United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Kansas City, MO, Employer

__________________________________________

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Docket No. 22-0301

Issued: July 25, 2022

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 15, 2021 appellant filed a timely appeal from a July 22, 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 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the July 22, 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 13 

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

schedule award and greater than 0 percent permanent impairment of his left lower extremity.

FACTUAL HISTORY

This case has previously been before the Board.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 August 24, 1963 appellant, then a 23-year-old distribution clerk, filed a traumatic injury 

claim (Form CA-1) alleging that he had reinjured his back following a September 1962 

employment injury.4 He retired from the employing establishment in 1995. OWCP accepted the 

claim for lumbosacral sprain and authorized medical treatment, including surgical procedures in 

1964, 1965, 1994, 1998, 2012, and 2013. By decision dated December 17, 2014, it expanded the 

acceptance of the claim to include a 1998 lumbar wound infection, L4-5 pseudo-arthritis, lumbar 

postlaminectomy syndrome L4-S1, and lumbar radiculopathy.

By decision dated February 26, 2015, OWCP granted appellant a schedule award for 10 

percent permanent impairment of his right lower extremity and 0 percent permanent impairment 

of his left lower extremity. The award ran for 28.8 weeks for the period November 13, 2014 to 

March 7, 2015. 

On March 16, 2015 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated October 21, 2015, 

OWCP’s hearing representative denied appellant’s request for an oral hearing. He found that, as 

the injury occurred in 1963, there was no right to an oral hearing and the issue in the case could be 

equally addressed by requesting reconsideration. 

On January 20, 2016 appellant filed a claim for compensation (Form CA-7) for an 

increased schedule award. 

By decision dated June 13, 2018, OWCP granted appellant an additional schedule award 

for three percent permanent impairment of the right lower extremity for a total permanent 

impairment of 13 percent of the right lower extremity, and 0 percent permanent impairment to the 

left lower extremity. The award ran for 8.64 weeks for the period February 13 through April 14, 

2017, a fraction of a day. 

On June 19, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. By decision dated August 3, 2018, 

3 Docket No. 19-0063 (issued June21, 2019). 

4 On September 7, 1962 appellant filed a Form CA-1 alleging that on that date he sustained an acute lumbosacral 

sprain when bending over and repositioning mail trays while in the performance of duty. OWCP assigned that claim 

OWCP File No. xxxxxx227. 
3

OWCP’s hearing representative denied the request for an oral hearing. She referenced 5 U.S.C. 

§ 8124 and found that a right to a hearing existed for injuries occurring after July 4, 1966 and,

because appellant’s injury occurred on August 24, 1963, he had no right to a hearing. The hearing 

representative further found that he could pursue alternative appellate remedies under FECA such 

as requesting reconsideration before OWCP or an appeal to the Board. 

On October 9, 2018 appellant appealed to the Board. By decision dated June 21, 2019, the 

Board set aside OWCP’s June 13, 2018 decision and remanded the case for further development.5 

The Board found that there was a unresolved conflict in the medical evidence between Dr. Kevin 

Komes, a Board-certified physiatrist and second opinion physician, and Dr. M. Stephen Wilson, 

appellant’s treating orthopedic surgeon, regarding the extent of permanent impairment of 

appellant’s bilateral lower extremities due to his accepted conditions. Thus, the Board remanded 

the case for referral to an impartial medical examiner (IME) to resolve the conflict in medical 

opinion evidence.

On March 4, 2021 OWCP referred appellant, along with an August 17, 2016 statement of 

accepted facts (SOAF), and the medical record, for an impartial medical examination with

Dr. William Hopkins, a Board-certified orthopedic surgeon. The August 17, 2016 SOAF noted 

appellant’s accepted condition only as acute lumbosacral strain. 

In a March 9, 2021 report, Dr. Hopkins noted appellant’s history of injury, reviewed the 

medical record and set forth examination findings, which he indicated that were appropriate for 

appellant’s complaints and positive electromyography (EMG) test of his lower extremities. He

opined that appellant’s lumbar spine impairments were more probably than not a combination of 

appellant’s injuries and the complications of his age and treatments. Based on appellant’s 

September 2, 2022 EMG test, Dr. Hopkins opined that appellant was at maximum medical 

improvement. He noted that appellant had diminished sensation in both right and left lower 

extremities from the abdomen distally to his feet. Dr. Hopkins also noted that appellant had 

weakness in all of appellant’s leg motors extending up to the hip joint both right and left with his 

loss of strength appearing to be equal on both the right and left side. Utilizing the sixth edition of 

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

Guides),

6 he opined that appellant had 27 percent permanent impairment of the whole body due to 

his August 24, 1963 work injury. 

On July 9, 202 OWCP routed the August 17, 2016 SOAF, the medical record, and a list of 

questions, to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as a district 

medical adviser (DMA). 

In a July 9, 2021 report, Dr. Harris indicated that he reviewed the SOAF and the medical 

record. He reported that Dr. Hopkins’ examination of appellant demonstrated diffuse decreased 

sensation and weakness in the bilateral lower extremities in a nonanatomic distribution. Dr. Harris 

noted that Dr. Hopkins’ impairment rating was based on Table 17-4, page 570-574 of the A.M.A., 

Guides, which rates permanent impairment of the spine based on mechanical low back pain, 

5

Supra note 3.

6 A.M.A., Guides(6th ed. 2009).
4

radiculopathy and documented spinal pathology based on diagnostic studies. However, FECA 

utilizes The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition

(July/August 2009) (The Guides Newsletter) for rating permanent impairment of the lower 

extremities based upon a permanent impairment originating in the spine. Dr. Harris utilized the 

diagnosis-based impairment (DBI) method to render an impairment rating as the A.M.A., Guides

did not allow for range of motion methodology for the lower extremities/lumbar spine. Using

Dr. Hopkins’ examination findings, he noted that appellant did not have any neurologic deficit in 

either lower extremity consistent with lumbar radiculopathy. This was consistent with a Class 0 

impairment based on the Table 2 of The Guides Newsletter. Dr. Harris opined that this resulted in 

0 percent bilateral lower extremity permanent impairment for lumbar radiculopathy. 

By decision dated July 22, 2021, OWCP denied appellant’s request for an increased 

schedule award. 

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. 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, OWCP has adopted the A.M.A., Guides as 

the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.10

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

11

 Under the sixth edition, for lower extremity 

impairments, the evaluator identifies the impairment of the class of diagnosis (CDX), which is 

then adjusted by a grade modifier for functional history (GMFH), grade modifier for physical 

examination (GMPE), and/or grade modifier for clinical studies (GMCS).

12

 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 The standards for evaluation 

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5a (March 2017); id. at Chapter 3.700 and Exhibit 1 (January 2010).

11 A.M.A., Guides, page 3, section 1.3.

12 Id. at 493-556.

13 Id. at 521.
5

of permanent impairment of an extremity under the A.M.A., Guides are based on all factors that 

prevent a limb from functioning normally, such as pain, sensory deficit, and loss of strength.14

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. 15 However, a 

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

and/or lower extremities.16 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. 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.17

In addressing upper or lower extremity impairment due to peripheral or spinal nerve root 

involvement, the sixth edition of the A.M.A., Guides and The Guides Newsletter require 

identifying the impairment CDX, which is then adjusted by the GMFH and the GMCS. The 

effective net adjustment formula is (GMFH - CDX) + (GMCS - CDX).18

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.”

19

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently 

well rationalized and based upon a proper factual background, must be given special weight.20

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 permanent 

14 C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010);

Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.D., Docket No. 20-0553 (issued April19, 2021); A.G., 

Docket No. 18-0815 (issued January 24, 2019); Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

16 See supra note 10at Chapter 2.808.5c(3) (March 2017).

17 Id. at Chapter 3.700, Exhibit 4 (January 2010).

18 The Guides Newsletter; A.M.A., Guides 430.

19 5 U.S.C. § 8123(a).

20 See A.D., supra note 15; L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued 

November 26, 2018); R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002); ClintonE. 

Anthony, Jr., 49 ECAB 476 (1998).
6

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

percentage of impairment specified.21

OWCP’s procedures further provide that, “[w]hen the DMA, second opinion specialist or 

referee physician renders a medical opinion based on a SOAF which is incomplete or inaccurate 

or does not use the SOAF as the framework in forming his or her opinion, the probative value of 

the opinion is seriously diminished or negated altogether.”

22

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of the June 13, 2018 decision because the Board 

considered that evidence in its June 21, 2019 decision. Findings made in prior Board decisions 

are res judicata absent any further review by OWCP under section 8128 of FECA.23

On March 4, 2021 OWCP referred appellant, along with the August 17, 2016 SOAF, and 

the medical record, for an impartial medical examination with Dr. Hopkins. It subsequently 

referred the same SOAF to the DMA, Dr. Harris. The August 17, 2016 SOAF noted appellant’s 

accepted condition as acute lumbosacral strain. However, it did not list his additional conditions 

of a 1998 lumbar wound infection, L4-5 pseudo-arthritis, lumbar postlaminectomy syndrome 

L4-S1, and lumbar radiculopathy, which OWCP accepted by decision dated December 17, 2014.

The Board also notes that the August 17, 2016 SOAF did not indicate that he had previously 

received a schedule award for permanent impairment of his right lower extremity.

It is OWCP’s responsibility to provide a complete and proper frame of reference for a 

physician by preparing a SOAF. As noted above, OWCP’s procedures dictate that, when an 

OWCP DMA, second opinion specialist, or IME renders a medical opinion based on a SOAF,

which is incomplete or inaccurate, or does not use the SOAF as the framework in forming his or 

her opinion, the probative value of the opinion is seriously diminished or negated altogether.24 As

neither the IME, Dr. Hopkins, nor the DMA, Dr. Harris, had an accurate SOAF available, their 

opinions are of diminished probative value.25 The Board, therefore, finds that the opinion of

Dr. Hopkins is insufficient to carry the special weight of the medical evidence. Thus, the conflict 

remains unresolved. 

On remand OWCP shall refer appellant and an updated SOAF to Dr. Hopkins for a 

supplemental report, or if Dr. Hopkins is unavailable, to another physician in the appropriate field 

21 See supra note 11at Chapter 2.808.6(f) (March 2017).

22 Id. at Chapter 3.600.3 (October 1990); Y.D., Docket No. 17-0461 (issued July 11, 2017).

23 M.D., Docket No. 19-0510 (issued August6, 2019).

24 See supra note 22; see also K.C., Docket No. 20-1628 (issued September 1, 2021); N.W., Docket No. 16-1890 

(issued June 5, 2017).

25 Id.;see also Y.D., supra note 22.
7

of medicine to resolve the existing conflict as to the extent of permanent impairment of appellant’s 

bilateral lower extremities due to his accepted conditions. After this, and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the July 22, 2021 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: July 25, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board