United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 14-774 

Issued: November 3, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On February 21, 2014 appellant, through his attorney, filed a timely appeal from a 

December 30, 2013 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 sustained ratable impairments of his upper extremities due 

to his accepted cervical injuries.2

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant also filed a claim for a schedule award based on his accepted lumbar condition. 

As that aspect of the case is before OWCP, it is not an issue in the present appeal. See 20 C.F.R. § 501.2(c). 
2

FACTUAL HISTORY 

By decision dated April 24, 2001, OWCP accepted that on March 20, 2001 appellant, 

then a 53-year-old letter carrier, sustained a lumbar strain and a cervical strain due to a motor 

vehicle incident. He returned to work as of March 21, 2001 on limited duty. Appellant retired 

from the employing establishment on January 2, 2009. 

On February 2, 2010 appellant’s attorney submitted a report from Dr. William N. Grant, a 

Board-certified internist, who diagnosed appellant with lumbar, thoracic and cervical strains. 

Dr. Grant stated that appellant had reached maximum medical improvement (MMI) as of the 

date of evaluation on January 8, 2010. He examined appellant’s cervical spine, noting that the 

normal curvature had diminished. Appellant had flexion to 10 degrees; extension to 0; left 

lateral rotation to 20 degrees; right lateral rotation to 20 degrees; left lateral bending to 10 

degrees; and right lateral bending to 10 degrees. Dr. Grant also provided examination findings 

relative to appellant’s thoracic spine, lumbar spine and lower extremities. On February 24, 2010 

appellant filed a claim for a schedule award. 

On March 8, 2010 OWCP forwarded a statement of accepted facts and the medical record 

to an OWCP medical adviser for review. Appellant was asked to provide a rating if sufficient 

findings were given and to state a date of MMI. 

In a schedule award worksheet dated May 8, 2010, an OWCP medical adviser stated that 

appellant had a left upper extremity sensory permanent impairment of zero percent and a left 

upper extremity motor impairment of zero percent, resulting in a zero percent total left upper 

extremity partial impairment. He based his impairment rating on the examinations of Dr. Grant, 

noting a default impairment of a C5 nerve impairment with a class 1 grade C (mild) sensory 

deficit of one percent and a class 1 grade C (mild) motor deficit of four percent. The medical 

adviser made adjustments to the default impairment based on a grade zero functional history and 

grade zero clinical studies, noting that no clinical studies had been provided. He stated that the 

date of MMI was difficult to determine, but that it was his opinion that appellant had obtained 

MMI by November 19, 2007. 

On June 8, 2011 OWCP forwarded the medical adviser’s report, the medical record and a 

statement of accepted facts to another medical adviser for review. 

By letter dated June 12, 2011, Dr. Brian M. Tonne, an OWCP medical adviser, explained 

that the accepted diagnoses were cervical and lumbar strain, which implied there had been no 

neurologic injury or impairment to any of the extremities. If these were the only allowed 

diagnoses, determining any extremity impairment would be a moot point because by default the 

impairment would be zero percent. Dr. Tonne stated that further medical examination was 

warranted to address whether there was any residual extremity impairment that would justify an 

expansion of work-related diagnoses to include radiculopathy affecting any of the extremities. If 

such an expansion were justified, any impairment rating should be based on the A.M.A., Guides

and the July/August 2009 The Guides Newsletter. 

On February 13, 2013 OWCP referred appellant for a second opinion examination to 

determine whether he sustained permanent impairment and the date of MMI. 
3

In a report dated February 28, 2013, Dr. Manhal A. Ghanma, a Board-certified orthopedic 

surgeon, reviewed appellant’s medical file, set forth findings on examination and responded to 

OWCP’s queries. On examination appellant’s cervical spine and upper extremities revealed 35 

degrees of forward flexion of the neck; 25 degrees of extension; 30 degrees each of left and right 

lateral bending; 50 degrees of left rotation; and 30 degrees of right rotation. He noted poor effort 

to left rotation of the cervical spine and full range of motion of his elbows and fingers. On 

examination of the right shoulder, Dr. Ghanma noted 125 degrees of forward flexion, 45 degrees 

of extension, 100 degrees of abduction, 15 degrees of adduction and 90 degrees each of internal 

and external rotation of the right shoulder. On examination of the left shoulder, he noted 115 

degrees of forward flexion, 45 degrees of extension, 100 degrees of abduction, 15 degrees of 

adduction and 90 degrees each of internal and external rotation of the right shoulder. 

Dr. Ghanma opined that appellant was likely at MMI within three months of his work-related 

injury based on the allowed conditions and placed the date of MMI at June 20, 2001. This date 

was selected based on normal healing time for similar injuries, as opposed to any specific 

documentation of record. Dr. Ghanma did not find evidence of radiculopathy on physical 

examination or on review of the medical record, noting that appellant’s diagnoses affecting his 

extremities were likely related to degenerative changes. He determined that no impairment 

rating was appropriate for the upper extremities, or appellant’s impairment for both upper 

extremities was zero percent by default. 

On March 19, 2013 OWCP forwarded the case file to an OWCP medical adviser for 

review. 

On April 25, 2013 Dr. Nabil F. Angley, an OWCP medical adviser, reviewed 

Dr. Ghanma’s report and agreed that appellant had no upper extremity permanent impairment. 

Dr. Angley concurred with Dr. Ghanma’s date of MMI. 

By decision dated May 1, 2013, OWCP denied appellant’s schedule award claim. It 

found that the medical evidence did not establish a ratable impairment of either upper extremity. 

It noted that Dr. Ghanma and Dr. Angley agreed that appellant did not have a ratable impairment 

of either upper extremity. 

In a May 2, 2013 letter, appellant, through his attorney, requested a telephonic hearing, 

held on October 23, 2013. At the hearing, counsel noted that OWCP had not yet determined the 

extent of any impairment to appellant’s lower extremities. He requested that the hearing 

representative remand the case to OWCP to issue a decision regarding the lower extremities. 

In a December 30, 2013 decision, an OWCP hearing representative affirmed the May 1, 

2013 decision, finding that the medical evidence did not establish any permanent impairment to 

appellant’s upper extremities. There was no evidence of radiculopathy or spinal nerve root 

damage that would cause a permanent impairment. 
4

LEGAL PRECEDENT 

The schedule award provision 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 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. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.5

No schedule award is payable for a member, function or organ of the body not specified 

in FECA or in the regulations.6

 Neither FECA nor the implementing federal regulations provide 

for the payment of a schedule award for the permanent loss of use of the back and spine.7 No 

claimant is entitled to such an award.8

 In 1966 amendments to FECA modified the schedule 

award provisions to provide for an award for permanent impairment to a member of the body 

covered by the schedule regardless of whether the cause of the impairment originated in a 

scheduled or nonscheduled member. As the schedule award provision of FECA includes the 

extremities, a claimant may be entitled to a schedule award for permanent impairment to an 

extremity even though the cause of the impairment originated in the spine.9

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

nerve extremity impairment, set forth in the July/August 2009 The Guides Newsletter.

10 It was 

designed for situations in which a particular jurisdiction, such as FECA, mandated ratings for 

extremities and precluded 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.11 The Board has recognized the adoption of this methodology as proper in order to 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 

6 Henry B. Floyd, III, 52 ECAB 220 (2001). 

7

 FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19). 

8 Thomas Martinez, 54 ECAB 623 (2003). 

9 See Thomas J. Engelhart, 50 ECAB 319 (1999). 

10 The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment using the sixth edition (July/August 2009). 

11 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 

(January 2010). 
5

provide a uniform standard applicable to each claimant for a schedule award for extremity 

impairment originating in the spine.12

ANALYSIS 

OWCP accepted that appellant sustained lumbar and cervical sprain. Appellant claimed 

that he sustained permanent impairment of the upper extremities. Although FECA does not 

provide a schedule award for the back or spine, impairment of the extremities due to a spinal 

injury may be compensable.13 The Board finds appellant did not submit sufficient medical 

evidence to establish permanent impairment of either upper extremity due to the accepted 

cervical conditions. 

OWCP forwarded Dr. Grant’s report to an OWCP medical adviser, who determined that 

the findings on physical examination did not reveal any sensory or motor impairment to either 

arm due to the accepted cervical strain. Dr. Tonne, the second medical adviser, recommended 

that appellant be referred for a second opinion examination on the issue of permanent 

impairment. 

After reviewing the medical record and statement of accepted facts, Dr. Ghanma did not 

find evidence of cervical radiculopathy on examination or on examinations of the medical 

record, noting that appellant’s diagnoses affecting his extremities were likely related to 

degenerative changes instead. He determined that no impairment rating was appropriate for the 

upper extremities and that as such, appellant’s upper extremity impairment for both upper 

extremities was zero percent by default. Dr. Angley, a medical adviser, reviewed Dr. Ghanma’s 

report and agreed there was no evidence of neuropathy or radiculopathy affecting the arms. 

Appellant had zero percent impairment of his upper extremities. 

The Board finds that OWCP properly afforded Dr. Ghanma the weight of the medical 

evidence, his opinion on permanent impairment as was rendered in conformance with the sixth 

edition of the A.M.A., Guides.

14 As noted, FECA precludes ratings for the spine, but allows for 

impairment of the extremities. 

Dr. Ghanma and Dr. Angley explained that there was no evidence of radiculopathy to 

either arm based on appellant’s physical examination and a review of the medical evidence with 

the applicable protocols and tables of the A.M.A., Guides.

15 Therefore, OWCP’s December 30, 

2013 decision denying a schedule award was proper under the law and facts of the case. 

 12 D.S., Docket No. 14-12 (issued March 18, 2014); D.S, Docket No. 13-2011 (issued February 18, 2014). 

13 See supra note 9. 

14 The Board notes that, while some documents refer to Dr. Ghanma as an independent medical examiner, others 

refer to him as a second opinion physician. The Board finds that Dr. Ghanma was a second opinion physician in this 

case. Dr. Ghanma’s reports are entitled to their own intrinsic value, as they were fully rationalized and stated in 

conformance with the A.M.A., Guides, but are not afforded the special weight of an independent medical examiner. 

This is because appellant was advised in a February 14, 2013 letter that Dr. Ghanma was a second opinion 

physician. See B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001). 

15 See S.S., Docket No. 13-2044 (issued February 20, 2014). 
6

On appeal, counsel asserts that OWCP’s rating methodology for determining impairment 

originating in the spine amounts to “junk science.” The Board has held that OWCP’s reliance on 

the July/August 2009 The Guides Newsletter as incorporated into the Federal (FECA) Procedure 

Manual is a proper exercise of discretion.16

Appellant may request a schedule award or increased schedule award based on evidence 

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

resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not established that he sustained a ratable permanent 

impairment of either upper extremity causally related to the accepted cervical injuries. 

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 30, 2013 is affirmed. 

Issued: November 3, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Supra note 9.