United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, CAMP 

WOOD POST OFFICE, Camp Wood, TX, 

Employer 

__________________________________________ 

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Docket No. 16-0504 

Issued: June 16, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 21, 2016 appellant filed a timely appeal from a November 9, 2015 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 OWCP met his burden of proof to establish greater than 17 percent 

permanent impairment of the left upper extremity, for which he received a schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below. 

OWCP accepted that on or before August 16, 2001 appellant, then a 45-year-old 

distribution clerk, sustained an aggravation of cervical degenerative disc disease. Appellant 

stopped work in early September 2001. OWCP placed his case on the periodic rolls effective 

February 25, 2002. 

Beginning in August 2001, appellant was followed by Dr. Gilbert R. Meadows, an 

attending Board-certified neurosurgeon, who diagnosed cervical degenerative disc disease, 

herniated discs at C4-5, C5-6, and C6-7 and spinal stenosis at C5-6. On September 24, 2001 

Dr. Meadows performed a three-level anterior cervical discectomy and fusion. In an April 24, 

2002 report, he found appellant permanently and totally disabled for work due to sequelae of the 

cervical fusion as well as disc herniation at L3-4, L4-5, and L5-S1. A July 26, 2002 functional 

capacity evaluation (FCE) showed appellant could perform part-time light-duty work. 

On January 21, 2003 Dr. Meadows performed an anterior C3-4 discectomy and fusion 

with allograft and anterior plate fixation, authorized by OWCP.3 He submitted reports through 

April 2004 stating that appellant remained permanently disabled for work. Appellant retired 

from the employing establishment effective April 16, 2004. 

Dr. Meadows submitted reports from July 2004 to January 2006 finding that appellant 

remained disabled. He recommended additional surgery. OWCP then obtained a second opinion 

from Dr. Charles W. Kennedy, Jr., a Board-certified orthopedic surgeon.4 In an April 13, 2006 

report, Dr. Kennedy opined that the proposed surgery and all past surgeries were inappropriate 

and that appellant had no work-related disability. 

OWCP subsequently found a conflict of medical opinion between Dr. Meadows for 

appellant and Dr. Kennedy for the government regarding appellant’s ability to work. It selected 

Dr. Theodore W. Parsons, III, a Board-certified orthopedic surgeon, as the impartial medical 

examiner. In a June 1, 2006 report, Dr. Parsons opined that any additional cervical fusions 

would fail. He found that according to the 2002 FCE, appellant was able to work four to six 

hours a day light duty, with lifting limited to 20 pounds. Dr. Parsons noted that OWCP must 

 2

 Docket No. 08-1334 (issued March 9, 2009). 

3

 On February 27, 2004 OWCP obtained a second opinion report from Dr. Govindasamy Durairaj, a Boardcertified orthopedic surgeon, who opined that appellant was totally disabled due to cervical fusions and desiccated 

discs at L3-4, L4-5, and L5-S1. It obtained an FCE on May 14, 2004, showing that appellant could perform light or 

sedentary duty with restrictions. In a May 14, 2004 work capacity evaluation, Dr. Durairaj noted that appellant was 

permanently and totally disabled for all work. He found appellant unable to perform the sedentary tasks 

demonstrated in the FCE. 

4

 Appellant claimed a schedule award (Form CA-7) on May 13, 2002 and on February 18, 2005. 
3

also consider appellant’s deconditioned body habitus, chronic pain, and use of prescribed 

narcotics. 

On August 17, 2006 Dr. David A. Roberts, a Board-certified orthopedic surgeon to whom 

appellant was referred by a treating physician, opined that appellant had no impairment of the 

extremities originating in the spine.5

In a January 5, 2007 report, Dr. Meadows opined that appellant could probably work four 

hours a day with rest breaks but could not drive to and from work due to medication side 

effects. He recommended additional cervical fusions. Dr. Meadows submitted February 20 and 

March 7, 2007 reports noting increasing symptoms in the C6-7 dermatome, correlating to 

March 7, 2007 magnetic resonance imaging (MRI) scan findings.6 On July 16, 2007 

Dr. Meadows performed bilateral keyhole laminotomies at C7-T1, fusions with rod placement at 

C3, C4, and C7 bilaterally and posterior fusions at C3-4 and C7-T1 with autologous bone graft. 

Dr. David M. Hirsch, an attending osteopathic physician Board-certified in physiatry, 

submitted periodic reports from July 21, 2009 through 2012 diagnosing a left long thoracic nerve 

injury, diffuse atrophy of the supraspinatus and infraspinatus musculature, left cervical 

paraspinals and trapezius dystonia, and a mild C7-T1 spondylolisthesis. He administered 

periodic injections.7

Dr. John R. Hall, an attending osteopath, provided reports from 2011 through 2012 

diagnosing cervical neuritis. 

On January 17, 2013 appellant again claimed a schedule award. In support of his claim, 

he submitted a December 17, 2012 impairment rating from Dr. Robert C. Lowry, an attending 

Board-certified physiatrist, finding nine percent permanent impairment of the left arm due to 

long thoracic nerve injury, according to the peripheral neuropathy criteria under Table 15-21 of 

 5

 On June 22, 2006 the employing establishment offered appellant a modified clerk position for six hours a day, 

but appellant refused the offer. On July 17, 2006 OWCP advised appellant that the offered position was suitable 

work and that he had 30 days to accept the job or to provide valid reasons for refusal. On August 22, 2006 the 

employing establishment modified the job offer from six to four hours a day. OWCP advised appellant that he had 

15 additional days in which to accept the offered job. Appellant did not accept the job. On September 6, 2006 

OWCP terminated appellant’s monetary compensation benefits under 5 U.S.C. § 8106(c)(2) for refusing suitable 

work. After initially pursuing reconsideration before OWCP, appellant appealed to the Board. In a March 9, 2009 

decision, the Board found that OWCP improperly terminated appellant’s compensation as the offered position was 

not suitable work. See supra note 2. OWCP paid compensation retroactively to September 3, 2006. 

6

 OWCP obtained a second opinion report regarding the necessity of additional surgery from Dr. James F. Hood, 

a Board-certified orthopedic surgeon. In a May 8, 2007 report, Dr. Hood found appellant totally disabled for work 

due to an unstable cervical spine. He opined that the proposed fusions were medically necessary and appropriate. 

Based on Dr. Hood’s opinion, OWCP approved Dr. Meadows’ request for surgery. 

7

 An August 19, 2009 cervical MRI scan showed postoperative changes from C3-4 through C6-7, with a mild one 

to two-millimeter spondylolisthesis of C7 on T1. An August 5, 2011 EMG and nerve conduction velocity study of 

the upper extremities showed impairment of the median motor and ulnar sensory nerves bilaterally. 
4

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter, A.M.A., Guides).8

On September 30, 2013 appellant underwent a left L5-S1 minimally invasive tubular 

retraction discectomy. 

In an October 2, 2013 report, Dr. Lorry Thornton, an osteopath Board-certified in family 

practice, found 10 percent permanent impairment of the arms due to cervicalgia, utilizing the 

peripheral nerve impairment criteria under Table 15-21 of the A.M.A., Guides. 

On December 23, 2013 OWCP obtained a second opinion from Dr. Jerome O. Carter, a 

Board-certified physiatrist, and provided him a statement of accepted facts and a copy of the 

medical record. Dr. Carter agreed with Dr. Lowry that appellant had reached maximum medical 

improvement for the cervical spine on February 3, 2012. On examination, he found normal 

sensation and motor testing in the right arm, but diminished strength and sensation throughout 

the left arm. Dr. Carter noted that appellant’s nonoccupational lumbar condition had not yet 

stabilized. He explained that, under the A.M.A., Guides, neurologic impairment originating in 

the spine should not be rated using peripheral or compression neuropathy criteria, but according 

to Proposed Table 1 of the July/August 2009 The Guides Newsletter, Dr. Carter found that, under 

Proposed Table 1, appellant had a class 1 Class of Diagnosis (CDX) based impairment for mild 

motor deficits in the left C5 distribution, a grade modifier for Functional History (GMFH) of 2 

for pain during normal activities according to Table 15-7,9 and a grade 1 modifier for Clinical 

Studies (GMCS) for motor delay confirmed by electromyogram (EMG) testing according to 

Table 15-9.10 He explained that there was no applicable grade modifier for findings on Physical 

Examination (GMPE). Applying the net adjustment formula of (GMFH-CDX) + (GMCS-CDX), 

or (2-1) + (1-1) resulted in a net modifier of +1, raising the default CDX from C to D, equaling a 

six percent impairment of the left upper extremity. Using the same tables and calculation 

methods, Dr. Carter found seven percent impairment of the left arm due to mild motor deficits in 

the C6 distribution. Regarding the C7 distribution, he found that as there were no relevant 

findings on clinical studies, resulting in five percent impairment for mild motor deficits. 

Dr. Carter combined the 5, 6, and 7 percent impairments to equal 17 percent impairment of the 

left arm. He also found no impairment of the right arm as appellant had normal strength and 

sensation throughout the arm. In a March 7, 2014 report, an OWCP medical adviser concurred 

with Dr. Carter’s rating and methodology.11 

 8

 Table 15-21, page 436 of the sixth edition of the A.M.A., Guides is titled “Peripheral Nerve Impairment: Upper 

Extremity Impairments.” 

9

 Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is titled “Functional History Adjustment: Upper 

Extremities.” 

10 Table 15-9, page 410 of the sixth edition of the A.M.A., Guides is titled “Clinical Studies Adjustment: Upper 

Extremities.” 

11 A September 11, 2014 cervical MRI scan showed a C3-C7 osseous fusion, a C7-T1 anterior listhesis with 

severe bilateral neuroforaminal narrowing, and an asymmetric right facet arthrosis causing severe right neural 

foraminal narrowing. December 2, 2014 cervical spine x-rays showed a C3-7 fusion with fixation hardware at C3-4 

and C7-T1. 
5

By decision dated April 24, 2015, OWCP granted appellant a schedule award for 17 

percent permanent impairment of the left upper extremity.12

In a September 11, 2015 letter, appellant requested reconsideration, contending that 

OWCP relied on outdated medical reports. He provided reports from Dr. Hall dated from 

February 2011 through January 2015, diagnosing a left long thoracic nerve injury, left 

suprascapular nerve injury, and severe left C6-7 radiculopathy. Dr. Hall administered periodic 

trigger point injections to the left cervical paraspinal and trapezius regions. Appellant also 

submitted a May 23, 2013 cervical MRI scan report demonstrating postsurgical changes from 

C3-4 and C7-T1, and facet hypertrophy from C2 to C7 with no canal stenosis. He also provided 

copies of medical evidence previously of record. 

By decision dated November 9, 2015, OWCP affirmed the April 24, 2015 decision, 

finding that Dr. Hall’s reports were insufficient to outweigh that of Dr. Carter. 

LEGAL PRECEDENT 

The schedule award provisions of FECA13 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members of the body. It, however, does 

not specify the manner in which the percentage loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, the Board has authorized the use of a single set of 

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has 

been adopted by OWCP as a standard for evaluation of schedule losses and the Board has 

concurred in such adoption.14 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides.

15

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).16 Under the sixth edition, the evaluator identifies the impairment class for the 

diagnosed condition, which is then adjusted by grade modifiers based on functional history, 

 12 On June 1, 2015 appellant requested a review of the written record by a representative of OWCP’s Branch of 

Hearings and Review. By decision dated June 25, 2015, OWCP denied appellant’s request for a hearing as it was 

not timely filed within 30 days of the April 24, 2015 decision. It further denied the claim as the issue involved could 

be addressed equally well through a request for reconsideration. 

13 5 U.S.C. § 8107. 

14 Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

15 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). 

16 A.M.A., Guides at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement” (6th ed. 2009). 
6

physical examination, and clinical studies.17 The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX). 

Neither FECA nor its regulations provide for a schedule award for impairment to the 

back or to the body as a whole.18 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.19 The sixth edition of the A.M.A., Guides does not provide a 

separate mechanism for rating spinal nerve injuries as impairments of the extremities. 

Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The 

Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth 

edition methodology. For peripheral nerve impairments to the upper or lower extremities 

resulting from spinal injuries, OWCP procedures indicate that July/August 2009 The Guides 

Newsletter is to be applied.20 

 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 percentage of 

impairment using the A.M.A., Guides.

21

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of cervical disc disease 

necessitating a C3-7 fusion. On January 17, 2013 appellant claimed a schedule award for 

impairment of the extremities originating in the spine. He provided a December 17, 2012 report 

from Dr. Lowry, an attending Board-certified physiatrist, finding nine percent permanent 

impairment of the left upper extremity according to Table 15-21 of the A.M.A., Guides, 

pertaining to peripheral nerve impairment. On September 30, 2013 Dr. Thornton, an attending 

Board-certified family practitioner, found 10 percent permanent impairment both upper 

extremities according to Table 15-21. However, under the A.M.A., Guides, impairment of an 

extremity caused by spinal nerve injury is rated according to Proposed Table 1 of the 

July/August 2009 The Guides Newsletter, and not using the criteria for peripheral neuropathy. 

As appellant’s physicians did not provide an impairment rating according to the 

appropriate portions of the A.M.A., Guides, OWCP obtained a second opinion from Dr. Carter, a 

Board-certified physiatrist. Dr. Carter provided a December 23, 2013 report utilizing Proposed 

Table 1 of the July/August 2009, The Guides Newsletter. He assessed combined 17 percent 

permanent impairment of the left upper extremity due to motor deficits in the C5, C6, and C7 

dermatomes. Dr. Carter provided detailed clinical findings and explained how those objective 

elements warranted the percentages assessed. An OWCP medical adviser concurred with 

 17 Id. at 494-531 (6th ed. 2009). 

18 See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004). 

19 See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997). 

20 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The 

Guides Newsletter is included as Exhibit 4. 

21 Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013). 
7

Dr. Carter’s rating and methodology. OWCP then issued the April 24, 2015 schedule award for 

17 percent permanent impairment of the left arm. 

Appellant requested reconsideration. He submitted chart notes from Dr. Hall noting 

periodic trigger point injections and a May 23, 2013 cervical spine MRI scan report. As these 

documents did not address the percentage of permanent impairment, OWCP affirmed the 

April 24, 2015 schedule award by decision dated November 9, 2015. 

The Board finds that OWCP properly accorded Dr. Carter’s impairment rating the weight 

of the medical evidence. Dr. Carter’s opinion was based on a statement of accepted facts and the 

complete medical record. He provided a detailed impairment rating, utilizing the appropriate 

portions of the A.M.A., Guides and The Guides Newsletter. Dr. Carter described how objective 

clinical and electrodiagnostic findings in each affected cervical dermatome warranted the 

specified percentage of impairment. In contrast, appellant’s physicians based their impairment 

ratings on an incorrect methodology. There is no probative medical evidence of record 

demonstrating that appellant sustained more than 17 percent permanent impairment of his left 

upper extremity due to the accepted cervical condition. Therefore, OWCP’s November 9, 2015 

decision was proper under the law and facts of this case. 

On appeal, appellant asserts that OWCP has accepted a lumbar condition because it 

utilized the diagnosis code “7726” to accept “Aggravation of Degenerative Disc Disease,” which 

he refers “to the entire spine unspecified.” The Board notes that rather than referring to a 

condition of the entire spine, the diagnosis code indicates acceptance of a condition affecting an 

unspecified spinal region. The diagnosis code is merely a convenient, uniform method of 

classification, and does not constitute acceptance of a lumbar condition.

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 

The Board finds that appellant did not meet his burden of proof to establish greater than 

17 percent permanent impairment of the left upper extremity, for which he received a schedule 

award. 
8

ORDER 

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

Compensation Programs dated November 9, 2015 is affirmed. 

Issued: June 16, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board