United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.T., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, NATIONAL INSTITUTES OF 

HEALTH, Bethesda, MD, Employer 

__________________________________________ 

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Docket No. 15-423 

Issued: March 26, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 16, 2014 appellant, through counsel, timely appealed a November 6, 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 the claim. 

ISSUE 

The issue is whether appellant has a ratable impairment of the left upper extremity. 

FACTUAL HISTORY 

Appellant, a 50-year-old former housekeeping aide, injured her neck and left 

arm/shoulder while lifting a cleaning cart at work on May 14, 2008. OWCP initially accepted 

left shoulder strain, but later expanded appellant’s claim to include C5-6 disc herniation. 

Surgical intervention was recommended; however, appellant had an acute myocardial infarction 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

on June 25, 2008. Because of her ongoing cardiac-related treatment, surgery to address the 

cervical condition was contraindicated. Although eligible to receive FECA wage-loss 

compensation, appellant opted instead to receive Federal Employees’ Retirement System 

benefits. 

On January 31, 2014 appellant filed a claim for a schedule award (Form CA-7). She did 

not submit any medical evidence of permanent impairment at the time. 

On February 4, 2014 OWCP sent appellant a schedule award development letter 

explaining the need to submit medical evidence in support of her claim for permanent 

impairment. It advised appellant to obtain an impairment rating from her physician in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides) (2008). OWCP further explained that, although 

FECA did not authorize schedule awards for permanent impairment of the spine, the A.M.A., 

Guides (6th ed. 2008) included a FECA-approved methodology for rating spinal nerve extremity 

impairment. Appellant was afforded at least 30 days to submit the required medical evidence in 

support of her schedule award claim. 

In a March 7, 2014 decision, OWCP denied appellant’s claim for a schedule award. It 

noted that it had not received any additional medical evidence in response to its February 4, 2014 

development letter. 

OWCP subsequently received a February 25, 2014 impairment rating from Dr. Stuart J. 

Goodman, a Board-certified neurologist,2

 who indicated that appellant suffered from a cervical 

disc herniation at C5-6, which was causally related to her May 14, 2008 work injury.3 

Dr. Goodman noted that appellant was a surgical candidate, but due to cardiac-related issues she 

did not undergo cervical surgery. He stated that appellant had residual weakness in the left upper 

extremity, as well as associated pain and discomfort, and decreased range of motion. 

Dr. Goodman found that appellant reached maximum medical improvement (MMI), assuming 

surgery was otherwise contraindicated. He rated her under Table 17-2, Cervical Spine Regional 

Grid, A.M.A., Guides 564 (6th ed. 2008). Dr. Goodman found class 2 impairment based on the 

diagnosis of single level intervertebral disc herniation with medically-documented findings (with 

or without surgery). The default rating (c) for the diagnosed condition is 11 percent whole 

person impairment.4

 Based on physical examination findings, Dr. Goodman assigned a grade 

modifier of one pursuant to Table 17-7, A.M.A., Guides 576 (6th ed. 2008).5

 He then found 

appellant had 12 percent impairment of the “left upper extremity.”6

 2

 Counsel submitted Dr. Goodman’s report under cover letter dated March 10, 2014. 

3

 Dr. Goodman noted that OWCP also accepted appellant’s claim for left shoulder sprain (ICD-9 840.9). 

4 See Table 17-2, A.M.A., Guides 564 (6th ed. 2008). 

5

 Dr. Goodman did not discuss adjustments for other nonkey factors such as clinical studies and/or functional 

history. See Table 17-5, A.M.A., Guides 575 (6th ed. 2008). 

6

 Dr. Goodman recommended that appellant follow up with her treating spinal surgeon. He also suggested an 

electromyography and nerve conduction velocity study to determine if this process was just chronic or if it was still 

active. Dr. Goodman stated that this information would be relevant for purposes of reevaluation for possible 

surgery. 
3

On June 24, 2014 counsel timely requested reconsideration and referenced 

Dr. Goodman’s February 25, 2014 impairment rating, which OWCP had not previously 

considered. 

By decision dated November 6, 2014, OWCP reviewed the merits of appellant’s claim, 

but denied modification. It found Dr. Goodman’s report speculative on the issue of whether 

appellant had reached MMI. 

LEGAL PRECEDENT 

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.7 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 under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.8

 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2008).9

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

specified in FECA or the implementing regulations.10 Neither FECA nor the 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.11 However, a schedule award is permissible where the employment-related back 

condition affects the upper and/or lower extremities.12 The A.M.A., Guides (6th ed. 2008) 

provides a specific methodology for rating spinal nerve extremity impairment.13 It was designed 

for situations where a particular jurisdiction, such as FECA, mandated ratings for extremities and 

precluded ratings for the spine.14 The rating methodology is premised on evidence of 

radiculopathy affecting the upper and/or lower extremities.15

 7

 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

8

 20 C.F.R. § 10.404 (2014). 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

10 W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006). 

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

12 Supra note 9 at Part 2, Chapter 2.808.6a(3) (February 2013). 

13 Id. at Part 3, Chapter 3.700, Exhibit 4 (January 2010). 

14 Id.

15 Id. 
4

ANALYSIS 

OWCP initially denied appellant’s claim because she had not submitted any medical 

evidence demonstrating a ratable impairment. It subsequently received Dr. Goodman’s 

February 25, 2014 impairment rating. Dr. Goodman did not specifically rate appellant for her 

accepted left shoulder strain. Instead, he rated her under Table 17-2, Cervical Spine Regional 

Grid, A.M.A., Guides 564 (6th ed. 2008). Dr. Goodman found class 2 impairment based on 

single level intervertebral disc herniation. This diagnosis corresponds to a default rating (c) of 

11 percent whole person impairment under Table 17-2. OWCP previously advised appellant that 

schedule awards were not available for whole person impairment and/or impairment of the spine. 

Having cited Table 17-2, Dr. Goodman concluded, with no explanation, that appellant 

had 12 percent impairment of the “left upper extremity.” As noted, Table 17-2 addresses whole 

person impairment of the spine, not upper extremity impairment. In its February 4, 2014 

schedule award development letter, OWCP provided appellant clear instructions regarding the 

FECA-approved methodology for rating spinal nerve extremity impairment. The Board finds 

that Dr. Goodman’s February 25, 2014 impairment rating is inconsistent with FECA and the 

A.M.A., Guides (6th ed. 2008). Accordingly, appellant failed to establish that she has a ratable 

impairment of the left upper extremity impairment.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 

Appellant failed to establish that she has a ratable impairment of the left upper extremity. 

 16 Regarding the issue of maximum medical improvement, before a schedule award may be made, it must be 

medically determined that no further improvement can be anticipated and the impairment must reach a fixed and 

permanent state, which is known as maximum medical improvement. While additional medical treatment such as 

surgery may be recommended in order to improve the claimant’s condition, the claimant is not required to undergo 

such treatment. Under the circumstances, OWCP must calculate the percentage of a schedule award as if no further 

improvement were possible if the claimant declined such intervention. See P.L., Docket No. 13-1340 (issued 

October 28, 2013). See also supra note 9 at Part 3, Chapter 3.700.3a(1). (January 2010) 
5

ORDER 

IT IS HEREBY ORDERED THAT the November 6, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 26, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board