United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Monponsett, MA, Employer

__________________________________________

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Docket No. 20-0059

Issued: July 8, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

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 October 7, 2019 appellant filed a timely appeal from a September 3, 2019 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

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the September 3, 2019 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

ISSUE

The issue is whether appellant has met her burden of proof to establish more than 23 percent 

permanent impairment of her left lower extremity, for which she previously received a schedule 

award.

FACTUAL HISTORY

On December 5, 2001 appellant, then a 53-year-old postmaster, filed a traumatic injury 

claim (Form CA-1) alleging that on November 13, 2001 she sustained a left knee injury when she 

walked across the floor and felt a pull and pain in the back of her leg and knee while in the 

performance of duty. She stopped work on the date of injury. 

OWCP accepted the claim for: chondromalacia of the left patellae; osteoarthrosis of the 

left lower leg; right hamstring sprain; degenerative disc disease, lumbar spine; herniated lumbar 

disc, L5-S1; and lumbar radiculitis. 

On May 2, 2002 appellant underwent an arthroscopy, debridement, and chondroplasty of 

her left knee. She returned to work in July 2002, and stopped work again on August 20, 2002.

OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls as of 

August 21, 2002, and reduced compensation on the periodic rolls as of March 20, 2005 in 

accordance with a loss of wage-earning capacity determination. Appellant underwent a partial left 

knee replacement on January 31, 2007, and a total left knee replacement on February 6, 2008, both

performed by Dr. Wolfgang Fitz, a Board-certified orthopedic surgeon. She retired on 

October 28, 2016. 

On September 11, 2017 appellant filed a Form CA-7 claim for a schedule award.

In an October 2, 2017 report, Dr. Marc Friedberg, a Board-certified neurosurgeon, related 

that pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation 

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

3

appellant had 30 percent permanent impairment 

based upon her lumbar injury, with radiculopathy into the lower extremity. 

On July 27, 2018 OWCP prepared a statement of accepted facts and referred appellant for 

a second opinion examination with Dr. Stanley Hom, a Board-certified orthopedic surgeon.

In an August 17, 2018 report, Dr. Hom recounted appellant’s history of injury and

extensive history of medical treatment. Regarding the left knee, he found no joint effusion, mild 

diffuse joint line tenderness, stable cruciate and collateral ligaments, and no popliteal masses. 

Dr. Hom found range of motion (ROM) for the left knee of 95 degrees for flexion and no evidence 

of a flexion contracture. He referred to the A.M.A., Guides, Knee Regional Grid at Table 16-3, 

page 511 and noted that, for the left knee, the diagnostic key factor was a total knee replacement 

with a good result (stable, functional, good position) which would result in a class of diagnosis 

(CDX) of class 2 placement, with a default value of 25 percent. Dr. Hom noted a grade modifier 

for functional history (GMFH) of 1, a grade modifier for physical examination (GMPE) of 1, and 

 

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

a grade modifier for clinical studies (GMCS) of 2. He utilized the net adjustment formula and 

determined that the net adjustment was -1, which corresponded with 23 percent left lower 

extremity permanent impairment.

Dr. Hom also evaluated appellant’s lumbar spine condition and referred to Table 17-4.4 He 

noted that her clinical criteria included a herniated nucleus pulposus, which corresponded to a 

CDX of class 1 impairment. Dr. Hom noted that appellant had a GMFH of 2, a GMPE of 0, and 

a GMCS of 2, with a net adjustment of +1, which corresponded to eight percent whole person 

impairment, as a spinal impairment was rated as whole person impairment. He indicated that she

had reached maximum medical improvement (MMI) by the end of 2008. 

On August 28, 2018 OWCP advised that under the provisions of FECA, awards for 

permanent impairment may not be paid for the spine. However, awards may be paid for 

impairment lower extremities caused by an injury to the spinal nerve. OWCP requested that

Dr. Hom provide an opinion as to whether there was any injury to appellant’s spine that caused 

permanent impairment to the lower extremities, pursuant to The Guides Newsletter, Rating Spinal 

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

In an August 29, 2018 report, Dr. Hom advised that, utilizing The Guides Newsletter and 

the peripheral nerve evaluation process, based on his assessment dated August 17, 2018, appellant 

had no verifiable lower extremity sensory and/or motor deficit. Therefore, appellant had no 

additional lower extremity permanent impairment attributed to her lumbar conditions.

In a September 14, 2018 report, Dr. Michael Katz, a Board-certified orthopedic surgeon 

serving as a district medical adviser (DMA), noted appellant’s history of injury and medical 

treatment. He referred to the Knee Regional Grid at Table 16-3

5

and noted that, for the left knee, 

the diagnostic key factor was a total knee replacement with a good result (stable, functional, good 

position, class 2, default value of 25 percent). Dr. Katz utilized the net adjustment formula and 

found that appellant had 23 percent left lower extremity impairment. The DMA explained that 

there was a net adjustment of -1, resulting in class 2, with an adjustment of -1 from the default 

value of C, which equaled a class 2, grade B equivalent to 23 percent. Dr. Katz noted that the 

determination was supported by the records reviewed and consistent with the methodology set 

forth in the A.M.A., Guides, Table 16-6, Table 16-7 and Table 16-8. The DMA explained that,

for spinal nerve impairment at L3, L4, L5, and S1, there was no motor deficit and no sensory 

deficit, resulting in zero permanent impairment of the lower extremity. 

Dr. Katz advised that appellant’s diagnoses were not eligible for the ROM impairment 

rating methodology and noted that there were no discrepancies between his and Dr. Hom’s 

impairment ratings. He concluded that she had reached MMI on August 17, 2018. 

 

4

Id. at 570.

5

Id. at 511.
4

By decision dated September 3, 2019, OWCP granted appellant a schedule award for 23 

percent permanent impairment of her left lower extremity. The period of the award was 66.24 

weeks, to run from August 17, 2018 to November 23, 2019.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 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

The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment (DBI) 

method of evaluation utilizing the World Health Organization’s International Classification of 

Functioning, Disability and Health (ICF).10 Under the sixth edition, for lower extremity 

impairment the evaluator identifies the impairment of the CDX, which is then adjusted by the 

GMFH, GMPE, and GMCS.11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) 

+ (GMCS - CDX).12

No schedule award is payable for a member, function, or organ of the body not specified 

in FECA or in the regulations.13 Because neither FECA nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the back,14 no claimant is entitled to 

such an award. However, in 1966, amendments to FECA modified the schedule award provision 

to provide for an award for permanent impairment to a member of the body covered by the 

schedule regardless of whether the cause of the impairment originated in a scheduled or 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see D.M., Docket No. 18-1792 (issued September 16, 2019); see also Bernard A. Babcock, Jr., 

52 ECAB 143 (2000).

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

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

10 Supra note 3 at page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement.

11 Id. at 493-556.

12 Id. at 521.

13 Henry B. Floyd, III, 52 ECAB 220 (2001).

14 FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).
5

nonscheduled member. As the schedule award provision of FECA includes the extremities, a 

claimant may be entitled to a schedule award for permanent impairment to an extremity even 

though the cause of the impairment originated in the spine.15

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’s procedures 

indicate that The Guides Newsletter is to be applied.16 The Board has recognized the adoption of 

this methodology for rating extremity impairment, including the use of The Guides Newsletter, as 

proper in order to provide a uniform standard applicable to each claimant for a schedule award for 

extremity impairment originating in the spine.17

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

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

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

percentage of impairment specified.18

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than 23 

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

schedule award.

Dr. Friedberg opined that appellant had 30 percent permanent impairment. However, he 

did not specify the scheduled function which was impaired, nor did he explain how he arrived at 

his conclusion utilizing the A.M.A., Guides or The Guides Newsletter. As Dr. Friedberg’s 

October 2, 21017 report did not comport with the A.M.A., Guides or The Guides Newsletter, his 

report is insufficient to establish appellant’s increased schedule award claim.

19

In his August 17, 2018 report, second opinion physician Dr. Hom referred to the Knee 

Regional Grid at Table 16-3 of the A.M.A., Guides and noted that, for the left knee, the diagnostic 

key factor was a total knee replacement with a good result (stable, functional, good position) class 

2, default value of 25 percent, he applied the GMFH, GMPE, and GMCS and concluded that the 

adjustment formula resulted in a permanent impairment of the left lower extremity of 23 percent. 

In his supplemental report of August 29, 2018, he explained that regarding appellant’s accepted 

 

15 J.F., Docket No. 19-0922 (issued October 4, 2019); see Thomas J. Engelhart, 50 ECAB 319 (1999).

16 Supra note 9 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

17 M.G., Docket No. 19-1627 (issued April 17, 2020); D.S., Docket No. 13-2011 (issued February 18, 2014).

18 A.R., Docket No. 19-0250 (issued May 6, 2019); M.J., Docket No. 17-1776 (issued December 19, 2018); P.R., 

Docket No. 18-0022 (issued April 9, 2018). See supra note 9 at Chapter 2.808.5 (March 2017).

19 See A.W., Docket No. 17-1350 (issued December 12, 2018); M.M., Docket No. 17-0197 (issued May 1, 2018).
6

lumbar conditions, pursuant to The Guides Newsletter she had no additional permanent impairment 

of the lower extremities as she had no sensory or motor loss due to peripheral nerve impairment. 

The DMA concurred with the opinion of Dr. Hom, finding that appellant had 23 percent 

permanent impairment of the left lower extremity.

The DMA referred to the Knee Regional Grid at Table 16-3

20 for a total knee replacement 

with a good result, utilized the net adjustment formula, and found that appellant had 23 percent 

left lower extremity impairment. He indicated that, for spinal nerve impairment at L3, L4, L5, and 

S1, there was no motor deficit and no sensory deficit, resulting in zero impairment. The DMA

also properly explained that appellant’s diagnoses were not eligible for an alternative rating 

utilizing the ROM methodology.

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

Newsletter to find that appellant had 23 percent permanent impairment of the left lower extremity. 

As appellant has not submitted evidence establishing greater permanent impairment, she has not 

met her burden of proof.

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 more than 23 

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

schedule award.

 

20 Supra note 5.
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ORDER

IT IS HEREBY ORDERED THAT the September 3, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 8, 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