United States Department of Labor

Employees’ Compensation Appeals Board

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R.B., Appellant

and

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Washington, DC, 

Employer

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Docket No. 21-0193

Issued: December 7, 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 November 16, 2020 appellant filed a timely appeal from an October 5, 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish more than five

percent permanent impairment of the right lower extremity and five percent permanent impairment 

of the left lower extremity for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On November 21, 2000 appellant, then a 38-year-old maintenance worker, filed a notice of 

traumatic injury (Form CA-1) alleging that on October 30, 2000 he sustained a lumbar injury as a

result of a dump truck incident in the performance of duty. OWCP accepted the claim for sprain 

of lumbosacral joint ligament, displacement of lumbar intervertebral disc without myelopathy, 

intervertebral disc disorder with myelopathy, lumbar region, and lumbar spondylosis with

myelopathy. It paid him wage-loss compensation on the periodic rolls from June 16, 2002 until 

July 12, 2003.

On March 11, 2002 appellant underwent an authorized lumbar interbody fusion at L5-S1.

On March 14, 2003 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. By decision dated July 15, 2003, OWCP granted appellant a schedule award for a 

combined 10 percent permanent impairment of the lower extremities, which was based on 5 

percent permanent impairment of the right lower extremity and 5 percent permanent impairment 

of the left lower extremity. The period of the award ran for 28.80 weeks from July 13, 2003 to 

January 30, 2004.

On February 14, 2017 appellant filed a claim for an increased schedule award (Form 

CA-7). By decision dated December 21, 2018, OWCP denied appellant’s claim for an increased 

schedule award. 

On December 23, 2019 appellant requested reconsideration and submitted medical 

evidence in support of an increased schedule award. 

In an October 11, 2019 report, Dr. Eric Dawson, an orthopedic surgery specialist, 

examined appellant and referred to the sixth edition of the American Medical Association, Guides 

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

2 and The Guides Newsletter, Rating 

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

Newsletter). He noted that on examination appellant had classic signs of lumbar disc impingement, 

as well as nerve impingement. Dr. Dawson explained that the electromyography (EMG) scan and 

nerve conduction velocity (NCV) studies were direct measurements of nerve dysfunction and that 

he found sensory and motor impingement. He referred to Table 17-4, page 570, of the A.M.A., 

Guides, Lumbar Spine Regional Grid, noted that appellant had findings of radiculopathy, and

opined that appellant had 13 percent whole body impairment, which converted to 32.5 percent 

permanent impairment of the lower extremities. 

An October 23, 2019 magnetic resonance imaging (MRI) scan, read by Dr. William 

Prominski, a Board-certified diagnostic radiologist, revealed findings of post laminectomy and 

posterior fusion of the L5-S1 level with bilateral pedicle screws in place. Findings included mild 

generalized disc bulging from L2-4 with no focal disc protrusion, L4-5 mild disc protrusion on the 

left with impingement of the thecal sac and lateral recess on the left, and additional facet joint and 

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

ligamentous hypertrophy contributing to moderate to marked central canal stenosis and moderate 

bilateral neural foraminal impingement.

On January 8, 2020 OWCP requested that Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon serving as OWCP’s district medical adviser (DMA), review Dr. Dawson’s 

October 11, 2019 report.

In a January 9, 2020 report, Dr. Harris noted that he had reviewed the medical evidence

and concluded that appellant should be referred for a second opinion examination to obtain 

documented findings on examination forratingappellant’sspinal nerve impairments in accordance 

with The Guides Newsletter. 

On February 6, 2020 OWCP referred appellant for a second opinion examination with

Dr. John Barry, a Board-certified orthopedic surgeon.

In an April 16, 2020 report, Dr. Dawson noted findings of lumbar discopathy with neural 

radiculopathy, both motor and sensory, with some decompensation. 

In a report dated May 21, 2020, Dr. Barry noted appellant’s history of injury and treatment. 

He conducted a physical examination and reported findings, noting that appellant’s straight leg 

raise was positive bilaterally, with positive bowstring reproducing complaints of lower extremity 

pain and numbness down to the toes. Dr. Barry also noted that the neurological examination 

showed 1+ deep tendon reflexes at the knees and ankles, and the motor examination showed no 

focal motor weakness. He determined that there was no evidence of measurable atrophy in any of 

the muscle groups in the lower extremities, and light touch sensory examination revealed a 

decrease bilaterally from the knees to the tips of the toes in a stocking, nonphysiologic distribution. 

Dr. Barry advised that appellant reached maximum medical improvement (MMI) on May 21, 

2020, the date of his examination. He referred to The Guides Newsletter, page 3, related to 

intervertebral disc herniation at a single level with documented radiculopathy,

3 and assigned a 

Class of Diagnosis (CDX) 2, with a rating range of 14 to 25 percent. Dr. Barry used the L5 grid 

for the right lower extremity, and found that the C Grade of CDX 2, equated to 16 percent lower 

extremity impairment (LEI) (Table 2, page 7). He assigned a grade modifier for functional history 

(GMFH) of 1 for mild problem, a grade modifier for clinical studies (GMCS) for electrodiagnostic 

studies was 1, and he noted the grade modifier for physical examination (GMPE) was not used 

because it determined the impairment class. Dr. Barry explained this resulted in a -2, moving the 

grade to an A, with 14 percent right lower extremity impairment rating. He noted that the 

calculation was identical for the left, opposite extremity. Dr. Barry determined that appellant had 

14 percent impairment of the right lower extremity and 14 percent impairment of the left lower 

extremity. He completed a permanent impairment worksheet and noted that appellant had a 

combined lower extremity permanent impairment of 28 percent. 

In a May 28, 2020 report, Dr. Dawson noted findings of lumbar discopathy with neural 

radiculopathy, both motor and sensory components, which were quite severe and slightly 

worsening.

3 Dr. Barry indicated that it was documented on EMGs.
4

On June 16, 2020 OWCP referred the case record to the DMA, Dr. Harris, and requested 

that he review the prior medical reports and provide an opinion as to the extent of appellant’s 

permanent impairment.

In a June 22, 2020 report, Dr. Harris noted that he reviewed the statement of accepted facts

(SOAF), the medical evidence, and the May 21, 2020 report of the second opinion physician. He 

also noted that he utilized the A.M.A., Guides and The Guides Newsletter. Regarding the 

diagnosis-based impairment(DBI)method for the lumbar spine, the DMA noted that appellant did 

not have any neurologic deficit in the right or left lower extremity consistent with lumbar

radiculopathy. Dr. Harris explained that this finding was consistent with severity 0 in Table 16-11, 

Sensory and Motor Severity, on page 533 of the A.M.A., Guides, and with Class 0 impairment in 

the Spinal Nerve Impairment: Lower Extremity Impairmentsin Table 2 of The Guides Newsletter. 

He opined that appellant had zero percent right and left lower extremity impairment for lumbar 

radiculopathy based on the DBI methodology.

Regarding the range of motion (ROM) method, the DMA explained that the A.M.A., 

Guides did not allow for an impairment rating to be calculated on the ROM method for appellant’s 

diagnosed condition, as it did not contain an asterisk in the DBI Grid.

Dr. Harris opined that appellant had sustained no increase in the permanent impairment of 

the right and left lower extremities, and that appellant had zero percent impairment of the right 

lower extremity and zero percent impairment of the left lower extremity. The DMA also noted 

that Dr. Barry did not calculate appellant’s impairment based on the correct methodology for 

neurologic deficits in the lower extremities. He explained that Dr. Barry utilized whole person 

impairment based on the DBI method, which would not be consistent with the recommended 

methodology for calculating a neurologic deficit in The Guides Newsletter. 

In an August 14, 2020 report, Dr. Barry noted that he had reviewed Dr. Harris’ report and 

determined that his “original opinion stands.” He opined that appellant had 14 percent permanent 

impairment of the right and the left lower extremities in accordance with the A.M.A., Guides and 

The Guides Newsletter.

On September 8, 2020 OWCP requested clarification from the DMA. 

In a September 14, 2020 report, the DMA reiterated that appellant did not have any 

neurologic deficit in the right or left lower extremity consistent with lumbar radiculopathy and that 

this was consistent with a severity of zero in Table 16-11, Sensory and Motor Severity, page 533, 

of the A.M.A., Guides and a Class 0 impairment based on the Spinal Nerve Impairment Lower 

Extremity Impairments in Table 2 of The Guides Newsletter. The DMA opined that appellant had 

zero percent right and left lower extremity impairment for lumbar radiculopathy. Additionally, he 

reiterated that the ROM method was not applicable because appellant’s diagnosis did not contain 

an asterisk.

By decision dated October 5, 2020, OWCP denied modification of the December 21, 2018 

decision.
5

LEGAL PRECEDENT

The schedule award provisions of FECA,4 and its implementing federal regulations,5 set 

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 loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.6 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.7

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. However, a schedule 

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

extremities.8 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. 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 into OWCP’s procedures.9

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 impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.10

4

Supra note 1.

5

20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides(6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see alsoChapter 3.700, Exhibit 1 (January 2010).

7

See E.G., Docket No. 19-1081 (issued September 24, 2020); P.R., Docket No. 19-0022 (issued April9, 2018); 

Isidoro Rivera, 12 ECAB 348 (1961).

8

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).

9

Supra note 6 at Chapter 3.700, Exhibit 4 (January 2010).

10 See supra note 6 at Chapter 2.808.6(f) (March 2017).
6

ANALYSIS

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

Dr. Harris found that the permanent impairment ratings provided by Dr. Dawson, the 

treating physician, and Dr. Barry, OWCP’s second opinion physician, were based on whole body 

impairment, converted to a lower extremity permanent impairment. Dr. Dawson, in fact, related 

that he had converted appellant’s whole body permanent impairment, to a lower extremity rating. 

While Dr. Barry indicated that he rated appellant’s lower extremity permanent impairment under 

The Guides Newsletter, he found appellant had a CDX 2 impairment; however, The Guides 

Newsletter does not provide for a CDX 2 rating for lumbar nerve impairment, his rating was,

therefore, not based on The Guides Newsletter. 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.11 The Board, therefore, finds that the probative value of these reports is 

diminished.

Both Dr. Dawson and Dr. Barry, however, reported findings which included lumbar 

radiculopathy. In his October 11, 2019 and April 6, 2020 reports, Dr. Dawson related that 

appellant had lumbar spine impingement, and that his EMG and NCV studies confirmed motor 

and sensory impingement. Dr. Barry, the second opinion physician, also documented findings of 

radiculopathy in his May 21, 2020 report, and noted that appellant’s physical examination 

displayed sensory loss.

Dr. Harris, serving as a DMA, noted his review of the findings made by Dr. Dawson and

Dr. Barry, and determined that appellant had no right or left lower extremity permanent 

impairment. The DMA advised that appellant had no neurologic deficit of the right or left lower 

extremity consistent with radiculopathy and, therefore, that appellant had no permanent 

impairment of either lower extremity. However, the DMA failed to base his opinion as to 

permanent impairment on the physical examination findings set forth in the reports of Dr. Dawson 

and Dr. Barry, or to provide a rationalized basis for discounting the documented findings of 

radiculopathy made by the treating physician and the second opinion physician. 

The case must, therefore, be remanded to OWCP for further development to determine 

whether appellant is entitled to an increased schedule award. Upon remand, OWCP shall provide 

a SOAF and a complete copy of the medical record, including the prior physicians’ rating reports, 

to a second opinion physician who shall perform a physical examination and thereafter properly 

evaluate the findings and provide a medical rationale explaining whether appellant has permanent 

impairment of either lower extremity due to lumbar radiculopathy. Following this and other such 

further development as OWCP deems necessary, it shall issue a de novo decision regarding 

appellant’s claim for an increased schedule award.

CONCLUSION

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

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see C.S., Docket No. 19-0851 (issued November 18, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: December 7, 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