United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.H., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

STATION NEWPORT, Newport, RI, Employer

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Docket No. 20-1550

Issued: April 13, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

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 August 3, 2020 appellant filed a timely appeal from a March 3, 2020 merit 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 over 

the merits of this case.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.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 3, 2020 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 additional 

evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On May 23, 2011 appellant, then a 45-year-old property disposal specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on May 17, 2011 she injured her lower left back 

when picking up a shredder while in the performance of duty. She stopped work on May 17, 2011

and returned on June 6, 2011 in a full-time, limited-duty capacity. On June 8, 2011 OWCP 

accepted appellant’s claim for lumbar back sprain.3

On September 11, 2018 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated October 3, 2018, OWCP informed appellant that the medical 

evidence of record was insufficient to establish her schedule award claim. It requested that she 

submit a detailed narrative medical report from her treating physician based upon a recent 

examination, including a date of maximum medical improvement (MMI), the diagnosis upon 

which the impairment rating was based, a detailed description of any preexisting impairment, and 

a final rating of the permanent impairment and discussion of the rationale for calculation of the 

impairment, with references to the applicable criteria and tables of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).4

OWCP subsequently received x-ray and magnetic resonance imaging (MRI) scan reports 

of appellant’s lumbar spine, dated November 1, 2017 and November 27, 2018. Appellant also 

submitted reports from Mohini Yalanis, a nurse practitioner, dated October 4, 2018 through 

January 17, 2019. 

In a February 14, 2019 report, Dr. Sumit Das, a Board-certified neurosurgeon, noted that 

appellant had chronic back and bilateral leg pain with numbness. He examined appellant and 

diagnosed lumbar spondylosis. Dr. Das administered a lumbar epidural steroid injection at the 

L5-S1 level. 

In a February 27, 2019 work excuse note, Dr. Das noted that appellant was permanently 

disabled. 

Appellant submitted physical therapy treatment notes dated February 28 through 

April 1, 2019. 

On August 28, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the case record, for a second opinion examination with Dr. John Golberg, a Boardcertified orthopedic surgeon. In a September 16, 2019 report, Dr. Golberg reviewed the SOAF 

and medical record. He examined appellant and diagnosed lumbago, lumbar spondylosis, and 

intermittent sciatica of the bilateral legs. Dr. Golberg noted that appellant had preexisting lumbar 

spondylosis and found that the accepted May 17, 2011 employment injury permanently aggravated 

the condition. He opined that appellant’s condition was stable and was unlikely to resolve. 

Utilizing the sixth edition of the A.M.A., Guides and The Guides Newsletter, Rating Spinal Nerve 

 

3 Appellant was removed from federal employment, effective August 1, 2017. 

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

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

Dr. Golberg found that appellant did not have permanent impairment of a scheduled member or 

function of the body based on her physical examination findings. He opined that appellant reached 

MMI in January 2019. 

On September 27, 2019 OWCP expanded acceptance of appellant’s claim to include 

lumbar spine sprain and permanent aggravation of preexisting lumbar spondylosis.

On September 27, 2019 OWCP referred appellant’s case record, along with an updated

SOAF, for a schedule award impairment rating with Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as the district medical adviser (DMA).

In an October 4, 2019 report, Dr. Katz reviewed the medical record and SOAF, including

Dr. Golberg’s September 16, 2019 report. He noted that Dr. Golberg failed to provide reasonably 

detailed motor and sensory examination findings to support that significant radiculopathy was not 

present. Utilizing the sixth edition of the A.M.A., Guides and The Guides Newsletter, Dr. Katz 

indicated that a spinal nerve impairment rating could not be determined without a supplemental 

report from Dr. Golberg. He noted that a range of motion (ROM) rating was not appropriate under 

the A.M.A., Guides. Dr. Katz opined that the date of MMI was undetermined pending further 

information. 

On November 6, 2019 OWCP requested clarification from Dr. Golberg regarding 

appellant’s potential spinal nerve impairment. In a November 21, 2019 report, Dr. Golberg noted 

that he did not find any significant findings with respect to any substantial motor or sensory 

abnormalities. He indicated that there was no evidence of residual spinal nerve impairment and 

no diagnostic findings of significance. Dr. Golberg noted that he found no ROM impairment and 

only conducted one examination because there were no significant restrictions to record. He 

opined that appellant had reached MMI, but could not pick an exact retroactive date. Dr. Golberg 

indicated that appellant’s lumbar spine sprain should have resolved within weeks of the injury.

On November 27, 2019 OWCP again referred appellant’s case to Dr. Katz, the DMA, for 

a schedule award impairment rating. In a December 4, 2019 report, Dr. Katz reviewed the medical 

record and SOAF, including Dr. Golberg’s November 21, 2019 report. Utilizing the diagnosisbased impairment (DBI) method of the A.M.A., Guides and The Guides Newsletter, he identified 

the class of diagnosis (CDX) as a class zero impairment for spinal nerves L3, L4, L5, and S1 for 

both the left and right lower extremities. Dr. Katz noted that appellant had no motor or sensory 

deficits, and there was no net adjustment. He, therefore, found that appellant had zero percent left 

lower extremity impairment and zero percent right lower extremity impairment. Dr. Katz indicated 

that a ROM impairment calculation was not appropriate under the A.M.A., Guides. He opined 

that appellant reached MMI on September 16, 2019. 

On January 21, 2020 OWCP requested clarification from Dr. Katz, the DMA, regarding 

whether appellant had an upper extremity impairment. In a January 22, 2020 report, Dr. Katz 

noted that the medical record did not permit a recommendation for an upper extremity impairment. 

He indicated that appellant’s accepted conditions could potentially only affect the lower 

extremities. 
4

In a development letter dated January 29, 2020, OWCP requested that appellant submit a 

permanent impairment evaluation from her attending physician in accordance with the standards 

of the sixth edition of the A.M.A., Guides and The Guides Newsletter. It afforded her 30 days to 

submit the necessary evidence. 

OWCP subsequently received duplicate copies of an x-ray and MRI scan reports dated 

June 21, 2016 through November 27, 2018. Appellant also submitted duplicate copies of reports 

and work excuse notes from Dr. Das and Ms. Yalanis, dated September 7, 2017 through 

September 26, 2019. 

By decision dated March 3, 2020, 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. 

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,6set 

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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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.9 However, a schedule 

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

extremities.10 The sixth edition of the A.M.A., Guides 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 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.11

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.5(a) (February 2013); see also Chapter 3.700.2 and Exhibit 1 (January 2010).

9 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see T.W., Docket No. 20-0119 (issued January 12, 2021); 

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

10 Supra note 8 at Chapter 2.808.5(c)(3) (March 2017).

11 Supra note 8 at Chapter 3.700, Exhibit 4 (January 2010); see N.G., Docket No. 20-0557 (issued January 5, 2021).
5

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the nature and percentage of permanent 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.12

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 support of her claim, appellant submitted reports and work excuse notes from Dr. Das, 

dated February 27 through September 26, 2019. While Dr. Das diagnosed lumbar spondylosis, he 

did not address MMI, nor did he find permanent impairment resulting from a lumbar spine 

condition causally related to the accepted May 17, 2011 employment injury, in accordance with 

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

Dr. Das is insufficient to establish permanent impairment of a scheduled member or function of 

the body causally related to appellant’s accepted employment injury.13

OWCP obtained a second opinion from Dr. Golberg who provided schedule impairment 

ratings in September 16 and November 21, 2019 reports. Utilizing the A.M.A., Guides and The 

Guides Newsletter, Dr. Golberg found that appellant did not have permanent impairment of a 

scheduled member or function of the body based on her physical examination findings, including 

motor and sensory examination. He opined that appellant had reached MMI, but could not pick 

an exact retroactive date.

OWCP referred the case to its DMA, Dr. Katz, who correctly noted that FECA does not 

allow a schedule award for the spine, though it does allow for schedule awards for spinal nerve 

injuries resulting in impairment of the extremities.14 With reference to The Guides Newsletter, he 

concurred with Dr. Golberg’s assessment of permanent impairment for appellant’s spinal nerves 

L3, L4, L5, and S1 for the left and right lower extremities. Dr. Katz found that appellant had zero 

percent left lower extremity impairment and zero percent right lower extremity impairment. The 

DMA opined that appellant reached MMI on September 16, 2019.

The Board finds that the DMA properly applied the standards of the A.M.A., Guides and 

The Guides Newsletter to the physical examination findings of Dr. Golberg. The DMA accurately 

summarized the relevant medical evidence and reached conclusions about appellant’s conditions 

that comported with these findings.15 He noted that the A.M.A., Guides did not allow for an 

impairment rating based on ROM for the relevant diagnoses.16 The DMA properly referred to The 

Guides Newsletter in determining that appellant did not have permanent impairment of a scheduled 

 

12 Supra note 8 at Chapter 2.808.6(f) (March 2017).

13 See T.M., Docket No. 19-1126 (issued September 22, 2020); M.G., Docket No. 19-0823 (issued September 17, 

2019); M.M., Docket No. 18-0292 (issued July 9, 2018).

14 Supra note 10.

15 See C.W., Docket No. 19-1590 (issued September 24, 2020).

16 Id.
6

member or function of the body. As his report is detailed, well-rationalized, and based on a proper 

factual background, the DMA’s opinion represents the weight of the medical evidence.17

Appellant has submitted no other medical evidence in conformance with the appropriate 

tables of the sixth edition of 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 appellant alleges that OWCP improperly developed and delayed her schedule 

award claim. The Board finds, however, that OWCP properly developed her claim in accordance 

with its procedures and, as explained above, the evidence of record was insufficient to establish 

permanent impairment of a scheduled member or function of the body.

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.

 

17 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the March 3, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 13, 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