United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.F., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY INSEPCTION SERVICE, Zeeland, MI, 

Employer

__________________________________________

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Docket No. 19-0457

Issued: August 16, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 27, 2018 appellant, through counsel, filed a timely appeal from a

December 3, 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 greater than 10 

percent permanent impairment of the left upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On March 23, 2015 appellant, then a 57-year-old consumer safety inspector, filed a 

traumatic injury claim (Form CA-1) alleging that on March 22, 2015 he injured his left hip, left

shoulder, neck, and head when he slipped and fell on ice inside a cooler while in the performance 

of duty. He stopped work on March 22, 2015 and returned to his regular employment on 

March 26, 2015. On May 3, 3015 appellant began working with restrictions. OWCP accepted the 

claim for left shoulder strain, a left rotator cuff sprain, cervical radiculopathy, neck strain, a left 

hip contusion, a left forearm ulnar nerve injury, and left shoulder bursitis. 

An electromyogram (EMG) performed on September 3, 2015 revealed findings “most 

consistent with a left C7-8 cervical radiculopathy with some ongoing axon loss.” 

Appellant underwent two OWCP authorized surgeries. On October 26, 2015 he underwent 

an anterior cervical discectomy and fusion due to a C4-5 cervical disc herniation. On March 1, 

2017 appellant underwent a subacromial decompression, bursectomy, and distal clavicle excision 

of the left shoulder. 

In an impairment evaluation dated June 20, 2017, Dr. Peter E. Metropoulos, an osteopath

Board-certified in occupation medicine and environmental medicine, discussed appellant’s history 

of injury. On examination he found a decrease in grip strength of the hand bilaterally, 

symmetrically decreased motor strength, a loss of sensation in the C7 and C8 nerve roots, and 

possible thenar muscle atrophy on the left. Dr. Metropoulos further found pain in the shoulders

bilaterally with reduced range of motion (ROM) on the left side. He diagnosed intermittent 

bilateral upper extremity paresthesia at the C7 and C8 dermatomal distribution, upper extremity 

weakness, cervical neck pain due to a disc herniation causing myelomalacia of the spinal cord, left 

shoulder pain following a subacromial decompression and acromioclavicular resection, low back 

pain, bilateral hip pain, and left elbow tenderness. Dr. Metropoulos opined that appellant had not 

yet reached maximum medical improvement (MMI) for his left shoulder condition. He noted that 

an EMG had revealed changes consistent with C7 and C8 left radiculopathy. Dr. Metropoulos 

determined that appellant had two percent permanent impairment of the left sacroiliac joint 

according to Table 16-4 on page 512 of the sixth edition of the American Medical Association, 

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

3

 He further found two 

percent permanent impairment of the left lower extremity due to his left hip contusion, two percent 

permanent impairment of the left lower extremity due to sacroiliac pain, and two percent 

permanent impairment of the left upper extremity due to his left elbow contusion. Referencing 

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (The 

Guides Newsletter July/August 2009), Dr. Metropoulos found nine percent permanent impairment 

 

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

due to a motor deficit at both C7 and at C8 and three percent permanent impairment due to a

sensory deficit at both C7 and C8. He combined the impairment ratings to find 23 percent 

permanent impairment of each upper extremity and four percent permanent impairment of the left 

lower extremity. 

On August 2, 2017 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated August 10, 2017, OWCP notified appellant of the criteria for 

an impairment evaluation and requested that he submit a report from his attending physician 

addressing whether he had reached MMI and providing an impairment rating pursuant to the sixth 

edition of the A.M.A., Guides. It afforded him 30 days to submit the necessary evidence.

In a report dated August 15, 2017, Arthur S. Harris, a Board-certified orthopedic surgeon

serving as an OWCP district medical adviser (DMA), reviewed the June 20, 2017 impairment 

evaluation from Dr. Metropoulos and opined that appellant had four percent permanent 

impairment of each upper extremity due to pain and impaired sensation at C7 and C8 under The 

Guides Newsletter. He further found 12 percent permanent impairment of the left shoulder 

following a distal clavicle excision according to Table 15-5 on page 403 of the A.M.A., Guides. 

Dr. Harris noted that Dr. Metropoulos had not provided ROM measurements for the left shoulder 

and that he was thus unable to calculate the extent of any impairment due to reduced motion. He 

found two percent permanent impairment of the left elbow due to a strain, which he combined to 

find 17 percent permanent impairment of the left upper extremity. Regarding the lower 

extremities, Dr. Harris found two percent permanent impairment of the left hip. He concluded that 

appellant had 4 percent permanent impairment of the right upper extremity, 17 percent permanent 

impairment of the left upper extremity, and 2 percent permanent impairment of the left lower 

extremity.

In a letter dated October 10, 2017, OWCP requested that Dr. Metropoulos review the 

DMA’s report and advise whether he concurred with his findings. It further asked that he provide 

ROM measurements for the left shoulder and an updated impairment rating. 

In an addendum report dated November 6, 2017, Dr. Metropoulos indicated that he had not 

rated appellant’s left shoulder impairment as he was not at MMI at the time of the prior 

examination. He disagreed with the DMA’s finding that there was no objective evidence 

demonstrating cervical radiculopathy of the upper extremities, noting that he had found motor 

weakness, decreased hand strength, and likely muscle atrophy. Dr. Metropoulos further indicated 

that EMG testing performed September 3, 2015 had revealed left C7 and C8 radiculopathy and 

that a magnetic resonance imaging (MRI) study had documented spinal stenosis at multiple levels. 

He related, “To reiterate, the original report noted in the objective portion that there was evidence 

of motor weakness including but not limited to decreased strength in hand gripping along with 

likely muscle atrophy in the upper extremity and decreased motor strength to the shoulders with 

strength at grade 4+/5+.” Citing Table 1 of The Guides Newsletter, Dr. Metropoulos opined that, 

after application of grade modifiers, appellant had nine percent permanent impairment of each 

upper extremity due to motor deficit at C7 and nine percent permanent impairment of each upper 

extremity due to motor deficit at C8. He further found three percent impairment of each upper 

extremity due to sensory deficit at both C7 and C8. Dr. Metropoulos combined his impairment 

determinations to find that appellant had 23 percent permanent impairment of the left upper 
4

extremity and 21 percent permanent impairment of the right upper extremity. He further found 

four percent permanent impairment of the left lower extremity.

On November 18, 2017 Dr. Harris noted that Dr. Metropoulos had found that appellant had 

not reached MMI for his left shoulder condition. He disagreed with Dr. Metropoulos that he had 

documented weakness of the upper extremities originating in a spinal nerve root. Dr. Harris

recommended a second opinion examination. 

On December 4, 2017 OWCP referred appellant to Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, for a second opinion examination. 

In a report dated February 19, 2018, Dr. Obianwu discussed appellant’s complaints of 

intermittent numbness radiating into his left upper extremity. He advised that electrodiagnostic 

studies showing C7 or C8 radiculopathy did not demonstrate impairment absent clinical 

correlation. Dr. Obianwu opined that appellant had obtained MMI. On examination, he measured 

left shoulder abduction of 170 degrees, adduction of 30 degrees, flexion of 160 degrees, extension 

of 40 degrees, external rotation of 60 degrees, and internal rotation of 70 degrees. Dr. Obianwu 

found no atrophy of the parascapular muscles or biceps, good strength of the left shoulder, and a 

negative Speed’s test. He advised that appellant had no sensory deficits “of any significance in 

the upper extremities, certainly not any which conform to any dermatomal pattern. The deep 

tendon reflexes are equal bilaterally. No weakness of any groups of muscles is identified.”

Dr. Obianwu further found no evidence of lumbosacral neuritis. He diagnosed a left partial rotator 

cuff tear, rotator cuff tendinitis of the left shoulder, and a soft tissue injury of the left buttocks. 

Dr. Obianwu noted that appellant had undergone a resection of the left clavicle at the time of his 

March 1, 2017 surgery, but opined that it was unrelated to his employment. He opined that 

appellant had seven percent permanent impairment due to loss of ROM of the left shoulder using 

Table 15-34 on page 475 of the A.M.A., Guides. Dr. Obianwu further determined that appellant 

had seven percent left shoulder impairment using the diagnosis-based impairment (DBI) method. 

He identified the diagnosis as rotator cuff tear using Table 15-5 on page 402, the Shoulder Regional 

Grid. Dr. Obianwu applied grade modifiers and found seven percent permanent impairment of the 

left upper extremity due to appellant’s shoulder injury. He related, “I do not see any impairment 

of parts of the upper extremity brought about by the pathology in the spine. The mere fact that an 

electrodiagnostic study reveals a radiculopathy does not immediately confer disability or 

impairment to the left upper extremity.” 

On March 10, 2018 Dr. Harris reviewed the evidence of record and applied the tables and 

provisions of the A.M.A., Guides to Dr. Obianwu’s findings. He noted that Dr. Obianwu had 

found seven percent left upper extremity impairment due to reduced ROM of the left shoulder and 

no impairment of the upper extremity due to cervical radiculopathy. Dr. Harris opined that 

appellant had no impairment due to cervical radiculopathy pursuant to The Guides Newsletter as 

he did not have “any neurologic deficit in the upper extremity consistent with cervical 

radiculopathy....” For the left shoulder, he identified the diagnosis as residual rotator cuff 

difficulty following an excision of the distal clavicle using Table 15-5 on page 403 of the A.M.A., 

Guides, which yielded a default value of 10 percent. Dr. Harris further found three percent 

permanent impairment for loss of shoulder flexion, one percent impairment for loss of extension, 

one percent impairment due to loss of shoulder adduction, and two percent impairment for loss of 

internal rotation, for a total impairment due to reduced ROM of seven percent. He advised that 
5

using the DBI method yielded the greater impairment, and thus found 10 percent permanent 

impairment of the left upper extremity.

By decision dated March 29, 2018, OWCP granted appellant a schedule award for 10 

percent permanent impairment of the left upper extremity. The period of the award ran for 31.2 

weeks from February 19 to September 25, 2018.

On April 5, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

A telephonic hearing was held on September 17, 2018. Counsel noted that Dr. Obianwu 

had not rated appellant’s distal clavicle impairment as he found it was not employment related, 

even though it was part of his authorized surgery. He further argued that there was a conflict in 

medical opinion.

By decision dated December 3, 2018, OWCP’s hearing representative affirmed the 

March 29, 2018 decision. She found that Dr. Obianwu’s opinion represented the weight of the 

evidence and established that appellant had no radiculopathy or neuritis of the upper or lower 

extremities supporting a schedule award.

LEGAL PRECEDENT

The schedule award provision of FECA,4and its implementing federal regulation,5set 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 loss of a member shall be determined. The method 

used in making such a 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 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 

 

4 Supra note 2.

5 20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

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

Chapter 3.700, Exhibit 1 (January 2010).

7 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
6

and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class of 

diagnosis (CDX), 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).10 Evaluators are directed to provide reasons 

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

calculations of modifier scores.11

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.12 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.13 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.14

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.”

15 (Emphasis in the original.)

 

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 Id. at 411.

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

12 A.M.A., Guides 461.

13 Id. at 473.

14 Id. at 474.

15 FECA Bulletin No. 17-06 (May 8, 2018); V.L., Docket No. 18-0760 (issued November 13, 2018).
7

Neither FECA nor its regulations provide for a schedule award for impairment to the back 

or to the body as a whole.16 Furthermore, the back is specifically excluded from the definition of 

organ under FECA.17 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,

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (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 Guides Newsletter is to be applied.18

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.19 

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

20

ANALYSIS

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

In a report dated June 20, 2017, appellant’s attending physician, Dr. Metropoulos, 

diagnosed bilateral upper extremity paresthesia from the C7 and C8 dermatomal distribution, upper 

extremity weakness, cervical pain, left shoulder pain, low back pain, and left elbow tenderness. 

On examination he found reduced grip strength of the hands, a loss of motor strength, reduced 

sensation from the C7 and C8 nerve roots, and possible left atrophy at the thenar muscle. 

Dr. Metropoulos found that appellant had not yet achieved MMI for his left shoulder condition. 

For the cervical condition, he applied the provisions of The Guides Newsletter and found three 

percent permanent impairment at both C7 and C8 for loss of sensation of each upper extremity and 

nine percent permanent impairment at both C7 and at C8 due to a motor deficit. Dr. Metropoulos 

further found two percent permanent impairment of the left upper extremity due to an elbow 

contusion, two percent permanent impairment of the left lower extremity due to a left hip 

contusion, and two percent permanent impairment of the left lower extremity due to left sacroiliac 

pain. 

In a supplemental report dated November 9, 2017, Dr. Metropoulos opined that a physical 

examination had demonstrated objective evidence of radiculopathy, including muscle weakness, 

decreased hand strength, and possible muscle atrophy. He also noted that an EMG study revealed 

C7 and C8 left radiculopathy. Dr. Metropoulos again rated appellant’s cervical radiculopathy 

 

16 See J.L., Docket No. 18-1380 (issued May 1, 2019). FECA itself specifically excludes the back from the 

definition of organ. 5 U.S.C. § 8101(19). 

17 5 U.S.C. § 8101(19).

18 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The 

Guides Newsletter is included as Exhibit 4.

19 5 U.S.C. § 8123(a); see A.G., Docket No. 18-0815 (issued January 24, 2019).

20 See A.G., id.
8

using The Guides Newsletter. He combined his impairment determinations to find that appellant 

had 23 percent permanent impairment of the left upper extremity and 21 percent permanent 

impairment of the right upper extremity. Dr. Metropoulos further found four percent permanent 

impairment of the left lower extremity.

In a report dated February 19, 2018, Dr. Obianwu, an OWCP referral physician, found that 

appellant had reached MMI for all conditions. He found no evidence of cervical radiculopathy on 

examination, noting that EMG evidence of radiculopathy was insufficient to show impairment 

without clinical correlation. Dr. Obianwu indicated that an examination failed to demonstrate 

sensory deficits in any dermatomal pattern, muscle weakness, or a motor deficit. He further found 

on evidence of lumbosacral neuritis. Dr. Obianwu found that appellant had seven percent 

permanent impairment of the left shoulder due to reduced motion. He alternatively found seven 

percent of the left shoulder using the DBI method due to his rotator cuff tear.

On March 10, 2018 Dr. Harris concurred with Dr. Obianwu’s finding of no impairment 

due to cervical radiculopathy and seven percent permanent impairment of the left upper extremity 

using the ROM method. He rated appellant’s left upper extremity impairment using the DBI 

method and found 10 percent permanent impairment due to his distal clavicle excision. 

As noted above, if there is a disagreement between an employee’s physician and an OWCP 

referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall 

make an examination.21 The Board finds that there is an unresolved conflict in the medical 

evidence between Dr. Metropoulos and Dr. Obianwu regarding whether appellant has obtained 

MMI for his left shoulder condition,

22 whether he has a permanent impairment of the upper 

extremities due to cervical radiculopathy (left lower extremity), the extent of any upper extremity 

impairment, and whether he has a permanent impairment of the left lower extremity due to his 

accepted conditions. Therefore, the case must be remanded to OWCP for referral of appellant to 

an IME for resolution of the conflict in medical opinion evidence in accordance with 5 U.S.C. 

§ 8123(a).23 After such further development as OWCP deems necessary, it shall issue a de novo

decision.

CONCLUSION

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

 

21 G.W., Docket No. 19-0063 (issued June 21, 2019).

22 If the independent medical examiner (IME) physician finds that appellant has reached MMI for the left shoulder 

accepted condition, an analysis of the extent and percentage of permanent impairment of the left upper extremity shall 

be performed in accordance with FECA Bulletin No. 17-06.

23 Id.
9

ORDER

IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: August 16, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board