United States Department of Labor

Employees’ Compensation Appeals Board

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C.D., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Lyons, NJ, Employer

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Docket No. 18-0677

Issued: November 4, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 9, 2018 appellant, through counsel, filed a timely appeal from a November 29, 

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.

 

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 met her burden of proof to establish ratable permanent 

impairment of a scheduled member or function of the body.

FACTUAL HISTORY

This case was previously before the Board.3 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 May 19, 2009 appellant, then a 32-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that she sustained a cervical injury on May 18, 2009 when repositioning a patient 

in bed while in the performance of duty. By decision dated June 10, 2009, OWCP accepted the 

claim for extruded cervical disc at C6-7 and authorized an anterior cervical decompression and 

fusion at C6-7, which appellant underwent on July 8, 2009. It paid her wage-loss compensation 

on the periodic rolls effective August 30, 2009 who then returned to full-time, full-duty work on 

November 15, 2009.

On August 8, 2013 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7). 

In a May 6, 2013 report, Dr. David Weiss, a Board-certified orthopedic surgeon, diagnosed 

chronic post-traumatic cervical strain and sprain, herniated cervical discs at C4-5 and C6-7, 

bulging cervical discs at C3-6, status post cervical discectomy at C6-7, and left-sided cervical 

radiculopathy. He opined that appellant had reached maximum medical improvement (MMI) on 

May 6, 2013, the date of the examination. Dr. Weiss opined that she had 16 percent permanent 

impairment to the left upper extremity based on the class of diagnosis (CDX) of 1 of mild motor 

strength deficit of the left bicep, severe sensory deficit of the left C7 nerve root, and severe sensory 

deficit of the left C8 nerve root pursuant to the sixth edition of the American Medical Association, 

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

4

On August 23, 2013 Dr. Morley Slutsky, a Board-certified occupational medicine 

specialist serving as a district medical adviser (DMA), reviewed the medical evidence and 

recommended a second opinion examination to determine the nature and extent of appellant’s 

employment-related conditions and provide a permanent impairment rating according to The

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

(July/August 2009) (The Guides Newsletter). 

OWCP referred appellant to Dr. Lawrence G. Splitter, a Board-certified occupational 

medicine specialist, for a second opinion examination to determine the nature and extent of her 

permanent impairment. In his February 16, 2015 report, Dr. Splitter reviewed a statement of 

accepted facts, appellant’s medical history and the medical evidence of record. He conducted a 

physical examination and provided his findings, diagnosing status post anterior cervical surgery 

 

3 Docket No. 16-1489 (issued April 12, 2017).

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

and nonverifiable left upper extremity radicular complaints. Dr. Splitter advised that “[b]efore 

assigning an impairment, [he] would recommend an updated electrodiagnostic study to verify any 

nerve root involvement.”

OWCP subsequently obtained the recommended electrodiagnostic testing. In a report 

dated June 29, 2015, Dr. Donald A. Stone, a Board-certified neurologist, found that 

electromyogram and nerve conduction velocity (EMG/NCV) studies dated June 29, 2015 were 

normal and revealed no evidence of left cervical radiculopathy, median or ulnar neuropathy, or 

generalized polyneuropathy involving the left upper extremity. 

In a supplemental report dated August 4, 2015, Dr. Splitter reviewed the June 29, 2015 

EMG/NCV studies and found no evidence of radiculopathy or entrapment neuropathy. He

concluded that given the results of the diagnostic studies and physical examination there was no 

permanent impairment of the left upper extremity secondary to the cervical spine.

On October 23, 2015 the DMA reviewed the medical evidence, including Dr. Splitter’s 

second opinion examination report, and found no basis for a left upper extremity impairment rating 

utilizing The Guides Newsletter. He determined that appellant had reached MMI on February 16, 

2015, the date of the impairment examination performed by Dr. Splitter.

By decision dated October 26, 2015, OWCP denied appellant’s schedule award claim. 

On November 4, 2015 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated March 30, 2016, OWCP’s hearing representative affirmed the

October 26, 2015 schedule award denial. Appellant, through counsel, filed an appeal to the Board.

By decision dated April 12, 2017, the Board affirmed OWCP’s March 30, 2016 decision 

denying appellant’s schedule award claim. The Board found that the medical evidence of record 

failed to establish a ratable permanent impairment due to her accepted cervical condition. 

On September 12, 2017 appellant, through counsel, requested reconsideration and 

submitted to OWCP an August 28, 2017 report from Dr. Weiss. In the report Dr. Weiss indicated 

that he had reviewed the DMA’s October 23, 2015 report, reviewed his own report dated 

May 6, 2013, and opined that the DMA relied upon Dr. Splitter’s report finding of no dermatomal 

disturbances. He indicated, however, that Dr. Splitter’s second opinion report was not made 

available for his review and he was uncertain as to how the sensory examination had been 

performed. Dr. Weiss reiterated the findings and opinions from his May 6, 2013 report and 

concluded that he stood by his prior impairment rating of 16 percent permanent impairment of the 

left upper extremity.

By decision dated November 29, 2017, OWCP denied modification of its prior decision. 
4

LEGAL PRECEDENT

The schedule award provision of FECA,5and its implementing federal regulations,

6

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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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

or to the body as a whole.9 Furthermore, the back is specifically excluded from the definition of 

organ under FECA.10 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

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.11 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.12

The claimant has the burden of proof to establish that the condition for which a schedule 

award is sought is causally related to his or her employment.13

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.5(a) (February 2013); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010).

9 See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).

10 See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48 

ECAB 572 (1997).

11 Supra note 8 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

12 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

13 See G.S., supra note 10; Veronica Williams, 56 ECAB 367 (2005).
5

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish a ratable 

permanent impairment of a scheduled member or function of the body. 

Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant 

submitted prior to the issuance of OWCP’s March 30, 2016 decision because the Board considered 

that evidence in its April 12, 2017 decision and found that it was insufficient to establish the claim 

for a schedule award. Findings made in prior Board decisions are res judicata absent any further 

review by OWCP under section 8128 of FECA.14

In support of her request for reconsideration, appellant submitted an August 28, 2017 report 

from Dr. Weiss who merely reiterated the findings and opinions from his May 6, 2013 report and 

concluded that he stood by his prior impairment rating of 16 percent permanent impairment of the 

left upper extremity. The Board finds that Dr. Weiss’ August 28, 2017 report is cumulative and 

repetitive of his May 6, 2013 report. The Board has previously found that he based his permanent 

impairment rating on diagnoses of mild motor strength deficit of the left bicep, severe sensory 

deficit of the left C7 nerve root, and severe sensory deficit of the left C8 nerve root, none of which 

have been accepted as compensable by OWCP. Appellant has not submitted new medical evidence 

from Dr. Weiss, based upon current medical findings, which provides an opinion as to causal 

relationship not already considered and rejected by the Board. 

Appellant has submitted no other current medical evidence in conformance with the sixth 

edition of the A.M.A., Guides, or The Guides Newsletter, addressing the nature and extent of her

permanent impairment of a scheduled member or function of the body. The Board therefore finds 

that she has not met her burden of proof to establish a ratable permanent impairment of a member 

or function of the body. 

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 a ratable 

permanent impairment of a scheduled member or function of the body

 

14 See B.R., Docket No. 17-0294 (issued May 11, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the November 29, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 4, 2019

Washington, DC

Christopher J. Godfrey, 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