United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.O., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Francisco, CA, Employer 

__________________________________________ 

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Docket No. 15-1631 

Issued: June 2, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 27, 2015 appellant filed a timely appeal from a January 27, 2015 merit decision 

and a June 19, 2015 nonmerit 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. 

ISSUES 

The issues are: (1) whether appellant has established that he sustained more than one 

percent permanent impairment to his left upper extremity and more than one percent permanent 

impairment to his right upper extremity, for which he previously received a schedule award; and 

(2) whether OWCP properly refused to reopen appellant’s case for review of the merits pursuant 

to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 28, 2007 appellant, then a 55-year-old special agent, filed a traumatic 

injury claim (Form CA-1) alleging that on September 27, 2007 he injured his left upper arm 

when he bumped against a door while moving boxes.2 OWCP accepted the claim for left elbow 

strain and cervicothoracic strain and paid benefits. Appellant stopped work following the injury 

and returned to work on December 4, 2007.3

 He retired from the employing establishment on 

March 31, 2009. 

In a November 22, 2010 report, Dr. Joel Weddington, an orthopedic surgeon, noted that 

appellant was referred by his treating physician for an impairment rating of the upper 

extremities, neck, and back. He diagnosed severe cervical spine degenerative changes with 

spondylosis and multilevel disc pathology and herniation; left elbow lateral epicondylitis with 

chronic pain; chronic thoracic pain and mild degenerative changes; left shoulder partial rotator 

cuff tear and loss of function and motion; and right shoulder impairment with loss of motion, 

magnetic resonance imaging (MRI) scan pending. Dr. Weddington concluded that appellant had 

reached maximum medical improvement as of the date of his examination. Citing to tables and 

figures within the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (A.M.A., Guides), sixth edition, he set forth his calculations and opined that the left 

shoulder permanent impairment was five percent, the right shoulder permanent impairment was 

four percent, and the permanent impairment of the left elbow was one percent. Dr. Weddington 

also indicated that appellant had 20 percent whole person impairment for the cervical spine and 2 

percent whole person impairment for the thoracic spine. 

On December 3, 2010 and May 23, 2012 appellant filed a Form CA-7 claim for a 

schedule award. 

In a December 6, 2010 supplemental report, Dr. Weddington determined that appellant 

sustained 10 percent right arm permanent impairment due to his shoulder conditions noted that 

the November 22, 2010 MRI scan findings of the right shoulder revealed full thickness rotator 

cuff tear and acromioclavicular osteoarthritis. He noted that he had rated the cervical spine at 20 

percent in his previous report and wished to add the impairment rating for intervertebral disc 

herniations at one or more levels with medically documented injury with documented signs of 

radiculopathy of a single, chronic, and appropriate level. 

 2

 Appellant filed several prior claims, includes file numbers xxxxxx875, xxxxxx824, xxxxxx405, and xxxxxx564. 

Under file number xxxxxx875, OWCP accepted a lumbosacral strain for a May 14, 2002 work injury. It 

subsequently accepted a cervical strain, thoracic strain, bilateral knee sprain, bilateral shoulder sprain, and left hip 

strain. Appellant returned to his full-duty work position on September 16, 2002. Under file number xxxxxx824, 

OWCP accepted that he sustained a temporary aggravation of a cervical strain on June 29, 1992. This claim was 

subsequently denied for continued benefits on September 10, 2002. Under file number xxxxxx405, OWCP accepted 

that he sustained an aggravation of cervical spondylosis and right shoulder tendinitis on May 24, 1999. This claim 

was subsequently closed for medical treatment due to inactivity. Under file number xxxxxx564, OWCP accepted 

that appellant sustained a work-related cervical and right shoulder strains on June 28, 2000. This claim was closed 

on March 6, 2003. 

3

 Appellant was on compensation time from October 1 through November 9, 2007 and then was on leave without 

pay from November 12 through December 3, 2007. 
3

In an April 13, 2011 report, Dr. Ellen Pichey, an OWCP medical adviser, reviewed 

Dr. Weddington’s report and opined that the total impairment for the left upper extremity 

equaled one percent. Utilizing the sixth edition of the A.M.A., Guides, she noted: 

“Impairment due to left elbow strain, history of painful injury, residual symptoms 

without consistent objective findings. [A]s per Table 15-4 page 98, class 1, 

default position C, one present. Impairment for the clinical studies is not 

applicable. Impairment for the physical examination is grade modifier 0, as per 

Table 15-8 page 408. Impairment for the functional history is grade modifier 1 as 

per Table 15-7 page 406. Using the net adjustment formula, page 411, the default 

position is modified by -1, moving to default position B and an impairment of one 

percent. 

The medical adviser noted that Dr. Weddington gave impairment for the shoulder, which was not 

an accepted condition, and that impairment for the cervical spine could only be assessed as 

impairment to an extremity, and there appeared to be no neuropathy or other ratable impairment. 

On May 5, 2011 OWCP determined that a second opinion examination was necessary to 

determine the current status of appellant’s accepted conditions. 

In a June 1, 2011 report, Dr. Ramon L. Jimenez, a Board-certified orthopedic surgeon 

and OWCP referral physician, opined that appellant continued to have residuals of the neck 

sprain with the resultant diagnosis of cervical stenosis secondary to multiple disc protrusions, 

which never resolved. He indicated that the left elbow strain had resolved and appellant’s 

symptoms were more from his neck and left shoulder. Dr. Jimenez indicated that the MRI scan 

evidence of the cervical spine pathology reasonably substantiated causation, as it was objective 

medical evidence of the cause of his symptoms. The residuals of the cervical sprain could be 

documented by the subjective complaints of pain, particularly of a radicular nature, and the 

objective findings of limitation of motion, tenderness, and carpal tunnel like symptoms to the left 

and right hands and wrists. Dr. Jimenez indicated that there was no evidence of any 

nonindustrial or preexisting disability. 

On August 11, 2011 OWCP requested that Dr. Jimenez clarify his opinion that residuals 

of the September 27, 2007 neck strain continued. In an August 30, 2011 supplemental report, 

Dr. Jimenez advised that appellant had a diagnosis of cervical sprain. Appellant had developed 

signs and symptoms of numbness and tingling, while cervical sprain, as well as some underlying 

cervical spondylosis, had been present initially, with the persistent symptoms and mechanical 

derangement in his neck, it was likely that the underlying condition exacerbated and worsened, 

developing into a cervical disc protrusion. Dr. Jimenez further clarified that the cervical disc 

protrusions were related to the cervical sprain. He explained that the cervical sprain was the 

initial injury, which aggravated the underlying condition on a permanent basis. Thus, the disc 

protrusions were consequential to the cervical sprain and represented an aggravation. 

By letter dated December 5, 2011, OWCP advised appellant that his claim for schedule 

award compensation benefits could not be processed because the medical evidence of record 

indicated that his conditions had not reached maximum medical improvement. 
4

In a January 23, 2012 report, Dr. Fred Blackwell, a Board-certified orthopedic surgeon, 

indicated that appellant was considered to be at maximum medical improvement. He explained 

that, although appellant was a candidate for surgery based on MRI scan studies for both 

shoulders and clinical findings, surgical intervention had been declined. Dr. Blackwell indicated 

that there was no other form of treatment that could provide any substantial change in the 

mechanical anatomical abnormalities that have been identified and, therefore, appellant is by 

definition at maximum medical improvement. 

On March 30, 2012 OWCP determined that another second opinion examination was 

necessary to determine the status of appellant’s accepted conditions. It updated the statement of 

accepted facts (SOAF) to note degenerative diseases of the spine or shoulder were not accepted 

as work related under this claim. 

In a May 21, 2012 report, Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon and 

OWCP referral physician, indicated that appellant had multiple previous injuries to his neck, and 

an aggravation of the previous injuries in 2008 when he was undergoing training. He noted that 

appellant continued to have neck problems, but that appellant had prior injuries to his neck and 

those prior injuries led to the accepted injury of 2007, and later the aggravation of 2008. 

Dr. Nijjar found that the left elbow examination had no objective findings of sprain of the elbow 

and it appeared that the elbow sprain had resolved. He indicated that the condition most likely 

resolved one year after the injury. With regard to the cervical sprain, Dr. Nijjar noted that 

appellant had significant pathology as confirmed by the MRI scan and his history of multiple 

injuries affecting his cervical spine. He indicated that the cervical sprain should have resolved 

within a year or so, but since appellant had significant pathology due to other injuries, at this 

time, it is medically impossible to separate other injuries from the cervical sprain. Therefore, 

Dr. Nijjar concluded that there was a good likelihood that appellant did not have residuals of the 

accepted cervical sprain and his current condition was caused by other injuries. 

In its July 11, 2012 notice of proposed termination, OWCP disqualified Dr. Jimenez’ 

second opinion reports as they were not based upon the SOAF, objective medical evidence, or 

rationale. 

In a July 24, 2012 report, Dr. Pichey, the OWCP medical adviser, again reviewed the 

record and opined that there was no change in her previous calculation of one percent 

impairment to the left upper extremity. She noted that the accepted conditions were left elbow 

sprain and neck sprain and that appellant was previously found to have one percent impairment 

of the left upper extremity. The medical adviser additionally noted that degenerative conditions 

affecting the left shoulder or cervical spine were not accepted as work related in this case. As 

Dr. Nijjar noted, the elbow sprain had resolved, and the medical adviser indicated that under 

Table 15-4, page 398, appellant had class 0 or zero percent impairment. Dr. Nijjar also indicated 

that the acute cervical strain related to the initial injury resolved, although appellant remained 

symptomatic, but which was related to a chronic degenerative condition. Thus, the medical 

adviser indicated that appellant had zero percent permanent impairment of the left upper 

extremity. 

In a July 21, 2012 report, Dr. Blackwell commented upon Dr. Nijjar’s opinion that there 

was a “good likelihood” that appellant did not suffer from residuals of his September 27, 2007 
5

cervical sprain and that his current cervical condition was related to appellant’s other cervical 

injuries and were merely subjective. He noted that Dr. Nijjar provided no medical rationale to 

suggest that the neck sprain was resolved. Dr. Blackwell explained that it was common 

knowledge in orthopedics that underlying pathology could exist in an asymptomatic fashion only 

to be revealed by a specific injury and become a chronic problem. He also opined that, since 

chronic sprain findings and the underlying pathology could not be distinguished, it was illogical 

on Dr. Nijjar’s part to find that the sprain was no longer a factor. Dr. Blackwell indicated that he 

agreed with Dr. Nijjar that appellant no longer had any significant pathology or orthopedic issues 

relating to the elbow sprain. 

By decision dated September 17, 2012, OWCP terminated appellant’s entitlement for 

medical and wage-loss benefits effective September 17, 2012. Also, by decision dated 

September 17, 2012, it denied his claim for a schedule award based on the determination that he 

had not sustained a measureable impairment due to his accepted September 27, 2007 injury, 

which had resolved. 

Appellant disagreed with the September 17, 2012 decisions and requested an oral 

hearing, which was held on February 19, 2013. By decision dated April 24, 2013, an OWCP 

hearing representative affirmed in part OWCP’s September 17, 2012 termination decision, 

finding that his work-related left elbow strain had resolved. However, it reversed the termination 

decision, with regard to his accepted cervical strain as there remained an unresolved conflict in 

medical opinion. The hearing representative noted that appellant had prior claims for accepted 

cervical conditions under file numbers xxxxxx875, xxxxxx824, xxxxxx405, and xxxxxx564, 

which were not referenced in the SOAF and both second opinion physicians in the instant claim 

had referenced appellant’s prior cervical claim injuries, but did not review medical evidence 

which pertained to those cases. The hearing representative found that those cases should be 

doubled with the current claim and a new SOAF should be issued to reflect relevant medical 

history. The hearing representative found that Dr. Blackwell had concurred with OWCP’s 

referral physician Dr. Jimenez’ June 1 and August 30, 2011 opinions that appellant’s workrelated cervical injury had not resolved. In his July 21, 2012 report, he did not agree with 

Dr. Nijjar’s May 21, 2012 second opinion, which concluded that there was a “good likelihood” 

that appellant did not suffer from residuals of his September 27, 2007 cervical sprain and that his 

current cervical condition was related to his other cervical injuries. Thus, the hearing 

representative found that OWCP had not met its burden of proof to establish that appellant’s 

work-related cervical condition had resolved. There remanded an unresolved conflict in medical 

opinion between Dr. Blackwell and Dr. Nijjar. The hearing representative set aside OWCP’s 

September 17, 2012 decision denying appellant’s entitlement to schedule award compensation 

benefits and remanded for resolution of the conflict in medical opinion regarding the degree of 

his permanent impairment and date of maximum medical improvement. 

OWCP referred appellant, an updated SOAF and list of questions to Dr. Martin Trieb, a 

Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict 

of medical opinion with regard to the percentage of permanent partial impairment to any 

extremity affected by the accepted medical conditions of left elbow sprain and neck sprain. 
6

In a September 2, 2014 report, Dr. Trieb reviewed the case record and noted the history 

of injury and provided examination findings.4 Examination demonstrated weakness of the 

bilateral intrinsic muscles of the hands as well as abnormal sensation in the median, radial, and 

ulnar nerve distribution. Examination of the cervical spine demonstrated limited range of 

motion. Dr. Trieb opined that appellant’s left elbow sprain had resolved. He also opined that 

appellant’s cervical condition was related to his employment injuries and provided medical 

rationale. Based on his review of the record, Dr. Trieb opined that appellant’s cervical 

symptoms had plateaued and reached maximum medical improvement on or about 

November 22, 2010. While OWCP requested that he provide an impairment calculation using 

the sixth edition of the A.M.A., Guides,5 he advised he would continue to use the fifth edition of 

the A.M.A., Guides until the California Orthopedic Association directed him to use the sixth 

edition. Based on the fifth edition of the A.M.A., Guides, calculated 24 percent whole person 

impairment of the cervical spine. 

On December 15, 2014 OWCP directed that a different medical adviser review 

Dr. Trieb’s September 2, 2014 report and to convert Dr. Trieb’s impairment calculation to the 

sixth edition of the A.M.A., Guides for the accepted conditions of left elbow sprain and neck 

sprain. In a January 2, 2015 report, an OWCP medical adviser, Dr. Arthur S. Harris reviewed 

appellant’s file and noted that OWCP accepted conditions of neck sprain and left elbow sprain. 

He advised, based on a review of the medical record, that appellant had degenerative 

joint/degenerative disc disease of the cervical spine, cervical disc bulging C4-5 C6-7, and 

cervical radiculopathy. Utilizing The Guides Newsletter July/August 2009 to rate spinal nerve 

impairments, the medical adviser opined that appellant has one percent permanent impairment of 

the right upper extremity for residual problems with mild pain/impaired sensation from right 

sided C6 cervical radiculopathy and 1 percent permanent impairment of the left upper extremity 

for residual problems with mild pain/impaired sensation from left C6 cervical radiculopathy. He 

reported that maximum medical improvement was reached on November 22, 2010 for both the 

right upper extremity and the left upper extremity as indicated by Dr. Trieb in his September 2, 

2014 report. The medical adviser noted that Dr. Trieb had calculated impairment based on the 

fifth edition of the A.M.A., Guides and on the cervical spine grid, which is not the proper 

approach utilized by OWCP to rate spinal nerve impairments. 

By decision dated January 27, 2015, OWCP issued a schedule award for one percent 

impairment to the right upper extremity and one percent impairment to the left upper extremity. 

The award ran 6.24 weeks for the period November 22, 2010 to January 4, 2011. 

On March 27, 2015 OWCP received appellant’s request for reconsideration of its 

January 27, 2015 decision. Appellant sent in several letters concerning the status/failure of 

OWCP to expand and/or adjudicate his upper extremities, bilateral shoulders, and back 

conditions. 

 4

 Dr. Trieb also provided examination findings of the shoulder which he noted was not part of the accepted facts, 

but was important as there was radiating pain from the neck in the shoulders. 

5

 A.M.A., Guides (6th ed. 2009). 
7

In a February 13, 2015 medical report, Dr. Blackwell, a Board-certified orthopedic 

surgeon, noted that he had reviewed the medical adviser’s January 2, 2015 report and that the 

medical adviser did not provide an explanation of how he determined the impairment rating of “1 

percent WPI.” He contended that his report of November 17, 2013 should be used for 

calculation of the award.6

 

By decision dated June 19, 2015, OWCP declined to review the merits of the claim. It 

found the reconsideration request was insufficient to warrant further review of the merits of the 

claim. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA,7 and its implementing federal regulations,8 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.9

 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to rate permanent impairment.10 

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

spinal nerve injuries as extremity impairment. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to 

rating spinal nerve impairments.11 OWCP has adopted this approach for rating impairment to the 

upper or lower extremities caused by a spinal injury.12 The impairment is premised on evidence 

of radiculopathy affecting the upper and/or lower extremities.13

 6

 In his November 17, 2013 report, Dr. Blackwell noted that appellant had been permanent and stationary since 

November 22, 2010. He noted that page 2 of The Guides Newsletter July/August 2009 rating spinal nerve extremity 

impairment stated that cervical spine intervertebral disc herniations were rated per Table 17-2, cervical spine 

regional grid. Dr. Blackwell calculated 12 percent upper extremity impairment for sensory peripheral nerve injury 

and motor deficits. 

7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. 

9 Id. at § 10.404(a). 

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

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

(February 2013). 

11 See Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (February 2013); 

and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010); see also R.M., Docket No. 

12-1811 (issued March 14, 2013). 

12 Id. at Chapter 3.700, Exhibit 4 (January 2010); see R.M., Docket No. 12-1811 (issued March 14, 2013). 

13 Id. 
8

Section 8123(a) of FECA 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.14 The implementing regulations 

state 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 

appoint a third physician to make an examination. 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.15 When there exist opposing medical reports of virtually equal weight 

and rationale and the case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based 

upon a proper factual background, must be given special weight.16 

When OWCP secures an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the opinion from the specialist requires 

clarification or elaboration, it has the responsibility to secure a supplemental report from the 

specialist for the purpose of correcting a defect in the original report.17 When the impartial 

medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist 

is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is 

also vague, speculative, or lacks rationale, OWCP must submit the case record and a detailed 

SOAF to a second impartial specialist for a rationalized medical opinion on the issue in 

question.18 Unless this procedure is carried out by OWCP, the intent of section 8123(a) will be 

circumvented and the impartial medical examiner’s report is insufficient to resolve the conflict in 

medical evidence.19

OWCP procedures further provide that, while an OWCP medical adviser may review the 

opinion of a referee specialist in a schedule award case, the resolution of the conflict is the 

specialist’s responsibility and not that of OWCP’s medical adviser who should not resolve the 

conflict of medical opinion or attempt to clarify or expand the opinion of the medical referee. If 

clarification is necessary, a supplemental report should be obtained from the referee specialist.20 

 14 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

15 20 C.F.R. § 10.321. 

16 V.G., 59 ECAB 635 (2008). 

17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.11(d)(2) (September 2010). 

18 See D.T., Docket No. 14-332 (issued May 14, 2014); Talmadge Miller, 47 ECAB 673 (1996); see also Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e) 

(September 2010). 

19 See D.T., id. 

20 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6(g)(1,2) (February 2013). 
9

ANALYSIS -- ISSUE 1 

The Board finds that this case is not in posture for decision. 

In his July 21, 2012 report, Dr. Blackwell disagreed with Dr. Nijjar’s May 21, 2012 

second opinion which concluded that there was a “good likelihood” that appellant did not suffer 

from residuals of his September 27, 2007 cervical sprain and that his current cervical condition 

was related to his other cervical injuries. He explained that it was common knowledge in 

orthopedics that underlying pathology could exist in an asymptomatic fashion only to be 

revealed by a specific injury and become a chronic problem. Dr. Blackwell also opined that 

since the chronic sprain findings and the underlying pathology could not be distinguished, it was 

illogical on Dr. Nijjar’s part to find that the sprain was no longer a factor. As a conflict in 

medical opinion existed as to whether appellant’s work-related neck sprain had resolved, and 

whether appellant had a permanent impairment causally related to the accepted injury, OWCP 

properly referred appellant to Dr. Trieb for an impartial medical examination to resolve the 

conflict of medical opinion with regard to the percentage of permanent partial impairment to any 

extremity affected by the accepted medical conditions of left elbow sprain and neck sprain. 

Dr. Trieb’s September 2, 2014 report is of diminished probative value. Dr. Trieb opined 

that appellant’s left elbow sprain had resolved and provided medical rationale as to why 

appellant’s cervical condition was related to his employment injuries. He indicated that the date 

of maximum medical improvement was November 22, 2010. Dr. Trieb utilized the fifth edition 

of the A.M.A., Guides, to find 24 percent whole person impairment for loss of motion of the 

cervical spine as well as neurologic deficit of the upper extremities. OWCP, however, uses the 

sixth edition of the A.M.A., Guides to calculate schedule awards.21 A medical opinion based on 

an inappropriate edition of the A.M.A., Guides is of diminished probative value in determining 

the extent of permanent impairment.22 Furthermore, a rating based upon whole person 

impairment is improper under the A.M.A., Guides.

23 Consequently, Dr. Trieb’s opinion is 

insufficient to resolve the conflict in medical opinion. 

OWCP medical adviser Dr. Harris reviewed Dr. Trieb’s September 2, 2014 report. He 

noted that the date of maximum medical improvement was November 22, 2010. The medical 

adviser also noted that Dr. Trieb had documented appellant’s ongoing problems with the cervical 

spine, but did not calculate impairment based on the sixth edition of the A.M.A., Guides. 

Although he properly referenced The Guides Newsletter July/August 2009, he did not discuss 

specific tables or procedures, nor provide any explanation for his conclusion that appellant had 

one percent impairment of the right upper extremity and one percent impairment of the left upper 

extremity.24 

 21 See supra note 7. 

22 See F.T., Docket No. 14-553 (issued August 11, 2014); Fritz A. Klein, 53 ECAB 642 (2002). 

23 See Tania R. Keka, 55 ECAB 354 (2004); James E. Millis, 43 ECAB 215 (1991) (neither FECA nor 

implementing regulations provide for a schedule award for impairments to the body as a whole). 

24 See C.K., Docket No. 14-1861 (issued January 2, 2015). 
10

When OWCP secures an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the opinion from the specialist requires 

clarification or elaboration, it has the responsibility to secure a supplemental report from the 

specialist for the purpose of correcting a defect in the original report.25 On remand, it should ask 

Dr. Trieb to provide an impairment opinion based on the sixth edition of the A.M.A., Guides, as 

to whether appellant has sustained permanent impairment causally related to the accepted 

employment injuries. Following such further development as deemed necessary, OWCP should 

issue a de novo decision on appellant’s entitlement to a schedule award. 

CONCLUSION 

The Board finds that this case is not in posture for decision on the extent of permanent 

impairment to appellant’s upper extremities.26 

ORDER 

IT IS HEREBY ORDERED THAT the June 19 and January 27, 2015 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case remanded for further 

proceedings consistent with this decision. 

Issued: June 2, 2016 

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 

 25 See K.C., Docket No. 14-791 (issued August 8, 2014); Guiseppe Aversa, 55 ECAB 164 (2003). 

26 In light of the disposition of this case, issue 2 is hereby rendered moot.