United States Department of Labor

Employees’ Compensation Appeals Board

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D.K., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Brooklyn, NY, Employer

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Docket No. 20-0262

Issued: August 16, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 14, 2019 appellant filed a timely appeal from an October 23, 2019 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish permanent 

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

FACTUAL HISTORY

On November 8, 2013 appellant, then a 34-year-old deputy criminal investigator, filed a 

traumatic injury claim (Form CA-1) alleging that on November 7, 2013 he injured his neck, back,

and shoulder during a motor vehicle accident (MVA) which occurred while driving an employing 

 

1 5 U.S.C. § 8101 et seq.
2

establishment issued vehicle while in the performance of duty. He did not stop work. On 

December 12, 2013 OWCP accepted his claim for neck sprain.

On December 2, 2013 appellant underwent a right shoulder magnetic resonance imaging 

(MRI) scan, which demonstrated a superior labrum anterior and posterior (SLAP) tear, with mild 

acromioclavicular (AC) joint osteoarthrosis, and mild supraspinatus tendinosis.

In November 13 and December 23, 2013 notes, Dr. Christopher Kyriakdes, an osteopath 

and Board-certified physiatrist, diagnosed lumbosacral derangement, neck sprain, internal 

derangement of the right knee, and derangement of the right shoulder joint.

On January 6, 2014 appellant returned to full-time, light-duty work and then transitioned 

to full duty on January 31, 2014.

On January 14, 2014 Dr. Jason R. Baynes, a Board-certified orthopedic surgeon, noted 

appellant’s history of MVA and cervical, thoracic, lumbar, shoulder, and right knee injuries. He

diagnosed traumatic injury to right knee and right shoulder, including SLAP tear. Dr. Baynes

recommended that appellant return to full duty.

On May 30, 2018 appellant filed a schedule award claim (Form CA-7). In support of this 

claim, he provided a December 18, 2017 report from Dr. David Weiss, an osteopath. Dr. Weiss 

recounted appellant’s history of injury, beginning on March 18, 2010, when he injured his left 

knee. He noted appellant’s November 2013 MVA and right shoulder injury. On physical 

examination Dr. Weiss found that appellant had normal gait, but a peripatellar effusion of the left 

knee and three measurements of flexion and extension from 0 to 140 degrees. He observed 4+/5 

strength of the left quadriceps and indicated that appellant’s right shoulder range of motion 

revealed forward flexion of 170 degrees, abduction of 170 degrees, cross-over adduction of 65 

degrees and 90 degrees of external rotation. Dr. Weiss found normal muscle strength in the upper 

extremities. He diagnosed chronic post-traumatic patellofemoral pain syndrome of the left knee, 

partial thickness tear of the patellar tendon of the left knee with residual chronic patellar tendinitis, 

SLAP lesion of the right shoulder, post-traumatic impingement syndrome of the right shoulder, 

and aggravation of preexisting AC joint arthropathy. Dr. Weiss applied the sixth edition of the 

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

Guides)

2

and found that, utilizing the range of motion (ROM) method, appellant had three percent 

permanent impairment of the right shoulder due to loss of flexion or three percent permanent 

impairment of the right shoulder utilizing the diagnosis-based impairment (DBI) method for right 

shoulder labral tear in accordance with Table 15-5, page 404 of the A.M.A., Guides. With regard 

to appellant’s left lower extremity, he found one percent permanent impairment utilizing the DBI 

method due to left patellar tendon tear in accordance with Table 16-4, page 512 of the A.M.A., 

Guides. Applying a grade modifier for physical examination (GMPE) of 2 in accordance with 

Table 16-7, page 517 of the A.M.A., Guides, and grade modifier for functional history (GMFH) 

of 1 in accordance with Table 16-6, page 516 of the A.M.A., Guides to the net adjustment formula, 

resulted in a net adjustment of one or two percent permanent impairment of the left lower 

 

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

extremity. Dr. Weiss found that appellant had reached maximum medical improvement (MMI) 

on December 18, 2017.

In a statement of accepted facts (SOAF) dated October 2, 2018, OWCP noted that the 

November 7, 2013 employment injury was accepted for neck sprain only. It further noted that,

under OWCP File No. xxxxxx233, appellant’s claim was accepted for right knee abrasion, while 

the conditions of partial thickness tear of the patellar tendon of the left knee, glenoid labral tear of 

the right shoulder, post-traumatic impingement syndrome of the right shoulder, aggravation of 

preexisting quiescent AC joint arthropathy, chondromalacia of the patellofemoral area, left knee 

patellar tendon tear, post-traumatic left knee bursitis, and tendinitis were denied.

On January 23, 2019 OWCP referred appellant and the case record, along with a SOAF, to

Dr. Morley Slutsky, Board-certified in occupational medicine, serving as an OWCP district 

medical adviser (DMA), for review for schedule award purposes. In his February 7, 2019 report,

Dr. Slutsky noted that appellant’s claim had been accepted for neck sprain, and he reviewed

Dr. Weiss’ December 18, 2017 report. He noted that appellant did not have upper extremity 

sensory or motor deficits related to his accepted neck sprain. Dr. Slutsky found that appellant had 

three percent permanent impairment of his right shoulder based on either loss of ROM or labral 

tear.

On February 19, 2019 OWCP requested a supplemental report from the DMA, noting that 

the condition of labral tear right shoulder had not been accepted as employment related. It 

provided an updated SOAF.

In a February 28, 2019 report, Dr. Slutsky found that appellant had no upper extremity 

sensory or motor deficits related to his neck sprain and that there was no basis for an upper 

extremity impairment rating using The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter).

OWCP found that there was a conflict of medical opinion evidence between Drs. Slutsky

and Weiss regarding whether appellant sustained permanent upper extremity impairments due to 

his accepted November 7, 2013 injury. In a letter dated March 12, 2019, OWCP referred appellant, 

a SOAF, and a series of questions for an impartial medical examination with Dr. Dean Carlson, a 

Board-certified orthopedic surgeon.

In his April 11, 2019 report, Dr. Carlson, reviewed the medical evidence and performed a 

physical examination. He reviewed appellant’s December 2, 2013 right shoulder MRI scan and 

diagnosed SLAP tear right shoulder due to job injury of November 7, 2013 and chronic patellar 

tendinitis left knee due to job injury of March 18, 2010. Dr. Carlson provided impairment ratings 

in accordance with the A.M.A., Guides based on these conditions.

On May 1, 2019 OWCP requested a supplemental report from Dr. Carlson, noting that he 

had submitted a second opinion report, and asking that he explain how appellant’s permanent 

impairment was causally related to his accepted condition of neck sprain.

In a May 3, 2019 report, Dr. Carlson clarified that appellant’s right shoulder impairment 

was a right upper extremity impairment and that his left knee patellar tendinitis was a left lower 

extremity impairment.
4

On May 17, 2019 OWCP requested further clarification from Dr. Carlson emphasizing that 

the only accepted condition was neck sprain and that any upper extremity conditions should be 

rated based solely on impairments from this condition. On May 29, 2019 it further clarified that 

the conditions of partial left patellar tendon tear, bursitis of the left knee, and chondromalacia 

patella of the left knee, and left knee tendinitis had been accepted under OWCP File No. 

xxxxxx233.

In a May 30 2019 report, Dr. Carlson found that appellant had two percent permanent 

impairment of his left lower extremity based on chronic patellar tendinitis.

On June 5, 2019 OWCP again asked that Dr. Carlson address any permanent impairment 

of the upper extremities resulted from appellant’s accepted condition of neck sprain. It again noted 

that SLAP tear of the right shoulder was not an accepted employment-related condition.

In a report dated May 20, 2019, Dr. Carlson diagnosed chronic cervical strain, resolved, 

and reported that appellant had no radicular signs or symptoms. He concluded that appellant had 

no impairment rating as his right shoulder pain was not due to a radicular cause.

By decision dated June 7, 2019, OWCP denied appellant’s schedule award claim, finding 

that the evidence of record was insufficient to establish that he sustained permanent impairment to 

a scheduled member or body part due to his November 7, 2013 employment injury.

On July 26, 2019 appellant requested reconsideration. He argued that OWCP should 

expand its acceptance of his claim to include SLAP tear of his right shoulder, as well as cervical 

derangement, lumbar derangement, and internal derangement of the right knee. 

In an August 8, 2019 development letter, OWCP requested that appellant provide 

additional medical reports from Dr. Weiss addressing his claim for permanent impairment. It 

afford him 30 days for a response.

On August 23, 2018 appellant clarified his request for reconsideration was based on his 

belief that if OWCP expanded his claim to include additional diagnosed conditions, then he would 

be entitled to a schedule award.

By decision dated October 23, 2019, OWCP denied modification of the schedule award 

decision. It did not address appellant’s request for expansion of his claim to include additional 

upper and lower extremity conditions.

LEGAL PRECEDENT 

The schedule award provisions of FECA,3and its implementing federal regulation,4set 

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 loss of a member shall be determined. 

 

3 Supra note 1.

4 20 C.F.R. § 10.404.
5

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 2009.5 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.6

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.7 OWCP’s procedures provide 

that, to support a schedule award, the file must contain competent medical evidence, which shows 

that the impairment has reached a permanent and fixed state and indicates the date on which this 

occurred, describes the impairment in sufficient detail so that it can be visualized on review, and 

computes the percentage of impairment in accordance with the A.M.A., Guides.

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’s 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

 

5 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 Awards and Permanent Disability Claims,

Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

6 K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

7 M.G., Docket No. 19-1627 (issued April 17, 2020); Tammy L. Meehan, 53 ECAB 229 (2001).

8 Supra note 5, B.J., Docket No. 19-0960 (issued October 7, 2019).

9 K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 

ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

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

572 (1997).

11 Federal (FECA) Procedure Manual, supra note 5 at Chapter 3.700 (January 2010). The Guides Newsletter is 

included as Exhibit 4.

12 E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
6

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 federal employment.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish permanent 

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

There is no medical evidence supporting that appellant has any permanent impairment as 

a result of his accepted condition of neck sprain. Neither Dr. Weiss, Dr. Slutsky, nor Dr. Carlson

opined that he had permanent impairment of his upper extremities as a result of his accepted 

employment injury. Further, there are no medical reports, which provide an assessment of his 

permanent impairment, pursuant to The Guides Newsletter, establishing ratable permanent 

impairment of a scheduled member or function of the body.14

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.15

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish permanent 

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

 

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

14 V.J., Docket No. 19-1789 (issued April 8, 2020); C.D., Docket No. 16-1489 (issued April 12, 2017).

15 The Board notes that OWCP has not issued a final decision addressing appellant’s request to expand the accepted 

conditions resulting from his November 7, 2013 employment injury. As OWCP has not issued a final decision, the 

Board may not address this issue on appeal. 20 C.F.R § 501.2(c).
7

ORDER

IT IS HEREBY ORDERED THAT the October 23, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 16, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board