United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.A., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Battle Creek, MI, Employer

__________________________________________

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Docket No. 18-0885

Issued: November 29, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 20, 2018 appellant, through counsel, filed a timely appeal from a February 7, 

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 to consider the merits of the case.3

 

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.

3 The Board notes that, following the February 7, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish permanent 

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

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

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

On April 5, 2012 appellant filed a Form CA-1 alleging that, on April 4, 2012, he injured 

his right shoulder and neck area when lifting and moving a dresser. OWCP assigned that claim 

OWCP File No. xxxxxx651 and on November 28, 2012 accepted it for aggravation of multilevel 

cervical disc and L4-5 herniation with radiculopathy.5

Appellant retired from the employing establishment on June 14, 2013. He elected to 

receive benefits from the Office of Personnel Management, effective June 14, 2013.

In a letter dated July 1, 2014, OWCP proposed to terminate appellant’s entitlement to 

wage-loss compensation and medical benefits due to his April 4, 2012 employment injury as it 

found the weight of the medical evidence established that his work-related condition of 

aggravation of multilevel cervical disc disease and herniation at C4-5 with radiculopathy had 

resolved. By decision dated August 21, 2014, it terminated his wage-loss compensation and 

medical benefits, effective that date.

On August 5, 2014 Dr. Burkhardt noted that appellant was involved in a motor vehicle 

accident on July 8, 2014. He diagnosed cervical degenerative disc disease and bilateral moderate 

carpal tunnel syndrome. In a note dated April 22, 2015, Dr. Burkhardt opined that appellant had 

reached maximum medical improvement. Appellant filed a schedule award claim (Form CA-7) 

on September 4, 2015 under OWCP File No. xxxxxx735.

Appellant filed a schedule award claim (Form CA-7) on September 28, 2015 under OWCP 

File No. xxxxxx651.

By development letters dated September 29, 2015, OWCP informed appellant that the 

evidence of record was insufficient to establish his claims. It requested additional medical 

 

4 Docket No. 17-0903 (issued October 10, 2017).

5 Appellant has filed other claims with OWCP. On December 22, 2006 appellant, then a 50-year-old housekeeping 

aid, filed a traumatic injury claim (Form CA-1) alleging that, while at work on December 19, 2006, he pulled a back 

muscle in his left upper back when he had to suddenly stop a cart which was about to hit a patient. OWCP assigned 

the claim File No. xxxxxx864, and accepted it as a short form closure. Appellant filed a second Form CA-1 on 

August 5, 2008 alleging that on June 24, 2008 he was attacked from behind by a patient at work resulting in pulled 

muscles in his back and shoulder. OWCP assigned that claim File No. xxxxxx599, and on September 18, 2008, 

accepted it for right shoulder supraspinatus strain and cervical strain. On August 20, 2011 appellant filed a Form CA1 traumatic injury claim alleging that he sustained back and shoulder pain on August 17, 2011 when lifting bags of 

soiled linen at work. OWCP assigned that claim OWCP File No. xxxxxx735 and on March 20, 2012 accepted it for 

right trapezius strain.
3

evidence addressing his permanent impairment for schedule award purposes and afforded 

appellant 30 days to respond.

In a note dated October 15, 2015, Dr. Burkhardt opined that appellant’s trapezius strain 

had resolved and noted that he did not conduct impairment ratings. He recommended that 

appellant be referred to physicians who performed those evaluations for both of his upper 

extremity and cervical conditions.

By decision dated November 2, 2015, under OWCP File No. xxxxxx735, OWCP denied 

appellant’s claim for a schedule award due to his accepted right trapezius strain based on

Dr. Burkhardt’s report that appellant’s condition had resolved. On November 10, 2015 counsel 

requested an oral hearing before an OWCP hearing representative.

By decision dated November 5, 2015, under OWCP File No. xxxxxx651, OWCP denied 

appellant’s claim for a schedule award due to his accepted condition of aggravation of multilevel 

cervical disc disease and disc herniation at C4-5 with radiculopathy as the medical evidence did 

not establish permanent impairment to a scheduled member.

Appellant through counsel requested an oral hearing before an OWCP hearing 

representative with regard to OWCP File No. xxxxxx735 by letter dated November 10, 2015 and 

received on November 17, 2015.

Appellant, through counsel, requested an oral hearing before an OWCP hearing 

representative with regard to OWCP File No. xxxxxx651 by letter dated and received on 

November 17, 2015.

A hearing was held on June 29, 2016 with regard to OWCP File No. xxxxxx735. Appellant 

testified during that hearing that his motor vehicle accident resulted in a lower back condition and 

that the accident had no effect on his accepted right trapezius strain.

A hearing was held on July 14, 2016 regarding OWCP File No. xxxxxx651. Appellant 

testified during that hearing that his cervical condition resulted in symptoms in his arms.

By decision dated September 9, 2016, under OWCP File No. xxxxxx735, OWCP’s hearing 

representative found that Dr. Burkhardt’s report established that appellant’s accepted right 

shoulder condition had resolved until his automobile accident on July 8, 2014. He determined that 

appellant did not have a permanent impairment of his right shoulder causally related to his 

August 17, 2011 employment injury.

By decision dated September 28, 2016, under OWCP File No. xxxxxx651, OWCP’s 

hearing representative found that appellant had not submitted the necessary medical evidence to 

establish permanent impairment of a scheduled member warranting a schedule award in regard to 

his accepted condition of aggravation of multilevel cervical disc disease and disc herniation at C4-

5 with radiculopathy.

On June 20, 2016 Dr. Michael D. Kasten, a Board-certified orthopedic surgeon, examined 

appellant and diagnosed multilevel cervical degeneration, radiculopathy, and possibly myelopathy. 

Appellant underwent cervical electromyograph and nerve conduction velocity (EMG/NCV) 

testing on August 4, 2016 which demonstrated mild median nerve compression at both wrists. 
4

Dr. Burkhardt examined appellant on October 12, 2016 and diagnosed cervical myelopathy, 

herniated cervical disc, and neck pain.

On September 8, 2016 Dr. Neil Allen, a Board-certified neurologist, examined appellant 

to determine his percentage of permanent impairment for schedule award purposes. He mentioned

the employment injury of April 4, 2012, but described the June 24, 2008 employment injury during 

which appellant was assaulted by a patron, further noting that he lost his balance and fell forward, 

striking his chin against the floor, jerking his head and neck backward. Dr. Allen opined that 

appellant sustained a cervical spine injury with pain and numbness extending into both hands and 

difficulty swallowing. He provided his findings on grade modifiers of functional history, three; 

and clinical studies, two. Dr. Allen applied appellant’s impairment based on the spinal nerve 

impairment in The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition (July /August 2009) (The Guides Newsletter) for mild motor deficit of C6 and C7. He 

applied the net adjustment formula and determined that appellant had nine percent permanent 

impairment due to motor impairment of C6, and nine percent permanent impairment due to motor 

impairment of C7. Dr. Allen found that appellant had 18 percent permanent motor impairment of 

the upper extremities based on the sixth edition of the American Medical Association, Guides to 

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

On November 15, 2016 appellant, through counsel, requested reconsideration of the 

September 28, 2016 OWCP decision under OWCP File No. xxxxxx651.

By decision dated February 9, 2017, OWCP reviewed the merits of appellant’s claim and 

found that he had submitted insufficient medical evidence to establish permanent impairment of 

his upper extremities warranting a schedule award. It found that Dr. Allen had not attributed

appellant’s current permanent impairment to the accepted employment injury of April 4, 2012. 

OWCP found that Dr. Allen’s report was not based on an accurate history of injury and was 

insufficient to meet appellant’s burden of proof to establish permanent impairment as a result of 

his accepted employment injury. 

Appellant, through counsel, appealed to the Board. By decision dated October 10, 2017, 

the Board set aside the February 9, 2017 decision and directed OWCP to administratively combine 

his files regarding his previous cervical injuries, evaluate his schedule award claim, and issue a 

de novo decision.6

Following the Board’s decision, OWCP administratively combined OWCP File Nos. 

xxxxxx864, xxxxxx599, xxxxxx651, and xxxxxx735 with OWCP File No. xxxxxx735 serving as 

the master file. 

In a letter dated February 1, 2018, it advised appellant that his claim under OWCP File No. 

xxxxxx651 was accepted for displacement of cervical intervertebral disc without myelopathy, and

in further consideration of his schedule award claim, it requested a detailed narrative medical 

report regarding permanent impairment in accordance with the sixth edition of the A.M.A., Guides. 

OWCP afforded appellant 30 days to respond.

 

6 Supra note 4. 
5

By decision dated February 7, 2018, OWCP reviewed the medical evidence and denied 

appellant’s claim for a schedule award under OWCP File No. xxxxxx651, finding that the medical 

evidence of record was insufficient to establish his claim.

LEGAL PRECEDENT

Section 8107 of FECA7and section 10.404 of the implementing federal regulations,8

provide for payment for permanent impairment of specified members, functions, and organs of the 

body. FECA, however, does not specify the manner in which the percentage loss of a member 

shall be determined. For consistent results and to ensure equal justice under the law for 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 regulations as the appropriate standard for evaluating schedule losses.9 For new 

decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.

10

 

Neither FECA nor its implementing regulations provide for the payment of a schedule for 

the permanent loss of use of the back/spine or the body as a whole.11 However, a schedule award 

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

extremities.12 The sixth edition of the A.M.A., Guides does not provide a separate mechanism for 

rating spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such 

as federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine, 

the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with 

sixth edition methodology.13 For peripheral nerve impairments to the upper or lower extremities 

resulting from spinal injuries, OWCP procedures provide that The Guides Newsletter (July/

August 2009) is to be applied as provided in section 3.700 of its procedures.14 Specifically, it will 

rate upper extremity impairment originating in the spine through Table 15-14.15

The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method of 

determining the percentage of permanent impairment. In addressing upper extremity impairments, 

the sixth edition requires identifying the impairment class for the diagnosed condition (CDX), 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9 F.S., Docket No. 18-0383 (issued August 22, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013, March 2017); Federal (FECA) Procedure Manual, 

Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); F.S., id; W.D., Docket No. 10-0274 (issued September 3, 

2010); Ernest P. Govednick, 27 ECAB 77 (1975).

12 W.D., id.; Rozella L. Skinner, 37 ECAB 398 (1986).

13 Supra note 10 at Chapter 2.808.5(c)(3) (March 2017).

14 FECA Transmittal No. 10-0004 (issued January 9, 2010); supra note 5 at Chapter 3.700, at Exhibit 4 

(January 2010).

15 A.M.A., Guides, 425, Table 15-14.
6

which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS). The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).16

ANALYSIS

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

The record contains a detailed report from Dr. Allen dated September 8, 2016 addressing 

appellant’s percentage of upper extremity permanent impairment and describing the incident in 

which he was attacked from behind by a patient at work, resulting in right shoulder supraspinatus 

strain and cervical strain. OWCP found in its February 7, 2018 decision that Dr. Allen’s 

description of the employment incident was inaccurate as he used the date of April 4, 2012 as the 

date of injury when the attack by a patient actually occurred on June 24, 2008. It accepted under 

OWCP File No. xxxxxx599 that that injury caused the accepted conditions of right shoulder 

supraspinatus strain and cervical strain. As the cause of the injury and the resulting conditions 

accepted by OWCP are no longer in dispute, the Board finds the discrepancy as to the date of 

injury by Dr. Allen is harmless error as it relates to the present issue of extent of permanent 

impairment.17

Dr. Allen noted that appellant was attacked by a patient and was pulled back. These are 

the salient facts as presented on appellant’s claim form and medical treatment notes regarding the 

accepted June 24, 2008 employment incident. While Dr. Allen also indicated that appellant 

sustained a fall and blow to the chin, these additions do not negate appellant work-related history 

of an attack and resulting injury. OWCP’s procedures require that if there is indication of 

permanent impairment in the medical evidence the claims examiner should obtain an opinion from 

the medical adviser or a second opinion evaluator.18 The Board finds that there are clear 

indications within Dr. Allen’s report that appellant had permanent impairment of his upper 

extremities as a result of his accepted conditions. Therefore, in keeping with its procedures, 

OWCP should have obtained an opinion from a medical adviser or second opinion physician.19 

On remand, OWCP should prepare a detailed statement of accepted facts, including all the 

accepted upper extremity and cervical incidents and resulting injuries, and refer appellant for 

further medical development to determine the nature and extent of permanent impairment, if any,

of his upper extremities as a result of his accepted conditions. After this and such other 

development as OWCP deems necessary, it shall issue a de novo decision regarding whether he

has met his burden of proof to establish permanent impairment of his upper extremities warranting 

schedule award compensation.

 

16 Id. at 411. F.S., supra note 9.

17 See M.M., Docket No. 07-1899 (issued October 2, 2008).

18 Supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 2.0808.6c-d (March 2017).

19 Id.
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for further development consistent 

with this decision of the Board. 

Issued: November 29, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees' Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees' Compensation Appeals Board