United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

New Philadelphia, OH, Employer

__________________________________________

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Docket No. 18-0855

Issued: November 28, 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 December 11, 

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 has met her burden of proof to establish permanent 

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

FACTUAL HISTORY

On October 9, 2010 appellant, then a 46-year-old city carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, while delivering mail on October 6, 2010, she slipped while backing 

away from a dog and struck her face on a gas meter, causing a fracture of the left orbital socket, 

left cheek, and her nose. She stopped work on the date of injury.

By decision dated November 18, 2010, OWCP accepted the claim for closed left orbital 

fracture, cracked tooth, and cervical spine sprain. It paid appellant wage-loss compensation and 

medical benefits on the periodic rolls commencing November 24, 2010. On November 7, 2011 

OWCP expanded its acceptance of the claim to include adjustment disorder with anxiety and 

cognitive communication deficit.

Following a vocational rehabilitation program, appellant returned to work on April 1, 2013 

under an assisted reemployment contract for 30 hours a week. OWCP paid appellant wage-loss 

compensation for the remaining hours.

On July 27, 2016 appellant filed a claim for a schedule award (Form CA-7). In support 

thereof, she submitted an October 10, 2016 report from Dr. Paul Scheatzle, an attending 

osteopathic physician Board-certified in physiatry. Dr. Scheatzle related appellant’s symptoms of 

intermittent cephalgia, vertigo, short-term memory difficulties, left oral dysesthesias, left facial 

weakness, tooth sensitivity, emotional lability, and poor attention span. On examination, he found

that she had decreased sensation on the left side of her face, a slight decrease in balance, increased 

lateral sway with heel and toe walking, limited cervical spine motion, left paraspinal muscle 

spasms, and increased thoracic kyphosis. Dr. Scheatzle diagnosed post-concussion syndrome. He

opined that appellant had attained maximum medical improvement (MMI). Referring to the fifth 

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

(hereinafter, A.M.A., Guides),3 he found 24 percent whole person impairment due to combined 

impairments for cognitive communication deficit, cracked tooth, orbital floor fracture, and a class 

2 cervical spine sprain. 

In a letter dated November 18, 2016, OWCP notified Dr. Scheatzle that OWCP did not 

utilize whole person impairment ratings. It advised that schedule award ratings should be 

expressed in terms of upper extremity impairment, and not the cervical spine itself. OWCP also 

advised that impairments must be calculated according to the sixth edition of the A.M.A., Guides.

4

In response, Dr. Scheatzle submitted a report dated November 30, 2016 in which he found 

five percent whole person impairment due to impairment of the cervical spine. He noted that 

 

3 A.M.A., Guides (5th ed. 2001).

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

appellant had attained MMI as of October 19, 2016. On examination, Dr. Scheatzle found 

“guarding and spasm of the cervical paraspinal muscles, flattening of the cervical lordosis, 

tenderness to palpation,” and lateral flexion limited to 30 degrees. Referring to Table 17-2, page 

564 of the sixth edition of the A.M.A., Guides, he assessed a class 1 impairment for cervical 

sprain/strain with continued complaints of axial pain, equal to five percent impairment of the whole 

person.

Dr. Martin Fritzhand, a Board-certified urologist, submitted a January 10, 2017 permanent 

impairment evaluation. He summarized appellant’s history of injury and treatment. On 

examination, Dr. Fritzhand noted diminished pinprick and light-touch sensation on the left side of 

appellant’s face, at MMI by January 2012. He opined that after reviewing section 13.11.b of the 

sixth edition of the A.M.A., Guides, Table 13-9 found a class 1 impairment of the trigeminal nerve 

due to pain and diminished sensation, equal to two percent whole person impairment.

As appellant’s physicians had not provided an impairment rating in accordance with the 

A.M.A., Guides, OWCP referred her for a second opinion report from Dr. Victoria Langa, a Boardcertified orthopedic surgeon. In a report dated February 6, 2017, Dr. Langa reviewed the medical 

record and a statement of accepted facts. She related appellant’s complaints of occasional aching 

and stiffness in her neck, and “crunching” with movement. Appellant’s discomfort sometimes 

radiated to the upper back, but never to the upper extremities. On examination, Dr. Langa found 

mild paravertebral tenderness to palpation, rotation of the cervical spine at 60 degrees left and 80 

degrees right, and a normal neurologic examination of both upper extremities. She diagnosed 

status post cervical sprain/strain. Dr. Langa found that the accepted cervical spine sprain had

resolved without residuals. She opined that according to The Guides Newsletter, “Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition” (July/August 2009) (The Guides 

Newsletter), appellant had no permanent impairment of a scheduled member as she had no 

radicular symptoms in either upper extremity attributable to the cervical spine. Dr. Langa noted 

that appellant had no work limitations due to the resolved cervical spine sprain. 

On March 19, 2017 Dr. Morley Slutsky, a Board-certified occupational medicine specialist 

serving as an OWCP district medical adviser, reviewed Dr. Langa’s report and concurred with her 

rating. He noted that as Dr. Langa found no evidence of sensory or motor deficits of the upper 

extremities related to the cervical spine, there was no basis for an upper extremity impairment 

rating using the A.M.A., The Guides Newsletter. Dr. Slutsky also explained that cervical spine 

sprains did not result in permanent sensory or motor deficits of the upper extremities. He found 

that appellant had attained MMI as of February 6, 2017, the date of Dr. Langa’s examination.

By decision dated March 29, 2017, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body attributable to the accepted October 6, 2010 

employment injury. It accorded the weight of the medical evidence to Dr. Langa’s February 6, 

2017 opinion as reviewed by Dr. Slutsky.

On April 4, 2017 appellant, through counsel, requested a telephonic oral hearing before an 

OWCP hearing representative. During the hearing, held on October 5, 2017, appellant testified 

that she had not sustained cervical spine injury either prior or subsequent to the October 6, 2010 

employment injury. She noted that she had been working part time in a private sector clerical 
4

position. Counsel requested that the record be left open for 30 days to obtain clarification from

Dr. Fritzhand regarding his January 10, 2017 opinion that appellant had sustained two percent 

permanent impairment of the whole person based on Table 13-19.

Following the hearing, counsel submitted a November 1, 2017 report from Dr. Scheatzle

diagnosing postconcussion syndrome. Dr. Scheatzle did not address the issue of permanent 

impairment.

By decision dated December 11, 2017, OWCP’s hearing representative affirmed the prior 

decision. He accorded the weight of the medical evidence to Dr. Langa’s opinion as reviewed by

Dr. Slutsky. The hearing representative found that Dr. Fritzhand’s report of record was 

insufficient to establish permanent impairment of a scheduled member or function of the body as 

there was no provision under FECA for whole person impairment.

LEGAL PRECEDENT

The schedule award provisions of FECA5 provide for compensation to employees sustaining 

impairment from loss or loss of use of specified members of the body. It, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the sound discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board has concurred in such 

adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth 

edition of the A.M.A., Guides.

No schedule award is payable for a member, function, or organ of the body not specified 

in FECA or in the regulations.7 Because neither FECA nor the regulations provide for the payment 

of a schedule award for the permanent loss of use of the back,8 no claimant is entitled to such an 

award.9 However, in 1966, amendments to FECA modified the schedule award provision 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. As the schedule award provision of FECA includes 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.10

 

5 Supra note 2 at § 8107.

6 Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7 Henry B. Floyd, III, 52 ECAB 220 (2001).

8 FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

9 Thomas Martinez, 54 ECAB 623 (2003).

10 See Thomas J. Engelhart, 50 ECAB 319 (1999).
5

OWCP’s procedures provide that, to support a schedule award, the record must contain 

competent medical evidence which shows that the impairment has reached a permanent and fixed 

state and indicates the date on which this occurred (date of MMI), describes the impairment in 

sufficient detail for the claims examiner to visualize the character and degree of disability, and 

gives a percentage of impairment, based on a specific diagnosis, not the body as a whole, except 

for impairment to the lungs.11 When the examining physician does not provide an estimate of 

impairment confirming to the A.M.A., Guides, OWCP may rely on the impairment rating provided 

by its medical adviser.12

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 is to be applied.13 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.14 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.

15

ANALYSIS

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

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

In support of her claim, appellant submitted a report dated October 10, 2016 from

Dr. Scheatzle who found that she had 24 percent whole person permanent impairment under the 

fifth edition of the A.M.A., Guides. After OWCP notified Dr. Scheatzle of the necessity to utilize 

the sixth edition of the A.M.A., Guides and to address permanent impairment of the upper 

extremities related to the cervical spine, he submitted a November 30, 2016 report finding five

percent permanent impairment of the whole person due to a class 1 cervical sprain. However, a 

schedule award is only payable for permanent impairment originating in the spine if permanent 

impairment of an extremity is established.16 Dr. Scheatzle did not indicate that appellant had 

sustained any permanent impairment of the upper extremities due to the accepted cervical sprain. 

 

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

2.808.5.c.1 (March 2017). See also R.F., Docket No. 16-0192 (issued November 8, 2016).

12 J.Q., 59 ECAB 366 (2008).

13 See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 11 at Chapter 3.700, Exhibit 1, 

note 5 (January 2010). The Guides Newsletter is included as Exhibit 4. 

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

15 See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,

Docket No. 13-2011 (issued February 18, 2014). 

16 Supra note 8. 
6

Thereafter, OWCP referred the case for a second opinion on the appropriate percentage of 

permanent impairment to Dr. Langa, a Board-certified orthopedic surgeon. Dr. Langa submitted 

a February 6, 2017 report finding no sensory or motor impairment of either upper extremity. She

therefore opined that appellant had no permanent impairment attributable to the accepted cervical 

sprain.

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.17 Dr. Slutsky, an OWCP district medical 

adviser, reviewed Dr. Langa’s report on March 19, 2017 and concurred with her findings. He 

explained that a cervical spine sprain was not competent to cause permanent sensory or motor 

deficits of the upper extremities.

The Board finds that Dr. Langa properly determined that appellant had no permanent 

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

and The Guides Newsletter. In her February 6, 2017 report, Dr. Langa properly indicated that no 

schedule award was warranted according to The Guides Newsletter as appellant had no sensory or 

motor impairment of either arm. She found no basis under The Guides Newsletter to rate 

impairment of either upper extremity as there were no neurologic deficits in either arm. 

Because Dr. Scheatzle’s impairment evaluation was not conducted in accordance with the 

standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter, it is of limited 

probative value and insufficient to establish that appellant has upper extremity impairment 

attributable to her accepted conditions.18

Dr. Fritzhand, a Board-certified urologist, opined on January 10, 2017 that she had two 

percent permanent impairment of the whole person due to trigeminal nerve impairment caused by 

the accepted left orbital fracture. However, there is no provision under FECA for whole person 

impairments other than those involving the lungs.19 Dr. Fritzhand’s opinion is therefore of limited 

probative value and insufficient to establish permanent impairment of a scheduled member or 

function of the body.20

On appeal, counsel contends that the A.M.A., Guides “require[s] whole person rating for 

the body parts recognized in the claim.” However, as noted above, there is no provision under 

FECA which provides for a whole person impairment rating other than for impairment of the 

 

17 See supra note 11 at Chapter 2.808.6(f) (February 2013).

18 A.R., supra note 15. See also Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (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).

19 Supra note 11 at Chapter 2.808.5.c.1. See also R.F., supra note 11.

20 Supra note 16.
7

lungs.

21

 The Board notes that in the case at bar, appellant did not claim, nor did OWCP accept,

pulmonary condition of any kind. 

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 met her burden of proof to establish permanent 

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

ORDER

IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 28, 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

 

21 Supra note 17.