United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.J., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

Atlanta, GA Employer

__________________________________________

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Docket No. 19-1789

Issued: April 8, 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

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 27, 2019 appellant, through counsel, filed a timely appeal from a July 2, 2019 

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 July 2, 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 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

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

follows.

On February 8, 2016 appellant, then a 56-year-old social insurance specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on February 3, 2016 she was injured when she 

fell while in the performance of duty. On the reverse side of the claim form, the employing 

establishment indicated that appellant stopped work on February 4, 2016 and returned to work on 

February 10, 2016.5 OWCP accepted her claim for a lower back contusion, a lower back and 

pelvis contusion, and sacroiliac joint dysfunction. It paid appellant wage-loss compensation on 

the supplemental rolls for intermittent wage loss as of April 4, 2016.

On January 30, 2018 appellant underwent sacroiliac joint stabilization surgery. She 

resumed work in a full-time, limited-duty capacity on April 3, 2018. 

A May 18, 2018 medical report by Dr. Mark Dumonski, a Board-certified orthopedic 

surgeon, indicated that appellant presented with improved left-side low back pain. Dr. Dumonski

noted that appellant was 3.5 months postsurgery and was doing well. He noted that an x-ray of 

appellant’s pelvis showed that her left sacroiliac joints were well positioned and adequately fused. 

Dr. Dumonski further noted that appellant still had pain with heavy lifting, and he listed work 

restrictions for appellant. He opined that appellant had reached maximum medical improvement 

(MMI) and that she had 10 percent permanent impairment due to her sacroiliac joint fusion.

On July 12, 2018 OWCP received various forms wherein Dr. Dumonski reiterated that 

appellant had reached MMI and that she had 10 percent permanent impairment of her sacroiliac 

joint.

On August 16, 2018 appellant filed a claim for a schedule award (Form CA-7). An 

August 16, 2018 letter from counsel indicated that Dr. Dumonski found that appellant reached 

MMI and had conducted an evaluation in accordance with the sixth edition of the American 

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

6

In a September 4, 2018 development letter addressed to Dr. Dumonski, OWCP noted 

appellant’s accepted conditions and explained that schedule awards for the spine were not payable 

under FECA. However, it also noted that such awards could be paid for impairment of the upper 

or lower extremities caused by injury to a spinal nerve. OWCP requested that Dr. Dumonski 

submit a report containing an impairment rating rendered in accordance with the A.M.A., Guides,

 

4 Docket No. 19-1225 (issued December 17, 2019).

5 Appellant returned to work on a part-time (four hours), modified-duty basis.

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

and with reference to The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition (July/August 2009) (The Guides Newsletter). 

An August 31, 2018 report by Dr. Dumonski indicated that appellant was seven months 

status post a sacroiliac joint fusion. Appellant presented with low back pain radiating into her left 

groin and medial thigh and noted that her pain was intermittent. A physical examination revealed 

tenderness to palpation in her lower lumbar paraspinal musculature and bilateral gluteal regions. 

Appellant had negative straight leg raise testing bilaterally and walked with a normal gait. 

Dr. Dumonski assessed appellant as having low back pain and ongoing improvement in the pain 

she experienced prior to her left sacroiliac joint fusion. He noted that she continued to be at MMI.

A September 17, 2018 letter from Dr. Dumonski indicated that appellant’s most relevant 

diagnosis for rating permanent impairment was sacroiliac joint dysfunction, status post left 

sacroiliac joint fusion. He noted that appellant’s left sacroiliac joint was impaired due to her 

surgery, as prior to her surgery she did not. Dr. Dumonski indicated that his pertinent objective 

findings at his most recent evaluation of appellant included that she had tenderness to palpation in 

her lower back and that she was neurovascularly intact. He explained that his 10 percent 

permanent impairment rating was based on his previous patients who had the same condition and 

surgery. Dr. Dumonski noted that there was no table in the A.M.A., Guides that corresponded to 

a left sacroiliac dysfunction status post a left sacroiliac joint fusion procedure. 

In an October 16, 2018 memorandum, Dr. Michael Katz, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), was provided appellant’s medical records 

and a statement of accepted facts (SOAF) for review and OWCP requested an impairment rating 

of appellant’s lower extremities according to the A.M.A., Guides and The Guides Newsletter. 

In an October 17, 2018 report, the DMA indicated that he reviewed appellant’s provided 

medical records and SOAF. He noted appellant’s accepted conditions and reviewed her medical 

history and history of injury, including her January 30, 2018 sacroiliac joint surgery. The DMA

indicated that Dr. Dumonski incorrectly determined appellant’s permanent impairment rating in 

his September 17, 2018 medical report because impairments of the sacroiliac joint were not 

eligible for a schedule award pursuant to the sixth edition of the A.M.A., Guides. He also noted 

that appellant’s accepted conditions were not eligible for an alternative range of motion 

impairment calculation pursuant to the A.M.A., Guides.

By decision dated January 23, 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 as a result of her accepted February 3, 2016

employment injury.

On January 30, 2019 appellant, through counsel, requested an oral hearing before a 

representative of the Branch of Hearings and Review. 

Appellant submitted a May 10, 2019 workers’ compensation medical status form signed 

by Dr. Dumonski wherein he diagnosed lumbago and noted that appellant had work restrictions 

due to her injury.

An OWCP hearing was held on May 17, 2019. Appellant additionally submitted a May 10, 

2019 medical report by Dr. Dumonski indicating that she complained of experiencing low back 

pain, left leg pain, and diminished function for the prior month. Dr. Dumonski noted her history 
4

of injury and conducted a physical examination which revealed tenderness to palpation to a mild 

degree in the lumbar paraspinal musculature, in particular on her left, a positive straight leg test on 

the left and a negative straight leg test on the right, and antalgic gait favoring the left leg. The 

examination additionally revealed that appellant had no substantial pain with the internal or 

external rotation of her hips. Dr. Dumonski reviewed an x-ray of appellant’s pelvis and opined 

that it displayed appropriate positioning of her implants with good alignment. He further opined 

that her sacroiliac joint did not appear to be causing her current pain or her swelling in her lower 

extremity, and that her symptomology indicated that she potentially had lumbar radiculopathy.

By decision dated July 2, 2019, an OWCP hearing representative affirmed the January 23, 

2019 OWCP decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA7 and its implementing regulations8 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 of loss of a member 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 and the Board has concurred in such 

adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used

to calculate schedule awards.10

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 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 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.13

 

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a); see also JacquelineS. Harris, 54 ECAB 139 (2002).

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

2.808,5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010).

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

12 See 5 U.S.C. § 8101(19); FrancescoC. Veneziani, 48 ECAB 572 (1997).

13 Supra note 10at Chapter 3.700 (January 2010). The Guides Newsletteris included as Exhibit 4.
5

It is the claimant’s burden of proof to establish permanent impairment of the scheduled 

member or function of the body as a result of an employment injury.14 OWCP procedures provide 

that, to support a schedule award, the file must contain competent medical evidence which shows 

that the impairment has reached a permanent and fixed state and indicates the date on which this 

occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized 

on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.

15

 

Its procedures further provide that, if a claimant has not submitted a permanent impairment 

evaluation, it should request a detailed report that includes a discussion of how the impairment 

rating was calculated.16 If the claimant does not provide an impairment evaluation and there is no 

indication of permanent impairment in the medical evidence of file, the claims examiner may 

proceed with a formal denial of the award.17

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.

Dr. Dumonski’s reports indicated that appellant was post-status a sacroiliac joint fusion 

and that she had reached MMI on May 18, 2018. He opined that appellant’s left sacroiliac joint 

was impaired due to her surgery, as prior to her surgery she did not. Dr. Dumonski noted that her 

most relevant diagnosis for rating purposes was sacroiliac joint dysfunction, status post left 

sacroiliac joint fusion. He explained that his 10 percent permanent impairment rating of 

appellant’s sacroiliac joint was based on his previous patients who had the same condition and 

surgery. Dr. Dumonski further explained that there was no table in the A.M.A., Guides that 

corresponded to a diagnosis of sacroiliac dysfunction status post sacroiliac joint fusion. Although 

OWCP advised Dr. Dumonski that he should provide a lower extremity permanent impairment 

rating pursuant to The Guides Newsletter, he did not provide a rating of permanent impairment of 

appellant’s lower extremities, due to injury to a spinal nerve, with reference to The Guides

Newsletter.

18

 Furthermore, Dr. Dumonski did not document a permanent impairment rating for

the lower extremities that could be visualized and rated.19

In accordance with its procedures, OWCP properly routed the case record to its DMA who 

opined that Dr. Dumonski incorrectly determined appellant’s permanent impairment rating in his 

reports because impairments of the sacroiliac joint were not eligible for a schedule award under 

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

The Guides Newsletter.

 

14 T.K., Docket No. 19-1222 (issued December 2, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

15 Supra note10at Chapter 2.808.5 (March 2017).

16 Id. at Chapter 2.808.6(a) (March 2017).

17 Id. at Chapter 2.808.6(c).

18 See T.D., Docket No. 17-1495 (issued January 4, 2018). 

19 Supra note 15. 
6

Appellant provided additional medical reports from Dr. Dumonski; however, these reports

failed to provide an assessment of her permanent impairment, pursuant to The Guides Newsletter,

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

20

 As 

such these reports are insufficient to establish entitlement to a schedule award.21

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, due to her accepted February 3, 2016 

employment injury, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the July 2, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 8, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

20 See C.D.,Docket No. 16-1489 (issued April12, 2017).

21 Supra note 18.