United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.D., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONS 

COMPLEX CARSWELL, Fort Worth, TX, 

Employer 

__________________________________________ 

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Docket No. 15-1111 

Issued: December 7, 2015 

Appearances: Case Submitted on the Record

Edward L. Daniel, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 20, 2015 appellant, through her representative, filed a timely appeal from a 

March 10, 2015 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 established that she sustained more than five percent 

impairment to her left upper extremity and more than five percent to her right upper extremity, 

for which she has received a schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 4, 2009 appellant, then a 44-year-old food service supervisor, filed an 

occupational disease claim (Form CA-2) alleging that she sustained upper extremity conditions 

due to factors of her federal employment. OWCP initially accepted the claim for right carpal 

tunnel syndrome and right median nerve lesions. It subsequently amended the accepted 

conditions to include bilateral carpal tunnel syndrome; bilateral median nerve lesions, bilateral 

enthesopathy of the wrist and carpus; bilateral trigger finger (acquired); sprain of neck; brachial 

neuritis or radiculitis; bilateral injury to median nerve; bilateral localized primary osteoarthritis, 

forearm; bilateral calcifying tendinitis of shoulder; bilateral localized primary osteoarthritis, 

shoulder region; bilateral sprain of shoulder and upper arm, superior glenoid, labrum lesion; 

bilateral medial epicondylitis; and bilateral olecranon bursitis. The record does not indicate that 

appellant stopped work. 

Under OWCP file number xxxxxx195, date of injury May 4, 2009, OWCP accepted the 

conditions of closed fracture of right phalange and right carpal tunnel syndrome when appellant 

slammed a door on her right index finger. This claim was administratively combined with the 

current claim. 

On April 26, 2013 appellant filed a claim for a schedule award. In a January 8, 2013 

report, Dr. John W. Ellis, a family practitioner, noted the history of her work injuries and his 

review of the medical records. He set forth findings on examination and diagnosed the following 

conditions: For diagnoses due to OWCP file number xxxxxx195, Dr. Ellis found fracture of 

right index finger distal interphalangeal (DIP) joint, right carpal tunnel syndrome, and organic 

depression. For diagnoses due to OWCP file number xxxxxx335, he found: bilateral wrist 

tendinitis with carpal tunnel syndrome, bilateral triggering of the thumbs, bilateral medial 

epicondylitis, bilateral olecranon bursitis, bilateral cubital tunnel syndrome, bilateral radial 

tunnel syndrome, bilateral traumatic arthritis, tendinitis and osteoarthritis of the shoulders, 

bilateral reflex spasm of the neck and shoulder girdles causing bilateral brachial plexus 

impingement and neuritis. Dr. Ellis opined that all diagnoses were aggravated and/or caused by 

appellant’s employment factors and work duties and provided medical rationale for his opinion. 

He opined maximum medical improvement was reached January 8, 2013 and that she remained 

temporarily totally disabled as a result of her different surgeries. Dr. Ellis noted that appellant 

had undergone a right carpal tunnel release on March 23, 2010, left carpal tunnel release on 

September 21, 2010, right thumb release of stenosing tenosynovitis and synovectomy of the 

flexor pollicis longus on January 5, 2011, and a second right carpal tunnel surgery with 

decompression of the median nerve on June 28, 2011. 

Under the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment2

 (hereinafter A.M.A., Guides), Dr. Ellis opined that under master file 

number xxxxxx335, appellant had the following impairments: For the right upper extremity, 

diagnosis-based impairments were 20 percent and peripheral nerve impairments were 15 percent, 

for a total combined impairment of 32 percent. For the left upper extremity, diagnosis based 

impairments were 15 percent and peripheral nerve impairments were 15 percent, for a total 

 2

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

combined impairment of 28 percent. Impairment worksheets which set forth the examination 

findings and the methodologies used to compute the impairment ratings were provided. 

In a July 3, 2013 report, an OWCP medical adviser under OWCP file number 

xxxxxx195, reviewed a statement of accepted facts and Dr. Ellis’ impairment evaluation for a 

schedule award of the upper extremities. He noted that several electromyogram (EMG) and 

nerve conduction velocity (NCV) reports showed variable interpretations as to the presence of 

carpal tunnel syndrome, but none demonstrated ulnar nerve entrapment or revealed a motor 

block. The medical adviser noted that Dr. Ellis’ report was of concern for several reasons, 

including his characterization of index finger impairment as an upper extremity impairment, the 

inclusion of diagnoses that were not validated by the record, multiple diagnoses not included in 

the accepted conditions, and questionable classification of the EMG/NCV studies. Because of 

those concerns, he recommended that OWCP obtain an impairment evaluation from Boardcertified physician familiar with the sixth edition of the A.M.A., Guides and OWCP procedures. 

On July 19, 2013 appellant filed another Form CA-7 requesting a schedule award. 

In a September 3, 2013 report, Dr. James E. Butler, a Board-certified orthopedic surgeon 

and OWCP referral physician, noted the history of the work injuries, reviewed the statement of 

accepted facts and appellant’s medical record, and set forth findings examination. He diagnosed 

cervical degenerative disc disease with C6 radiculopathy by EMG, clinically normal; bilateral 

shoulder sprain/strain resolved, bilateral medial epicondylitis, resolved, bilateral carpal tunnel 

syndrome, operated, stable; right thumb trigger finger, operated, resolved; and depression 

disorder. Dr. Butler opined that appellant reached maximum medical improvement on 

January 8, 2013. He found no limitation in range of motion of the right index finger, right 

thumb, right elbow, right wrist, right shoulder, left elbow, left wrist and left shoulder and 

provided range of motion values. Dr. Butler further noted that on examination strength testing 

was essentially normal and no atrophy seen. There was some mild tenderness noted on bilateral 

wrists and hands. Shoulders and elbows were nontender. There was some mildly decreased 

sensation reported in the bilateral median nerves with no ankyloses. Under the sixth edition of 

the A.M.A., Guides, Dr. Butler opined that appellant had a total of five percent right upper 

extremity impairment and a total of five percent left upper extremity impairment. 

For the right upper extremity, the following calculations were provided: For right thumb 

trigger finger, under Table 15-2, page 392, this was class 0 with no residual findings. Thus, zero 

percent impairment was assigned for the right thumb injury. For right carpal tunnel syndrome, 

under Table 15-23, page 449, clinical study findings were grade 1, history findings were grade 2 

with significant intermittent symptoms, and physical findings were grade 2 with mildly 

decreased sensation. The grade modifier total was 5 and averaged 1.66. Therefore, the grade 2 

was selected. The QuickDASH score was 48, so the functional scale was moderate with no 

modification needed. Thus, appellant was found to have five percent right upper extremity 

impairment. For right elbow medial epicondylitis, under Table 15-4, page 399, class 0 was 

selected as there were no significant objective abnormal findings. Thus, Dr. Butler found zero 

percent impairment was assigned for right upper extremity impairment of the right elbow injury. 

For right shoulder sprain/strain, a class 0 was given based on Table 15-5, page 401 as there were 

no significant objective abnormal findings of muscle or tendon injury. Thus, zero percent 

impairment was assigned for the right shoulder injury. Under the Combined Values Chart, 
4

Dr. Butler combined five percent (right wrist) with zero percent (right thumb, right elbow, and 

right shoulder) and found appellant had a total five percent right upper extremity impairment 

rating. 

For the left upper extremity, the following calculations were provided: For left carpal 

tunnel syndrome: under Table 15-23, page 449, grade 1 was provided for clinical study findings; 

grade 2 was provided for history findings with significant intermittent symptoms; and grade 2 

physical findings were provided for mildly decreased sensation. The grade modifier total was 5, 

with an average of 1.66. Therefore, grade 2 was selected. The QuickDASH score was 48, so the 

functional scale was moderate with no modifications needed. Therefore, appellant was assigned 

five percent left upper extremity impairment. For the left elbow medial epicondylitis, under 

Table 15-4, page 399, class 0 was provided as there was no significant objective abnormal 

findings. Thus, zero percent impairment provided for left elbow injury. For left shoulder 

sprain/strain, under Table 15-5, page 401, class 0 was provided as there were no significant 

objective abnormal finding of muscle or tendon injury. Thus, zero percent impairment was 

assigned for the left shoulder injury. Under the Combined Values Chart, combining five percent 

(left wrist) with zero percent (left elbow and left shoulder), resulted in a five percent total left 

upper extremity impairment rating. 

On October 18, 2013 an OWCP medical adviser reviewed the case record in order to 

assess the date of maximum medical improvement, functional loss of use, and percentage of 

impairment under the sixth edition of the A.M.A., Guides. He noted that on January 8, 2013 

Dr. Ellis submitted an impairment evaluation for 32 percent right upper extremity and 28 percent 

left upper extremity impairment under various conditions. The medical adviser noted that, under 

file number xxxxxx195, another medical advisor had reviewed Dr. Ellis’ report on July 3, 2013 

and found it was not probative and had recommended a second opinion impairment evaluation, 

which Dr. Butler had performed on September 3, 2013. Using Dr. Butler’s clinical assessments 

under the A.M.A., Guides, he opined that the date of maximum medical improvement was 

January 8, 2013 for both upper extremities and concurred with Dr. Butler’s findings of five 

percent right upper extremity impairment and five percent left upper extremity impairment as 

proper under the A.M.A., Guides. 

By decision dated March 4, 2014, OWCP granted appellant a schedule award for five 

percent right upper extremity impairment and five percent left upper extremity impairment. The 

award ran for 31.2 weeks of compensation for the period January 8 to August 14, 2013. 

On July 30, 2014 OWCP received appellant’s representative’s request for 

reconsideration. In his July 25, 2014 letter, the representative noted the concerns of the medical 

adviser who reviewed Dr. Ellis’ January 8, 2013 examination3

 and that appellant was directed to 

a second opinion examination a result of those concerns. He noted that based on Dr. Butler’s 

second opinion assessment and the second medical adviser’s agreement with Dr. Butler’s 

assessment, a schedule award was issued. The representative contended that a conflict of 

medical opinion existed between Dr. Ellis and the first OWCP medical adviser, requiring a 

 3

 Appellant’s representative noted that the original medical advisers had concerns over Dr. Ellis’ characterization 

of the index finger impairment as upper extremity impairment, inclusion of multiple diagnoses that were not 

included in the accepted conditions, and questionable classification of the EMG/NCV studies. 
5

referral for an impartial medical examination. He also submitted a new report from Dr. Ellis 

dated June 5, 2014. The representative requested that a medical adviser review the new report 

and, if the medical adviser disagreed with the report, then appellant should be referred for an 

impartial medical examination. 

In a June 5, 2014 report, Dr. Ellis reported on the history of injuries, noted his review of 

medical records, and presented findings examination. He reported diagnoses due to OWCP file 

number xxxxx195 were fracture of the right index finger DIP joint, right carpal tunnel syndrome, 

and organic depression. Diagnoses due to OWCP file number xxxxx335 were bilateral wrist 

tendinitis with carpal tunnel syndrome; bilateral triggering of the thumbs; bilateral medial 

epicondylitis; bilateral olecranon bursitis; bilateral cubital tunnel syndrome; bilateral radial 

tunnel syndrome, bilateral traumatic arthritis, tendinitis and osteoarthritis of the shoulders; 

bilateral reflex spasm of the neck and shoulder girdles causing bilateral brachial plexus 

impingement and neuritis. Dr. Ellis opined that appellant reached maximum medical 

improvement on September 3, 2013 when she was examined by Dr. Butler for a second opinion. 

Using the sixth edition of the A.M.A., Guides, he opined that she had a total combined 

impairment of 18 percent for the right upper extremity and total combined impairment of 17 

percent of the left upper extremity. These were comprised of diagnosed-based and peripheral 

nerve impairments, for which Dr. Ellis cited to sections of the A.M.A., Guides and set forth his 

impairment methodology and calculations. 

Appellant submitted several letters inquiring about the status of his reconsideration 

request. 

By decision dated March 10, 2015, OWCP denied modification of its March 4, 2014 

decision. It found that Dr. Ellis’ reports were not probative and although additional evidence 

was submitted for consideration, Dr. Ellis had not provided sufficient rationalization for his 

findings or applied the A.M.A., Guides correctly. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 and its implementing federal regulations5 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.6

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). 

For upper and lower extremity impairments, the evaluator identifies the impairment Class of 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 
6

Diagnosis (CDX), which is then adjusted by grade modifiers based on Functional History 

(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7 Evaluators are directed to 

provide reasons for their impairment rating choices, including the choices of diagnoses from 

regional grids and calculations of modifier scores.8 

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table 

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text in 

section 15.4f of the A.M.A., Guides.

9

 In Table 15-23, grade modifiers levels (ranging from 0 to 

4) are described for the categories test findings, history, and physical findings. The grade 

modifier levels are averaged to arrive at the appropriate overall grade modifier level and to 

identify a default rating value. The default rating value may be modified up or down by one 

percent based on functional scale, an assessment of impact on daily living activities.10 

ANALYSIS 

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

Appellant was granted a schedule award for five percent permanent impairment of the 

right upper extremity, and five percent permanent impairment of the left upper extremity. The 

schedule award was based on the September 3, 2013 report of Dr. Butler, OWCP’s second 

opinion physician. Dr. Butler examined appellant and reviewed a statement of accepted facts 

along with the medical record. He provided extensive findings examination and diagnosed 

cervical degenerative disc disease with C6 radiculopathy by EMG, clinically normal; bilateral 

shoulder sprain/strain resolved, bilateral medial epicondylitis, resolved, bilateral carpal tunnel 

syndrome, operated, stable; right thumb trigger finger, operated, resolved; and depression 

disorder. Dr. Butler opined that appellant reached maximum medical improvement on 

January 8, 2013. Under the sixth edition of the A.M.A., Guides, he opined that she had five 

percent right upper extremity impairment and five percent left upper extremity impairment. For 

the right upper extremity, the abnormal findings were based on right carpal tunnel syndrome, 

which Dr. Butler evaluated under Table 15-23, page 449. Test findings yielded grade modifier 

of 1 and grade modifiers of 2 were assigned to history and physical findings, for a total grade 

modifier of 5 and average 1.66. Dr. Butler noted that appellant had a QuickDASH of 48, which 

was moderate, so no modification was needed. He concluded that, based on these findings, she 

had an average grade modifier of 2, which had a default value of five percent impairment. Under 

the Combined Values Chart, Dr. Butler combined five percent (right wrist) with zero percent 

(right thumb, right elbow, and right shoulder) and found appellant had total five percent right 

upper extremity impairment rating. 

 7 R.Z., Docket No. 10-1915 (issued May 19, 2011). 

8 J.W., Docket No. 11-289 (issued September 12, 2011). 

9

 A.M.A., Guides 433-50. 

10 Id. at 448-50. 
7

For the left upper extremity, Dr. Butler provided the following calculations: For left 

carpal tunnel syndrome: under Table 15-23, page 449, grade 1 was provided for clinical study 

findings; grade 2 was provided for history with significant intermittent symptoms; and grade 2 

physical findings was provided for mildly decreased sensation. The grade modifier total was 5, 

with 1.66 average. Dr. Butler selected a grade 2, which had a default value of five percent, and 

noted no modifications were needed as the QuickDASH score of 48, was moderate and did not 

require modifications needed. Therefore, appellant has five percent left upper extremity 

impairment rating. Dr. Butler concluded that her other left upper extremity diagnoses yielded 

normal findings and zero percent impairment. 

On October 18, 2013 the medical adviser reviewed the medical record including 

Dr. Butler’s report. He advised that maximum medical improvement was obtained January 8, 

2013, the date that Dr. Ellis examined appellant. The medical adviser agreed with Dr. Butler’s 

assessment under the various tables cited in the A.M.A., Guides and in Dr. Butler’s impairment 

calculations for the upper extremities. 

Appellant had initially submitted Dr. Ellis’ January 8, 2013 report wherein he concluded 

that appellant had 32 percent impairment to the right upper extremity and 28 percent impairment 

to the left upper extremity, the medical adviser reviewed this report and noted numerous areas of 

concern. These pertained to Dr. Ellis’ characterization of the index finder impairment as upper 

extremity impairment, the inclusion of diagnoses that were not validated by the record, multiple 

diagnoses not included as accepted conditions and questionable classification of the EMG/NCV 

studies. 

In his July 25, 2014 request for reconsideration, appellant submitted a June 5, 2014 report 

from Dr. Ellis, which addressed the concerns raised by the prior review of his January 8, 2013 

report by the OWCP medical adviser. In his June 5, 2014 report, Dr. Ellis reported examination 

findings, opined that appellant had an increased impairment over the five percent left upper 

extremity and five percent right upper extremity impairment awarded, and explained his 

methodology for impairment calculation under the A.M.A., Guides. He noted in detail how he 

calculated her impairments under different tables of the A.M.A., Guides. OWCP did not refer 

this June 5, 2014 report for further review by an OWCP medical adviser, but denied modification 

of the schedule award, with a vague finding that this report did not provide sufficient rationale 

and did not apply the A.M.A., Guides correctly. The Board finds, therefore, that it erroneously 

denied modification of appellant’s request for reconsideration without having this report 

reviewed by an OWCP medical adviser, or without requesting that Dr. Ellis address further 

information it believed was missing from his June 5, 2014 report.11 On remand OWCP shall 

provide Dr. Ellis’ July 25, 2014 to an OWCP medical adviser for a full and proper review as 

discussed above.

Proceedings under FECA are not adversarial in nature, nor was OWCP a disinterested 

arbiter. While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

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

Chapter 2.808.6(f)(2)(c) (February 2013). 
8

justice is done. Accordingly, once OWCP undertakes to develop the medical evidence further, it 

has the responsibility to do so in the proper manner. 

On remand, OWCP should further develop the medical evidence pursuant to this decision 

and issue an appropriate decision regarding her request for an increased schedule award. 

CONCLUSION 

The Board finds that the case is not in posture. 

ORDER 

IT IS HEREBY ORDERED THAT the March 10, 2015 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: December 7, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board