United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Quakertown, PA, Employer 

__________________________________________ 

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Docket No. 14-334 

Issued: May 6, 2014 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

RICHARD J. DASCHBACH, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 20, 2013 appellant, through counsel, filed a timely appeal from an 

October 21, 2013 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 four percent permanent impairment to 

each upper extremity. 

FACTUAL HISTORY 

The case was before the Board on a prior appeal. By decision dated June 21, 2013, the 

Board remanded the case with respect to the schedule award issue.2

 The Board noted that the 

 1

 5 U.S.C. § 8101 et seq. 

2

 Docket No. 13-562 (issued June 21, 2013). 
2

attending physician, Dr. Emmanuel Jacob, a Board-certified physiatrist, had provided reports 

dated July 27 and October 18, 2012 that were of diminished probative value with respect to the 

degree of permanent impairment in the arms. Dr. Jacob had applied Table 15-20, a table for 

impairments based on a brachial plexus injury and there was no evidence of a brachial plexus 

injury in this case.3

 In addition, Dr. Jacob had based his impairment rating in part on motor 

deficit, but under the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, motor deficits are based on manual muscle testing that had not been performed. It 

was noted that the second opinion physician, Dr. Robert Draper, a Board-certified orthopedic 

surgeon, had not found a motor deficit in his September 26, 2011 report. 

The Board indicated that impairments to the upper extremities due to peripheral nerve

impairments from spinal injuries are determined by The Guides Newsletter. An OWCP medical 

adviser, Dr. Arnold Berman, a Board-certified orthopedic surgeon, found that appellant had a 

four percent impairment to each upper extremity based on The Guides Newsletter. The case was 

remanded to OWCP for clarification regarding the impairment rating. The Board noted that 

Dr. Jacobs had found a grade modifier two for functional history and one for clinical studies, 

which would result in a grade D impairment, whereas the medical adviser had applied a grade C 

impairment for each of the spinal nerves affected. 

OWCP referred the case to Dr. Berman, OWCP’s medical adviser, for an additional 

report. In a report dated October 21, 2013, the medical adviser stated that there was a 

disagreement between Dr. Jacobs and Dr. Draper as to a motor deficit. According to the medical 

adviser, Dr. Draper was the weight of the evidence since he was a Board-certified orthopedic 

surgeon, unlike Dr. Jacobs. It was noted that Dr. Jacobs found grade modifier two for functional 

history and one for clinical studies, and the QuickDASH score was consistent with grade 

modifier two. The medical adviser stated, “However, if Dr. Draper’s examination is applied for 

the calculation, the functional history DASH score the ultimate result is grade modifier [one]. 

Therefore, in my opinion based upon the functional history, this claimant has a grade modifier 

[one], and the clinical studios have a grade modifier.” The medical adviser concluded therefore 

that the impairment for each upper extremity remained at four percent, as each of the spinal 

nerves C5-8 had a one percent impairment for grade C. 

By decision dated October 21, 2013, OWCP determined that appellant was not entitled to 

an additional schedule for impairment to the arms based on the medical evidence of record. 

LEGAL PRECEDENT 

Section 8107 of FECA 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 

 3

 The accepted condition was aggravation of cervical degenerative disc disease. 

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). 
3

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 

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.7

 The default 

impairment (grade C) for the class of diagnosis (CDX) may be modified pursuant to Functional 

History (GMFH) as discussed in Table 15-7 and Clinical Studies (GMCS) Table 15-9.8

 The 

adjustment formula is GMFH-CDX + GMCS-CDX.9

 

ANALYSIS 

In the present case, the Board addressed the medical evidence with respect to permanent 

impairment in the prior appeal. The remand of the case was to clarify the application of The 

Guides Newsletter. OWCP’s medical adviser, Dr. Berman, had found, under the Proposed Table 

1, one percent for each spinal nerve C5, C6, C7 and C8 based on mild sensory deficit. This was 

based on the default grade C impairment for each identified nerve. A proper application of the 

table required an assessment of whether the default grade C should be modified based on grade 

modifiers for functional history and clinical studies. 

As to clinical studies, Dr. Berman noted that Dr. Jacobs used a grade modifier of one and 

Dr. Berman also opined that a grade modifier of one was appropriate. With respect to functional 

history, however, he noted that Dr. Jacobs found a grade modifier of two. Dr. Berman appears to 

reject Dr. Jacob’s findings on two grounds: (1) Dr. Jacobs was a physiatrist, not an orthopedic 

surgeon, and (2) he calculated his impairment rating using a motor deficit. He does not explain 

why either of these grounds are an appropriate basis to disregard the findings of Dr. Jacobs as to 

functional history. Dr. Berman does not explain why a physiatrist could not provide probative 

examination results or opinion as to functional history. As to motor deficit, the Board noted in 

its prior opinion that an impairment based on a motor deficit had not been established by 

Dr. Jacobs. The grade modifier for functional history, as discussed under Table 15-7, does not 

require a finding of motor deficit based on manual muscle testing. The relevant information on 

functional history is pain or symptoms with activity, ability to perform self-care activities, and 

the score on a QuickDASH functional assessment.10

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

6

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

7 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. 

8

 Under The Guides Newsletter, the CDX is one, and the impairment calculation under is based on sensory and 

motor deficit. 

9

 A.M.A., Guides 411. The Board notes that a physical examination grade modifier Physical Examination 

(GMPE) is not used in the calculation, as physical examination is used in placement of the diagnosis. See The 

Guides Newsletter. 

10 A.M.A., Guides 406, Table 15-7. The QuickDASH is a functional assessment questionnaire that is a shortened 

version of the disabilities of the arm, shoulder and hand. See A.M.A., Guides 482. 
4

In addition, the medical adviser does not explain why the findings of second opinion 

physician Dr. Draper would establish a grade modifier one for functional history. Dr. Draper did 

not discuss self-care activities, or provide a functional assessment using QuickDASH. On the 

other hand, in the July 27, 2012 report, Dr. Jacobs discussed activities of daily living and referred 

to results of a QuickDASH functional assessment. 

The opinion by Dr. Berman that Dr. Draper’s report should be considered on this issue, 

and that application of Dr. Draper’s findings resulted in a grade modifier one for functional 

history under Table 15-7, was not accompanied by adequate explanation. The case will be 

remanded for a proper assessment of the evidence and a clear explanation as to findings with 

respect to a functional history grade modifier under the A.M.A., Guides. After such further 

development as 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. 

ORDER 

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

Compensation Programs dated October 21, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: May 6, 2014 

Washington, DC 

 

 Richard J. Daschbach, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board