United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.C., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cleveland, OH, 

Employer

__________________________________________

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Docket No. 20-0897

Issued: August 11, 2021

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 18, 2020 appellant, through counsel, filed a timely appeal from a February 10, 

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.3

 

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.

3 The Board notes that, following the February 10, 2020 decision, appellant submitted additional evidence to 

OWCP. 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

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

On May 4, 2004 appellant, then a 46-year-old mail processor, filed an occupational disease 

claim (Form CA-2) alleging that she sustained an aggravation of a preexisting back injury due to 

factors of her federal employment including constant bending, twisting, and lifting. She indicated 

that she first became aware of her claimed injury on October 1, 2001 and first realized its relation 

to factors of her federal employment on January 9, 2004. OWCP assigned OWCP File No. 

xxxxxx755 and accepted the claim for temporary aggravation of lumbar facet arthrosis. Under a 

separate traumatic injury claim (Form CA-1), assigned OWCP File No. xxxxxx644, it accepted 

that appellant sustained an acute lumbar strain due to a February 3, 2011 fall at work. Under 

another traumatic injury claim, assigned OWCP File No. xxxxxx342, appellant claimed a back 

injury due to handling a mail tray on May 6, 2016 and OWCP paid limited medical expenses 

without formally adjudicating the claim. She also claimed that she sustained a new occupational 

injury in early-2013 and OWCP accepted the claim, assigned OWCP File No. xxxxxx813, for a 

lumbar sprain which had resolved no later than June 3, 2015. OWCP administratively combined 

OWCP File Nos. xxxxxx644, xxxxxx342, xxxxxx815, and xxxxxx755, designating the latter as 

the master file.

In an April 6, 2015 report, Dr. Catherine Watkins Campbell, a Board-certified orthopedic 

surgeon, determined that appellant had 14 percent permanent impairment of her right lower 

extremity. She applied the standards of The Guides Newsletter, Rating Spinal Nerve Extremity 

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

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

Evaluation of Permanent Impairment (A.M.A., Guides).4 On August 5, 2015 appellant filed a 

claim for compensation (Form CA-7) for a schedule award due to her accepted employment 

injuries. 

After extensive development of the medical evidence, including referral of appellant to

Dr. Mark Berkowitz, a Board-certified orthopedic surgeon serving as an impartial medical 

specialist, OWCP issued a May 5, 2017 decision denying her claim for a schedule award, finding 

that she had not met her burden of proof to establish, through the medical evidence of record, 

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

5

In a November 16, 2018 report, Dr. Sami Moufawad, Board-certified in pain medicine,

discussed appellant’s factual and medical history and reported the findings of his physical 

examination. He indicated that she presently complained of pain in her low back and lower 

extremities, worse on the right. Dr. Moufawad noted that appellant’s knee flexion and extension 

 

4

(6th ed. 2009).

5 OWCP found a conflict in the medical opinion evidence regarding permanent impairment between the opinion of

Dr. Watkins Campbell, and the opinions of Dr. Richard Deerhake, a Board-certified orthopedic surgeon serving as an

OWCP referral physician, and an OWCP district medical adviser (DMA). In a March 30, 2017 report, Dr. Berkowitz 

found no permanent impairment of appellant’s lower extremities under The Guides Newsletter. 
3

exhibited full strength bilaterally, as did the hips. Knee reflexes were intact and symmetrical, but 

the right ankle reflex was absent. Appellant had a mildly weak right big toe extension of 4+/5, 

compared to 5/5 on the left side. Dr. Moufawad advised that the sensory examination showed 

decreased sensation to light touch on the lateral and posterior aspect of the right leg into the dorsum 

of both feet, which he rated as 4/5. He discussed appellant’s accepted active lumbar spondylosis

and opined that a right L5-S1 radiculopathy was well documented on electrodiagnostic studies.

Dr. Moufawad noted that her hypersensitivity to light touch on examination was a symptom of 

muscle spasms. He applied the standards of The Guides Newsletter and found that appellant had 

a grade modifier for functional history (GMFH) of 3 and a grade modifier for clinical studies 

(GMCS) of 3, and that the grade modifier for physical examination (GMPE) was not applicable. 

Dr. Moufawad applied the net adjustment formula and found that she had 10 percent permanent 

impairment of the right lower extremity due to L5 nerve sensory/motor deficits and 4 percent 

permanent impairment of the right lower extremity due to S1 nerve sensory/motor deficits. He 

concluded that appellant had 14 percent permanent impairment of her right lower extremity based 

on motor and sensory deficits in the right L5 and S1 dermatomes. Dr. Moufawad found that she

had reached maximum medical improvement (MMI).

On December 20, 2018 appellant filed a new Form CA-7 for a schedule award.

In an April 9, 2019 report, Dr. Michael Katz, a Board-certified orthopedic surgeon serving 

as a DMA, questioned how Dr. Moufawad was able to determine a work-related impairment of 14 

percent when prior examinations recorded no sensory or motor deficits. He recommended a 

second opinion examination in order to better determine permanent impairment.

On April 24, 2019 OWCP referred appellant for a second opinion examination with

Dr. Victoria Langa, a Board-certified orthopedic surgeon, and requested that she provide an 

opinion on permanent impairment. In a May 29, 2019 report, Dr. Langa discussed appellant’s 

factual and medical history and reported the findings of her physical examination. She noted that 

appellant had tenderness over the lower lumbar spine at midline, but that the paravertebrals were 

not tender. The bilateral sacroiliac joints were mildly tender, but the iliac crests, sciatic notches,

and greater trochanters were not tender. Dr. Langa indicated that active back motion was recorded 

on flexion, extension, and lateral flexion, and that straight leg raising was negative bilaterally. She 

noted that no swelling or atrophy was found on examination, and that the knees and ankles

demonstrated symmetric motion. Reflexes were diminished, but equal and no motor deficit or 

sensory deficit was identified in either leg. Dr. Langa opined that had appellant had symptoms of

lumbosacral radiculitis, without any motor or sensory deficits consistent with radiculopathy. She 

indicated that appellant had reached MMI. Dr. Langa noted that, although earlier electrodiagnostic 

studies of October 4, 2011 and October 7, 2014 were positive, appellant did not exhibit motor or 

sensory deficit on her physical examination and, therefore, concluded that she did not qualify for 

a permanent impairment rating under The Guides Newsletter.

In a July 2, 2019 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as a DMA, indicated that he had reviewed the medical evidence of record, including Dr. Langa’s 

May 29, 2019 report. He opined that he concurred with Dr. Langa’s assessment that appellant’s 

lack of neurologic deficits in the legs demonstrated that no ratable permanent impairment was 

present according to The Guides Newsletter. Dr. Harris asserted that appellant’s condition had 

improved since his visit with Dr. Moufawad on November 16, 2018.
4

By decision dated August 8, 2019, OWCP denied appellant’s claim for schedule award 

compensation due to permanent impairment of any scheduled member or function of the body. It 

based its determination on Dr. Langa’s May 29, 2019 report and Dr. Harris’ July 2, 2019 report. 

On August 19, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

December 10, 2019 counsel argued that there was a conflict in the medical opinion evidence 

regarding appellant’s permanent impairment. By decision dated February 10, 2020, OWCP’s 

hearing representative affirmed the August 8, 2019 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing federal regulations,7set 

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 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.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

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.10 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.11 

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

spinal nerve extremity impairment in The Guides Newsletter, which is a supplemental publication 

of the sixth edition of the A.M.A., Guides. It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

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.12

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

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

9 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). 

10 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).

11 Supra note 9, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3) 

(March 2017).

12 Supra note 9, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).
5

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.”

13

 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.14

ANALYSIS

The Board finds that this case is not in posture for decision.

The Board finds that a conflict remains in the medical opinion evidence between the 

opinion of Dr. Moufawad, an attending physician, and the opinions of Dr. Langa, an OWCP 

referral physician, and Dr. Harris, a DMA, regarding the permanent impairment of appellant’s 

lower extremities.15

In a November 16, 2018 report, Dr. Moufawad determined that appellant had 14 percent 

permanent impairment of her lower extremities. He noted that she had a mildly weak right big toe 

extension of 4+/5, compared to 5/5 on the left side. Dr. Moufawad advised that the sensory 

examination showed decreased sensation to light touch on the lateral and posterior aspect of the 

right leg into the dorsum of both feet, which he rated as 4/5. He applied the standards of The

Guides Newsletter and found that appellant had a GMFH of 3 and a GMCS of 3, and that the 

GMPE was not applicable. Dr. Moufawad applied the net adjustment formula and found that she

had 10 percent permanent impairment of the right lower extremity due to L5 nerve sensory/motor 

deficits and 4 percent permanent impairment of the right lower extremity due to S1 nerve 

sensory/motor deficits. He concluded that appellant had 14 percent permanent impairment of her 

right lower extremity based on motor and sensory deficits associated with the right L5 and S1 

dermatomes.

In contrast, Dr. Langa determined in her May 29, 2019 report that appellant did not have 

permanent impairment of appellant’s lower extremities. She indicated that active back motion was 

recorded on flexion, extension, and lateral flexion, and that straight leg raising was negative 

bilaterally. Dr. Langa noted that no swelling or atrophy was found on examination, and that the 

knees and ankles demonstrated symmetric motion. Reflexes were diminished, but equal and no 

motor deficit or sensory deficit was identified in either leg. Dr. Langa opined that appellant had 

symptoms of lumbosacral radiculitis, without any motor or sensory deficits consistent with 

radiculopathy. She noted that, although earlier electrodiagnostic studies were positive, appellant 

did not exhibit motor or sensory deficit on examination and, therefore, she concluded that she did 

not qualify for a permanent impairment rating under The Guides Newsletter. As well, Dr. Harris 

indicated in his July 2, 2019 report that he concurred with Dr. Langa’s assessment that appellant’s 

 

13 5 U.S.C. § 8123(a).

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

1010 (1980).

15 See supra note 13.
6

lack of neurologic deficits in the legs demonstrated that no ratable permanent impairment was 

present according to The Guides Newsletter.

Consequently, the case must be referred to an impartial medical specialist, pursuant to 5 

U.S.C. § 8123(a), to resolve the existing conflict in the medical opinion evidence regarding 

permanent impairment.16 On remand OWCP shall refer appellant, along with the case file and the 

statement of accepted facts, to a specialist in the appropriate field of medicine for an impartial 

medical evaluation and report including a rationalized opinion on this matter. Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo decision 

regarding her schedule award claim.

CONCLUSION

The Board finds that this case is not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the February 10, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this decision of the Board.

Issued: August 11, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 See supra note 14.