United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, St. Petersburg, FL, 

Employer

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Docket No. 21-1300

Issued: April 25, 2022

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On August 20, 2021 appellant filed a timely appeal from a February 26, 2021 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 

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of her bilateral lower extremities due to her accepted lumbar conditions. 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the February26, 2021 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

FACTUAL HISTORY

This case has previously been before the Board on a different issue. 3 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 June 16, 2008 appellant, then a 44-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that on June 10, 2008 she lifted heavy trays and felt pain in her back 

and right side of her lower abdomen. She stopped work on June 12, 2008 and eventually returned 

to a modified position at six hours per shift.

4

 OWCP accepted the claim for a lumbosacral sprain, 

abdominal wall strain, herniated disc at L4-5 and left thoracic or lumbosacral neuritis or radiculitis. 

Appellant retired effective October 14, 2014. 

On October 11, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

Appellant provided an August 22, 2019 report from Dr. Mark A. Seldes, a Board-certified 

family practitioner, who noted her history of injury and reviewed diagnostic testing. Dr. Seldes’

neurological examination revealed decreased sensation to light touch and impaired sharp dull 

discrimination over the proximal and lateral parts of the thigh, the anterior aspects of the knees 

and into the dorsum of the feet, left side greater than right side. Appellant also had decreased 

sensation to light touch and impaired sharp and dull discrimination over the posterolateral calves 

and the lateral aspect of the feet left side greater than right. He found a mild motor deficit in the 

hip abductors on the left side with strength of 4/5 and, on the right side, a strength of 4/5 and 

weakness in the Iliopsoas with the strength of 4/5 bilaterally. Dr. Seldes also noted reduced 

strength in the quadriceps flexors, extensor halluces longus muscle, plantar flexor and deep tendon 

reflexes for the patellar medial hamstring and Achilles bilaterally. He diagnosed lumbar 

radiculopathy with bilateral lower extremity symptoms in the L3 and L4 nerve roots and lumbar 

degenerative disc disease, all confirmed by diagnostic testing. Based on his examination findings,

Dr. Seldes opined that appellant had reached maximum medical improvement (MMI) as of 

August 22, 2019. He applied 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 Impairment Extremity Impairment Using the Sixth Edition, July/August, (The Guides 

Newsletter), to his findings and determined that appellant had 23 percent permanent right lower 

extremity impairment and 23 percent permanent left lower extremity impairment for Class 1 

bilateral spinal nerve root impairments for the L3 and L4 nerve roots. He also provided his 

impairment calculations. Dr. Seldes found a grade modifier for functional history (GMFH) of 2, 

based on an AAOS lower limb questionnaire, and a grade for modifier clinical studies (GMCS) of 

2, based on April 10, 2018 electromyography (EMG) and nerve conduction velocity (NCV) 

testing, which showed evidence of lumbar radiculopathy with bilateral L3 and L4 nerve 

distribution. He found a net adjustment of +2 after application of the net adjustment formula or 

grade E severity. For the bilateral L3 nerve root, Dr. Seldes found 4 percent bilateral severe 

sensory deficit and 5 percent bilateral mild motor deficit for a combined 9 percent lower extremity 

3 Docket No. 11-197 (issued October 18, 2011). 

4 Appellant received compensation for the remaining two hours per shift. 

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

impairment. For the bilateral L4 nerve root, he found 6 percent severe sensory deficit and 9 percent 

mild motor deficit for a combined 15 percent lower extremity impairment. Using the Combined 

Values Chart on page 604 of the A.M.A., Guides, Dr. Seldes combined the 9 percent impairment 

for the L3 nerve root with the 15 percent impairment for the L4 nerve root for 23 percent total 

lower extremity impairment for the left and right lower extremities. 

In an October 25, 2019 development letter, OWCP requested that Dr. Seldes provide a 

medical report which included a diagnosis, and a detailed description of objective findings.

Dr. Seldes was also advised that the report should include a finding of MMI, and a permanent 

impairment rating in accordance with the sixth edition of the A.M.A., Guides, and The Guides 

Newsletter. OWCP afforded 30 days for a response. No response was received.

On December 4, 2019 OWCP referred appellant’s case, including a statement of accepted 

facts (SOAF), to Dr. Michael M. Katz, a Board-certified orthopedic surgeon and district medical 

adviser (DMA). In a December 11, 2019 report, Dr. Katz reviewed the medical record, including

the magnetic resonance imaging (MRI) scans of December 15, 2017 and the August 31, 2016 

study, and found that the examination findings noted by Dr. Seldes, especially those on the left 

lower extremity, were not supported by the anatomical findings noted by the diagnostic radiology 

studies. He recommended a second opinion examination to address these discrepancies. Dr. Katz 

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

(ROM) impairment calculation and that the date of MMI was undetermined at the present. 

Dr. Seldes continued to provide progress reports in which he diagnosed lumbar 

radiculopathy with bilateral lower extremity symptoms notable in the L3 and L4 distribution and 

lumbar degenerative disc disease. 

On January 10, 2020 OWCP referred appellant, a statement of accepted facts (SOAF), and 

a series of questions to Dr. William Dinenberg, a Board-certified orthopedic surgeon, for a second 

opinion permanent impairment evaluation. 

In a February 7, 2020 report, Dr. Dinenberg described appellant’s employment injury and 

noted his review of her ongoing symptoms and the medical record. He noted that appellant 

ambulated with an antalgic gait using a walker, which she indicated was secondary to low back 

pain and plantar fasciitis. On physical examination Dr. Dinenbergnoted objective findings of give 

way muscle testing bilaterally, diminished ROM of the lumbar spine and intact and symmetric 

reflexes. He also noted that appellant had pain of the lumbar spine with gentle axial load and 

gentle palpations and stocking-like distribution numbness in bilateral lower extremities. 

Dr. Dinenberg noted the administratively accepted lumbar spine strain, and herniated nucleus 

pulposus of the lumbar spine at L4-5. He opined that appellant had reached MMI as of 

February 7, 2020. Dr. Dinenberg requested an updated EMG/NCV study of the bilateral lower 

extremities prior to completing an impairment rating.

On June 16, 2020 Dr. William C. Hulley, a neurologist serving as an OWCP second 

opinion physician, performed an EMG/NCV study. He opined that there was no evidence of left 

or right lumbosacral motor radiculopathy or generalized peripheral neuropathy. Dr. Hulley noted 

that the studies were slightly sub-optimal due to the large amount of edema involving both ankles 

and feet, which made recordings difficult, and that appellant had restrictions in total movement 

due to the edema. 
4

In a June 21, 2020 addendum, Dr. Dinenberg opined that the June 16, 2020 studies by

Dr. Hully revealed a probably normal examination with no evidence of left or right lumbosacral 

motor radiculopathy or generalized peripheral neuropathy. Based on appellant’s February 7, 2020 

non-physiologic examination findings, which had no evidence of radiculopathy and a negative 

straight leg raise, and the June 16, 2020 EMG and NCV studies, which also revealed no evidence 

of radiculopathy, he opined that appellant did not have a permanent impairment of the bilateral 

lower extremities under The Guides Newsletter. 

OWCP again referred Dr. Dinenberg’s report and the evidence of record to Dr. Katz 

serving as a DMA. In a July 10, 2020 report, Dr. Katz reviewed Dr. Dinenberg’s reports and noted 

that Dr. Dinenberg found no physiologic myotomal motor or dermatomal sensory deficits in either 

lower extremity and that he had documented multiple Waddell signs, which were indicative of 

non-organic spine pain. Under proposed Table 2, Spinal Nerve Impairment; Lower Extremity 

Impairment, the DMA found for spinal nerves L3, L4, L5, and S1 of both lower extremities that 

there was no motor deficit and no sensory deficit with no net adjustment. Thus, he opined that 

each extremity had class 0 or 0 percent impairment. The DMA further opined that the A.M.A., 

Guides did not allow for an alternative ROM impairment calculation for the accepted conditions. 

By decision dated July 21, 2020, OWCP denied appellant’s schedule award claim, finding 

that she had not met her burden of proof to establish permanent impairment of a scheduled member

or function of the body. The weight of the medical evidence was accorded to the DMA. 

On November 23, 2020 appellant requested reconsideration. In an August 31, 2020 

NCV/EMG study report, Dr. Robert Guirguis, a Board-certified pain management specialist, 

found electrodiagnostic evidence consistent with lumbar radiculopathy affecting the bilateral S1 

nerve roots. 

On October 5, 2020 Dr. Seldes indicated his review of the report.

On February 8, 2021 OWCP requested that Dr. Katz, its DMA, review the updated 

September 18, 2020 SOAF and the August 31, 2020 EMG/NCV study and provide a supplemental 

report. 

In a February 19, 2021 report, Dr. Katz re-reviewed the medical evidence and indicated 

that it remained his opinion that Dr. Dinenberg’s findings were more accurate. He noted that

Dr. Hulley, a Board-certified neurologist, performed electrodiagnostics on June 16, 2020 and 

found no evidence of left or right lumbosacral motor radiculopathy or generalized peripheral 

neuropathy. Dr. Seldes, however, determined significant sensory and motor deficits bilaterally at

the L3 and L4 levels, which show no abnormality per the electrodiagnostic findings of either 

examiner. Dr. Katz indicated that, under The Guides Newsletter’s instructions, the assessment of 

a spinal nerve deficit was based on the clinical examination, and electrodiagnostics were only a 

clinical modifier to adjust the clinical examination findings. For that reason, he opined that the 

weight of the medical evidence favored the opinion of Dr. Dinenberg as a Board-certified 

orthopedic surgeon over that of Dr. Seldes, a family physician, as Dr. Dinenberg’s training and 

experience would generally place him as an expert in assessing dermatomal and myotomal deficits. 

Additionally, Dr. Dinenberg’s opinion was supported and confirmed by the electrodiagnostic 

findings of a Board-certified neurologist. Thus, he opined that appellant had no impairment of 

either lower extremity. 
5

By decision dated February 26, 2021, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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.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 or spine, 10 or the body as a whole. However, a 

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

and/or lower extremities.11 The sixth edition of the A.M.A., Guides 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. The 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

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

6

Supra note 1.

7

20 C.F.R. § 10.404.

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 

(January2010).

9 P.R., Docket No. 19-0022(issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

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

11 Supra note 8 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3) 

(March 2017).

12 Supra note 8 at Part 3 --Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

13 5 U.S.C. § 8123(a).
6

ANALYSIS

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

In his August 22, 2019 report, Dr. Seldes reported appellant’s neurological examination 

revealed decreased sensation to light touch and impaired sharp dull discrimination over the 

proximal and lateral parts of the thigh, the anterior aspects of the knees and into the dorsum of the 

feet, left side greater than right side. Appellant also had decreased sensation to light touch and 

impaired sharp and dull discrimination over the posterolateral claves and the lateral aspect of the 

feet left side greater than right. Dr. Seldes found a mild motor deficit in the hip abductors on the 

left side with strength of 4/5 and, on the right side, a strength of 4/5 and weakness in the Iliopsoas 

with the strength of 4/5 bilaterally. He also noted reduced strength in the quadriceps flexors, 

extensor halluces longus muscle, plantar flexor and deep tendon reflexes for the patellar medial 

hamstring and Achilles bilaterally. Dr. Seldes based his impairment rating of 23 percent 

permanent impairment on these positive findings and on objective testing.

In contrast, Dr. Dinenberg reported that appellant had non-physiologic examination 

findings, with no evidence of radiculopathy on examination including a negative straight leg raise, 

and the June 16, 2020 EMG/NCV was probably normal and which also revealed no evidence of 

radiculopathy. He opined that appellant had no impairment for the bilateral lower extremities 

under The Guides Newsletter. Dr. Katz found that the examination findings noted by Dr. Seldes, 

especially those on the left lower extremity, were not supported by the anatomical findings noted 

by the diagnostic radiology studies. He further indicated that, under The Guides Newsletter’s

instructions, the assessment of a spinal nerve deficit was based on the clinical examination, and 

electrodiagnostics were only a clinical modifier to adjust the clinical examination findings.

Dr. Katz opined that appellant had no impairment of either lower extremity. 

The Board, therefore, finds that a conflict exists in the medical opinion evidence between

Dr. Seldes and Drs. Dinenberg and Katz as to whether appellant has sensory or motor deficits of 

the bilateral lower extremities due to peripheral nerve impairment arising from appellant’s 

accepted lumbar conditions.14

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

existing conflict in the medical opinion evidence, pursuant to 5 U.S.C. § 8123(a) regarding 

appellant’s bilateral lower extremity permanent impairment, if any. On remand OWCP shall refer 

appellant, along with the case file and a SOAF, to a specialist in the appropriate field of medicine 

for an impartial medical evaluation for a rating of permanent impairment in accordance with the 

sixth edition of the A.M.A., Guides. After this and other such further development as deemed 

necessary, it shall issue a de novo decision regarding appellant’s schedule award claim.

CONCLUSION

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

14 Id.;see L.P., Docket No. 21-0409 (issued November 5, 2021). 
7

ORDER

IT IS HEREBY ORDERED THAT the February 26, 2021 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: April 25, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board