United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

DEPARTMENT OF DEFENSE, PENTAGON 

MAINTENANCE DEPARTMENT, 

Washington, DC, Employer

__________________________________________

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Docket No. 17-1410

Issued: November 9, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 14, 2017 appellant, through counsel, filed a timely appeal from an April 7, 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 met his burden of proof to establish 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 a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decision are incorporated herein by reference. The relevant facts are as follows.

On October 25, 2007 appellant, then a 47-year-old maintenance work inspector, filed an 

occupational disease claim (Form CA-2) alleging a cervical condition due to repetitive neck 

movements at work over time. OWCP accepted his claim for cervical stenosis/dystonia. Shortly 

after filing his claim, appellant began working in a light-duty position for the employing 

establishment.4

On January 25, 2008 Dr. William Maggio, an attending Board-certified neurosurgeon, 

performed OWCP-approved discectomy and fusion at C3-4.

An April 21, 2009 x-ray test of appellant’s cervical spine contained an impression of 

unremarkable postoperative changes apart from mild dextroscoliosis.5 On July 9, 2009

Dr. Maggio noted that a computerized tomography (CT) scan from an unspecified date was 

normal and that appellant had no neurologic complaints.6

On January 6, 2014 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to his accepted work injury.

In a July 9, 2014 report, Dr. Robert W. Macht, an attending Board-certified general 

surgeon, determined that appellant had 10 percent impairment of his left upper extremity under 

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

(hereinafter A.M.A., Guides).

7

 He opined that appellant had a cervical radiculopathy as shown 

by recent electromyogram (EMG) and nerve conduction velocity (NCV) testing. Dr. Macht 

referenced tables relating to spinal nerves in the American Medical Association publication, The 

Guides Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

 

3 Docket No. 16-1116 (issued October 20, 2016).

4 Appellant received a leave buy back payment for the period August 22, 2007 to February 15, 2008.

5 A November 3, 2000 magnetic resonance imaging (MRI) scan of appellant’s cervical spine showed cord 

compression at C3-4.

6 The record does not contain a CT scan of the cervical spine produced around the time of Dr. Maggio’s report.

7

6

th ed. 2009.
3

(July/August 2009) (hereinafter The Guides Newsletter).8 He indicated that appellant reached 

maximum medical improvement (MMI) as of June 1, 2014.

On December 5, 2014 Dr. Morley Slutsky, a Board-certified occupational medicine 

physician serving as an OWCP medical adviser, indicated that he had reviewed appellant’s file. 

He noted that Dr. Macht’s findings contrasted with those of Dr. Maggio in that Dr. Maggio had 

previously reported that appellant had a normal CT scan and did not have any neurologic 

complaints. Dr. Slutsky noted that the file did not contain a report of the EMG/NCV study

referenced by Dr. Macht. He determined that the medical evidence of record was insufficient to 

support an impairment rating.

In January 2015 OWCP referred appellant for a second opinion examination to

Dr. Robert F. Draper, a Board-certified orthopedic surgeon, in order to evaluate the permanent 

impairment of his upper extremities under the standards of the sixth edition of the A.M.A., 

Guides.

In a February 12, 2015 report, Dr. Draper discussed appellant’s factual and medical 

history and reported the findings of the physical examination he conducted on that date. 

Appellant exhibited findings of 5/5 upper extremity strength bilaterally, restricted cervical range 

of motion, +2 symmetric reflexes, normal light touch sensation, negative bilateral shoulder 

impingement, and diminished left hand motion. Dr. Draper noted that appellant had no objective 

motor deficits, sensory loss, or neurologic abnormalities, and indicated that his findings were 

consistent with those reported by Dr. Maggio in 2009. However, he found that paresthesia in 

appellant’s upper extremities reflected cervical radiculopathy related to the accepted injury. 

Citing Table 1 in The Guides Newsletter, Dr. Draper classified appellant at a class 1, grade C, or 

one percent permanent impairment of each upper extremity referable to C6 sensory deficit. In 

each upper extremity, appellant had grade modifiers of 1 for physical examination, 1 for 

functional history, and 1 for clinical studies which yielded a net adjustment of zero and a final 

impairment rating of one percent for each upper extremity. He indicated that appellant reached 

MMI as of February 18, 2008.

The report from Dr. Draper was referred to OWCP’s medical adviser, Dr. Slutsky, for 

review. On March 11, 2015 Dr. Slutsky indicated that Dr. Draper’s report showed that there was 

no objective evidence of sensory or motor loss and that, therefore, there was no ratable 

permanent impairment. He indicated that the report of an EMG/NCV study referenced by

Dr. Macht was not in the case record and concluded that appellant had no permanent upper 

extremity impairment.

In a June 2, 2015 report, Dr. Macht noted that the EMG/NCV study referenced in his 

earlier report was conducted on April 1, 2014 by another attending physician, who provided an 

impression of left C5 radiculopathy. He indicated that this testing showed evidence of motor 

loss.

In a June 16, 2015 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon 

serving as an OWCP medical adviser, noted that the November 3, 2000 cervical spine MRI scan 

 

8

See infra note 18.
4

showed cord compression at C3-4, and the postsurgery CT scan showed residual posterior 

osteophyte at C3-4. He opined that these findings were consistent with the paresthesia reported 

by Dr. Draper, and therefore constituted evidence of bilateral upper extremity sensory deficit. 

Citing Table 1 in The Guides Newsletter, Dr. Berman agreed with Dr. Draper’s finding that 

appellant had one percent permanent impairment of each upper extremity. He indicated that 

appellant reached MMI on February 18, 2008.

In a June 29, 2015 decision, OWCP granted appellant a schedule award for one percent 

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

left upper extremity. The award ran for 6.24 weeks from February 18 to April 1, 2008 and was 

based on a determination that the weight of the medical opinion evidence with respect to 

permanent impairment rested with the opinions of Dr. Draper and Dr. Berman.

Appellant, through counsel, requested a telephonic hearing with a representative of 

OWCP’s Branch of Hearings and Review. During the hearing held on February 29, 2016 

counsel argued that OWCP did not properly consider the June 2, 2015 report of Dr. Macht.

By decision dated April 4, 2016, an OWCP hearing representative affirmed OWCP’s 

June 29, 2015 decision noting that appellant had not established more than one percent 

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

left upper extremity. He indicated that the degree of schedule award compensation granted to 

appellant was supported by the opinions of Dr. Draper and Dr. Berman. The hearing 

representative noted that Dr. Macht’s June 2, 2015 report did not contain an impairment rating 

supported by an EMG/NCV study of record.

Appellant appealed his case to the Board and, in an October 20, 2016 decision,9the 

Board affirmed OWCP’s April 4, 2016 decision finding that appellant had not met his burden of 

proof to establish 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. The Board found that the weight of the medical opinion evidence rested with 

the opinions of Dr. Draper and Dr. Berman who found that appellant had one percent permanent 

impairment of each upper extremity. The Board determined that the permanent impairment 

ratings of Dr. Draper and Dr. Berman were in accordance with the relevant standards of the sixth 

edition of the A.M.A., Guides. The Board noted that appellant failed to submit probative 

evidence showing that he had more than one percent permanent impairment of his right upper 

extremity and one percent permanent impairment of his left upper extremity. The Board

indicated that Dr. Macht had posited on July 9, 2014 that appellant had 10 percent impairment of 

his left upper extremity as indicated by the findings an EMG/NCV study. The Board found that 

this opinion was of limited probative value because Dr. Macht did not adequately describe the 

rationale for this opinion under the standards of the sixth edition of the A.M.A., Guides and he 

referenced an EMG/NCV study that was not in the record.

By letter dated and received on November 30, 2016, appellant, through counsel, 

requested reconsideration of his claim. Appellant submitted the findings of an April 1, 2014 

EMG/NCV study of the upper extremities which contained a clinical interpretation of abnormal 

 

9

See supra note 3.
5

electrophysiological study of the left upper extremity due to chronic left C5 radiculopathy of 

moderate-to-severe degree, and early mild bilateral carpal tunnel syndrome (sensory in nature 

with no involvement in the motor fiber).10

In an April 7, 2017 decision, OWCP denied modification of its prior decision, noting that 

he did not meet his burden of proof to establish 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 a schedule award. It indicated that appellant provided an April 1, 

2014 EMG/NCV study, but found the study by itself did not establish an increase in the 

permanent impairment of his upper extremities. OWCP found that appellant had not provided a 

well-reasoned and rationalized impairment rating from a physician showing that he had more 

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

impairment of his left upper extremity under the standards of the sixth edition of the A.M.A., 

Guides.

LEGAL PRECEDENT

The schedule award provisions of FECA11 and its implementing regulations

12 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, 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 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. The A.M.A., Guides has been adopted by the implementing regulation as the 

appropriate standard for evaluating schedule losses.13 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.14

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

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.15 A

schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically

enumerated under FECA.16 Moreover, neither FECA nor its implementing regulations provides for 

 

10 The clinical interpretation portion of the report did not identify any abnormal findings for the right upper 

extremity.

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404 (1999).

13 Id.

14 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).

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

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

a schedule award for impairment to the back or to the body as a whole. Furthermore, the back is 

specifically excluded from the definition of organ under FECA.17

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.18

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

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) is to be applied.19 The Board has long recognized the discretion of OWCP to 

adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.20 

In particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating 

in the spine.21

ANALYSIS

OWCP accepted that appellant sustained an occupational injury in the form of cervical 

stenosis/dystonia. On February 12, 2014 appellant filed a claim for a schedule award due to his 

accepted work injury. In a June 29, 2015 decision, OWCP granted him a schedule award for one 

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

impairment of his left upper extremity. By decision dated April 4, 2016, an OWCP hearing 

representative affirmed OWCP’s June 29, 2015 decision. In an October 20, 2016 decision, the 

Board affirmed OWCP’s April 4, 2016 decision finding that appellant had not met his burden of 

proof to establish 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 

a schedule award. 

The Board notes that it found, in its October 20, 2016 decision, that none of the evidence 

contained in the record prior to the issuance of OWCP’s April 4, 2016 decision established that 

appellant had more than one percent permanent impairment of his right upper extremity and one 

 

17 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

18 See supra note 15.

19 See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3 

-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4.

20 D.S., Docket No. 14-0012 (issued March 18, 2014).

21 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
7

percent permanent impairment of his left upper extremity. The only medical evidence that 

appellant submitted after the issuance of OWCP’s April 4, 2016 decision was an April 1, 2014 

EMG/NCV study of his upper extremities which contained a clinical interpretation of abnormal 

electrophysiological study of the left upper extremity due to chronic left C5 radiculopathy of 

moderate-to-severe degree, and early mild bilateral carpal tunnel syndrome.22 In an April 7, 

2017 decision, OWCP denied appellant’s claim noting that he did not meet his burden of proof to 

establish more than one percent permanent impairment of his right upper extremity and one 

percent permanent impairment of his left upper extremity.

The Board finds that appellant has not met his burden of proof to establish 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.

As noted, appellant provided an April 1, 2014 EMG/NCV study after the issuance of the 

Board’s October 20, 2016 decision. However, this study would not, in and of itself, establish 

that appellant had more than one percent permanent impairment of either upper extremity. The 

Board notes that, in its October 20, 2016 decision, it referenced the absence of an EMG/NCV

study in the record when it determined that a July 9, 2014 report of Dr. Macht, an attending 

physician, was of limited probative value due to its lack of medical rationale supporting its 

opinion on upper extremity permanent impairment.

23

 The April 1, 2014 EMG/NCV study did 

not contain any opinion on the extent of the permanent impairment of appellant’s upper 

extremities and, therefore, is of limited probative value regarding this matter.24 The mere 

inclusion of the April 1, 2014 EMG/NCV study in the record would not remedy the fact that the 

record still lacks a rationalized medical report showing that appellant had more than one percent 

permanent impairment of either upper extremity. For these reasons, OWCP properly found, in 

its April 7, 2017 decision, that appellant had not provided a well-reasoned and rationalized 

impairment rating report from a physician showing more than one percent permanent impairment 

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

under the standards of the sixth edition of the A.M.A., Guides.

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 employmentrelated condition resulting in permanent impairment or increased impairment.

 

22 The clinical interpretation portion of the report did not identify any abnormal findings for the right upper 

extremity. 

23 The Board has held that a report which does not contain medical rationale supporting its conclusion regarding a 

given medical matter is of limited probative value regarding that matter. D.R., Docket No. 16-0528 (issued 

August 24, 2016).

24 See Charles H. Tomaszewski, 39 ECAB 461 (1988) (finding that medical evidence which does not offer an 

opinion regarding a given medical matter is of limited probative value regarding that matter).
8

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish 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 a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the April 7, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 9, 2017

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