United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

O.W., Appellant

and

DEPARTMENT OF THE ARMY, RED RIVER 

ARMY DEPOT, Texarkana, TX, Employer

__________________________________________

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Docket No. 21-0836

Issued: September 29, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 7, 2021 appellant, through counsel, filed a timely appeal from April 21 and 22, 

2021 merit decisions 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.

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish greater than 11 

percent permanent impairment of the left lower extremity for which he received schedule award

compensation; (2) whether appellant received an overpayment of compensation in the amount of 

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.
2

$9,022.62 for the periods March 16 to August 24, 2008 and May 2 to July 1, 2018 for which he 

was without fault because he had less permanent impairment than previously awarded; and 

(3) whether OWCP properly denied appellant’s request for waiver of recovery of the overpayment.

FACTUAL HISTORY

The facts and circumstances as presented in the Board’s prior decision are incorporated 

herein by reference.3 The relevant facts are set forth below.

On June 28, 1995 appellant, then a 39-year-old rubber worker, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his low back on that day when he bent over to lift a 

T-156 track.4 OWCP accepted the claim for herniated lumbar disc and authorized L4-5 

laminectomy and discectomy, which was performed on January 5, 1996. As of December 15, 

1997, it paid appellant on the periodic rolls for disability.5 Appellant subsequently accepted a 

limited-duty job offer as a clerk and returned to work on February 20, 2007.6

On November 26, 2007 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. 

By decision dated March 26, 2008, OWCP granted appellant a schedule award for an eight 

percent permanent impairment of the left lower extremity based on the fifth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).

7

 The period of the award ran for 23.04 weeks from March 16 to August 24, 2008.

On October 22, 2008 appellant requested reconsideration. By decision dated November 7, 

2008, OWCP denied his request for reconsideration of the merits of his claim. 

On December 1, 2008 appellant, through counsel, filed an appeal with the Board. By

decision November 19, 2009, the Board affirmed OWCP’s March 26, 2008 decision, finding that 

appellant had not established greater than eight percent permanent impairment of the left lower 

extremity for which he received a schedule award.8 The Board further found that OWCP properly 

denied appellant’s request for further merit review of his claim, pursuant to 5 U.S.C. § 8128(a). 

OWCP thereafter received an October 25, 2010 permanent impairment rating from

Dr. John W. Ellis, a Board-certified family medicine and environmental medicine physician, who

3 Docket No. 09-427 (issued November 19, 2009).

4 OWCP assigned the current claim OWCP File No. xxxxxx848. The record contains evidence that previously, on 

May 2, 1986, appellant strained his lower back while in the performance of duty. OWCP accepted the claim for a 

lumbosacral strain and assigned OWCP File No. xxxxxx321. It has administratively combined these claims with 

OWCP File No. xxxxxx848 serving as the master file.

5 Appellant was terminated by the employing establishment effective April 27, 1997 due to an inability to perform 

his work duties. 

6 The employing establishment removed appellant for cause effective May 2, 2017. 

7 A.M.A., Guides (5th ed. 2001).

8

Supra note 3.
3

noted appellant’s history of injury and presented findings on examination. Dr. Ellis indicated that 

he applied the sixth edition of the A.M.A., Guides and found 10 percent right lower extremity 

permanent impairment due to L5 nerve root impingement and five percent right lower extremity 

permanent impairment due to S1 nerve root impingement, resulting in 15 percent right lower 

extremity permanent impairment. For the left lower extremity, he found 13 percent lower 

extremity permanent impairment due to L5 nerve root impingement and 10 percent lower 

extremity permanent impairment due to S1 nerve root impingement, resulting in 22 percent left 

lower extremity permanent impairment. 

On November 8, 2010 appellant filed a Form CA-7 claim for an increased schedule award. 

On November 26, 2010 OWCP referred appellant’s case to an OWCP district medical 

adviser (DMA) for review of Dr. Ellis’ October 25, 2010 report and to provide an opinion on 

permanent impairment under the sixth edition of the A.M.A., Guides.9In a December 7, 2010 

report, Dr. Ronald Blum, a Board-certified orthopedic surgeon, serving as a DMA, indicated that

Dr. Ellis incorrectly applied the fifth edition of the A.M.A., Guides. He requested that OWCP ask

Dr. Ellis to reassess his impairment rating using The Guides Newsletter, Rating Spinal Nerve 

Impairment Using the Sixth Edition, which was published in the July/August 2009 (The Guides

Newsletter).

In a report dated January 26, 2011, Dr. Ellis again found 22 percent permanent impairment 

of appellant’s left lower extremity and 15 percent permanent impairment of the right lower 

extremity under “Table 16-2, page 498,” of the sixth edition of the A.M.A., Guides.

In a February 23, 2011 report, Dr. Blum noted that Dr. Ellis did not provide an impairment 

rating using The Guides Newsletter. He recommended a second opinion examination in order to 

better determine permanent impairment.

On March 4, 2011 OWCP referred appellant to Dr. John A. Sklar, a Board-certified 

physiatrist, for a second opinion evaluation to provide an impairment rating using The Guides 

Newsletter. In an April 26, 2011 report, Dr. Sklar, based on a review of the medical record, 

statement of accepted facts (SOAF), and a clinical examination, opined that appellant had no 

impairment of either lower extremity due to lumbar nerve root impingement. Dr. Blum reviewed

Dr. Sklar’s report on May 6, 2011 and concurred with his findings and impairment rating. 

By decision dated May 12, 2011, OWCP denied appellant’s claim for an increased 

schedule award, finding that the medical evidence of record was insufficient to establish permanent 

impairment of a scheduled member or function of the body. It noted that he had previously been 

granted a schedule award for eight percent left lower extremity permanent impairment. 

On May 19, 2011 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on October 4, 2011. 

By decision dated December 20, 2011, OWCP’s hearing representative found a conflict in 

the medical opinion evidence between Dr. Sklar, an OWCP second opinion physician, and

Dr. Ellis, appellant’s physician, regarding appellant’s physical examination findings. She set aside 

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

the May 12, 2011 decision and remanded the case for referral to an impartial medical examiner 

(IME) to resolve the conflict.

On April 3, 2012 OWCP referred appellant, together with a SOAF, medical record, and 

series of questions, to Dr. David D. Sanderson, a Board-certified orthopedic surgeon, to resolve 

the conflict in physical examinations findings and to provide a permanent impairment rating in 

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

In a May 9, 2012 report, Dr. Sanderson, based upon a review of the SOAF and medical 

record, and physical examination findings, agreed with Dr. Sklar that appellant had zero percent 

permanent impairment of his lower extremities. 

On May 24, 2012 OWCP forwarded Dr. Sanderson’s May 9, 2012 report and the case file 

to Dr. Daniel D. Zimmerman, a Board-certified internist, serving as a DMA, for review. On 

May 29, 2012 Dr. Zimmerman agreed with Dr. Sanderson that appellant had zero percent left 

lower extremity permanent impairment.

On June 5, 2012 OWCP noted that Dr. Zimmerman had been involved with adjudication 

of appellant’s original claim for a right lower extremity permanent impairment, it routed

Dr. Sanderson’s May 9, 2012 report and the case file to Dr. Sanjai Shukla a Board-certified 

orthopedic surgeon serving as a DMA, for review. On June 17, 2012 Dr. Shukla found that 

appellant had zero percent permanent impairment of the right and left lower extremities.

By decision dated June 18, 2012, OWCP denied appellant’s claim for an increased 

schedule award, finding that the medical evidence of record was insufficient to establish permanent 

impairment of a scheduled member or function of the body. It noted that the special weight of the 

medical evidence rested with Dr. Sanderson, the IME. 

On June 25, 2012 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on November 7, 2012. 

By decision dated January 28, 2013, OWCP’s hearing representative affirmed the June 18, 

2012 decision denying appellant’s claim for an increased schedule award.

In an impairment evaluation dated May 2, 2018, Dr. Clinton McAlister, a Board-certified 

orthopedic surgeon, reviewed appellant’s history of injury and medical record, and provided 

physical examination findings. He diagnosed severe lumbar stenosis at L3-4, L4-5, and L5-S1 and 

residual L5 radiculopathy. Dr. McAlister attributed the diagnosed L5 radiculopathy to the 

accepted June 28, 1995 employment injury. He noted that appellant had a very poor gait using a 

cane and could not heel or toe walk. Dr. McAlister noted that appellant’s straight leg raising was 

positive on the left side at 40 degrees with pain in the hip and down the leg. A neurological 

examination revealed left extensor halluces longus weakness and foot dorsiflexor and evertor

weakness at 4/5. Dr. McAlister reported appellant’s right sensory examination was within normal 

limits, a left sensory examination showed decreased left knee reflexes, and both Achilles being 

decreased. He found that appellant had reached MMI on December 14, 2017. Utilizing the 

diagnosis-based impairment (DBI) method of the sixth edition of the A.M.A., Guides and The 

Guides Newsletter, Dr. McAlister in rating appellant’s permanent impairment of the left lower 

extremity, under spinal nerve impairments, he identified the class of diagnosis (CDX), L5 

radiculopathy, as a class 1 impairment with a default value of three percent for moderate sensory 
5

loss and a class 1 impairment with a default value of five percent for mild motor weakness under 

Table 2, page 6 of The Guides Newsletter. He assigned a grade modifier for functional history 

(GMFH) of 3 in accordance with Table 17-6, page 575 of the sixth edition of the A.M.A., Guides 

as appellant had a questionnaire score of 124. Dr. McAlister assigned a grade modifier for physical 

examination (GMPE) of 2 for moderate decreased sensation using Table 17-7, page 576. He noted 

that clinical studies (GMCS) were not applicable as no clinical studies were done. Dr. McAlister 

calculated that appellant had a net adjustment of +3, resulting in movement from the default class 

of C to class E and corresponding to a nine percent left lower extremity permanent impairment. 

Next, he combined the 9 percent motor lower extremity permanent impairment with the 3 percent 

sensory impairment, resulting in a 12 percent left lower extremity permanent impairment.

On May 21, 2018 appellant filed a Form CA-7 claim for an increased schedule award. 

In a July 10, 2018 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as OWCP’s DMA, reviewed the SOAF and appellant’s medical records. He related that 

appellant was injured at work on June 28, 1995and noted his accepted conditions. Dr. Katz related 

that appellant had a moderate sensory deficit and mild motor deficit. Using The Guides Newsletter, 

he indicated that appellant’s L5 moderate sensory default corresponded to the default value of 

three percent on the Proposed Table 2, page 6. Dr. Katz calculated a net adjustment of +1, resulting 

in a class 1 grade D impairment, which indicated a four percent left lower extremity permanent 

impairment. Next, he indicated that appellant’s L5 mild motor deficit corresponded to the default 

value of five percent on the Proposed Table 2, page 6. Dr. Katz calculated a net adjustment of +1, 

resulting in class 1 grade D impairment, which indicated a seven percent left lower extremity 

permanent impairment. He combined the 7 percent motor lower extremity permanent impairment 

with the 4 percent sensory impairment, resulting in an 11 percent left lower extremity permanent 

impairment. Dr. Katz explained that his determination was lower based on the assignment of grade 

modifiers resulting in class 1 grade D for each determination rather than the class 1 grade E found 

by Dr. McAlister. He noted that physical examination was used for grid placement, and clinical 

studies were adjusted by 0. Dr. Katz found that appellant reached MMI on May 2, 2018, the date 

of Dr. McAlister’s report. 

In an August 2, 2018 report, Dr. Katz found appellant was entitled to an additional three 

percent left lower extremity permanent impairment noting that appellant had previously received 

a schedule award for an eight percent left lower extremity permanent impairment. 

By decision dated August 13, 2018, OWCP granted appellant an increased schedule award 

for a 3 percent permanent impairment of the left leg, for a total 11 percent permanent impairment 

of the left leg. The period of the award ran for 8.64 weeks from May 2 to July 1, 2018. 

On June 5 and 30, 2020 appellantfiled Form CA-7 claimsfor an increased schedule award. 

In an updated permanent impairment evaluation dated August 3, 2020, Dr. McAlister noted 

that appellant used a cane, walked with a limp on the left, and could not tandem, heel or toe walk. 

Examination findings included persistent pain with any paralumbar palpation near surgery scar, 

severe sensory deficit of the lateral aspect left thigh and calf and dorsal aspect of the left foot, 4/5 

extensor hallucis longus weakness, and +1 reflex equal in the knees and left ankle. Dr. McAlister

diagnosed severe lumbar stenosis at L3-4, L4-5, and L5-S1, lumbar disc displacement, and residual 

L5 radiculopathy. He attributed the diagnosed L5 radiculopathy to the accepted June 28, 1995 
6

employment injury. Dr. McAlister found that appellant had reached MMI on August 3, 2020. 

Utilizing the DBI method of the sixth edition of the A.M.A., Guides and The Guides Newsletter,

he identified the CDX, L5 radiculopathy, as one with a grade C default value of seven percent for 

severe sensory loss which is a class 1 impairment, and with a grade C default value of five percent 

for mild motor weakness, also a class 1 impairment under Table 2, page 6 of The Guides 

Newsletter. Dr. McAlister assigned a GMFH of 3 in accordance with 17-6, page 575

10 as appellant 

had a questionnaire score of 116. He noted that a GMFH and a GMPE were not applicable as they 

were used for class determination. Dr. McAlister calculated that appellant had a net adjustment of 

+2, resulting in movement from the default grade of C to grade E and corresponding to a nine 

percent left lower extremity permanent impairment. Next, he combined the nine percent motor 

lower extremity permanent impairment with the seven percent sensory impairment, resulting in a 

15 percent left lower extremity permanent impairment. 

On August 7, 2020 OWCP referred appellant to Dr. Richard B. Sharp, a Board-certified 

physiatrist, for a second opinion evaluation. In a report dated September 4, 2020, Dr. Sharp noted 

his review of the medical record and provided physical examination findings. He opined that 

appellant had reached MMI on April 27, 1997. On examination Dr. Sharp reported mild antalgic 

gait, 5/5 bilateral left hip, knee and ankle motor strength, no foot drop, negative bilateral straight 

leg test, no atrophy or muscle spasm, moderate decreased left L5 dermatone pinprick sensation, 

and moderate left lumbar paraspinal muscle tenderness. Utilizing the sixth edition of the A.M.A., 

Guides and The Guides Newsletter, he identified the CDX, L5 radiculopathy, as class 1 with a 

default value of three percent for moderate sensory deficit. Dr. Sharp found no motor impairment. 

He assigned a GMFH of 2, in accordance with Table 17-6, page 575 as appellant had pain and 

symptoms with normal activity. Dr. Sharp reported a GMPE of 2, in accordance with Table 17-7, 

page 576, as appellant had diminished light touch. He reported a GMCS of 2 for magnetic 

resonance imaging scan findings. Dr. Sharp calculated that appellant had a net adjustment of +3, 

resulting in movement from the default grade of C to E and corresponding to five percent 

permanent impairment of the lower extremity. 

On October 19, 2020 OWCP again referred appellant’s case to Dr. Katz, the DMA, for 

review. In an October 20, 2020 report, Dr. Katz reviewed the SOAF and medical record. He

concurred with Dr. Sharp’s impairment rating noting that his physical examination findings were 

consistent with the medical record. Dr. Katz opined that Dr. Sharp’s report could not be accepted 

as his characterization of sensory loss as severe did not meet the criterion set forth in Table 16-11 

and his impairment rating of 15 percent for a single nerve exceeds the 13 percent cap for a single 

nerve in a lower extremity. Thus, he found Dr. Sharp’s report to be a more accurate assessment 

of appellant’s impairment than Dr. McAlister’s report. Dr. Katz found the date of MMI to be 

September 1, 2020, the date of Dr. Sharp’s examination. 

On October 22, 2020 OWCP requested clarification from Dr. Katz as it was unclear he was 

referring to the correct physician when he wrote that Dr. Sharp incorrectly found 15 percent left 

lower extremity permanent impairment. 

10 Id.
7

Dr. Katz, in an October 27, 2020 report, clarified that he was referring to Dr. McAlister 

and not Dr. Sharp when he explained why Dr. McAlister’s report could not be accepted as 

probative.

By decision dated October 29, 2020, OWCP denied appellant’s claim for an increased 

schedule award, finding that the medical evidence of record was insufficient to establish greater 

than 11percent permanent impairment of his left lower extremity for which he previously received 

schedule award compensation. It noted that the weight of the medical opinion evidence rested 

with the opinions of Dr. Sharp, a second opinion physician, and Dr. Katz, the DMA.

On November 2, 2020 OWCP issued a preliminary overpayment determination, finding 

that an overpayment of compensation in the amount of $9,022.62 had been created, for the period 

March 16 to August 24, 2008 and May 2 to July 1, 2018, because appellant had previously 

received schedule award compensation for 11 percent permanent impairment of the left upper 

extremity when he had 5 percent left lower extremity impairment. It found that he was without 

fault in the creation of the overpayment and forwarded an overpayment action request form and 

an overpayment recovery questionnaire (Form OWCP-20). OWCP requested that appellant 

provide supporting financial documentation including income tax returns, bank account 

statements, bills and cancelled checks, pay slips, and any other records to support his reported 

income and expenses. It afforded him 30 days to respond. 

On November 6, 2020 appellant requested a prerecoupment hearing before a representative 

of OWCP’s Branch of Hearings and Review regarding the claimed overpayment, which was held 

on February 19, 2021. He requested waiver of recovery of the overpayment. 

On November 12, 2020 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review with respect to OWCP’s October 29, 

2020 schedule award decision, which was also held on February 19, 2021. 

In an overpayment recovery questionnaire, signed on November 13, 2020, appellant 

reported $1,936.00 in monthly income, $1,676.00 in the monthly expenses, and no assets (cash, 

checking account, and savings account). Supporting financial documentation was received on 

April 5, 2021.

By decision dated April 21, 2021, OWCP’s hearing representative affirmed the 

October 29, 2020 schedule award decision.

By decision dated April 22, 2021, OWCP’s hearing representative finalized OWCP’s 

preliminary overpayment determination that appellant had received an overpayment of 

compensation in the amount of $9,022.62, for the periods March 15 to August 24, 2008 and May 2 

to July 1, 2018, because he received schedule award compensation for the left lower extremity to 

which he was not entitled. The hearing representative further found that he was without fault in 

the creation of the overpayment, but denied waiver of recovery of the overpayment because the 

evidence of record was insufficient to establish that recovery of an overpayment would defeat the 

purpose of FECA or would be against equity and good conscience. OWCP’s hearing 

representative found that the $9,022.62 overpayment was due and payable in full and directed 

OWCP to collect the overpayment. 
8

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA11 and its implementing regulations12 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for loss 

or loss of use, of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter that rests in the discretion of OWCP. OWCP evaluates the 

degree of permanent impairment according to the standards set forth in the specified edition of the 

A.M.A., Guides, published in 2009.13 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.14 

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. 15 However, a 

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

and/or lower extremities.16 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 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.17

Section 8123(a) of FECA provides in pertinent part: “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.”

18

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

11 Supra note 2.

12 20 C.F.R. § 10.404.

13 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. Federal (FECA) 

Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(March 2017);see also Chapter 3.700, Exhibit 1 (January2010).

14 T.W., Docket No. 20-0119 (issued January 12, 2021); C.W., Docket No. 19-1590 (issued September 24, 2020);

H.K., Docket No. 18-0528 (issued November 1, 2019).

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see T.W., id.; C.S., Docket No. 19-0851 (issued 

November 18, 2019).

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

17 Supra note 13 at Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010); see T.W., supra note 14; B.M., 

Docket No. 19-1069 (issued November 21, 2019). 

18 5 U.S.C. § 8123(a).
9

to an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently

well rationalized and based upon a proper factual background, must be given special weight.

19

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 the March 26, 2008 decision because the Board 

considered that evidence in its November 9, 2007 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.20

The Board finds that a conflict remains in the medical opinion evidence between the 

opinion of Dr. McAlister, appellant’s attending physician, on the one hand, and the opinions of

Dr. Sharp, an OWCP referral physician, and Dr. Katz, a DMA, on the other hand, regarding the 

permanent impairment of appellant’s left lower extremity.

In an August 3, 2020 report, Dr. McAlister determined that appellant had 15 percent 

permanent impairment of his left lower extremity. He reported that appellant had 4/5 extensor left 

hallucis longus weakness and severe left thigh, calf and foot sensory deficit. Dr. McAlister advised 

that the sensory examination showed pain on palpation of the paralumbar muscles. He applied the 

standards of The Guides Newsletter and identified the CDX, L5 radiculopathy, as a class 1 grade 

C impairment with a default value of seven percent for severe sensory loss and a class 1 grade C 

impairment with a default value of five percent for mild motor weakness. Next, Dr. McAlister

found that appellant had a GMFH of 3 and that GMPE and GMCS were not applicable. He

concluded that appellant had 15 percent permanent impairment of his left lower extremity based 

on motor and sensory deficits associated with the right L5 dermatomes.

In contrast, Dr. Sharp determined in his September 4, 2020 report that appellant had five 

percent left lower extremity impairment. He noted that no spasm or atrophy was found on 

examination, and that the left hip, knee, and ankle demonstrated 5/5 motor strength. Dr. Sharp

reported moderate decreased left L5 dermatone pinprick sensation and moderate left lumbar 

paraspinal muscle tenderness. He applied the standards of The Guides Newsletter and identified 

the CDX, L5 radiculopathy, with a class 1 default value of three percent for the moderate sensory 

deficit. Dr. Sharp found no motor impairment. In rating appellant’s impairment for sensory loss, 

he assigned a GMFH of 2 for pain and symptoms with normal activity. Next, Dr. Sharp assigned 

a GMPE of 2 for diminished light touch and a GMCS of 2 for magnetic resonance imaging scan 

findings. He calculated that appellant had a net adjustment of 3, resulting in movement from the 

default class of C to E and corresponding to five percent permanent impairment of the left lower 

extremity. As well, Dr. Katz indicated in his October 19 and 27, 2020 reports that he concurred 

with Dr. Sharp’s assessment that appellant had five percent left lower extremity permanent 

impairment due to sensory deficits and no motor deficits pursuant to The Guides Newsletter.

19 D.C., Docket No. 20-0897 (issued August11, 2021); D.M., Docket No. 18-0746 (issued November 26, 2018);

R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).

20 A.D., Docket No. 20-0553 (issued April 19, 2021); M.D., Docket No. 19-0510 (issued August 6, 2019); 

Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
10

The Board thus finds that Dr. McAllister identified the CDX as a class 1 impairment with 

a default value of seven percent for severe sensory loss and a class 1 impairment with a default 

value of five percent for mild motor weakness. However, Dr. Sharp and Dr. Katz identified the 

CDX with a default value of three percent for moderate sensory deficit, and no motor impairment. 

A conflict therefore exists in the medical examination findings regarding appellant’s sensory and 

motor deficit resulting from his L5 peripheral nerve impairment.

Consequently, the case must be referred to an IME, pursuant to 5 U.S.C. § 8123(a), to 

resolve the existing conflict in the medical opinion evidence regarding permanent impairment of 

appellant’s left lower extremity.

21

 On remand OWCP shall refer appellant, along with the case 

file and the SOAF, to a specialist in the appropriate field of medicine for an impartial medical 

evaluation and report including a rationalized opinion on this matter. Following this and other 

such further development as deemed necessary, OWCP shall issue a de novo decision regarding 

appellant’s schedule award claim.

LEGAL PRECEDENT -- ISSUE 2

Section 8102(a) of FECA22 provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of his or her duty.23 Section 8129(a) of FECA provides, in pertinent part:

“When an overpayment has been made to an individual under this subchapter 

because of an error of fact or law, adjustment shall be made under regulations 

prescribed by the Secretary of Labor by decreasing later payments to which an 

individual is entitled.”

24

If a claimant received a schedule award and the medical evidence does not support the 

degree of permanent impairment awarded, an overpayment of compensation may be created. 25 If, 

during the course of the appeals process, it is determined that the initial schedule award decision 

must be set aside, a new schedule award decision should be issued that fully addresses the reasons 

for the change in rating. Declaring an overpayment thereafter is appropriate if the de novo decision 

substantiates a lesser degree of impairment than previously awarded, so long as both ratings are 

based on the same edition of the A.M.A., Guides. The resulting overpayment should have a 

finding of without fault.

26

21 Id.

22 Supra note 2

23 5 U.S.C. § 8102(a).

24 Id. at § 8129(a).

25 See M.F., Docket Nos. 21-0759 & 21-1037 (issued May 4, 2022); D.M., Docket No. 21-1124 (issued 

July 7, 2022).

26 Id. See supra note 13 at Hearings and Review of the Written Record, Chapter 2.1601.8c(February 2022).
11

ANALYSIS -- ISSUE 2

In light of the Board’s disposition of Issue 1, the Board finds that OWCP improperly 

determined that appellant received an overpayment of compensation in the amount of $9,022.62 

for the periods March 16 to August 24, 2008, and May 2 to July 1, 2018. Therefore, the April 22, 

2021 decision must be reversed.27

CONCLUSION

The Board finds that this case is not in posture for a decision regarding whether appellant 

has met his burden of proof to establish greater than 11 percent permanent impairment of his left 

lower extremity. The Board further finds that OWCP improperly determined that appellant 

received an overpayment of compensation in the amount of $9,022.62 for the periods March 16 to 

August 24, 2008 and May 2 to July 1, 2018. 

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2021 decision of the Office of Workers’

Compensation Programs regarding the denial of an increased schedule award is set aside; the case 

is remanded for further proceedings consistent with this decision of the Board. The April 22, 2021

decision of the Office of Workers’Compensation Programs regarding the overpayment is reversed, 

and the case is remanded for further proceedings consistent with this decision of the Board.

Issued: September 29, 2022

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

27 In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.