United States Department of Labor

Employees’ Compensation Appeals Board

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R.C., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, FOOD & DRUG 

ADMINISTRATION, Lenexa, KS, Employer

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Docket No. 19-1350

Issued: December 11, 2019

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

JANICE B. ASKIN, Judge

JURISDICTION

On June 4, 2019 appellant filed a timely appeal from December 12, 2018 and May 2, 2019

merit decisions 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.

2

ISSUES

The issues are: (1) whether appellant has greater than 1 percent permanent impairment of 

the left upper extremity and 10 percent permanent impairment of the right upper extremity, for 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the May 2, 2019 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

which he previously received schedule award compensation; (2) whether he received an 

overpayment of compensation in the amount of $3,135.16 for the period May 1 through July 5, 

2014; and (3) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On March 22, 2007 appellant, then a 51-year-old consumer safety investigator, filed a 

traumatic injury claim (Form CA-1) alleging that on March 15, 2007 he aggravated his herniated 

cervical disc when the charter bus on which he was a passenger on the way to training abruptly 

stopped while in the performance of duty. On the reverse side of the claim form, the employing 

establishment indicated that the injury occurred in the performance of duty. Appellant stopped 

work and returned to limited duty on July 10, 2007. He stopped work again on May 30, 2008. By 

decision dated November 19, 2007, OWCP accepted appellant’s claim for neck sprain. It 

subsequently expanded acceptance of appellant’s claim to include aggravation of degeneration of 

cervical intervertebral disc at C5-7, and aggravation of cervical spondylosis with myelopathy at 

C6-7. OWCP paid appellant wage-loss compensation for temporary total disability on the 

supplemental rolls beginning May 30, 2008 and on the periodic rolls, effective August 3, 2008. 

Appellant retired from federal employment due to disability on February 28, 2009. 

On May 30, 2014 OWCP granted appellant a schedule award for one percent permanent 

impairment of the left upper extremity and two percent permanent impairment of the right upper 

extremity. The award ran for 9.37 weeks from May 1 to July 5, 2014. OWCP noted that the 

schedule award was based on a May 13, 2014 report of Dr. Daniel Zimmerman, a Board-certified 

family practitioner, serving as an OWCP district medical adviser (DMA). By decision dated 

January 22, 2015, an OWCP hearing representative affirmed the May 30, 2014 schedule award 

decision. 

Appellant appealed to the Board.

By decision dated March 3, 2016, the Board affirmed the January 22, 2015 decision. The 

Board found that the weight of the medical evidence rested with Dr. Zimmerman’s May 13, 2014 

report as he properly based his impairment rating on the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and The Guides 

Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/

August 2009) (The Guides Newsletter). 

In an August 17, 2016 letter, appellant indicated that he was requesting a schedule award 

for his neck due to the change of condition that has worsened his neck.

OWCP received a July 14, 2016 report by Dr. John W. Ellis, a Board-certified family 

practitioner, who noted appellant’s March 15, 2007 employment injury and the subsequent 

 

3 Docket No. 11-2072 (issued August 28, 2012); Docket No. 15-1612 (issued March 3, 2016). 
3

medical treatment he received. He recounted appellant’s continued complaints of severe pain in 

his neck and upper back. Upon examination of appellant’s back, Dr. Ellis observed marked 

tightness of the posterior cervical muscles and in the upper rhomboid muscles. Range of motion 

of appellant’s cervical spine was decreased. Dr. Ellis indicated that the March 15, 2007 injury 

caused a severe straining of the muscles and ligaments of his neck and also injured the annular 

fibers of his discs. He opined that appellant’s neck injury caused acute spinal nerve impingement 

down the left arm and more impingement of the spinal nerves down his right arm. Dr. Ellis 

calculated that appellant had a combined 17 percent right upper extremity permanent impairment

and 13 percent left upper extremity permanent impairment. 

On November 30, 2016 appellant filed a claim for an increased schedule award (Form 

CA-7). 

In a development letter dated January 17, 2017, OWCP advised appellant of the type of 

evidence needed to establish his claim for an increased schedule award utilizing the appropriate 

portions of the sixth edition of the A.M.A., Guides and The Guides Newsletter. It afforded him 30 

days to submit the necessary evidence.

OWCP routed appellant’s schedule award claim to Dr. Herbert White, Jr., Board-certified 

in physical medicine and rehabilitation serving as a DMA, for review. In a January 7, 2018 report,

Dr. White indicated that he was unable to provide an impairment rating based on the information 

in the record and recommended referral for a second-opinion examination. 

OWCP referred appellant to Dr. Kala Danushkodi, Board-certified in physical medicine

and rehabilitation, for a second-opinion examination in order to provide an impairment rating in 

accordance with the A.M.A., Guides and The Guides Newsletter. In a September 18, 2018 report,

Dr. Danushkodi discussed appellant’s history of the March 15, 2007 employment injury and noted 

that appellant’s claim was accepted for neck sprain, aggravation of degeneration of cervical 

intervertebral disc at C5-7, and aggravation of cervical spondylosis with myelopathy at C5-7. She 

recounted appellant’s complaints of pain in his neck radiating to both upper extremities with 

associated numbness. Upon physical examination, Dr. Danushkodi observed normal cervical 

range of motion and palpable tenderness of the right C6-7 paraspinals. Spurling’s sign was positive 

with pain radiating to the right upper extremity. Dr. Danushkodi reported shared sensations to 

pinprick in the right C7 dermatome and normal left upper extremity sensory examination. She 

diagnosed right C7 cervical radiculopathy.

Utilizing Table 15-20 of the A.M.A., Guides, Dr. Danushkodi indicated that appellant had 

a normal motor sensory examination on the left, which was consistent with zero percent permanent 

impairment. Regarding appellant’s right upper extremity, she assigned class 1 in the C7 category

(CDX) for mild sensory deficit, default one percent, and mild motor deficit, default five percent. 

Dr. Danushkodi reported a grade modifier of 2 for functional history (GMFH) due to constant 

symptoms and ability to perform self-care unassisted and a grade modifier of 2 for clinical studies 

(GMCS) due to moderate pathology. She noted that grade modifier for physical examination 

(GMPE) was not used since physical examination was used to define the class. After applying the 

net adjustment formula ((2-1) + (2-1) = 2), Dr. Danushkodi calculated that appellant had 1 percent 

right upper extremity impairment for sensory and 9 percent right upper extremity impairment for 

motor deficit for a combined 10 percent right upper extremity permanent impairment.
4

In a November 30, 2018 report, the DMA reviewed appellant’s case, including

Dr. Danushkodi’s September 18, 2018 second-opinion report. Referencing the A.M.A., Guides 

and The Guides Newsletter, he calculated appellant’s right upper extremity impairment for deficits 

in the C7 nerve root. The DMA found a CDX of 1 for mild sensory impairment (default one

percent) and for motor impairment (default five percent). He agreed with Dr. Danushkodi’s 

GMFH of 2, GMCS of 2, and that GMPE was excluded because it was used to determine diagnostic 

placement. Using the net adjustment formula, the DMA calculated a net adjustment of +2, 

equaling a grade E impairment, which equaled 1 percent sensory impairment and 9 percent motor 

impairment for a total of 10 percent right upper extremity impairment. He did not provide an 

impairment rating for appellant’s left upper extremity. The DMA noted a date of maximum 

medical improvement (MMI) of September 18, 2018, the date of Dr. Danushkodi’s secondopinion report. 

By decision dated December 12, 2018, OWCP granted appellant an additional schedule 

award of eight percent permanent impairment of the right upper extremity for a total of 10 percent 

right upper extremity impairment. The award ran for 24.96 weeks from September 18, 2018 to 

March 11, 2019. OWCP also noted that the current evidence of record established no permanent 

impairment of the left upper extremity under the A.M.A., Guides and The Guides Newsletter. It

found that the weight of the medical evidence rested with Dr. Danushkodi’s September 18, 2018 

second-opinion report and the DMA’s November 30, 2018 report. 

In a January 14, 2019 memorandum, OWCP identified a potential overpayment of 

compensation because appellant had previously received a schedule award for one percent 

permanent impairment of the left upper extremity, but the most recent November 30, 2018 DMA 

report showed no impairment rating of the left upper extremity. It indicated that according to 

OWCP’s procedure manual, a one percent impairment rating for the arm equaled 3.12 weeks or 

21.84 days. OWCP noted that appellant’s weekly pay rate at the time of the award was $1,339.81, 

which when multiplied by the 75 percent compensation rate equaled $1,004.86. It multiplied 

$1,004.86 by 3.12 weeks and calculated that appellant had received an overpayment of 

compensation in the amount of $3,135.16.

On March 6, 2019 OWCP informed appellant of its preliminary determination that he had 

received an overpayment of compensation in the amount of $3,135.16 for the period May 1 

through July 5, 2014 because he was incorrectly paid schedule award benefits to which he was not 

entitled. It explained that he had previously received a schedule award for one percent left upper 

extremity impairment in 2014, but the current evidence of record established that appellant had no 

permanent impairment of the left upper extremity. OWCP found that appellant was not at fault in 

creating the overpayment. It requested that he complete an overpayment recovery questionnaire 

and submit supporting financial documentation to assist OWCP in its evaluation of his eligibility 

for waiver of recovery of the overpayment. Additionally, OWCP notified appellant that, within 

30 days of the date of the letter, he could request a telephone conference, a final decision based on 

the written evidence, or a prerecoupment hearing. 

By decision dated May 2, 2019, OWCP finalized its preliminary determination that 

appellant had received an overpayment of compensation in the amount of $3,135.16 for the period 

May 1 through September 15, 2014 as he was incorrectly paid schedule award compensation 
5

benefits. It found that he was without fault in the creation of the overpayment, but denied waiver 

of recovery of the overpayment. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provision of FECA4and its implementing regulations5set 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such 

adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.7

In addressing upper extremity impairments, the sixth edition requires identification of the 

impairment CDX condition, which is then adjusted by GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 OWCP procedures 

provide that, after obtaining all necessary medical evidence, the file should be routed to a DMA 

for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., 

Guides, with the DMA providing rationale for the percentage of permanent impairment specified.9

The A.M.A., Guides also provide that the ROM impairment method is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

diagnosis-based sections are applicable.10 If ROM is used as a stand-alone approach, the total of 

motion impairment for all units of function must be calculated. All values for the joint are 

measured and added.11 Adjustments for functional history may be made if the evaluator 

determines that the resulting impairment does not adequately reflect functional loss and functional 

reports are determined to be reliable.12

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. at § 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

7 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (March 2017).

8 A.M.A., Guides 411.

9 See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, supra note 7 at Chapter 

2.808.6f (March 2017). 

10 A.M.A., Guides 461. 

11 Id. at 473. 

12 Id. at 474. 
6

Regarding the application of ROM or DBI methodologies in rating permanent impairment 

of the upper extremities, FECA Bulletin No. 17-06 provides: 

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s). 

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

13 (Emphasis in the original.) 

The Bulletin further advises: “If the rating physician provided an assessment using the 

ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the 

DMA should independently calculate impairment using both the ROM and DBI methods and 

identify the higher rating for the CE.”

14

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

award for the permanent loss of use of the back/spine or the body as a whole.15 Furthermore, the 

back is specifically excluded from the definition of organ under FECA.16 The sixth edition of the 

A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as 

impairments of the extremities. Recognizing that FECA allows ratings for extremities and 

precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve 

impairments consistent with sixth edition methodology. For peripheral nerve impairments to the 

upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that the 

July/August 2009 edition of The Guides Newsletter is to be applied.17 

ANALYSIS -- ISSUE 1

The Board finds that appellant’s schedule award claim is not in posture for decision.

 

13 FECA Bulletin No. 17-06 (May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018).

14 Id.; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., id.

15 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

16 See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

17 Supra note 7 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
7

OWCP accepted that appellant sustained neck sprain, aggravation of degeneration of 

cervical intervertebral disc at C5-7, and aggravation of cervical spondylosis with myelopathy at 

C6-7 as a result of a March 15, 2007 employment injury. It granted him a schedule award for one 

percent permanent impairment of the left upper extremity and two percent permanent impairment 

of the right upper extremity. By decision dated March 3, 2016, the Board affirmed a January 22, 

2015 hearing representative’s decision which affirmed the May 30, 2014 schedule award decision. 

The Board’s review of the medical evidence submitted prior to January 22, 2015 is res judicata

absent further review by OWCP under section 8128 of FECA.18

On November 30, 2016 appellant submitted a claim for an additional schedule award. By 

decision dated December 12, 2018, OWCP determined that he currently had no permanent 

impairment of the left upper extremity and an additional eight percent permanent impairment of 

the right upper extremity. The award was based on the opinions of Dr. Danushkodi, an OWCP 

second-opinion physician, as reviewed by the DMA, Dr. White. 

In a September 18, 2018 second-opinion report, Dr. Danushkodi provided an impairment 

rating based on spinal nerve impairment to appellant’s upper extremities. Utilizing Table 15-20 

of the A.M.A., Guides, she determined that appellant had 0 percent left upper extremity 

impairment and 10 percent right upper extremity impairment due to C7 spinal nerve impairment. 

The Board finds that Dr. Danushkodi’s second-opinion report is insufficient to carry the weight of 

the medical evidence as she did not apply the relevant standards for evaluating conditions 

originating in the cervical spine.19 Dr. Danushkodi improperly applied Table 15-20 (Brachial

Plexus Impairment: Upper Extremity Impairments), beginning in page 434 of the sixth edition of 

the A.M.A., Guides, rather than The Guides Newsletter, to evaluate any permanent impairment 

originating in the cervical spine. 

The Board will, therefore, set aside OWCP’s December 12, 2018 decision and remand the 

case for a qualified physician to conduct a full physical examination and provide a permanent 

impairment rating in accordance with the A.M.A., Guides, The Guides Newsletter, and FECA 

Bulletin No. 17-06 in order to determine the extent of appellant’s bilateral upper extremity 

impairment due to his accepted cervical injury.20 After this and other such further development as 

deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an additional 

upper extremity schedule award.

CONCLUSION

The Board finds that this case is not in posture for decision.21

 

18 See B.W., Docket No. 18-1415 (issued March 8, 2019).

19 See supra notes 8 through 10.

20 See B.B., Docket No. 17-1949 (issued October 16, 2018).

21 In light of the disposition of issue 1 regarding appellant’s schedule award claim, the second and third issues 

regarding the overpayment of compensation based on appellant’s schedule award are moot and will not be addressed.
8

ORDER

IT IS HEREBY ORDERED THAT the May 2, 2019 and December 12, 2018 decisions

of the Office of Workers’ Compensation Programs are set aside, and the case is remanded for

further action consistent with this decision of the Board.

Issued: December 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board