United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Chillicothe, OH, Employer 

__________________________________________ 

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Docket No. 16-1193 

Issued: December 1, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 16, 2016 appellant, through counsel, filed a timely appeal from an April 11, 

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 permanent 

impairment warranting 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

This case has previously been before the Board. 

FACTUAL HISTORY 

OWCP accepted that on December 22, 2004 appellant, then a 53-year-old food service 

worker, sustained a lumbar strain, left shoulder strain, and low back contusion due to falling on 

an icy sidewalk at work. Appellant did not stop work around the time of her December 22, 2004 

injury, but she performed limited-duty work for the employing establishment.3

By decision dated February 24, 2014,4

 the Board affirmed OWCP’s August 1, 2013 

decision denying appellant’s disability claim. The facts and circumstances surrounding the prior 

appeal are incorporated herein by reference. The relevant facts follow. 

On July 22, 2014 appellant filed a claim for compensation (Form CA-1) claiming a 

schedule award due to her accepted work conditions. 

In an October 7, 2014 report, Dr. Catherine Watkins-Campbell, an attending Boardcertified family practitioner, determined that appellant had two percent permanent impairment of 

her left arm under the standard of the sixth edition of American Medical Association, Guides to 

the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). She listed appellant’s 

accepted conditions of back contusion, lumbar sprain, and left shoulder sprain and detailed 

findings of her October 7, 2014 physical examination. Dr. Watkins-Campbell noted that 

appellant completed a pain diagram in which she reported having pain in her right lower lumbar 

and right gluteal areas, and numbness and pins and needles sensation in her back right leg, right 

forearm, and right hand. She noted range of motion measurements for appellant’s back and left 

shoulder and noted that she reported mild acromioclavicular tenderness in her left shoulder on 

palpation with no crepitance, atrophy, swelling, or instability. 

Dr. Watkins-Campbell explained that, under Table 15-5 on page 401 of the sixth edition 

of the A.M.A., Guides, appellant’s left upper extremity condition fell under the diagnosis-based 

impairment category of sprain/strain without consistent objective findings and that she had a 

default value of one percent impairment of the left upper extremity. She noted that appellant had 

a functional history grade modifier of 2, a physical examination grade modifier of 1, and that the 

clinical studies grade modifier was not applicable. Dr. Watkins-Campbell concluded that these 

values required shifting one space to the right of the default value on Table 15-5 such that 

appellant had two percent permanent impairment of her left upper extremity. 

On April 29, 2015 OWCP forwarded the medical evidence on file, including the 

October 7, 2014 report of Dr. Watkins-Campbell and a statement of accepted facts, to 

Dr. Morley Slutsky, a Board-certified occupational medicine physician serving as an OWCP 

medical adviser, for evaluation of appellant’s permanent impairment. 

In a report dated April 30, 2015, Dr. Slutsky determined that appellant had zero percent 

permanent impairment of her left upper extremity under the standards of the sixth edition of the 

 3

 The record reveals that appellant has not received disability compensation on the daily or periodic rolls. 

4

 Docket No. 13-2061 (issued February 24, 2014). 
3

A.M.A., Guides. He noted that on October 10, 2008, i.e., almost four years after the 

December 22, 2004 work injury, appellant was examined by Dr. Gula who reported a normal 

examination with no objective clinical findings to support the ongoing presence of the accepted 

conditions. Dr. Slutsky indicated that Dr. Gula reported that appellant’s subjective complaints 

could not be confirmed by objective clinical findings. He pointed out that Dr. Lefkowitz 

concurred with this opinion on June 25, 2009 when he noted that shoulder strains typically 

resolve within three months. Dr. Slutsky indicated that the only left shoulder diagnostic test was 

performed on May 14, 2009 and that this test was completely normal. He noted that medical 

treatment after these dates related to the lumbar spine, not the left shoulder. Dr. Slutsky 

indicated, “As such, the claimant was thoroughly evaluated by two physicians who found that the 

claimant had no residuals from the accepted left shoulder sprain. Dr. Watkins-Campbell’s rating 

is unrelated in any way to the accepted conditions in this case as they had resolved [six] years 

prior to this evaluation.” He concluded that appellant had no permanent impairment of her left 

upper extremity. 

On May 13, 2015 in order to resolve the discrepancy in the permanent partial impairment 

ratings provided in the October 7, 2014 report of Dr. Watkins-Campbell and the April 30, 2015 

report of Dr. Slutsky, OWCP wrote to Dr. Watkins-Campbell and requested that she comment on 

the issues raised in Dr. Slutsky’s medical report and provide an updated report with a final rating 

of the permanent impairment. 

Counsel noted in a May 28, 2015 letter that Dr. Watkins-Campbell would not be able to 

respond to OWCP’s May 13, 2015 correspondence. He requested that OWCP process 

appellant’s schedule award claim. 

In a June 24, 2015 decision, OWCP determined that appellant had failed to meet her 

burden of proof to establish permanent impairment of her left arm. It found that Dr. Slutsky 

properly noted in his report that Dr. Watkins-Campbell’s impairment rating was not based on 

permanent residuals of the December 22, 2004 work injury. 

Appellant requested a telephone hearing with an OWCP hearing representative. During 

the hearing held on February 3, 2016, counsel argued that the opinion of Dr. Watkins-Campbell 

established appellant’s permanent impairment. 

By decision dated April 11, 2016, OWCP’s hearing representative affirmed OWCP’s 

June 24, 2015 decision denying appellant’s claim for a schedule award. The hearing 

representative found that appellant had not submitted rationalized medical evidence showing that 

she had work-related permanent impairment and that Dr. Slutsky had properly found that she had 

no such impairment. 

LEGAL PRECEDENT 

The schedule award provision of the FECA5

 and its implementing regulations6 set forth 

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

 

 5 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404 (1999). 
4

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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.7

 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.8

In determining impairment for the upper extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper 

extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the 

present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. 

After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including 

identification of a default grade value), the Net Adjustment Formula is applied using the Grade 

Modifier for Functional History (GMFH), Grade Modifier for Physical Examination (GMPE) 

and Grade Modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH - 

CDX) + (GMPE - CDX) + (GMCS - CDX).9

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim, including that he or she sustained an injury in the 

performance of duty as alleged and that an employment injury contributed to the permanent 

impairment for which schedule award compensation is alleged.10 The medical evidence required 

to establish a causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a causal relationship between the claimant’s diagnosed condition and 

the implicated employment factors. The opinion of the physician must be based on a complete 

factual and medical background of the claimant, must be one of reasonable medical certainty, 

and must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.11

ANALYSIS 

OWCP accepted that on December 22, 2004 appellant sustained a lumbar strain, left 

shoulder strain, and low back contusion due to falling on an icy sidewalk at work. Appellant 

filed a claim for compensation (Form CA-7) claiming a schedule award due to her accepted work 

 

 7 Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6 (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700.2 (January 2010). 

8 Id. at Part 2, Chapter 2.808.5a (February 2013); see also id. at Part 3, Chapter 3.700, Exhibit 1 (January 2010). 

9 See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant 

who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of 

motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis-based 

impairment. Id. at 405, 475-78. 

 10 See Bobbie F. Cowart, 55 ECAB 476 (2004). 

 11 Victor J. Woodhams, 41 ECAB 345, 351-52 (1989). 
5

conditions. In decisions dated June 24, 2015 and April 11, 2016, OWCP denied appellant’s 

claim for a schedule award, noting that the denial was supported by the opinion of Dr. Slutsky, 

OWCP’s medical adviser. 

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

impairment sufficient to warrant a schedule award. 

In an October 7, 2014 report, Dr. Watkins-Campbell, an attending physician, determined 

that appellant had two percent permanent left arm impairment under the sixth edition of the 

A.M.A., Guides. She noted that, under Table 15-5 on page 401 of the A.M.A., Guides,

appellant’s left arm condition fell under the diagnosis-based impairment category of sprain/strain 

without consistent objective findings and that she had a default value of one percent impairment 

of the left upper extremity. Dr. Watkins-Campbell indicated that appellant’s grade modifier 

scores required shifting one space to the right of the default value on Table 15-5 such that 

appellant had two percent permanent impairment of her left upper extremity.12

The Board finds that OWCP properly found that the October 7, 2014 report of 

Dr. Watkins-Campbell failed to support permanent impairment of the left upper extremity. As 

noted above, an employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim, including that he or she sustained an injury in the 

performance of duty as alleged and that an employment injury contributed to the permanent 

impairment for which schedule award compensation is alleged.13 Although Dr. WatkinsCampbell described left shoulder deficits, she did not provide a rationalized medical opinion 

explaining how the permanent impairment was related to the accepted December 22, 2004 work 

injury. Such medical rationale is especially necessary given the multiple medical reports of 

record showing that appellant ceased to have any residuals of her December 22, 2004 work 

injury by the time of the impairment evaluation of Dr. Watkins-Campbell. 

The Board finds that Dr. Slutsky provided an extensive rationalized discussion explaining 

why appellant did not have permanent impairment related to residuals of the December 22, 2004 

work injury. In a report dated April 30, 2015, Dr. Slutsky determined that appellant had no 

permanent impairment of her left arm under the standards of the sixth edition of the A.M.A., 

Guides. He noted that on October 10, 2008, i.e., almost four years after the December 22, 2004 

date of injury, appellant was examined by Dr. Gula who reported a normal examination with no 

objective clinical findings to support the ongoing presence of the accepted work-related 

conditions. Dr. Slutsky pointed out that Dr. Lefkowitz concurred with this opinion on June 25, 

2009 when he noted that shoulder strains typically resolve within three months. He indicated 

that the only left shoulder diagnostic test was performed on May 14, 2009 and that this test was 

completely normal. Dr. Slutsky indicated, “As such, the claimant was thoroughly evaluated by 

two physicians who found that the claimant had no residuals from the accepted left shoulder 

condition. Dr. Watkins-Campbell’s rating is unrelated in any way to the accepted conditions in 

this case as they had resolved [six] years prior to this evaluation.” 

 12 See supra note 12. 

13 See supra note 13. 
6

On appeal counsel argues that the impairment rating opinion of Dr. Watkins-Campbell 

was “relevant, probative, and timely,” but the Board has explained why her opinion has limited 

probative value regarding appellant’s permanent impairment. He asserts that OWCP’s schedule 

award decision was “based on stale evidence,” but he did not provide any further clarification of 

the basis for this statement. 

For these reasons, that Board finds that appellant did not meet her burden of proof to 

establish permanent impairment warranting a schedule award. She may request a 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 did not meet her burden of proof to establish entitlement 

to schedule award compensation. 

ORDER 

IT IS HEREBY ORDERED THAT the April 11, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 1, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board