United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.J., Appellant

and

U.S. POSTAL SERVICE, PALATINE 

PROCESSING & DISTRIBUTION CENTER, 

Palatine, IL, Employer

__________________________________________

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Docket No. 22-0714

Issued: March 31, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 April 1, 2022 appellant, through counsel, filed a timely appeal from a January 27, 2022 

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 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 May 5, 1994 appellant, then a 38-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained injuries on that date when he was hit by a car while in the 

performance of duty. OWCP accepted the claim for: contusions of multiple sites not elsewhere 

classified; neck sprain; superficial injury of the left hip, thigh, leg, and ankle; spondylosis and 

allied disorders; and brachial neuritis or radiculitis not otherwise specified. 

A magnetic resonance imaging (MRI) scan, obtained on November 19, 2014, showed 

reversal of the normal cervical lordosis, trace retrolisthesis of C2 on C3, C3 on C4, and C5 on C6, 

grade 1 anterolisthesis of C4 on C5, multilevel degenerative disc disease, hypertrophy and facet 

arthrosis of the cervical spine causing stenosis.

Electrodiagnostic testing of the upper extremities performed on January 19, 2016 revealed 

findings consistent with median neuropathies of the wrists bilaterally and chronic radiculitis at C6 

and C7 on the right and C6 on the left. 

A March 10, 2016 MRI scan of the cervical spine showed moderate-to-severe 

spinal/foraminal stenosis, extensive loss of the normal cervical lordosis with spondylolisthesis, 

endplate changes consistent with osteoporotic and degenerative changes, and multilevel 

spondylosis with facet arthrosis. 

On June 4, 2018 Dr. Justin Gent, a Board-certified orthopedic surgeon, found that appellant 

had full strength and intact sensation of the bilateral upper extremities with limited cervical range 

of motion. He diagnosed cervical degenerative disc disease.

In a September 10, 2018 impairment evaluation, Dr. Neil Allen, a Board-certified internist 

and neurologist, discussed appellant’s complaints of neck pain radiating into the right shoulder 

and arm, numbness in the left forearm extending into the fingers, and intermittent right-hand 

numbness. He found full muscle strength on examination of the upper extremities. Refencing The

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

(July/August 2009) (The Guides Newsletter), which is a supplemental publication of the sixth 

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

(A.M.A., Guides),3 Dr. Allen found a grade modifier for functional history (GMFH) of 2 based on 

appellant’s QuickDASH score of 84 and a grade modifier for clinical studies (GMCS) of 4. He 

determined that appellant had two percent impairment on the right at C5 for a moderate sensory 

deficit, which he adjusted to three percent after the application of grade modifiers. Dr. Allen 

further found four percent permanent impairment due to a sensory deficit on the left at C5, which 

did not change after the application of grade modifiers. He opined that appellant had four percent 

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

permanent impairment of the left upper extremity and three percent permanent impairment of the 

right upper extremity.

On November 7, 2018 appellant filed a claim for compensation (Form CA-7)for a schedule 

award. 

On December 7, 2018 OWCP requested that a district medical adviser (DMA) review

Dr. Allen’s impairment rating. It indicated that it had accepted appellant’s claim for multiple 

contusions, neck sprain, a superficial injury of the left hip, leg, and ankle, and brachial neuritis or 

radiculitis. In an accompanying statement of accepted facts (SOAF) of even date, OWCP also 

indicated that it had accepted spondylosis and allied disorders as employment related. 

On December 10, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as a DMA, noted that on June 4, 2018 Dr. Gent had found full motor strength and intact sensation, 

while on September 10, 2018 Dr. Allen had found right and left sensory deficits at C5. He 

recommended OWCP refer appellant for a second opinion examination.

On March 4, 2021 OWCP referred appellant to Dr. Benjamin S. Gozon, III, a Boardcertified physiatrist, for a second opinion examination. It provided Dr. Gozon with a February 26, 

2020 SOAF setting forth the accepted conditions as contusions at multiple sites, neck sprain, left, 

and brachial neuritis/radiculitis not otherwise specified. The SOAF indicated that a physician had 

found that appellant sustained an aggravation of underlying cervical spondylosis as employment 

related, but did not include spondylosis as an accepted condition. 

In a report dated April 5, 2021, Dr. Gozon reviewed appellant’s history of a May 5, 1994 

employment injury and his current complaints of intermittent neck pain and numbness in his third 

to fifth digits with activity. On examination, he found a positive Phalen’s test bilaterally.

Dr. Gozon diagnosed as employment-related resolved cervical sprain/strain and resolved brachial 

neuritis. Referencing The Guides Newsletter, he found mild sensory involvement in the C5 

through T1 dermatomes with 4+/5 manual muscle testing, which he indicated was within normal 

limits. Dr. Gozon related, “[Appellant] belonged to class I grade A with mild sensory deficit and 

mild motor deficit along the C5 through T1 represented dermatomes. Therefore, the total 

impairment rating is 0 [percent] bilaterally.” He found that appellant had reached maximum 

medical improvement (MMI). Dr. Gozon indicated that he had preexisting cervical spondylosis 

unrelated to the accepted employment injury that had progressed such that he had neck and upper 

extremity pain and weakness. He opined that appellant’s current findings were unrelated to his 

original injury, but instead due to cervical spondylosis. Dr. Gozon found that he had zero percent 

permanent impairment of the cervical spine nerves based on the current examination findings.

On May 18, 2021 Dr. Katz opined that appellant had no sensory deficit or motor deficit of 

the spinal nerves bilaterally and thus no impairment. He determined that appellant had reached 

MMI on April 5, 2021.

By decision dated July 12, 2021, OWCP denied appellant’s schedule award claim as the 

medical evidence of record was insufficient to establish a permanent impairment to a member or 

function of the body.
4

On July 20, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In a report dated September 21, 2021, Dr. Carl Graf, a Board-certified orthopedic surgeon, 

found full strength of the left and right upper extremities and normal sensation bilaterally. He 

further found a negative Spurling’s test and Hoffman’s sign bilaterally. Dr. Graff diagnosed 

cervicalgia.

An MRI scan of the cervical spine, obtained on October 7, 2021, revealed findings similar 

to prior studies with slight interval progression of multilevel degenerative changes, slight 

progression of mild-to-moderate spinal stenosis at C2-3 and C4-5, and slight progression of 

bilateral neural foraminal narrowing at C2-3 and of moderate-to-severe bilateral neural foraminal 

narrowing at C7-T1. 

On October 21, 2021 Dr. Graf discussed appellant’s findings of continued neck and arm 

pain, left more than right. He again found full strength and normal sensation of the upper 

extremities bilaterally and diagnosed cervicalgia. 

A telephonic hearing was held on November 12, 2021. 

By decision dated January 27, 2022, OWCP’s hearing representative affirmed the July 12, 

2021 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,4 and its implementing federal regulations,

5 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 way the percentage loss of a member shall be determined. 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 2009.6 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.7

4

Supra note 2.

5

20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March2017); see alsoPart 3 --Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

7 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
5

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF): A Contemporary Model of Disablement.

8

 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers 

based on functional history (GMFH), physical examination (GMPE) and clinical studies (GMCS). 9 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators 

are directed to provide reasons for their impairment choices, including the choices of diagnoses 

from regional grids and calculations of modifier scores.11

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.12 However, a 

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

and/or lower extremities.13 The sixth edition of the A.M.A., Guides provides a specific 

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

designed for situations in which 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 

rating spinal nerve extremity impairment are incorporated in OWCP’s procedures.

14

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.15

ANALYSIS

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

In a December 7, 2018 SOAF, OWCP indicated that it had accepted appellant’s claim for 

multiple contusions, neck sprain, a superficial injury of the left hip, leg, and ankle, brachial neuritis 

or radiculitis, and spondylosis and allied disorders. On March 4, 2021 it referred appellant to

Dr. Gozon for a second opinion examination regarding the extent of his permanent impairment. 

8 A.M.A., Guides(6th ed. 2009), p.3, section 1.3.

9

Id. at 494-531.

10 Id. at 411.

11 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011). 

12 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see C.S., Docket No. 19-0851 (issued November 18, 2019).

13 Supra note 6 at Chapter 2.808.5c(3) (March 2017).

14 Supra note 6 at Chapter 3.700, Exhibit 4 (January 2010); see also M.W., Docket No. 20-2052 (issued May 24, 

2021); C.K., Docket No. 09-2371 (issued August18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).

15 Id. at Chapter 2.808.6f. See also J.T., Docket No. 17-1465 (issued September 25, 2019); C.K., Docket No. 

09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).
6

OWCP provided Dr. Gozon with a SOAF indicating that it had accepted contusions at multiple 

sites, neck sprain, left, and brachial neuritis/radiculitis not otherwise specified. It did not include 

the condition of spondylosis, set forth as accepted by OWCP in its December 7, 2018 SOAF and 

its July 12, 2021 and January 27, 2022 decisions.

In an April 5, 2021 report, Dr. Gozon diagnosed employment-related cervical sprain/strain 

and brachial neuritis and opined that the conditions had resolved. He found that appellant had 

preexisting cervical spondylosis unrelated to the accepted employment injury that caused pain and 

weakness in his neck and upper extremity. Dr. Gozon found a Class 1, Grade A mild sensory 

deficit and Class 1, Grade A mild motion deficit along the C5 through T1 dermatomes, which he 

asserted yielded no impairment.16

OWCP’s procedures and Board precedent dictate that when a DMA, second opinion 

specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete 

or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the 

probative value of the opinion is seriously diminished or negated altogether. 17 OWCP procedures 

specify that the SOAF must include all accepted conditions.18 OWCP failed to provide Dr. Gozon 

with a complete and accurate SOAF setting forth all of the accepted conditions; consequently, his 

report is of little probative value.

19

 

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares the responsibility in the development of the evidence to see that 

justice is done.20 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case. 21 Accordingly, the 

Board finds that the case must be remanded to OWCP.22

On remand OWCP shall clarify the accepted conditions and prepare an updated SOAF. It 

shall then obtain a reasoned opinion from a physician in the appropriate field of medicine regarding 

the extent of appellant’s permanent impairment of the upper extremities. Following this and any 

such further development as deemed necessary, OWCP shall issue a de novo decision.

16 The Board notes that a Class 1 Grade Asensory mild sensory deficit at C5 through T1 yields no impairment but 

that a Class 1,Grade A mild motion deficit yields impairment according to Proposed Table 1 of The Guides Newsletter. 

17 Supra note 6 at Chapter 3.600.3 (October 1990);see also D.P., Docket No. 20-0747 (issued June 2, 2021); S.D., 

Docket No. 19-1924 (issued November 16, 2020).

18 Id. at Chapter 3.600a(4) (October 1990).

19 See J.D., Docket No. 18-1355 (issued August 12, 2019); R.S., Docket No. 18-0023 (issued July 26, 2018).

20 See M.W., supra note 14; L.F., Docket No. 20-0549 (issued January 27, 2021).

21 See M.E., Docket No. 21-1058 (issued March 2, 2022); N.W., Docket No. 21-0653 (issued September 30, 2021).

22 See M.W., supra note 14.
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 27, 2022 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: March 31, 2023

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