United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

South Bend, IN, Employer

__________________________________________

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Docket No. 22-0917

Issued: October 26, 2022

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDIION

On May 31, 2022 appellant filed a timely appeal from an April 11, 2022 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act (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 her burden of proof to establish permanent 

impairment of her lower extremities, warranting a schedule award.

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

FAUAL HISTORY

On September 4, 2019 appellant, then a 29-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she injured her back and right leg while in the 

performance of duty. She noted that she bent over to sit in the driver’s seat of her delivery vehicle 

and experienced low back pain and right leg weakness. Appellant did not stop work. OWCP 

accepted the claim for lumbar sprain. 

A report of electromyography and nerve conduction velocity (EMG/NCV) study dated 

December 10, 2020 revealed no abnormalities with the exception of chronic neurogenic changes 

in the right rectus femoris muscle indicative of mild previous or chronic irritation of the right L3 

and/or L4 nerve roots without evidence of ongoing denervation present. 

On March 30, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a May 12, 2021 report, Dr. Sami Moufawad, Board-certified in physiatry, related that 

he had examined appellant and advised that she had reached maximum medical improvement 

(MMI) as of that date. He conducted a physical examination and found moderate-sensory deficits 

in the L5 and S1 dermatomes and mild motor deficits in the S1 myotome, bilaterally. 

Dr. Moufawad applied 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) to his findings. He diagnosed low back strain and aggravation of a lower lumbar spine 

condition. Dr. Moufawad opined that appellant had eight percent permanent impairment of the 

right lower extremity and eight percent permanent impairment of the left lower extremity. 

OWCP thereafter received a series of diagnostic study reports, including a magnetic 

resonance imaging (MRI) scan of the lumbar spine dated September 7, 2018, which revealed 

acquired lower lumbar spondylosis at L5-S1 with disc bulge and left central extrusion encroaching 

on the traversing left S1 nerve root and a disc bulge at L4-5 causing mild lateral recess stenosis 

right greater than left. A report of the MRI scan dated December 19, 2018 of the lumbar spine 

revealed postsurgical changes at L4-5 and L5-S1 with mild residual right central disc bulge at 

L4_5. A report of the MRI scan of the lumbar spine dated December 19, 2020 revealed mild 

bilateral foraminal narrowing at L4-5 and L5-S1 without flattening of the corresponding nerve 

roots. A report of computerized tomography scan of the lumbar spine dated December 22, 2020 

revealed mild-to-moderate degenerative disc disease at L4-5. 

On May 29, 2021 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an 

OWCP district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the 

medical record. He noted that, in a prior examination, a treating physician had documented a 

normal motor and sensory examination of both lower extremities and that Dr. Moufawad noted 

bilateral sensory and motor deficits in the lower extremities. Dr. Katz recommended a second 

opinion examination and impairment rating evaluation by an appropriate physician.

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

On July 27, 2021 OWCP referred appellant, a SOAF, the medical record, and a series of 

questions, to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, for a second opinion 

examination and impairment rating evaluation.

In a September 13, 2021 report, Dr. Obianwu diagnosed a low back strain. He noted a 

prior history of disc abnormalities and lumbarsurgery in 2018. Dr. Obianwu performed a physical 

examination, which revealed equal deep tendon reflexes bilaterally, negative straight leg raise

bilaterally, no atrophy, good strength in the various muscle groups of the lower extremities, 

adequate bilateral extensor hallucis longus, and normal strength of dorsiflexion and plantar flexion 

of both ankles. He indicated he performed sensory testing of the left lower extremity and found 

no dermatomal sensory loss. Dr. Obianwu noted that appellant claimed to have diminished 

sensation throughout the entire right lower extremity when compared to the left, which he indicated 

did not allow for a diagnosis of a specific dermatomal pattern loss. He opined that she reached 

MMI on September 13, 2021, the date of his evaluation. Dr. Obianwu diagnosed a work-related 

low back strain and nonwork-related conditions of postoperative changes at L4-5 and L5-S1, right 

paracentral disc protrusion at L4-5, and disc bulging at L3-4 without abutment of the nerve roots. 

He referenced the sixth edition of the A.M.A., Guides, and given his clinical examination of the 

lower extremities, he did not find ratable impairment.

OWCP subsequently referred the evidence of record, including the September 13, 2021 

report of Dr. Obianwu, to Dr. Katz serving as a DMA. In an October 6, 2021 report, Dr. Katz 

noted that Dr. Obianwu found no physiologic myotomal motor or dermatomal sensory deficits in 

either lower extremity, and that these findings were consistent with the prior examination by

Dr. Watts. 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 range of motion impairment calculation for the accepted conditions.

By decision dated November 23, 2021, 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. It noted that Dr. Obianwu concluded that permanent impairment 

did not exist, because no ratable condition was discerned in the clinical examination of both lower 

extremities, and that the DMA agreed with Dr. Obianwu.

On November 30, 2021 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

March 8, 2022. 

By decision dated April 11, 2022, OWCP’s hearing representative affirmed the 

November 23, 2021 decision. 
4

LEGAL PRECEDENT

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

member or function of the body as a result of an employment injury.3

The schedule award provisions of FECA4 and its implementing regulations5 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. OWCP has adopted the 

A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth 

edition of the A.M.A., Guides is used to calculate schedule awards.6

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. 7 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 (2009) 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. 9

In addressing 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 class of diagnosis (CDX), which is then adjusted by grade modifiers based on 

functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS). 10 The 

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

3

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019); 

Tammy L. Meehan, 53 ECAB 229 (2001).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

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

2.808.5a. (March2017); see alsoChapter 3.700.2 and Exhibit 1 (January 2010).

7

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).

8

Supra note 6 at Chapter 2.808.5c(3) (February2022).

9

Id. at Chapter 3.700, Exhibit 4 (January 2010); see L.H., Docket No. 20-1550 (issued April 13, 2021); N.G., 

Docket No. 20-0557 (issued January 5, 2021).

10 A.M.A., Guides 494-531; see R.V., Docket No. 20-0005 (issued December 8, 2020); J.B., Docket No. 09-2191 

(issued May 14, 2010).

11 A.M.A., Guides 521.
5

Section 8123(a) of FECA provides that, 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.12 

ANALYSIS

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

Dr. Moufawad conducted a physical examination and found-moderate-sensory deficits in 

the L5 and S1 dermatomes and mild motor deficits in the S1 myotome, bilaterally. He also 

performed a physical examination, but found equal deep tendon reflexes bilaterally, negative 

straight leg raise bilaterally, no atrophy, good strength in the various muscle groups of the lower 

extremities, adequate bilateral extensor hallucis longus, normal strength of dorsiflexion and plantar 

flexion of both ankles, and no specific dermatomal pattern of sensory loss. A conflict, therefore,

exists in the medical opinion evidence between Dr. Moufawad and Dr. Obianwu regarding the 

nature and extent of any sensory or motor deficits in appellant’s lower extremities. As there is an 

unresolved conflict in the medical evidence, the case must be remanded to OWCP for referral to 

an impartial medical examiner (IME) for resolution of the conflict in accordance with 5 U.S.C. 

§ 8123(a).13

On remand OWCP shall refer the case record, the SOAF, and appellant to a specialist in 

the appropriate field of medicine, to serve as an IME, for a reasoned opinion regarding the extent 

of permanent impairment, if any, of appellant’s lower extremities. Following 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.

12 5 U.S.C. § 8123(a). See R.C., Docket No. 18-0463 (issued February 7, 2020); see also G.B., Docket No. 16-0996 

(issued September 14, 2016).

13 5 U.S.C. § 8123(a).
6

ORDER

IT IS HEREBY ORDERED THAT the April 11, 2022 decision of the Office of Workers’

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

with this decision of the Board.

Issued: October 26, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board