United States Department of Labor

Employees’ Compensation Appeals Board

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H.T., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, RED RIVER ARMY 

DEPOT, TX, Employer

__________________________________________

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Docket No. 23-0296

Issued: June 12, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 21, 2022 appellant filed a timely appeal from a September 19, 2022 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 19, 2022 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 his burden of proof to establish greater than one 

percent permanent impairment of his left lower extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.3 The facts and 

circumstances of the case as set forth in the Board’s prior decision are incorporated herein by 

reference. The relevant facts are as follows.

On January 30, 2020 appellant, then a 45-year-old forklift operator, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an aggravation of a low back injury causally 

related to factors of his federal employment. He stopped work on October 31, 2019. OWCP 

accepted the claim for lumbar intervertebral disc disorders with radiculopathy and unspecified 

complications of medical care.4 On February 6, 2020 appellant underwent a left L4-5 

microdiscectomy. OWCP paid him wage-loss compensation from February 6 through

March 18, 2020. Appellant returned to his regular employment on March 19, 2020. 

On June 23, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In development letters dated October 15 and November 9, 2021, OWCP requested that 

appellant provide an impairment evaluation from his treating physician utilizing the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides)

5 and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition (July/August 2009) (The Guides Newsletter). It afforded him 30 days to submit 

the requested information.

On April 22, 2022 appellant informed OWCP that his treating physician did not perform

impairment ratings. 

On May 3, 2022 OWCP referred appellant to Dr. Richard B. Sharp, a Board-certified 

physiatrist, for a second opinion evaluation to determine the extent of any employment-related 

permanent impairment.

In a report dated May 25, 2022, Dr. Sharp reviewed appellant’s history of injury and 

lumbar surgery. He diagnosed intervertebral disc disorder with lumbar radiculopathy and other 

complications of surgical and medical care. On examination, Dr. Sharp measured range of motion 

3 Docket No. 21-0313 (issued July 9, 2021).

4 On April 16, 2020 subsequent to its acceptance of the claim, OWCP determined that appellant’s claim was for a 

traumatic injury (Form CA-1) rather than an occupational disease, noting that he had experienced left leg pain on 

October 31, 2019. It converted the claim to an traumatic injury claim.

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

of the lumbar spine and found mild tenderness at the left gluteal region with no spasm or atrophy 

of the lower extremity. He further found reduced sensation to pinprick of the left lateral foot, a 

negative straight leg-raise bilaterally, full motor strength bilaterally, and no left foot drop. 

Dr. Sharp related that appellant had a “well-documented left herniated disc [at] L4-5 which should 

be affecting [the] L5 nerve” but that instead his symptoms appeared to be in the S1 nerve root 

distribution. He opined that appellant had continued left lumbar radiculopathy that interfered with 

activities. Referencing Proposed Table 2 of The Guides Newsletter, Dr. Sharp found one percent 

permanent impairment due to a Class 1 mild sensory deficit of the S1 nerve root, which yielded a 

default impairment rating of one percent. He applied a grade modifier for clinicalstudies (GMCS) 

of two based on the diagnostic studies and a grade modifier for functional history (GMFH) of two 

based on appellant’s pain and symptoms that interfered with activity. Dr. Sharp found that a grade 

modifier for physical examination (GMPE) was not applicable since the neurological examination 

was used to identify the impairment value. He applied the net adjustment formula which moved 

the rating two places to the right, for one percent permanent impairment of the lower extremity. 

Dr. Sharp determined that appellant had reached maximum medical improvement (MMI) on 

March 18, 2020.

On July 28, 2022 Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon serving as a 

district medical adviser (DMA), concurred with Dr. Sharp’s finding that appellant had one percent 

permanent impairment of the left lower extremity due to a mild nerve impairment at S1. He 

determined that appellant had reached MMI on May 23, 2022 as this was “the date with the most 

comprehensive neurological examination that was used to calculate impairment.” Dr. Ugokwe 

noted that the A.M.A., Guides did not provide for a rating using the range of motion as an 

alternative method for the relevant diagnosis.

By decision dated September 19, 2022, OWCP granted appellant a schedule award for one 

percent permanent impairment of the left lower extremity. The period of the award ran for 5.76

weeks from May 23 to July 2, 2022.

LEGAL PRECEDENT

The schedule award provision of FECA,6 and its implementing federal regulation,7 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

6

Supra note 1.

7

20 C.F.R. § 10.404.
4

A.M.A., Guides, published in 2009.8 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.9

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health ICF: A Contemporary Model of Disablement.

10

 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by GMFH, GMPE, and 

GMCS.11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 

Evaluators are directed to provide reasons for their impairment choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores. 13

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. 14 Furthermore, the 

back is specifically excluded from the definition of an organ under FECA. 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 procedures indicate that the 

July/August 2009 edition of The Guides Newsletter is to be applied.16

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

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

using the A.M.A., Guides.

17

8 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 Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 A.M.A., Guides (6th ed. 2009), p.3, section 1.3.

11 Id. at 494-531.

12 Id. at 411.

13 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 

14 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see G.H., Docket No. 20-1214 (issued December 16, 2022); 

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

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

16 Supra note 8 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

17 Supra note 8 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).
5

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than one 

percent permanent impairment of his left lower extremity, for which he previously received a 

schedule award.

In a report dated May 25, 2022, Dr. Sharp found mild tenderness of the left gluteal region, 

decreased sensation to pinprick of the left lateral foot without left foot drop, and full strength of 

the lower extremities with no atrophy or spasm. He noted that appellant had a left herniated disc 

at L4-5 but that his symptoms appeared to be more from the S1 nerve root. Dr. Sharp identified 

the CDX as a Class 1 mild sensory deficit of the S1 nerve root, which he found yielded a default 

impairment of one percent according to Proposed Table 2 of The Guides Newsletter. He applied 

a GMCS of two and a GMFH of two, and noted that a GMPE was not applicable as it was used to 

identify the CDX. Utilizing the net adjustment formula, Dr. Sharp found a net adjustment of two 

and one percent permanent impairment of the left lower extremity. 18 

On July 28, 2022 Dr. Ugokwe, the DMA, reviewed and concurred with Dr. Sharp’s 

impairment rating. He noted that range of motion was not available as an alternative rating method. 

There is no medical evidence of record establishing that appellant has more than one percent 

permanent impairment of the left lower extremity. 

Accordingly, the Board finds thatthe medical evidence of record is insufficient to establish 

greater than the one percent permanent impairment of the left lower extremity.

19

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than one 

percent permanent impairment of his left lower extremity, for which he previously received a 

schedule award.

18 Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMCS-CDX), or (2-1) + (2-1) = 2, 

yielded an adjustment of two.

19 See G.H., supra note 14; D.S., Docket No. 20-0670 (issued November 2, 2021).
6

ORDER

IT IS HEREBY ORDERED THAT the September 19, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 12, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board