United States Department of Labor

Employees’ Compensation Appeals Board

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T.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VA MEDICAL 

CENTER, Los Angeles, CA, Employer

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Docket No. 21-0677

Issued: March 31, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 29, 2021 appellant filed a timely appeal from a February 12, 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.

ISSUE

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

percent permanent impairment of his left lower extremity or two percent permanent impairment 

of his right lower extremity, for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 11, 2014 appellant, then a 47-year-old pipefitter, filed a traumatic injury claim 

(Form CA-1) alleging that on April 21, 2014 he sustained injuries to his upper and lower back 

while shifting a 380-pound load while in the performance of duty. OWCP accepted the claim for 

intervertebral disc disorders with radiculopathy, lumbar region.

In a report dated January 25, 2020, Dr. Charles Xeller, an orthopedic surgeon, reviewed 

appellant’s history of injury and the medical record, conducted a physical examination and opined 

that he had reached maximum medical improvement (MMI) on the date of examination, 

January 25, 2020. He noted a past medical history including poorly controlled diabetes and a

gunshot wound near the spine on April 10, 2010, followed by the accepted April 21, 2014 

employment injury. Dr. Xeller reviewed appellant’s electromyogram and nerve conduction 

velocity (EMG/NCV) study dated December 13, 2019, noting that it showed evidence of 

peripheral neuropathy that may be indicative of radiculopathy with a possible component of 

diabetic neuropathy. He also reviewed a computerized tomography (CT) scan dated December 20, 

2019, which revealed disc bulges at L4-5 and L5-S1. On examination of the lower extremities,

Dr. Xeller noted moderate sensory deficits including numbness in the feet, worse with standing, 

and decreased sensation predominantly in the lateral and plantar aspect of his feet with slightly 

decreased reflexes, which he found corresponded to first sacral radiculopathy. Referring to the 

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

Impairment (A.M.A., Guides),2 as well as The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), he found that 

appellant had a Class 1, grade C impairment, assigning a grade modifier for functional history 

(GMFH) of 1, a grade modifier for physical examination (GMPE) of 1, and a grade modifier for 

clinical studies (GMCS) of 1. Dr. Xeller opined that appellant’s moderate S1 neuropathy at grade 

C resulted in two percent permanent impairment of the left lower extremity and two percent 

permanent impairment of the right lower extremity.

On June 15, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On January 7, 2021 OWCP referred the record and a statement of accepted facts (SOAF) 

to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a district medical adviser 

(DMA), and requested that he evaluate appellant’s permanent impairments under the sixth edition 

of the A.M.A., Guides and The Guides Newsletter.

In a report dated January 9, 2021, Dr. Katz reviewed the medical record and SOAF, 

including the January 25, 2020 report of Dr. Xeller. Referring to Proposed Table 2: Spinal Nerve 

Impairment, Lower Extremity Impairment of The Guides Newsletter, noting that the class of 

diagnosis (CDX), spinal nerve condition, was a Class 1 impairment, and applying Dr. Xeller’s 

grade modifiers to the default values, he applied the net adjustment formula to appellant’s bilateral 

S1 conditions. Dr. Katz concurred with Dr. Xeller’s calculation of two percent permanent 

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

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

extremity. He opined that this determination was supported by the records reviewed and consistent 

with the methodology of the sixth edition A.M.A., Guides and The Guides Newsletter. Dr. Katz 

opined that the A.M.A., Guides did not allow for an alternative impairment rating based on range 

of motion (ROM) for the relevant diagnoses. He opined that the date of MMI was 

January 25, 2020. 

By decision dated February 12, 2021, OWCP granted appellant a schedule award for two 

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

of the right lower extremity. The award ran for 11.52 weeks from January 25 through April 14, 

2020 and was based on the January 25, 2020 clinical findings of Dr. Xeller and the January 9, 2021 

report of Dr. Katz, serving as the DMA.

LEGAL PRECEDENT

The schedule award provisions of FECA3 and its implementing regulations4 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 of a member shall be determined. For consistent 

results and to ensure equal justice under the law to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants through its implementing regulations, OWCP has adopted the A.M.A., Guides as the 

appropriate standard for evaluating schedule losses.5 As of May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides.

6

 The Board has approved 

the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use 

of a member of the body for schedule award purposes.7

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.8 However, a schedule 

award is permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.9 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 p recluded 

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

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

2.808.5a (March 2017); see alsoChapter 3.700.2 and Exhibit 1 (January 2010).

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

8

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.W., Docket No. 18-1415 (issued March 8, 2019); J.M., 

Docket No. 18-0856 (issued November 27, 2018); N.D., 59 ECAB 344 (2008); TaniaR. Keka, 55 ECAB 354 (2004).

9

Id. at § 8107(c); id. at § 10.404(a) and (b); see C.W., Docket No. 19-1590 (issued September 24, 2020); A.G., 

Docket No. 18-0815 (issued January 24, 2019); Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
4

ratings for the spine. 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.10

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than two 

percent permanent impairment of the left lower extremity or two percent permanent impairment 

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

In his January 25, 2020 report, Dr. Xeller concluded that appellant had two percent left 

lower extremity permanent impairment and two percent right lower extremity permanent 

impairment. OWCP properly referred this report to its DMA, Dr. Katz. In his January 9, 2021 

report, Dr. Katz indicated that he had reviewed Dr. Xeller’s report. He correctly noted that FECA 

does not allow a schedule award for the spine, though it does allow for schedule awards for spinal 

nerve injuries resulting in impairment of the extremities.11 With reference to The Guides 

Newsletter, Dr. Katz concurred with Dr. Xeller’s calculations of permanent impairment based 

upon the bilateral radiculopathy conditions of the lumbar region including sensory neuropathy at

S1. He found that Dr. Xeller’s calculation of two percent permanent impairment of the left lower 

extremity and two percent permanent impairment of the right lower extremity was supported by 

the weight of the medical evidence.

The Board finds that the DMA properly applied the standards of the A.M.A., Guides and 

The Guides Newsletter to the physical examination findings of Dr. Xeller. The DMA accurately 

summarized the relevant medical evidence including findings on examination, and reached 

conclusions about appellant’s conditions that comported with these findings.12 He noted that the 

A.M.A., Guides did not allow for an impairment rating based on ROM for the relevant diagnoses.13 

The DMA properly referred to The Guides Newsletter in calculating appellant’s percentage of 

permanent impairment of the lower extremities based on a spinal condition. As his report is 

detailed, well rationalized, and based on a proper factual background, the DMA’s opinion 

represents the weight of the medical evidence.14 There is no medical evidence of record utilizing 

the appropriate tables of the sixth edition of the A.M.A., Guides or The Guides Newsletter

demonstrating a greater percentage of permanent impairment of the bilateral lower extremities. 

Accordingly, the Board finds that, as appellant has not submitted medical evidence establishing 

greater than two percent permanent impairment of either the left lower extremity or right lower 

extremity, he has not met his burden of proof.

10 Supra note 6 at Chapter 3.700, Exhibit 4 (January 2010).

11 Supra note 9.

12 C.W., supra note 9; M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued 

June 21, 2019); J.M., Docket No. 18-1387 (issued February 1, 2019).

13 R.L., Docket No. 19-1793 (issued August 7, 2020).

14 See M.S., supra note 12; D.S.,Docket No. 18-1816 (issued June 20, 2019).
5

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than two 

percent permanent impairment of his left lower extremity or two percent permanent impairment 

of his right lower extremity, for which he previously received schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the February 12, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 31, 2023

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