United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

GENERAL SERVICES ADMINISTRATION, 

Falls Church, VA, Employer

__________________________________________

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Docket No. 18-0856

Issued: November 27, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 15, 2018 appellant, through counsel, filed a timely appeal from a February 21, 

2018 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 has established permanent impairment of a scheduled 

member or function of the body, warranting a schedule award.

 

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 February 9, 2000 appellant, then a 46-year-old maintenance work inspector, filed a 

traumatic injury claim (Form CA-1) alleging that on November 19, 1999 he sustained injuries to

his cervical spine and left shoulder when he was struck on the left side of the neck by a man trying 

to steal a government van. OWCP initially accepted the claim for cervical sprain, and later 

expanded acceptance of the claim to include the additional diagnoses of degeneration of the 

cervical spine and cervical stenosis. Appellant received wage-loss compensation and medical 

benefits for intermittent periods of disability through January 24, 2006, when he returned to full 

duty.

On September 7, 2006 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated January 8, 2010, OWCP denied appellant’s September 7, 2006 schedule 

award claim. On June 29, 2010 it received his request for review of the written record by an 

OWCP hearing representative. In a July 12, 2010 decision, an OWCP hearing representative

denied appellant’s request, finding that it was untimely filed. The hearing representative noted

that the issue of permanent impairment could equally be addressed by requesting reconsideration 

with OWCP. 

On July 22, 2016 appellant filed another schedule award claim (Form CA-7). In support 

of his claim he submitted a May 28, 2016 report in which Dr. Robert W. Macht, a general surgeon, 

described the history of injury, appellant’s medical history, and his review of some medical 

records, noting that two electrodiagnostic studies did not show definite evidence of ongoing 

radiculopathy. Appellant provided physical examination findings, noting some decreased 

sensation of the left thumb and decreased range of motion of both shoulders. Dr. Macht advised 

that, in accordance with the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),

3

that due to bilateral limited 

shoulder motion, under Table 15-34, appellant had three percent impairment for loss of shoulder 

flexion bilaterally, and three percent impairment for loss of shoulder abduction bilaterally. He 

concluded that appellant had six percent impairment of the right upper extremity and six percent

impairment on the left, causally related to the November 19, 1999 employment injury. Dr. Macht 

indicated that maximum medical improvement (MMI) was reached by December 31, 2015. 

On November 10, 2016 OWCP referred the medical record, including Dr. Macht’s report, 

and a statement of accepted facts (SOAF) to its medical adviser for review. In a November 17, 

2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP medical 

adviser, noted his review of the record. He opined that Dr. Macht’s report could not be accepted 

as probative for the purpose of recommending a schedule award as he determined impairment for 

appellant’s shoulders that were not accepted under this claim and did not determine impairment 

for the accepted conditions. Dr. Katz recommended a second opinion evaluation to determine 

appellant’s employment-related impairment. 

In January 2017 OWCP referred appellant to Dr. Kevin F. Hanley, a Board-certified 

orthopedic surgeon, for an opinion regarding appellant’s permanent impairment due to the 

accepted conditions. In a February 9, 2017 report, Dr. Hanley noted his review of the record and 

 

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

the SOAF that described the accepted cervical conditions. Physical examination demonstrated 

guarded movement of the cervical spine due to stiffness. Reflexes were intact. Dr. Hanley

diagnosed degeneration of the cervical spine and cervical stenosis, status post extensive and 

complex reconstruction of the cervical spine. He noted that FECA did not allow a schedule award 

for impairment of the spine, but rather upper or lower extremity impairment if the cause of the 

impairment is the accepted spinal condition. Dr. Hanley advised that, in accordance with the sixth 

edition of the A.M.A., Guides, appellant had no impairment of his extremities as a consequence 

of the November 19, 1999 employment injury. He indicated that electrodiagnostic testing showed 

no signs of gross radiculopathy, and there was no subjective or objective finding to suggest 

impairment of an extremity, noting that appellant had undergone two very complex spinal 

reconstructions and had done much better than one would have anticipated. Dr. Hanley found that 

MMI was reached on January 1, 2007, just over a year after appellant’s last operative procedure. 

On February 22, 2017 OWCP referred the record with Dr. Hanley’s report to Dr. Katz, an 

OWCP medical adviser. In a February 22, 2017 report, Dr. Katz agreed with Dr. Hanley’s 

conclusion that appellant had no impairment. He concurred that, under FECA, a diagnosed injury 

originating in the spine may be considered only to the extent that it resulted in permanent 

impairment of the extremities, generally reflected as spinal nerve impairment, and that it was to be 

determined using the method described in The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter). OWCP’s

medical adviser indicated that, as Dr. Hanley found no motor or sensory deficits in any extremity, 

appellant had no ratable impairment of any spinal nerve and no ratable impairments under FECA 

for the accepted spinal conditions. He found MMI was reached on February 9, 2017, the date of

Dr. Hanley’s evaluation. 

Appellant forwarded a February 15, 2017 report in which Dr. Macht noted that appellant’s 

electrodiagnostic study did not show any ongoing radiculopathy. He opined that problems with 

the cervical region could lead to problems with shoulder mobility, such as appellant’s limited 

flexion and abduction in both shoulders which was causally related to the November 1999 

employment injury. Dr. Macht concluded that appellant’s loss of shoulder motion was the only 

clearly definable impairment of the extremities that could be directly attributed to the 1999 

employment injury.

By decision dated July 11, 2017, OWCP denied appellant’s schedule award claim. It found 

that Dr. Macht’s evaluation was not in accordance with the A.M.A., Guides, and credited the 

opinion of Dr. Hanley, who properly applied the A.M.A., Guides and found no ratable impairment 

due to the accepted spinal injuries. 

On July 17, 2017 appellant, through counsel, requested a hearing before an OWCP hearing 

representative. During the hearing, held on January 18, 2018, counsel asserted that appellant’s 

physical examination findings by Dr. Macht established impairment.

By decision dated February 21, 2018, an OWCP hearing representative affirmed the 

July 11, 2017 decision. She found that Dr. Macht did not use the methodology for rating a spinal 

nerve impairment specified in The Guides Newsletter, and that the weight of the medical opinion 

established that appellant had no ratable permanent impairment. 
4

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of any employment injury.4

The schedule award provisions of FECA, and its implementing federal regulation,5set 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.6 For decisions issued after May 1, 2009, the 

sixth edition will be used.7

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.8 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.9

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 

alternative approach to rating spinal nerve impairments.10 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 outlined in The Guides 

Newsletter.

11

 Specifically, it will address lower extremity impairments originating in the spine 

through Table 16-1112 and upper extremity impairment originating in the spine through Table 

15-14.13

 

4 See Tammy L. Meehan, 53 ECAB 229 (2001).

5 20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

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

2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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

9 Thomas J. Engelhart, 50 ECAB 319 (1999).

10 Rozella L. Skinner, 37 ECAB 398 (1986).

11 Supra note 7 at Chapter 3.700, Exhibit 1 (January 2010); The Guides Newsletter is included as Exhibit 4.

12 Supra note 3 at 533.

13 Id. at 425.
5

ANALYSIS

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

impairment of a scheduled member or function of the body, warranting a schedule award.

No schedule award is payable for injury to the spine, but a claimant may receive a schedule 

award for permanent impairment to the upper or lower extremities even though the cause of the 

impairment originated in the spine.14

In support of his claim, appellant submitted reports from Dr. Macht who noted examination 

findings and advised that, under Table 15-34, appellant had three percent permanent impairment 

for loss of shoulder flexion and three percent permanent impairment for loss of shoulder abduction 

in each upper extremity, for a total right upper extremity permanent impairment of six percent, and 

six percent permanent impairment on the left. His accepted conditions however, are cervical 

sprain, degeneration of the cervical spine, and cervical stenosis, not bilateral shoulder conditions. 

While Dr. Macht opined that problems with the neck could lead to problems with shoulder 

mobility, as he did not address permanent impairment in accordance with The Guides Newsletter, 

his opinion is of limited probative value. The proper mechanism for rating impairment of the 

upper or lower extremities caused by a spinal injury is provided in section 3.700 of OWCP 

procedures, which memorializes proposed tables outlined in a July-August 2009 The Guides 

Newsletter.

15

 An opinion which is not based upon the standards adopted by OWCP and approved 

by the Board as appropriate for evaluating schedule losses is of little probative value in determining 

the extent of a claimant’s impairment.16

Counsel generally argues on appeal that OWCP must consider the extremity impairment 

as a whole. However, as Dr. Macht did not address appellant’s spinal impairment in accordance 

with The Guides Newsletter, his opinion is of limited probative value.17

Following the advice of its medical adviser, in January 2017 OWCP referred appellant to

Dr. Hanley for a second opinion impairment evaluation. Dr. Hanley found that appellant had 

guarded movement of the cervical spine due to stiffness. He discussed electrodiagnostic testing 

that showed no signs of gross radiculopathy, and advised that there was no subjective or objective 

finding to suggest impairment of an extremity. Dr. Hanley concluded that, in accordance with The

Guides Newsletter, appellant had no ratable impairment. 

On February 22, 2017 Dr. Katz, OWCP’s medical adviser, noted his review of the record 

and agreed with Dr. Hanley’s conclusion that appellant had no ratable impairment due to the 

accepted cervical conditions. 

The Board finds that the weight of the medical evidence rests with the opinions of

Dr. Hanley and Dr. Katz, its medical adviser. Dr. Hanley based his opinion on an accurate factual 

 

14 Supra note 8.

15 Id.

16 Carl J. Cleary, 57 ECAB 563 (2006).

17 Id.
6

and medical history and provided findings on examination to support his opinion. The Board finds 

that there is no medical evidence of record, in conformance with the sixth edition of the A.M.A., 

Guides establishing that appellant has permanent impairment of any scheduled member due to the 

accepted cervical conditions.18

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 employment-related 

condition resulting in permanent impairment or increased impairment. 

CONCLUSION

The Board finds that appellant has not established permanent impairment of a scheduled 

member or function of the body, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 27, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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

 

18 See C.B., Docket No. 15-503 (issued June 12, 2015).