United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.N., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 16-1637 

Issued: April 18, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 9, 2016 appellant filed a timely appeal from a March 23, 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 to consider the merits of this case.2

ISSUE 

The issue is whether appellant has established permanent impairment of a scheduled 

member, warranting a schedule award. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted new evidence in her appeal to the Board. However, the Board may 

only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. 

§§ 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 

389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). 
2

FACTUAL HISTORY 

On March 10, 2008 appellant, then a 44-year-old vocational nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on February 14, 2008 she sustained injuries to her neck, 

legs, lower back, shoulders, lower abdomen, and right hip resulting from when the automobile 

she was riding in was hit head-on by another vehicle. OWCP initially accepted the claim for 

neck and lumbar sprains, right thoracic or lumbosacral neuritis or radiculitis, and subsequently 

expanded acceptance of the claim to include the conditions of brachial neuritis or radiculitis, 

cervical spinal stenosis, cervical intervertebral disc displacement without myelopathy, lumbar 

spinal stenosis, other psychogenic pain, post-traumatic stress disorder, and single episode major 

depressive disorder. 

On January 7, 2010 appellant filed a claim for a schedule award (Form CA-7). In support 

of her claim she submitted a September 29, 2009 report by Dr. Ronnie L. Shade, a treating 

Board-certified orthopedic surgeon. Dr. Shade noted that the accepted conditions were neck and 

lumbar sprains, as well as lumbosacral neuritis. He diagnosed acute cervical strain, central canal 

stenosis, right C5 and left C5-6 radiculopathy, acute lumbar strain with right lower extremity 

radiculopathy, C4-5 and C5-6 central canal stenosis, L4-5 and L3-4 instability, and C4-5 central 

disc herniation with central stenosis. Using the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

3

 and 

referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment 

(July/August 2009), Dr. Shade determined that appellant had 14 percent left lower extremity 

permanent impairment, 14 percent right lower extremity permanent impairment, 18 percent left 

upper extremity permanent impairment, and 18 percent right upper extremity permanent 

impairment based on motor and sensory deficits. Dr. Shade found that the date of maximum 

medical improvement (MMI) was September 15, 2009. 

On February 3, 2010 an OWCP medical adviser reviewed Dr. Shade’s report and the 

medical evidence of record. He recommended further development of the evidence regarding the 

issue of appellant’s permanent impairment. 

On February 10, 2010 OWCP referred appellant to Dr. Arthur Sarris, a second opinion 

physician Board-certified in orthopedic surgery, for a permanent impairment evaluation. In a 

March 1, 2010 report, Dr. Sarris concurred with Dr. Shade’s date of MMI, but disagreed with the 

impairment determination made by Dr. Shade. He reported that OWCP had accepted the 

conditions of cervical, thoracic, and lumbar sprains, brachial radiculitis, and thoracic and 

lumbosacral radiculitis or neuritis. Using the A.M.A., Guides peripheral nerve impairment 

tables, Dr. Sarris concluded that appellant had zero percent permanent impairment of her 

bilateral upper and lower extremities. 

On April 12, 2010 an OWCP medical adviser reviewed the report of Dr. Sarris and 

concurred with the permanent impairment rating. 

By decision dated April 26, 2010, OWCP denied appellant’s claim for a schedule award. 

 3

 A.M.A., Guides (6th ed. 2009). 
3

In an August 20, 2010 report, Dr. Shade reviewed Dr. Sarris’ March 1, 2010 report and 

noted his disagreement. He suggested that the evidence warranted either that Dr. Sarris perform 

a new impairment determination or appellant be referred for a referee evaluation. 

On February 8, 2011 appellant requested reconsideration of the decision denying her 

claim for a schedule award. 

By decision dated May 19, 2011, OWCP denied modification of its prior decision, 

finding that appellant failed to submit any new medical evidence establishing permanent 

impairment of a scheduled member. 

In a September 17, 2014 report, Dr. Benjamin C. Dagley, a Board-certified physiatrist, 

noted that appellant had been referred by Dr. Shade for an electrodiagnostic evaluation. He 

provided a medical and employment injury history and noted her symptoms. Diagnoses included 

cervical radiculitis, numbness/tingling, and cervical sprain/strain. In an attached right upper 

extremity electromyography study dated that day, Dr. Dagley reported a normal study with no 

evidence of cervical radiculopathy or right ulnar or median neuropathy. A physical examination 

revealed normal bilateral upper extremity sensation, no tenderness on palpation, and normal neck 

range of motion. Dr. Dagley did not evaluate appellant’s lower extremities. 

On January 28 and March 6, 2015 appellant again filed claims for a schedule award 

(Forms CA-7). She submitted an October 16, 2014 report by Dr. Shade in support of her 

schedule award claim. 

Dr. Shade, in the October 16, 2014 report, provided a history of injury, review of medical 

records, and examination findings. A physical examination revealed moderately decreased 

cervical range of motion, decrease C6-8 sensation, a 4/5 motor right lower extremity motor 

weakness, decreased right sensation S-1, normal sensation left S-1, and positive right straight leg 

raising. Using The Guides Newsletter, Rating Spinal Nerve Extremity Impairment, sixth edition 

(July/August 2009), Dr. Shade determined that appellant had 8 percent right upper extremity 

permanent impairment, 5 percent left upper extremity impairment, 0 percent left lower extremity 

permanent impairment, and 27 percent right lower extremity impairment. In reaching this 

determination, he noted that all impairments for the spine were a class 1. Using Table 1, 

Dr. Shade found zero percent sensory permanent impairment for the right upper extremity based 

on normal C-5 findings and eight percent permanent motor impairment, which resulted in a 

combined eight percent right upper extremity permanent impairment. He found no ratable 

impairment for the left upper extremity based on normal C-5 findings. Using Table 1 for the C-6 

nerve Dr. Shade determined that appellant had five percent sensory impairment and zero percent 

motor impairment, resulting in a combined five percent impairment for the C-6 nerve. He 

evaluated the lower extremities using Table 2 for the S-1 and L-5 nerve roots. Dr. Shade 

determined that appellant had zero percent sensory permanent impairment and 13 percent motor 

permanent impairment, resulting in a combined 13 percent permanent impairment for the right 

lower extremity due to the L-5 nerve root. Next, he calculated 3 percent sensory permanent 

impairment and 13 percent motor permanent impairment, resulting in a combined 16 percent 

permanent impairment of the S-1 nerve root for the right lower extremity. Combining the 

impairment ratings for the S-1 and L-5 nerve roots, Dr. Shade found a combined 27 percent right 
4

lower extremity permanent impairment. He also found no permanent impairment for the left 

lower extremity due to essentially normal findings. 

On March 20, 2015 an OWCP medical adviser recommended another referral for an 

impairment evaluation including date of MMI. He noted that there was a conflict between 

Dr. Shade and Dr. Dagley on examination findings. Dr. Dagley, in in a September 17, 2014 

report, noted 5/5 motor function and normal sensory findings while Dr. Shade noted abnormal 

findings. OWCP’s medical adviser related Dr. Shade’s findings that appellant had mild motor 

deficit of the right upper extremity, moderate sensory deficit of the left upper extremity, 

moderate motor, and sensory deficits of the right lower extremity 

On August 31, 2015 OWCP referred appellant for a second opinion evaluation with 

Dr. Adam Carter, a Board-certified physiatrist, for a permanent impairment determination. 

In a September 22, 2015 report, Dr. Carter reviewed the medical evidence, statement of 

accepted facts, and conducted a physical examination. A physical examination revealed 5/5 

bilateral upper and lower extremity strength, full bilateral shoulder range of motion, knee flexion 

and extension, and no atrophy. Dr. Carter reported that appellant was at MMI and determined 

that she had no permanent impairment for her back conditions. He noted that under FECA, no 

schedule award is payable for spinal injuries unless there was a permanent impairment of the 

extremities. Dr. Carter reported that no impairment rating had been given for radiculopathy in 

the regional grids. He found no ratable permanent impairment due to the accepted brachial 

neuritis, spinal stenosis, and cervical intervertebral disc displacement without myelopathy due to 

the lack any objective extremity findings. 

On November 2, 2015 an OWCP medical adviser reviewed and concurred with 

Dr. Carter’s impairment rating. 

In a January 6, 2016 report, Dr. Shade noted that he had reviewed and disagreed with 

Dr. Carter’s permanent impairment rating. He suggested that OWCP should refer appellant for 

an impartial medical examination due to the conflict between his impairment rating and that of 

Dr. Carter. 

By decision dated March 23, 2016, OWCP denied appellant’s claim for a schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA4

 and its implementing regulations5 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. 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 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 
5

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, OWCP adopted the 

sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that 

date.7

 

No schedule award is payable for a member, function or organ of the body not specified 

in the FECA or in the implementing regulations.8

 As neither FECA nor its regulations provide 

for the payment of a schedule award for the permanent loss of use of the back or the body as a 

whole, no claimant is entitled to such a schedule award.9

 The Board notes that section 

8101(19) specifically excludes the back from the definition of organ.10 However, a claimant may 

be entitled to a schedule award for permanent impairment to an upper or lower extremity even 

though the cause of the impairment originated in the neck, shoulders, or spine.11

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

spinal nerve injuries as extremity impairment.12 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.13 FECA approved methodology is premised on evidence of 

radiculopathy affecting the upper and/or lower extremities.14

Section 8123(a) of FECA15 provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.16 The implementing regulations 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

 6 Id. 

7

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

8 S.K., Docket No. 08-0848 (issued January 26, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999). 

9 See D.N., 59 ECAB 546 (2008); Jay K. Tomokiyo, 51 ECAB 361 (2000). 

10 5 U.S.C. § 8101(19). 

11 J.Q., 59 ECAB 366 (2008); Thomas J. Engelhart, supra note 8. 

12 Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010). 

13 See G.N., Docket No. 10-0850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, 

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

14 Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(c)(3) 

(February 2013). 

15 5 U.S.C. § 8123(a). 

16 J.J., Docket No. 09-0027 (issued February 10, 2009); F.R., 58 ECAB 607 (2007); Darlene R. Kennedy, 57 

ECAB 414 (2006). 
6

appoint a third physician to make an examination.17 This is called a referee examination and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case. 

ANALYSIS 

OWCP accepted appellant’s claim for neck and lumbar sprains, right thoracic or 

lumbosacral neuritis or radiculitis, brachial neuritis or radiculitis, cervical spinal stenosis, 

cervical intervertebral disc displacement without myelopathy, lumbar spinal stenosis, other 

psychogenic pain, post-traumatic stress disorder, and single episode major depressive disorder. 

It denied her claims for a schedule award by decisions dated April 26, 2010, May 19, 2011, and 

March 23, 2016. 

The issue is whether appellant has established permanent impairment of a scheduled 

member due to her work-related injuries. The Board finds that this case is not in posture for 

decision due to an unresolved conflict in the medical opinion evidence. 

As noted above, appellant is not entitled to a schedule award due to any permanent 

impairment of her spine, as the spine is not a scheduled member. However, to the extent that the 

weight of the medical evidence establishes that her back injuries resulted in any permanent 

impairment of her lower extremity, she may receive a schedule award. As appellant’s accepted 

employment injury was to her spine, any permanent impairment resulting from this condition 

should be evaluated in accordance with The Guides Newsletter.

18 

In support of her claim, appellant submitted reports from Dr. Shade, including the most 

recent report containing a permanent impairment rating dated October 16, 2014. Dr. Shade 

determined that she had 8 percent right upper extremity impairment, 5 percent left upper 

extremity impairment, 0 percent left lower extremity impairment, and 27 percent right lower 

extremity impairment using The Guides Newsletter. An OWCP medical adviser reviewed 

Dr. Shade’s report and requested that appellant be referred for a second opinion evaluation due to 

conflicting findings with Dr. Dagley, to whom she had been referred by Dr. Shade.19 OWCP’s 

medical adviser found that while Dr. Shade reported a mild motor deficit of the right upper 

extremity, a moderate sensory deficit of the left upper extremity, and moderate motor and 

sensory deficits of the right lower extremity, Dr. Dagley reported normal motor and sensory 

findings. 

Dr. Carter, the second opinion physician selected by OWCP, examined appellant and 

found 5/5 bilateral upper and lower extremity strength, full bilateral shoulder range of motion, 

knee flexion and extension, and no atrophy. He opined that she had no ratable impairment due to 

her accepted conditions. In support of this conclusion, Dr. Carter noted that FECA does not 

 17 20 C.F.R. § 10.321. 

18 See supra notes 12 and 13. 

19 As the disagreement arose between two treating physicians and not between a treating physician and a 

physician for the government as contemplated by 5 U.S.C. § 8123(a) no conflict existed. See F.S., Docket No. 09-

2337 (issued September 2, 2010). 
7

provide for impairment ratings for spinal injuries unless there is impairment of the extremities. 

He also noted that no impairment rating is given for radiculopathy in the regional grids. 

Dr. Carter found no ratable impairment due to the accepted brachial neuritis, spinal stenosis, 

cervical intervertebral disc displacement without myelopathy due to the lack of any objective 

extremity findings. An OWCP medical adviser reviewed this report and agreed that appellant 

was not entitled to a permanent impairment of her bilateral upper or lower extremities due to 

spinal injury. 

The Board finds that the reports of Dr. Carter and Dr. Shade are in conflict.20 Both 

physicians identified findings on physical examination which ostensibly supported their 

respective opinions.21 Because there is an unresolved conflict in medical opinion, pursuant to 5 

U.S.C. § 8123(a), the case will be remanded to OWCP for referral to an impartial medical 

examiner to determine the existence and extent of any spinal nerve extremity impairment. After 

OWCP has developed the case record consistent with the Board’s directive, a de novo decision 

shall be issued. 

CONCLUSION 

The Board finds that this case is not in posture for a decision due to an unresolved 

conflict in the medical opinion evidence. 

 20 See supra note 16. 

21 The Board also notes that while Dr. Dagley related that appellant had normal upper extremity 

electromyography studies on September 17, 2014, he did not evaluate appellant’s motor function or perform any 

testing of appellant’s lower extremities. 
8

ORDER 

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

Compensation Programs dated March 23, 2015 is set aside and the case is remanded for further 

action consistent with the above opinion. 

Issued: April 18, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board