United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.H., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Los Angeles, CA, 

Employer

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Docket No. 17-1017

Issued: December 4, 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 April 10, 2017 appellant, through counsel, filed a timely appeal from the January 31, 

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 the claim.3

 

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.

3 The record provided to the Board includes evidence received after OWCP issued its January 31, 2017 decision. 

The Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether appellant met his burden of proof to establish permanent impairment 

of his left upper extremity entitling him to a schedule award.

FACTUAL HISTORY

On September 6, 2008 appellant, then a 43-year-old motor vehicle operator, filed a 

traumatic injury claim (Form CA-1) alleging that he injured his left shoulder on August 18, 2008 

when the trailer door he was pulling down came off the track. He stopped work on 

August 18, 2008. OWCP accepted the claim for a left shoulder strain. On December 12, 2008 it 

expanded the claim to include cervical radiculopathy to the left shoulder. Appellant returned to 

limited-duty, full-time employment in April 2009. He was released to full duty without 

restrictions on May 20, 2009. Appellant performed regular duty until August 12, 2009, when he 

stopped work due to increased shoulder symptoms. OWCP paid wage-loss compensation and 

medical benefits. 

On August 20, 2009 appellant filed an occupational disease claim (Form CA-2) alleging a 

worsening of his cervical condition due to his work duties. OWCP assigned the claim File No.

xxxxxx881 and accepted an aggravation of cervical radiculopathy. File No. xxxxxx881 was 

administratively combined with the current claim which was then designated as the master file.4

In a February 25, 2010 report, Dr. H. Harlan Bleecker, a Board-certified orthopedic 

surgeon and second opinion physician, noted the history of the work injuries, reviewed the 

medical records and statement of accepted facts, and presented examination findings. Due to a 

concern about an inflammatory arthritis, he ordered an arthritis panel along with the 

sedimentation rate.

5

 Dr. Bleecker also ordered new electrodiagnostic studies of both upper 

extremities. He found that appellant was totally disabled. Dr. Bleecker responded that OWCP’s 

questions would be answered after he reviewed the testing ordered. 

In a July 15, 2010 report, Dr. Seymour Levine, a Board-certified rheumatologist and 

internist serving as second opinion physician, opined that appellant had a widespread 

inflammatory polyarthritis, most compatible with seronegative rheumatoid arthritis. He 

reviewed appellant’s complete medical record and opined that the findings were not neurologic, 

but rather rheumatologic in terms of widespread synovitis and was not connected to a work 

injury. Dr. Levine indicated that the synovitis was present to such an extent that appellant had 

significant weakness of the bilateral hands. He further opined that appellant was temporarily

 

4 File No. xxxxxx881 is in closed status. 

5 Appellant underwent an arthritis panel on February 25, 2010, an electromyogram/nerve conduction velocity 

(EMG/NCV) study of the bilateral upper extremities on March 16, 2010 and a magnetic resonance imaging (MRI) 

scan of the cervical spine on March 26, 2010. In a March 31, 2010 report, Dr. Bleecker recommended that appellant 

be seen for a rheumatological consultation as the testing indicated that there may be an inflammatory arthropathy 

and a cervical radiculopathy. He responded that he could not answer OWCP’s questions until it was determined 

whether appellant’s inflammatory process was related to his work. In an April 9, 2010 addendum report,

Dr. Bleecker again replied that it could not be determined that the accepted conditions were proper diagnoses until 

appellant underwent a workup from a rheumatological standpoint.
3

totally disabled on a nonindustrial basis due to his rheumatoid arthritis. Dr. Levine further 

opined that there were no limitations related to appellant’s left shoulder work injury. 

In a July 21, 2010 addendum report, Dr. Bleecker opined that appellant recovered from 

the accepted left shoulder strain. However, appellant still had residuals of the C6-7 

radiculopathy. The remainder of his symptoms were secondary to the rheumatoid arthritis and 

were not medially connected to the work injury.

Dr. Kenneth R. Sabbag, an orthopedic surgeon, provided impressions of cervical 

radiculopathy, left shoulder strain/sprain, and nonindustrial rheumatoid arthritis. In an April 7, 

2011 report, he noted that appellant was a candidate for cervical spine surgery, but that he did 

not wish to pursue surgical care and was controlling his symptoms at the present time. 

By decision dated May 11, 2011, OWCP terminated appellant’s medical benefits for the 

left shoulder strain effective May 11, 2011. It found that the weight of the medical evidence 

with Dr. Bleecker, a Board-certified orthopedic surgeon and second opinion physician, who 

opined, in a July 21, 2010 addendum report, that appellant no longer had a left shoulder 

condition. OWCP continued to authorize appellant’s medical benefits and disability for the 

accepted employment-related cervical radiculopathy. It noted that Dr. Bleecker noted that, while 

appellant had confirmed rheumatoid arthritis, he also continued to have residuals of his 

employment-related cervical radiculopathy. OWCP also noted that Dr. Sabbag’s reports 

indicated ongoing treatment for cervical radiculitis. Appellant did not appeal this decision.

Appellant retired on disability effective June 9, 2011. 

On February 8, 2012 Dr. Sabbag indicated that appellant had reached maximum medical 

improvement. He noted that appellant was unable to perform his usual job, but was able to work 

in a sedentary position with permanent restrictions. Dr. Sabbag indicated that activity 

exacerbated appellant’s underlying rheumatoid arthritis. 

In an August 15, 2014 report, Dr. John L. Howard, a Board-certified orthopedic surgeon 

and second opinion physician, provided an impression of status post strain of the left shoulder 

and widespread polyarthritis, rheumatoid arthritis. Based on the history provided by appellant 

and his review of the medical records and examination findings, Dr. Howard opined that there 

were no remaining residuals of the accepted medical conditions. Rather, appellant’s symptoms 

were due to his severely debilitating rheumatoid arthritis, which also rendered him totally 

disabled for any work. 

In an October 22, 2014 report, Dr. Sabbag indicated that he last saw appellant on 

July 9, 2014. It was his opinion that because of his industrial conditions and nonindustrial 

conditions, appellant was substantially incapacitated for employment. Dr. Sabbag noted that 

appellant had rheumatoid arthritis and cervical radiculopathy. He indicated that the only way to 

rule out whether appellant’s ongoing disability was due to radiculopathy or the arthritic issues 

was to do perform an additional MRI scan of the cervical spine and conduct new EMG/NCV 

studies. 
4

By decision dated October 29, 2014, OWCP terminated appellant’s wage-loss 

compensation and medical benefits effective October 29, 2014.

6

 It found that the weight of the 

medical evidence rested with Dr. John L. Howard, a Board-certified orthopedic surgeon and 

second opinion physician, who opined in his August 15, 2014 report that there were no 

remaining residuals of the accepted medical conditions. 

Appellant requested a hearing before an OWCP hearing representative. 

By decision dated April 16, 2015, the hearing representative affirmed the termination of 

benefits. He noted that the October 22, 2014 report from Dr. Sabbag was insufficient to warrant 

reinstatement of appellant’s benefits or for further development of the evidence. Appellant did 

not appeal the April 16, 2016 hearing representative’s decision.

On March 11, 2016 appellant filed a claim for a schedule award (Form CA-7). No 

evidence was provided with the schedule award claim. OWCP did not issue a development 

letter. 

By decision dated March 23, 2016, OWCP denied the claim for a schedule award. It 

found that the weight of the medical evidence, as represented by Dr. Howard’s second opinion 

report of August 14, 2015, established that appellant had no residuals of the accepted medical 

conditions. 

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

OWCP’s Branch of Hearings and Review. 

In an August 3, 2016 report, Dr. Mesfin Seyoum, a family practitioner, noted the history 

of the August 18, 2008 employment injury, appellant’s history of rheumatoid arthritis, and 

reviewed medical records which ended in 2010. He provided evaluation findings of the cervical 

spine, left shoulder, and upper extremities. Dr. Seyoum opined that appellant had cervical 

radiculopathy involving the left C5, C6, and C7 nerve roots and restricted range of left shoulder 

motion and pain. Based on the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides), he opined that appellant had 24 percent 

total left upper extremity impairment and 17 percent total left shoulder impairment due to the 

accepted conditions of left-sided cervical radiculopathy and left shoulder sprain. For the left 

upper extremity radiculopathy involving the left C5, C6, and C7 nerve roots, Dr. Seyoum 

indicated that he used The Guides Newsletter Rating Spinal Nerve Extremity Impairment 

(July/August 2009 edition) (The Guides Newsletter). For the total left C5 nerve root, he found 

11 percent upper extremity impairment, which comprised of 3 percent sensory and 8 percent 

motor impairments. For the total left C6 nerve root, Dr. Seyoum found eight percent upper 

extremity impairment, which comprised of three percent sensory and five percent motor 

impairment. For the total left C7 nerve root, he found seven percent upper extremity 

impairment, which comprised of two percent sensory and five percent motor impairments. The 

total left upper extremity radiculopathy impairment was 24 percent. Dr. Seyoum also found that 

appellant had 17 percent total left shoulder impairment under the range of motion method. He 

provided all his impairment calculations under the A.M.A., Guides. 

 

6 File No. xxxxxx881 is in closed status. See infra note 4.
5

A telephonic hearing was held on November 16, 2016. Counsel argued that OWCP’s 

decision was improper as it was obligated to develop the schedule award claim if appellant 

submitted prima facie evidence of a permanent impairment after termination of benefits. He also 

cited to Board precedent that the fact that appellant’s compensation was terminated does not 

necessary preclude appellant from entitlement to a schedule award.7 The case record was held 

open for 30 days to allow appellant to submit any additional medical evidence. Nothing further 

was received.

By decision dated January 31, 2017, an OWCP hearing representative affirmed the

March 23, 2016 schedule award denial. The hearing representative found that Dr. Seyoum’s 

August 3, 2016 report could not be used as prima facie evidence of permanent impairment as it

was not based on an accurate medical and factual history of the claims in question. 

LEGAL PRECEDENT

The schedule award provision of FECA8and its implementing federal regulations9set 

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.10 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to rate permanent impairment.11

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.12 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for 

permanent impairment to a member of the body covered by the schedule regardless of whether 

the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the 

impairment originated in the spine.13

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

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

 

7 See M.K., Docket No. 16-0243 (issued May 9, 2016).

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.

10 Id. at § 10.404(a).

11 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).

12 Pamela J. Darling, 49 ECAB 286 (1998).

13 Thomas J. Engelhart, 50 ECAB 319 (1999).
6

alternative approach to rating spinal nerve impairments. OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides 

Newsletter.

14

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.15

OWCP procedures and Board precedent provide that termination of a claim for all 

benefits due to a finding of no residuals of the accepted condition does not bar a subsequent 

schedule award. Rather the claims examiner should consider the schedule award matter 

separately from the termination of benefits.16 This is because a claimant may have an 

employment-related condition that results in a permanent impairment under the A.M.A., Guides

without any disability for work or the need for continuing medical treatment.17 If a claimant 

applies for a schedule award after termination and submits sufficient medical evidence reflecting 

a permanent impairment as a result of the work-related injury exposure, the claims examiner 

should develop the claim further, even if a finding of no residuals has previously been made.18

ANALYSIS

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

On March 11, 2016 appellant filed a claim for a schedule award which was denied by 

decision dated March 23, 2016. Appellant, through counsel, requested an oral hearing and 

submitted an August 3, 2016 impairment rating report of Dr. Seyoum which found 17 percent 

upper extremity permanent impairment. By decision dated January 31, 2017, OWCP’s hearing 

representative affirmed the denial of the schedule award. 

As noted above, if a claimant requests a schedule award after termination and submits 

sufficient medical evidence of permanent impairment as a result of the work-related injury, 

OWCP should develop the claim further, even if a finding of no residuals has previously been 

made.19

 

14 See supra note 11 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as

Exhibit 4; see also E.P., Docket No. 16-1154 (issued October 26, 2016).

15 See supra note 11 at Chapter 2.808.6(f) (February 2013).

16 See B.K., 59 ECAB 228 (2007); Federal (FECA) Procedure Manual Part 2 -- Claims, Schedule Awards and 

Permanent Disability Claims, Chapter 2.808.11 (February 2013).

17 B.K., id.

18 Supra note 11 at Chapter 2.808.11(a) (February 2013).

19 Supra note 18.
7

The Board finds that OWCP did not properly develop the issue of permanent impairment 

following the submission of the report of Dr. Seyoum. Pursuant to its procedures, OWCP should 

have routed the case record, along with Dr. Seyoum’s August 3, 2016 report, to its medical 

adviser for an opinion concerning the nature and percentage of impairment in accordance with 

the A.M.A., Guides, with the medical adviser providing rationale for the percentage of 

impairment specified.20 As this was not done, the case must be remanded to OWCP’s medical 

adviser.

On remand, OWCP shall further develop the medical evidence of record and obtain an 

opinion from a medical adviser or second opinion physician regarding the nature and extent, if 

any, of appellant’s impairment for his accepted conditions. Following this and further 

development deemed necessary, OWCP shall issue a de novo merit decision regarding 

appellant’s schedule award claim.21

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated January 31, 2017 is set aside and the case is remanded for further 

development consistent with this decision.

Issued: December 4, 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

 

20 See supra note 11 at Chapter 2.808.6(f) (February 2013).

21 Due to the disposition of this case, counsel’s assertions on appeal will not be addressed.