United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF THE AIR FORCE,

TINKER AIR FORCE BASE, OK, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-1355

Issued: August 12, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 July 3, 2018 appellant filed a timely appeal from an April 13, 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 over 

the merits of this case.2

ISSUES

The issue is whether appellant has met his burden of proof to establish more than 47 percent

permanent impairment of the right upper extremity, more than 31 percent permanent impairment 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 13 2018 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

of the left upper extremity, more than 12 percent permanent impairment of each lower extremity, 

for which he previously received schedule award compensation.

FACTUAL HISTORY

On August 2, 1999 appellant, then a 45-year-old illustrator, filed a traumatic injury claim 

(Form CA-1) alleging that on April 16, 1999 he sustained an injury to his low back when moving

a cabinet while in the performance of duty. In a supplemental statement, he described complaints 

related to his left shoulder, low back and right wrist, related to the April 16, 1999 employment 

incident. By decision dated August 31, 1999, OWCP accepted appellant’s claim for right wrist 

strain, left rotator cuff tear, and lumbar strain.

On December 20, 2000 appellant filed a claim for a schedule award (Form CA-7) in 

connection with his accepted back conditions. OWCP developed the claim and, by decision dated

February 27, 2001, granted him a schedule award for 42 percent permanent impairment of the right 

upper extremity, 24 percent permanent impairment of the left upper extremity, 3 percent permanent 

impairment of the right lower extremity, and 10 percent permanent impairment of the left lower 

extremity. The period of the award ran for 228.96 weeks from January 9, 2001 through 

May 30, 2005.3

Appellant retired from the employing establishment on December 15, 2005. An April 26, 

2010 statement of accepted facts (SOAF) listed his accepted conditions as right carpal tunnel 

syndrome, bilateral sprain of shoulders and upper arms/rotator cuff, bilateral acromioclavicular 

sprain of the shoulders, displacement of the lumbar intervertebral disc, and bilateral primary 

osteoarthritis of the shoulder.

On November 30, 2009 appellant filed a claim for an increased schedule award (Form 

CA-7) for conditions related to his accepted back injury. By decision dated February 22, 2011, 

OWCP granted him a schedule award for an additional three percent permanent impairment of the 

right upper extremity. The period of the award ran for 9.36 weeks from July 21 through 

September 24, 2009.

On August 2, 2017 appellant filed another claim for an increased schedule award (Form 

CA-7) for conditions related to his accepted back injury. A July 27, 2017 report from Dr. John 

Ellis, a Board-certified family practitioner and occupational medicine specialist, provided a history 

of appellant’s injury and his findings on examination. Dr. Ellis opined that appellant had 11

percent permanent impairment of the right upper extremity, 26 percent permanent impairment of

the left upper extremity, and 12 percent permanent impairment each of the right and left lower 

 

3

In OWCP File No. xxxxxx055, appellant filed an occupational disease claim (Form CA-2) on June 20, 1996. 

OWCP accepted left olecranon spur and granted him a schedule award for seven percent permanent impairment of the 

left lower extremity. Additionally, OWCP File No. xxxxxx500 granted appellant a schedule award for two percent 

permanent impairment of the right upper extremity. These claims have been administratively combined with the 

present claim and OWCP File No. xxxxxx490 serves as the master file. 
3

extremities under the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).4

On August 23, 2017 OWCP routed Dr. Ellis’ report, an updated SOAF, the case file, and a 

set of questions, to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP 

district medical adviser (DMA), for review. The SOAF related that this statement superseded all 

previous versions. It listed appellant’s accepted upper extremity conditions as olecranon bursitis, 

left; bilateral carpal tunnel syndrome; left ulnar nerve injury, and left ulnar nerve lesion.

In an August 25, 2017 report, Dr. Harris, OWCP’s DMA, disagreed with the ratings 

calculated by Dr. Ellis. He noted that there was no basis for an increased award to the right upper 

extremity because appellant had previously received schedule award compensation for 45 percent 

permanent impairment for his right shoulder impairment under the present claim, and an additional 

3 percent under OWCP File No. xxxxxx500. The DMA further noted that there was no basis for 

an increased schedule award to the left upper extremity because appellant had already received 

schedule award compensation for 24 percent permanent impairment under the present claim, and 

an additional 7 percent under OWCP File No. xxxxxx055.

By letter dated August 30, 2017, OWCP requested that Dr. Ellis review the report of the 

DMA, and indicate whether he agreed with the DMA’s findings.

In a September 6, 2017 report, Dr. Ellis noted that he reviewed the DMA’s report. He 

explained that he did not rate the upper extremities because appellant had already received 

schedule award compensation for 45 percent permanent impairment of the right upper extremity 

and 24 percent permanent impairment of the left upper extremity. Dr. Ellis further noted that his 

July 27, 2017 examination found that appellant did not have increased impairment of the upper 

extremities. He opined that appellant had 3 percent permanent impairment of the right lower 

extremity and 10 percent of the left lower extremity, noting that the range of motion method could 

not be utilized for rating the lower extremities, as the impairment should be rated for radiculopathy.

On September 26, 2017 OWCP routed Dr. Ellis’ report to Dr. Harris, the DMA, for 

clarification. 

In a September 27, 2017 report, Dr. Harris, the DMA, noted that he reviewed the SOAF 

and the medical records. He explained that Dr. Ellis’ new report of September 6, 2017, did not 

provide any additional information regarding appellant’s subjective complaints, or objective 

findings, and he was unable to determine if additional impairment was warranted. Dr. Harris 

recommended a referral to another physician, not previously connected with the case, in order to 

provide the requested information.

On November 8, 2017 OWCP referred appellant along with the August 23, 2017 SOAF 

and the medical record to Dr. Christopher Jordan, an orthopedic surgeon, for a second opinion 

examination.

 

4 A.M.A., Guides (6th ed. 2009).
4

In a December 20, 2017 report, Dr. Jordan noted that there was confusion as to which body 

part was involved. Appellant related that he believed he was there for an evaluation of his back, 

but the SOAF only refers to his arms, so Dr. Jordan was focusing his evaluation on appellant’s 

upper extremities. Dr. Jordan noted appellant’s history of injury and examination findings, and 

calculated his upper extremity impairment based on his bilateral carpal tunnel syndrome. He 

determined that the left ulnar nerve is assigned a default rating of 8 percent impairment and 

explained that, pursuant to Chapter 15.4f, page 448 of the A.M.A., Guides, when there were 

multiple simultaneous neuropathies, the first was given the full impairment, and the second was 

given 50 percent of the impairment rating. Dr. Jordan concluded that the left ulnar nerve rating 

would therefore be reduced to 4 percent, and the total left arm impairment was 12 percent. He 

concluded that appellant had 8 percent right upper extremity permanent impairment and 12 percent 

left upper extremity permanent impairment. 

On January 24, 2018 OWCP routed Dr. Jordan’s report to Dr. Harris, the DMA, for review. 

In a February 15, 2018 report, Dr. Harris, the DMA, concurred with Dr. Jordan’s findings of 8 

percent right upper extremity permanent impairment and 12 percent left upper extremity 

permanent impairment. However, he noted that since Dr. Jordan did not provide an evaluation of 

the left shoulder, he was “unable to determine if there is any impairment in the left upper 

extremity.” Dr. Jordan indicated that appellant had reached maximum medical improvement on 

December 18, 2017.5

In a March 16, 2018 supplemental report, Dr. Harris, the DMA, reviewed the medical 

record and applied The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the 

Sixth Edition (July/August 2009) (The Guides Newsletter)

6

to find that appellant had three percent

permanent impairment of the right and left lower extremities for residual problems with moderate 

pain/impaired sensation from the right S1 lumbar radiculopathy (CDX 1C), five percent for 

residual problems with mild motor weakness from the right L5 lumbar radiculopathy (CDX 1C), 

one percent for residual problems with mild pain/impaired sensation from the right S1 lumbar 

radiculopathy (CDX 1C), and three percent for residual problems with mild motor weakness for 

the right S1 lumbar radiculopathy (CDX 1C). The DMA referred to the Combined Values Chart, 

A.M.A., Guides, page 604, and opined that this resulted in a total of 12 percent permanent 

impairment of the right and left lower extremities.

By decision dated April 13, 2018, OWCP granted appellant a schedule award for zero 

percent permanent impairment of the right upper extremity, zero percent permanent impairment 

of the left upper extremity, an additional nine percent permanent impairment of the right lower 

extremity, and an additional two percent permanent impairment of the left lower extremity.

 

5 On March 5, 2018 OWCP requested clarification from the second opinion physician. However, per a March 14, 

2018 memorandum of file, the request for clarification was cancelled because the second opinion and DMA only 

addressed the upper extremities when the request was for both the upper and lower (and the treating physician and 

appellant only addressed the lower). As a remedy, the memorandum proposed routing the case for a new referral to a 

DMA only with regard to the lower extremity.

6 Federal (FECA) Procedure Manual, Chapter 3.700, Exhibit 1 (January 2010); The Guides Newsletter is included 

as Exhibit 4.
5

LEGAL PRECEDENT

The schedule award provisions of FECA,7and its implementing federal regulations,8set 

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. However, 

FECA does not specify the manner in which the percentage of loss 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.9 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.10

Under the sixth edition, for upper extremity impairments the evaluator identifies the 

impairment for the class of diagnosis (CDX) condition, which is then adjusted by grade modifiers 

based on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS). 

The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). The grade 

modifiers are used on the net adjustment formula described above to calculate a net adjustment. 

The final impairment grade is determined by adjusting the grade up or down the default value C, 

by the calculated net adjustment.11

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in 

Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.

In Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories 

of test findings, history, and physical findings. The grade modifier levels are averaged to arrive at 

the appropriate overall grade modifier level and to identify a default rating value. The default 

rating value may be modified up or down based on functional scale, an assessment of impact on 

daily living activities (QuickDASH).12

It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the 

period of compensation paid under the schedule for an earlier injury if: (1) compensation in both 

cases is for impairment of the same member or function or different parts of the same member or 

function; and (2) the latter impairment in whole or in part would duplicate the compensation 

payable for the preexisting impairment.13

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6 (March 2017).

11 Supra note 4 at page 387.

12 See B.W., Docket No. 18-0901 (issued January 24, 2019).

13 See J.K., Docket No. 16-1361 (issued April 18, 2017); T.S., Docket No. 09-1308 (issued December 22, 2009); 

20 C.F.R. § 10.404(d).
6

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.14

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine. In 

1960, amendments to FECA modified the schedule award provisions 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. Therefore, as the 

schedule award provisions of FECA include 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.

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 for decades has offered an 

alternative approach to rating spinal nerve impairments. 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 The 

Guides Newsletter.

ANALYSIS

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

On November 8, 2017 OWCP referred appellant for a second opinion examination with

Dr. Jordan. The August 23, 2017 updated SOAF provided to Dr. Jordan and thereafter to

Dr. Harris, was deficient as it did not list all of appellant’s accepted upper extremity conditions, as 

previously noted in the April 26, 2010 SOAF. It only listed appellant’s accepted upper extremity 

conditions. It failed to mention his accepted spinal condition. An accurate SOAF is especially 

important given the complex facts of this case. The SOAF should identify the percentage of 

schedule award previously granted for each permanent impairment. The Board has held that a 

medical opinion based on an incomplete SOAF is of reduced probative value.15 Moreover, 

OWCP’s procedures specify that the SOAF must include all accepted conditions.16

It is well established that proceedings under FECA are not adversarial in nature and that 

while the claimant has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence. OWCP has an obligation to see that justice is 

done.17 The Board finds that OWCP undertook development of the medical aspect of appellant’s 

 

14 Supra note 9. 

15 S.K., Docket No. 16-0273 (issued July 14, 2016); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Requirements for Medical Reports, Chapter 3.600(a)(4) (October 1990).

16 Id. 

17 John J. Carlone, 41 ECAB 354, 358-60 (1989).
7

schedule award claim, but failed to provide a complete SOAF. As previously noted, given the 

complex nature of this schedule award claim, an accurate SOAF is necessary. On remand OWCP 

should fully update the SOAF, noting all accepted conditions. Thereafter it shall refer appellant 

for a second opinion examination to determine the extent of any additional permanent impairment

due to his accepted conditions. After such further development, OWCP shall issue a de novo

decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’

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

with this opinion.

Issued: August 12, 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