United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 17-0754 

Issued: June 21, 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 20, 2017 appellant, through counsel, filed a timely appeal from a 

January 20, 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. 

ISSUE 

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

impairment of her upper extremities due to her accepted work-related injuries. 

 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

FACTUAL HISTORY 

On October 29, 2009 appellant, then a 29-year-old letter carrier, was struck on the top of 

her head by an all-purpose container while in the performance of duty. OWCP accepted her 

traumatic injury claim (Form CA-1) for cervicalgia, neck sprain, and postconcussion syndrome 

(OWCP File No. xxxxxx180). Appellant received continuation of pay, followed by wage-loss 

compensation benefits until returning to work on February 1, 2010. She also has an accepted 

traumatic injury claim for neck, thoracic, lumbar, and sacroiliac ligament sprains, left hip pain, 

and postconcussion syndrome, conditions which arose as a result of a September 1, 2010 workrelated motor vehicle accident (OWCP File No. xxxxxx146). On May 26, 2011 appellant 

sustained another work-related traumatic injury, which OWCP accepted for bilateral upper 

arm/shoulder sprain (OWCP File No. xxxxxx500)3 and on May 4, 2012 she was reaching above 

shoulder to place mail in a mailbox when she felt a sharp pain in between her neck and shoulder 

on the left side. OWCP accepted her May 4, 2012 traumatic injury claim for cervical and lumbar 

intervertebral disc displacement(s), without myelopathy (OWCP File No. xxxxxx252).4

 

The findings of a May 24, 2012 magnetic resonance imaging (MRI) scan of appellant’s 

cervical spine showed minimal degenerative changes and no evidence of disc herniation, spinal 

stenosis, or interval change. Electromyogram (EMG) and nerve conduction velocity (NCV) 

testing of the upper extremities, performed on March 20, 2013, contained an impression of 

positive results for inactive cervical radiculopathy without abnormalities of the sensory nerve 

action potentials. It was noted that the results mainly affected the medial nerves and involved 

the C5 to C7 levels.5 The findings of a December 29, 2014 MRI scan of appellant’s cervical 

spine showed minimal annular bulges at the C3-4 through C6-7 levels without evidence of disc 

protrusion or central spinal stenosis. 

In a May 23, 2014 report, Dr. Bruce J. Montella, an attending Board-certified orthopedic 

surgeon, indicated that appellant reported her cervical spine condition had been flaring up with 

pain radiating into both shoulders. He detailed the findings of his physical examination, noting 

that her cervical alignment appeared normal to inspection and that she had 5/5 strength in her 

upper extremities bilaterally upon testing of the deltoids, biceps, triceps, wrist extensors, wrist 

flexors, and hand intrinsics. Dr. Montella noted that sensation was intact and symmetrical in 

both upper extremities and that appellant exhibited decreased range of cervical motion on 

flexion, extension, axial rotation, and right/left lateral bending. 

In October 2014, OWCP referred appellant for a second opinion examination to Dr. Allan 

Brecher, a Board-certified orthopedic surgeon. Dr. Brecher was asked to evaluate whether she 

continued to have residuals of her accepted work injuries. 

 3

 Appellant reported having felt a sharp pain in the back of her neck while reaching up to place mail in a box. 

4

 The four above-mentioned traumatic injury claims have been administratively combined under OWCP Master 

File No. xxxxxx180. 

5

 In the findings portion of the report, it was noted that there were no abnormal spontaneous activities in any of 

the muscles examined and that all insertional activities were within normal limits. 
3

In a report dated December 18, 2014, Dr. Brecher discussed appellant’s factual and 

medical history, including her several accepted employment injuries and her past findings upon 

physical examination and diagnostic testing. He reported the findings of the physical 

examination he conducted on December 18, 2014 noting that she cried during the examination 

and exhibited very limited active cervical motion. Dr. Brecher listed range of motion findings 

for appellant’s neck and shoulder and noted that she reported she could “go further with time.” 

Appellant had 5/5 strength in her grip and in her biceps and triceps muscles and she exhibited 

intact sensibility. Dr. Brecher posited that her work-related cervical sprain, lumbar sprain, and 

shoulders sprains had resolved. He advised that appellant’s cervical and lumbar problems 

appeared “to be disproportionate to essentially normal MRI scans.”6

 Dr. Brecher believed that 

she had a very significant psychological overlay and advised that it was difficult to evaluate her 

medical condition because she did not want to move her neck or shoulders. He felt that appellant 

could perform her usual work as a letter carrier from an orthopedic standpoint, but noted that she 

could not perform her usual job due to depression and fibromyalgia. 

In a report dated March 18, 2015, Dr. Ankur Chhadia, an attending Board-certified 

orthopedic surgeon, noted that appellant presented complaining of neck, upper trapezius, and low 

back pain. He reported that, upon physical examination of the upper extremities, she exhibited 

no atrophy, tenderness to palpation, swelling, or instability. Appellant had 5/5 muscle strength 

and her sensation to light touch was intact. 

Appellant previously filed a claim for a schedule award (Form CA-7) in July 2011. On 

March 15, 2016 OWCP received a February 5, 2016 report detailing a functional capacity 

evaluation (FCE) in which she participated and a February 8, 2016 report rating the permanent 

impairment of her upper extremities based on the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter 

A.M.A., Guides). The reports were signed by Dr. Montella and by Brian Trembly, an attending 

physical therapist. 

In their February 5, 2016 report, Dr. Montella and Mr. Trembly reported the findings 

from the FCE. They determined that she made a full and consistent effort during the FCE and 

that she demonstrated the ability to work in the light-work category. Appellant’s two-point 

discrimination testing was normal and she exhibited 5/5 strength throughout her upper and lower 

extremities. 

In their February 8, 2016 report, Dr. Montella and Mr. Trembly noted appellant’s 

diagnoses of cervical and lumbar intervertebral disc displacement, described her history of 

symptoms, and detailed her current symptoms reported in connection with the February 5, 2016 

FCE. They also detailed physical examination findings from January 18, 2016 and the results of 

prior diagnostic tests. Dr. Montella and Mr. Trembly noted that on January 18, 2016 sensation 

was intact bilaterally in all dermatomal distributions in the left and right upper extremities to soft 

and sharp touch. They indicated that the cervical examination also showed deceased motor 

function “in affected areas.” Dr. Montella and Mr. Trembly noted that, without evidence of 

radiculopathy, the diagnosis of lumbar disc displacement was not ratable, or zero percent. 

 6

 Dr. Brecher indicated that appellant’s MRI scans only showed mild bulging discs without stenosis at two levels 

and did not show anything to support continued cervicalgia. 
4

Proposed Table 1 of The Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition” (July/August 2009) (hereinafter The Guides Newsletter) was used and it was 

reported that appellant would fall into the C5 to C7 impairment class. They advised that sensory 

testing, including EMG and physical examination findings, were unremarkable and resulted in 

zero percent impairment for the sensory deficit at each nerve root level. Dr. Montella and 

Mr. Trembly noted that motor function weakness yielded a class 1 default value of four percent 

permanent impairment of each upper extremity. They assigned 2 for functional history grade 

modifier and 1 for physical examination grade modifier, noting the clinical studies modifier was 

not used. Application of the net adjustment formula resulted in six percent permanent 

impairment for the motor deficit for each left and right side. Similar ratings, assignments, and 

calculations for motor function at the C6 and C7 levels were then outlined, resulting in seven 

percent for each side at each level. They reported that, using the Combined Values Chart on 

page 604, combining 7, 7, and 6 percent resulted in a combined value of 19 percent permanent 

impairment of the right upper extremity and 19 percent permanent impairment of the left upper 

extremity. 

On March 23, 2016 OWCP referred the case file to Dr. Morley Slutsky, a Board-certified 

occupational medicine physician serving as an OWCP medical adviser. 

In a March 31, 2016 report, Dr. Slutsky discussed his belief that the evidence of record 

was insufficient to support a finding that appellant had permanent impairment of her upper 

extremities. He explained that The Guides Newsletter was not properly used by Dr. Montella 

and Mr. Trembly. Dr. Slutsky advised that there was no basis for an upper extremity impairment 

rating using The Guides Newsletter because there were no objective sensory or motor deficits 

consistent with individual cervical nerve roots. He noted that the 2012 and 2014 cervical MRI 

scans showed no evidence of disc protrusions, herniations, or spinal stenosis, and that a 2013 

EMG/NCV was positive for inactive cervical radiculopathy without abnormalities of sensory 

nerve action potentials. Dr. Slutsky further noted that on May 23, 2014 appellant had 5/5 upper 

extremity strength, and that a December 16, 2014 second opinion examination with Dr. Brecher 

revealed no upper extremity sensory, motor, or reflex deficits related to the cervical spine. He 

noted another more specific examination carried out on March 18, 2015 by Dr. Chhadia revealed 

no sensory, motor, or reflex deficits associated with the nerve roots related to the cervical spine. 

In his March 31, 2016 report, Dr. Slutsky further explained that while Dr. Montella and 

Mr. Trembly indicated that appellant had decreased motor function “in affected areas,” they did 

not discuss what this meant or identified the affected areas. Also, a grade modifier for physical 

examination was incorrectly assigned, which was not allowed under The Guides Newsletter, and 

that a grade modifier was not assigned for clinical studies, which was required per the protocols 

for the nerve root ratings of The Guides Newsletter. Dr. Slutsky indicated that Dr. Montella and 

Mr. Trembly appeared to have confused the diagnosis-based impairment rating method with the 

rating method associated with The Guides Newsletter. He explained that the clinical testing was 

a key factor and that EMG/NCV testing could only be used as a grade modifier when there was 

reliable clinical evidence of sensory or motor deficits from cervical nerves in the medical 

evidence. Dr. Slutsky advised that, in this case, there was no reliable specific clinical testing and 

no clinical evidence of specific nerve roots or specific muscles affected by the accepted workrelated conditions of appellant’s cervical spine. He concluded that, therefore, there was no basis 
5

for findings that appellant had permanent impairment of her upper extremities due to 

employment factors using The Guides Newsletter. 

By decision dated April 4, 2016, OWCP determined that appellant did not meet her 

burden of proof to establish permanent impairment of her upper extremities due the accepted 

work-related injuries. It found that the weight of the medical evidence regarding her entitlement 

to schedule award compensation rested with the opinion of Dr. Slutsky, OWCP’s medical 

adviser. 

Appellant disagreed with the April 4, 2016 decision and requested, through counsel, a 

telephone hearing with a representative of OWCP’s Branch of Hearings and Review. 

During the telephone hearing held on November 8, 2016, appellant testified that her work 

injuries caused her to have daily symptoms extending down from her neck and through both 

shoulders and arms, including sharp shooting pain and pins and needles sensation. She indicated 

that she was currently working in a limited-duty position for the employing establishment and 

that she participated in physical therapy sessions two to three times a week. Counsel requested 

that the record be held open for 30 days so he would have an opportunity to submit additional 

medical evidence. 

The record was held open for 30 days after the hearing, but appellant did not submit new 

medical evidence regarding issue of the permanent impairment of her upper extremities. 

By decision dated January 20, 2017, OWCP’s hearing representative affirmed the 

April 4, 2016 decision denying appellant’s schedule award claim, finding that she did not meet 

her burden of proof to establish permanent impairment of her upper extremities due to the 

accepted work-related injuries. 

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.7

 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 losses.8

 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).9

 7

 5 U.S.C. § 8107(c). 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). 

8

 20 C.F.R. § 10.404. 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); id. at Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 
6

Neither FECA nor its implementing 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.10 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment.12 It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

ratings for the spine. FECA-approved 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.13

Certain healthcare providers such as physician assistants, nurse practitioners, physical 

therapists, and social workers are not considered “physician[s]” as defined under FECA.14 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.15

ANALYSIS 

Appellant’s accepted conditions include, inter alia, cervicalgia, neck sprain, and cervical 

intervertebral disc displacement without myelopathy. She filed a claim for a schedule award and 

submitted a February 8, 2016 impairment rating from Dr. Montella, who found a combined 19 

percent bilateral upper extremity impairment based on motor deficits involving the C5, C6, and 

C7 nerve roots.16 

On March 31, 2016 OWCP’s district medical adviser, Dr. Slutsky, reviewed the relevant 

medical evidence, including Dr. Montella’s bilateral upper extremity permanent impairment 

rating, and found no evidence of either sensory or motor deficits affecting appellant’s upper 

extremities. Consequently, he advised that she did not have any spinal nerve upper extremity 

impairment due to her employment-related cervical spine condition(s). 

The Board finds that Dr. Slutsky correctly identified the deficiencies in Dr. Montella’s 

February 8, 2016 report and properly applied The Guides Newsletter to determine that appellant 

did not have permanent impairment of her upper extremities. In some instances, a medical 

adviser’s opinion can constitute the weight of the medical evidence. This occurs in schedule 

 10 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). 

11 Supra note 9 at Chapter 2.808.5a(3). 

12 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). 

13 See supra note 9 at Chapter 3.700, Exhibit 4. 

14 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). 

15 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a 

physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified 

physician. Supra note 9 at Chapter 2.805.3a(1) (January 2013). 

16 Dr. Montella did not find evidence of any sensory deficits involving the bilateral upper extremities. 
7

award cases where an opinion on the percentage of permanent impairment and a description of 

physical findings is on file from an examining physician, but the percentage estimate by this 

physician is not properly based on the A.M.A., Guides. In this instance, a detailed opinion by 

OWCP’s medical adviser may constitute the weight of the medical evidence. As long as the 

medical adviser explains his or her opinion, shows values and computation of impairment based 

on the A.M.A., Guides, and considers each of the reported findings of impairment, his or her 

opinion may constitute the weight of the medical evidence of record.17 The Board notes that 

Dr. Slutsky complied with these requirements by explaining his opinion, showing values and 

computation of impairment based on the A.M.A., Guides, and considering each of the reported 

findings of impairment with respect to appellant’s upper extremities. 

In his March 31, 2016 report, Dr. Slutsky explained that The Guides Newsletter was not 

properly used by Dr. Montella. He advised that there was no basis for an upper extremity 

impairment rating using The Guides Newsletter in appellant’s case because there was no clinical 

and diagnostic evidence of sensory and motor deficits consistent with individual cervical nerve 

roots. Because Dr. Slutsky fully explained why sensory or motor deficits from cervical nerves 

were not documented in this case, OWCP properly determined that there was no basis for 

establishing permanent impairment of appellant’s upper extremities stemming from the cervical 

spine. A preexisting impairment may be included in the calculation of percentage of loss 

referable to a work-related injury.18 However, where there is no demonstrated permanent 

impairment due to an accepted workplace injury, the claim is not ripe for consideration of any 

preexisting impairment.19 Dr. Slutsky noted that 2012 and 2014 cervical MRI scans showed no 

evidence of disc protrusions, herniations, or spinal stenosis, and a 2013 EMG/NCV study 

showed an inactive cervical radiculopathy without abnormalities of sensory nerve action 

potentials. He noted that on May 23, 2014 appellant had 5/5 upper extremity strength, and that a 

December 16, 2014 second opinion examination with Dr. Brecher revealed no upper extremity 

sensory, motor, or reflex deficits related to the cervical spine. Dr. Slutsky noted that another 

more specific examination carried out on March 18, 2015 by Dr. Chhadia, an attending 

physician, revealed no sensory, motor, or reflex deficits associated with the nerve roots related to 

the cervical spine. 

Dr. Slutsky further explained that while Dr. Montella indicated that appellant had 

decreased motor function “in affected areas” he did not discuss what this meant or identify the 

affected areas. He noted that a grade modifier for physical examination was incorrectly 

assigned, which was not allowed under The Guides Newsletter, and that a grade modifier was not 

assigned for clinical studies, which was required per the protocols for the nerve root ratings of 

The Guides Newsletter. Dr. Slutsky advised that, in this case, there was no reliable specific 

clinical testing and no clinical evidence of specific nerve roots or specific muscles affected by 

the accepted work-related conditions of appellant’s cervical spine. He properly concluded that, 

 17 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.6f(2)(e); M.P., Docket No. 14-1602 (issued January 13, 2015). 

18 M.F., Docket No. 16-1089 (issued December 14, 2016); Thomas P. Lavin, 57 ECAB 353 (2006). 

19 Id. 
8

therefore, there was no basis for findings that appellant had permanent impairment of her upper 

extremities due employment factors using The Guides Newsletter. 

As Dr. Slutsky, OWCP’s medical adviser, considered all the reported findings and gave 

sufficient supportive explanation for his determination that appellant did not have permanent 

impairment of her upper extremities under the relevant standards, the weight of the medical 

opinion evidence on this matter rests with him.20 

For these reasons, the Board finds that appellant did not establish work-related permanent 

impairment of her upper extremities. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish permanent 

impairment of her upper extremities due the accepted work-related injuries. 

 20 See supra note 17. 
9

ORDER 

IT IS HEREBY ORDERED THAT the January 20, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: June 21, 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