United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.S., Appellant

and

U.S. POSTAL SERVICE, MOULTON POST 

OFFICE, Moulton, AL, Employer

__________________________________________

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Docket No. 21-0419

Issued: October 8, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 28, 2021 appellant filed a timely appeal from a December 17, 2020 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

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

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

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the December 17, 2020 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

FACTUAL HISTORY

On June 8, 2015 appellant, then a 39-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 1, 2015 she injured her lower back when lifting a large, heavy 

parcel while in the performance of duty. She stopped work on June 5, 2015 and returned the next 

day. OWCP initially accepted the claim for lumbar sprain (right side). It subsequently accepted 

a permanent aggravation of L5-S1 herniated disc. OWCP paid all appropriate compensation and 

authorized an August 31, 2017 anterior lumbar discectomy and fusion L5-S1. Appellant returned 

to full-time full-duty work on May 4, 2019.

On November 26, 2019 appellant filed a claim for compensation (Form CA-7) for a 

schedule award.

By decision dated June 1, 2020, OWCP denied appellant’s schedule award claim, finding 

that the evidence of record was insufficient to establish permanent impairment of a scheduled 

member or function of the body. 

On June 24, 2020 appellant requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review.

Following a preliminary review, by decision dated September 1, 2020, an OWCP hearing 

representative found that the case was not in posture for a hearing and vacated OWCP’s June 1, 

2020 decision denying appellant’s schedule award claim. The hearing representative remanded 

the case for OWCP to refer appellant, together with a statement of accepted facts (SOAF) and the 

medical record, to an appropriate Board-certified specialist for a permanent impairment evaluation

in conformance with the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment(A.M.A., Guides)

3 and The Guides Newsletter, Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), 

a supplemental publication of the sixth edition of the A.M.A., Guides. Following any further 

development deemed necessary, OWCP was to issue a de novo decision.

OWCP referred appellant, an updated SOAF dated September 9, 2020, the medical record, 

and a list of questions, to Dr. Curt L. Freudenberger, a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine whether her work-related condition resulted in permanent 

impairment thereby warranting a schedule award. 

In an October 14, 2020 report, Dr. Freudenberger discussed appellant’s factual and medical 

history, reviewed the SOAF and the medical record, and reported the findings of his physical 

examination of appellant. He advised that she was status post single-level lumbar fusion with a 

resolved or nonverifiable radiculopathy. Dr. Freudenberger advised that appellant’s principle 

complaint was consistent with a single-level fusion of low back pain with mild guarded range of 

motion. On physical examination, he noted that she had full range of motion. With regard to 

appellant’slower extremities, Dr. Freudenberger indicated that she had a nonverifiable waxing and 

waning L5 versus S1 distribution radiculopathy. However, on examination, appellant had

excellent strength, was able to toe-and-heel walk, preserved deep tendon reflexes, and a negative 

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

straight leg raise test. Dr. Freudenberger also related that there was no evidence of any persistent 

motor or sensory deficits. He opined that any concerns regarding a lower extremity component 

appeared to have resolved over the course of treatment and that any clinical complaints were either 

minimal to nonexistent versus nonverifiable. Dr. Freudenberger opined that appellant had five

percent whole person permanent impairment based on the diagnosed-based impairment 

methodology under the A.M.A., Guides, Table 17-4, Grade A, for status post single-level 

procedure with resolved radiculopathy. He further opined that The Guides Newsletter was not 

applicable as she had a full resolution of radiculopathy. In an October 20, 2019 lower extremity 

permanent impairment worksheet, Dr. Freudenberger opined that appellant reached maximum 

medical improvement (MMI) on October 20, 2020. He also opined that she had five percent 

permanent impairment under Table 17-4 for single level fusion.

OWCP referred appellant’s case to Dr. Michael M. Katz, a Board-certified orthopedic 

surgeon serving as an OWCP district medical adviser (DMA). In a December 9, 2020 report,

Dr. Katz reviewed the SOAF and the medical record, including Dr. Freudenberger’s report. He 

opined that appellant reached MMI on October 14, 2020 the date of Dr. Freudenberger’s 

impairment evaluation. Dr. Katz noted that FECA did not allow a schedule award for the spine, 

nor did it recognize whole person impairment for spinal conditions. Rather, spinal nerve injury 

was determined under The Guides Newsletter of. Dr. Katz noted that Dr. Freudenberger, in his 

evaluation, determined that there were no motor or sensory deficits in either lower extremity. 

Based on Dr. Freudenberger’s evaluation findings, Dr. Katz found that there was no ratable 

impairment of any spinal nerve and thus no ratable impairment under FECA for the accepted spinal 

conditions. Under Proposed Table Two of The Guides Newsletter, he indicated that appellant had 

no motor deficit and no sensory deficit for spinal nerves L3 through S1, which resulted in Class 0 

or 0 percent permanent impairment of both lower extremities. Dr. Katz also noted that the A.M.A., 

Guides did not allow for an alternative range of motion impairment calculation based on the key 

diagnostic factors for the accepted conditions.

By decision dated December 17, 2020, OWCP denied appellant’s schedule award claim, 

finding that she had not established permanent impairment of a scheduled member or function of 

the body, warranting a schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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.4 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, 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 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 

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).
4

accordance with the sixth edition of the A.M.A., Guides (2009).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 a schedule award for 

impairment to the back or to the body as a whole.8 Furthermore, the back is specifically excluded 

from the definition of organ under FECA.9 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 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.10 

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.11

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.12

ANALYSIS

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

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

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); id. at Chapter 2.808.5a (March 2017).

7

J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April9, 2018);Isidoro 

Rivera, 12 ECAB 348 (1961).

8 K.Y., Docket No. 18-0730 (issued August 21, 2019);L.L.,Docket No. 19-0214 (issued May 23, 2019); N.D., 59 

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

9

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

ECAB 572 (1997).

10 Supra note 6 at Chapter 3.700 (January 2010). The Guides Newsletteris included as Exhibit 4.

11 J.C., supra note 7; E.D., Docket No. 13-2024 (issued April24, 2014);D.S., Docket No. 13-2011 (issued 

February18, 2014).

12 Supra note 6 atChapter 2.808.6(f)(March2017).
5

In his October 14, 2020 report, Dr. Freudenberger opined that appellant had five percent 

whole person impairment under Table 17-4 of the A.M.A., Guides. As noted, neither FECA nor 

its regulations provide for a schedule award for impairment to the back or to the body as a whole.13 

Dr. Freudenberger also opined that appellant did not have an impairment under The Guides 

Newsletter as she had a full resolution of her radiculopathy. Based on Dr. Freudenberger’s 

evaluation findings, Dr. Katz found that there was no ratable impairment of any spinal nerve for 

either motor or sensory defect and thus no ratable impairment under FECA for the accepted

conditions. Under Proposed Table Two of The Guides Newsletter, he explained that spinal nerves 

L3 through S1 had no motor or sensory deficits therefore appellant had Class 0 or 0 percent 

permanent impairment of the lower extremities. The Board finds that the DMA properly used

Dr. Freudenberger’s findings and provided an explanation in conformance with the A.M.A., 

Guides and The Guides Newsletter, that she had no permanent impairment of her lower extremities 

due to either a motor or sensory deficit of the L3-S1 spinal nerves.

14

As appellant has not submitted medical evidence in conformance with either the A.M.A., 

Guides or The Guides Newsletter, to support a permanent impairment of her lower extremities, the 

Board finds that she has not met her burden of proof to establish her claim for a schedule award.15

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of new exposure, or medical evidence showing a progression of an employment-related 

condition resulting in permanent impairment or increased permanent impairment.

13 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see R.B., Docket No. 19-0848 (issued February 11, 2020); 

C.S.,Docket No. 19-0851 (issued November 18, 2019).

14 Id.

15 See R.B., supra note 13.
6

CONCLUSION

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

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

ORDER

IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 8, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board