent impairment of the right lower extremity due to chronic lumbar 

radiculopathy.

On July 24, 2017 OWCP routed Dr. Wilson’s report, a SOAF, and the case file to

Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a 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 a July 26, 2017 report, the DMA reviewed the medical record and SOAF. He noted that 

he could not find supportive evidence for Dr. Wilson’s determination of focal right L5 motor and 

sensory radiculopathy. The DMA also noted that Dr. Keating opined in her February 3, 2016

report that there was “no definite evidence to support the diagnosis of radiculopathy affecting the 

right lower extremity on EMG study.” He indicated that he was unable to resolve the right L5 

motor and sensory radiculopathy on the basis of a records review.

On January 10, 2018 OWCP referred appellant to Dr. Timothy G. Pettingell, a Boardcertified physiatrist, for a second opinion on whether the March 7, 2017 lumbar injury caused 

permanent impairment of a scheduled member or function of the body. In a February 26, 2018 

report, Dr. Pettingell reviewed the medical record and SOAF. On examination he found restricted 

lumbar motion in all planes, normal range of passive hip motion bilaterally, and negative sitting 

straight leg raising tests bilaterally. Dr. Pettingell noted appellant’s perception of patchy, 

diminished light touch sensation in a nonanatomic distribution in the right lower extremity. He 

noted an impression of subjective chronic low back pain and a prior diagnosis of lumbar 

strain/sprain. Dr. Pettingell opined that there was no objective evidence of lumbosacral 

radiculopathy on electrodiagnostic testing and no objective clinical signs of focal neurologic 

deficit, appellant had zero percent impairment to the lower extremities. He concurred with

Dr. Framjee that appellant had attained MMI as of July 2, 2014.

On April 4, 2018 OWCP routed Dr. Pettingell’s report, a SOAF and the case file to

Dr. Katz, the DMA, for a follow-up opinion on permanent impairment under the standards of The 

Guides Newsletter and the sixth edition of the A.M.A., Guides. In an April 9, 2018 report, the 

DMA reviewed the medical record and SOAF. He opined that, as there was no objective evidence 

of sensory or motor nerve deficits originating in the spine, appellant had no ratable impairment of 

either lower extremity. The DMA emphasized that Dr. Keating found no spinal nerve impairment 

on February 3, 2016 EMG testing. 

By decision dated August 2, 2019, OWCP denied appellant’s schedule award claim, 

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

a scheduled member or function of the body. 

On August 13, 2019 appellant, through counsel, requested a telephonic hearing before a 

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

November 19, 2019. During the hearing, counsel contended that there was a conflict of medical 

opinion between Dr. Wilson and Dr. Pettingell regarding the appropriate percentage of permanent 

impairment. 
5

By decision dated December 20, 2019, OWCP’s hearing representative affirmed the 

August 2, 2019 decision, based on Dr. Pettingell’s report as the weight of the medical evidence. 

She found that there was no conflict of medical opinion as there was no objective evidence of 

radiculopathy offered by Dr. Wilson. 

LEGAL PRECEDENT

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 regulations provide for a schedule award for impairment to the 

back/spine or to the body as a whole.11 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.12 The sixth edition of the A.M.A., Guides does not provide a 

separate mechanism for rating spinal nerve injuries as impairments of the upper or lower 

extremities. Recognizing that FECA allows ratings for the 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’s procedures indicate that The Guides Newsletter

is to be applied.13 The Board has recognized the adoption of this methodology for rating extremity 

impairment as proper in order to provide a uniform standard applicable to each claimant for a 

schedule award for extremity impairment originating in the spine.14

 

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 Chapter 3.700.2 and Exhibit 1 (January 2010).

11 See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

12 See 5 U.S.C. § 8101(19); S.G., Docket No. 19-1859 (issued August 20, 2020); see also G.S., Docket No. 18-0827 

(issued May 1, 2019); Francesco C. Veneziani, 48 ECAB 572 (1997).

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

14 S.G., supra note 12; see E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued 

February 18, 2014).
6

ANALYSIS

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

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

In a report dated April 12, 2017, Dr. Wilson indicated that appellant had reached MMI and 

found nine percent permanent impairment of the right lower extremity due to lumbar radiculopathy 

using The Guides Newsletter. OWCP obtained a second opinion from Dr. Pettingell, who provided 

a detailed January 10, 2018 report finding no evidence of lumbar radiculopathy by history or 

examination.

The DMA, Dr. Katz, found that Dr. Wilson’s impairment evaluation was in error as he 

predicated the finding of nine percent permanent impairment of the right lower extremity on 

lumbar radiculopathy not demonstrated by Dr. Keating’s February 3, 2016 EMG study or other 

medical evidence of record. The Board finds that the DMA properly explained that Dr. Wilson’s 

report was insufficient to establish permanent impairment of a scheduled member or function of 

the body.15

Appellant has submitted no other medical evidence in conformance with either the A.M.A., 

Guides or The Guides Newsletter, establishing permanent impairment of a scheduled member or 

function of the body. The Board therefore finds that she has not met her burden of proof to 

establish her schedule award claim.

On appeal, counsel contends that the EMG was definitive evidence of lower extremity 

impairment. As explained above, however, both Dr. Pettingell and the DMA properly found that 

the evidence of record was insufficient to establish permanent impairment of a scheduled member 

or function of the body warranting a schedule award.

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 permanent 

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

 

15 S.G., supra note 12.
7

ORDER

IT IS HEREBY ORDERED THAT the December 19, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 25, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board