United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISRTATION MEDICAL 

CENTER, Murfreesboro, TN, Employer 

__________________________________________ 

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Docket No. 13-1760 & 14-231 

Issued: May 7, 2014 

Appearances: Case Submitted on the Record 

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On July 19, 2013 appellant filed a timely appeal from a January 31, 2013 decision of the 

Office of Workers’ Compensation Programs (OWCP) regarding a schedule award, docketed as 

No. 13-1760. On October 7, 2013 she filed a timely appeal from an April 18, 2013 decision 

denying reimbursement for an imaging study, docketed as No. 14-231. 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. 

ISSUES 

The issues are: (1) whether appellant sustained ratable impairments of her upper 

extremities due to accepted cervical injuries; and (2) whether OWCP properly denied 

reimbursement for an abdominal imaging study. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

On appeal, appellant contends that Dr. John Kendall Black, Jr., a Board-certified 

orthopedic surgeon and a second opinion physician, performed only a cursory examination and 

did not thoroughly review the findings of her attending physicians. She also contended that 

OWCP wrongly disregarded her attending physician’s whole person impairment rating. 

Regarding the reimbursement issue, appellant contends that the imaging study was related to 

removal of an implanted pain pump authorized by OWCP to treat her accepted spinal injuries. 

FACTUAL HISTORY 

OWCP accepted that on August 1, 2006 appellant, then a 57-year-old nurse, sustained a 

lumbar sprain, lumbosacral neuritis, brachial neuritis, cervical disc degeneration, cervical 

stenosis at C4-5 and C5-6 and a herniated L5-S1 disc with myelopathy when she slipped and fell 

on a wet floor. It later accepted wound complications, neurologic complications, implant 

malfunction and cerebrospinal rhinorrhea due to authorized cervical and lumbar spine surgeries 

with implantation of an intrathecal pain pump. 

On March 28, 2007 Dr. Rex E.H. Arendall II, an attending Board-certified neurosurgeon, 

performed partial anterior discectomies, fusion, plate fixation, decompression and bilateral 

anterior foraminotomies at C4, C5 and C6 with anterior cord decompression and bilateral 

anterior foraminotomies at C4-5 and C5-6. On March 4, 2008 he performed anterior partial 

discectomies, fusion, plate fixation and decompression at L5 and S1 with open reduction of an 

L5-S1 disc space collapse. On March 18, 2008 Dr. Arendall performed a posterolateral fusion 

from L4 to S1. OWCP approved these procedures. 

On April 1, 2009 Dr. Arendall implanted an abdominal intrathecal pain pump with 

lumbar catheter. This was followed by surgical placement of a lumbar drain on April 8, 2009 to 

address a cerebrospinal fluid leak. OWCP approved these procedures. Dr. Arendall noted in 

reports dated January to October 2010 that appellant reported sedation and gastric side effects 

from the pump medication. He adjusted her dosage rate.2

On November 2, 2011 appellant claimed a schedule award. She submitted an August 13, 

2011 report from Dr. Arendall with his annotations on the sixth edition of the American Medical 

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

Dr. Arendall found 17 percent whole person impairment rating under Table 17-4 for appellant’s 

lumbar condition and 11 percent whole person impairment under Table 17-2 for her cervical 

spine condition. He combined these to yield 26 percent whole person impairment. Dr. Arendall 

offered an alternative rating method in an October 13, 2011 report, finding a 26 percent 

impairment of each arm under Table 15-4 and Table 15-20 of the A.M.A., Guides3

 due to class 1 

sensory and motor impairments. He found 26 percent impairment of each leg under Table 16-4 

and Table 16-11. 

                                                             2

 December 21, 2010 cervical and lumbar myelograms showed anterior extradural filling defects at C2-3, C3-4, 

C5-7, L1-2, L2-3, L3-4 and L4-5. Postmyelogram computed tomography (CT) scans showed disc bulges at L1-2, 

L3-4, L4-5, L3-4 and L4-5, with stenosis on the right at L3-4. X-rays showed C3-4 instability. 

3

 Table 15-4, pages 398 to 400 of the sixth edition of the A.M.A., Guides is titled “Elbow Regional Grid: Upper 

Extremity Impairments.” Table 15-20, page 434 of the sixth edition of the A.M.A., Guides is titled “Brachial Plexus 

Impairment-UEI.” 
3

In November 8 and 30, 2011 letters, OWCP advised appellant of the additional evidence 

needed to establish her claim. It requested her physician’s opinion addressing ratable 

impairment of a scheduled body member based on the appropriate portions of the 

July/August 2009 The Guides Newsletter. 

In a January 10, 2012 report, Dr. Arendall explained that the accepted herniated discs 

compressed nerve roots from C4 to C6 and L4 to S1, causing numbness and weakness in all 

extremities and bilaterally diminished biceps and ankle reflexes. He reiterated his prior 

impairment ratings. 

On January 12, 2012 OWCP obtained a second opinion from Dr. David A. West, an 

osteopath Board-certified in orthopedic surgery, who reviewed the medical record and a 

statement of accepted facts. Dr. West diagnosed failed cervical and lumbar spine syndromes 

causing radiculopathy in all extremities. In a January 24, 2012 supplemental report, he offered 

an impairment rating of six percent to each leg according to Table 15-14 of the A.M.A., Guides 

and July/August 2009 The Guides Newsletter. In a February 1, 2012 report, Dr. H.P., Hogshead, 

an OWCP medical adviser, reviewed Dr. West’s report. He found that Dr. West’s ratings were 

incorrect. Dr. Hogshead applied Table 2 of the July/August 2009, The Guides Newsletter to 

Dr. West’s findings to rate a 12 percent impairment of each leg. 

On February 15, 2012 Dr. Arendall surgically removed the intrathecal pain pump, 

partially removed the lumbar catheter and ligated the remaining catheter segment. 

By decision dated February 17, 2012, OWCP granted appellant schedule awards for 12 

percent impairment of each lower extremity.4

 

On March 20, 2012 appellant claimed a schedule award for upper extremity impairment. 

In an April 2, 2012 letter, OWCP advised her of the additional evidence needed to establish her 

claim, including her physician’s opinion confirming a ratable impairment based on the 

appropriate portions of the A.M.A., Guides and the July/August 2009 edition of The Guides 

Newsletter. 

Dr. Arendall referred appellant for a CT scan of the abdomen and pelvis to evaluate an 

infected postoperative seroma. An April 25, 2012 ultrasound scan showed a superficial seroma 

fluid collection at the pump site. An April 27, 2012 CT scan of the abdomen and pelvis showed 

fluid collection in the subcutaneous tissues along the left “anterior abdominal wall likely 

representing an abscess at the site of prior device placement.” On May 3, 2012 appellant 

underwent extraction of serous fluid from the pain pump site. She submitted the imaging study 

documentation to OWCP for reimbursement. 

On June 11, 2012 OWCP obtained a second opinion from Dr. Black, a Board-certified 

orthopedic surgeon, who reviewed the medical record and statement of accepted facts. Dr. Black 

performed a clinical examination noting limited cervical motion and subjective paresthesias in 

both arms. He opined that a May 21, 2012 nerve conduction velocity (NCV) and 

                                                             4

 OWCP divided the payment schedule into two periods, from January 13 to March 1, 2012 and from May 5, 

2012 to August 11, 2013. 
4

electromyography (EMG) studies obtained as part of the second opinion examination showed no 

evidence of acute or chronic upper extremity radiculopathy, no polyneuropathy and no focal 

median, ulnar, peroneal, tibial or sciatic neuropathy.5 Dr. Black explained that appellant had no 

impairment of the upper extremities originating in the spine as there was no evidence of 

radiculopathy. Dr. Hogshead concurred with Dr. Black’s rating. 

On June 28, 2012 OWCP received a copy of proposed Table 1 and Table 2 from the 

July/August 2009, The Guides Newsletter. The evidence does not reflect who authored the 

unsigned document. On Proposed Table 1, Spinal Nerve Impairments Upper Extremity 

Impairments, the equation “4+9=13” is written in the boxes for C5 and C6, totaling 26 percent 

upper extremity impairment. On Proposed Table 2, Spinal Nerve Impairment: Lower Extremity 

Impairments, 26 percent impairment is indicated for each leg due to L5 and S1 nerve root 

impairment. 

In a July 12, 2012 decision, OWCP denied appellant’s schedule award claim for the 

upper extremities. It accorded the weight of the medical evidence to Dr. Black, who explained 

that objective electrodiagnostic studies did not support any impairment of the extremities 

originating in the spine. 

Appellant requested a telephonic hearing that was held on November 16, 2012. At the 

hearing, she asserted that the electrodiagnostic studies documented nerve damage in both arms. 

Appellant also argued that the electrodiagnostic studies and Dr. Black’s examination were not 

performed in a competent manner. She described continued pain, weakness and paresthesias 

throughout both arms and hands. After the hearing, appellant submitted November 29 and 

December 5, 2012 reports from Dr. Arendall finding unchanged neck and upper extremity pain 

and paresthesias. Dr. Arendall reiterated his August 13, 2011 impairment rating. On August 23 

and September 13, 2012 he noted left lower quadrant abdominal pain with fluid collection at the 

pump site. 

In a January 31, 2013 decision, an OWCP hearing representative affirmed the July 12, 

2012 decision, finding that the evidence submitted did not establish a ratable impairment of 

either upper extremity and was insufficient to outweigh Dr. Black’s opinion. 

In a March 13, 2013 letter, OWCP advised appellant of the additional evidence needed to 

establish her claim for reimbursement of the abdominal imaging study, including a statement 

from her attending physician explaining how and why the study was related to her accepted 

injuries. In response, appellant submitted a May 23, 2012 chart note from Dr. Son D. Le, an 

attending Board-certified physiatrist, who noted that he did not evaluate her as she left prior to 

being examined. 

                                                             5

 A May 21, 2012 EMG and NCV study of both upper and lower extremities ordered by OWCP showed no 

evidence of cervical or lumbar radiculopathy, polyneuropathy, focal median or ulnar neuropathy, “peroneal, tibial or 

sciatic neuropathy, myopathy, lumbosacral plexopathy or brachial plexopathy involving the extremities.” There 

were findings of “old previous denervation findings with subsequent reinervation” consistent with multiple spine 

surgeries. 
5

By decision dated April 18, 2013, OWCP denied appellant’s claim for reimbursement of 

the April 27, 2012 abdominal imaging study. It found that the medical evidence did not support 

that the procedure was medically necessary or related her accepted conditions. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA6 and its implementing regulations7 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.8 

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

in FECA or in the regulations.9

 Because neither FECA nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the back,10 no claimant is entitled 

to such an award.11 However, in 1966, amendments to FECA modified the schedule award 

provision 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.12

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) is to be applied.13

                                                             6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 

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

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

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

11 Thomas Martinez, 54 ECAB 623 (2003). 

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

13 See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, 

Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, n.5 (January 2010). The Guides Newsletter is 

included as Exhibit 4. 
6

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a lumbar sprain, lumbosacral and brachial 

neuritis, cervical disc degeneration, cervical stenosis at C4-5 and C5-6 and a herniated L5-S1 

disc with myelopathy, surgical complications, implant malfunction and cerebrospinal rhinorrhea. 

Appellant claimed a schedule award on November 2, 2011. 

Appellant contended that the accepted cervical spine injuries caused a ratable permanent 

impairment of both arms. Although FECA does not provide for a schedule award for the back or 

spine, impairment of the extremities due to a spinal injury may be compensable.14 The Board 

finds that appellant did not submit sufficient medical evidence to establish a ratable impairment 

of either upper extremity due to the accepted cervical spinal injuries. 

Dr. Arendall, an attending physician, provided an August 13, 2011 report in which he 

rated 26 percent whole person impairment due to the lumbar and cervical conditions. This is 

insufficient to establish ratable permanent impairment as whole person impairment is not 

permitted under FECA.15 In an October 13, 2011 report, Dr. Arendall found 26 percent 

impairment of each arm under Table 15-4 and Table 15-20 of the A.M.A., Guides16 due to class 

1 sensory and motor impairments. This report is insufficient to establish ratable impairment as 

he did not clearly address how he calculated impairment under the A.M.A., Guides or why the 

impairment was not more properly rated under The Guides Newsletter. Dr. Arendall did not 

explain how he determined any grade modifiers for the diagnosed conditions.17 Thus, his rating 

is of diminished probative value. On June 28, 2012 OWCP received an undated rating under 

proposed Table 1 and Table 2 from the July/August 2009, The Guides Newsletter. There is no 

indication of who authored the unsigned document. The Board has held that a medical report 

may not be considered as probative medical evidence if there is no indication that the person 

completing the report qualifies as a “physician” as defined in 5 U.S.C. § 8102(2).18 Thus, this 

document is of no probative medical value with regard to appellant’s impairment. 

Dr. Black, a Board-certified orthopedic surgeon and second opinion physician, examined 

appellant and found that she had no ratable impairment of either arm. The May 21, 2012 EMG 

and NCV studies did not establish any neuropathy or radiculopathy unto the upper extremities. 

After reviewing the medical record, statement of accepted facts and performing a thorough 

clinical examination, Dr. Black explained in detail that appellant had no objective evidence of a 

neurologic condition originating in the spine affecting either arm. Dr. Hogshead concurred with 

                                                             14 See Thomas J. Engelhart, supra note 12. 

15 B.P., Docket No. 08-1457 (issued February 2, 2009). 

16 Table 15-4, pages 398 to 400 of the sixth edition of the A.M.A., Guides is titled “Elbow Regional Grid: Upper 

Extremity Impairments.” Table 15-20, page 434 of the sixth edition of the A.M.A., Guides is titled “Brachial Plexus 

Impairment-UEI.” 

17 See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted 

by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value 

in determining the extent of permanent impairment). 

18 R.M., 59 ECAB 690 (2008). 
7

Dr. Black’s assessment. OWCP issued its July 12, 2012 and January 31, 2013 decisions denying 

a schedule award for the upper extremities based on Dr. Black’s opinion as the weight of the 

medical evidence. The Board finds that OWCP properly accorded Dr. Black the weight of the 

medical evidence. His reports clearly explain why appellant had no objective evidence of a 

neurologic condition originating in the spine affecting either arm.19 

The Board finds that the weight of the medical evidence does not establish a ratable 

impairment of the upper extremities due to appellant’s accepted conditions. 

On appeal, appellant contends that Dr. Black performed only a cursory examination and 

did not thoroughly review the findings of her attending physicians. As noted, Dr. Black’s report 

explained that she had no ratable impairment of either upper extremity based on the lack of 

objective radiculopathy or neuropathy by diagnostic testing. His opinion was based on the 

complete medical record and a statement of accepted facts. Appellant also contends that OWCP 

wrongfully disregarded Dr. Arendall’s whole person impairment rating. However, FECA does 

not authorize schedule awards for impairment of the “whole person.”20 

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. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8103 of FECA21 provides that the United States shall furnish to an employee who 

is injured while in the performance of duty, the services, appliances and supplies prescribed or 

recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce 

the degree or the period of disability or aid in lessening the amount of the monthly 

compensation.22 In interpreting section 8103, the Board has recognized that OWCP has broad 

discretion in approving services provided under FECA. The only limitation on OWCP’s 

authority is that of reasonableness.23 Abuse of discretion is generally shown through proof of 

manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to 

both logic and probable deductions from established facts. It is not enough to merely show that 

the evidence could be construed so as to produce a contrary factual conclusion.24 

While OWCP is obligated to pay for treatment of employment-related conditions, 

appellant has the burden of establishing that the expenditure is incurred for treatment of the 

                                                             19 S.S., Docket No. 13-2044 (issued February 20, 2014). 

20 See supra note 15; D.H., 58 ECAB 358 (2007). 

21 5 U.S.C. §§ 8101-8193. 

22 Id. at § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999). 

23 Mira R. Adams, 48 ECAB 504 (1997). 

24 Daniel J. Perea, 42 ECAB 214 (1990). 
8

effects of an employment-related injury or condition.25 Proof of causal relationship in a case 

such as this must include supporting rationalized medical evidence.26 Therefore, in order to 

prove that the medical services were warranted, appellant must submit evidence to show that 

those services were for a condition causally related to the employment injury and that the 

services were medically warranted. Both of these criteria must be met in order for OWCP to 

authorize payment.27

ANALYSIS -- ISSUE 2 

OWCP accepted that appellant sustained cervical and lumbar spinal injuries. It later 

authorized implantation of an intrathecal pain pump to treat the effects of the accepted injuries. 

Dr. Arendall implanted the pump on April 1, 2009. Appellant had gastric and neurologic side 

effects leading him to remove the pump on February 15, 2012. She subsequently developed left 

lower quadrant pain and distention at the former pump site. Dr. Arendall referred appellant for 

an abdominal CT scan, performed on April 27, 2012. The CT scan revealed a postsurgical 

seroma, requiring fluid extraction. Appellant requested reimbursement for the April 27, 2012 CT 

scan. OWCP denied payment for this study by April 18, 2013 decision. It is appellant’s burden 

of proof to establish that OWCP abused its discretion by denying reimbursement. 

In its March 13, 2013 letter, OWCP explained to appellant that she needed to submit a 

statement from her attending physician addressing how the accepted injuries necessitated the 

abdominal CT scan. However, appellant did not submit such evidence. She submitted a May 23, 

2012 note from Dr. Le, an attending Board-certified physiatrist, but he did not examine her. 

Appellant also provided Dr. Arendall’s reports diagnosing a postoperative seroma at the former 

pump site. However, Dr. Arendall did not provide a report explaining why the authorized pain 

pump or its removal, necessitated the April 27, 2012 abdominal CT scan. Therefore, his opinion 

is insufficient to meet appellant’s burden of proof.28 

As appellant failed to submit supporting medical evidence, the Board finds that OWCP 

acted within its discretion in denying reimbursement of the April 27, 2012 abdominal imaging 

scan.29 Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

                                                             25 Kennett O. Collins, Jr., 55 ECAB 648 (2004). 

26 Id.

27 R.L., Docket No. 08-855 (issued October 6, 2008). 

28 Id.

29 G.A., Docket No.09-2153 (issued June 10, 2010). 
9

CONCLUSION 

The Board finds that appellant has not established that she sustained a ratable impairment 

of either upper extremity causally related to her accepted injuries. The Board further finds that 

OWCP properly denied reimbursement of the April 27, 2012 abdominal imaging study. 

ORDER 

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

Compensation Programs dated April 18 and January 31, 2013 are affirmed. 

Issued: May 7, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board