United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Blue Bell, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 21-0508

Issued: September 22, 2021

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 17, 2021 appellant, through counsel, filed a timely appeal from a 

September 18, 2020 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 appellant submitted new evidence on appeal. 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 permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On December 12, 2016 appellant, then a 46-year-old city letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that he developed a fractured disc and nerve 

impingement causing pain from his lower back radiating into his right leg due to factors of his 

federal employment. On February 16, 2017 OWCP accepted the claim for aggravation of other 

spondylosis with radiculopathy, lumbosacral region. Appellant stopped work on 

November 9, 2016. OWCP paid him wage-loss compensation on the supplemental rolls from

May 3 through September 16, 2017 and on the periodic rolls, effective September 17, 2017.

In a report dated November 18, 2016, Dr. Victor Hsu, a Board-certified orthopedist, 

evaluated appellant for lumbar spine and right leg pain. He diagnosed lumbar stenosis and 

spondylolisthesis of lumbosacral region and recommended spinal injections. Dr. Hsu

subsequently treated appellant on January 20, 2017 and diagnosed spondylolisthesis of 

lumbosacral region, and spinal stenosis of the lumbar region. He noted that conservative treatment,

including epidural injections and physical therapy, failed and he requested authorization to perform 

spinal fusion and insertion of spinal fixation device.

4

Appellant was later treated by Dr. Venkatesh Sundararajan, a Board-certified 

anesthesiologist, on November 28, 2016 and January 30 and February 6, 2017, who diagnosed 

lumbar radicular syndrome and lumbar spinal stenosis. Dr. Sundararajan performed a series of 

right L5 and S1 transforaminal epidural steroid injections with fluoroscopy with minimal relief in 

symptoms. 

On October 6, 2017 OWCP authorized a lumbar spine fusion and insertion of spinal 

fixation device.

On January 23, 2018 Dr. Eric Williams, a Board-certified orthopedist, performed an L5-

S1 laminectomy with bilateral partial facetectomy and foraminotomy, L5-S1 instrumented 

posterior spinal fusion and posterolateral fusion with local bone, and transforaminal lumbar 

interbody arthrodesis with cage L5-S1. He diagnosed L5-S1 spondylolisthesis with foraminal 

stenosis, anxiety, and hypercholesterolemia. On May 1, 2019 Dr. Williams opined that appellant’s 

work-related injury caused an exacerbation of his chronic back pain, L5-S1 spondylolisthesis, and 

symptomatic lumbar radiculopathy resulting in spinal surgery. He further noted that appellant’s 

work-related condition affected his activities of daily living and precluded his ability to perform 

his work duties. Dr. Williams opined that appellant reached maximum medical improvement 

(MMI) from a surgical and rehabilitative standpoint. He cleared appellant to return to work with

a series of restrictions.

 

4 A magnetic resonance imaging (MRI) scan of the lumbar spine dated November 10, 2016 revealed at L5-S1 

bilateral pars interarticularis defects with grade one anterolisthesis of L5 on S1, uncovering of the disc with small 

diffuse disc bulge, and architectural distortion of both neural foramina resulting in severe bilateral neural foraminal 

narrowing.
3

On March 17, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. In statements dated March 17, 2020, appellant, through counsel, noted that filing the Form 

CA-7 was an effort to preserve appellant’s schedule award claim due to other serious medical 

conditions. He indicated that appellant requested to remain on the compensation rolls at this time. 

Appellant further indicated that medical evidence would be submitted at the appropriate time in 

support of the schedule award claim. He requested that any decision relative to the schedule award 

be held in abeyance until the medical evidence was provided. 

In a development letter dated March 30, 2020, OWCP requested that appellant submit an 

impairment evaluation addressing whether he had reached MMI and provide an impairment rating 

using the sixth edition of the American Medical Association (A.M.A.), Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).5 It indicated that, to date, no medical evidence had 

been received in support of his claim for a schedule award. OWCP advised that, if appellant’s

physician was unable or unwilling to provide the required report to notify OWCP in writing and if 

his case met the essential elements for a schedule award claim (work-related permanent condition 

and a schedule member) and the medical evidence was not sufficient to determine permanent 

impairment, he would be scheduled to be seen by a second opinion specialist. It afforded him 30 

days to submit additional medical evidence in support of his schedule award claim. OWCP noted 

that, if the requested medical evidence was not received within 30 days from the date of the letter, 

a decision may be made based on the evidence in the file.

In response to the development letter, on April 8, 2020 counsel referred to his March 17, 

2020 letter and reiterated that the filing of the Form CA-7 was to preserve appellant’s schedule 

award claim due to other serious medical conditions. He indicated that no medical evidence would 

be submitted at this time in support of appellant’s schedule award claim. Counsel advised that 

medical evidence would be submitted at the appropriate time and he requested that any decision 

relative to the schedule award be held in abeyance until the medical evidence is provided.

By decision dated May 8, 2020, 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, warranting a schedule award.

On May 14, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. The hearing was held on August 4, 2020. Appellant 

was represented by counsel, who provided a statement explaining that the Form CA-7 was 

submitted to preserve appellant’s schedule award claim. Counsel noted that appellant was battling 

stomach cancer and was undergoing very intensive chemotherapy and it was for this reason that 

no medical report was submitted in support of the schedule award. He further indicated that 

appellant had not seen a doctor in relation to a permanent impairment evaluation.

Appellant was treated by Dr. Jason J. Sanderson, an osteopath, on June 10, 2020 for pain 

in the lumbar spine radiating into the right and left thigh. Dr. Sanderson diagnosed lumbosacral 

spondylosis with radiculopathy. He opined that appellant’s condition was chronic with little 

expectation of a full recovery at this time. On July 1, 2020 Dr. Sanderson reviewed an offer of 

modified assignment and determined that appellant was unable to work in any capacity as listed in 

the modified job offer based on his current medical status. He indicated that appellant’s chronic 

low back condition precluded him from bending, stooping, and carrying more than five pounds, or 

 

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

standing/walking for four hours a day as listed in the job offer. Dr. Sanderson also noted that 

appellant was recently diagnosed with cancer.

On July 2, 2020 appellant was treated by Meaghan Descher, a physician assistant, for right 

foot pain and low back pain radiating into the right leg. He reported an onset in 2016. Ms. Descher 

diagnosed sacroiliitis, radiculopathy, lumbar region, spinal stenosis, lumbar region,; low back 

pain; and other intervertebral disc degeneration, lumbar region.

By decision dated September 18, 2020, an OWCP hearing representative affirmed the 

decision dated May 8, 2020.

LEGAL PRECEDENT

The schedule award provisions of FECA,6 and its implementing federal regulations,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. 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 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

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.10 OWCP’s 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 that 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.

11

 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.12 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.13

 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter

3.700.2 and Exhibit 1 (January 2010).

10 Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

11 Supra note 9 at Chapter 2.808.5 (March 2017).

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

13 Id. at Chapter 2.808.6(c).
5

The claimant has the burden of proof to establish that the condition for which a schedule 

award is sought is causally related to his or her employment.14 OWCP procedures, however, 

further provide that if a claimant does not provide an impairment evaluation from his or her 

physician when requested, and there is an indication of permanent impairment in the medical 

evidence of file, the claims examiner (CE) should refer the claimant for a second opinion 

evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion 

examination to determine if the evidence in the file is sufficient for the DMA to provide an 

impairment rating. If the case is referred for a second opinion, the report should contain the 

information described in 6a above.15 If it does not contain this information, clarification with the 

second opinion should be sought.16

Neither FECA nor its implementing regulations provide for a schedule award for 

impairment to the back or to the body as a whole.17 Furthermore, the back is specifically excluded 

from the definition of organ under FECA.18 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, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition

(July/August 2009) (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.19 The Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating in 

the spine.20

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

OWCP accepted the claim for aggravation of other spondylosis with radiculopathy, 

lumbosacral region. On March 17, 2020 appellant filed a schedule award claim based on his 

accepted spondylosis with radiculopathy, lumbosacral region. He did not submit any medical 

 

14 Id.

15 Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation, 

physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate 

impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was 

calculated. Supranote 9 at Chapter 2.808.6a.

16 Supra note 9at Chapter 2.808.6d (March 2017).

17 K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May23, 2019); N.D., 59 

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

18 See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); FrancescoC. Veneziani, 48 

ECAB 572 (1997).

19 Supra note 9at Chapter 3.700 (January 2010). The Guides Newsletteris included as Exhibit 4.

20 E.D., Docket No. 13-2024 (issued April24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
6

evidence in support of a schedule award; rather, counsel noted that filing the Form CA-7 was an 

effort to preserve appellant’s schedule award claim due to other serious medical conditions. 

Counsel requested that any decision relative to the schedule award be held in abeyance until the 

medical evidence was provided. By decision dated May 8, 2020, OWCP denied his schedule 

award claim, finding that he had not provided medical evidence establishing permanent 

impairment of a scheduled member or function of the body. This decision was affirmed by an 

OWCP hearing representative on September 18, 2020.

Under FECA,21 where a claimant is seeking a schedule award, he or she must submit a 

medical report that “must contain accurate measurements of the function of the organ or member, 

in accordance with the A.M.A., Guides.”

22

 The burden is on the claimant to provide this 

evidence.23 The regulations further provide that if the claimant’s evidence is insufficient to meet 

the burden of proof, OWCP should inform the claimant of the additional evidence needed and 

provide the claimant with at least 30 days to submit it.24 OWCP issued a development letter on 

March 30, 2020. In response to this letter, counsel indicated that no medical evidence would be 

submitted at that time in support of the schedule award claim. 

Although OWCP requested a medical opinion establishing the extent of appellant’s 

permanent impairment, there is no current medical evidence of record supporting that appellant 

has ratable permanent impairment of a scheduled member of the body. Although appellant did not 

submit Dr. Williams’ May 1, 2019 report in support of his schedule award claim, the report 

addressed MMI opining that appellant “maximized his medical improvement for both a surgical 

and rehabilitation standpoint” and further noting that his work-related condition affected his 

activities of daily living and precluded his ability to perform his job. Dr. Williams diagnosed 

exacerbation of chronic back pain, L5-S1 spondylolisthesis, and symptomatic lumbar 

radiculopathy; however, he did not clearly link appellant’s condition to a member of the body 

covered by FECA schedules.25 Only radiculopathy of the leg causing permanent impairment to 

that extremity and not back pain could be covered by the schedules. Dr. Williams’ evaluation 

could not be considered probative for purpose of recommending a schedule award under FECA 

because he failed to utilize The Guides Newsletter for rating the spine. He did not find permanent 

impairment resulting from a cervical, thoracic or lumbar spine condition causally related to the 

accepted employment factors in accordance with the sixth edition of the A.M.A., Guides. 

Additionally, Dr. Williams failed to provide information to visualize the character and degree of 

disability that appellant may have as a result of the leg radiculopathy. Rather, he generally opined 

that back pain and leg radiculopathy affected his activities of daily living.26 Therefore,

Dr. Williams’ report is insufficient to establish permanent impairment of a scheduled member or 

 

21 Supra note 2. 

22 20 C.F.R. § 10.333. 

23 Id. at § 10.115. 

24 Id. at §10.121. 

25 See T.M.,Docket No. 19-1126 (issued September 22, 2020).

26 See P.B., Docket No. 20-0346 (issued July 8, 2020) (where the claimant submitted medical reports showing right 

shoulder pain and weakness and stating that claimant reached MMI, OWCP denied the claim because the medical 

reports did not describe appellant’s impairment in sufficient detail).
7

function of the body causally related to appellant’s accepted employment condition.27 The Board 

finds, therefore, that appellant has not met his burden of proof to establish permanent impairment 

of a scheduled member or function of the body, warranting a schedule award.28

On appeal counsel asserts that OWCP improperly declined to hold appellant’s case in 

abeyance indefinitely until appellant’s counsel provided the requested medical evidence in support 

of the claim for a schedule award. He further asserted that OWCP has a responsibility to develop 

the evidence to ensure that justice is done. The Board notes that OWCP’s regulations and 

procedures do not provide for an indefinite suspension of the adjudication of appellant’s claim for 

a schedule award. Rather, proper administrative practice requires that where a claim for 

compensation is filed OWCP is tasked with timely processing the claim.29 As noted above, 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.30 

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 his burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

 

27 See M.G., Docket No. 19-0823 (issued September 17, 2019).

28 See E.D., Docket No. 19-1562 (issued March 3, 2020); I.R., Docket No. 16-1796 (issued January 13, 2017);

P.L., Docket No. 13-1592 (issued January 7, 2014).

29 See J.J., Docket No. 08-2130 (issued April10, 2009) (in every case where a claim for compensation is filed, 

good administrative practice requires that a final determination be made and a compensation order issued).

30 Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
8

ORDER

IT IS HEREBY ORDERED THAT September 18, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 22, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board