United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0125 

Issued: August 10, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 27, 2016 appellant, through counsel, filed a timely appeal from a 

September 22, 2016 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. 

 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

ISSUE 

The issue is whether appellant met her burden of proof to establish more than nine 

percent permanent impairment of the left upper extremity, for which she previously received 

schedule awards. 

FACTUAL HISTORY 

OWCP accepted that on December 12, 2009 appellant, then a 43-year-old mail handler, 

sustained a neck sprain and cervical disc displacement as a result of pushing all-purpose 

containers off a truck at work.3 Appellant stopped work on December 13, 2009. OWCP 

authorized anterior cervical discectomy and fusion (ACDF) surgery to treat her preoperative and 

postoperative diagnosis of left C4-5 cervical intervertebral disc herniation. The surgery was 

performed on December 17, 2010 by Dr. Adebukola A. Onibokun, an attending Board-certified 

neurosurgeon. 

In a July 11, 2011 progress note, Dr. Onibokun indicated that appellant was doing well 

approximately six months after the cervical fusion. He reported that her left shoulder pain was 

about 60 percent reduced from the time of surgery. Dr. Onibokun noted that appellant had 

undergone a functional capacity evaluation which determined that she was unable to lift, pull, or 

push any object heavier than 10 pounds. He cleared her to return to work with these restrictions. 

On January 9, 2012 appellant filed a claim for a schedule award (Form CA-7). 

On January 16, 2012 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving 

as an OWCP district medical adviser (DMA) reviewed the medical record, including 

Dr. Onibokun’s July 11, 2011 findings. He opined that appellant’s residual pain in the shoulder 

corresponded with the C5 dermatome and axillary nerve. Dr. Garelick, thus, determined that she 

had two percent permanent impairment of the left arm under Table 15-21 on page 436 of the 

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

Impairment (A.M.A., Guides). There was no change to the award with use of the net adjustment 

formula. Dr. Garelick found that there was no objective evidence to support any right arm 

permanent impairment at that time. He determined that appellant had reached maximum medical 

improvement (MMI) on July 11, 2011, the date of Dr. Onibokun’s examination. 

In a March 23, 2012 letter, Dr. Onibokun noted that appellant had a permanent 

disfigurement scar approximately three to four inches in length due to anterior neck surgery. He 

further noted that she had one disc removed at the C4-5 level. 

In a May 3, 2012 attending physician’s report for disfigurement, Dr. Leonard J. Cerullo, a 

Board-certified neurosurgeon, noted that appellant was examined on that day. He advised that 

she had a scar on her neck from surgery, cervical and lumbar pain with limited range of motion, 

and left shoulder pain with muscle spasms. Dr. Cerullo related that no significant improvement 

 3

 Subsequent to the instant claim, appellant filed a claim, assigned File No. xxxxxx964, for a neck injury 

sustained on August 13, 2010. OWCP accepted the claim for neck sprain. 
3

in appellant’s disfigurement was probable and that therapy, medical, or surgical treatment would 

only help with her pain. 

In a May 15, 2012 decision, OWCP granted appellant a schedule award for two percent 

permanent impairment of the left arm based on Dr. Garelick’s January 16, 2012 opinion.4

 

In a January 14, 2013 progress note signed by Christine Compisi, a physician assistant, 

indicated that appellant was seen and examined by Dr. Julian E. Bailes, Jr., a Board-certified 

neurosurgeon. She noted a history of the December 2009 employment injury and appellant’s 

medical treatment and social background. Ms. Compisi also noted her left upper extremity and 

back complaints. She reported findings on examination and assessed status post ACDF surgery 

with residual pain and new pain in the lower back. 

In a June 24, 2013 report, Dr. Onibokun noted appellant’s past surgical history was 

significant ACDF surgery and that she presented with intractable cervical spinal pain. Appellant 

reported to him that her pain was constant, 9 out of 10 in intensity, burning in nature, and 

aggravated by activity. She complained about occasional numbness and tingling in the left upper 

extremity. Appellant also complained about left hand weakness. On physical examination, 

Dr. Onibokun found that she moved all four of her extremities with good strength in all muscle 

groups, with the exception of the left deltoid where her motor strength was 4+ out of 5. He also 

found normal muscle bulk and tone in all four extremities. There was decreased light touch and 

pinprick sensation in the left C5 and C6 dermatomal distributions. Biceps, triceps, and patellar 

Achilles deep tendon reflexes were 2+ symmetric bilaterally. Plantar responses were downgoing 

bilaterally. There was no clonus or Hoffmann’s. There was severe tenderness to palpation in the 

mid to lower left-sided posterior cervical paramedian region. There was decreased cervical 

range of motion in all planes. A Spurling’s maneuver was negative. Gait was normal. Romberg 

was negative. X-rays of the cervical spine revealed cervical fusion hardware in a good position. 

There was no evidence of hardware loosening or pseudoarthrosis. 

A cervical spine magnetic resonance imaging scan revealed no evidence of significant 

cervical disc herniation, cervical nerve root compression, cervical anterolisthesis, or spinal cord 

compression. Dr. Onibokun diagnosed neck pain. He related that appellant was greater than two 

years status post ACDF surgery and presented with intractable cervical spinal pain. 

Dr. Onibokun advised that her recent cervical imaging studies were unremarkable. He believed 

that appellant’s cervical spinal pain was most likely myofascial in origin. Dr. Onibokun 

concluded that the nature of her pain was likely originating from irritation of the cervical 

paraspinal muscular tissue. He recommended nonsurgical treatment. 

On July 21, 2013 Dr. Christopher Gross, a Board-certified orthopedic surgeon and 

OWCP DMA, reviewed the medical record. He referenced Dr. Onibukun’s finding that 

appellant had mild motor loss of left C5 with mild sensory loss of C5 and C6. Dr. Gross 

determined that she had a grade 1 diagnosis of mild sensory deficits of C5 and C6 on the left and 

mild motor deficit of C5 based on Table 2 of The Guides Newsletter, July/August 2009. He 

 4

 The record also contains evidence of prior development regarding whether appellant’s injury warranted an 

award for disfigurement. As this matter is not at issue on the present appeal, this evidence will not be presented in 

this decision. 
4

assigned a grade 2 modifier for Functional History (GMFH) under Table 15-7 on page 406 of the 

A.M.A., Guides, for pain with normal activity. Dr. Gross noted that appellant’s physical 

examination under Table 15-8 on page 408 was used in the determination of clinical grades. He 

found that clinical studies were not applicable. Therefore, based on the net adjustment formula, 

Dr. Gross determined that appellant had a +1 adjustment which resulted in a rating of nine 

percent permanent impairment of the left upper extremity (sensory C5 one percent, sensory C6 

two percent, motor C5 six percent). He found that she had no right upper extremity impairment. 

Dr. Gross concluded that appellant had reached MMI on January 14, 2013, the date of 

Dr. Bailes’ examination. 

By decision dated August 1, 2013, OWCP granted appellant a schedule award for an 

additional seven percent permanent impairment of the left upper extremity, totaling nine percent 

permanent impairment of the left upper extremity based on the June 24 and July 21, 2013 reports 

of Dr. Onibokun and Dr. Gross, respectively. 

On October 22, 2013 appellant filed a claim for an additional schedule award (Form 

CA-7). 

In an August 15, 2013 report, Dr. Neil Allen, a Board-certified internist and neurologist, 

noted appellant’s history of injury and medical treatment. He described appellant’s functional 

history, examination findings, and test results. Dr. Allen utilized the sixth edition of the A.M.A., 

Guides, and The Guides Newsletter, July/August 2009, to determine that she had 36 percent 

impairment due to motor deficits and 10 percent impairment due to sensory deficits involving the 

C5, C6, C7, and C8 nerve roots, totaling 46 percent permanent impairment of the left upper 

extremity. 

On May 3, 2014 Dr. Gross again reviewed the medical record, including the findings of 

Dr. Allen. He noted that his prior finding that appellant had nine percent permanent impairment 

of the left upper extremity and no impairment of the right upper extremity remained unchanged. 

Dr. Gross noted that Dr. Allen’s findings were drastically different from those found by 

Dr. Onibokun and reasoned that the latter physician was more reliable because he was a 

neurosurgeon and had specific expertise with the cervical spine. 

On July 15, 2014 OWCP noted that the instant claim assigned File No. xxxxxx347 and 

the claim assigned File No. xxxxxx964 had been combined. It requested that a DMA review 

additional evidence of record and determine the extent of appellant’s permanent impairment. 

On July 23, 2014 Dr. Gross again reviewed the medical record. He also restated that his 

nine percent impairment rating for the left upper extremity and zero percent impairment rating 

for the right upper extremity remained unchanged. 

In an August 1, 2014 decision, OWCP denied appellant’s claim for an additional 

schedule award for the left upper extremity. It found that the medical evidence of record failed 

to establish that she had any greater impairment than previously awarded. 

By letter dated August 13, 2014, appellant, through counsel, requested a telephone 

hearing with an OWCP hearing representative. She submitted a September 25, 2013 report from 
5

Dr. Allen which reiterated the findings and 46 percent left upper extremity impairment rating set 

forth in his August 15, 2013 report. 

In a May 27, 2015 decision, an OWCP hearing representative set aside the August 1, 

2014 decision and remanded the case to OWCP for referral of appellant to a second opinion 

physician for an examination and opinion on the extent of her bilateral upper extremity 

impairment under the sixth edition of the A.M.A., Guides. She found that Dr. Allen’s 

August 13, 2013 report had explained how he used the A.M.A., Guides to rate appellant’s 

impairment. 

By letter dated July 30, 2015, OWCP referred appellant, together with a statement of 

accepted facts (SOAF), the medical record, and a list of questions, to Dr. Allan Brecher, a Boardcertified orthopedic surgeon, for a second opinion. In an August 25, 2015 report, Dr. Brecher 

reviewed the SOAF and medical record. He noted appellant’s surgical, social, and family 

background. Dr. Brecher indicated that she used a crutch because she had recent surgery on her 

right knee and had trouble standing and putting weight on her knee. On examination of the 

extremities, he found that appellant could only flex and abduct the left shoulder to 90 degrees. 

Appellant reported that she had arthritis in the shoulder. Global strength was 4/5 in the left upper 

extremity and fine in the right arm. Dr. Brecher related that he could not judge appellant’s right 

and left lower extremities because she could not put weight on the right as she was recovering 

from surgery, but sensibility was grossly intact. Appellant had a healed keloid on her neck. 

Cervical motion was markedly limited. Appellant had no lateral flexion and 10 degrees 

right lateral flexion. Rotation was only 10 degrees, extension was 20 degrees, and flexion was 

20 degrees at best. Appellant had some spasm. Dr. Brecher believed that appellant was 

exaggerating her symptoms. He indicated that appellant would not bend or straighten her elbow. 

Dr. Brecher related that he had to encourage her and repeatedly show her what to do and then she 

was able to do it, but not with complete strength. He advised that appellant had reached MMI on 

January 17, 2011, one year after her December 17, 2010 surgery. Dr. Brecher indicated that she 

continued to complain about problems, but the objective findings showed healing of this fusion. 

He advised that it appeared appellant had some C5 nerve impingement with numbness and 

decreased sensation on the left, but was minor. Dr. Brecher noted that Dr. Gross used Table 2 in 

The Guides Newsletter, July/August 2009 which was not available to him. He only had the sixth 

edition of the A.M.A., Guides. Dr. Brecher related that the most relevant impairment he could 

give was using the upper trunk impairment on Table 15-20 for brachial plexus impairment. He 

determined that appellant had mild sensory and motor deficits which represented a class 

1 impairment. Dr. Brecher assigned grade modifiers 1 for GMFH and Physical Examination 

(GMPE) under Table 15-7 and Table 15-8 on pages 406 and 408, respectively. He determined 

that a grade modifier for Clinical Studies (GMCS) was not applicable. Dr. Brecher found that 

appellant had 3 percent impairment for sensory impairment and 9 percent impairment for mild 

motor deficit, totaling 12 percent permanent impairment of the left upper extremity. He found 

that she had no impairment of the right upper extremity. Dr. Brecher noted, however, that there 

was some exaggeration and from an orthopedic standpoint, he could not provide an impairment 

rating for appellant’s “nervous breakdown.” 

On November 9, 2015 Dr. Garelick, as the DMA, reviewed the medical record, including 

Dr. Gross’ July 23, 2014 findings and Dr. Brecher’s August 25, 2015 findings. He noted that 
6

appellant had already been given a schedule award for nine percent permanent impairment of the 

left upper extremity based on the July 23, 2014 findings of Dr. Gross. Dr. Garelick further noted 

that Dr. Brecher had not applied The Guides Newsletter July/August 2009 along with the 

A.M.A., Guides to rate her upper extremity impairment as utilized by Dr. Gross. Based on 

Dr. Brecher’s failure to follow the appropriate protocol to award permanent partial impairment, 

he recommended that his impairment rating be disregarded. As a result, Dr. Garelick concluded 

that Dr. Gross’ nine percent left upper extremity impairment rating should remain with no 

change to the date of MMI of January 14, 2013. 

In a December 16, 2015 decision, OWCP denied appellant’s claim for an additional 

schedule award. It found that Dr. Garelick’s November 9, 2015 opinion represented the weight 

of medical evidence to establish that she had no more than nine percent permanent impairment of 

the left upper extremity. 

By letter dated December 30, 2015, counsel requested a telephone hearing with an 

OWCP hearing representative. The hearing was held on August 1, 2016. He contended that 

there was a conflict in medical opinion between Dr. Allen’s 46 percent left upper extremity 

impairment rating and Dr. Brecher’s 12 percent left upper extremity impairment rating. 

In a September 22, 2016 decision, an OWCP hearing representative affirmed the 

December 16, 2015 decision. She found that no conflict existed in the medical opinion evidence 

between Drs. Allen and Brecher regarding the extent of appellant’s left upper extremity 

impairment. The hearing representative determined that the weight of the medical evidence 

rested with Dr. Garelick’s November 9, 2015 opinion as he properly utilized the sixth edition of 

the A.M.A., Guides and provided a rationalized opinion that appellant had no more than nine 

percent permanent impairment of the left upper extremity. 

LEGAL PRECEDENT 

The schedule award provision of FECA5

 and its implementing federal regulations6 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7

 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to rate permanent impairment.8

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 
7

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

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.9 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.10

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

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments. OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth 

edition.11

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

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.12

ANALYSIS 

The Board finds that appellant has not met her burden of proof to establish more than 

nine percent impairment of the left upper extremity. 

OWCP accepted appellant’s claim for neck sprain. On December 17, 2010 appellant 

underwent an OWCP-authorized ACDF at C4-5. On May 15, 2012 OWCP awarded two percent 

impairment of the left upper extremity. By decision dated August 1, 2013, it granted an 

additional seven percent impairment, totaling nine percent permanent impairment of the left arm. 

In an August 1, 2014 decision, OWCP denied her claim for an additional schedule award for the 

left upper extremity. This decision was set aside by an OWCP hearing representative on 

May 27, 2015 and remanded to OWCP for referral to a second opinion physician for 

examination. After such development, OWCP and an OWCP hearing representative, in 

decisions dated December 16, 2015 and September 22, 2016, respectively, denied appellant’s 

claim for an additional schedule award. 

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

10 Thomas J. Engelhart, 50 ECAB 319 (1999). 

11 See supra note 8 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4; see also E.P., Docket No. 16-1154 (issued October 26, 2016). 

12 See supra note 8 at Chapter 2.808.6(f) (February 2013). 
8

Following remand of the case by OWCP’s hearing representative on May 27, 2015, 

OWCP referred appellant to Dr. Brecher, a Board-certified orthopedic surgeon, for a second 

opinion. In his August 25, 2015 report, Dr. Brecher found that she had 12 percent impairment of 

the left upper extremity based on a brachial plexus impairment due to sensory and motor deficits 

under the sixth edition of the A.M.A., Guides. The Board finds that he failed to rate appellant’s 

impairment using The Guides Newsletter standard for spinal nerve root injuries involving the 

extremities. OWCP procedures provide that The Guides Newsletter Rating Spinal Nerve 

Extremity Impairment is the appropriate method of determining impairment in this case.13 The 

Guides Newsletter provides a specific method for determining impairments for conditions such 

as radiculopathy from a spinal nerve injury. It explains that, in the sixth edition, impairment for 

radiculopathy is reflected in the diagnosis-based impairment for the spinal region. In developing 

an alternative approach to rating isolated radiculopathy, it is important to provide consistency in 

impairment ratings between the chapters.14 Dr. Brecher acknowledged that he did not use The 

Guides Newsletter, July/August 2009, and sought to make a rating based on Table 15-20 for 

Brachial Plexus impairment. However, he did not sufficiently explain how this rating applied 

under the standards of the A.M.A., Guides or why it was more appropriate than using The Guides 

Newsletter.

15 Furthermore, Dr. Brecher cautioned that there was exaggeration on examination. 

The Board finds, therefore, that his impairment rating is of diminished probative value and 

insufficient to establish permanent impairment to appellant’s left upper extremity causally 

related to the accepted injury. 

Dr. Garelick, an OWCP DMA, reviewed the clinical findings and reports of Drs. Brecher 

and Gross, a prior OWCP DMA. He properly advised that Dr. Brecher’s opinion should be 

disregarded because he had not utilized The Guides Newsletter, together with the A.M.A., 

Guides, to rate appellant’s left upper extremity impairment. Dr. Garelick noted that she had 

already been awarded nine percent permanent impairment of the left upper extremity based on 

the July 23, 2014 findings of Dr. Gross, a prior OWCP DMA. He agreed with Dr. Gross’ 

impairment rating as Dr. Brecher did not follow appropriate protocol in rating appellant’s 

impairment. 

OWCP may rely on the opinion of a DMA to apply the A.M.A., Guides.

16 The Board 

finds that Dr. Garelick’s rating properly utilized the A.M.A., Guides and represents the weight of 

medical opinion evidence. 

In his August 15, 2013 report, Dr. Allen, a Board-certified internist and neurologist, 

found 36 percent permanent impairment due to motor deficits and 10 percent permanent 

impairment due to sensory deficits involving the C5, C6, C7, and C8 nerve roots, totaling 

46 percent permanent impairment of the left upper extremity based on the sixth edition of the 

 13 See supra note 11; G.N., Docket No. 10-0850 (issued November 12, 2010). 

14 L.J., Docket No. 10-1263 (issued March 3, 2011); Thomas J. Engelhart, 50 ECAB 319 (1999). 

15 See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted 

by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value 

in determining the extent of permanent impairment). 

16 See J.G., Docket No. 09-1714 (issued April 7, 2010). 
9

A.M.A., Guides, and The Guides Newsletter, July/August 2009. The Board notes that appellant 

had undergone an authorized ACDF surgery at C4-5 on December 17, 2010 to repair a 

compression fracture at C5. While Dr. Allen provided a greater impairment rating, he did not 

explain how surgery at the C4-5 level caused or contributed to impairment at the C6, C7, and C8 

levels. He also provided ratings that were greater than the maximum allowed under The Guides 

Newsletter.17 The Board finds, therefore, that his opinion is of diminished probative value and 

insufficient to establish greater impairment. 

The Board finds that appellant has not demonstrated greater permanent impairment than 

the prior left upper extremity schedule awards totaling nine percent and is not entitled to an 

additional schedule award for this extremity. 

Appellant may request an increased schedule award at any time based on evidence of a 

new exposure or medical evidence showing progression of an employment-related condition 

resulting in increased permanent impairment. 

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish more 

than nine percent permanent impairment of the left upper extremity, for which she previously 

received schedule awards. 

 17 Page 3 of the The Guides Newsletter provides that the combined sensory and motor impairment cannot exceed 

9 percent of the arm and the combined impairment for multiple-level or bilateral level radiculopathy cannot exceed 

37 percent for the arm. 
10

ORDER 

IT IS HEREBY ORDERED THAT the September 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board