United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.O., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, San Juan, PR, Employer

__________________________________________

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Docket No. 18-0584

Issued: October 17, 2018

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 25, 2018 appellant filed a timely appeal from a January 10, 2018 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 to 

consider the merits of the case.

ISSUE

The issue is whether appellant has established more than one percent permanent 

impairment of his bilateral upper extremities and one percent permanent impairment of his bilateral 

lower extremities for which he previously received schedule award compensation.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts as presented in the Board’s

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

On September 28, 2001 appellant, then a 33-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained injuries on August 25, 2001 when a heavy jug 

fell on top of him while in the performance of duty. On January 28, 2002 OWCP accepted the 

claim for low back sprain. On August 29, 2003 it expanded acceptance of the claim to include

cervical radiculopathy, right C6, and bilateral C8-T11. OWCP paid appellant wage-loss 

compensation and medical benefits on the periodic rolls as of November 4, 2003. Appellant

elected Office of Personnel Management (OPM) retirement benefits, effective April 2, 2014.

The record contains an April 13, 2014 cervical electromyogram (EMG) and nerve 

conduction velocity (NCV) study for the upper extremities which demonstrated bilateral carpal 

tunnel syndrome and suspected bilateral C6 radiculitis. An electrodiagnostic study for the lower 

extremities dated December 16, 2014 demonstrated L5 radiculopathy. 

In a report dated May 3, 2015, Dr. Tomas Hernández Ortiz, a neurologist, provided a 

history and results of an April 28, 2015 examination. He diagnosed work-related cervical 

radiculopathies bilaterally at C5-6 and C8-T11, L1-2 protruded disc, and bilateral L5-S1 

radiculopathies. Dr. Hernández Ortiz also diagnosed nonemployment-related carpal tunnel 

syndrome and right median nerve release. On physical examination he found adequate muscle 

tone, and reported moderate loss of fingering and grip strength worse on the right following carpal 

tunnel release. Dr. Hernández Ortiz reported no sensory deficit in any of the modalities tested. 

Appellant’s reflexes were equal bilaterally. Dr. Hernández Ortiz provided a whole person 

permanent impairment rating of 16 percent under the sixth edition of the American Medical 

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

3 using a 

“Spine and Pelvis impairment calculation methodology” for the cervical and lumbar spine. 

OWCP requested that district medical adviser (DMA), Dr. Henry Magliato, a Boardcertified orthopedic surgeon, review the report from Dr. Hernández Ortiz and provide an opinion 

as to the degree of appellant’s permanent impairment. In a report dated June 16, 2015,

Dr. Magliato opined that the report of Dr. Hernández Ortiz was of no value in determining 

permanent impairment under the A.M.A., Guides. He indicated that Dr. Hernández Ortiz had used 

diagnostic grids for the spine and whole person impairment, which were not appropriate under 

FECA. Dr. Magliato recommended a referral to a second opinion physician. 

On July 20, 2015 OWCP received a revised report dated July 11, 2015 from Dr. Hernández 

Ortiz. The examination results from April 28, 2015 were repeated, however, Dr. Hernández Ortiz 

provided an opinion as to permanent impairment based on The Guides Newsletter, Rating Spinal 

Nerve Extremity Impairment using July/August 2009 (hereinafter The Guides Newsletter). For 

the upper extremities, he opined that there was one percent permanent impairment for sensory 

 

2 Docket No. 17-1156 (issued September 13, 2017); Docket No. 16-0905 (issued January 4, 2017). 

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

deficit and five percent permanent impairment for motor deficit of C6 root and T1 nerve roots. 

Dr. Hernández Ortiz indicated that although only a right C6 root lesion had been accepted, it was 

appropriate to provide a bilateral upper extremity impairment rating. He found 12 percent 

permanent impairment for the bilateral C8-TI root lesions for a total of 18 percent permanent 

impairment for the upper extremities nerve involvement. As to the lower extremities,

Dr. Hernández Ortiz opined that appellant had one percent permanent impairment due to sensory 

deficit and three percent permanent impairment due to motor deficit to each lower extremity. 

OWCP referred appellant for a second opinion examination by Dr. Fernando Rojas, an 

orthopedic surgeon. In a report dated September 22, 2015, Dr. Rojas provided a history and results 

from his August 28, 2015 examination. He reported normal strength and function without sensory 

deficits in the upper extremities, but with appellant’s symptoms of paresthesias. Dr. Rojas noted 

loss of deep tendon reflexes in the left lower extremity only with no motor or sensory deficits, but 

radicular pain. He reviewed Dr. Hernández Ortiz’ report and noted that he based his impairment 

rating on decreased range of motion and localized paraspinal spasms while the neurological 

findings were normal. Dr. Rojas opined that appellant had two percent permanent impairment of

right and left upper extremities based on carpal tunnel syndrome which was not employment

related, and no percentage of permanent impairment based on The Guides Newsletter. In applying 

The Guides Newsletter he assigned zeros for all diagnosis classes and grade modifiers. 

By report dated October 27, 2015, DMA Dr. Magliato found that the second opinion 

physician’s report was confusing and of “no value.” He indicated that Dr. Rojas had provided 

vague calculations that were difficult to understand, and he noted that carpal tunnel syndrome had 

not been accepted. Dr. Magliato recommended referral to another second opinion physician. In a 

memorandum of telephone call (Form CA-110) dated November 24, 2015, OWCP advised 

appellant that he would be receiving another referral for a second opinion examination. 

The record contains a letter dated November 24, 2015 from the second opinion referral 

service, advising that Dr. Rojas was the only orthopedic surgeon on the panel who performed 

federal workers’ compensation examinations. OWCP sent a letter dated November 25, 2015 to

Dr. Hernández Ortiz, requesting an additional report regarding permanent impairment. It referred 

to The Guides Newsletter and noted that whole person impairments were not appropriate under 

FECA. 

In a report dated December 12, 2015, Dr. Hernández Ortiz reported that he had already 

answered OWCP’s questions in his July 11, 2015 report. OWCP referred the evidence to another 

DMA, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon for review. 

In a report dated January 8, 2016, Dr. Harris opined that appellant had one percent 

permanent impairment of each of his upper and lower extremities. He indicated that, for the upper 

extremities, there was one percent permanent impairment for C6 nerve root “mild pain/impaired 

sensation.” In discussing this impairment, Dr. Harris referred to the May 3, 2015 report from

Dr. Hernández Ortiz, and indicated that he had improperly used the diagnosis-based grids for the 

spine. As to the lower extremities, he found that there was one percent permanent impairment for 

L5 mild pain/impaired sensation. Dr. Harris did not discuss motor deficit. He reported that there 

was no impairment for C8 and T1 radiculopathy, as the attending physician did not demonstrate 
4

any neurological deficit consistent with radiculopathy. Dr. Harris indicated that electrodiagnostic 

studies were consistent with C6 and L5 radiculopathy. 

By decision dated January 19, 2016, OWCP issued appellant a schedule award for one 

percent permanent impairment of each of his upper and lower extremities. The period of the award

was for 12 weeks commencing April 28, 2015. 

On March 25, 2016 appellant appealed to the Board. By decision dated January 4, 2017, 

the Board found that Dr. Hernández Ortiz had not established C8 and T1 nerve root permanent 

impairments. The Board further found that Dr. Harris, serving as a DMA, had not explained why

motor deficit ratings for the C6 and L5 nerve roots were inappropriate. The case was therefore 

remanded for a clarifying report on this issue from Dr. Harris.4 

In a January 23, 2017 memorandum, OWCP requested that Dr. Harris provide a

supplemental report in his role as DMA. The memorandum indicated, inter alia, that no 

explanation had been provided as to why a motor deficit rating under The Guides Newsletter was 

inappropriate for the C6 and L5 nerve roots. 

In a report dated January 25, 2017, Dr. Harris reviewed the July 11, 2015 report of

Dr. Hernández Ortiz and found that his examination did not demonstrate neurological deficit in 

either upper or lower extremities, but reported 18 percent permanent bilateral upper extremity 

impairment due to cervical radiculopathy. He then reviewed Dr. Rojas’ September 22, 2015 report 

and found that this examination did not demonstrate any neurologic deficit in either the upper or 

lower extremities. Dr. Harris opined that appellant had no permanent impairment of any extremity. 

By decision dated February 10, 2017, OWCP found that appellant was not entitled to an 

additional schedule award. It found that the January 25, 2017 report of Dr. Harris represented the 

weight of the medical evidence. 

On May 4, 2017 appellant appealed to the Board. By decision dated September 13, 2017,

the Board set aside the February 10, 2017 decision and remanded the case for further development. 

The Board found that Dr. Harris did not sufficiently explain in his January 25, 2017 report why 

his impairment rating changed from the one percent permanent impairment of each extremity 

found in his January 8, 2017 report. Furthermore, his January 25, 2017 report lacked an 

explanation of how the A.M.A., Guides and/or The Guides Newsletter were used to calculate his 

finding of zero percent permanent impairment. The Board remanded the case for further 

development to properly resolve the issue of increased permanent impairment. 

On remand, OWCP again referred the case record to Dr. Harris, as a DMA, along with the 

specific questions raised by the Board in its September 13, 2017 decision. Dr. Harris responded 

on October 18, 2017 and identified appellant’s work-related conditions. He opined that appellant 

had no permanent impairment based on The Guides Newsletter for rating spinal nerve impairment. 

Dr. Harris further noted that spinal nerve impairment did not include range of motion ratings. He

reviewed Dr. Hernández Ortiz’ July 21, 2015 report and found no report of abnormal sensation in 

either the upper or lower extremities. Dr. Harris also noted that Dr. Hernández Ortiz did not 

 

4 Docket No. 17-1156 (issued September 13, 2017).
5

document specific muscle weakness or motor deficits consistent with cervical radiculopathy and 

that Dr. Hernández Ortiz did not provide an explanation for the loss of grip strength or fingering 

strength. He then reported that the methodology of The Guides Newsletter was based on the 

description of sensory and motor deficits and required the presence of these impairments for 

permanent impairment ratings. Dr. Harris found that appellant did not have a neurologic deficit 

consistent with radiculopathy in the upper or lower extremities.

By decision dated January 10, 2018, OWCP denied appellant’s claim for additional 

schedule award compensation, finding that Dr. Harris’ report established that appellant had no 

permanent impairment in his upper or lower extremities due to his accepted employment injuries. 

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing regulations6set forth the 

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

of 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 2009.7 The Board has approved the use by OWCP of the A.M.A., Guides for 

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

purposes.8 It is well established that in determining the amount of a schedule award for a member 

of the body that sustained an employment-related impairment, preexisting impairments are to be 

included.9

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.10 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.11 The sixth edition of the A.M.A., Guides provides a specific 

 

5 Supra note 1.

6 20 C.F.R. § 10.404.

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010).

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

9 P.R., id; Carol A. Smart, 57 ECAB 340 (2006).

10 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see D.B., Docket No. 17-0930 (issued July 11, 2018); Jay K. 

Tomokiyo, 51 ECAB 361, 367 (2000).

11 Supra note 7 at Chapter 2.808.5c(3) (March 2017).
6

methodology for rating spinal nerve extremity impairment.12 It was designed for situations where 

a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for 

the spine. FECA-approved methodology is premised on evidence of radiculopathy affecting the 

upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity 

impairment are incorporated in the Federal (FECA) Procedure Manual.13

ANALYSIS

The Board finds that appellant has not established more than one percent permanent 

impairment of his bilateral upper and lower extremities.

OWCP accepted that appellant sustained low back sprain and cervical radiculopathy, right 

C6 and bilateral C8-T11, and awarded schedule award compensation for one percent permanent 

impairment of each of his upper and lower extremities.14 

Appellant submitted reports from Dr. Hernández Ortiz in support of his claim. 

Dr. Hernández Ortiz opined that appellant had sustained one percent permanent impairment for 

sensory deficit and five percent permanent impairment for motor deficit of C6 root and T1 nerve 

roots. He indicated that, although only a right C6 root lesion had been accepted, it was appropriate 

to provide a bilateral upper extremity impairment rating. Dr. Hernández Ortiz found 12 percent 

permanent impairment for the bilateral C8-TI root lesions for a total of 18 percent permanent 

impairment for the upper extremities nerve involvement.15

As to the lower extremities, Dr. Hernández Ortiz opined that there was one percent 

permanent impairment for sensory deficit and three percent permanent impairment for motor 

deficit to each lower extremity. The Board finds that his reports failed to provide the medical 

findings on which he based his impairment ratings or clearly explain how he calculated appellant’s 

impairment under The Guides Newsletter. The Board has held that when an attending physician 

fails to provide an estimate of impairment conforming to the A.M.A., Guides or does not discuss 

how he or she arrives at the degree of impairment based on physical findings, the opinion is of 

diminished probative value in establishing the degree of impairment and OWCP may rely on the 

opinion of its medical adviser to apply the A.M.A., Guides to the findings reported by the attending 

physician.16 Thus, Dr. Hernández Ortiz’ reports are of diminished probative value regarding 

 

12 The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve 

Extremity Impairment Using the Sixth Edition (July/August 2009). Id.

13 Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

14 Findings made in prior Board decisions are res judicata absent further review by OWCP under section 8128 of 

FECA. S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket No. 16-1191 (issued November 25, 2016).

15 In the January 4, 2017 decision, the Board found that Dr. Hernández Ortiz had not established C8 and T1 nerve 

root permanent impairments.

16 See D.B., supra note 10; L.M., Docket No. 12-0868 (issued September 4, 2012); John L. McClanic, 48 ECAB 

552 (1997). 
7

appellant’s upper and lower extremity permanent impairment under the sixth edition of the 

A.M.A., Guides.

17

In accordance with the Board’s prior decisions, OWCP properly referred the evidence of 

record to a DMA, Dr. Harris. In his October 17, 2017 report, Dr. Harris found that Dr. Hernández 

Ortiz’ impairment rating was unacceptable for schedule award purposes because he failed to 

provide physical findings in support of his impairment ratings and failed to correlate these findings 

with The Guides Newsletter.

The Board finds that OWCP’s DMA, Dr. Harris, applied the appropriate tables and grading 

schemes of The Guides Newsletter to Dr. Hernández Ortiz’ clinical findings. He concluded that 

appellant had no neurological impairment of the extremities, warranting a schedule award under 

The Guides Newsletter for his accepted cervical and lumbar spine conditions. The DMA’s

calculations were mathematically accurate. There is no medical evidence of record utilizing the 

appropriate tables of The Guides Newsletter demonstrating a greater percentage of permanent 

impairment. Therefore, OWCP properly relied on the DMA’s assessment of a zero percent 

permanent impairment of the bilateral upper and lower extremities in denying additional schedule 

award compensation for the bilateral upper and lower extremities. 

There is no probative medical evidence of record, in conformance with the sixth edition of 

the A.M.A., Guides, establishing that appellant has greater permanent impairment of his upper or 

lower extremities than that previously awarded. Accordingly, appellant has not established that 

he is entitled to additional schedule award compensation.

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 established more than one percent permanent 

impairment of his bilateral upper extremities and one percent permanent impairment of his bilateral 

lower extremities for which he previously received schedule award compensation.

 

17 See D.B., supra note 10; Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little 

probative value where the A.M.A., Guides are not properly followed).
8

ORDER

IT IS HEREBY ORDERED THAT the January 10, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 17, 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