United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Phillipsburg, NJ, Employer

__________________________________________

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Docket No. 18-0745

Issued: February 6, 2019

Appearances: Case Submitted on the Record

Michael D. Overman, 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 February 23, 2018 appellant, through counsel, filed a timely appeal from an October 26, 

2017 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 more than 14 percent 

permanent impairment of the right upper extremity and 10 percent permanent impairment of the 

left upper extremity, for which she previously received schedule award compensation.

FACTUAL HISTORY

On November 5, 2010 appellant, then a 54-year-old custodian, filed a traumatic injury 

claim (Form CA-1) alleging that, earlier that day, she tripped and fell forward over a bucket of 

mail, striking her head, face, and right shoulder while in the performance of duty. She stopped 

work on the date of injury and was treated at a hospital emergency department. On December 21, 

2010 OWCP accepted the claim for facial contusion. It paid appellant wage-loss compensation 

commencing January 8, 2011.4

On November 17, 2015 appellant filed a claim for a schedule award (Form CA-7). In 

support of her claim, she provided a July 7, 2014 impairment rating from Dr. Arthur Becan, an 

orthopedic surgeon, who summarized her history of injury and treatment, and opined that she had 

attained maximum medical improvement (MMI). Regarding the right upper extremity, Dr. Becan 

referred to the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides)

5

and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using

the Sixth Edition (July/August 2009) (The Guides Newsletter). He found a class of diagnosis

(CDX) for sensory deficit of the right C5 nerve root, equaling four percent upper extremity 

impairment. Dr. Becan noted a grade modifier for functional history (GMFH) for a pain disability 

questionnaire (PDQ) score of 73, and a grade modifier for clinical studies (GMCS) of 4. Applying 

the net adjustment formula of (GMFH - CDX) + (GMCS - CDX), or (2-1) + (4-1) resulted in a net 

adjustment of 4, equaling four percent permanent impairment of the right upper extremity. 

Utilizing the same method of calculation, Dr. Becan found six percent permanent impairment of 

the right upper extremity due to C6 nerve root impairment, and four percent permanent impairment 

of the right upper extremity due to impairment of the C7 nerve root. He also found five percent 

permanent impairment of the right arm due to a class 1 mild IV/V motor strength deficit of the 

right deltoid, enervated by the right C6 nerve root. Dr. Becan applied the net adjustment formula 

(GMFH - CDX) + (GMCS - CDX), (2-1) + (4-1), which yielded a net adjustment of 4, raising the 

five percent impairment upward to nine percent. He also addressed entrapment neuropathy at the 

right wrist. Referring to Table 15-23, Dr. Becan found 6 percent permanent impairment of the 

right upper extremity due to entrapment neuropathy at the right median nerve, based on a grade 

modifier for physical examination (GMPE) findings of 3 for decreased pinch strength and a GMFH 

of 3 for a QuickDASH score of 68 percent. He combined these percentage values to total 25 

percent permanent impairment of the right upper extremity.

 

4 By decision dated April 18, 2013, OWCP terminated appellant’s wage-loss compensation and schedule award 

eligibility, effective that day as she refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). Following a 

telephonic hearing before an OWCP hearing representative on August 22, 2013, by decision dated December 9, 2013, 

an OWCP hearing representative reversed the April 18, 2013 decision and reinstated appellant’s wage-loss 

compensation payments and schedule award eligibility. 

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

Regarding the left upper extremity, Dr. Becan again referred to the A.M.A., Guides

July/August 2009 Guides Newsletter. He found a class 1 CDX for sensory deficit of the right C5 

nerve root, equaling 3 percent impairment, a GMFH for a PDQ score of 73, and a GMCS of 4. 

Applying the net adjustment formula of (GMFH - CDX) + (GMCS - CDX), or (2-1) + (4-1) 

resulted in a net adjustment of 4, equaling three percent permanent impairment of the left upper 

extremity. Utilizing the same method of calculation, Dr. Becan found five percent permanent 

impairment of the right upper extremity due to C6 nerve root impairment, and three percent 

permanent impairment of the right upper extremity due to impairment of the C7 nerve root. He

also found five percent permanent impairment of the left arm due to a class 1 mild IV/V motor 

strength deficit of the right deltoid. Dr. Becan applied the net adjustment formula (GMFH -

CDX) + (GMCS - CDX), (2-1) + (4-1), which yielded a net adjustment of 4, raising the five percent 

impairment upward to nine percent. He also found five percent permanent impairment of the right 

upper extremity due to a class 1 mild IV/V motor strength deficit of the right deltoid, enervated by 

the right C6 nerve root, adjusted upward to nine percent based on a GMFH of 2 and a GMCS of 

4. Dr. Becan also addressed entrapment neuropathy at the left wrist. Referring to Table 15-23, he 

found 6 percent permanent impairment of the left upper extremity due to entrapment neuropathy 

at the left median nerve, based on a GMPE findings of 3 for decreased pinch strength and a GMFH 

of 2 for a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 47 percent.

Dr. Becan combined these percentage values to total 22 percent permanent impairment of the left

upper extremity.

In a February 3, 2016 report, Dr. David I. Krohn, a Board-certified internist and OWCP 

district medical adviser (DMA), reviewed Dr. Becan’s opinion. He noted that OWCP had not 

accepted a cervical spine injury or carpal tunnel syndrome. Dr. Krohn opined that the accepted 

facial contusion had not caused a permanent impairment of a scheduled member of the body. 

OWCP found a conflict of medical opinion evidence between Dr. Becan for appellant, and

Dr. Krohn, for the government, regarding the appropriate percentage of permanent impairment. 

To resolve the conflict, it selected Dr. Dean Carlson, a Board-certified orthopedic surgeon, as an 

impartial medical specialist. Dr. Carlson submitted a July 28, 2016 report in which he reviewed 

the medical record and a statement of accepted facts (SOAF). He related appellant’s symptoms of

bilateral shoulder pain and dysfunction and bilateral hand pain and paresthesias. Appellant 

reported that her shoulder motion was so limited she could not wash her back. On examination,

Dr. Carlson found limited motion of the cervical spine, both shoulders, and both wrists, weakness 

of both shoulders, grip strength at 15 pounds on the right and 25 pounds on the left, and diminished 

light-touch sensation over the right radial thenar eminence and to the volar aspect of the fingers of 

the left hand. He obtained x-rays of both shoulders which demonstrated degenerative arthritis of 

the humeral head with osteophyte formation. Dr. Carlson diagnosed a resolved facial contusion 

by history, bilateral idiopathic glenohumeral arthritis, right C5, C6, and C7 radiculopathy, left C7 

radiculopathy, and bilateral carpal tunnel syndrome. He opined that the accepted November 5, 

2010 occupational injury caused or aggravated the cervical radiculopathy and bilateral carpal 

tunnel syndrome. Dr. Carlson explained that appellant’s bilateral glenohumeral arthritis was not 

traumatic. He noted that she had attained MMI as of July 7, 2014. 

Regarding the right upper extremity, Dr. Carlson found a CDX of 1 for C5 radiculopathy 

with mild sensory deficit of the right hand according to the Guides Newsletter, equaling 1 percent 

permanent impairment of the right upper extremity. He assessed a moderate motor deficit of 9 

percent according to Table 15-14, resulting in 10 percent permanent impairment of the right upper 
4

extremity. Dr. Carlson opined that the “grade modifiers did not come into play” as the GMCS of 

3 did not alter the rating, and there was no applicable GMFH as he could not use the QuickDASH 

score. He found that the right C6 radiculopathy “exhibited a moderate sensory rating of three

percent and a mild motor rating of five percent for 4/5 grip weakness, totaling eight percent. 

However, as appellant had multiple simultaneous neuropathies, she received only 50 percent of 

that score, so the combined upper extremity impairment of the C5 and C6 radiculopathy is 10 

percent plus 4 percent equaling 14 percent.” Her “C7 radiculopathy and right median nerve 

entrapment at the wrist fell under the criteria of multiple simultaneous neuropathies” rule at page 

448 of the A.M.A., Guides, and were therefore not rated. Dr. Carlson combined the 10 percent 

and 4 percent impairments for a combined 14 percent permanent impairment of the right upper 

extremity. 

Regarding the left upper extremity, Dr. Carlson noted that the C7 radiculopathy had a 

moderate sensory impairment equaling 2 percent impairment of the left arm, but a “mild motor 

score of [5] percent,” equaling 7 percent permanent impairment of the left upper extremity with 

no applicable grade modifiers. He opined that the left carpal tunnel syndrome had a GMCS of 1, 

GMFH of 3, and GMPE of 3, resulting in an average modifier of 2. As the QuickDASH score 

could not be used, the default CDX of five percent remained unchanged. Utilizing the multiple 

simultaneous neuropathies grading method, Dr. Carlson reduced the 5 percent impairment for 

carpal syndrome by 50 percent, equaling 2.5, rounded up to 3 percent. He combined the 7 percent 

impairment for C7 radiculopathy and 3 percent impairment for carpal tunnel syndrome to equal 10 

percent permanent impairment of the left upper extremity. 

In a report dated December 26, 2016, Dr. James W. Butler, a DMA Board-certified in 

occupational medicine, reviewed the medical record and SOAF. He opined that Dr. Carlson 

properly applied the appropriate portions of the A.M.A., Guides to appellant’s upper extremity 

conditions.

By decision dated March 21, 2017, OWCP expanded acceptance of appellant’s claim to 

include a neck sprain and lumbar sprain. It granted her a schedule award for 14 percent permanent 

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

extremity. The period of the award ran from July 7, 2014 to December 13, 2015. 

On March 28, 2017 counsel requested a hearing before an OWCP hearing representative. 

During the hearing, held on August 16, 2017, he contended that Dr. Carlson had failed to provide 

a GMFH, ignored the QuickDASH score, and failed to provide an impairment rating for 

osteoarthritis of the shoulder. Counsel requested that OWCP remand the case to obtain a 

supplemental report from Dr. Carlson. He submitted additional medical evidence.

In a report dated August 28, 2017, Dr. Becan reviewed Dr. Carlson’s report and contended 

that he had erred in applying the multiple simultaneous neuropathies grading model. He explained 

that, according to page 448 of the A.M.A., Guides, the multiple simultaneous neuropathies model 

applied only to “concurrent focal nerve compromise in the same upper limb, such as simultaneous 

carpal tunnel syndrome and ulnar neuropathy at the elbow.” As cervical radiculopathy was not a 

focal entrapment neuropathy, Dr. Carlson should not have characterized it as such in his 

impairment rating. Dr. Becan also contended that, although Dr. Carlson found that the GMFH 

could not be used, the Guides Newsletter mandated that GMFH should be included for each nerve 

impairment. He also questioned why Dr. Carlson had not found moderate sensory deficit in the 
5

left C5 and C6 dermatomes as was apparent on Dr. Becan’s July 7, 2014 examination. Dr. Becan 

concluded that appellant had 22 percent permanent impairment of the left upper extremity and 24 

percent permanent impairment of the right upper extremity. 

By decision dated October 26, 2017, OWCP’s hearing representative affirmed the 

March 21, 2017 schedule award. He noted that Dr. Carlson had properly applied the multiple 

simultaneous neuropathies rule and rejected the QuickDASH scores as inconsistent with the 

accepted injuries.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing federal regulations,7set 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 

a standard for evaluation of schedule losses and the Board has concurred in such adoption.8 For 

schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the 

A.M.A., Guides.

9

 

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

in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the spine,

11 no claimant is entitled 

to such an award.12 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.13

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. §10.404.

8 Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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

2.808.6 (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

10 Henry B. Floyd, III, 52 ECAB 220 (2001).

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

12 Thomas Martinez, 54 ECAB 623 (2003).

13 See Thomas J. Engelhart, 50 ECAB 319 (1999).
6

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter is to be applied.14 The Board has long recognized the discretion of OWCP to adopt 

and utilize various editions of the A.M.A., Guides for assessing permanent impairment.15 In 

particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating in 

the spine.16

The A.M.A., Guidesspecifically providesthat, if multiple simultaneous neuropathies occur 

in the same limb, both impairments may be rated and the nerve qualifying for the larger impairment 

is given the full impairment while the nerve qualifying for the smaller impairment is rated at 50 

percent.17 The A.M.A., Guides further indicate that Table 15-23 is to be used for rating focal nerve 

compromise.

18

Section 8123(a) of FECA provides that when there is a disagreement between the physician

making the examination for the United States and the physician of the employee, a third physician 

shall be appointed to make an examination to resolve the conflict.19 When there are opposing 

medical reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.20 

In situations where there are opposing medical reports of virtually equal weight and rationale and 

the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based on a proper factual 

background, must be given special weight.21 However, in a situation where OWCP secures an 

opinion from an impartial medical examiner for the purpose of resolving a conflict in the medical 

evidence and the opinion from such examiner requires clarification or elaboration, OWCP has the 

responsibility to secure a supplemental report from the examiner for the purpose of correcting the 

defect in the original opinion.22

 

14 See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 9 at Chapter 3.700, Exhibit 1, 

note 5 (January 2010). The Guides Newsletter is included as Exhibit 4. 

15 D.S., Docket No. 14-0012 (issued March 18, 2014). 

16 See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,

Docket No. 13-2011 (issued February 18, 2014). 

17 A.M.A., Guides 448.

18 Id.

19 5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

20 Delphia Y. Jackson, 55 ECAB 373 (2004).

21 Anna M. Delaney, 53 ECAB 384 (2002).

22 Margaret M. Gilmore, 47 ECAB 718 (1996).
7

ANALYSIS

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

In support of her schedule award claim, appellant submitted a report dated July 7, 2014 

from Dr. Becan, an orthopedic surgeon. Regarding the right upper extremity, Dr. Becan found 

that she had 24 percent permanent impairment of the right upper extremity. Regarding the left 

upper extremity, he found 22 percent permanent impairment of the left upper extremity. OWCP 

referred the record to Dr. Krohn, an OWCP DMA, who opined that in a report dated February 3, 

2016 that the accepted facial contusion did not result in permanent impairment of a scheduled 

member of the body. 

OWCP properly found a conflict of medical opinion between Dr. Becan, for appellant, and

Dr. Krohn, for the government, and selected Dr. Carlson as impartial medical examiner in the case. 

Dr. Carlson provided a July 28, 2016 report. He opined that the accepted November 5, 

2010 employment injury had caused cervical and lumbar spine sprains in addition to a resolved 

facial contusion. Dr. Carlson rated appellant’s percentage of permanent impairment based on the 

Multiple Simultaneous Neuropathies rule at page 448 of the A.M.A., Guides. This rating method

applies to “[m]ultiple, concurrent focal nerve compromise syndromes in the same upper limb,”

such as simultaneous carpal tunnel syndrome and ulnar neuropathy.23“The nerve qualifying for 

the larger impairment is given the full impairment. The nerve qualifying for the smaller 

impairment is rated at 50 percent (one-half) of the impairment listed in Table 15-23” at page 229 

of the A.M.A., Guides, titled “Entrapment/Compression Neuropathy Impairment.” 

Referring to the multiple simultaneous neuropathies rule, Dr. Carlson characterized the C5, 

C6, and C7 nerve root entrapments as peripheral, focal neuropathies. Utilizing the multiple 

simultaneous neuropathy formula for the right upper extremity, he found 10 percent permanent 

impairment for C5 nerve root compromise, 8 percent permanent impairment for C6 nerve root 

compromise reduced by 50 percent to 4 percent, and no applicable rating for C7 nerve root 

compromise and carpal tunnel syndrome, for a combined 14 percent permanent impairment of the 

right upper extremity. Applying the same rating methodology to the left upper extremity,

Dr. Carlson found 7 percent permanent impairment for C7 nerve root compromise, and 5 percent 

permanent impairment for carpal tunnel syndrome reduced to 2.5 percent then rounded upward to 

3 percent, for a combined 10 percent permanent impairment. Dr. Butler, a DMA, concurred with

Dr. Carlson. OWCP predicated its March 21, 2017 schedule award decision on Dr. Carlson’s 

impairment rating as reviewed by Dr. Butler.

Following an oral hearing before an OWCP hearing representative, counsel submitted a 

report dated August 28, 2017 from Dr. Becan, who explained that Dr. Carlson mischaracterized 

cervical nerve root entrapment as a focal, peripheral neuropathy under the multiple simultaneous 

neuropathies rule. By decision dated October 26, 2017, OWCP affirmed the March 21, 2017 

schedule award determination. The Board finds, however, that Dr. Carlson did not specify which 

portion of the A.M.A., Guides allowed for rating impingement of cervical nerve roots, a pathology 

occurring in the cervical spine, as a focal, peripheral entrapment neuropathy occurring in an upper 

 

23 Supra note 17. 
8

extremity. Dr. Carlson’s report thus requires clarification.24 Proceedings under FECA are not 

adversarial in nature and OWCP is not a disinterested arbiter. OWCP shares responsibility to see 

that justice is done.25 On remand, OWCP shall prepare an updated SOAF and request that

Dr. Carlson clarify his report to address the issue raised by Dr. Becan. After such further 

development of the medical evidence as deemed necessary, it shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for additional 

development consistent with this opinion.

Issued: February 6, 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

 

24 See supra note 9 at Part 3 -- Medical, OWCP-Directed Medical Examinations, Chapter 3.500.4g(3)(b) 

(July 2011). See also supra note 22.

25 Jimmy A. Hammons, 51 ECAB 219 (1999).