United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-0558 

Issued: August 5, 2016 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 3, 2016 appellant, through her representative, filed a timely appeal from a 

December 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2

 (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 established permanent impairment due to her workrelated injuries, warranting a schedule award. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 

20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. 

Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, 

subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of 

fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

On August 18, 2011 appellant, then a 51-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained cervical and lumbar injuries 

as of July 11, 2011 due to repetitive lifting, casing, throwing packages, and standing on concrete 

floors. She stopped work on July 11, 2011. Appellant sought treatment with her treating 

physician, Dr. Samy F. Bishai, Board-certified in emergency medicine. 

By decision dated November 9, 2011, OWCP accepted the claim for cervical radiculitis; 

lumbosacral radiculitis; closed dislocation of fourth, fifth, sixth, and seventh cervical vertebra; 

herniated cervical disc at C4-5; herniated lumbar disc at L5-S1; and headache. Appellant 

received retroactive compensation on the periodic rolls as of July 11, 2011. 

On December 14, 2012 OWCP proposed terminating appellant’s medical benefits for the 

accepted conditions of cervical and lumbar radiculitis; headache; and closed dislocation of the 

fourth, fifth, sixth, and seventh cervical vertebrae.3 It found that the weight of the medical 

evidence rested with the reports of the second opinion and referee physicians who opined that 

her accepted conditions had resolved and she was not experiencing any residuals or disability 

connected to the July 11, 2011 employment injury.4 The termination was finalized on 

January 18, 2013. 

Appellant disagreed with the January 18, 2013 decision and requested an oral hearing 

before the Branch of Hearings and Review. 

By decision dated April 9, 2013, an OWCP hearing representative reversed the 

January 18, 2013 termination decision, finding that OWCP failed to meet its burden of proof to 

terminate medical compensation benefits. It remanded the case for further development of the 

medical evidence and requested OWCP obtain an addendum report from Dr. Dinenberg seeking 

clarification. The hearing representative noted that the medical evidence of record clearly 

supported that appellant continued with residuals and disability as a result of the accepted 

herniated disc condition.5

 

 3

 The notice of proposed termination related that not all of appellant’s medical benefits would be terminated. 

Appellant’s claim would be accepted for the conditions of cervical spine strain, aggravation of cervical disc 

herniation at C4-5 mild disc protrusion, lumbar spine strain, and aggravation of lumbar disc herniation at L5-S1, 

with minimal disc herniation, which would remain open for medical treatment. 

4

 On April 27, 2012 OWCP referred appellant for a second opinion examination with Dr. William Dinenberg, a 

Board-certified orthopedic surgeon. Due to a conflict of medical opinion between Dr. Dinenberg and Dr. Bishai, the 

primary treating physician regarding her diagnosis, residuals and disability status, OWCP referred her for an 

independent medical examination (referee) with Dr. Fabio Fiore, a Board-certified orthopedic surgeon, on 

October 2, 2012. Dr. Fiore opined that there was no evidence of cervical dislocations and/or cervical and lumbar 

radiculitis, but noted that appellant had chronic cervical and lumbar sprain and L5-S1 and C4-5 disc herniations, as 

well as preexisting degenerative disc disease in the cervical and lumbar spine. Based upon the cervical and lumbar 

disc herniations, Dr. Fiore advised she continue with permanent restrictions as she could not resume her date-ofinjury position. 

5

 The hearing representative noted that OWCP should not have terminated wage-loss compensation benefits at 

any point, as the decision stated that medical benefits only were being terminated. 
3

Upon further development of the medical evidence on remand, OWCP issued a June 19, 

2013 de novo decision accepting appellant’s claim for herniated cervical disc at C4-5, herniated 

lumbar disc at L5-S1, and headache.6 It noted that the evidence did not show that the conditions 

of cervical and lumbar radiculitis and closed dislocation of the fourth, fifth, sixth, and seventh 

cervical vertebrae should be added to her claim. 

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

In a December 23, 2013 impairment rating evaluation, Dr. Bishai provided findings on 

physical examination and review of diagnostic studies. He reported that a nerve conduction 

study of the lower extremities showed evidence of L5 nerve root radiculopathy on both the right 

and left sides. An electrodiagnostic study of the upper extremities showed C6 nerve root 

radiculopathy on both the right and left sides. Dr. Bishai diagnosed cervical disc syndrome, 

herniated cervical disc at C5-6 with bilateral radiculopathy, chronic cervical strain, lumbar disc 

syndrome, chronic lumbosacral strain, disc protrusion (herniation) at L5-S1, facet arthropathy at 

L4-5, bilateral radiculopathy of the lower extremities, bilateral radiculopathy of the upper 

extremities, muscle strain of the thoracic region of the spine, and synovial cyst or restrospinal 

ganglion just posterior inferior to the right L4-5 facet joint. 

Dr. Bishai referred to The Guides Newsletter, Rating Spinal Nerve Extremity Impairment, 

based on impairment resulting from the radiculopathy, i.e., the spinal nerve injury.7

 He 

determined the class of diagnosis, provided grade modifiers, and applied the net adjustment 

formula for bilateral radiculopathy of the lower extremities using the lumbar spine regional grid 

to calculate 16 percent impairment of each lower extremity. Dr. Bishai then applied the net 

adjustment formula for bilateral radiculopathy of the upper extremities using the cervical spine 

regional grid to calculate 12 percent permanent impairment of each upper extremity. 

OWCP routed the case record, along with Dr. Bishai’s report, to Dr. Howard P. 

Hogshead, an OWCP district medical adviser (DMA) and Board-certified orthopedic surgeon, 

for review and determination on whether appellant sustained a permanent impairment of the right 

arm and date of maximum medical improvement (MMI). It informed the DMA that the accepted 

work-related conditions were displacement of cervical intervertebral disc without myelopathy, 

displacement of lumbar intervertebral disc without myelopathy, and headache. 

In a January 5, 2015 report, Dr. Hogshead reviewed Dr. Bishai’s impairment evaluation 

and noted that the report contained no date of MMI and MMI was not established in the case 

record. He disagreed with Dr. Bishai’s assessment that appellant had radiculopathy involving 

the bilateral upper and lower extremities, noting that the multiple diagnostic studies performed 

all differed in findings and interpretation. Moreover, none of the studies identified a 

radiculopathy in order to establish an impairment rating to the spinal nerve deficit. 

Dr. Hogshead reported that numerous magnetic resonance imaging scan studies of the cervical 

and lumbar spine did not mention the findings which might normally be expected to result in a 

radicular motor or sensory loss. He concluded that the recommendations for impairment by 

 6

 OWCP based its decision on Dr. Dinnenberg’s May 31, 2013 addendum report. 

7 The Guides Newsletter, 6th ed. (July/August 2009). 
4

Dr. Bishai were without substance or medical credibility and concluded that appellant did not 

establish any permanent impairment to a member or function of the body. 

By letter dated January 9, 2015, OWCP advised appellant that it had received 

Dr. Bishai’s December 23, 2013 medical report, but that the medical evidence of record did not 

indicate that she had reached MMI. It attached the DMA Dr. Hogshead’s January 5, 2015 report 

and requested that she submit an impairment evaluation from her attending physician in 

accordance with the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) (6th ed. 2009). OWCP afforded her 30 days to submit the 

requested impairment evaluation. Appellant did not respond within the allotted time. 

By decision dated February 25, 2015, OWCP denied appellant’s claim for a schedule 

award as the evidence of record was insufficient to establish that she sustained any permanent 

impairment to a member or function of the body. It noted that her claim was accepted for 

herniated cervical disc at C4-5, herniated lumbar disc at L5-S1, and headache. OWCP based its 

decision on Dr. Hogshead’s January 5, 2015 report, which found that there were no objective 

findings to support impairment of the upper or lower extremities attributable to her spinal 

condition. 

On March 2, 2015 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. 

In support of her claim, appellant submitted an updated January 20, 2015 impairment 

evaluation from Dr. Bishai. Dr. Bishai provided findings on physical examination and reported 

that appellant reached MMI on January 20, 2015. He noted that her diagnosis of radiculopathy 

was based on symptomatology, physical findings, and clinical examination. Dr. Bishai explained 

that eletrodiagnostic studies performed revealed radiculopathy of the L5 nerve root on both the 

right and left sides, as well as C6 nerve root radiculopathy on both the right and left sides. He 

based his impairment ratings on bilateral radiculopathy of the lower extremities and bilateral 

radiculopathy of the upper extremities. Using the sixth edition of the A.M.A., Guides8

 and

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment, Dr. Bishai calculated 

16 percent impairment of each lower extremity and 12 percent impairment of each upper 

extremity. 

A hearing was held on October 13, 2015 before an OWCP hearing representative. 

Appellant’s representative argued that she had radiculopathy of both the upper and lower 

extremities, yet the claims examiner failed to upgrade her conditions. He noted that Dr. Bishai 

diagnosed multiple conditions which were not addressed by OWCP and the physician’s report 

established permanent impairment of both the upper and lower extremities. The hearing 

representative noted that Dr. Bishai’s January 20 and December 23, 2015 reports were very 

similar other than identifying a date of MMI in the latter report. She noted that the DMA 

reviewed the initial December 23, 2015 report and found that the results of the studies provided 

different findings, none of which identified radiculopathy. Counsel argued that the DMA failed 

to review appellant’s nerve conduction velocity and electromyography studies. The record was 

held open for 30 days. No reply was received by appellant. 

 8

 A.M.A., Guides (2009). 
5

By decision dated December 16, 2015, the OWCP hearing representative affirmed 

OWCP’s February 25, 2015 schedule award decision, finding that the medical evidence of record 

was insufficient to establish that she sustained any permanent impairment to a member or 

function of the body. It noted that there was no objective radiographic evidence of radiculopathy 

affecting the upper or lower extremities to establish entitlement to a schedule award. 

LEGAL PRECEDENT 

The schedule award provisions of FECA and its implementing regulations 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.9 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 (6th ed. 2009) has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.10

It is the claimant’s burden to establish that she has sustained a permanent impairment of 

the scheduled member or function as a result of any employment injury.11 OWCP procedures 

provide that, to support a schedule award, the file must contain competent medical evidence, 

which shows that the impairment has reached a permanent and fixed state and indicates the date 

on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can 

be visualized on review and computes the percentage of impairment in accordance with the 

A.M.A., Guides.

12

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 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 a 

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

impairment originated in the spine.14

 9

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

10 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth 

edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

11 Tammy L. Meehan, 53 ECAB 229 (2001). 

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

Chapter 2.808.5 (February 2013). 

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

14 Thomas J. Engelhart, 50 ECAB 319 (1999). 
6

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

spinal nerve injuries as extremity impairment.15 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.16 FECA approved methodology is premised on evidence of 

radiculopathy affecting the upper and/or lower extremities.17

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.18

ANALYSIS 

The issue is whether appellant established permanent impairment due to her work-related 

injuries. The Board finds this case is not in posture for decision. 

On November 9, 2011 OWCP accepted the claim for cervical radiculitis; lumbosacral 

radiculitis; closed dislocation of fourth, fifth, sixth, and seventh cervical vertebra; herniated 

cervical disc at C4-5; herniated lumbar disc at L5-S1; and headache. On January 18, 2013 it 

proposed to terminate medical benefits for the following medical conditions: cervical radiculitis; 

lumbosacral radiculitis, closed dislocation of the fourth, fifth, sixth, and seventh cervical 

vertebrae, and headache. The termination was finalized on January 18, 2013. By decision dated 

April 9, 2013, the OWCP hearing representative reversed the January 18, 2013 decision finding 

that OWCP failed to meet its burden of proof to terminate medical compensation benefits and 

remanded the case for further development. In a June 19, 2013 de novo decision, OWCP 

accepted appellant’s claim for herniated cervical disc at C4-5, herniated lumbar disc at L5-S1, 

and headache. However, it briefly noted that the evidence did not show that the conditions of 

cervical and lumbar radiculitis and closed dislocation of the fourth, fifth, sixth, and seventh 

cervical vertebrae should be added to her claim. 

Subsequently, appellant filed a claim for a schedule award and submitted a December 23, 

2013 impairment evaluation from Dr. Bishai, her treating physician. On January 5, 2015 OWCP 

routed the case record, along with Dr. Bishai’s report, to Dr. Hogshead serving as the DMA, for 

review and a determination on whether appellant sustained a permanent partial impairment and 

date of MMI. However, OWCP failed to provide Dr. Hogshead an accurate statement of 

accepted facts (SOAF) or proper instructions pertaining to appellant’s impairment rating for 

schedule award purposes. 

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

(January 2010). 

16 See G.N., Docket No. 10-850 (issued November 12, 2010); see also id., at Chapter 3.700, Exhibit 1, note 6 

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

17 Supra note 12 at Chapter 2.808.5(c)(3) (February 2013).

18 Id. at Chapter 2.808.6(d) (February 2013). 
7

The Board notes that OWCP’s January 5, 2015 request for review of an impairment 

rating advised Dr. Hogshead that the accepted work-related conditions were displacement of 

cervical intervertebral disc without myelopathy, displacement of lumbar intervertebral disc 

without myelopathy, and headache. It did not include the previously accepted conditions of 

cervical radiculitis; lumbosacral radiculitis; and closed dislocation of fourth, fifth, sixth, and 

seventh cervical vertebra. While OWCP’s previously issued June 19, 2013 decision determined 

that the aforementioned conditions had resolved, this does not in itself preclude a claimant from 

establishing an employment-related permanent impairment.19

The Board has held that termination of benefits due to a finding of no residuals of the 

accepted conditions does not bar a subsequent schedule award; rather, the claims examiner 

should consider the schedule award matter separately from the termination of benefits.20 The 

procedure manual provides that impairment ratings for schedule awards include those conditions 

accepted by OWCP as job related, and any preexisting permanent impairment of the same 

member or function. If the work-related injury has affected any residual usefulness in whole or 

in part, a schedule award may be appropriate.21 

The Board notes that OWCP did not rescind acceptance of cervical radiculitis; 

lumbosacral radiculitis; and closed dislocation of fourth, fifth, sixth, and seventh cervical 

vertebra. While OWCP determined that these additional conditions had resolved, this does not 

bar appellant from receiving a schedule award for those conditions.22 

Dr. Bishai related appellant’s impairment rating to radiculopathy of the cervical and 

lumbar spine based on physical examination findings and diagnostic studies. Appellant’s claim 

was accepted for cervical radiculitis and lumbosacral radiculitis. Yet these conditions, among 

others, were not listed on the memorandum and questionnaire provided to the DMA. Identifying 

the accepted work-related conditions is an essential element of the SOAF.23 OWCP procedures 

further indicate that, when an OWCP medical adviser, second opinion specialist, or referee 

physician renders a medical opinion based on a SOAF which is incomplete or inaccurate, or does 

not use the SOAF as the framework in forming his or her opinion, the probative value of the 

opinion is seriously diminished or negated altogether.24 While Dr. Hogshead disagreed with 

 19 See W.J., Docket No. 08-2409 (issued September 11, 2009). 

20 Supra note 12 at Chapter 2.808.11 (February 2013). 

21 Id. at Chapter 2.808.5(d) (February 2013). See also Raymond E. Gwynn, 35 ECAB 247, 253 (1983). 

22 Similarly, in A.A., Docket No. 08-951 (issued September 22, 2008) appellant’s benefits were terminated as of 

December 12, 1994 due to no continuing disability resulting from her accepted injury. The Board explained that a 

determination that she was not disabled as of December 12, 1994 did not preclude the possibility that she might 

become disabled or develop an impairment related to her accepted condition at a later date. Appellant also had no 

prior schedule award determination. The Board remanded the case for further development on the issue of whether 

she had a permanent impairment which would entitle her to a schedule award. 

23 Supra note 12 at Chapter 2.809.5 (September 2009); see also Darletha Coleman, 55 ECAB 143 (2003). 

24 FECA Procedure Manual, id., at Chapter 2.809.4. See also A.C., Docket No. 07-2423 (issued May 15, 2008). 

The Board held that the SOAF did not accurately reflect the conditions OWCP accepted as employment related and, 

therefore, the physician’s report was of diminished probative value, and insufficient to resolve the conflict in 

medical opinion. 
8

Dr. Bishai’s impairment rating, he was not provided an accurate framework regarding appellant’s 

accepted employment-related conditions.25 Thus, his report is of limited probative value.26 

The Board further notes that OWCP’s memorandum to the DMA requested he determine 

whether appellant sustained a permanent impairment of the right arm. The Board has defined a 

“leading question” as one which suggests or implies an answer to the question posed.27 When 

questions are posed which influence a medical examiners answers to OWCP, material prejudice 

to appellant’s claim results. The Board notes that it is unclear why OWCP requested review and 

determination pertaining to the right arm only given appellant’s accepted work-related 

conditions. The question posed to the DMA suggests a desired response that only the right upper 

extremity sustained potential permanent impairment and that the left upper extremity, right lower 

extremity, and left lower extremity did not warrant entitlement for a schedule award. The Board 

has held that inquiry into such issues must be phrased in a manner which is neutral and does not 

lead the physician in his or her response.28 

It is well established that proceedings under FECA are not adversarial in nature,29 and 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence to see that justice is done.30 

As the medical evidence developed in this case is insufficient to determine whether 

appellant had permanent impairment due to the accepted medical conditions, the Board will 

remand the case for further development.31 OWCP shall refer appellant, together with a SOAF 

and her medical record, to a second opinion physician for a proper evaluation of impairment.32 

After this and such further development as deemed necessary, OWCP shall issue an appropriate 

de novo decision on appellant’s schedule award claim. 

CONCLUSION 

The Board finds this case is not in posture for decision regarding whether appellant is 

entitled to a schedule award for permanent impairment. 

 25 L.J., Docket No. 14-1682 (issued December 11, 2015). 

26 C.C., Docket No. 13-2082 (issued May 15, 2014). See also T.G., Docket No. 07-2231 (issued June 2, 2008). 

ECAB held that the physician’s report was not entitled to the special weight of the medical opinion evidence 

because it was based on an inaccurate SOAF. 

27 Carl D. Johnson, 46 ECAB 804, 809 (1995). 

28 See generally Brenda C. McQuiston, Docket No. 03-1725 (issued September 22, 2003). 

29 John J. Carlone, 41 ECAB 354 (1989). 

30 Dorothy L. Sidwell, 36 ECAB 699 (1985). 

31 Supra note 24. 

32 R.R., Docket No. 15-1055 (issued December 16, 2015). 
9

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs 

decision dated December 16, 2015 is set aside and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: August 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board