United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hinsdale, IL, Employer

__________________________________________

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Docket No. 22-1068

Issued: June 13, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 5, 2022 appellant filed a timely appeal from an April 13, 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 April13, 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 her burden of proof to establish more than nine

percent permanent impairment of the left lower extremity and zero percent permanent impairment 

of the right lower extremity for which she previously received schedule award compensation. 

FACTUAL HISTORY

This case has previously been before the Board regarding appellant’s schedule award 

claims.

3

 The facts and circumstances as set forth in the Board’s prior decisions are incorporated 

herein by reference. The relevant facts are as follows.

On December 1, 2009 appellant, then a 53-year-old sales and service distribution associate, 

filed a traumatic injury claim (Form CA-1) alleging that on November 30, 2009 she sustained 

lower back and left shoulder injuries when placing 50-pound boxes into a cart while in the 

performance of duty. OWCP accepted the claim for lumbar sprain and left shoulder and rotator 

cuff sprain. Appellant underwent OWCP-authorized left shoulder rotator cuff repair, 

acromioplasty, and distal clavicle resection on April 14, 2010.4 She retired effective 

April 21, 2011.

On June 26, 2012 appellant filed a claim for compensation (Form CA-7) for a schedule 

award due to her accepted November 30, 2009 left shoulder and lumbar conditions.

By decision dated January 2, 2014, OWCP granted appellant a schedule award for 10 

percent permanent impairment of her left upper extremity based upon appellant’s distal clavicle 

resection. By decision dated June 19, 2015, it granted her a schedule award for an additional three

percent permanent impairment of the left upper extremity. On July 3, 2015 appellant requested an 

oral hearing before a representative of OWCP’s Branch of Hearings and Review, which was held 

telephonically on October 28, 2015. By decision dated January 14, 2016, the hearing 

representative affirmed OWCP’s June 19, 2015 decision, finding that appellant had not established 

additional permanent impairment of the upper or lower extremities. On December 19, 2016 

appellant requested reconsideration. By decision dated April 6, 2017, OWCP denied modification 

of its January 14, 2016 decision. On May 31, 2017 appellant requested reconsideration. By 

decision dated August 25, 2017, OWCP denied her request for reconsideration of the merits of her 

claim, finding that the evidence submitted was either repetitious or irrelevant.

3 Docket No. 20-1187 (issued November 18, 2021); Docket No. 17-1949 (issued October 16, 2018).

4 OWCP previously accepted that appellant sustained a sprain of lumbosacral (joint) (ligament), displacement of 

lumbar intervertebral disc at L4-5 without myelopathy; and thoracic or lumbosacral left-sided neuritis or radiculitis 

due to a September 3, 1991 employment injury, under OWCP File No. xxxxxx544. It also previously accepted that 

she sustained bilateral carpal tunnel syndrome (CTS) due to a September 2, 1991 employment injury, under OWCP 

File No. xxxxxx845. In October 1995, OWCP granted appellant a schedule award for 10 percent permanent 

impairment of the right upper extremity, under OWCP File No. xxxxxx845. On May 26, 2012 appellant filed a claim 

for compensation (Form CA-7) for a schedule award due to her accepted bilateral CTS under OWCP File No. 

xxxxxx845. OWCP File Nos. xxxxxx704, xxxxxx544, and xxxxx845 have been administratively combined by 

OWCP, with OWCP File No. xxxxxx704 serving as the master file.
3

By decision dated October 16, 2018, the Board set aside OWCP’s April 6 and August 25, 

2017 decisions.5 In pertinent part, the Board found that OWCP failed to develop the evidence 

regarding whether appellant had established permanent impairment of her lower extremities as a 

result of her accepted lumbar conditions and remanded the case for OWCP to obtain a second 

opinion impairment evaluation to determine the extent of appellant’s lower extremity permanent

impairment, if any, under the A.M.A., Guides.

6

Appellant’s treating physician, Dr. Samuel J. Chmell, a Board-certified orthopedic 

surgeon, submitted progress reports regarding appellant’s conditions. In a February 28, 2019 

report, he reported that a February 6, 2019 magnetic resonance imaging (MRI) scan demonstrated 

significant multi-level degenerative changes in the lumbar spine, most notably at L4-5.

On remand, OWCP referred appellant to Dr. Kanayo K. Odeluga, a Board-certified 

occupational medicine physician, for a second opinion permanent impairment evaluation of both 

upper and lower extremities due to her accepted work-related injuries. A November 29, 2018 

statement of accepted facts (SOAF) noted the accepted conditions under OWCP File Nos. 

xxxxxx704, xxxxxx544, and xxxxxx845.

In a March 26, 2019 report, Dr. Odeluga reviewed the November 29, 2018 SOAF and set 

forth his examination findings. He opined that appellant reached maximum medical improvement 

(MMI) on March 26, 2019. Dr. Odeluga set forth his impairment calculations under the sixth 

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

(A.M.A., Guides)

7

for both the upper and lower extremities. Regarding the lower extremities,

Dr. Odeluga found an essentially normal examination with full range of motion (ROM) in each 

joint and grade 5/5 in all major muscle groups except 4/5 in left foot dorsiflexion. Normal 

sensation was noted in all dermatomes except along the medial aspect of dorsum of the left foot, 

which was decreased compared to same dermatome on the right. Dr. Odeluga indicated that the 

weakness of dorsiflexion was attributed to the L5 nerve root. Under Table 16-11, he assigned 

severity 3 for sensory deficit of L5 nerve root as there was “impaired sharp/dull recognition but

retained protective sensibility” with a motor deficit related to the “weakness of dorsiflexion of 

4/5.” Under Proposed Table 2 of The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), Dr. Odeluga 

indicated that the mild motor deficit of the L5 nerve root was Class 1, grade C or five percent 

default lower extremity impairment. He found a grade modifier for functional history (GMFH) of 

0 and grade modifier for clinical studies (GMCS) of 1, from findings on a June 23, 2016 

electromyogram/nerve conduction velocity (EMG/NCV) study. Applying the grade modifiers 

resulted in a Class 1, grade B impairment and equaled three percent lower extremity impairment 

for L5 motor deficit. Dr. Odeluga also indicated that after applying the grade modifiers of GMFH 

5 Docket No. 17-1949 (issued October 16, 2018).

6 The Board also remanded the case for OWCP to issue a de novo decision following development of a consistent 

method for calculating permanent impairment of the upper extremities, finding that OWCP had inconsistently applied 

Chapter 15 of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) regarding the proper use of either the diagnosis-based impairment (DBI) or range of 

motion (ROM) methodologies in assessing the extent of permanent impairment. 

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

0, GMCS 1 to appellant’s grade C sensory deficit, appellant had five percent L4, five percent L5, 

and three percent S1 sensory deficits. He found that she had combined sensory and motor deficit 

in the left lower extremity of 16 percent permanent impairment. A copy of Dr. Odeluga’s 

impairment worksheets were provided.

On June 25, 2019 OWCP requested that Dr. Odeluga provide a supplemental report to 

include impairment ratings for appellant’s right upper and right lower extremities. It noted that 

appellantmay be reexamined if necessary. OWCP also issued a new SOAF, dated August 2, 2019, 

which included the accepted conditions under all of the combined OWCP files. 

In his August 20, 2019 report, Dr. Odeluga indicated his examination findings and 

impairment calculations for both the upper and lower extremities. In relevant part, the examination 

of appellant’s bilateral lower extremities were essentially normal except for left foot dorsiflexion 

of 4/5 strength and decreased sensation along the medial aspect of the dorsum of the left foot.

Dr. Odeluga opined that appellant reached MMI as August 20, 2019.8 He indicated, based on his 

evaluation, that there was no observed impairment of the right lower extremity originating in the 

back or spine. Dr. Odeluga found no sign of right lumbar radiculopathy despite appellant’s 

complaint of radicular pain into her right buttock and groin. He noted that although the 2016 

EMG/NCV study was suggestive of L4-5 and L5-S1 active radiculopathy with sensory nerve 

action potential abnormalities on the right side involving both peroneal and sural nerve sensory 

fibers, there was no physical evidence of nerve injury on examination such as decreased sensation, 

reflexes or muscle power.

Dr. Chmell continued to submit progress reports. No right-sided radiculopathy was 

reported. In an October 21, 2019 letter, Dr. Chmell took issue with Dr. Odeluga’s March 26, 2019 

impairment ratings.

On January 9, 2020 OWCP referred the medical record, including Dr. Odeluga’s reports, 

to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as OWCP’s district medical 

adviser (DMA). In a January 15, 2020 report, Dr. Harris provided findings with regard to 

appellant’s right and left upper extremities. He opined that appellant reached MMI on August 20, 

2019, the date of Dr. Odeluga’s examination. For the lower extremities, Dr. Harris indicated that 

appellant did not have any neurologic deficit in either the left or right lower extremity consistent 

with lumbar radiculopathy. This was consistent with severity 0 under Table 16-11 and a Class 0 

impairment based on Table 2 of The Guides Newsletter. Dr. Harris indicated that the A.M.A., 

Guides did not allow for an impairment rating under the ROM method for the accepted diagnosis.

By decision dated February 20, 2020, OWCP denied appellant’s claim for an increased 

schedule award. It relied on the medical opinion of its DMA, Dr. Harris, to establish that there 

was no additional permanent impairment that would justify an increased schedule award.

8 Dr. Odeluga indicated that August 20, 2019 was the date of his first examination of appellant. The record reflects 

that he first examined her on March 26, 2019.
5

On May 12, 2020 appellant filed an appeal to the Board. By decision dated November 18, 

2021, the Board affirmed in part and set aside in part OWCP’s February 20, 2020 decision.9 The 

Board found that appellant had not met her burden of proof to establish permanent impairment of 

her right lower extremity due to her accepted lumbar conditions. The Board further found that the 

case was not in posture for decision regarding the permanent impairment of her left lower 

extremity due to her accepted lumbar conditions. The Board explained that there was no indication 

that the DMA had reviewed Dr. Odeluga’s March 26, 2019 left lower extremity impairment rating. 

The Board remanded the case file back to its DMA, Dr. Harris, to review Dr. Odeluga’s March 26, 

2019 left lower extremity impairment rating pursuant to its procedures. 

Dr. Chmell continued to submit progress reports. In a January 6, 2022 report, he set forth 

examination findings which included marked tenderness of the left sciatic nerve and positive 

straight leg raising on the left and right side with diminished strength and sensation at both ankles 

and feet. In relevant part, Dr. Chmell diagnosed lumbar sprain and L4-5 disc herniation with left 

L5 radiculopathy. 

In a January 13, 2022 report, Dr. Chmell disagreed with the DMA’s impairment findings 

regarding appellant’s lower extremities as appellant had diagnostic evidence of bilateral lower 

extremity neurologic involvement. This included the 2016 EMG/NCV study, which indicated 

bilateral L4-5 and L5-S1 radiculopathy, and the recent September 22, 2021 lumbar spine MRI 

scan, which demonstrated greater nerve root impingement on right side than left. Dr. Chmell 

indicated that appellant’s bilateral lower extremity radiculopathy has deteriorated with time, which 

is often the case with a permanent low back injury affecting the lower extremity nerves. He 

therefore recommended that she undergo a repeat evaluation as to the permanent neurologic 

impairment in her lower extremities as a result of her accepted work-related low back injury. A 

copy of the September 22, 2021 lumbar spine MRI scan was submitted along with copies of 

May 27, 2015 and November 7, 2017 lumbar spine MRI scans.

In a January 21, 2022 report, Dr. Scott E. Glaser, a Board-certified anesthesiologist and 

pain medicine specialist, noted that a work event was the precipitating factor of appellant’s 

bilateral lower back pain and bilateral buttock and leg/feet pain. He diagnosed lumbar 

radiculopathy “as deteriorated,” noting examination findings of limited rotation and extension 

which produced bilateral lumbar spine pain and bilateral straight leg raising which elicited calf 

pain. Dr. Glaser provided a bilateral L3-4 and L4-5 transforaminal epidural steroid injection on 

February 18, 2022. 

OWCP continued to receive progress reports from Dr. Chmell and Dr. Glaser. 

On March 16, 2022 OWCP requested an addendum report from the DMA, Dr. Harris,

regarding whether appellant had a left lower extremity permanent impairment based upon her 

accepted lumbar spine condition as outlined in Dr. Odelunga’s March 26, 2019 report. 

9 Docket No. 20-1187 (issued November 18, 2021). The Board found that appellant had not met her burden of 

proof to establish more than 13 percent permanent impairment of her left upper extremity and 10 percent permanent 

impairment of her right upper extremity, for which she previously received schedule award compensation. 
6

In a March 17, 2022 report, Dr. Harris, the DMA, noted that the medical record, in 

pertinent part, established the diagnoses of lumbar disc bulging L4-5 with protrusion L2-3; and 

lumbar radiculopathy. He reviewed Dr. Odeluga’s March 26, 2019 report and indicated that 

appellant reached MMI on March 26, 2019, the date of Dr. Odeluga’s examination. Dr. Harris 

noted that while Dr. Odeluga found that appellant had impairment to his left L4, L5, and S1 

dermatomes, his examination only demonstrated diminished sensation in the L5 dermatome. 

Utilizing The Guides Newsletter, Dr. Harris rated appellant’s bilateral lower extremity permanent 

impairments. For the right lower extremity, he found that appellant did not have any neurologic 

deficit in the lower extremity consistent with lumbar radiculopathy. This was consistent with 

severity 0 under Table 16-11 and a Class 0 impairment based on Table 2 of The Guides Newsletter.

He indicated that the A.M.A., Guides did not allow for an impairment rating under the ROM 

method. For the left lower extremity, Dr. Harris opined that appellant had nine percent total 

permanent impairment due to the L5 lumbar radiculopathy. This was comprised of six percent 

impairment for severe pain/impaired sensation due to class of diagnosis (CDX), left L5 lumbar 

radiculopathy, a Class 1, grade C, and three percent impairment for mild motor weakness due to 

left L5 lumbar radiculopathy, a Class 1 grade B impairment. Dr. Harris indicated that the A.M.A., 

Guides did not allow for an impairment rating under the ROM method.

By decision dated April 13, 2022, OWCP granted appellant nine percent permanent 

impairment of the left lower extremity and zero percent permanent impairment of the right lower 

extremity. The period of the award ran for 25.92 weeks from March 26 to September 13, 2019. 

LEGAL PRECEDENT

The schedule award provisions of FECA,10 and its implementing federal regulations,11 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.12 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.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 However, a 

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

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404.

12 Id. at § 10.404(a).

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

2.808.5a (March2017); see alsoid. at Part 3 -- Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

14 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see T.W., Docket No. 20-0119 (issued January 12, 2021);

Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
7

and/or lower extremities.15 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.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 nature and percentage of permanent 

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

percentage of impairment specified.17

ANALYSIS -- ISSUE 1

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 OWCP’s February 20, 2020 merit decision because 

the Board considered that evidence in its November 18, 2021 decision. Findings made in prior 

Board decisions are res judicata absent any further review by OWCP under section 8128 of 

FECA.18

On prior appeal, the Board remanded the case to OWCP so that its DMA, Dr. Harris, could 

review Dr. Odeluga’s March 26, 2019 report with regard to a left lower extremity impairment 

based upon a spine condition. Based on Dr. Odeluga’s March 26, 2019 examination findings and 

The Guides Newsletter, Dr. Harris opined, in his March 17, 2022 report, that appellant had nine

percent permanent impairment of the left lower extremity and zero percent permanent impairment 

for the right lower extremity. In its April 13, 2022 decision, OWCP granted appellant a schedule 

award for nine percent permanent impairment of the left lower extremity and zero percent 

permanent impairment of the right lower extremity.

The evidence of record received prior to Dr. Harris’ March 17, 2022 report, however,

reflects evidence of recent sensory or motor loss which could possibly affect the current schedule 

award to the left and right lower extremities. Dr. Chmell opined that appellant’s bilateral lower 

extremity radiculopathy had deteriorated and recommended a repeat impairment evaluation. In 

his January 6, 2022 report, he noted examination findings included positive straight leg raising on 

left and right side with diminished strength and sensation at both ankles and feet. He further noted, 

15 Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16 Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010); see N.G., Docket No. 20-0557 (issued 

January 5, 2021).

17 Supra note 13 at Chapter 2.808.6f (March 2017).

18 See D.M., Docket No. 21-1209 (issued March 24, 2022); T.R., Docket No. 20-0588 (issued June25, 2021);A.G., 

Docket No. 18-0329 (issued July 26, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
8

in his January 13, 2022 report, that the recent September 22, 2021 lumbar spine MRI scan

demonstrated nerve root impingement on both the right and left sides. Further, in his January 21, 

2022 report, Dr. Glaser, diagnosed lumbar radiculopathy and noted that the condition had 

deteriorated. Thus, the record contains medical evidence of bilateral sensory or motor loss which 

may constitute an increased basis for a schedule award based on The Guides Newsletter.

19

The Board notes that proceedings under FECA are not adversarial in nature and OWCP is 

not a disinterested arbiter. While the claimant has the burden of proof to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence to see that justice 

is done.20 Once OWCP undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case. Accordingly, once

OWCP undertakes to develop the medical evidence further, it has the responsibility to do so in a 

manner that will resolve the relevant issues in the case.21 It issued its April 13, 2022 schedule 

award decision without consideration of the additional medical evidence received from Dr. Chmell 

and Dr. Glazer, by Dr. Harris. Therefore, the case must be remanded to OWCP for further 

development.22

The Board will, therefore, set aside OWCP’s April 13, 2022 decision and remand the case 

to OWCP for referral of the entire case record to Dr. Harris for further review. After such other 

further development as may be deemed necessary, OWCP shall issue a de novo decision on 

appellant’s claim for a bilateral lower extremity schedule award.

CONCLUSION

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

19 The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal nerve extremity 

impairment in The GuidesNewsletter. It was designed for situations in which 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. Supra note 14 at Chapter 

3.700, Exhibit 4 (January 2010);see T.W.,supranote 15; B.M., Docket No. 19-1069 (issued November 21, 2019).

20 See T.C.,Docket No. 19-0771 (issued March 17, 2021); E.W.,Docket No. 17-0707 (issued September 18, 2017).

21 See T.K.,Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

22 See T.C., id.; X.Y., Docket No. 19-1290 (issued January 24, 2020); K.G., Docket No. 17-0821 (issued 

May 9, 2018).
9

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2022 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: June 13, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board