United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ALBANY VETERANS HOSPITAL, Albany, NY, 

Employer

__________________________________________

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Docket No. 18-1723

Issued: May 1, 2019

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 September 13, 2018 appellant, through counsel, filed a timely appeal from a July 26, 

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.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 appellant submitted additional evidence on appeal. 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 her burden of proof to establish permanent 

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

FACTUAL HISTORY

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

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

follows.

On June 12, 2013 appellant, then a 48-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that, on June 11, 2013, she developed cervical neck pain with radiating arm 

numbness while turning a patient over in bed. When the patient pushed against her, she felt a pop 

in her neck. Appellant noted that she had previously undergone a cervical laminectomy. She

stopped work on the date of injury. On March 13, 2015 OWCP accepted the claim for herniated 

nucleus pulposus (HNP) at C6-7. 

On June 16, 2015 appellant filed a claim for a schedule award (Form CA-7). 

In a January 14, 2016 treatment note, Dr. John Whalen, a Board-certified orthopedic 

surgeon, noted that appellant had neck pain and right arm symptoms. He opined that she continued 

with a permanent 75 percent disability causally related to the June 11, 2013 employment injury.

Dr. Whalen opined that appellant had reached maximum medical improvement. 

By development letter dated February 1, 2016, OWCP advised appellant that additional 

evidence was necessary to establish her schedule award claim. It requested that she submit an 

impairment evaluation from her attending physician in accordance with the sixth edition of the 

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

Guides).

5

 OWCP afforded appellant 30 days to submit the necessary evidence.

In a February 11, 2016 treatment note, Dr. Whalen reiterated his opinion that appellant 

continued with a permanent 75 percent disability causally related to her June 11, 2013 employment 

injury.

By decision dated March 18, 2016, OWCP denied the claim for a schedule award. It found 

that the evidence of record was insufficient to establish that appellant sustained permanent 

impairment of a scheduled member or function of the body due to her accepted work injury. 

OWCP explained that the medical documentation on file did not include a final rating of permanent 

impairment and a discussion of the rationale for calculation of the impairment, with reference to 

the applicable criteria and tables of the A.M.A., Guides.

 

4 Docket No. 14-1776 (issued November 14, 2014). The Board remanded the case for further development as to 

whether appellant had established that her diagnosed cervical condition was causally related to the accepted June 11, 

2013 employment incident. 

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

On March 29, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative, which was held on November 8, 2016. 

Appellant submitted a November 4, 2016 report wherein Dr. Whalen noted that appellant 

returned for follow-up of the fusion to C6-7/C5-7 performed on November 25, 2013. Dr. Whalen

explained that her symptoms were ongoing with pain in the anterior upper arm. He reiterated his 

opinion that appellant had 75 percent disability.

By decision dated December 28, 2016, OWCP’s hearing representative affirmed the 

March 18, 2016 decision. He found that Dr. Whalen failed to provide findings, citations, and 

calculations regarding the degree of permanent impairment, utilizing the A.M.A., Guides to 

support the opinion rendered. The hearing representative concluded that asthe case file was devoid 

of such medical evidence permanent impairment could not be determined. 

On January 26, 2017 appellant, through counsel, requested reconsideration and submitted 

new medical evidence from Dr. Stewart Kaufman, a Board-certified orthopedic surgeon.

In a December 19, 2016 report, Dr. Kaufman noted appellant’s history of injury and 

treatment. He explained that, in January 2013, she had undergone a C5-6 cervical discectomy and 

decompression, and on November 25, 2013 she had undergone a C6-7/C5-7 extension of the fusion 

surgery. On January 28, 2016 a magnetic resonance imaging (MRI) scan revealed C4-5 disc 

changes. Dr. Kaufman diagnosed cervical sprain with C5-6 herniated disc, C6-7 status post 

revision surgery, with fusion C5-7, and now C4-5 disc changes, and moderate right carpal tunnel 

syndrome. He utilized the A.M.A., Guides, Table 17-2, through Table 17-9

6

explaining that 

appellant’s C5-6 and C5-7 fusion and discectomies resulted in 15 percent whole person 

impairment. Dr. Kaufman referred to Table 15-11,7and opined that appellant had 25 percent right 

upper extremity impairment. 

In a March 30, 2017 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as an OWCP district medical adviser (DMA), noted that the A.M.A., Guides do not allow 

a schedule award for the spine, nor does it recognize a whole person impairment, except for the 

lung. He explained that The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition (July/August 2009) (The Guides Newsletter), must be utilized to assess 

impairment with regard to spinal nerve impairments. Dr. Katz recommended that Dr. Kaufman be

afforded the opportunity to submit a supplemental report. He advised that, if Dr. Kaufman was 

unable to comply, he recommended a second opinion impairment evaluation with a Board-certified 

specialist in physical medicine and rehabilitation or orthopedic surgery who was familiar with the 

A.M.A., Guides.

By development letter dated April 13, 2017, OWCP provided Dr. Kaufman with a copy of 

the DMA’s March 31, 2017 report and requested that he provide an addendum report to address 

the DMA’s concerns.

By letter dated May 23, 2017, counsel provided a May 10, 2017 addendum from

Dr. Kaufman. Dr. Kaufman recommended a repeat electromyography (EMG) study of the cervical 

 

6

Id. at 575-81. 

7

Id. at 420.
4

spine and the upper extremities to provide objective findings, as this could seriously impact the

impairment rating. He also noted that an evaluation by a neurologist was appropriate. 

In a June 20, 2017 report, the DMA agreed that a second opinion evaluation should be 

scheduled and that a neurological consultation and electrodiagnostic testing was warranted.

By letter dated August 25, 2017, OWCP referred appellant for a second opinion 

examination with Dr. Patrick Hughes, a Board-certified neurologist.

In a September 13, 2017 report, Dr. Hughes noted appellant’s history and related that he 

utilized the July/August 2009 The Guides Newsletter. He noted that appellant’s EMG and nerve 

conduction velocity (NCV) studies were normal, but found that she had six percent upper extremity 

permanent impairment.

In a November 9, 2017 memorandum of telephone call, OWCP contacted appellant and 

confirmed that she had not yet undergone an EMG study. 

On November 21, 2017 OWCP referred appellant for an EMG study on December 4, 2017, 

with Dr. Steven Weinstein, Board-certified in pain medicine and physical medicine and 

rehabilitation. Dr. Weinstein opined that she had moderate right median neuropathy at the wrist, 

mild left median neuropathy at the wrist, no evidence of right or left ulnar neuropathy, and no 

evidence of right or left C5-T1 radiculopathy. 

In a January 31, 2018 addendum, Dr. Hughes opined that appellant had 20 percent 

scheduled loss of use for her carpal tunnel on the right hand due to numbness over the first three 

fingers.

In a May 9, 2018 report, Dr. Hughes explained that he saw appellant for follow-up and 

noted that he initially attributed her numbness in the second, third, and fourth fingers to C6 and 

C7 radiculopathies. However, after reviewing the EMG studies, he found that her numbness was 

due to carpal tunnel syndrome, as documented by the December 4, 2017 EMG and NCV studies,

and was not due to cervical radiculopathy. Dr. Hughes opined that since there was no evidence of 

radiculopathy, appellant had no permanent impairment caused by her cervical condition.

In a July 23, 2018 report,8 Dr. Katz, the DMA, explained that the December 4, 2017

EMG/NCV study, demonstrated that appellant had no evidence of right or left C5-T1 

radiculopathy. He noted that Dr. Hughes found an intact motor examination and sensory changes 

compatible with median nerve entrapment, rather than dermatomal loss. Dr. Katz opined that 

appellant had no permanent impairment pursuant to The Guides Newsletter. 

By decision dated July 26, 2018, OWCP denied modification of its prior decision. It found

no permanent impairment associated with the accepted work-related condition.

 

8 The report is dated July 23, 2017; however, this is a typographical error.
5

LEGAL PRECEDENT

The schedule award provisions of FECA9and its implementing federal regulations,10 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use of specified members of the body. However, FECA 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 the standard for evaluation of schedule losses and the Board has 

concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is evaluated 

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

12

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

in FECA or in the regulations.13 Because neither FECA, nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the spine,14 no claimant is entitled 

to such an award.15 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.16

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 has offered an alternative 

approach to rating spinal nerve impairments.17 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 

 

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.

11 Id. at § 10.404(a).

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

2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and 

Exhibit 1 (January 2010).

13 B.W. Docket No. 18-1415 (issued March 8, 2019). J.M., Docket No. 18-0856 (issued November 27, 2018); 

Pamela J. Darling, 49 ECAB 286 (1998).

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

15 Thomas Martinez, 54 ECAB 623 (2003).

16 J.M., supra note 13; see Thomas J. Engelhart, 50 ECAB 319 (1999).

17 R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).
6

July/August 2009 The Guides Newsletter.

18

 Specifically, OWCP will address upper extremity 

impairment originating in the spine through Table 15-14.19

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 for a schedule award, appellant submitted January 14, February 11, 

and November 4, 2016 treatment notes from Dr. Whalen generally opining that she had 75 percent 

disability causally related to her work injury. She also submitted a December 19, 2016 report from

Dr. Kaufman, who opined that she had 15 percent whole person impairment, or 25 percent right 

upper extremity impairment. However, a schedule award is only payable for permanent 

impairment originating in the spine if permanent impairment of an extremity is established

pursuant to The Guides Newsletter.

20

 A schedule award is not payable for whole person 

impairment.21 Drs. Whalen and Kaufman did not indicate that appellant had sustained any 

permanent impairment of the upper extremities due to the accepted cervical herniated disc at C6-7, 

pursuant to The Guides Newsletter.

22

 As such, their reports are of limited probative value. 

In a September 13, 2017 report, Dr. Hughes, the second opinion physician, related that he 

had used the July/August 2009 The Guides Newsletter and determined that appellant had six 

percent upper extremity impairment, however, he did not initially review an EMG report to 

determine sensory or motor loss. As The Guides Newsletter rates permanent impairment based 

upon sensory or motor loss, this initial report did not meet the standards of The Guides 

Newsletter.

23

 Dr. Hughes provided a January 31, 2018 addendum and opined that appellant had a 

20 percent permanent impairment due to carpal tunnel of the right hand due to numbness over the 

first three fingers. In a May 9, 2018 report, he explained that while he initially attributed her

numbness in the second, third, and fourth fingers of the right hand to C6 and C7 radiculopathies, 

after reviewing the December 4, 2017 EMG and NCV studies, he determined that appellant’s 

numbness was due to carpal tunnel syndrome, and not cervical radiculopathy. With respect to a 

schedule award, it is the claimant’s burden of proof to establish permanent impairment of the 

scheduled member as a result of his or her employment injury. As carpal tunnel syndrome was 

not an accepted condition and Dr. Hughes did not establish that this condition was causally related 

 

18 Supra note 13 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

19 Supra note 6 at 425.

20 R.H., Docket No. 17-1017 (issued December 4, 2018). 

21 See S.D., Docket No. 18-0855 (issued November 28, 2018). 

22 Id. 

23 See B.W., Docket No. 18-1415 (issued March 8, 2019). 
7

to the accepted employment injury, appellant is not entitled to a schedule award for her carpal 

tunnel syndrome condition.24 

Regarding appellant’s accepted cervical condition, Dr. Hughes opined that based upon her

EMG and NCV studies, there was no evidence of radiculopathy, and she therefore had no

permanent impairment under The Guides Newsletter due to the accepted cervical condition. On 

July 23, 2018 Dr. Katz, serving as the DMA, properly reviewed Dr. Hughes’ reports and agreed 

that appellant did not have a ratable impairment as appellant had no evidence of right or left 

cervical radiculopathy. A schedule award based upon a cervical condition is proper under The 

Guides Newsletter only if there is objective evidence of cervical radiculopathy, which has caused 

sensory loss or motor weakness.

25

 Dr. Hughes and Dr. Katz therefore properly found that, lacking 

these findings, appellant was not entitled to a schedule award. Therefore their opinions carry the 

weight of the medical evidence.

It is appellant’s burden of proof to establish a permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.26 She did not submit such 

evidence and both the second opinion physician and the DMA found that she had no permanent 

impairment. Thus, appellant has not met her burden of proof to establish her schedule award 

claim.27

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. 

 

24 T.W., Docket No. 16-0176 (issued January 10, 2018); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. 

Meehan, 53 ECAB 229 (2001).

25 See D.A., Docket No. 18-0779 (issued December 12, 2018). 

26 Tammy L. Meehan, 53 ECAB 229 (2001).

27 See R.H., Docket No. 17-1069 (issued June 6, 2018); D.M., Docket No. 17-1128 (issued November 22, 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 1, 2019

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