United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF THE ARMY, GUTHRIE 

CLINIC, Fort Drum, NY, Employer 

__________________________________________ 

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Docket No. 15-503 

Issued: June 12, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 7, 2015 appellant filed a timely appeal from a December 17, 2014 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 established permanent impairment of the right upper 

extremity. 

FACTUAL HISTORY 

On July 9, 2012 appellant, then a 42-year-old nursing assistant, was injured when she 

slipped and fell on the floor at work. Her claim was initially accepted for cervical radiculopathy 

and later expanded to include displacement of cervical intervertebral disc without myelopathy at 

 1

 5 U.S.C. § 8101 et seq. 
2

C4-5.2

 Appellant stopped work on July 9, 2012 and returned to work on August 13, 2012. Later, 

she stopped work again on April 15, 2013 and returned on September 9, 2013. Appellant 

received appropriate continuation of pay and wage-loss compensation. 

On September 12, 2013 appellant claimed a schedule award and provided a 

September 24, 2013 report from Dr. Baird who advised that appellant complained of numbness 

and tingling of the right upper extremity that radiated down to her neck and hand. Dr. Baird 

noted that electrodiagnostic studies performed in June 2013 revealed chronic right C5-6 

radiculopathy. On physical examination he found decreased sensation in the back and volar 

aspect of the thumb, index finger and palm, no peripheral edema, and tenderness with palpation 

at the base of the cervical spine right of midline. Dr. Baird reported an impression of right arm 

cervical radiculopathy likely due to adjacent level degenerative changes. He reported that 

appellant had a significant limitation use of the right upper extremity secondary to her discomfort 

and sensory defects. Dr. Baird opined that appellant had 60 percent loss of the use of the right 

upper extremity compared to what she had prior to the work incident. 

By letter dated October 23, 2013, OWCP advised appellant that the medical evidence was 

insufficient to establish that she sustained a permanent impairment to the right upper extremity 

because she failed to submit an impairment rating in conformance with the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment. OWCP 

requested that she obtain such a report from her treating physician. 

Appellant submitted letters informing OWCP that she was unable to find a physician 

willing to perform an impairment rating in accordance with the sixth edition of the A.M.A., 

Guides. By letter dated November 7, 2013, she asked that OWCP schedule an appointment for 

an impairment rating. 

On December 20, 2013 OWCP referred appellant, together with the medical record and a 

statement of accepted facts, to Dr. Sury Putcha, a Board-certified orthopedic surgeon, for an 

impairment evaluation. In a January 8, 2014 report, Dr. Putcha noted appellant’s history and 

reviewed her medical record. He advised that in 2008 appellant had an anterior cervical 

discectomy and fusion at C5-6 and placement of plate and screws for disc degeneration, disc 

protrusion, and right arm pain. On physical examination Dr. Putcha noted that appellant’s neck 

movements were somewhat restricted, she was able to turn right and left to 60 degrees, extend 45 

degrees, and lateral flex about 20 degrees, and that she did not display muscle spasm in her 

cervical spine within those range of movements. He further noted that the right arm was 

generally weaker than the left, specifically her right hand’s grip strength was 35 pounds 

compared to 75 pounds on the left. Dr. Putcha advised that appellant’s fine motor movements 

were intact, there was no thenar or hypothenar atrophy, she complained of numbness in the 

thumb and index finger, and her push-pull strength of the right arm was limited secondary to 

pain. He stated that findings from a 2013 cervical spine magnetic resonance imaging (MRI) scan 

showed mild disc protrusions on the right at C4-5 and C6-7 but no nerve compression. 

 2

 On July 12, 2012 Dr. Bruce Baird, a Board-certified orthopedic surgeon, advised that appellant had neck pain 

radiating to the right arm after an injury at work on July 9, 2012. He advised that a computerized tomography scan 

of the cervical spine did not show a fracture. Dr. Baird noted that appellant had a C5-6 anterior cervical 

decompression and fusion in 2008. Cervical spine x-rays showed no change compared to 2009 films and indicated 

that there was no failure of the plate hardware or any significant adjacent level degenerative changes. Dr. Baird 

diagnosed cervical sprain and potential right arm cervical radiculopathy. 
3

Dr. Putcha diagnosed soft tissue injury to the neck resulting in radicular symptoms to the right 

upper extremity without conclusive evidence of nerve root compressions at C4-5 or C6-7. He 

opined that appellant’s disc bulges of C4-5 and C6-7 levels were preexisting in nature secondary 

to cervical degenerative disc disease and her preexisting fusion of C5-6 level. Dr. Putcha 

advised that appellant reached maximum medical improvement on July 8, 2013. He further 

advised that using the sixth edition of the A.M.A., Guides and The Guides Newsletter there was 

no nerve root related disability attributable to the July 9, 2012 injury. 

On March 4, 2014 an OWCP medical adviser reviewed Dr. Putcha’s report and agreed 

that there was no permanent impairment to the right upper extremity due to the July 9, 2012 

work injury. He explained that, because Dr. Putcha could not find any nerve root involvement 

relating to the work incident, he could not use the peripheral nerve impairment tables. The 

medical adviser noted that there was a difference of opinion between Dr. Putcha’s report and an 

earlier second opinion report;3

 however, he explained that the impairment rating would be the 

same because the earlier report also failed to find any objective neuropathy on examination. 

By decision dated March 28, 2014, OWCP found that medical evidence was insufficient 

to establish that appellant sustained a permanent impairment to a scheduled member due to the 

accepted work injury. 

By letter dated April 9, 2014, appellant requested an oral hearing. In an April 3, 2014 

statement, she advised that although she had a preexisting cervical condition that required 

surgery in 2008, appellant was free from pain and residuals until her July 9, 2012 work injury. 

She also alleged that during her examination, Dr. Putcha’s conduct was inappropriate and 

harassing. 

On November 5, 2014 an oral hearing took place. Appellant reiterated that Dr. Putcha 

was inappropriate during her examination and noted that after the examination she reported his 

conduct to the company that scheduled the appointment. She also noted that Dr. Putcha told her 

that she had a 10 percent impairment of the right upper extremity using Table 13-11 on page 335 

of the A.M.A., Guides. The hearing representative advised appellant that Table 13-11 dealt with 

whole-person impairment which could not be used for impairment ratings under FECA. The 

hearing representative also advised appellant that if her attending physician disagreed with 

Dr. Putcha’s rating, he could submit a report in writing. 

By decision dated December 17, 2014, an OWCP hearing representative affirmed the 

denial of a schedule award. 

 3

 In a May 20, 2013 report, Dr. Gregory Shankman, a Board-certified orthopedic surgeon and OWCP referral 

physician with respect to whether appellant had work-related residuals, diagnosed an employment-related cervical 

herniated disc. He indicated that appellant had good strength in the muscle groups. Appellant had intact radial, 

median, and ulnar nerve function of both hands with good sensation to light touch and pinprick. Dr. Shankman was 

not asked to address permanent impairment. 
4

LEGAL PRECEDENT 

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his or her employment.4

 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.5

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.6 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, schedule awards 

are determined in accordance with the sixth edition of the A.M.A., Guides.

8

 

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.9

 In 

1960, 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. Therefore, as 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to 

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.10 

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.11 OWCP has 

adopted this approach for rating impairment to the upper or lower extremities caused by a spinal 

injury.12 

 4 Veronica Williams, 56 ECAB 367 (2005). 

5

 5 U.S.C. § 8107. 

6 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

7

 20 C.F.R. § 10.404. 

8

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010). 

9 Pamela J. Darling, 49 ECAB 286 (1998). 

10 Thomas J. Engelhart, 50 ECAB 319 (1999). 

11 L.J., Docket No. 10-1263 (issued March 3, 2011). 

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

(January 2010). 
5

ANALYSIS 

OWCP accepted the claim for cervical radiculopathy and displacement of cervical 

intervertebral disc without myelopathy. The Board finds that OWCP properly determined that 

appellant did not sustain a permanent impairment of the right upper extremity related to the 

July 9, 2012 work incident. 

Appellant submitted a September 24, 2013 report from Dr. Baird, who noted findings and 

reported an impression of right arm cervical radiculopathy likely due to adjacent level 

degenerative changes. Dr. Baird stated that appellant had a significant limitation to use of the 

right arm secondary to her discomfort and sensory defects. He opined that she had 60 percent 

loss of the use of the right arm compared to what she had prior to the work injury. This report is 

of limited probative value as Dr. Baird did not address permanent impairment pursuant to the 

A.M.A., Guides or The Guides Newsletter. The Board has held that schedule awards are to be 

based on the A.M.A., Guides. An estimate of permanent impairment is irrelevant and not 

probative where it is not based on the A.M.A., Guides.

13

Thereafter, OWCP referred her to Dr. Putcha for an impairment evaluation. On 

January 8, 2014 Dr. Putcha referenced the A.M.A., Guides and The Guides Newsletter, but found 

no basis on which to attribute permanent impairment to appellant’s accepted conditions. On 

examination Dr. Putcha found that appellant’s neck movements were somewhat restricted, noted 

neck ranges of motion, and advised that she did not display acute muscle spasm in her cervical 

spine within those range of movements. He further noted that the right arm’s strength was 

generally weaker that the left. Dr. Putcha advised that her fine motor movements were intact, 

there was no thenar or hypothenar atrophy, she complained of numbness in the thumb and index 

finger, and her push-pull strength of the right arm was limited secondary to pain. He noted that 

appellant reported right arm radicular symptoms, but he advised that there was no conclusive 

evidence of nerve root compression at C4-5 and C6-7, noting findings from a 2013 MRI scan 

study. Dr. Putcha further explained that her problems at C5-6 were due to her preexisting 

condition. He concluded that he could find no nerve root related disability that was attributable 

to the July 9, 2012 injury. 

In a March 4, 2014 report, an OWCP medical adviser concurred with Dr. Putcha’s 

opinion that there was no objective basis on which to rate impairment for the right arm 

attributable to the July 9, 2012 injury. 

The Board finds that the weight of the medical evidence rests with Dr. Putcha and OWCP 

medical adviser. Dr. Putcha’s report provided an accurate factual and medical history and 

provided detailed findings on examination to support his opinion. OWCP medical adviser 

agreed with Dr. Putcha finding that there was no medical evidence of record that provided 

findings to support permanent impairment of the right arm under the A.M.A., Guides. The 

Board finds that there is no probative medical evidence of record, in conformance with the sixth 

edition of the A.M.A., Guides, establishing that appellant has a permanent impairment of the 

right upper extremity or other scheduled body member. 

 13 Shalanya Ellison, 56 ECAB 150, 154 (2004). 
6

On appeal appellant alleged misconduct by Dr. Putcha. However, she did not provide 

any corroborative evidence to support her allegations. The Board has held that it is a claimant’s 

burden of proof to support misconduct allegations.14 Appellant also argued that OWCP should 

consider her constant discomfort and the impact that the accepted conditions will have on her life 

henceforth. However, the Board has held that factors such as limitations on daily activities have 

no bearing on the calculation of a schedule award.15 

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 permanent impairment to the right 

upper extremity due to her accepted employment condition. 

ORDER 

IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 14 Geraldine Foster, 54 ECAB 435 (2003). 

15 Kimberly M. Held, 56 ECAB 670 (2005).