United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Akron, OH, Employer

__________________________________________

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Docket No. 17-0530

Issued: July 2, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 10, 2017 appellant, through counsel, filed a timely appeal from a December 1, 

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 has met his burden of proof to establish more than one 

percent permanent impairment of his right upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On August 7, 2004 appellant, then a 32-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he sustained an occupational disease due to carrying a mailbag 

on his right shoulder while delivering mail. He did not stop work, but he began working in a 

limited-duty position for the employing establishment without wage loss.

On August 13, 2004 OWCP initially accepted appellant’s claim for cervical strain and right 

trapezius strain.

A March 13, 2006 magnetic resonance imaging (MRI) scan of appellant’s cervical spine 

contained an impression of very minimal diffuse disc bulge with no central canal stenosis at C3-

4, and mild neural foraminal narrowing at C3-4 and C6-7 secondary to small uncovertebral

osteophytes.

On December 6, 2006 OWCP expanded the acceptance of the claim to include the 

conditions of cervical herniated disc at C6-7. 

A February 21, 2007 MRI scan of appellant’s cervical spine contained an impression of 

small right disc herniation at C6-7.

The findings of June 10, 2008 electromyogram (EMG) and nerve conduction velocity 

(NCV) testing of appellant’s right upper extremity showed negative results for cervical 

radiculopathy, brachial plexus injury, and focal nerve entrapment. A July 31, 2009 MRI scan of 

his cervical spine contained an impression of small right herniation at C6-7 with associated mild 

compression of the proximal right C7 nerve root.

On August 28, 2009 OWCP expanded the acceptance of the claim to include the conditions 

of cervical radiculopathy and cervical disc disease at C6-7.3

Appellant stopped work on August 29, 2009 and he began receiving disability 

compensation on the periodic rolls.

On January 8, 2010 Dr. Scot D. Miller, an attending Board-certified orthopedic surgeon 

and osteopath, performed OWCP-approved surgery, including anterior cervical discectomy, 

decompression, and fusion at C6-7.

An April 6, 2010 MRI scan of appellant’s cervical spine contained an impression of postsurgical changes at C6 and C7, and degenerative changes of the cervical spine predominately 

 

3 OWCP did not specify whether appellant’s cervical radiculopathy was related to any particular nerve distribution. 
3

involving the C3-4 level. There was no significant overall central canal or neural foraminal

stenosis at these levels.

On June 25, 2010 appellant returned to limited-duty work on a full-time basis, but he later 

stopped work for intermittent periods and received wage-loss compensation.

OWCP referred appellant for a second opinion examination to Dr. Robert J. Nickodem, Jr., 

a Board-certified orthopedic surgeon. It requested that Dr. Nickodem provide an opinion 

regarding whether appellant had any residuals from his accepted work-related conditions.

In a July 9, 2010 report, Dr. Nickodem indicated that, upon physical examination, 

appellant’s cervical muscles were nontender to palpation and that his right trapezial muscle had 

tenderness to palpation with slight spasm. He found that appellant had a work-related right 

trapezial muscle strain, but that his herniated disc at C6-7, cervical radiculitis, and cervical disc 

disease at C6-7 had resolved due to his January 8, 2010 cervical surgery. Dr. Nickodem explained 

that he observed no objective evidence of remaining disc disease or radiculopathy related to the 

conditions during his physical examination.

The findings of October 1, 2010 EMG and NCV testing of appellant’s right upper extremity

showed no electromyographic evidence of right brachial plexopathy, median/ulnar nerve 

entrapment neuropathy, peripheral neuropathy, or myopathy.

A January 6, 2011 MRI scan of appellant’s right shoulder contained an impression of 

glenohumeral articular cartilage loss anteriorly (with near full-thickness cartilage thinning, but no 

subchondral edema or subchondral cystic change), mild subacromial subdeltoid bursitis, os 

acromiale with mild downsloping of the acromion process, and mild diffuse thinning of the rotator 

cuff tendons. There was no evidence of tendon tear, tendinopathy, or muscular atrophy.

In July 2011 OWCP referred appellant for another second opinion examination to

Dr. Manhal Ghanma, Jr., a Board-certified orthopedic surgeon. It requested that Dr. Ghanma 

provide an opinion regarding whether appellant had residuals of his accepted work-related 

conditions.

In an August 12, 2011 report, Dr. Ghanma noted that, upon physical examination, appellant 

had normal strength in both shoulders with no crepitation on range of motion (ROM) testing. 

Appellant exhibited 30 degrees of forward flexion of his neck, 30 degrees of extension, 25 degrees 

of lateral bending (right and left), and 50 degrees of rotation (right and left). Dr. Ghanma indicated 

that there currently were no objective findings to support that appellant had residuals of any of his 

accepted work-related conditions. He found that appellant could work as a letter carrier, but should 

avoid lifting more than 50 pounds.4

In a November 14, 2011 report, Dr. James Bressi, an attending Board-certified pain 

management physician and osteopath, indicated that appellant continued to have work-related 

conditions/symptoms, including signs of a right trapezius strain.

 

4 On August 20, 2011 appellant returned to full-time work for the employing establishment without wage loss.
4

OWCP determined that there was a conflict in the medical opinion evidence between

Dr. Ghanma and Dr. Bressi regarding the extent of appellant’s work-related residuals and referred 

appellant and the case record to Dr. Sheldon S. Kaffen, an attending Board-certified orthopedic 

surgeon, for an impartial medical examination and opinion on the matter.

In a September 7, 2012 report, Dr. Kaffen noted that appellant presented complaining of 

pain and tightness sensation in his posterior neck which radiated to the superior aspect of his right 

shoulder. He indicated that, upon physical examination, appellant exhibited tenderness of his right 

neck, right paraspinous muscles, and the superior border of his right trapezius muscle. Dr. Kaffen

advised that ROM testing of appellant’s right shoulder showed flexion to 140 degrees with a 

painful arc of motion beginning at 90 degrees, full extension to 50 degrees with pain, abduction to 

140 degrees with pain, adduction to 40 degrees, external rotation to 80 degrees, and internal 

rotation to 60 degrees with pain. There was no atrophy or weakness to manual testing in 

appellant’s right shoulder but there was tenderness to palpation of his right acromioclavicular joint, 

anterior subacromial region, and glenohumeral joint. Dr. Kaffen also found that there was no 

weakness or sensory deficit in appellant’s right upper extremity. He opined that appellant’s 

accepted cervical strain and right trapezius strain were no longer active or present. Dr. Kaffen 

noted that appellant exhibited no objective findings on physical examination and diagnostic testing 

of cervical radiculopathy and found that he no longer suffered from that condition. He further 

determined, however, that the accepted conditions of cervical herniated disc at C6-7 and cervical 

disc disease at C6-7 were still active.

5

On January 31, 2013 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to his accepted employment injuries.6

By decision dated April 26, 2013, OWCP denied appellant’s schedule award claim, noting 

that he failed to submit medical evidence sufficient to establish permanent impairment of a 

scheduled member.

On May 1, 2013 appellant, through counsel, requested a hearing with a representative of 

OWCP’s Branch of Hearings and Review. During the hearing held on September 16, 2013, 

counsel provided testimony on appellant’s behalf.

Appellant submitted a February 14, 2013 report from Dr. Rohit S. Chandurkar, an 

attending Board-certified emergency medicine physician, who noted appellant’s complaints of 

neck and right arm pain with some tingling sensation in his right hand. Dr. Chandurkar detailed 

the physical examination findings, noting that appellant had intact strength and radial/ulnar pulses 

in his upper extremities. He diagnosed acute cervical neck strain with pain and acute exacerbation 

of chronic condition (without specifying the chronic condition).

 

5 Dr. Kaffen also opined that the conditions of right shoulder acromion inflammation, right biceps tenosynovitis, 

and right impingement tendinitis were not work related.

6 Appellant did not submit an impairment rating report around the time he filed his schedule award claim.
5

By decision dated October 28, 2013, OWCP’s hearing representative affirmed the 

April 26, 2013 decision, noting that Dr. Chandurkar’s February 14, 2013 report did not establish 

permanent impairment of a scheduled member.

In a November 26, 2013 report, Dr. Catherine Watkins Campbell, an attending Boardcertified family practitioner, indicated that appellant reported symptoms including aching in the 

back of his neck, burning sensation down the ulnar side of his right upper extremity, and pins and 

needles sensation in the ulnar aspect of his right hand/little finger. She reported the findings of the 

physical examination she conducted on November 19, 2013, noting that ROM testing of 

appellant’s right shoulder showed 120 degrees of flexion, 55 degrees of extension, 100 degrees of 

abduction, 30 degrees of adduction, 72 degrees of external rotation, and 25 degrees of internal 

rotation. Impingement signs were present in the right shoulder and muscle testing in the right 

upper extremity revealed 4/5 strength. Dr. Watkins Campbell noted that examination of the 

cervical region revealed cervical lordosis with slight forward head posture as well as tenderness to 

palpation of the right posterior paracervical and scalene muscles. She conducted permanent 

impairment ratings under the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).7 Dr. Watkins Campbell indicated that 

under Table 15-20 (Brachial Plexus Impairment: Upper Extremity Impairments), beginning on 

page 434, appellant had seven percent permanent impairment of his right upper extremity.8 She 

found that appellant reached maximum medical improvement (MMI) by September 2010.

OWCP referred the case to Dr. Morley Slutsky, a Board-certified occupational medicine 

physician serving as an OWCP medical adviser. It requested that Dr. Slutsky review the medical 

evidence of record, including Dr. Watkins Campbell’s November 26, 2013 report, and provide an 

opinion on appellant’s permanent impairment.

In a December 20, 2013 report, Dr. Slutsky noted that he had reviewed Dr. Watkins

Campbell’s November 26, 2013 report and opined that there was no diagnostic evidence or 

consistent clinical evidence of record to support the presence of a brachial plexus lesion. He 

indicated that MRI scans of appellant’s cervical spine, obtained on March 13, 2006, February 21, 

2007, and October 1, 2010, did not show evidence of central canal stenosis or neural foramina 

stenosis, and that June 10, 2008 and October 1, 2010 EMG and NCV testing of his upper

extremities did not show evidence of right-sided cervical radiculopathy, brachial plexus injury, or 

focal nerve entrapment. He further explained that the July 9, 2010 report of Dr. Nickodem, 

August 12, 2011 report of Dr. Ghanma, and September 7, 2012 report of Dr. Kaffen showed no 

motor/sensory loss in appellant’s upper extremities. Dr. Slutsky indicated that, therefore, 

appellant’s permanent impairment should be evaluated under the diagnosis-based impairment 

(DBI) rating method found at Table 15-5 (Shoulder Regional Grid: Upper Extremity Impairments) 

 

7 A.M.A., Guides (6th ed. 2009).

8 Dr. Watkins Campbell found that appellant’s brachial plexus condition fell under class 2 and that he had a 

functional history grade modifier of 3, a physical examination grade modifier of 2, and a clinical studies grade modifier 

of 0. See A.M.A., Guides 405-09, Table 15-6, Table 15-7, and Table 15-8. Dr. Watkins Campbell also found that, 

under Table 17-2 (Cervical Spine Regional Grid: Spine Impairments), appellant had six percent permanent 

impairment of his whole person. See id. at 564-66, Table 17-2.
6

beginning on page 401 of the sixth edition of the A.M.A., Guides.

9

 He determined that, under this 

rating method, appellant’s most impairing diagnosis was his right shoulder strain and he noted that 

this class 1 condition had one percent default value under Table 15-5. 

Dr. Slutsky found that appellant had a functional history grade modifier of 1 and a physical 

examination grade modifier of 1, and noted that a clinical studies grade modifier was not applicable 

because clinical studies were used to place appellant in the correct diagnostic class.10 He indicated 

that application of the net adjustment formula required no movement from the default value under 

Table 15-5 and concluded that appellant had one percent permanent impairment of his right upper 

extremity referable to his right shoulder condition.

11

 In reaching his impairment rating, Dr. Slutsky 

indicated that the A.M.A., Guides provided that the DBI rating method was preferred over the 

ROM rating method for evaluating permanent impairment of the upper extremities. He asserted 

the ROM rating method could only be used as an alternative to the DBI rating method when “there 

were no DBI ratings available.”

In a March 23, 2016 decision, OWCP granted appellant a schedule award for one percent 

permanent impairment of his right upper extremity. The award ran for 3.12 weeks from 

September 7 to 28, 2012 and was based on the opinion of Dr. Slutsky.

On April 5, 2016 appellant, through counsel, requested a telephone hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

October 24, 2016 counsel argued that Dr. Slutsky improperly evaluated the permanent impairment 

of appellant’s right upper extremity.

In a December 1, 2016 decision, OWCP’s hearing representative affirmed OWCP’s 

March 23, 2016 decision, noting that appellant had not established more than one percent 

permanent impairment of his right upper extremity. In affirming OWCP’s March 23, 2016 

schedule award determination, the hearing representative first found that appellant had not 

established any right upper extremity permanent impairment due to his accepted cervical-related 

conditions -- cervical strain, cervical herniated disc at C6-7, cervical disc disease at C6-7, and 

cervical radiculopathy. The hearing representative then found that appellant has failed to submit 

evidence showing that Dr. Slutsky was incorrect when he calculated one percent permanent 

impairment of appellant’s right upper extremity due to his accepted right shoulder condition.

LEGAL PRECEDENT

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

 

9 See A.M.A., Guides 401-05, Table 15-5. Dr. Slutsky noted that appellant did not have any permanent impairment 

of his right upper extremity due to a work-related brachial plexus condition because there was no evidence in the 

record of such a condition.

10 See id. at 405-09, Table 15-6, Table 15-7, and Table 15-8.

11 See id. at 411. Dr. Slutsky found that appellant’s MMI was September 7, 2012, the date of the physical 

examination conducted by Dr. Kaffen.
7

vested the authority to implement the FECA program with the Director of OWCP.

12

 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.13 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. Through its implementing regulations, 

OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.14

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first printing 

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second 

printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).15 The Board has approved the use by OWCP of the A.M.A., Guides

for the purpose of determining the percentage loss of use of a member of the body for schedule 

award purposes.16

Neither FECA nor the 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.17 However, a schedule award is 

permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.18 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for 

rating spinal nerve extremity impairment.19 It was designed for situations where a particular 

jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine. 

The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper 

 

12 See 20 C.F.R. §§ 1.1-1.4.

13 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

14 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

15 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).

16 Isidoro Rivera, 12 ECAB 348 (1961).

17 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

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

2.808.5c(3) (February 2013).

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

Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter). Id.
8

and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are 

incorporated in the procedure manual.20

ANALYSIS

The Board finds that appellant has failed to establish permanent impairment of his right 

upper extremity due to his accepted cervical-related conditions, but that the case is not in posture 

for decision regarding the permanent impairment of his right upper extremity due to his accepted 

right shoulder condition. 

OWCP accepted that appellant sustained a right trapezius strain, cervical strain, cervical 

herniated disc at C6-7, cervical disc disease at C6-7, and cervical radiculopathy. In granting 

appellant a schedule award for one percent permanent impairment of his right upper extremity, 

OWCP had adopted the reasoning of Dr. Slutsky, OWCP’s medical adviser, as provided in his 

December 20, 2013 impairment rating report. Dr. Slutsky applied a DBI rating method under 

Table 15-5 of the sixth edition of the A.M.A., Guides to find that appellant had one percent 

permanent impairment of his right upper extremity due to his accepted right shoulder condition. 

In reaching its schedule award determination, OWCP also found that appellant has failed to 

establish any right upper extremity permanent impairment due to his accepted cervical-related 

conditions, i.e., cervical strain, cervical herniated disc at C6-7, cervical disc disease at C6-7, and 

cervical radiculopathy. In his December 1, 2016 decision affirming OWCP’s March 23, 2016 

schedule award, OWCP’s hearing representative noted his agreement with Dr. Slutsky’s opinion 

in this regard, as expressed in his December 20, 2013 impairment rating report, and made a specific 

finding that appellant has failed to establish right upper extremity permanent impairment due to 

his accepted cervical-related conditions.

Preliminarily, the Board finds that OWCP properly determined that appellant has failed to 

establish right upper extremity permanent impairment due to his accepted cervical-related 

conditions because he did not submit probative medical evidence establishing such permanent 

impairment. Appellant submitted a November 26, 2013 report of Dr. Watkins Campbell, an 

attending physician, who found that he had seven percent permanent impairment of his right upper 

extremity due to a right brachial plexus condition. However, OWCP has not accepted a workrelated brachial plexus condition and the medical evidence of record does not otherwise establish 

the existence of such a brachial plexus condition, whether preexisting or work related in nature.

21

 

Dr. Watkins Campbell provided an opinion that appellant had a work-related condition originating 

in a nonscheduled member, i.e., the cervical spine, that caused permanent impairment in a 

scheduled member, i.e., the right upper extremity, but she did not provide medical rationale in 

support of this opinion. The Board has held that a medical report is of limited probative value on a 

given medical matter if it contains a conclusion regarding that matter which is unsupported by 

 

20 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4

(January 2010).

21 It is well established that, in determining the amount of a schedule award for a member of the body that sustained 

an employment-related permanent impairment, preexisting impairments of the body are to be included. D.F., 59 ECAB 

288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994).
9

medical rationale.22 The Board further notes that Dr. Watkins Campbell did not apply the relevant 

standards for evaluating such conditions originating in the cervical spine.

23

 

Moreover, the record contains evidence showing that appellant did not have permanent 

impairment of his right upper extremity due to an accepted cervical-related condition. In his 

December 20, 2013 impairment rating report, Dr. Slutsky provided an extensive discussion of why 

the medical evidence of record showed that appellant did not have permanent impairment of his right 

upper extremity originating in his cervical spine. He noted that the findings of June 10, 2008 and 

October 1, 2010 EMG and NCV testing of appellant’s right upper extremity showed no 

electromyographic evidence of cervical radiculopathy, brachial plexus injury, or other neuropathy 

originating in the cervical spine. Dr. Slutsky also referenced other medical reports of record that 

supported his opinion.24

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

contribution of appellant’s accepted right shoulder condition to the permanent impairment of his 

right upper extremity. As noted above, in granting appellant a schedule award for one percent 

permanent impairment of his right upper extremity, OWCP had adopted the reasoning of

Dr. Slutsky, who applied the DBI method of rating permanent impairment (under Chapter 15) and 

found that appellant’s accepted right shoulder condition established one percent permanent 

impairment of his right upper extremity. The Board has found that OWCP has inconsistently 

applied Chapter 15 of the sixth edition of the A.M.A., Guides when granting schedule awards for 

upper extremity claims. No consistent interpretation had been followed regarding the proper use 

of the DBI or the range of motion (ROM) methodology when assessing the extent of permanent 

impairment for schedule award purposes.25 The purpose of the use of uniform standards is to 

ensure consistent results and to ensure equal justice under the law to all claimants.26 In T.H., the 

 

22 C.M., Docket No. 14-0088 (issued April 18, 2014).

23 Dr. Watkins Campbell improperly applied Table 15-20 (Brachial Plexus Impairment: Upper Extremity 

Impairments), beginning in page 434 of the sixth edition of the A.M.A., Guides, rather than The Guides Newsletter, 

to evaluate any permanent impairment originating in the cervical spine. See supra notes 17 through 20; see also W.S., 

Docket No. 17-0125 (issued August 10, 2017) (finding that The Guides Newsletter provides the standard for evaluating 

permanent impairment originating in a nonscheduled member and extending into a scheduled member). Dr. WatkinsCampbell also found that under Table 17-2 (Cervical Spine Regional Grid: Spine Impairments), beginning on page 

564, appellant had a permanent whole person impairment of six percent. However, the Board has held that neither 

FECA nor the regulations provide for the payment of a schedule award for the permanent loss of use of the body as a 

whole. See supra note 17.

24 For example, Dr. Slutsky noted that Dr. Nickodem, an OWCP referral physician, had indicated in his July 9, 2010 

report that appellant’s herniated disc at C6-7, cervical disc disease at C6-7, and cervical radiculopathy had resolved 

due to his January 8, 2010 cervical surgery. Dr. Nickodem explained that there was no evidence of these cervicalrelated conditions during the physical examination he conducted on July 9, 2010. In an August 12, 2011 report,

Dr. Ghanma, an OWCP referral physician, indicated that there were no objective findings to support that appellant 

had residuals of any of his accepted work-related conditions. In a September 7, 2012 report, Dr. Kaffen, an impartial 

medical specialist, determined that, although appellant still had the localized conditions of cervical herniated disc at 

C6-7 and cervical disc disease at C6-7, he ceased to have residuals of the accepted cervical radiculopathy as of his 

September 7, 2012 examination.

25 T.H., Docket No. 14-0943 (issued November 25, 2016).

26 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
10

Board concluded that OWCP physicians were at odds over the proper methodology for rating 

upper extremity impairment, having observed attending physicians, evaluating physicians, second 

opinion physicians, impartial medical examiners, and district medical advisers use both DBI and 

ROM methodologies interchangeably without any consistent basis. Furthermore, the Board 

observed that physicians interchangeably cited to language in the first printing or the second 

printing when justifying use of either ROM or DBI methodology. Because OWCP’s own 

physicians were inconsistent in the application of the A.M.A., Guides, the Board found that OWCP 

could no longer ensure consistent results and equal justice under the law for all claimants.27

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the December 1, 2016 decision with respect 

to the matter of the permanent impairment of appellant’s right upper extremity due to his accepted 

right shoulder condition. Utilizing a consistent method for calculating permanent impairment for 

upper extremities applied uniformly, and after such other development as may be deemed 

necessary, OWCP shall issue a de novo decision on appellant’s claim for a right upper extremity 

schedule award.28

CONCLUSION

The Board finds that appellant has failed to establish permanent impairment of his right 

upper extremity due to his accepted cervical-related conditions, but that the case is not in posture 

for decision regarding the permanent impairment of his right upper extremity due to his accepted 

right shoulder condition.

 

27 Supra note 25.

28 See FECA Bulletin No. 17-06 (issued May 8, 2017).
11

ORDER

IT IS HEREBY ORDERED THAT the December 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed with respect to the finding that appellant has failed 

to establish permanent impairment of his right upper extremity due to his accepted cervical-related 

conditions. The decision is set aside regarding the permanent impairment of appellant’s right 

upper extremity due to his accepted right shoulder condition, and the case is remanded for further 

action consistent with this decision.

Issued: July 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board