United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Wilmington, DE, Employer

__________________________________________

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Docket No. 20-0907

Issued: February 12, 2021

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 20, 2020 appellant, through counsel, 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 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 October 23, 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 greater than six 

percent permanent impairment of her right upper extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board.4 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 October 4, 2007 appellant, then a 46-year-old automation clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed a neck and right shoulder condition due to 

factors of her federal employment including repetitively picking up, pulling, lifting, and carrying 

trays of mail at work. She stopped work on October 27, 2007. OWCP subsequently accepted her 

claim for temporary aggravation of C5-6 disc herniation and right shoulder sprain.

5

 It paid wageloss compensation benefits on the supplemental rolls beginning October 27, 2007. On August 19, 

2011 appellant accepted a full-time, modified-duty job offer as a mail processor.

On September 16, 2014 appellant filed a claim for a schedule award (Form CA-7).

Appellant submitted a June 30, 2014 report by Dr. Arthur Becan, an orthopedic surgeon, 

who reviewed appellant’s medical records and recounted her complaints of cervical pain and stiff 

with radicular pain down her right upper extremity and tingling in her fingers. Upon physical 

examination of appellant’s cervical spine, Dr. Becan noted that sensory examination revealed a 

perceived sensory deficit over the C4, C5, and C6 nerve root distributions involving the right upper 

extremity when compared to the left upper extremity. Semmes-Weinstein monofilament testing 

revealed decreased sensibility at 4.3 mgs on the right and 3.3 mgs on the left. Dr. Becan diagnosed 

chronic cervical sprain, herniated cervical discs at C4-5 and C5-6, bulging cervical discs at C3-4 

and C6-7, right C4, C5, and C6 radiculopathy, chronic post-traumatic subacromial impingement 

syndrome to the right shoulder, and chronic post-traumatic rotator cuff tendinopathy of the right 

shoulder.

Dr. Becan referred to the sixth edition of the American Medical Association, Guides to the 

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

6

and utilized the diagnosis-based 

impairment (DBI) rating method to find that under Table 1 of The Guides Newsletter, Rating Spinal 

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

the class of diagnosis (CDX) for right severe sensory deficit at C5 resulted in a class 1 impairment 

with a default value of four. He assigned a grade modifier for functional history (GMFH) of 2 and 

a grade modifier for clinical studies (GMCS) of 2. Dr. Becan utilized the net adjustment formula 

(GMFH – CDX) + (GMCS – CDX) = (2 – 1) + (2 – 1) = +2, which resulted in a grade E or four 

 

4 Docket No. 16-0847 (issued March 24, 2017).

5 OWCP administratively combined this case with a previous claim under File No. xxxxxx640. Under File No. 

xxxxxx640, OWCP accepted appellant’s traumatic injury claim (Form CA-1) for cervical radiculitis and right 

trapezius strain as causally related to a February 3, 2007 employment incident.

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

percent permanent impairment of the right upper extremity. He also indicated that under Table 1 

of The Guides Newsletter, appellant had severe sensory deficit at C6, which fell under a CDX of 

class 1 impairment with a default value of six. Dr. Becan assigned a GMFH of 2 and a GMCS of 

2. He applied the net adjustment formula, resulting in a net adjustment of +2, which equaled six 

percent permanent impairment of the right upper extremity. Dr. Becan added the percentages for 

a total of 10 percent right upper extremity permanent impairment due to severe sensory deficit at 

the right C5 and C6 nerve roots. For appellant’s right shoulder condition, he referred to Table 15-

5 (Shoulder Regional Grid), page 401, and indicated that under the DBI method for rating 

impairment, the CDX for right shoulder impingement syndrome with residual loss resulted in a 

class 1 impairment with a default value of three. Dr. Becan assigned a GMFH of 1 and a grade 

modifier for physical examination (GMPE) of 1. He applied the net adjustment formula, resulting 

in two percent right upper extremity impairment for right shoulder impingement syndrome. 

Dr. Becan concluded that appellant had a total combined right upper extremity impairment rating 

of 12 percent. He noted a date of maximum medical improvement (MMI) of June 30, 2004.7

OWCP referred appellant, along with a statement of accepted facts (SOAF) and the record, 

to Dr. Robert A. Smith, a Board-certified orthopedic surgeon, for a second opinion examination. 

In an April 27, 2015 report, Dr. Smith utilized the A.M.A., Guides and The Guides Newsletter to 

determine that appellant had a total of eight percent permanent impairment of her right upper 

extremity.8

In a June 8, 2015 report, Dr. Morley Slutsky, a Board-certified preventive and occupational 

medicine physician serving as DMA, disagreed with Dr. Smith’s impairment rating for appellant’s 

right shoulder. He explained that according to the A.M.A., Guides, the DBI method was the 

preferred rating method over ROM. Dr. Slutsky utilized the DBI method and determined that 

under Table 15-5, page 401, appellant had one percent permanent impairment of the right upper 

extremity for the (CDX) of right shoulder sprain. He also indicated that pursuant to Table 1 of 

The Guides Newsletter appellant had two percent right upper extremity permanent impairment due 

to loss of sensory and motor function in the right C5-6 distribution, for a total of three percent 

permanent impairment of the right upper extremity.

9

By decision dated June 25, 2015, OWCP granted appellant a schedule award for three 

percent permanent impairment of the right upper extremity. The period of the award ran for 9.36 

weeks for the period April 27 to July 1, 2015, and was based on the opinion of the DMA.

 

7 OWCP routed Dr. Becan’s June 30, 2014 and the case file to an OWCP district medical adviser (DMA), who 

recommended a second opinion examination. The DMA also noted that the physical examination findings of

Dr. Becan were different from other physicians of record who reported normal upper extremity sensation and motor 

strength.

8 Dr. Smith determined that, pursuant to Table 1 of The Guides Newsletter, appellant had two percent permanent 

impairment due to loss of sensory and motor function in the right C5-6 distribution. He referenced Table 15-34 

(Shoulder Range of Motion), page 475, and indicated that under the range of motion (ROM) method, appellant had 

six percent right upper extremity permanent impairment due to her right shoulder condition.

9 On May 20, 2015 appellant filed a new occupational disease claim under OWCP File No. xxxxxx680 alleging 

that she developed pain on the right side of her neck and shoulder as a result of her repetitive employment duties. 

OWCP accepted this claim for aggravation of preexisting cervical disc disease at C5-6 and right trapezius strain. It 

paid her wage-loss compensation on the supplemental rolls, beginning May 18, 2015.
4

On July 6, 2015 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 15, 2015.

Appellant subsequently submitted additional diagnostic reports. In a September 2, 2015 

neuromusculoskeletal ultrasound procedure report, Dr. Scott Fried, an osteopath Board-certified 

in orthopedic surgery, noted that the brachial plexus showed the nerves were grossly intact. He 

also reported evidence of plexus compression between the anterior and middle scalene consistent 

with plexus compression and thoracic outlet syndrome. An ultrasound of the right radial nerve 

and forearm also showed findings consistent with nerve compression and hypochoic changes. 

Dr. Fried diagnosed aggravation of cervical disc at C5-6, cervical radiculitis, disc space narrowing 

at C4-5 and C5-6 with radiculopathy, radial and median neuropathy on the right, and brachial 

plexopathy and cervical radiculopathy on the right. 

In a November 4, 2015 decision, an OWCP hearing representative affirmed the June 25, 

2015 schedule award decision.

Appellant filed an appeal before the Board. By decision dated March 24, 2017, the Board 

set aside the November 4, 2015 decision.10 The Board found that OWCP had inconsistently 

applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the DBI or ROM 

methodology in assessing the extent of permanent impairment. The Board remanded the case for 

OWCP to issue a de novo decision after development of a consistent method for calculating 

permanent impairment of the upper extremities.

On June 2, 2017 OWCP requested that Dr. Kenechukwu Ugokwe, a Board-certified 

neurological surgeon serving as the DMA, review the enclosed SOAF and medical evidence, and 

determine the extent of appellant’s permanent impairment under the reprinted 2009 sixth edition 

of the A.M.A., Guides. It related that, if the A.M.A., Guides allowed a rating method using both 

the DBI and ROM methods, the impairment should be independently calculated using both 

methods. OWCP advised that three independent ROM measurements must be obtained and the 

greatest ROM measurements should be used to determine the extent of impairment. If the medical 

evidence of record was insufficient to render a rating based on the ROM method, where allowed, 

the DMA was advised to note the medical evidence necessary to complete the ROM rating method 

and render an impairment rating using the DBI method, if possible, given the available evidence. 

In a June 22, 2017 report, Dr. Ugokwe reviewed appellant’s history of injury, including the 

SOAF, and conducted an examination. Utilizing the ROM method for appellant’s right shoulder 

condition, he referred to Table 15-34, page 475, and determined that appellant had three percent 

permanent impairment due to 100 degrees of shoulder flexion, zero percent permanent impairment 

due to 50 degrees of shoulder extension, three percent permanent impairment due to 110 degrees 

of shoulder abduction, and zero percent permanent impairment due to 60 degrees of shoulder 

adduction for a total of six percent permanent impairment. Under the DBI method, Dr. Ugokwe 

referred to Table 15-18, page 429, and determined that appellant had two percent right upper 

extremity permanent impairment because appellant had a C5 nerve injury with only motor 

symptoms. He explained that as the ROM method rendered the higher impairment rating, 

appellant had six percent right upper extremity permanent impairment.

 

10 Supra note 3.
5

By de novo decision dated June 23, 2017, OWCP granted appellant a schedule award for 

an additional three percent right upper extremity permanent impairment, for a total of six percent 

right upper extremity permanent impairment, based on the June 22, 2017 report of the DMA. 

On July 12, 2017 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on November 15, 2017. By decision 

dated February 5, 2018, the hearing representative remanded the case for OWCP to

administratively combine the present claim with appellant’s other claims which also affected 

appellant’s neck and right upper extremity. On remand, OWCP was instructed to update the SOAF 

to include all claims and accepted conditions and to request an impairment rating report from

Dr. Fried, appellant’s treating physician.

On March 5, 2018 OWCP administratively combined File Nos. xxxxxx640 and xxxxxx354

with File No. xxxxxx680, with the latter serving as the master file.

In a March 7, 2018 letter, OWCP requested that Dr. Fried review the updated SOAF11 and 

provide a reasoned medical opinion regarding whether appellant had reached MMI with respect to 

her accepted neck and right upper extremity conditions. It also requested that if he found that 

appellant had reached MMI that he provide an impairment rating in accordance with the A.M.A., 

Guides and The Guides Newsletter.

OWCP received a March 24, 2018 report by Dr. Fried who indicated that a functional 

capacity evaluation (FCE) performed on December 21, 2017 had revealed significantly increased 

symptoms with repetitive activities in the upper extremities and increased symptoms with driving 

simulation activities. 

By de novo decision dated May 23, 2018, OWCP denied appellant’s schedule award claim. 

It found that the medical evidence of record was insufficient to establish that her accepted 

conditions had reached MMI, a requirement for payment of a schedule award.

On May 31, 2018 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review, which was held on November 28, 2018.

Appellant also submitted a March 31, 2014 note by Dr. Pramod K. Yadhati, a Boardcertified anesthesiologist, who reported that as of that date, appellant had reached MMI relative to 

her February 3, 2007 work-related injury.

By decision dated February 12, 2019, the hearing representative vacated the May 23, 2018 

decision and remanded appellant’s schedule award claim for referral to a second opinion examiner.

OWCP referred appellant, along with a SOAF and the medical record, to Dr. Stuart J. 

Gordon, a Board-certified orthopedic surgeon, for a second opinion evaluation in order to 

determine whether she had sustained a ratable permanent impairment due to her accepted cervical 

and right upper extremity conditions under the A.M.A., Guides and The Guides Newsletter. In a 

March 14, 2019 report, Dr. Gordon reviewed appellant’s history and noted that her claims were 

 

11 On March 7, 2018 OWCP issued an updated SOAF, which included all of appellant’s claims and her accepted 

conditions for temporary aggravation of herniated disc at C5-6, right shoulder sprain, cervical radiculopathy, right 

trapezius strain, and aggravation of preexisting cervical disc disease at C5-6.
6

accepted for temporary aggravation of herniated disc at C5-6, right shoulder sprain, cervical 

radiculopathy, and right trapezius strain. He noted appellant’s current complaints of intermittent 

symptoms with respect to her neck and dorsal pain in her right shoulder. Upon examination of 

appellant’s cervical spine, Dr. Gordon observed no focal tenderness and negative Spurling’s test. 

He reported that evaluation of both shoulders revealed no focal tenderness, atrophy, or weakness. 

Dr. Gordon indicated that ROM testing was performed three times and demonstrated 180 degrees 

forward flexion, 90 degrees extension, 90 degrees internal rotation, 90 degrees external rotation, 

180 degrees abduction, and full adduction bilaterally. He diagnosed aggravation of cervical 

spondylosis, status post cervical fusion with right mild sensory upper extremity radiculopathy and 

chronic right shoulder strain.

Dr. Gordon indicated that appellant had reached MMI regarding her neck and right upper 

extremity as of March 14, 2019. Regarding appellant’s cervical spine, he referred to The Guides 

Newsletter and determined that, under Table 1, page 4, the CDX of C6, mild sensory neuropathy 

resulted in a class one impairment with a default value of one. Dr. Gordon assigned a GMFH of 

1, a GMPE of 1, and a GMCS of 1 and calculated that appellant had one percent permanent 

impairment for sensory deficits. He explained that he found no motor findings, which resulted in 

zero percent permanent impairment. Thus, Dr. Gordon reported that appellant had one percent 

right upper extremity permanent impairment with respect to her cervical spine.

Regarding appellant’s right shoulder, Dr. Gordon first utilized the ROM method to 

determine the degree of appellant’s permanent impairment. Referring to Table 15-34 (Shoulder 

Range of Motion), page 475, of the A.M.A., Guides, he indicated that appellant had zero percent 

permanent impairment. Utilizing the DBI method to determine the degree of appellant’s 

permanent impairment, Dr. Gordon referred to Table 15-5 (Shoulder Regional Grid), page 401, he 

indicated that a condition of shoulder pain equated to a CDX of 1 with a default value of one 

percent right upper extremity impairment. He assigned a GMFH of 1, a GMPE of 1, and a GMCS 

of 1, which resulted in no net adjustment for a total of one percent right upper extremity permanent 

impairment. Dr. Gordon explained that because the DBI method resulted in a greater permanent 

impairment than the ROM method, appellant had one percent right upper extremity permanent 

impairment due to her right shoulder condition. He concluded that combining appellant’s one 

percent right upper extremity permanent impairment for her right shoulder and the one percent 

right upper extremity permanent impairment due to sensory deficits of her cervical condition 

resulted in a total of two percent right upper extremity permanent impairment. 

OWCP forwarded the case record to Dr. Herbert White, Jr., a Board-certified occupational 

medicine physician serving as a DMA for review. In a March 31, 2019 report, the DMA noted 

that he agreed with Dr. Gordon’s March 14, 2019 impairment rating of two percent right upper 

extremity permanent impairment. Utilizing the DBI method, he determined that under Table 15-

5, page 401, of the A.M.A., Guides appellant had one percent right upper extremity permanent 

impairment due to a diagnosis of shoulder pain. Utilizing the ROM method, the DMA found that 

under Table 15-34, page 475, appellant had zero percent permanent impairment of the right upper 

extremity. He explained that since the DBI method produced the higher rating of one percent right 

upper extremity permanent impairment, the DBI method must be used. Regarding appellant’s 

cervical condition, the DMA utilized the DBI method, and determined that under The Guides 

Newsletter, Table 1, appellant had one percent right upper extremity permanent impairment due to 

mild sensory impairment at C6. He referred to the Combined Values Chart and concluded that 

appellant had a total of two percent right upper extremity impairment. The DMA reported a date 

of MMI of March 14, 2019.
7

By de novo decision dated April 25, 2019, OWCP denied appellant’s claim for an increased 

schedule award. It accorded the weight of the medical evidence to Dr. Gordon and Dr. White, the 

DMA, who had determined that appellant did not have greater permanent impairment than the six 

percent previously awarded for the right upper extremity. 

On May 2, 2019 appellant, through counsel, requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on August 9, 2019. Counsel asserted 

that Dr. Becan’s June 30, 2014 report reflected a more thorough examination and properly applied 

the A.M.A., Guides to determine appellant’s impairment rating. 

Appellant subsequently submitted a July 24, 2019 addendum report by Dr. Becan who 

noted his disagreement with Dr. Gordon’s March 14, 2019 second opinion report. Dr. Becan

pointed out that although Dr. Gordon reported that motor and sensory examination of appellant’s 

upper extremities were intact, he did not mention which specific muscles were tested nor did he 

use the Semmes-Weinstein Monofilament testing to document sensory deficit. He indicated that 

his June 30, 2014 impairment rating report was based on physical examination that showed 

positive Hawkins impingement testing. Dr. Becan also noted that Semmes-Weinstein 

Monofilament testing had revealed sensory deficit in the right C5 and C6 distribution. He

concluded that he still affirmed his previous impairment rating of 12percent right upper extremity 

impairment.

By decision dated October 23, 2019, the hearing representative affirmed the April 25, 2019 

decision, finding that the weight of the medical evidence rested with the March 14, 2019 second

opinion report of Dr. Gordon.

LEGAL PRECEDENT

The schedule award provisions of FECA12 and its implementing regulations13 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such 

adoption.14 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.15

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.16 Furthermore, the 

 

12 5 U.S.C. § 8107.

13 20 C.F.R. § 10.404.

14 Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB 

139 (2002). 

15 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 3.700.2 and Exhibit 1 (January 2010).

16 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 

354 (2004).
8

back is specifically excluded from the definition of organ under FECA.17 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 

impairment consistent with sixth edition methodology. For peripheral nerve impairments to the 

upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that the 

July/August 2009 edition of The Guides Newsletter is to be applied.18 

In addressing impairment of the upper extremities, the sixth edition of the A.M.A., Guides 

requires identifying the impairment for the CDX, which is then adjusted by grade modifiers based 

on GMFH, GMPE, and GMCS.19 The net adjustment formula is (GMFH - CDX) + (GMPE -

CDX) + (GMCS - CDX).20 Evaluators are directed to provide reasons for their impairment 

choices, including the choices of diagnoses from regional grids and calculations of modifier 

scores.21

The A.M.A., Guides also provide that the ROM impairment is to be used as a stand-alone 

rating for upper extremity impairments when other grids direct its use or when no other diagnosisbased sections are applicable.22

 If ROM is used as a stand-alone approach, the total of motion 

impairment for all units of function must be calculated. All values for the joint are measured and 

added.23 Adjustments for functional history may be made if the evaluator determines that the 

resulting impairment does not adequately reflect functional loss and functional reports are 

determined to be reliable.24

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides: 

“As the [A.M.A.] Guides caution that, if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e. DBI or 

ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] Guides 

identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] Guides 

 

17 See id. at § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

18 Supra note 16 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

19 A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

20 Id. at 411.

21 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

22 A.M.A., Guides 461.

23 Id. at 473.

24 Id. at 474.
9

allow for the use of both the DBI and ROM methods to calculate an impairment 

rating for the diagnosis in question, the method producing the higher rating should 

be used.” (Emphasis in the original.)25

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allows for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

26

ANALYSIS

The Board finds that the case is not in posture for decision as there remains an unresolved 

conflict in the medical opinion evidence regarding whether appellant has greater than six percent 

right upper extremity permanent impairment due to her accepted conditions.27

In support of her schedule award claim, appellant submitted a June 30, 2014 report by her 

treating physician, Dr. Becan, who utilized the DBI-rating method and determined that under 

Table 15-5, page 401, appellant had three percent right upper extremity permanent impairment for 

right shoulder impingement syndrome. With regard to appellant’s cervical condition, Dr. Becan, 

initially found that appellant had 10 percent right upper extremity permanent impairment due to 

severe sensory deficits at the right C5 and C6 nerve root. In his June 30, 2014 report, he noted 

that sensory examination revealed a perceived sensory deficit over the C4, C5, and C6 nerve root 

distributions in the right upper extremity. Dr. Becan noted that, under the DBI rating method and 

Table 1 of The Guides Newsletter, the CDX for right severe sensory deficit at C5 resulted in a class 

1 impairment with a default value of four. He assigned a GMFH of 2 and a GMCS of 2. Dr. Becan 

applied the net adjustment formula, which resulted in four percent right upper extremity permanent 

impairment. He also indicated that appellant’s condition fell under a CDX of class 1 impairment 

due to severe sensory deficit at C6 with a default value of six. Dr. Becan assigned a GMFH of 2 

and a GMCS of 2. He applied the net adjustment formula, which raised the default value to six 

percent right upper extremity permanent impairment. Dr. Becan concluded that appellant had a 

total of 10 percent right upper extremity permanent impairment due to severe sensory deficit at 

right C5 and C6 nerve roots. 

In contrast, Dr. Gordon, an OWCP second opinion examiner, determined in a March 14, 

2019 report, that appellant had one percent right upper extremity permanent impairment under the 

DBI methodology and zero percent right upper extremity permanent impairment under the ROM 

methodology. He concluded that the DBI methodology yielded the greater impairment. In a 

March 31, 2019 report, the DMA noted that he agreed with Dr. Gordon’s March 14, 2019 

impairment rating of one percent right upper extremity permanent impairment rating based upon 

the DBI methodology and zero percent right upper extremity permanent impairment under the 

ROM methodology. He also agreed that the DBI methodology represented the greater right upper 

extremity permanent impairment rating. Dr. Gordon utilized the DBI rating method and referred 

 

25 FECA Bulletin No. 17-06 (May 8, 2017).

26 Id. 

27 See D.D., Docket No. 19-1037 (issued November 6, 2019).
10

to Table 1 of The Guides Newsletter in order to determine that findings of C6 mild sensory 

neuropathy resulted in a class one impairment with a default value of one percent and assigned a 

GMFH of 1, a GMPE of 1, and a GMCS of 1. After applying the net adjustment formula, he 

calculated that appellant had one percent permanent impairment for sensory deficits. 

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician, known as an impartial medical examiner (IME), who shall make an 

examination.28 The Board finds that there is a conflict in medical opinion between Dr. Becan and

Dr. Gordon.

29

 Both physicians provided examination findings and based their impairment ratings 

on the appropriate tables of the A.M.A., Guides and The Guides Newsletter. Consequently, the 

case must be referred to an IME to resolve the above-described conflict in the medical opinion 

evidence between Dr. Becan and Dr. Gordon regarding appellant’s right upper extremity 

permanent impairment due to her accepted conditions.

30

 On remand OWCP shall refer appellant, 

along with the case file and an updated SOAF, to a specialist in the appropriate field of medicine 

for an impartial medical evaluation and report including a rationalized opinion on this issue. After 

this and other such further development as deemed necessary, it shall issue a de novo decision 

regarding appellant’s schedule award claim.

CONCLUSION

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

 

28 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

29 See S.C., Docket No. 18-1450 (issued March 4, 2019).

30 See S.J., Docket No. 19-0623 (issued October 28, 2019); see also B.C., Docket No. 15-0992 (issued 

August 11, 2015).
11

ORDER

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

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

consistent with this decision of the Board.

Issued: February 12, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board