United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.W., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Denver, CO, 

Employer 

__________________________________________ 

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Docket No. 17-0707 

Issued: September 18, 2017 

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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

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

December 12, 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 is entitled to a schedule award for permanent impairment 

of the upper extremities. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal 

are set forth below. 

On December 2, 2001 appellant, then a 47-year-old tractor trailer operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 1, 2001 he injured his neck in the 

performance of duty. OWCP accepted the claim, assigned File No. xxxxxx615, for cervical 

strain, displacement of a cervical disc at C5-6, cervical brachial neuritis or radiculitis, and C4-5 

and C6-7 adjacent cervical disc disorders. On April 1, 2002 appellant underwent an anterior 

cervical discectomy and fusion at C5-6. On October 30, 2003 he underwent an anterior 

arthrodesis at C4-5, C5-6, and C6-7, a revision anterior cervical corpectomy at C5-6, an anterior 

cervical instrumented fusion, a posterocervical laminectomy and instrumented fusion, and a 

structural fibular allograft.4 Appellant returned to his usual employment on February 16, 2004 

and subsequently claimed a schedule award (Form CA-7). 

OWCP additionally accepted that on June 13, 2007, while pushing a bulk mail container 

in the performance of duty, appellant sustained lumbar and sacroiliac ligament sprains under File 

No. xxxxxx637.5

 It administratively combined the files with OWCP File No. xxxxxx615 serving 

as the master file. 

By a decision dated February 23, 2007, OWCP denied appellant’s claim for a schedule 

award (Form CA-7). It found that he had not submitted any evidence supporting permanent 

impairment of the upper extremities due to his accepted cervical injury. Appellant requested 

reconsideration. In decisions dated June 15 and September 7, 2007 and May 20, 2008, OWCP 

denied modification of its February 23, 2007 decision. 

Appellant, on July 12, 2010, filed an additional claim for a schedule award (Form CA-7). 

OWCP referred him to Dr. Richard T. Katz, a Board-certified physiatrist, for an impairment 

evaluation. In a report dated November 23, 2010, Dr. Katz found that appellant had no 

radiculopathy in the neck or lower back and thus no permanent impairment of either the upper or 

lower extremities. An OWCP medical adviser reviewed Dr. Katz’ opinion and concurred with 

his finding that appellant had no permanent impairment of the upper or lower extremities. 

 3

 Docket No. 13-1295 (issued July 22, 2014). 

4

 By decision dated August 23, 2002, OWCP found that appellant was not entitled to continuing compensation as 

the evidence of record established that he could return to work without restrictions. 

5

 Under File No. xxxxxx637, in a decision dated September 23, 2008, OWCP denied appellant’s claim for a 

schedule award of the neck or lower extremities. Appellant worked for the employing establishment in St. Louis, 

MO during this time. 
3

By decision dated December 8, 2010, OWCP denied appellant’s claim for a schedule 

award finding that he had not established impairment due to either his December 1, 2001 or his 

June 13, 2007 work injuries. 

On January 11, 2011 Dr. Thomas K. Lee, a Board-certified orthopedic surgeon, 

diagnosed lumbar radiculopathy due to the June 13, 2007 work injury. He found a positive 

straight leg raise and weakness in the right extensor halluces longus consistent with instability at 

L3-4. Dr. Lee opined that appellant had 12 percent permanent impairment under the sixth 

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

Impairment (A.M.A., Guides) (2009). 

Appellant, on March 17, 2011, requested reconsideration. An OWCP medical adviser 

reviewed Dr. Lee’s report on April 29, 2011, noting that he found 12 percent whole person 

permanent impairment. The medical adviser determined that Dr. Lee’s report did not support 

entitlement to a schedule award as he did not provide a rating in accordance with the A.M.A., 

Guides. By decision dated May 11, 2011, OWCP denied modification of its December 8, 2010 

decision. 

Appellant again requested reconsideration on October 5, 2011. In a November 7, 2011 

report, Dr. Lee opined that appellant had 16 percent permanent impairment due to olisthesis at 

L3-4 and 10 percent permanent impairment due to olisthesis at L4-5. An OWCP medical adviser 

reviewed Dr. Lee’s report and found that it did not support entitlement to a schedule award as he 

rated appellant’s impairment using Table 17-4 on page 571 of the sixth edition of the A.M.A., 

Guides, relevant to determining impairments of the spine due to spondylolisthesis. In a decision 

dated January 13, 2012, OWCP denied modification of its May 11, 2011 decision. 

In a report dated August 17, 2012, Dr. M. Stephen Wilson, an attending orthopedic 

surgeon, reviewed the history of injury and discussed appellant’s current complaints of neck pain 

radiating into the extremities and tingling. Citing Proposed Table 1 of the A.M.A., Guides

Newsletter (July/August 2009) (The Guides Newsletter), he found 10 percent permanent 

impairment of each upper extremity. 

On January 2, 2013 appellant, through counsel, again requested reconsideration. 

On March 17, 2013 an OWCP medical adviser opined that Dr. Wilson’s August 17, 2012 

report did not support an impairment rating. He found that Dr. Wilson did not conduct sensory 

testing for any extremity, but instead found sensory symptoms based on his subjective history 

and also did not perform the appropriate strength testing or consider alternate explanations for 

the loss of strength such as peripheral entrapment neuropathy or tendinitis. On April 1, 2013 

OWCP denied modification of its January 13, 2012 decision. 

Appellant appealed to the Board. In a decision dated July 22, 2014, the Board affirmed 

the April 1, 2013 OWCP decision.6

 The Board found that Dr. Wilson’s opinion lacked sufficient 

probative value to support a schedule award of either upper extremity. 

 6 Supra note 3. 
4

An electromyogram (EMG) and nerve conduction velocity (NCV) study performed 

February 27, 2015 revealed axonal sensorimotor polyneuropathy, mild carpal tunnel syndrome, 

severe left ulnar neuropathy, and a “chronic left C6-7 radiculopathy....” 

In a May 15, 2015 impairment evaluation, Dr. Neil Allen, a Board-certified neurologist 

and internist, described appellant’s work injury and resulting surgeries. He diagnosed 

displacement of a cervical intervertebral disc without myelopathy. Dr. Allen discussed 

appellant’s complaints of cervical pain radiating through both arms into his digits and evaluated 

range of motion, strength, and sensation of the cervical spine. He noted that a February 27, 2015 

EMG showed mild left carpal tunnel syndrome, severe left ulnar neuropathy, and chronic 

radiculopathy at C6-7. Dr. Allen found that, under The Guides Newsletter, appellant had 9 

percent motor deficit at C6 and C7, and 3 percent sensory deficit at C8, for a total upper 

extremity impairment of 21 percent. In reaching his impairment determination, Dr. Allen used 

grade modifiers for clinical studies in adjusting from the default value for each spinal nerve root 

based in part on the EMG study finding significant left ulnar neuropathy. 

Appellant, on August 11, 2015, filed an additional claim for a schedule award (Form 

CA-7). 

An OWCP medical adviser reviewed the evidence on October 5, 2015. He found that 

Dr. Allen utilized findings of peripheral nerve entrapment on electrodiagnostic testing to rate 

appellant’s impairment rather than basing the rating only on radiculopathy. The medical adviser 

recommended a second opinion examination. 

OWCP, by letter dated October 8, 2015, again referred appellant to Dr. Katz for a second 

opinion examination. In an accompanying statement of accepted facts (SOAF), it listed the 

accepted conditions as a disc herniation at C5-6, cervical radiculopathy, C4-5 and C6-7 adjacent 

disc disorder, and cervical strain. 

In an October 27, 2015 report, Dr. Katz listed the “reported diagnoses” for appellant as 

cervical strain with radicular components, right C6 radiculopathy, adjacent segment disease, a 

worsening of symptoms after a 2005 motor vehicle accident, low back strain due to a June 13, 

2007 work injury, and to rule out a right herniated disc at L4-5. He reviewed the medical 

evidence, noting that a February 27, 2017 EMG and NCV showed severe left ulnar neuropathy 

with axonal loss, chronic C6-7 left radiculopathy, and mild left carpal tunnel syndrome. 

Dr. Katz discussed appellant’s complaints of neck pain and tingling in the fourth and fifth fingers 

of both hands. On examination, he found reduced cervical motion and absent muscle stretch 

reflexes in the “biceps, triceps, brachioradialis, and pronator teres.” Dr. Katz further found a loss 

of sensation in the fourth and fifth digits bilaterally and clear weakness in the first dorsal 

interosseous bilaterally with atrophy of the first web space. He measured grip strength of 40 on 

the right and 25 on the left. Dr. Katz opined that appellant reached maximum medical 

improvement (MMI) on February 13, 2004 when appellant was released to resume work without 

limitations. He found no evidence of right C5 or C6 radiculopathy, but “diffuse peripheral 

neuropathy, severe bilateral ulnar neuropathy, [and] bilateral carpal tunnel syndrome well 

documented clinically and electrophysiologicaly.” Dr. Katz noted that OWCP advised that 

appellant should receive a rating only for radiculopathy, and found that appellant had no 

impairment as there was no evidence of cervical radiculopathy. 
5

An OWCP medical adviser reviewed the evidence on November 11, 2015 and concurred 

with Dr. Katz’ finding that appellant had no permanent impairment due to cervical radiculopathy 

using The Guides Newsletter. The medical adviser identified the date of MMI as 

October 27, 2015. 

By decision dated February 1, 2016, OWCP denied appellant’s claim for a schedule 

award. 

On February 8, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. At the telephone hearing, held on October 14, 2016, counsel 

contended that a conflict in the medical opinion evidence arose between Dr. Allen and the 

second opinion physician that was inappropriately resolved by OWCP’s medical adviser. He 

asserted that The Guides Newsletter required electrodiagnostic testing which the medical adviser 

failed to consider. 

In a decision dated December 12, 2016, OWCP’s hearing representative affirmed the 

February 1, 2016 decision. She found that Dr. Allen failed to provide sensory testing of the 

upper extremities and used findings of peripheral nerve entrapment to increase grade modifiers. 

On appeal counsel contends that OWCP disregarded evidence and that he is entitled to a 

schedule award. 

LEGAL PRECEDENT 

The schedule award provisions 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, 

it 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 calculate schedule awards.10

The sixth edition requires identifying the impairment class for the diagnosed condition 

Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). 

 7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. 

9 Id. at § 10.404(a). 

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

11 A.M.A., Guides 494-531. 
6

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

back or to the body as a whole.12 Furthermore, the back is specifically excluded from the 

definition of organ under FECA.13 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 

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.14

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish entitlement to compensation, 

OWCP shares responsibility to see that justice is done.15 The nonadversarial policy of 

proceedings under FECA is reflected in OWCP’s regulations at section 10.121.16 Once OWCP 

undertakes to develop the medical evidence further, it has the responsibility to do so in a proper 

manner.17

ANALYSIS 

OWCP accepted that appellant sustained cervical strain, displacement of a cervical disc at 

C5-6, cervical brachial neuritis or radiculitis, and adjacent cervical disc disorders at C4-5 and 

C6-7 due to a December 1, 2001 employment injury. Appellant underwent an anterior cervical 

discectomy and fusion at C5-6 on April 1, 2002. On October 30, 2003 he underwent an anterior 

arthrodesis at C4-5, C5-6, and C6-7, a revision anterior cervical corpectomy at C5-6, an anterior 

cervical instrumented fusion, and a posterocervical laminotomy and instrumented fusion with a 

structural fibular allograft, following which he resumed his usual employment. 

Appellant filed schedule award claims, which OWCP denied in decisions dating from 

2007 through 2013. In a decision dated July 22, 2014, the Board affirmed an April 1, 2013 

OWCP decision finding that he had not established entitlement to a schedule award for a 

permanent impairment of either arm. 

On August 11, 2015 appellant again filed a claim for a schedule award. In an impairment 

evaluation dated May 15, 2015, Dr. Allen, citing The Guides Newsletter, found that appellant 

had nine percent permanent impairment due to a motor deficit at C6 and C7 and three percent 

permanent impairment due to a sensory deficit at C8. He did not, however, explain how he 

found nerve root impairment at C8 radiating into the extremities given the EMG findings of 

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

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

14 Supra note 10 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4. 

15 Jimmy A. Hammons, 51 ECAB 219 (1999). 

16 20 C.F.R. § 10.121. 

17 Melvin James, 55 ECAB 406 (2004). 
7

cervical radiculopathy only at C6-7. Dr. Allen further did not provide a sensory evaluation for 

the upper extremities. Additionally, he applied grade modifiers based on the peripheral 

neuropathy, a condition not accepted as work related. The A.M.A., Guides provides that grade 

modifiers are used to assess factors “attributable to the condition being rated....”18

An OWCP medical adviser reviewed Dr. Allen’s report and recommended a second 

opinion evaluation. OWCP referred appellant to Dr. Katz. It provided the physician with a 

SOAF describing the accepted conditions due to the December 1, 2001 work injury as a C5-6 

disc herniation, an adjacent disc disorder at C4-5 and C6-7, cervical radiculopathy, and cervical 

strain. 

Dr. Katz’ October 27, 2015 impairment evaluation identified the accepted conditions as 

cervical strain with radicular components, right C6 radiculopathy, and adjacent segment disease. 

He reviewed the diagnostic studies, noting that the February 27, 2017 EMG revealed chronic left 

radiculopathy at C6-7, left ulnar neuropathy, and mild left carpal tunnel syndrome. On 

examination Dr. Katz measured reduced sensation in the fourth and fifth digits bilaterally with 

weakness in the first dorsal interosseous bilaterally with web space atrophy. He found no 

numbness from a right C6 distribution. Dr. Katz opined that appellant had no evidence of C5 or 

C6 radiculopathy on the right. He concluded that he had no evidence of residual cervical 

radiculopathy and thus no impairment of the arms. Dr. Katz advised that appellant reached MMI 

on February 13, 2004. 

An OWCP medical adviser, on November 11, 2015, concurred with the opinion of 

Dr. Katz that appellant had no permanent impairment due to cervical radiculopathy using The 

Guides Newsletter. He found, however, that the date of MMI was October 27, 2015. 

The Board finds that the case is not in posture for decision. Dr. Katz found that the 

accepted condition was a right C6 radiculopathy and specifically determined that there was no 

evidence of right C5 or C6 radiculopathy. He noted that the EMG study found chronic left 

radiculopathy at C6. The SOAF provided to Dr. Katz, however, indicated that OWCP had 

accepted cervical radiculopathy rather than right C5 and C6 radiculopathy. OWCP provided him 

with a SOAF to ensure his report was based on a proper factual background.19 To the extent that 

Dr. Katz’ opinion is outside the framework of the SOAF, it is based on an inaccurate history and, 

thus, of diminished probative value.20

 18 A.M.A., Guides 406. 

19 See supra note 9 at Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 (October 1990) 

(when OWCP’s medical adviser, second opinion specialist or referee physician renders a medical opinion based on a 

SOAF which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or her opinion, 

the probative value of the opinion is seriously diminished or negated altogether). 

20 See Douglas M. McQuaid, 52 ECAB 382 (2001) (medical reports must be based on a complete and accurate 

factual and medical background and medical opinions based on an incomplete or inaccurate history are of little 

probative value). 
8

As discussed, once OWCP undertakes development of the medical evidence it has the 

responsibility to do so in a manner that will resolved the relevant issues in the case.21 Upon 

return of the case record, it should obtain a reasoned opinion addressing whether appellant has a 

permanent impairment of the upper extremities causally related to his accepted employment 

injuries. If so, the Board notes that preexisting impairment to the scheduled member is to be 

included.22 Following such further development as OWCP deems necessary, it shall issue a 

de novo decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the December 12, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board. 

Issued: September 18, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 21 See M.C., Docket No. 09-1880 (issued June 21, 2010). 

22 Peter C. Belkind, 56 ECAB 580 (2005).