United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

DEPARTMENT OF THE NAVY, U.S. MARINE 

CORPS, Camp Lejeune, NC, Employer 

__________________________________________ 

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Docket No. 17-0253 

Issued: February 17, 2017 

Appearances: Case Submitted on the Record

Martin L. Kaplan, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 16, 2016 appellant, through counsel, filed a timely appeal from an 

October 26, 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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish a schedule award. 

 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

FACTUAL HISTORY 

On September 19, 2012 appellant, then a 51-year-old lead human resources assistant, 

filed an occupational disease claim (Form CA-2) for a cervical and right upper extremity 

condition that she attributed to the performance of her job duties over time, which included 

typing, using a calculator, and answering the telephone. She indicated that she first became 

aware of her claimed condition on August 15, 2012 and first realized on August 22, 2012 that it 

was caused or aggravated by her employment.3 Appellant previously sustained an employmentrelated neck injury on April 21, 2003, which OWCP had accepted for cervical herniated disc 

(C5-6) (xxxxxx6345). On December 19, 2012 she underwent anterior C6-7 discectomy and 

fusion. 

After development of the medical evidence, OWCP accepted that on or about August 15, 

2012 appellant sustained a work-related permanent aggravation of cervical intervertebral disc 

displacement (C5-6) without myelopathy, permanent aggravation of bilateral cervical radiculitis, 

and permanent aggravation of cervical intervertebral disc degeneration. Appellant received 

wage-loss compensation for temporary total disability for the period December 6, 2012 through 

June 10, 2013.4

On May 11, 2016 appellant filed a claim for a schedule award (Form CA-7). In support 

of her claim she submitted a December 15, 2015 report including an impairment rating from 

Dr. Samy F. Bishai, a Board-certified orthopedic surgeon. Dr. Bishai reported appellant’s 

medical history and noted that electromyogram (EMG) testing of her upper extremities on 

July 16, 2015 showed changes most compatible with bilateral C5-6 radiculopathy.5 He indicated 

that appellant complained of radiculopathies from the cervical region radiating into the upper 

extremities, greater on the right side. Dr. Bishai reported the findings of his examination on 

December 15, 2015 and indicated that appellant had reached maximum medical improvement 

(MMI) on that date. His diagnoses included herniated cervical disc with bilateral radiculopathy 

of the upper extremities, cervical degenerative disc disease, bilateral upper extremity brachial 

neuritis, status postoperative anterior cervical disc excision and fusion, internal derangement of 

the left shoulder joint, and bilateral C6 nerve root radiculopathy of the upper extremities. 

In determining appellant’s upper extremity impairment, Dr. Bishai explained that 

appellant continued to have pain in her neck and radiation down the upper extremities, more 

 3

 OWCP previously accepted that on April 23, 2003 appellant sustained a traumatic injury in the form of a 

herniated disc at C5-6. 

4

 On June 10, 2013 appellant advised OWCP that she was returning to work. She accepted a voluntary early 

retirement (VERA) effective July 31, 2015. 

5

 Dr. Bishai also noted that his bilateral upper extremity neurological examination revealed signs and physical 

findings of a moderate nerve root radiculopathy of the C6 nerve root on both right and left sides. He also reported a 

motor deficit of moderate degree with diminished muscle and motor power of the biceps and radial wrist extensors 

on both sides, but more severe on the right side. Additionally, Dr. Bishai noted that the neurological examination 

revealed a sensory deficit of moderate degree affecting both right and left upper extremities, with the sensory deficit 

in the region of the lateral forearm and hand, as well as in the thumb on both right and left sides, but more severe on 

the right side. Lastly, he noted that appellant had reflex compromise of the pronator teres and brachioradialis 

reflexes, more so on the right side of moderate degree. 
3

severe on the right side. He further explained that the radiculopathy was definitely more severe 

on the right side, but appellant experienced pain in both upper extremities. Dr. Bishai noted that 

the diagnoses had been confirmed by EMG/nerve conduction velocity (NCV) studies of the 

upper extremities showing a bilateral radiculopathy of the C6 nerve root. He advised that he 

used The Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition” (July/August 2009) for his impairment rating calculations. Dr. Bishai indicated that, in 

each upper extremity, appellant had moderate sensory deficit at grade C, which equaled three 

percent upper extremity impairment and a moderate motor deficit at grade C, which equaled nine 

percent upper extremity impairment. The total impairment rating in each upper extremity was 

calculated by combining the C6 nerve root sensory deficit impairment of 3 percent with the C6 

nerve root motor deficit impairment of 9 percent, which equaled 12 percent permanent 

impairment in each upper extremity. Therefore, appellant had 12 percent permanent impairment 

of the right upper extremity due to the C6 nerve root radiculopathy of the right side and 12 

percent permanent impairment of the left upper extremity due to the C6 nerve root radiculopathy 

of the left side. Dr. Bishai indicated that these permanent impairments were due to the accepted 

work injuries. 

In a June 23, 2016 report, Dr. Jovito Estaris, a Board-certified occupational medicine 

physician serving as an OWCP medical adviser, noted that he had reviewed the December 15, 

2015 report of Dr. Bishai. He indicated that Dr. Bishai had not adequately supported his finding 

that the permanent impairments he calculated for the upper extremities were due to the accepted 

work injuries. Dr. Estaris noted that the record did not contain the July 16, 2015 EMG findings 

that Dr. Bishai referenced and that the findings of the March 12, 2014 EMG testing of the right 

upper extremity was negative for peripheral nerve entrapment and negative for muscle 

denervation from a motor neuropathy or C5-T1 motor radiculopathy. He also noted that he 

reviewed a medical report from Johnston Pain Clinic on May 6, 2016, and commented that the 

more recent physical examination was inconsistent with Dr. Bishai’s March 30, 2016 physical 

examination findings.6

 Based on the purported inconsistencies in the diagnostic studies and 

examination findings, Dr. Estaris recommended that OWCP refer appellant for a second opinion 

evaluation to determine the existence and extent of any permanent impairment. 

In August 2016 OWCP referred appellant to Dr. James A. Maultsby, a Board-certified 

orthopedic surgeon, for a second opinion examination and impairment rating under the sixth 

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

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

In a report produced on September 14, 2016,7 Dr. Maultsby detailed appellant’s factual 

and medical history, including prior findings on examination and diagnostic testing. He 

indicated that EMG testing of appellant’s upper extremities conducted on July 20, 2016 appeared 

nonphysiological, and it was noted that no radiculitis was present.8

 Dr. Maultsby indicated that 

 6

 The referenced May 6, 2016 evaluation was performed by Tiniki White, a certified physician assistant (PA-C). 

Additionally, the current record does not include a March 30, 2016 examination from Dr. Bishai. 

7

 Although the report is dated August 31, 2016, it was actually produced on September 14, 2016. 

8

 The referenced July 20, 2016 EMG is not part of the current record. 
4

the findings of EMG testing of the upper extremities conducted on September 13, 2016 showed 

normal results with no evidence of radiculitis or carpal tunnel syndrome. He noted that, upon 

examination on August 31, 2016, appellant had full range of motion of her neck and shoulder 

and that there was no muscle weakness. Dr. Maultsby reported that appellant exhibited a lack of 

effort during the examination. He found that appellant had reached MMI as of the date of his 

examination. Dr. Maultsby noted: 

“It is my impression that [appellant] had a great deal of subjective complaints that 

were not corroborated by physical findings. She has a solid surgical fusion at C5-

6. For the impairment rating utilizing [The Guides Newsletter, “Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009)], she 

has no nerve root injury or impairment of the upper extremities. Therefore, she 

has a 0 impairment utilizing the spinal nerve/extremity impairment using the 

[sixth edition of the A.M.A., Guides].” 

In a report dated October 23, 2016, Dr. Estaris, serving as an OWCP medical adviser, 

indicated that he had reviewed the September 14, 2016 report of Dr. Maultsby and agreed that 

appellant did not have any permanent impairment in either upper extremity due to the accepted 

work injuries. 

In a decision dated October 26, 2016, OWCP determined that appellant had not 

established permanent impairment to a scheduled member due to her accepted work injury. It 

found that the September 14, 2016 report of Dr. Maultsby and the October 23, 2016 report of 

Dr. Estaris showed that appellant did not have any permanent impairment in her right or left 

upper extremity due to the accepted work injury. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.9 FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.10 Effective May 1, 2009, schedule awards are determined in 

accordance with the A.M.A., Guides (6th ed., 2009).11

 9

 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ 

compensation. 5 U.S.C. § 8107(c)(1). 

10 20 C.F.R. § 10.404. 

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

(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 
5

Neither FECA nor the regulations provide for the payment of a schedule award for the 

permanent loss of use of the back/spine or the body as a whole.12 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.13 The A.M.A., Guides (6th ed., 2009) provides a specific methodology for rating 

spinal nerve extremity impairment.14 It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper 

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are 

incorporated in the procedure manual.15

ANALYSIS 

OWCP accepted appellant’s occupational disease claim for permanent aggravation of 

cervical intervertebral disc displacement (C5-6) without myelopathy, permanent aggravation of 

bilateral cervical radiculitis, and permanent aggravation of cervical intervertebral disc 

degeneration. Appellant underwent spinal surgery in December 2012, and returned to work in 

June 2013. In May 2016, she filed a claim for a schedule award (Form CA-7) and submitted a 

December 15, 2015 impairment rating from Dr. Bishai, who found 12 percent bilateral upper 

extremity impairment due to motor and sensory deficits involving the C6 nerve root.16 The 

district medical adviser (DMA) identified perceived deficiencies in Dr. Bishai’s impairment 

rating, and consequently, recommended that OWCP refer appellant for a second opinion 

evaluation. In a September 14, 2016 report, Dr. Maultsby, an OWCP-referral physician, found 

that appellant had no (zero percent) impairment of her upper extremities due to her accepted 

cervical condition(s). The DMA subsequently reviewed Dr. Maultsby’s findings and concurred 

with the finding of zero percent bilateral upper extremity impairment. OWCP, therefore, denied 

appellant’s claim for a schedule award based on the reports provided by Dr. Maultsby and the 

DMA. 

The Board finds that OWCP properly determined that appellant failed to meet her burden 

of proof to establish permanent impairment to a scheduled member due to her accepted work 

injury. The opinions of Dr. Maultsby and Dr. Estaris show that appellant did not have any 

permanent impairment in her right or left upper extremity due to the accepted work injury. 

In his September 14, 2016 report, Dr. Maultsby indicated that EMG testing from July 20, 

and September 13, 2016 did not support a finding of radiculitis. He also noted that appellant had 

a great deal of subjective complaints that were not corroborated by physical findings. 

 12 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

13 Federal (FECA) Procedure Manual, Part 2 supra note 11 at Chapter 2.808.5c(3). 

14 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.

15 See Federal (FECA) Procedure Manual, Part 3, supra note 11 at Chapter 3.700, Exhibit 4. 

16 See Proposed Table 1, Spinal Nerve Impairment: Upper Extremity Impairments, The Guides Newsletter

(July/August 2009). 
6

Additionally, Dr. Maultsby commented that appellant’s cervical spine had a solid surgical fusion. 

He properly noted, “For the impairment rating utilizing [The Guides Newsletter, ‘Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition’ (July/August 2009)], she has no nerve root 

injury or impairment of the upper extremities. Therefore, appellant has zero impairment utilizing 

the spinal nerve/extremity impairment using the [sixth edition of the A.M.A., Guides].” 

Dr. Maultsby’s finding of no permanent impairment was supported by the opinion of Dr. Estaris, 

the DMA. In his October 23, 2016 report, Dr. Estaris explained that he agreed with the 

assessment of Dr. Maultsby that appellant had no permanent impairment in either upper 

extremity due to the accepted work injuries. Additionally, he had previously noted that the 

July 16, 2015 EMG study, which Dr. Bishai relied upon was not part of the record, and a prior 

right upper extremity EMG from March 2014 was negative for both peripheral nerve entrapment 

and muscle denervation. 

While Dr. Bishai found 12 percent bilateral upper extremity impairment due to C6 motor 

and sensory deficits, the diagnostic study upon which he relied upon confirmed his 

physical/neurological findings of cervical radiculopathy were not part of the record and; 

therefore, the validity of the test results could not be confirmed. Moreover, the more recent 

physical examination findings and diagnostic studies as outlined by both Dr. Maultsby and the 

DMA do not support a finding of any permanent upper extremity impairment. Accordingly, the 

Board finds that appellant has failed to establish entitlement to a schedule award. 

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 failed to meet her burden of proof to establish a schedule. 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 26, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: February 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board