United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.W., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cincinnati, OH, 

Employer

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Docket No. 19-1078

Issued: January 9, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

JANICE B. ASKIN, Judge

JURISDICTION

On April 16, 2019 appellant, through counsel, filed a timely appeal from a March 12, 2019 

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 following the March 12, 2019 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 her burden of proof to establish permanent 

impairment of her left upper extremity, warranting a schedule award.

FACTUAL HISTORY

On January 4, 2005 appellant, then a 45-year-old expeditor/clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on January 4, 2015 she injured her neck, arm, and chest when

bending down to pull open a truck door while in the performance of duty. On February 17, 2005 

OWCP accepted this claim, assigned File No. xxxxxx159 for sprain/strain of the neck and brachia 

neuritis or radiculitis.

On June 1, 2009 appellant, filed an occupational disease claim (Form CA-2) alleging that 

she developed cervical disc disease due to factors of her federal employment including throwing 

priority packages, bending over, hanging priority pouches, and other repetitive motions. OWCP 

assigned the claim File No. xxxxxx128. On July 8, 2009 it accepted the claim for aggravation of 

cervical intervertebral disc disorder with myelopathy and aggravation of left brachial neuritis or 

radiculitis. On November 23, 2009 appellant underwent a cervical magnetic resonance imaging 

(MRI) scan which demonstrated mild-to-moderate multilevel disc degeneration with a mild-tomoderate broad-based disc bulge at C4-5 displacing the cord and causing left neural foraminal 

narrowing. On November 15, 2010 she was released to return to full-duty work.4 

On May 19, 2018 appellant filed a schedule award claim (Form CA-7) in File No. 

xxxxxx128 alleging permanent impairment due to her accepted cervical intervertebral disc 

disorder with myelopathy and aggravation of left brachial neuritis or radiculitis. 

In a May 24, 2018 development letter, OWCP advised appellant of the deficiencies of her 

claim and requested medical evidence containing a detailed description of her permanent 

impairment specific to the accepted work-related conditions in accordance with the sixth edition 

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

(A.M.A., Guides),

5

a date of MMI, a final rating of permanent impairment, and a discussion of the 

rationale for calculation of appellant’s claimed permanent impairment of a scheduled member. It 

afforded her 30 days to respond.

In a note dated May 9, 2018, Dr. Rashid M. Khan, an internist, reported that appellant had 

reached MMI on May 17, 2018 due to her accepted cervical conditions.

 

4 On January 5, 2011 appellant filed an occupational disease claim (Form CA-2) alleging that she developed a 

ganglion cyst on her right wrist due to factors of her federal employment including repetitive movements and motions. 

OWCP assigned this claim File No. xxxxxx442. On February 4, 2011 it accepted appellant’s January 5, 2011 claim 

for aggravation of ganglion cyst right wrist and right wrist tendinitis. By decision dated September 13, 2018, OWCP 

granted her a schedule award for two percent permanent impairment of the right upper extremity due to aggravation 

of ganglion cyst right wrist and tendinitis right wrist. On August 31, 2018 it administratively combined File No. 

xxxxxx128, File No. xxxxxx159, File No. xxxxxx442, and File No. xxxxxx306. OWCP designated File No. 

xxxxxx128 as the master file.

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

By decision dated July 30, 2018, OWCP denied appellant’s schedule award claim under 

File No. xxxxxx128. On August 7, 2018 appellant, through counsel, requested an oral hearing 

before an OWCP hearing representative.

In a November 15, 2018 electromyogram, appellant exhibited C5-6 nerve root denervation 

and chronic reinnervation, chronic right C7 nerve root radiculopathy, and mild left median 

neuropathy the wrist or carpal tunnel syndrome.

In a letter dated January 10, 2019, counsel requested referral to Dr. Rohn T. Kennington, a 

Board-certified family practitioner, for an impairment rating regarding appellant’s accepted 

cervical conditions.

A hearing was held on January 8, 2019. Appellant testified that she had continuing medical 

issues with her left arm and wrist. She noted that she had retired from the employing establishment 

on April 30, 2018. Counsel requested an additional 30 days to submit medical evidence of 

permanent impairment of the left upper extremity.

In a letter dated February 28, 2019, counsel again requested referral to Dr. Kennington for 

an impairment rating regarding appellant’s accepted cervical conditions.

By decision dated March 12, 2019, OWCP’s hearing representative affirmed OWCP’s 

July 30, 2018 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing federal regulations7set 

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.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

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

or to the body as a whole.10 Furthermore, the back is specifically excluded from the definition of 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

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

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

3.700.2 and Exhibit 1 (January 2010).

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

354 (2004).
4

organ under FECA.11 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, 

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (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.12 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.13

A claimant has the burden of proof under FECA to establish permanent impairment of a 

scheduled member or function as a result of his or her employment injury entitling him or her to a 

schedule award.14 Before the A.M.A., Guides can be utilized, a description of the impairment 

must be obtained from his or her physician. In obtaining medical evidence required for a schedule 

award, the evaluation made by the attending physician must include a description of the 

impairment including, where applicable, the loss in degrees of active and passive motion of the 

affected member or function, the amount of any atrophy or deformity, decrease in strength or 

disturbance of sensation, or other pertinent descriptions of the impairment. This description must 

be in sufficient detail so that the claims examiner and others reviewing the file will be able to 

clearly visualize the impairment with its resulting restrictions and limitations.15

OWCP’s procedures provide that, if a claimant has not submitted a permanent impairment 

evaluation, it should request a detailed report that includes a discussion of how the impairment 

rating was calculated.16 If the claimant does not provide an impairment evaluation and there is no 

indication of permanent impairment in the medical evidence of file, the claims examiner may 

proceed with a formal denial of the award.17

ANALYSIS

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

impairment of her left upper extremity, warranting a schedule award.

In support of her schedule award claim for permanent impairment of her left upper 

extremity, appellant submitted a note dated May 31, 2018 from Dr. Khan opining that she had 

 

11 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).

12 Supra note 9 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

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

14 M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued December 31, 2018).

15 M.G., id.; A.T., Docket No. 18-0864 (issued October 9, 2018).

16 Supra note 9 at Chapter 2.808.6(a).

17 Id. at Chapter 2.808.6(c).
5

reached MMI in her July 8, 2009 claim for aggravation of cervical intervertebral disc disorder with 

myelopathy, and aggravation of left brachial neuritis or radiculitis. Dr. Khan did not provide a 

diagnosis or an impairment rating. 

Appellant has not provided a medical report describing that her permanent impairment 

resulted from a spinal nerve impairment in sufficient detail so that the claims examiner and others 

reviewing the file would be able to clearly visualize the impairment with its resulting restrictions 

and limitations.18 Although OWCP requested a medical opinion on the extent of appellant’s 

permanent impairment, she did not provide such a rating. The evidence submitted does not 

establish that appellant had a neurologic deficit consistent with radiculopathy, ratable pursuant to 

The Guides Newsletter. As the reports of record do not comport with the A.M.A., Guides or The 

Guides Newsletter, appellant has not submitted medical evidence establishing permanent 

impairment of her left upper extremity due to her accepted employment injuries. The Board thus 

finds that appellant has not met her burden of proof.

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of new exposure, or medical evidence showing a 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 permanent 

impairment of her left upper extremity, warranting a schedule award.

 

18 M.G., supra note 14; B.V., Docket No. 17-0656 (issued March 13, 2018).
6

ORDER

IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 9, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board