United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Antonio, TX, Employer 

__________________________________________ 

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Docket No. 17-0077 

Issued: March 6, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 17, 2016 appellant filed a timely appeal from a July 14, 2016 merit decision 

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

Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant has more than five percent permanent impairment of the 

right lower extremity and six percent permanent impairment of the left upper extremity, for 

which he received schedule awards. 

FACTUAL HISTORY 

On April 9, 2011 appellant, then a 52-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that on February 4, 2011 he injured his back, knees, and right hand 

 1

 5 U.S.C. § 8101 et seq. 
2

when he fell on the ground. He stopped work on February 5, 2011 and returned to work on 

February 7, 2011. OWCP accepted the claim, assigned File No. xxxxxx553, for an aggravation 

of a closed dislocation of a lumbar vertebra and displacement of a cervical intervertebral disc. 

OWCP also later accepted that appellant sustained a left shoulder and upper arm sprain, 

left wrist sprain, left rotator cuff syndrome, and left shoulder adhesive capsulitis due to an 

October 18, 2012 injury, assigned File No. xxxxxx633.2

 In a report dated September 23, 2014, 

an OWCP medical adviser found that he had five percent permanent impairment of the left upper 

extremity due to his full-thickness rotator cuff tear under Table 15-5 of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides). Appellant filed a claim for a schedule award (Form CA-7). By decision dated 

December 19, 2014, OWCP granted appellant a schedule award for six percent permanent 

impairment of the left upper extremity under File No. xxxxxx633. 

Appellant began working four hours per day beginning September 20, 2011. OWCP paid 

compensation for partial disability for the remaining four hours per day.3

 On July 25, 2013 

appellant elected disability retirement. 

In an impairment evaluation report dated April 13, 2016, Dr. Daniel C. Valdez, a Boardcertified orthopedic surgeon, discussed appellant’s treatment for multiple cervical disc 

herniations with right radiculopathy and an L5-S1 disc herniation with right radiculopathy 

following a work injury. On examination of the arms, the physician found moderately reduced 

range of motion, pain on palpation of the upper extremities, right motor deficits, and radicular 

pain and sensory deficits on the right at C6. For the lower extremities, Dr.Valdez found right 

radicular pain from the L5 and S1 nerve roots with no loss of motor function or strength. The 

physician referenced the sixth edition A.M.A., Guides and The Guides Newsletter

(July/August 2009). In reaching his impairment rating, however, Dr. Valdez applied Table 15-

15 and Table 15-16 on page 424 of the fifth edition of the A.M.A., Guides. He multiplied the 

value for the identified nerves by the maximum allowed for sensory and motor impairments of 

each nerve to find six percent permanent impairment of the right upper extremity due to motor 

and sensory deficits at C6 and five percent right lower extremity impairment due to sensory 

deficits at L5 and S1. Dr. Valdez found no impairment of the left upper and lower extremities. 

Appellant on May 23, 2016 filed a claim for a schedule award (Form CA-7). 

An OWCP medical adviser reviewed the evidence on June 23, 2016. He diagnosed 

cervical strain, cervical disc herniations at C4-5, C5-6, and C6-7, lumbar strain, and degenerative 

 2

 OWCP further accepted that appellant sustained right knee strain as the result of a December 19, 2001 injury, 

assigned File No. xxxxxx591. 

3

 By decision dated August 2, 2011, OWCP denied appellant’s claim for disability compensation from April 10 to 

July 13, 2011. In decisions dated November 8, 2011 and May 1, 2012, it denied his claim for compensation for total 

disability from August 4 to 15, 2011, and, in decisions dated January 18 and March 19, 2012, denied his claim for 

wage-loss compensation from August 18 to 26, 2011. OWCP, in a decision dated May 8, 2012, denied appellant’s 

request for an oral hearing on the November 8, 2011 decision as it was untimely filed and was made after he 

received reconsideration. By decision dated January 16, 2013, it denied his claim for compensation from April 8 to 

June 15, 2012. 
3

joint and disc disease of the lumbar spine. The medical adviser found that appellant had three 

percent impairment for loss of sensation at L5, two percent impairment for loss of sensation at 

S1, which he combined to find five percent right lower extremity impairment. He found no 

upper extremity impairment, noting that he had previously received six percent left upper 

extremity impairment. 

By decision dated July 14, 2016, OWCP granted a schedule award for five percent 

permanent impairment of the right lower extremity. The period of the award ran for 14.4 weeks 

from April 13 to July 22, 2016. OWCP indicated that Dr. Valdez additionally found six percent 

left upper extremity impairment, but noted that he had already received an award for six percent 

impairment of the left arm, and thus, was not entitled to an additional award for the left upper 

extremity. 

On appeal appellant contends that OWCP’s medical adviser denied an award for his left 

shoulder as he had received a prior award. He related that he had continued problems with his 

neck, arm, and fingers, as found by Dr. Valdez. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4 and its implementing federal regulation,5 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

The sixth edition requires identifying the impairment Class of Diagnosis (CDX) 

condition, which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). 

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. 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 as outlined in The Guides 

 4

 5 U.S.C. § 8107. 

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 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

8

 A.M.A., Guides 494-531. 
4

Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth 

edition.9

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of a closed dislocation of a 

lumbar vertebra and displacement of a cervical intervertebral disc due to a February 4, 2011 

employment injury under File No. xxxxxx553. It also accepted that he sustained a sprain of the 

left wrist, a sprain of the left shoulder and upper arm, left rotator cuff syndrome, and left 

shoulder adhesive capsulitis due to an October 18, 2012 injury under File No. xxxxxx633. 

OWCP had awarded six percent permanent impairment of the left upper extremity under File 

No. xxxxxx633 as a result of his full-thickness rotator cuff tear. 

On May 23, 2016 appellant filed a claim for a schedule award under the current file 

number. In support of his claim, he submitted an April 13, 2016 impairment evaluation from 

Dr. Valdez. Dr. Valdez found reduced upper extremity range of motion, pain on palpation, and 

motor deficits and sensory deficits on the right at C6. He further found that appellant had 

radicular pain in his lower extremity from the L5 and S1 nerve roots without reduced motor 

function or strength. Dr. Valdez indicated in his report that he was applying the sixth edition of 

the A.M.A., Guides and The Guides Newsletter. In reaching his impairment determination, 

however, Dr. Valdez used Table 15-15 and Table 15-16 on page 424 of the outdated fifth edition 

of the A.M.A., Guides to find six percent permanent impairment of the right upper extremity due 

to motor and sensory deficits at C6 and five percent right lower extremity impairment due to 

sensory deficits at L5 and S1. He found no impairment of the left upper and lower extremities. 

OWCP, however, uses the sixth edition of the A.M.A., Guides to calculate schedule awards.10 A 

medical opinion based on an inappropriate edition of the A.M.A., Guides is of diminished 

probative value in determining the extent of permanent impairment.11

An OWCP medical adviser reviewed Dr. Valdez’ finding and concurred with his 

impairment rating. He did not, however, reference The Guides Newsletter in explaining his 

rating. The medical adviser further did not address whether an adjustment from the default value 

was warranted due to grade modifiers.12 Consequently, his opinion is insufficient to establish the 

extent of the right lower extremity impairment. 

Regarding the upper extremity, the Board finds that appellant has not submitted any 

evidence showing that he has more than the previously awarded six percent impairment of the 

 9 See 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; see also E.P., Docket No. 16-1154 (issued 

October 26, 2016). 

10 See supra note 7. 

11 See P.O., Docket No. 15-1631 (issued June 2, 2016); Fritz A. Klein, 53 ECAB 642 (2002). 

12 The Guides Newsletter provides that the default value may be adjusted using the formula described in the 

A.M.A., Guides based on functional history, physical examination, and clinical studies. 
5

left upper extremity.13 Dr. Valdez, however, found that he had six percent permanent 

impairment of the right upper extremity. OWCP determined that the physician’s upper extremity 

impairment rating duplicated the prior award. However, the prior award was for the left rather 

than the right upper extremity. On remand, it should obtain clarification regarding the extent of 

appellant’s right lower extremity impairment and determine whether he is entitled to a schedule 

award for the right upper extremity as the result of his accepted work injury.14 Following such 

further development as deemed necessary, OWCP should issue an appropriate decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2016 decision is set aside and the case 

is remanded for further proceedings consistent with this decision of the Board. 

Issued: March 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 13 See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993) (it is appellant’s burden to submit 

medical evidence supporting the degree of permanent impairment). 

14 See T.H., Docket No. 14-0943 (issued November 25, 2016) (the Board held that to ensure consistent results and 

equal justice under the law, OWCP shall, through its implementing regulations and/or internal procedures, establish 

a consistent method for rating upper extremity impairment under the sixth edition of the A.M.A., Guides prior to 

further development of medical evidence relating to permanent impairment for upper extremity claims).