United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

DEPARTMENT OF THE NAVY, 

PORTSMOUTH NAVAL SHIPYARD, 

Portsmouth, NH, Employer 

__________________________________________ 

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Docket No. 14-1747 

Issued: September 14, 2015 

Appearances: Case Submitted on the Record

James Noucas, Jr., Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant, through his attorney, filed a timely appeal from a 

February 21, 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 has more than a seven percent employment-related 

permanent impairment to his right upper extremity. 

FACTUAL HISTORY 

On July 20, 2007 appellant, then a 52-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on July 9, 2007 he sustained injuries when he fell on a stairway in the 

 1

 5 U.S.C. § 8101 et seq. 
2

performance of duty. OWCP accepted the claim for right shoulder and upper arm contusions, 

and closed fracture of two ribs. 

Appellant underwent right shoulder arthroscopic surgery on April 20, 2009 to repair a 

torn rotator cuff. On the issue of continuing disability, OWCP referred appellant for a second 

opinion examination by Dr. John Walsh, Jr., a Board-certified orthopedic surgeon. In a report 

dated December 2, 2011, Dr. Walsh opined that appellant’s employment-related diagnoses 

included right rotator cuff rupture and chronic right C7 radiculopathy. 

With respect to a permanent impairment, appellant submitted a June 29, 2012 report from 

Dr. Walsh.2

 He stated that, under Table 15-5 of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (sixth edition, hereinafter the A.M.A., Guides), with a 

diagnosis of full-thickness tear of the rotator cuff with residual loss, the right arm impairment 

was 13 percent. 

OWCP referred the case to Dr. Morley Slutsky, an OWCP medical adviser, for an 

opinion as to permanent impairment. In a report dated April 2, 2013, an OWCP medical adviser 

opined that a proper application of Table 15-5 resulted in a seven percent right arm impairment 

for the diagnosed rotator cuff tear. 

Appellant submitted a June 6, 2013 report from Dr. Walsh, who stated that it appeared 

the main difference between his opinion and Dr. Slutsky’s opinion was the inclusion of 

radiculopathy. He stated that he agreed with the seven percent for the rotator cuff tear. 

Dr. Walsh stated that the lack of a distinctive structural diagnosis on which to base a diagnosisbased impairment rating made it difficult to rate the right C7 radiculopathy, but under Table 17-2 

of the A.M.A., Guides there was a six percent impairment under “single level motion segment 

lesions.” In his opinion, this represented the closest diagnostic category on which to base the 

rating. 

By letter dated June 27, 2013, OWCP advised appellant that a conflict in the medical 

evidence existed between Drs. Walsh and Slutsky, and appellant was referred to Dr. Frank Graf, 

a Board-certified orthopedic surgeon, for an impartial medical evaluation. Appellant’s 

representative submitted a letter dated July 8, 2013, requesting that OWCP ask Dr. Graf whether 

the C7 radiculopathy was employment related. 

In a report dated July 31, 2013, Dr. Graf provided a history and results on examination. 

He diagnosed right chest wall injury with rib fractures, rotator cuff rupture, and axial stretch 

injuries to the C7 nerve root. Dr. Graf opined that appellant had a 13 percent impairment under 

Table 15-5, and a 4 percent impairment under The Guides Newsletter for C7 radiculopathy with 

moderate sensory deficit, for a total of 16 percent impairment of the right upper extremity. In a 

report dated November 19, 2013, he stated that the date of maximum medical improvement was 

six months after the April 20, 2009 surgery. 

 2

 Although appellant was initially referred to Dr. Walsh for a second opinion examination, the record indicates 

that Dr. Walsh subsequently became a treating physician. 
3

In a report dated December 1, 2013, Dr. Robert Y. Pick, a second OWCP medical 

adviser, opined that appellant’s right arm impairment was seven percent under Table 15-5 of the 

A.M.A., Guides. With respect to C7 radiculopathy, the medical adviser stated that the statement 

of accepted facts (SOAF) did not mention or reference C7 radiculopathy. The date of maximum 

medical improvement was reported as the date of Dr. Graf’s evaluation. 

By decision dated February 21, 2014, OWCP issued a schedule award for seven percent 

right arm impairment. The period of the award was 21.84 weeks commencing March 10, 2013.3

LEGAL PRECEDENT 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.4

 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.6

 

With respect to a shoulder impairment, the A.M.A., Guides provide a regional grid at 

Table 15-5. The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then 

the default value for the identified CDX is determined. The default value (grade C) may be 

adjusted by using grade modifiers for Functional History (GMFH) Table 15-7, Physical 

Examination (GMPE) Table 15-8 and Clinical Studies (GMCS) Table 15-9. The adjustment 

formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).7

 

For peripheral nerve impairments to the upper or lower extremities resulting from spinal 

injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition” (July/August 2009) is to be applied.8 

 3

 OWCP stated the MMI date was June 29, 2012, but appellant had received compensation through 

March 9, 2013. 

4

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

5 A. George Lampo, 45 ECAB 441 (1994). 

6

 FECA Bulletin No. 09-03 (issued March 15, 2009). 

7

 A.M.A., Guides 411. The net adjustment is up to +2 (grade E) or -2 (grade A). 

8 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 (January 2010). The Guides Newsletter is included as Exhibit 4. 
4

ANALYSIS 

In the present case, OWCP found there was a conflict under 5 U.S.C. § 8123(a) between 

attending physician, Dr. Walsh and an OWCP medical adviser. The Board finds, however, that 

there was no conflict in the medical evidence, as Dr. Walsh had not properly applied the A.M.A., 

Guides. In his June 29, 2012 report, Dr. Walsh had incorrectly applied Table 15-5. Under this 

table, for the diagnosis provided of rotator cuff injury, full-thickness tear, the default (grade C) 

impairment is five percent.9 The maximum (grade E) impairment is seven percent. OWCP 

medical adviser used the net adjustment formula and found appellant was entitled to the 

maximum seven percent based on grade modifier two for functional history and physical 

examination. 

In his June 6, 2013 report, Dr. Walsh concurred with the medical adviser as to the seven 

percent. He then opined that appellant had a C7 impairment under Table 17-2, but this table is 

for cervical spine impairments and provides a whole person impairment. Neither is appropriate 

under FECA, as the spine is not a scheduled member and whole person impairments are not 

utilized.10 Therefore Dr. Walsh’s reports are insufficient to create a conflict, as their only 

disagreement was related to an improper application of the A.M.A., Guides. When a physician 

refers to spinal impairments, the opinion is of little probative value and is not sufficient to create 

a conflict.11 

Therefore OWCP’s referral to Dr. Graf is as a second opinion physician.12 With respect 

to his opinion regarding rotator cuff tear, as noted above, Table 15-5 provides a maximum of 

seven percent. Dr. Graf incorrectly found the maximum was 13 percent under Table 15-5, as 

Dr. Walsh had done in his June 29, 2012. The appropriate maximum impairment, for a rotator 

cuff full-thickness tear, is seven percent under Table 15-5.13 

The remaining issue is whether there is an additional impairment based on C7 

radiculopathy. Dr. Pick, the second medical adviser, states in his December 1, 2013 report that 

C7 radiculopathy was not mentioned in the SOAF. Dr. Walsh opined that the radiculopathy was 

employment related. There is no indication that Dr. Graf was specifically asked for an opinion 

on this issue, but his July 31, 2013 report appeared to consider the C7 radiculopathy as related to 

the employment injury. He discussed the diagnosis in connection with other employment-related 

injuries and provided an opinion as to permanent impairment. 

The case will be remanded to OWCP to request clarification from Dr. Graf regarding 

causal relationship between C7 radiculopathy and the employment injury, and any impairment in 

 9

 A.M.A., Guides 403, Table 15-5. The five percent default impairment is for residual loss, functional with 

normal motion. The default impairment for residual symptoms without consistent objective findings is three percent. 

10 See M.P., Docket No. 14-777 (issued July 18, 2014). 

11 G.C., Docket No. 11-82 (issued October 12, 2011). 

12 See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). 

13 Supra note 9. 
5

accordance with The Guides Newsletter. The Board notes that, under proposed Table 1, the 

default impairment for a moderate C7 sensory deficit is two percent, not four percent as reported 

by Dr. Graf.14 OWCP should also clarify the date of MMI in this case. In the December 1, 2013 

report, Dr. Pick referred to the date of Dr. Graf’s evaluation on July 31, 2013, but OWCP 

indicated in its decision that MMI was June 29, 2012, the date of a report from Dr. Walsh. After 

such further development as is deemed necessary, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds the case is not in posture for decision and is remanded to OWCP for 

further development of the evidence. 

ORDER 

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

Compensation Programs dated February 21, 2014 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: September 14, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

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

(July/August 2009).