United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.D., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Lyons, NJ, Employer 

__________________________________________ 

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Docket No. 16-1489 

Issued: April 12, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 July 12, 2016 appellant, through counsel, filed a timely appeal from a March 30, 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 ratable permanent 

impairment, warranting a schedule award. 

FACTUAL HISTORY 

On May 19, 2009 appellant, a 32-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging an injury on May 18, 2009 in the performance of duty while repositioning a 

patient in bed. OWCP accepted the claim for extruded disc at C6-7 and authorized cervical 

surgery, which she underwent on July 8, 2009. Appellant was placed on the periodic rolls on 

August 30, 2009 and then returned to full-time, full-duty work on November 15, 2009. 

On August 8, 2013 appellant, through counsel, filed a claim for a schedule award 

(Form CA-7). 

In a May 6, 2013 report, Dr. David Weiss, a Board-certified orthopedic surgeon, 

diagnosed chronic post-traumatic cervical strain and sprain, herniated cervical discs at C4-5 and 

C6-7, bulging cervical discs at C3-6, status post cervical discectomy at C6-7, and left-sided 

cervical radiculopathy. He opined that appellant had reached maximum medical improvement 

on May 6, 2013, the date of the examination. Dr. Weiss opined that she had 16 percent 

permanent impairment to the left upper extremity based on the class 1 diagnoses of mild motor 

strength deficit left biceps, severe sensory deficit left C7 nerve root, and severe sensory deficit 

left C8 nerve root under the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).3

In a July 22, 2014 letter, OWCP advised appellant of the deficiencies of her schedule 

award claim and afforded her 30 days to submit additional evidence and respond to its inquiries. 

It specifically requested an impairment rating from a physician which would reflect permanent 

impairment from the originally accepted work-related cervical extruded disc and surgery based 

on the July/August 2009, The Guides Newsletter. 

On August 23, 2013 Dr. Morley Slutsky, a Board-certified occupational medicine 

specialist and OWCP’s district medical adviser (DMA), reviewed the medical evidence and 

recommended a second opinion examination to determine the nature and extent of appellant’s 

employment-related conditions. 

In a March 10, 2014 report, Dr. Thomas R. Peterson, a Board-certified neurosurgeon, 

asserted that appellant’s “cervical symptoms [were] all causally related to a November 25, 2013 

motor vehicle accident” when she was driving her own car in Cranford, New Jersey when the 

moving vehicle was broadsided on the driver’s side, just behind the driver’s door. He noted 

appellant’s employment injury and reported that appellant “said that she achieved 100% relief of 

symptoms and as of the November 25, 2013 motor vehicle accident, she had absolutely no 

preexisting neck pain or cervical radiculopathy.” 

                                                             3

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

Appellant submitted a magnetic resonance imaging (MRI) scan of the lumbar spine dated 

February 21, 2014 and a computerized tomography (CT) scan of the lumbar spine dated 

April 9, 2014. She further submitted electromyogram (EMG) and nerve conduction velocity 

(NCV) studies dated March 20, 2014 consistent with acute left-sided C6, right-sided L5-S1, and 

left-sided S1 radiculopathies. 

In reports dated February 11 through May 13, 2014, Dr. Steven P. Waldman, a Boardcertified anesthesiologist, noted that appellant was injured on or about November 25, 2013 

during a motor vehicle accident. On March 7, 2014 he diagnosed chronic intractable pain 

syndrome caused by motor vehicle accident, herniated nucleus pulposus (HNP) at C5-6 with 

spinal canal and neural foraminal stenosis, previous anterior fusion at C6-7, HNP at L3-4 and 

L4-5 and a bulging at L5-S1, clinical radiculopathy at C5-6, and clinical radiculopathy at L4, L5, 

and S1 levels bilaterally. Appellant underwent an anterior cervical discectomy and fusion 

(ACDF) surgery at C5-6 on May 5, 2014. 

On March 20, 2014 Dr. Arthur C. Rothman, a neurosurgeon, reported that he had 

performed an electrodiagnostic study that day and found that appellant’s left upper extremity and 

both lower extremities and associated paraspinal muscles were consistent with acute left-sided 

C6, right-sided L5-S1, and left-sided S1 radiculopathies. 

OWCP referred appellant to Dr. Lawrence G. Splitter, a Board-certified occupational 

medicine specialist, for a second opinion examination to determine the nature and extent of her 

permanent impairment. In his February 16, 2015 report, Dr. Splitter reviewed a statement of 

accepted facts, appellant’s medical history, and the medical evidence of record. He conducted a 

physical examination and found that appellant’s reflexes were present and symmetric at C5 and 

C6, and C7 was reduced on the left in comparison to the right. Pinwheel was decreased over the 

left upper extremity in a global fashion. The shoulder was spared. The Pain Disability 

Questionnaire (PDQ) was completed and the total score was 128. Dr. Splitter diagnosed status 

post anterior cervical surgery and nonverifiable left upper extremity radicular complaints. He 

advised that “[b]efore assigning an impairment, [he] would recommend an updated 

electrodiagnostic study to verify any nerve root involvement.” 

In response, OWCP referred appellant to Dr. Donald Stone, a Board-certified neurologist, 

for second opinion diagnostic testing to determine the nature and extent of her employmentrelated conditions. Dr. Stone found that EMG/NCV studies dated June 29, 2015 were normal 

and revealed no evidence of left cervical radiculopathy, median or ulnar neuropathy, or 

generalized polyneuropathy involving the left upper extremity. 

In a supplemental report dated August 4, 2015, Dr. Splitter reviewed the June 29, 2015 

EMG/NCV studies and found no evidence of radiculopathy or entrapment neuropathy. He noted 

that on examination there was no muscle wasting, Spurling’s sign was negative, and there was no 

weakness that would support an ongoing radiculopathy. There was subjective sensory loss in a 

nondermatomal pattern and inconsistent with two-point discrimination. Dr. Splitter concluded 

that given the results of the diagnostic studies and physical examination there was no permanent 

impairment of the left upper extremity secondary to the cervical spine. 
4

On October 9, 2015 counsel suggested that there was a conflict in the medical opinion 

evidence between Dr. Weiss and the EMG findings dated March 20, 2014 identifying left-sided 

C6 cervical radiculopathy and requested a referee examination pursuant to 5 U.S.C. § 8123(a). 

Appellant further submitted reports dated May 18 through September 21, 2015 from her 

chiropractor, Dr. Ellen L. Wicklund, who diagnosed cervical subluxation, thoracic subluxation, 

lumbar subluxation, sacral nonallopathic lesions, pelvic nonallopathic lesions, scapula 

subluxation, cervical neck pain, thoracic pain, extremity pain, numbness, and low back pain. 

On October 23, 2015 OWCP medical adviser Dr. Slutsky reviewed the medical evidence 

and found no basis for left upper extremity impairment consistent with Dr. Splitter’s second 

opinion examination. He found that Dr. Splitter performed a complete evaluation which allowed 

him to determine that appellant’s accepted condition had stabilized and required no further 

medical treatment. Dr. Slutsky reported that x-rays postoperatively demonstrated placement of 

interbody graft was stabilized by anterior plate and screws traversing through C6 and C7. The 

alignment was anatomical. There was no significant paravertebral soft tissue swelling. 

Dr. Slutsky asserted that Dr. Splitter found no objective upper extremity sensory or motor 

deficits reflecting specific cervical nerve root involvement and appellant’s EMG/NCV studies 

were negative for cervical radiculopathy. He concluded that there was no basis for finding left 

upper extremity impairment using the July/August 2009, The Guides Newsletter, as he had been 

instructed. Dr. Slutsky determined that appellant had reached maximum medical improvement 

on February 16, 2015, the date of the impairment examination performed by Dr. Splitter. 

By decision dated October 26, 2015, OWCP denied appellant’s schedule award claim as 

the medical evidence of record failed to establish ratable permanent impairment of a scheduled 

member. 

On November 4, 2015 counsel requested an oral hearing before a representative with 

OWCP’s Branch of Hearings and Review which was held on February 17, 2016. 

Subsequently, appellant submitted a March 7, 2016 narrative statement reiterating the 

factual history of her claim. 

By decision dated March 30, 2016, OWCP’s hearing representative affirmed the denial of 

appellant’s award claim. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4

 and its implementing federal regulation,5 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 

                                                             4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 
5

the A.M.A., Guides as the uniform standard applicable to all claimants.6

 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

Neither FECA nor its regulations provide for a schedule award for impairment to the 

back or to the body as a whole.8

 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.9

 The sixth edition of the A.M.A., Guides does not provide a 

separate mechanism for rating spinal nerve injuries as impairments of the extremities. 

Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, the 

July/August 2009, The Guides Newsletter offers an approach to rating spinal nerve impairments 

consistent with sixth edition methodology. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides 

Newsletter is to be applied.10

The claimant has the burden of proof to establish that the condition for which a schedule 

award is sought is causally related to his or her employment.11

ANALYSIS 

OWCP accepted appellant’s claim for extruded disc at C6-7 and authorized cervical 

surgery, which she underwent on July 8, 2009. The Board finds that the medical evidence of 

record fails to establish that appellant sustained permanent impairment to a scheduled member of 

the body causally related to the May 18, 2009 employment injury. 

OWCP properly referred appellant to Dr. Splitter, a Board-certified occupational 

medicine specialist, to determine the nature and extent of any employment-related impairment. 

Dr. Splitter noted that on examination there was no muscle wasting, Spurling’s sign was 

negative, and there was no weakness that would support an ongoing radiculopathy. He 

concluded that given the results of the diagnostic studies and physical examination there was no 

impairment of the left upper extremity secondary to the cervical spine. 

On October 23, 2015 Dr. Slutsky reviewed the medical evidence and found no basis for 

left upper extremity permanent impairment consistent with Dr. Splitter’s second opinion 

examination. He reported that x-rays postoperatively demonstrated placement of interbody graft 

was stabilized by anterior plate and screws traversing through C6 and C7. The alignment was 

                                                             6 Id. at § 10.404(a). 

7 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

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

Claims, Chapter 2.808.5(a) (February 2013). 

8 See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004). 

9 See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997). 

10 Supra note 7 at Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is 

included as Exhibit 4. 

11 See Veronica Williams, 56 ECAB 367 (2005). 
6

anatomical. There was no significant paravertebral soft tissue swelling. Dr. Slutsky noted that 

Dr. Splitter found no objective upper extremity sensory or motor deficits reflecting specific 

cervical nerve root involvement and appellant’s EMG/NCV studies were negative for cervical 

radiculopathy. He concluded that there was no basis for a left upper extremity impairment using 

the July/August 2009, The Guides Newsletter. Dr. Slutsky determined that appellant had reached 

maximum medical improvement on February 16, 2015, the date of the impairment examination 

performed by Dr. Splitter. 

The Board finds that OWCP properly concluded that there was no medical evidence of 

record establishing permanent impairment of the left upper extremity resulting from the accepted 

condition and that, therefore, there was no ratable impairment of a scheduled member under the 

sixth edition of the A.M.A., Guides.

12

In his May 6, 2013 report, Dr. Weiss opined that appellant had 16 percent permanent 

impairment to the left upper extremity based on the diagnoses of mild motor strength deficit left 

biceps, severe sensory deficit left C7 nerve root, and severe sensory deficit left C8 nerve root. 

He rated appellant’s impairment based on conditions which have not been accepted by OWCP. 

In its July 22, 2014 schedule award development letter, OWCP specifically requested an 

impairment rating based on the accepted work-related cervical extruded disc and surgery. FECA 

does not authorize schedule awards for loss of use of the spine.13 A claimant may still be entitled 

to an award for loss of use of a limb where the cause of the impairment originated in the spine. 

Because the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve 

injuries as impairments of the extremities, OWCP has adopted the standard set forth in The 

Guides Newsletter.

14 Dr. Weiss failed to utilize the proper standard. Thus, the Board finds that 

Dr. Weiss’ impairment rating is inconsistent with FECA and has little probative value. 

Consequently, appellant failed to establish that she has ratable permanent impairment of a 

scheduled body member.15

Appellant has submitted no other current medical evidence in conformance with the sixth 

edition of the A.M.A., Guides, or the July/August 2009, The Guides Newsletter, establishing 

ratable permanent impairment of a scheduled body member. For the reasons stated above, the 

Board finds that OWCP properly denied appellant’s schedule award claim. 

On appeal, counsel contends that the second opinion physician failed to reference the 

sixth edition of the A.M.A., Guides when arriving at his opinion that there was no related 

impairment to the left upper extremity. Based on the findings and reasons set forth above, the 

Board finds counsel’s argument is not substantiated. Counsel further contends that there is a 

conflict in the medical evidence and OWCP improperly referred appellant to Dr. Stone for 

                                                             12 The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the 

examining physician to determine the permanent impairment. See supra note 7 at Part 3 -- Medical, Schedule 

Awards, Chapter 3.700.3 (January 2010); J.C., Docket No. 15-1780 (issued March 17, 2016). 

13 See M.R., Docket No. 14-833 (issued September 9, 2014). 

14 See supra note 10. 

15 See J.Q., 59 ECAB 366 (2008) (when the examining physician does not provide an estimate of impairment that 

conforms to the A.M.A., Guides, OWCP may rely on the impairment rating provided by an OWCP medical adviser). 
7

second opinion diagnostic testing. The Board has explained above that Dr. Weiss failed to base 

his impairment rating on the accepted conditions. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish any ratable 

impairment related to her accepted cervical condition entitling her to a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: April 12, 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