United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL AIR 

SYSTEMS COMMAND, SAN DIEGO, CA, 

Employer 

__________________________________________ 

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Docket No. 14-1861 

Issued: January 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 22, 2014 appellant filed a timely appeal from a May 19, 2014 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1

 (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 established more than 13 percent permanent impairment of 

each upper extremity for which he received a schedule award. 

FACTUAL HISTORY 

OWCP accepted that on October 25, 1997 appellant, then a 41-year-old aircraft 

electrician, sustained multiple contusions, painful respiration, and cervical strain in the 

 1

 5 U.S.C. § 8101 et seq.
2

performance of duty as a result of falling off a platform. He stopped work. OWCP paid 

wage-loss compensation benefits. On February 28, 1998 appellant returned to full-time limited 

duty. He continued to receive medical benefits with intermittent time loss from work. 

In a decision dated June 29, 1999, OWCP terminated appellant’s entitlement to wage-loss 

and medical benefits effective June 25, 1999.2

 By decision dated February 24, 2000, an OWCP 

hearing representative affirmed the June 29, 1999 termination decision. 

On March 5, 2004 appellant filed a recurrence claim alleging that he needed back and 

cervical surgery as a result of the October 25, 1997 employment injury. On October 27, 2004 

OWCP accepted his recurrence claim for displacement of cervical intervertebral disc. On June 8 

and 13, 2004 appellant underwent bilateral C6-7 medial fasciectomy and foraminotomy. He 

stopped work and was awarded leave buyback for the period June 4 to August 31, 2004. On 

June 8, 2005 appellant underwent cervical fusion of C2-7. He stopped work and requested 

disability compensation. On July 19, 2005 appellant was placed on the periodic rolls. On 

October 25, 2005 he was released to work full-time limited duty, but the employing 

establishment was unable to accommodate his work restrictions. 

OWCP referred appellant to vocational rehabilitation. On March 15, 2010 appellant 

began work as a customer service representative at a private company. On June 21, 2010 OWCP 

determined that the actual wages he earned as a customer service representative, $340.00 weekly, 

fairly, and reasonably represented his wage-earning capacity which resulted in a 69 percent loss 

of wage-earning capacity. 

On June 1, 2011 appellant elected to receive retirement benefits from the Office of 

Personnel Management. 

On August 9, 2011 OWCP granted appellant a schedule award for 13 percent permanent 

impairment of each upper extremity. The award ran for 81.12 weeks from January 31, 2011 to 

February 17, 2013. 

On October 8, 2013 appellant, through counsel, filed a claim for an increased schedule 

award. He submitted various medical reports previously of record dated February 3, April 9, and 

May 18, 1998 by Dr. Stanley G. Katz, a Board-certified orthopedic surgeon. 

On November 7, 2013 OWCP referred appellant’s claim, along with the medical record, 

and statement of accepted facts, to Dr. Steven Ma, a Board-certified orthopedic surgeon, for a 

second opinion examination to determine whether appellant continued to suffer residuals of his 

October 25, 1997 work-related injury and whether he sustained additional permanent impairment 

according to the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

 2

 OWCP terminated appellant’s entitlement to compensation and medical benefits based on the March 23, 1998 

second opinion report of Dr. Ibrahim Yashruti, a Board-certified orthopedic surgeon, who determined that 

appellant’s work-related injuries had resolved and that appellant’s current degenerative cervical condition was 

unrelated to the October 25, 1997 employment injury. 
3

In a December 18, 2013 report, Dr. Ma reviewed appellant’s medical records and the 

statement of accepted facts. He related appellant’s complaints of neck pain radiating down into 

both arms and fingers, mid-to-low back pain, and severe cramping in both legs. Appellant also 

reported numbness and tingling in his fingers when driving or writing. Upon examination of his 

neck, Dr. Ma observed limited range of motion but no asymmetry or spasm present. He stated 

that appellant was unable to bring his chin to his chest or to his left and right shoulders. Dr. Ma 

reported that range of motion of the shoulders, elbows, wrists, and hands were within normal 

limits bilaterally. Reflexes were two plus and symmetrical bilaterally over the biceps, triceps, 

and brachioradialis. Dr. Ma noted that x-rays of the cervical spine revealed anterior plating, and 

intervertebral fusion from C3-7. He diagnosed status post discectomy, intervertebral fusion, and 

anterior plating C3-7 for displacement of cervical intervertebral disc without myelopathy. 

Dr. Ma also stated that appellant had evidence of degenerative arthritis as evidenced by his 

magnetic resonance imaging scans and x-rays but explained that this condition was not 

contributing to his current symptoms. He opined that appellant’s findings had not changed from 

his prior medical records when he was previously given a schedule award for his work-related 

injury. Dr. Ma concluded that none of the medical records or the physical examination 

demonstrated any change in appellant’s medical condition. Thus, he concluded that appellant 

continued to have the same 13 percent impairment of each upper extremity as previously 

awarded. 

On April 21, 2014 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and OWCP 

medical adviser, reviewed the medical evidence and provided an accurate history of injury. He 

noted that Dr. Ma provided findings on examination but did not calculate impairment based on 

the sixth edition of the A.M.A., Guides. Dr. Harris reported diagnoses of status post bilateral 

C6-7 medial facetectomies, and foraminotomies, status post revision of bilateral C6-7 

foraminotomies, status post anterior cervical fusion, and chronic cervical radiculopathy. 

Referring to the sixth edition of the A.M.A., Guides, he explained that, although the A.M.A., 

Guides did not provide a method to calculate upper extremity impairment for cervical 

radiculopathy The Guides Newsletter July/August 2009 described an approach consistent with 

the sixth edition methodology. Dr. Harris opined that appellant had zero percent impairment of 

the right upper extremity and one percent impairment of the left upper extremity for residual 

problems with mild pain/impaired sensation from the left C6 cervical radiculopathy. Thus he 

found no increase in appellant’s upper extremity impairments. Dr. Harris noted that the date of 

maximum medical improvement was December 18, 2013, the date of the second opinion 

examination. 

By decision dated May 19, 2014, OWCP denied appellant’s request for increased 

schedule award based on the April 21, 2014 report of Dr. Harris, the OWCP medical adviser. It 

determined that he had not established more than 13 percent permanent impairment of each 

upper extremity as a result of his accepted conditions. 

LEGAL PRECEDENT 

The schedule award provision of FECA and the implementing regulations 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. FECA, however, does not 

specify the manner in which the percentage of loss shall be determined. The method used in 
4

making such a determination is a matter that rests within the sound discretion of OWCP. 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. OWCP has adopted the A.M.A., Guides as the appropriate standard 

for evaluating schedule losses. As of May 1, 2009, the sixth edition of the A.M.A., Guides is 

used to calculate schedule awards.3

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World health Organization’s International Classification of Functioning, Disability 

and Health.4

 Under the sixth edition, the evaluator identifies the impairment class for the Class 

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

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

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).5

 Evaluators are directed to 

provide reasons for their impairment rating choices, including the choices of diagnoses from 

regional grids, and calculations of modifier scores.6

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

should be routed to the medical adviser for an opinion concerning the nature and percentage in 

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

percentage of impairment specified.

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ANALYSIS 

OWCP accepted that appellant sustained multiple contusions, painful respiration, cervical 

strain, and displacement of cervical intervertebral disc in the performance of duty. Appellant 

underwent various surgeries to his cervical spine. On August 9, 2011 OWCP granted him a 

schedule award for 13 percent permanent impairment of each upper extremity. On August 30, 

2011 appellant, through counsel, requested an additional schedule award. 

OWCP referred appellant’s claim to Dr. Ma for a second opinion examination. In a 

December 18, 2013 report, Dr. Ma reviewed appellant’s history and conducted an examination. 

He observed limited range of motion of appellant’s neck with no asymmetry or spasm. 

Examination of the upper extremities revealed range of motion within normal limits bilaterally 

and reflexes of two plus. Dr. Ma reported that none of the medical records or the physical 

examination demonstrated any change in appellant’s medical condition for which he was 

previously awarded 13 percent impairment of each upper extremity. 

 3

 20 C.F.R. § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

4

 A.M.A., Guides 3, section 1.3 (6th ed. 2009). 

5 Id. at 494-531. 

6 See R.V., Docket No. 10-1827 (issued April 1, 2011). 

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Payment of Compensation and Schedule Awards, 

Chapter 2.808.6(e) (February 2013). 
5

In an April 21, 2014 report, Dr. Harris reviewed the medical record, including Dr. Ma’s 

December 18, 2013 report. He noted diagnoses of status post bilateral C6-7 medial 

facetectomies and foraminotomies, status post revision of bilateral C6-7 foraminotomies, status 

post anterior cervical fusion, and chronic cervical radiculopathy. Referring to The Guides 

Newsletter July/August 2009, Dr. Harris opined that appellant had zero percent impairment of 

the right upper extremity and one percent impairment of the left upper extremity for residual 

problems with mild pain/impaired sensation from the left C6 cervical radiculopathy. Thus, he 

determined that appellant did not warrant an increased schedule award. 

The Board finds that this case is not in posture for decision because the opinions of 

Drs. Ma and Harris are insufficient to establish the degree of appellant’s permanent impairment. 

The Board finds that neither Dr. Ma nor Dr. Harris sufficiently explained how appellant’s 

impairment rating was determined according to the sixth edition of the A.M.A., Guides. Dr. Ma 

reviewed appellant’s history and provided findings on examination. He did not, however, 

provide any calculations for an impairment rating of appellant’s conditions under the sixth 

edition of the A.M.A., Guides. Dr. Ma merely reported that appellant’s medical condition had 

not changed and thus, there was no evidence to support an increased schedule award of 13 

percent impairment of each of appellant’s upper extremities. 

The Board also finds that Dr. Harris’ April 21, 2014 report fails to provide sufficient 

explanation for his impairment rating. Although Dr. Harris properly references The Guides 

Newsletter July/August 2009 he does not discuss specific tables or procedures nor provide any 

explanation for his conclusion that appellant had zero percent impairment of the right upper 

extremity and one percent impairment of the left upper extremity. The Board has held that a 

medical report is of diminished probative value where the A.M.A., Guides are not properly 

followed.8

 Because Dr. Harris failed to properly follow the A.M.A., Guides, the Board finds that 

his impairment rating is an insufficient basis for the schedule award. OWCP should have sought 

clarification or a supplemental report from Dr. Harris regarding the medical rationale he used to 

calculate his impairment rating.9 The Board has held that once OWCP begins development of 

the medical evidence, it has the responsibility to obtain an evaluation which will resolve the issue 

involved in the case.10

The Board finds that this case is not in posture for decision. The Board will set aside the 

April 4, 2014 decision and remand the case for further development of the medical evidence and 

a proper evaluation of appellant’s impairment under the sixth edition of the A.M.A., Guides. 

After such further development as may be necessary, OWCP shall issue a de novo decision on 

appellant’s entitlement to a schedule award. 

 8 J.G., Docket No. 09-1128 (issued December 7, 2009). 

9 Supra note 7 at Chapter 2.808.6(f) (February 2013). 

10 See F.B., Docket No. 10-1382 (issued April 13, 2011). 
6

CONCLUSION 

The Board finds that this case is not in posture for decision on the extent of permanent 

impairment to appellant’s upper extremities. 

ORDER 

IT IS HEREBY ORDERED THAT the May 19, 2014 decision of the Office of 

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

consistent with this decision. 

Issued: January 2, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board