United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.O., Appellant 

and 

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, San Juan, PR, Employer

__________________________________________ 

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Docket No. 16-0905 

Issued: January 4, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 25, 2016 appellant filed a timely appeal from a January 19, 2016 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 one percent permanent impairment to each 

upper and lower extremity, for which he previously received schedule awards. 

FACTUAL HISTORY 

On September 28, 2001 appellant, then a 33-year-old correctional officer, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained injuries on August 25, 2001 when 

a heavy jug fell on him. OWCP has accepted the claim for low back sprain, and cervical 

 1

 5 U.S.C. § 8101 et seq. 
2

radiculopathy, right C6 and bilateral C8-T11. Appellant was off work from August 25, 2001 to 

November 15, 2002, then had a recurrence of disability commencing April 6, 2003. He received 

wage-loss compensation on the periodic rolls through April 2, 2014, when he elected Office of 

Personnel Management (OPM) benefits. 

The record contains an April 13, 2014 report of a cervical electromyogram and nerve 

conduction velocity report for the upper extremities. There is also a similar electrodiagnostic 

study for the lower extremities performed on December 16, 2014. 

In a report dated May 3, 2015, Dr. Tomas Hernández Ortiz, a neurologist, provided a 

history and results of an April 28, 2015 examination. He reported moderate loss of fingering and 

grip strength, with no sensory deficit in any of the modalities tested. Dr. Hernández Ortiz 

provided a whole person impairment of 16 percent under the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009) using a 

“Spine and Pelvis impairment calculation methodology” for the cervical and lumbar spine. 

OWCP requested that an OWCP medical adviser, Dr. Henry Magliato, review the report 

from Dr. Hernández Ortiz and provide an opinion as to the extent of appellant’s permanent 

impairment. In a report dated June 16, 2015, Dr. Magliato opined that the report of 

Dr. Hernández Ortiz was of no value in determining a permanent impairment under the A.M.A., 

Guides. He indicated that Dr. Hernández Ortiz had used diagnostic grids for the spine and whole 

person impairment, which were inappropriate under FECA. Dr. Magliato recommended referral 

to a second opinion physician. 

On July 20, 2015 OWCP received a revised report dated July 11, 2015 from 

Dr. Hernández Ortiz. The examination results from April 28, 2015 were repeated, but 

Dr. Hernández Ortiz provided an opinion as to permanent impairment based on The Guides 

Newsletter. For the upper extremities, Dr. Hernández Ortiz opined that there was one percent 

impairment for sensory deficit and five percent for motor deficit of C6 root and T1 nerve roots. 

He indicated that, although only a right C6 root lesion was accepted, it was bilateral upper 

extremity impairment. Dr. Hernández Ortiz then reported that there would be 12 percent total 

permanent impairment for the bilateral C8-T1 root lesions for a total of 18 percent for the upper 

extremities nerve involvement. As to the lower extremities, he opined that there would be one 

percent for sensory deficit and three percent for motor deficit to each lower extremity. 

OWCP referred appellant for a second opinion examination with Dr. Fernando Rojas, an 

orthopedic surgeon. In a report dated September 22, 2015, Dr. Rojas provided a history and 

results on an August 28, 2015 examination. He opined that appellant had two percent upper 

extremity permanent impairment based on carpal tunnel syndrome, with no impairment based on 

The Guides Newsletter. In applying The Guides Newsletter, Dr. Rojas assigned zeros for all 

diagnosis classes and grade modifiers. 

By report dated October 27, 2015, Dr. Magliato found the second opinion physician’s 

report was confusing and of “no value.” He indicated that Dr. Rojas had provided vague 

calculations that were difficult to understand, and he noted that carpal tunnel syndrome was not 

an accepted condition. Dr. Magliato recommended referral to another second opinion physician. 
3

In a memorandum of telephone call (CA-110) dated November 24, 2015, OWCP advised 

appellant that he would soon be receiving a letter for a second opinion appointment. 

The record contains a letter dated November 24, 2015 from the second opinion referral 

service (Medical Consultants Network), advising OWCP that Dr. Rojas was the only orthopedic 

surgeon on panel who performed federal workers’ compensation examinations. OWCP sent a 

letter dated November 25, 2015 to Dr. Hernández Ortiz, requesting an additional report regarding 

permanent impairment. It referred to The Guides Newsletter and noted that whole person 

impairments were not appropriate under FECA. 

In a report dated December 12, 2015, Dr. Hernández Ortiz reported that he had already 

answered OWCP’s questions in his July 11, 2015 report. OWCP referred the evidence to 

another OWCP medical adviser, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, for 

review. 

In a report dated January 8, 2016, Dr. Harris opined that appellant had one percent 

permanent impairment to each upper and lower extremity. He indicated that for the upper 

extremities, there was one percent permanent impairment for C6 nerve root “mild pain/impaired 

sensation.” In discussing this impairment, Dr. Harris referred to the May 3, 2015 report from 

Dr. Hernández Ortiz, and he indicated that Dr. Hernández Ortiz had improperly used the 

diagnosis-based grids for the spine. As to the lower extremities, he found there was one percent 

impairment for L5 mild pain/impaired sensation. Dr. Harris reported that there was no 

impairment for C8 and T1 radiculopathy, as the attending physician did not identify any 

neurological deficit consistent with radiculopathy. He indicated that electrodiagnostic studies 

were consistent with C6 and L5 radiculopathy. 

By decision dated January 19, 2016, OWCP issued a schedule award for one percent 

permanent impairment of each upper and lower extremity. The period of the award was 12.00 

weeks from April 28, 2015. 

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.2

 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 

 2

 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). 
4

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.4

 

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.5

ANALYSIS 

OWCP issued a schedule award for one percent permanent impairment to each upper and 

lower extremity, based on the January 8, 2016 report from Dr. Harris, an OWCP medical adviser. 

Dr. Harris based his opinion on the April 28, 2015 examination results of the attending 

physician, Dr. Hernández Ortiz, and his reports dated May 3 and July 11, 2015. The Board notes 

that OWCP had referred appellant for a second opinion examination by Dr. Rojas. The 

September 22, 2015 report from Dr. Rojas found no permanent impairment. As noted by an 

OWCP medical adviser, Dr. Magliato, the September 22, 2105 report provided little explanation 

or rationale regarding the conclusions provided. The record indicates OWCP considered 

referring appellant for another second opinion, but was advised that there were no other 

appropriate physicians in appellant’s area. 

The attending physician, Dr. Hernández Ortiz, provided reports with results of an 

April 28, 2015 examination. He reviewed those results and provided an opinion under The 

Guides Newsletter with respect to a permanent impairment to the upper and lower extremities in 

his July 11, 2015 report. As to the upper extremities, Dr. Hernández Ortiz opined that there was 

six percent permanent impairment based on the C6 nerve root: one percent for sensory deficit 

and five percent for motor deficit. Under The Guides Newsletter, a grade C impairment for C6 

mild sensory deficit is two percent, and mild motor deficit is nine percent. Dr. Hernández Ortiz 

noted that OWCP had only accepted a right C6 radiculopathy, but he felt it was a bilateral 

condition. 

Dr. Hernández Ortiz then found 12 percent permanent impairment for what he described 

as bilateral C8-T1 nerve lesion. It is unclear how this impairment was calculated, as he made no 

reference to Table 1 of The Guides Newsletter. If Dr. Hernández Ortiz was using sensory and 

motor deficits for the C8 and T1 nerve roots, he does not explain how the table was applied. 

Moreover, as Dr. Harris explained, an impairment based on the C8-T1 nerves was not well 

documented by examination or diagnostic studies. He noted the April 13, 2014 electrodiagnostic 

study indicated C6 radiculopathy. The Board finds the weight of the evidence with respect to C8 

and T1 nerve root permanent impairment rests with the medical adviser. 

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

4

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

5 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. 
5

The January 8, 2016 report from Dr. Harris, does not, however, resolve the issue of 

permanent impairment to the upper and lower extremities. Dr. Harris finds that the evidence 

establishes only one percent permanent impairment to each extremity, based on sensory deficit 

from C6 (upper extremity) and L5 (lower extremity). He does not explain why a motor deficit 

under The Guides Newsletter was not appropriate for C6 or L5 nerve roots in this case. The 

comments from Dr. Harris regarding his opinion refer to the May 3, 2015 report from 

Dr. Hernández Ortiz and tables regarding spinal impairments. Dr. Hernández Ortiz applied The 

Guides Newsletter in his July 11, 2015 report. If Dr. Harris found that motor deficits for C6 and 

L5 were not properly documented under the provisions of the A.M.A., Guides,

6

 he should have 

provided medical rationale to support the opinion. Under OWCP procedures, if an OWCP 

medical adviser neglects to provide rationale for the permanent impairment specified, the claims 

examiner should request clarification from the medical adviser.7

 

The case will be remanded to OWCP for further development. Upon remand an OWCP 

medical adviser should properly evaluate the findings of Dr. Hernández Ortiz and his opinion 

under The Guides Newsletter in his July 11, 2015 report. After such further development as 

OWCP deems necessary, it shall issue a de novo decision. 

CONCLUSION 

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

further development. 

 6

 Motor deficits for the upper extremities are discussed in section 15.4a, and the severity of any deficit determined 

under Table 15-14, A.M.A., Guides 425. For the lower extremities, section 16.4a and Table 16-11 refer to motor 

deficits and their severity. A.M.A., Guides 533. 

7 Supra note 4 at Chapter 2.808.6(f)(2) (February 2013). See also C.K., Docket No. 09-2371 (issued August 18, 

2010); Frantz Ghassan, 57 ECAB 349 (2006). 
6

ORDER 

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

Compensation Programs dated January 19, 2016 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: January 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board