United States Department of Labor

Employees’ Compensation Appeals Board

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J.C., Appellant

and

DEPARTMENT OF THE INTERIOR, BUREAU 

OF LAND MANAGEMENT, North Bend, OR, 

Employer

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Docket No. 19-1502

Issued: January 15, 2020

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 28, 2019 appellant filed a timely appeal from a December 31, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s December 31, 2018 decision was June 29, 2019. Since 

using July 3, 2019, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss of 

appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark 

is June 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the December 31, 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

ISSUE

The issue is whether appellant has met his burden of proof to establish employment-related 

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

award.

FACTUAL HISTORY

On March 23, 2016 appellant, then a 62-year-old civil engineering technician, filed a 

traumatic injury claim (Form CA-1) alleging cervical and left clavicle injuries due to falling down

stairs on March 18, 2016 while in the performance of duty. OWCP accepted his claim for anterior 

displaced closed fracture of the sternal/medial end of the left clavicle, neck abrasion, and displaced 

closed fracture of the second cervical vertebra.4

On June 12, 2017 appellant filed a claim for a schedule award (Form CA-7) due to his 

accepted employment injuries. He submitted reports from attending physicians and nurses, dated 

in early- to mid-2017, which addressed the management of his neck and left clavicle pain.

In a July 26, 2017 development letter, OWCP requested that appellant submit additional 

evidence in support of his schedule award claim, including a report from an attending physician 

which evaluated his claimed permanent impairment under the standards of the sixth edition of the 

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

Guides).5 OWCP afforded him 30 days to submit such evidence.

On September 7, 2017 OWCP referred appellant to Dr. Ronald Teed, a Board-certified 

orthopedic surgeon, for a second opinion examination. It requested that Dr. Teed examine 

appellant and provide an opinion regarding his upper extremity permanent impairment under the 

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

In a September 29, 2017 report, Dr. Teed noted that appellant reported that he still 

experienced some left clavicle pain near the sternum and rated his present pain level as 1 or 2 out 

of 10. Appellant denied pain radiating into his upper extremities and indicated that he did not 

experience paresthesias or paralysis. Dr. Teed advised that his physical examination revealed a 

negative Spurling test, no tenderness to palpation of the cervical spine, and no pain with gentle 

axial loading. Both shoulders had full active range of motion (ROM) as well as 5/5 strength, and 

there was no tenderness to palpation along the left shoulder. Dr. Teed noted that appellant had 

minimal tenderness over the medial third of the left clavicle and that he found no crepitance, 

fluctuance, palpable masses, or other defects. He diagnosed healed left clavicle fracture, healed 

second cervical vertebra fracture, and resolved neck abrasion. Dr. Teed determined that appellant 

had reached maximum medical improvement (MMI) and that he had no permanent impairment 

with respect to his accepted employment conditions.

By decision dated October 12, 2017, OWCP denied appellant’s schedule award claim, 

finding that he had not met his burden of proof to establish employment-related permanent 

 

4 Appellant did not immediately stop work, but retired from the employing establishment in April 2016.

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

impairment of a scheduled member or function of the body. It accorded the weight of the medical 

evidence to Dr. Teed.

On November 2, 2017 appellant requested a review of the written record by a 

representative of OWCP’s Branch of Hearings and Review. By decision dated January 5, 2018, 

OWCP’s hearing representative set aside the October 12, 2017 decision. She remanded the case 

to OWCP for referral of appellant’s case to a district medical adviser (DMA) for proper evaluation 

of his permanent impairment, to be followed by issuance of a de novo decision.

On February 1, 2018 OWCP referred appellant’s case to Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon, who served as a DMA. It requested that he review the medical 

evidence of record, including Dr. Teed’s September 29, 2017 report, and provide an opinion 

regarding appellant’s permanent impairment under the standards of the sixth edition of the A.M.A., 

Guides. 

In a February 2, 2018 report, the DMA discussed the findings of Dr. Teed’s September 29, 

2017 report and noted that Dr. Teed had found that the fractures of the cervical vertebra and the 

sternal/medial head of the left clavicle had satisfactorily healed. He explained that it was 

appropriate to evaluate appellant’s permanent impairment using The Guides Newsletter, Rating 

Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides 

Newsletter). The DMA opined, that for each upper extremity, appellant did not have a neurologic 

deficit consistent with radiculopathy stemming from the cervical spine. He found that appellant 

reached MMI on September 29, 2017, the date of Dr. Teed’s examination, and concluded that he 

did not have permanent impairment of either upper extremity.6

By decision dated March 7, 2018, OWCP denied appellant’s schedule award claim, finding

that he had not met his burden of proof to establish employment-related permanent impairment of 

a scheduled member or function of the body. It noted that the DMA had reviewed the medical 

evidence of record, including Dr. Teed’s September 29, 2017 report, and explained that appellant 

did not have upper extremity permanent impairment under the standards of the sixth edition of the 

A.M.A., Guides.

On March 13, 2018 appellant requested a review of the written record by a representative 

of OWCP’s Branch of Hearings and Review. He submitted an October 23, 2018 report from

Dr. Clifford Lin, an attending Board-certified orthopedic surgeon, who discussed his physical 

limitations.

By decision dated June 28, 2018, OWCP’s hearing representative affirmed the March 7, 

2018 decision, noting that the DMA correctly applied the standards of the sixth edition of the 

A.M.A., Guides in finding that appellant had no permanent impairment of either upper extremity. 

On September 19, 2018 appellant requested reconsideration of the June 28, 2018 decision. 

He submitted an August 10, 2018 report from Dr. Victor K. Lin, Board-certified in physical 

medicine and rehabilitation. Dr. Lin reported his examination findings and noted that appellant

had sustained a left clavicle fracture with decreased function of the neck and left shoulder. He 

determined that appellant had five percent permanent impairment of the whole person under 

 

6 The DMA indicated that, given the absence of cervical radiculopathy, it was unnecessary to consider the ROM 

findings of record for the upper extremities.
4

Table 13-12 (Station and Gait Disorder) on page 336 of the sixth edition of the A.M.A., Guides 

due to his reported difficulty in walking. Appellant also had five percent permanent impairment 

of the whole person under Table 17-2 (Cervical Spine Regional Grid) on page 566 due to his 

cervical fracture. Dr. Lin indicated that appellant had a diagnosis-based (DBI) impairment of 

seven percent permanent impairment of the whole person (converted from 11 percent permanent 

impairment of the left upper extremity) under Table 15-5 (Shoulder Regional Grid) on page 403 

due to his left clavicle fracture. He noted that Table 15-5 did contain not a diagnosis for fracture 

or dysfunction of the sternal/medial end of the clavicle, but posited that it was appropriate to use 

the diagnosis of acromioclavicular joint injury/disease given the magnitude of appellant’s injury 

and its effect on his upper extremity ROM. Dr. Lin added the several whole person impairments 

he calculated and concluded that appellant had 17 percent permanent impairment of the whole 

person.

By decision dated December 31, 2018, OWCP denied modification of the March 7, 2018 

decision. It found that Dr. Lin’s August 10, 2018 report did not contain an impairment calculation 

made in accordance with the standards of the sixth edition of the A.M.A., Guides.

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations

8

set 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 to all claimants, OWCP has adopted the A.M.A., Guides as 

the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.10

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.11 However, a 

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

and/or lower extremities.12 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was 

designed for situations where a particular jurisdiction, such as FECA, mandated ratings for 

extremities and precluded ratings for the spine. The FECA-approved methodology is premised on 

evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

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

and Exhibit 1 (January 2010). 

11 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); 

Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

12 Supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3) 

(March 2017).
5

rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure 

Manual.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish employmentrelated permanent impairment of a scheduled member or function of the body, warranting a 

schedule award.

The Board finds that OWCP properly relied on the opinion of the DMA, who reviewed 

September 29, 2017 findings of Dr. Teed, an OWCP referral physician, and properly determined 

that appellant did not have permanent impairment under the standards of the A.M.A., Guides. In 

his February 2, 2018 report, the DMA noted that Dr. Teed found that the fractures of the cervical 

vertebra and the sternal/medial head of the left clavicle had satisfactorily healed. He correctly 

advised that it was appropriate to evaluate appellant’s permanent impairment using The Guides 

Newsletter and opined, that for each upper extremity, appellant did not have a neurologic deficit 

consistent with radiculopathy stemming from the cervical spine.14 The DMA found that appellant 

reached MMI on September 29, 2017 and properly concluded that he did not have permanent 

impairment of either upper extremity.

Appellant submitted an August 10, 2018 permanent impairment calculation from Dr. Lin, 

but this calculation lacks probative value because it was not made in accordance with the A.M.A., 

Guides. The Board has held that an opinion on permanent impairment lacks probative value if it 

is not derived in accordance with the standards adopted by OWCP and approved by the Board as 

appropriate for evaluating schedule losses.15 Dr. Lin determined that appellant had five percent 

permanent impairment of the whole person under Table 13-12 (Station and Gait Disorder) of the 

sixth edition of the A.M.A., Guides and five percent permanent impairment of the whole person 

under Table 17-2 (Cervical Spine Regional Grid). However, these permanent impairment 

calculations are of limited probative value because, as noted above, neither FECA nor its 

implementing regulations provide for the payment of a schedule award for the permanent loss of 

use of the spine or the body as a whole.16 Dr. Lin also indicated that appellant had a DBI rating of 

seven percent permanent impairment of the whole person (converted from 11 percent permanent 

impairment of the left upper extremity) under Table 15-5 (Shoulder Regional Grid). The Board 

notes that devising such a DBI permanent impairment rating relating to the shoulder was not 

appropriate because appellant’s left clavicle fracture was at the sternal/medial end of the clavicle 

next to the cervical spine, rather than at the acromioclavicular or left shoulder end of the left 

clavicle. The A.M.A. Guides, per Table 15-5 on page 403, does not contain a provision for 

assigning permanent impairment to injury of the sternal/medial end of the clavicle.17 The Board 

thus finds that appellant has not met his burden of proof.

 

13 Supra note 10 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

14 See supra notes 12 and 13.

15 See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

16 See supra note 11.

17 See A.M.A., Guides 403-05, Table 15-5 (Shoulder Regional Grid).
6

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 his burden of proof to establish employmentrelated permanent impairment of a scheduled member or function of the body, warranting a 

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the December 31, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 15, 2020

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board