United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Federal Way, WA, Employer

__________________________________________

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Docket No. 17-0855

Issued: December 11, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 8, 2017 appellant, through counsel, filed a timely appeal from a February 3, 

2017 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 has met his burden of proof to establish greater than one 

percent permanent impairment of his right upper extremity and one percent permanent impairment 

of his left upper extremity, for which he previously received schedule awards.

FACTUAL HISTORY

On February 28, 2012 appellant, then a 53-year-old postmaster, filed a traumatic injury 

claim (Form CA-1) for a neck injury that occurred on February 8, 2012 due to a slip and fall on a 

wet floor while moving desks. OWCP accepted the claim for temporary aggravation of preexisting 

cervical degenerative disc disease at C4-7. After undergoing an authorized cervical surgery on 

April 11, 2012, appellant returned to work in a full-time, limited-duty capacity on June 19, 2012.

3

 

On May 4, 2013 he stopped work due to residuals from his accepted condition and then returned 

to part-time, light-duty work later on September 17, 2014.4

Appellant filed a claim for a recurrence of disability (Form CA-2a) on December 13, 2013.

OWCP referred appellant to Dr. R. Tyler Frizzell, a Board-certified neurosurgeon, for a 

second opinion evaluation to determine the nature and extent of his employment-related 

condition(s). In his September 15, 2014 report, Dr. Frizzell found that appellant’s cognitive 

condition was not causally related to the accepted employment injury. Upon physical examination,

Dr. Frizzell found that appellant’s neck had no spasm and bilateral paracervical tenderness. 

Measuring appellant’s cervical range of motion (ROM), he found 45 degrees of flexion, 10 degrees 

of extension, 20 degrees of lateral bending to the right, 20 degrees of lateral bending to the left, 40 

degrees of rotation to the right, and 62 degrees of rotation to the left. Dr. Frizzell opined that 

appellant’s accepted cervical condition had resulted in permanent bilateral C7 radiculopathies. He 

determined that appellant had reached maximum medical improvement (MMI) and opined that he 

was capable of working part time, four hours per day, with restrictions.

By decisions dated April 8, 2014 and January 29, 2015, OWCP denied appellant’s

recurrence claim, finding that the medical evidence of record was insufficient to establish that 

appellant had an increased disability as a result of a traumatic brain injury, causally related to his 

accepted work injury.

On June 23, 2015 appellant filed a claim for a schedule award (Form CA-7).

OWCP received a May 11, 2015 note from Dr. Ronald F. Baldwin, a Board-certified 

family practitioner, who advised that appellant had reached MMI. 

 

3 OWCP paid appellant wage-loss compensation for 12 hours during the period March 5, 7, and 26, 2013 and 280

hours during the period May 4 to July 12, 2013. 

4

In a September 30, 2013 decision, OWCP found that the postmaster position appellant had accepted on 

September 16, 2013 was suitable employment. The job offer provided the following restrictions: one hour of standing 

and walking; two hours of simple grasping.
3

By letter dated June 25, 2015, OWCP advised appellant that he needed to have his

physician submit a permanent impairment rating in accordance with the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)

(A.M.A., Guides).

5

 It afforded him 30 days to submit the requested medical evidence. However, 

OWCP did not receive the requested evidence within the allotted time frame.

By decision dated September 11, 2015, OWCP denied appellant’s schedule award claim, 

finding that the evidence submitted failed to meet the minimum requirements requested to 

determine permanent impairment. 

On September 16, 2015 counsel requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. He also submitted a July 29, 2015 report from

Dr. Mesfin Seyoum, a family practitioner, who found that appellant had 10 percent permanent 

impairment of his bilateral upper extremities under the Brachial Plexus Impairment Grid of the

A.M.A., Guides. Dr. Seyoum found that the cervical examination showed paracervical tenderness 

and myospasm, greater on the right side. He also found a positive Spurling’s testing bilaterally, 

which caused radiating pain to the upper extremities. The range of motion of the cervical spine

was assessed to provide the following measurements: flexion 30 degrees, extension 40 degrees, 

right rotation 50 degrees, left rotation 50 degrees, right lateral bending 35 degrees, and left lateral 

bending 30 degrees. There was no tenderness palpable in the bilateral upper extremities, although 

appellant reported upper trapezial pain at extreme ranges. There was also decreased sensation and 

reduced motor strength in both upper extremities upon neurological examination. Dr. Seyoum 

indicated that appellant’s most impairing diagnosis was C7 radiculopathy, as demonstrated by 

electromyography and nerve conduction velocity studies (EMG/NCV), under Table 15-20, 

A.M.A., Guides 435. He determined that under Table 15-7, page 406, appellant had a grade 

modifier of 4 for functional history (GMFH) based on his QuickDASH score of 82. Based on 

Table 15-14, page 425, Dr. Seyoum assigned a grade modifier of 1 for physical examination 

(GMPE) due to sensory deficit and motor weakness of 4/5. Based on Table 15-9, page 411, he 

assigned a grade modifier of 1 for clinical studies (GMCS) due to a positive EMG/NCV for C7 

radiculopathy. Dr. Seyoum calculated a net adjustment of +3, and found five percent (grade E) 

right and left upper extremity permanent impairment under the sixth edition of the A.M.A., 

Guides.

6

 Dr. Seyoum concluded that appellant had 10 percent permanent impairment of the 

bilateral upper extremities. 

By decision dated March 14, 2016, the hearing representative vacated the September 11, 

2015 decision, and remanded the case so that OWCP could refer the latest medical evidence of 

permanent impairment to its district medical adviser (DMA) for review.

OWCP subsequently referred the case to its DMA, Dr. Morley Slutsky, who is Boardcertified in occupational medicine.

 

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

6 Net Adjustment ꞊ (GMFH 4 – CDX 1) + (GMPE 1 – CDX 1) + (GMCS 1 – CDX 1). See section 15.3d, A.M.A., 

Guides 411 (6th ed. 2009).
4

In an April 3, 2016 report, Dr. Slutsky determined that appellant had reached MMI as of 

September 15, 2014 and utilized the September 15, 2014 second opinion findings of Dr. Frizzell 

for impairment calculations because appellant’s accepted condition had stabilized at that time. He 

explained that Dr. Seyoum’s rating was not probative because he indicated that there was 4/5 

weakness in both upper extremities without discussing which muscles, with their corresponding 

cervical nerve roots, were involved. Dr. Slutsky further explained that Dr. Seyoum calculated 

appellant’s impairment using the Brachial Plexus Impairment Grid, which was improper because 

appellant did not have a brachial plexus lesion. He rated appellant’s permanent impairment based 

on mild bilateral C7 sensory loss, which was a class 1 class of diagnosis (CDX 1) with a default 

rating (grade C) of one (1) percent under The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009). Dr. Slutsky assigned a GMFH 4 based 

on appellant’s QuickDASH score of 82. He did not assign a grade modifier for physical 

examination (GMPE). Lastly, Dr. Slutsky assigned a GMCS 1 based on the EMG/NCS evidence 

of C7 radiculopathy. He calculated a net adjustment of +2, and found one percent (grade E) right 

and left upper extremity permanent impairment under The Guides Newsletter.

7

 Dr. Slutsky 

concluded that appellant had one percent permanent impairment of the right upper extremity and 

one percent permanent impairment of the left upper extremity.

By decision dated April 12, 2016, OWCP granted appellant a schedule award for one 

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

of the left upper extremity. The award covered a 6.24-week period February 8 to March 23, 2016. 

Counsel timely requested a hearing before a representative of OWCP’s Branch of Hearings 

and Review, which was held on December 14, 2016. He challenged OWCP’s reliance on

Dr. Slutsky’s report. OWCP did not receive any additional medical evidence regarding the extent 

of appellant’s bilateral upper extremity permanent impairment.

By decision dated February 3, 2017, the hearing representative accepted the DMA’s 

opinion and found that appellant had not established that he had greater than one percent permanent 

impairment of his right upper extremity and one percent permanent impairment of his left upper 

extremity. Consequently, the hearing representative affirmed OWCP’s April 12, 2016 schedule 

award decision. 

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.8 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 

 

7 See id.

8 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).
5

losses.9 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).10

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.11 However, a schedule award is 

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

extremities.12 The sixth edition of the A.M.A., Guides provides a specific methodology for rating 

spinal nerve extremity impairment.13 It was designed for situations where a particular jurisdiction, 

such as FECA, mandated ratings for extremities and precluded ratings for the spine. The FECAapproved 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.14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than one 

percent permanent impairment of his right upper extremity and one percent permanent impairment 

of his left upper extremity, for which he previously received a schedule award.

Following the initial development of the schedule award claim, OWCP properly referred 

appellant to Dr. Frizzell for a second opinion evaluation to determine the nature and extent of his 

employment-related condition(s). In his September 15, 2014 report, Dr. Frizzell found that 

appellant’s cognitive condition was not causally related to the accepted employment injury. Upon 

physical examination, he found that appellant’s neck had no spasm and bilateral paracervical 

tenderness. Measuring appellant’s cervical ROM, Dr. Frizzell found 45 degrees of flexion, 10 

degrees of extension, 20 degrees of lateral bending to the right, 20 degrees of lateral bending to 

the left, 40 degrees of rotation to the right, and 62 degrees of rotation to the left. He determined 

that appellant had reached MMI and opined that his accepted cervical condition had resulted in 

permanent bilateral C7 radiculopathies.

 

9 20 C.F.R. § 10.404.

10 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).

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

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

Chapter 2.808.5c(3).

13 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.

14 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.
6

In a July 29, 2015 report, Dr. Seyoum, a family practitioner, opined that appellant had 10 

percent permanent impairment of the bilateral upper extremities under the Brachial Plexus 

Impairment Grid of the A.M.A., Guides.

In accordance with its procedures, OWCP properly referred the evidence of record to its 

medical adviser Dr. Slutsky, who, in an April 3, 2016 report, reviewed the medical evidence of 

record and determined that appellant’s date of MMI was November 11, 2015, the date of

Dr. Frizzell’s second opinion examination. Dr. Slutsky utilized Dr. Frizzell’s findings for 

impairment calculations because appellant’s accepted condition had stabilized at that time. He

rated appellant based on mild bilateral C7 sensory loss, which was a CDX 1 with a default rating

(grade C) of one percent under The Guides Newsletter. Dr. Slutsky assigned a GMFH 4 based on 

appellant’s QuickDASH score of 82. He did not assign a GMPE. Lastly, Dr. Slutsky assigned a 

GMCS 1 based on the EMG/NCS evidence of C7 radiculopathy. He calculated a net adjustment 

of +2, and found one percent (grade E) right and left upper extremity permanent impairment under 

The Guides Newsletter. Dr. Slutsky concluded that appellant had one percent permanent 

impairment of his right upper extremity and one percent permanent impairment of his left upper 

extremity.

The Board finds that the DMA applied the appropriate tables and grading schemes of the 

sixth edition of the A.M.A., Guides to Dr. Frizzell’s clinical findings. Dr. Slutsky’s methodology 

and calculations were accurate. There is no medical evidence of record utilizing the appropriate 

tables of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of permanent 

impairment. Dr. Slutsky explained that Dr. Seyoum’s impairment rating was not probative 

because he indicated that there was 4/5 weakness in both upper extremities without discussing 

which muscles, with their corresponding cervical nerve roots, were involved. He further explained 

that Dr. Seyoum calculated appellant’s impairment using the Brachial Plexus Impairment Grid, 

which was improper because appellant did not have a brachial plexus lesion. The Board finds that

Dr. Slutsky properly applied the standards of the A.M.A., Guides. Dr. Slutsky’s opinion represents

the weight of medical evidence and OWCP properly relied on his assessment of one percent 

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

left upper extremity.

15

There is no probative medical evidence of record, in conformance with the sixth edition of 

the A.M.A., Guides, establishing that appellant has more than one percent permanent impairment 

of his right upper extremity and one percent permanent impairment of his left upper extremity, for 

which he previously received schedule awards. Accordingly, appellant has not established that he 

is entitled to a schedule award greater than that previously received.

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 employment-related 

condition resulting in permanent impairment or increased impairment.

 

15 See M.T., Docket No. 11-1244 (issued January 3, 2012).
7

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than one

percent permanent impairment of his right upper extremity and one percent permanent impairment 

of his left upper extremity, for which he previously received schedule awards.

ORDER

IT IS HEREBY ORDERED THAT the February 3, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 11, 2018

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