United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 17-0109 

Issued: August 8, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 25, 2016 appellant filed a timely appeal from a September 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met her burden of proof to establish that she has 

permanent impairment of her upper extremity due to her accepted conditions thereby warranting 

a schedule award. 

FACTUAL HISTORY 

On November 18, 1996 appellant, then a 41-year-old mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that she injured her lower back and her trapezoid and deltoid 

 1

 5 U.S.C. § 8101 et seq. 
2

muscles on November 8, 1996 while working on a conveyor belt. The claim was adjudicated by 

OWCP under File No. xxxxxx290. The employing establishment controverted the claim. On 

January 10, 1997 OWCP denied the claim. By decision dated July 7, 1998, a hearing 

representative with OWCP’s Branch of Hearings and Review affirmed the January 10, 1997 

decision. 

On October 14, 1997 appellant filed an occupational disease claim (Form CA-2) alleging 

that degenerative discs in her neck were due to years of carrying a mailbag as a letter carrier.2

 

OWCP adjudicated this claim under File No. xxxxxx474. On January 26, 1998 it accepted 

aggravation of cervical spondylosis under File No. xxxxxx474. 

Appellant appealed the July 7, 1998 decision to the Board. 

In an order dated March 6, 2000 regarding File No. xxxxxx290, the Board set aside 

OWCP’s July 7, 1998 decision and remanded the case to OWCP to combine File Nos. 

xxxxxx290 and xxxxxx474.3 The claims were administratively combined by OWCP, with File 

No. xxxxxx474 serving as the master file. It later accepted the claim for a neck sprain. In 2001 

appellant was employed privately as a sales representative. 

On January 23, 2006 appellant filed a schedule award claim (Form CA-7) under File No. 

xxxxxx474.4

 By letter dated February 7, 2006, OWCP informed her that, while schedule awards 

were not paid for impairment to the spine, she may submit an impairment rating of her upper 

extremities in accordance with the fifth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).5 

Thereafter, OWCP received an electrodiagnostic study dated February 1, 2005, which 

indicated borderline right carpal tunnel syndrome, and no electrodiagnostic evidence of right 

ulnar or cervical radiculopathy. 

On May 19, 2006 OWCP asked appellant’s attending family physician, Dr. O’Connor, to 

rate appellant’s impairment under the fifth edition of the A.M.A., Guides. In an October 13, 

2006 report, Dr. O’Connor reported that maximum medical improvement was reached in 1997. 

He advised that appellant was right-arm dominant, and had diminished biceps and triceps 

 2

 The record indicates that appellant began a casual appointment as a letter carrier on August 24, 1992 and 

worked as a noncareer employee for various periods through November 3, 1996. On November 9, 1996 appellant 

began a career appointment as a mail handler and was terminated during the probationary period on December 26, 

1996 for failure to meet the requirements of the position and failure to follow instructions. 

3

 Docket No. 99-0018 (issued March 6, 2000). 

4

 Appellant had previously filed two CA-7 claims for compensation on October 9, 2002, one for wage-loss 

compensation and one for a schedule award. OWCP sent her a development letter on October 25, 2002. Appellant 

did not respond or forward medical evidence until December 23, 2003 when she submitted a February 3, 2003 report 

in which Dr. T.A. O’Connor, a family physician, discussed her current condition, but did not provide an impairment 

evaluation. She also submitted a January 17, 2003 magnetic resonance imaging (MRI) scan of the cervical spine 

that demonstrated degenerative changes at C5-6 and C6-7, resulting in left neural foraminal encroachment and 

bulging disc. 

5

 A.M.A., Guides (5th ed. 2001). 
3

reflexes, diminished right hand grasp, and progressive right upper extremity atrophy. 

Dr. O’Connor indicated that appellant was unemployable due to C6-8 radiculopathy and had 

daily stiffness, muscle contraction, and pain that required medication. He opined that she had 

100 percent right arm permanent impairment. 

In a report dated August 28, 2007, Dr. Jerome Lerner, an attending Board-certified 

physiatrist, noted appellant’s complaints of cervicalgia, right shoulder, mid, and low back pain. 

He reported that she developed neck pain while working for the employing establishment in the 

1990s which progressed to right arm radiculopathy in approximately 2004. Dr. Lerner further 

indicated that appellant had been in a motor vehicle accident in 2005 where she tore her right 

rotator cuff and aggravated her other conditions. He described physical examination findings of 

cervical spine tenderness with moderately reduced range of motion and mild weakness of right 

biceps and triceps. Dr. Lerner diagnosed displacement of cervical disc without myelopathy, 

cervical radiculopathy, and myalgia/myositis, not otherwise specified. He recommended 

epidurals and physical therapy. 

In a July 16, 2008 report, Dr. Amon Ferry, a Board-certified orthopedic surgeon and an 

OWCP medical adviser, related his review of the record including the reports of Dr. O’Connor 

and Dr. Lerner. He noted the dramatic discrepancies in their physical examinations and 

recommended an impairment evaluation by an orthopedic surgeon as the existing evidence was 

not in posture for an impairment rating. 

A statement of accepted facts (SOAF) dated May 7, 2010 indicated that the accepted 

conditions were cervical spondylosis without myelopathy, closed dislocation first cervical 

vertebral, brachial neuritis or radiculitis, cervicalgia, and neck sprain. 

Appellant moved from Wisconsin to Arkansas in 2013. She contacted OWCP regarding 

her schedule award claim in February 2015. 

By decision dated September 23, 2016, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish upper extremity 

impairment in accordance with the sixth edition of the A.M.A., Guides.6

LEGAL PRECEDENT 

It is the claimant’s burden of proof to establish a permanent impairment of a scheduled 

member or function as a result of any employment injury.7

The schedule award provisions of FECA,8

 and its implementing federal regulations,9 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

 6

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

7 See Tammy L. Meehan, 53 ECAB 229 (2001). 

8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404. 
4

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.10 For decisions issued 

after May 1, 2009, the sixth edition will be used.11

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.12 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.13

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.14 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 outlined in a JulyAugust 2009 The Guides Newsletter.

15 Specifically, OWCP will address lower extremity 

impairments originating in the spine through Table 16-1116 and upper extremity impairment 

originating in the spine through Table 15-14.17 

ANALYSIS 

The Board finds that this case is not in posture for decision regarding appellant’s 

permanent impairment due to the accepted conditions. Under File Nos. xxxxxx474 and 

xxxxxx290, OWCP accepted cervical spondylosis without myelopathy, closed dislocation first 

cervical vertebra, brachial neuritis or radiculitis, cervicalgia, and neck sprain. 

 10 Id. at § 10.404(a). 

11 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). 

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

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

14 Rozella L. Skinner, 37 ECAB 398 (1986). 

15 FECA Transmittal No. 10-04 (issued January 9, 2010); supra note 11 at Chapter 3.700, Exhibit 1, note 5 

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

16 Supra note 6 at 533. 

17 Id. at 425. 
5

Dr. O’Connor, an attending family physician, advised that appellant was right arm 

dominant, and had diminished biceps and triceps reflexes, diminished right hand grasp, and 

progressive right upper extremity atrophy. He indicated that appellant was unemployable due to 

C6-8 radiculopathy and had daily stiffness, muscle contraction, and pain that required 

medication. Dr. O’Connor opined that appellant had 100 percent right arm permanent 

impairment. 

Dr. Lerner, an attending physiatrist, described examination findings of cervical spine 

tenderness with moderately reduced range of motion and mild weakness of right biceps and 

triceps. He diagnosed displacement of cervical disc without myelopathy, cervical radiculopathy, 

and myalgia/myositis, not otherwise specified. 

A review of the case record shows that Dr. Ferry, an OWCP medical adviser, noted on 

July 16, 2008 that there were discrepancies in the physical examinations of Dr. O’Connor and 

Dr. Lerner and recommended that appellant have an impairment evaluation by an orthopedic 

surgeon. OWCP, however, did not refer appellant for a second opinion evaluation, and the case 

was thereafter dormant for several years. Proceedings under FECA are not adversarial in nature 

and OWCP is not a disinterested arbiter. While the claimant has the burden of proof to establish 

entitlement to compensation, OWCP shares responsibility in the development of the evidence. 

Once it has begun an investigation of a claim, it must pursue the evidence as far as reasonably 

possible. OWCP has an obligation to see that justice is done.18

Accordingly, the Board finds this case is not in posture for decision. Further 

development is required on the issue of whether appellant is entitled to schedule awards for the 

accepted cervical and brachial conditions. On remand OWCP shall prepare an updated SOAF 

and refer appellant to an appropriate specialist for an opinion on appellant’s permanent 

impairment due to the accepted conditions, in accordance with section 3.700 of OWCP 

procedures, which memorializes proposed tables outlined in a July-August 2009 The Guides

Newsletter.

19 Following this and other development deemed necessary, OWCP shall issue a de 

novo decision on appellant’s claim for a schedule award for the accepted conditions.20 

CONCLUSION 

The Board finds this case not in posture for decision. 

 18 A.A., 59 ECAB 726 (2008). 

19 Supra note 15. 

20 See M.D., Docket No. 13-503 (issued September 19, 2013). 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 23, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for 

proceedings consistent with this opinion of the Board. 

Issued: August 8, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board