United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Phoenix, AZ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-0172

Issued: April 24, 2019

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 October 29, 2018 appellant, through counsel, filed a timely appeal from an August 22, 

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.

 

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 permanent 

impairment of the upper extremities, entitling him to a schedule award. 

FACTUAL HISTORY

On June 23, 2015 appellant, then a 51-year-old carrier technician, filed a traumatic injury 

claim (Form CA-1) alleging that on June 9, 2015 he injured his neck when his work vehicle was 

rear ended while in the performance of duty. He received treatment for neck pain at the emergency 

department on June 9, 2015. OWCP accepted the claim for a sprain of the neck.

 On June 24, 2015 a chiropractor evaluated appellant for pain in the cervical and lower 

back area radiating into his lower extremities. In a report dated August 10, 2015, a physical 

therapist obtained a history of appellant experiencing pain in his neck and upper back and lower 

back radiating into the thighs and occasionally toes. 

On February 4, 2016 Dr. William Riley, an attending physician Board-certified in family 

medicine, reported that appellant had no restrictions. 

On August 10, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated September 9, 2016, OWCP requested that Dr. Riley evaluate 

the extent of appellant’s permanent impairment, if any, in accordance with the sixth edition of the 

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

Guides).3 It informed him that a schedule award was not payable for the back, but could be paid 

for an upper or lower extremity impairment originating in the spine. OWCP afforded 30 days for 

a response. No response was received.

By decision dated January 5, 2017, OWCP denied appellant’s schedule award claim. It 

found that he had failed to submit medical evidence establishing that he had reached maximum 

medical improvement and had permanent impairment of a scheduled member or function of the 

body. 

On January 11, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. During the telephonic hearing, held on July 11, 2017, counsel 

advised that she was waiting to receive a report from Dr. Riley. No additional evidence was 

submitted.

By decision dated August 30, 2017, OWCP’s hearing representative affirmed the 

January 5, 2017 decision. She found that appellant had not submitted any medical evidence 

demonstrating that he had a permanent impairment warranting a schedule award.

In a report dated October 3, 2017, Dr. Riley discussed appellant’s complaints of reduced 

grip strength and difficulty lifting parcels. He indicated that appellant’s symptoms had begun a 

 

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

few weeks after his most recent motor vehicle accident (MVA) that had occurred at work in 

May 2015. Dr. Riley noted that appellant experienced neck pain and stiffness after an initial MVA,

but that his neck pain increased after his employment-related MVA. He found full range of motion 

without swelling and slightly diminished grip strength bilaterally. Dr. Riley diagnosed bilateral 

hand paresthesia and weakness.

On July 12, 2018 Dr. Riley related that appellant experienced numbness in his hands 

following a MVA that occurred around May 2015. He noted that appellant had symptoms of 

reduced hand strength bilaterally. On examination, Dr. Riley found bilateral grip strength of 4/5 

and normal bilateral upper extremity strength. He diagnosed left and right hand paresthesia, 

bilateral hand weakness, and abnormal reflex. Dr. Riley indicated that both the paresthesia and 

hand weakness began immediately following appellant’s MVA.

On August 2, 2018 appellant, through counsel, requested reconsideration based on

Dr. Riley’s July 12, 2018 evaluation. 

In a report dated August 17, 2018, Dr. Todd Fellars, a Board-certified orthopedic surgeon

serving as an OWCP district medical adviser (DMA), reviewed appellant’s history of a previous 

nonemployment-related fusion at C4-5. He found that the medical evidence demonstrated that he 

had a loss of strength in his hands and reduced fine motor skills. Dr. Fellars noted that appellant 

had not complained of numbness or reduced dexterity in his hands until “significantly later” than 

the June 9, 2015 employment injury. He related, “Given this, it is medically probable that he has 

had progression of his underlying condition and it [is] not associated with the work event.” 

By decision dated August 22, 2018, OWCP denied modification of its August 30, 2017 

decision. It found that Dr. Fellars’ opinion represented the weight of the evidence and established 

that appellant had no employment-related permanent impairment of the upper extremities.

LEGAL PRECEDENT

The schedule award provisions of FECA4and its implementing regulations5set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for loss 

or loss of use, of scheduled members or functions of the body. FECA, 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 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. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides, published in 2009.6 The Board has approved the use by OWCP of the A.M.A., Guides for 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

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

2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010).
4

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

purposes.7 

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

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).8 Under the sixth edition, the evaluator identifies 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).9 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide 

reasons for their impairment rating choices, including the choices of diagnoses from regional grids 

and calculations of modifier scores.10

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.11 OWCP has adopted this approach for 

rating permanent 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 a 

July/August 2009 The Guides Newsletter.

12

 Specifically, OWCP will address upper extremity 

impairment originating in the spine through Table 15-14.13

ANALYSIS

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

impairment of the upper extremities, entitling him to a schedule award. 

OWCP accepted that appellant sustained neck strain due to a June 9, 2015 employment 

injury. Appellant requested a schedule award.

On October 2, 2017 Dr. Riley found that appellant had experienced a loss of grip strength 

within a few weeks of his employment-related MVA. He had also experienced increased pain in 

his neck. Dr. Riley found slightly diminished grip strength bilaterally and diagnosed bilateral hand 

paresthesia and weakness. He did not, however, explain how the MVA resulted in a loss of grip 

strength. The Board has held that medical evidence must show that the employment injury 

 

7 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

9

Id. at 494-531.

10 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

11 R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).

12 Supra note 6 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

13 Supra note 3 at 425.
5

contributed to the permanent impairment for which schedule award compensation is claimed.14 

As Dr. Riley did not offer a medical explanation that appellant’s employment injury contributed 

to any permanent impairment, his report is of limited probative value.15

On July 12, 2018 Dr. Riley measured grip strength of 4/5 bilaterally. He related that 

appellant had experienced numbness in his hands and reduced strength immediately following a 

MVA that had occurred around May 2015. Dr. Riley diagnosed bilateral hand paresthesia, 

bilateral hand weakness, and abnormal reflex. Dr. Fellars, a DMA, reviewed his opinion and found 

that the medical evidence of record failed to support Dr. Riley’s finding that appellant had 

experienced bilateral hand numbness and loss of strength shortly after his MVA. He also noted 

that appellant had a history of a prior C4-5 fusion unrelated to his employment. Dr. Fellars opined 

that appellant’s symptoms were not causally related to the accepted employment injury. 

As noted by the DMA, Dr. Fellars, the medical evidence of record contemporaneous with 

appellant’s June 9, 2015 MVA fails to support that he had complained of bilateral numbness and 

loss of strength in his hands. The Board, consequently, finds that Dr. Riley’s report is based on an 

inaccurate and incomplete factual history and is thus of diminished probative value.16 Appellant, 

consequently, has failed to meet his burden of proof to establish an employment-related permanent 

impairment.17

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 his burden of proof to establish permanent 

impairment of the upper extremities, entitling him to a schedule award. 

 

14 Supra note 6.

15 See M.C., Docket No. 17-1089 (issued November 13, 2017).

16 H.W., Docket No. 18-1472 (issued March 6, 2019).

17 See B.R., Docket No. 18-0277 (issued August 27, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 24, 2019

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