United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.A., Appellant

and

U.S. POSTAL SERVICE, EDISON POST 

OFFICE, Edison, NJ, Employer

__________________________________________

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Docket No. 23-0695

Issued: October 18, 2023

Appearances: Case Submitted on the Record

Russell Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On April 18, 2023 appellant, through counsel, filed a timely appeal from an October 25, 

2022 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,following the October 25, 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 his burden of proof to establish greater than zero 

percent permanent impairment of the right lower extremity and nine percent permanent 

impairment of the left lower extremity for which he previously received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On March 31, 2010 appellant then a 53-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he injured his back on March 29, 2010 while moving trays from the 

ground onto a skid while in the performance of duty. OWCP accepted the claim for thoracic or 

lumbosacral neuritis or radiculitis, and displacement of the lumbar intervertebral disc without 

myelopathy. Appellant stopped work following the injury and has not returned.

On August 21, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a January 13, 2014 report, Dr. Arthur Becan, an orthopedic surgeon, performed an 

impairment evaluation and found that, under the sixth edition of the American Medical 

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

5 appellant had 

42 percent left lower extremity permanent impairment and 15 percent right lower extremity 

permanent impairment. 

Following development of the schedule award claim,6 by decision dated September 11, 

2014, 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.

On September 16, 2014 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 26, 2015. 

By decision dated June 3, 2015, OWCP’s hearing representative set aside OWCP’s 

September 11, 2014 decision and remanded the case for referral of appellant to Dr Dinenberg for 

a second opinion regarding permanent impairment of the lower extremities. 

In August 27 and September 7, 2015 reports, Dr. Dinenberg opined that appellant had five 

percent permanent impairment of the left lower extremity due to L5 motor nerve impairment under 

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition 

4 Docket No. 19-0314 (issued May 5, 2022).

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

6 This development included referral to Dr.William Dinenberg, a Board-certified orthopedic surgeon, for a second 

opinion. In a March 11, 2014 report, Dr. Dinenberg found lumbosacral radiculopathy and preexisting cerebrovascular 

accident with chronic weakness of the left lower extremity. He recommended further electrodiagnostic studies, 

including a repeat magnetic resonance imaging scan.
3

(July/August 2009) (The Guides Newsletter), and zero percent permanent impairment of the right 

lower extremity. He noted that his examination findings of the lower extremities were supported 

by the 2014 diagnostic testing which demonstrated a left-sided radiculopathy related to the L5 

nerve only. Dr. Dinenberg found no sensory findings on examination and, thus, a left-sided 

impairment was rated on the L5 motor nerve only. 

In a January 13, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as the district medical adviser (DMA), opined that appellant reached maximum medical 

improvement (MMI) on August 27, 2016 and that the medical evidence did not support an 

increased schedule award.

By decision dated July 20, 2016, OWCP issued a de novo decision granting nine percent 

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

lower extremity. It noted that appellant was not entitled to impairment greater than that previously 

awarded on September 11, 2014. 

On November 15, 2017 appellant, through counsel, requested reconsideration. 

By decision dated January 30, 2018, OWCP denied modification of its July 20, 2016 

decision.

On March 6, 2018 appellant, through counsel, requested reconsideration. He submitted a 

copy of a September 22, 2017 electromyogram and nerve conduction velocity (EMG/NCV) study,

which indicated findings of bilateral L4 and L5 radiculopathy.

In a June 1, 2018 report, Dr. Morley Slutsky, Board-certified in occupational medicine and 

serving as a DMA, reviewed the most recent statement of accepted facts dated July 1, 2015, which 

noted the acceptance of a lumbosacral radiculopathy, and appellant’s medical record, including 

the September 22, 2017 EMG/NCV study. He opined that MMI was reached on August 27, 2018.7 

The DMA concluded that appellant had normal lower extremity sensation. Utilizing the findings 

in Dr. Dinenberg’s August 27, 2015 impairment evaluation and The Guides Newsletter, he opined 

that there was no basis for a right lower extremity permanent impairment schedule award as there 

were no right lower extremity sensory or motor deficits related to the lumbar spine. For the left 

lower extremity, the DMA found that appellant had zero percent impairment due to normal lower 

extremity sensation and five percent left lower extremity impairment based on the mild left L5 

weakness Dr. Dinenberg had reported and confirmed by the September 22, 2017 EMG/NCV 

study. He noted that, as appellant had previously received a schedule award for nine percent left 

lower extremity permanent impairment for the same nerve root, there was no greater permanent 

impairment for schedule award purposes.

By decision dated July 2, 2018, OWCP denied modification of its January 30, 2018 

decision. The weight of the medical evidence rested with DMA Dr. Slutsky’s June 1, 2018 

opinion. 

7 This appears to be a typographical error and should read as August 27, 2015 based on the DMA’s review of

Dr. Dinenberg’s August 27, 2015 report.
4

On November 28, 2018 appellant, through counsel, appealed to the Board.8In a 

September 18, 2019 order, the Board set aside and remanded the case, finding that OWCP had not 

requested clarification from the DMA regarding the September 22, 2017 EMG/NCV study, which 

revealed the existence of bilateral L4 and L5 radiculopathies. The Board noted that DMA

Dr. Slutsky, in his June 1, 2018 report, confirmed the existence of a left L5 radiculopathy, but 

failed to mention the bilateral radiculopathies of L4 and the right-sided radiculopathy of L5 and 

whether such conditions were preexisting or subsequently-acquired conditions with respect to the 

March 29, 2010 employment incident. The Board also noted that Dr. Slutsky’s impairment 

evaluation was based on Dr. Dinenberg’s August 27, 2015 impairment evaluation, which predated 

the September 22, 2017 EMG/NCV study. 

In a November 9, 2019 report, Dr. Slutsky noted that the September 22, 2017 EMG study 

noted neurogenic findings related to L4 dermatomes. 

By decision dated February 26, 2020, OWCP denied appellant’s claim for an additional 

schedule award. It accorded the weight of the medical evidence to Dr. Slutsky’s November 9, 

2019 report. 

On March 5, 2020 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. 

By decision dated June 3, 2020, OWCP’s hearing representative found that the case was 

not in posture for a hearing as Dr. Slutsky did not sufficiently address the September 22, 2017 

EMG/NCV study. 

In a September 25, 2020 report, Dr. Slutsky recommended referral of appellant to a Boardcertified orthopedic surgeon for a second opinion on whether there was clear evidence of a right 

lower extremity radiculopathy due to a progression of the underlying degenerative disc disease . 

In an April 2, 2021 report, Dr. Jon D. Donshik, a Board-certified orthopedic surgeon 

serving as a second opinion examiner, indicated that appellant’s examination did not demonstrate 

any neurologic deficit in the lower extremities consistent with lumbar radiculopathy. He opined

that, under Table 2 of The Guides Newsletter, appellant had zero percent permanent impairment 

of his right leg and zero percent permanent impairment of the left leg, as he had no sensory or 

motor deficit in either lower extremity. 

In a July 8, 2021 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as a DMA, concurred with Dr. Donshik’s impairment ratings. He found that appellant reached 

MMI on April 2, 2021 when seen by Dr. Donshik and noted that the A.M.A., Guides precluded 

impairment ratings based on range of motion (ROM) methodology for a lumbar radiculopathy 

diagnosis.

On February 16, 2022 OWCP requested that Dr. Harris clarify whether he agreed with the 

impairment evaluations of Dr. Becan, Dr. Dinenberg, or Dr. Donshik. It also requested that he 

8

Supra note 4.
5

discuss the September 22, 2017 EMG/NCV study test and explain how the test was used in the 

impairment evaluations. 

In February 18 and March 21, 2022 reports, DMA Dr. Harris reviewed the entire case file 

including the January 14, 2013 report of Dr. Becan, the March 11, 2014 and August 27 and 

September 7, 2015 reports of Dr. Dinenberg, and the April 2, 2021 report of Dr. Donshik. He 

noted that the three impairment reports varied in their objective findings and that appellant’s most 

recent impairment evaluation, that of Dr. Donshik dated April 2, 2021, was chosen as the 

appellant’s condition can vary from time to time. Dr. Harris reiterated that the A.M.A., Guides

did not allow for ROM impairment and that appellant had zero percent permanent impairment 

based on the diagnosis-based impairment (DBI) methodology described in The Guides Newsletter

July/August 2009 study. He indicated that Dr. Donshik’s evaluation did not reveal any neurologic 

deficit in the lower extremities consistent with lumbar radiculopathy. Thus, appellant had severity 

of 0 for sensory and motor deficits under Table 16-11, page 533, Class 0 impairment under Table 

2 of The Guides Newsletter which resulted in zero percent left and right leg permanent impairment 

ratings. Dr. Harris also explained that, while appellant had a positive September 22, 2017 

electrodiagnostic study consistent with radiculitis, the studies were not applicable as grade 

modifiers as he had zero percent permanent impairment. He indicated that electrodiagnostic 

studies were used as grade modifiers once appellant is found to have impairment from sensory or 

motor deficit from radiculopathy. However, appellant did not have any sensory or motor deficit

from radiculopathy and positive studies, absent any neurological deficit consistent with lumbar 

radiculopathy, does not by itself result in impairment in the lower extremities. 

By decision dated May 16, 2022, OWCP denied appellant’s claim for an increased 

schedule award. It accorded the weight of the medical evidence to the reports of Dr. Donshik and 

DMA Dr. Harris. 

On May 24, 2022 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review. A hearing was held on August 12, 2022. 

By decision dated October 25, 2022, an OWCP hearing representative affirmed OWCP’s 

May 16, 2022 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA9 and its implementing regulations10 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. FECA, however, does not 

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

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 

a single set of tables so that there may be uniform standards applicable to all claimants. OWCP 

evaluates the degree of permanent impairment according to the standards set forth in the sixth 

9

5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.
6

edition of the A.M.A., Guides, published in 2009.11 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.12

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. 13 Furthermore, the 

spine is specifically excluded from the definition of organ under FECA. 14 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.15 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.16

A claimant may seek an increased schedule award if the evidence establishes that he or she 

sustained an increased impairment causally related to an employment injury.17 The medical 

evidence must include a detailed description of the permanent impairment. 18

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 impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.19

11 For decisions issued after May 1, 2009,the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

12 A.P., Docket No. 22-1246 (issued April25, 2023); D.M., Docket No. 21-1209 (issued March 24, 2022); L.E., 

Docket No.20-1505 (issued June7, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 

348 (1961).

13 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.H., Docket No. 19-1788 (issued March 17, 2020); Jay K. 

Tomokiyo, 51 ECAB 361 (2000); C.S., Docket No. 19-0851 (issued November 18, 2019).

14 See id. at § 8107(c); see G.S., Docket No. 18-0827 (issued May 1, 2019).

15 Supra note 11 at Chapter 3.700 (January 2010). The Guides Newsletter is included in Exhibit 4.

16 W.G., Docket No. 21-0675 (issued December 28, 2021); L.S., Docket No. 19-1730 (issued August 26, 2020);

A.H., supra note 13. 

17 See T.W., Docket No. 20-1547 (issued October 4, 2021).

18 See K.F., Docket No. 18-1517 (issued October 9, 2019).

19 Supra note 11 at Chapter 2.808.6f (March 2017); see K.R.,Docket No. 21-0247 (issued February 25, 2022);

D.J., Docket No. 19-0352 (issued July 24, 2020).
7

ANALYSIS

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

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

impairment of the left lower extremity for which he previously received a schedule award.

Following development of the claim for an increased schedule award, appellant underwent 

a permanentimpairment examination with Dr. Donshik, a second opinion physician. In an April 2, 

2021 report, Dr. Donshik indicated that the examination did not demonstrate any neurologic deficit 

in the lower extremities consistent with lumbar radiculopathy, as he had no sensory or motor 

deficits. Thus, he opined, based on Table 2 of The Guides Newsletter, that appellant had zero 

percent permanent impairment of his right leg and zero percent permanent impairment of the left 

leg. 

Referencing The Guides Newsletter, DMA Dr. Harris, concurred with Dr. Donshik’s 

calculations of zero permanent impairment of the bilateral lower extremities based on the DBI 

methodology described in The Guides Newsletter as there was no neurologic deficit in the bilateral 

lower extremities consistent with lumbar radiculopathy. Thus, appellant had severity of 0 for 

sensory and motor deficits under Table 16-11, page 533 and Class 0 impairment under Table 2 of 

The Guides Newsletter, which resulted in zero percent left and right leg permanent impairment 

determinations. He indicated that the A.M.A., Guides precluded impairment ratings based on 

ROM methodology for a lumbar radiculopathy diagnosis. In February 18 and March 21, 2022 

reports, Dr. Harris also explained that Dr. Donshik’s April 2, 2021 impairment evaluation was 

chosen to rate appellant’s impairment as it was the most recent evaluation. He also explained that 

appellant’s positive September 22, 2017 electrodiagnostic study was not applicable as such studies 

were used as grade modifiers only after appellant is found to have impairment from sensory or 

motor deficit from radiculopathy. However, appellant did not have any sensory or motor deficit 

from radiculopathy and any positive studies, absent any neurological deficit consistent with lumbar 

radiculopathy, would not result in ratable permanent impairment under The Guides Newsletter. 

The Board finds that the DMA, Dr. Harris, properly applied the standards of The Guides 

Newsletter to the physical examination findings of Dr. Donshik to determine that appellant did not 

have permanent impairment of a scheduled member or function of the body. He accurately 

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

conclusions that comported with these findings.20 The Guides Newsletter rates permanent 

impairment from lumbar radiculopathy based upon sensory or motor loss of the upper and lower 

extremities.21 As the medical evidence did not substantiate that appellant had sensory of motor 

loss of either lower extremity, Dr. Donshik and Dr. Harris properly determined that appellant did 

not have permanent impairment of the bilateral lower extremities based on the DBI methodology 

described in The Guides Newsletter.

22

 Dr. Harris also properly noted that the A.M.A., Guides did 

20 See C.W., Docket No. 19-1590 (issued September 24, 2020); 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).

21 See B.W., Docket No. 22-0522 (issued March 10, 2023); M.H., Docket No. 21-1250 (issued February 17, 2023); 

E.F., Docket No. 18-1723 (issued May 1, 2019).

22 T.M., Docket No. 16-0429 (issued August 11, 2016). 
8

not allow for an impairment rating based on ROM for the relevant diagnoses. 23 Dr. Harris also 

provided a well-rationalized explanation as to why the earlier impairment reports of appellant’s 

treating physician Dr. Becan and second opinion physician Dr. Dinenberg were not considered.

24

 

There is no current medical evidence of record utilizing The Guides Newsletter which 

demonstrates greater than zero percent permanent impairment of the right lower extremity or the 

nine percent permanent impairment of the left lower extremity previously awarded. Accordingly, 

the Board finds that appellant has not met his burden of proof.

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.

CONCLUSION

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

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

impairment of the left lower extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 25, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 18, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

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

24 See G.H., Docket No. 19-1800 (issued September 4, 2020); M.L.,Docket No. 18-0547 (issued November 7, 

2018); T.M., supra note 22.