United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Palatine, IL, Employer 

__________________________________________ 

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Docket No. 14-1930 

Issued: January 14, 2015 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 3, 2014 appellant filed a timely appeal from the July 29, 2014 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 met her burden of proof to establish more than an eight 

percent permanent impairment of her left arm, for which she received schedule awards. 

FACTUAL HISTORY 

In May 2011 OWCP accepted that appellant, then a 53-year-old mail clerk, sustained left 

cubital tunnel syndrome and left de Quervains’s tenosynovitis due to performing her repetitive 

work duties. It later expanded the accepted conditions to include left radial styloid tenosynovitis, 

 1

 5 U.S.C. §§ 8101-8193. 
2

left ulnar nerve lesion, left-sided rheumatism, nontraumatic compartment syndrome of the left 

arm, and rupture of extensor tendons of the left hand and wrist. On September 2, 2011 appellant 

underwent OWCP-authorized left ulnar nerve transposition surgery. 

OWCP had previously accepted, under a separate claim file, that appellant sustained 

injuries due to a lifting incident on September 24, 2001 including neck, shoulder, and upper arm 

sprains, displacement of cervical intervertebral disc and cervical spondylosis without 

myelopathy, and brachial neuritis/radiculitis. In connection with these injuries, it granted her a 

schedule award on March 14, 2006 for a five percent permanent impairment in each arm. 

In a December 20, 2011 report, Dr. Howard Freedberg, an attending Board-certified 

orthopedic surgeon, indicated that appellant had reached maximum medical improvement with 

respect to her left arm condition. Appellant reported that her left elbow was fine, that the range 

of motion for her left arm was good, and that she had no pain or issues with her left arm. 

Dr. Freedberg reported his physical examination findings, noting full and painless range of 

motion in her left arm at the shoulder, elbow, and wrist. He noted that appellant had 5/5 grip 

strength in her left hand. 

On March 22, 2012 appellant filed a claim for an additional schedule award due to her 

accepted work injuries. 

In a September 17, 2012 decision, OWCP denied appellant’s claim as she had not 

submitted medical evidence establishing additional impairment. 

In an October 22, 2012 report, Dr. Neil Allen, an attending Board-certified internist and 

neurologist, described appellant’s work-related conditions and history of medical treatment. He 

reported appellant’s current symptoms and his physical examination findings. Dr. Allen applied 

a range of motion rating method for appellant’s left arm by applying Table 15-30 (thumb 

motion), Table 15-31 (digit motion), Table 15-32 (wrist motion), and Table 15-33 (elbow 

motion) of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (6th ed. 2009). He indicated that, under Table 15-2 through Table 15-5 

pertaining to the upper extremities, certain diagnosis-based conditions contain an asterisk (*) 

which indicate that the range of motion method may be used as an alternative stand-alone rating 

method. Dr. Allen concluded that appellant had 46 percent permanent impairment of her left 

arm based on the range of motion rating method. 

On February 4, 2013 an OWCP hearing representative set aside OWCP’s September 17, 

2012 decision and remanded the case for further development and a new decision after proper 

consideration of the October 22, 2012 impairment evaluation by Dr. Allen. 

On remand, OWCP further developed the evidence of record. In a June 3, 2013 report, 

Dr. David Garelick, a Board-certified orthopedic surgeon serving as an OWCP medical adviser, 

discussed Dr. Freedberg’s physical examination findings and Dr. Allen’s impairment rating. He 

posited that Dr. Allen’s evaluation was improperly based on the range of motion rating method. 

Dr. Garelick concluded that, under the sixth edition of the A.M.A., Guides, appellant had three 
3

percent left arm impairment rating based on a diagnosis-based rating method for cubital tunnel 

syndrome. He stated: 

“According to Dr. Freedberg’s note dated December 20, 2011, [appellant] has 

done well following her left elbow and wrist surgery. In fact, as of that date, she 

denied numbness, tingling, or pain and had “no issues” in the elbow. However, 

she did have some residual numbness in the ulnar innervated digits. Physical 

examination demonstrated full LUE [left upper extremity] ROM [range of 

motion]. The elbow flexion test no longer reproduced her symptoms. Sensation 

was intact to light touch. There was no mention of any residual symptoms related 

to the left wrist. 

“According to [T]able 15-23, p. 449 of the A.M.A., Guides, a [g]rade 1 modifier 

is awarded for the test findings which demonstrated a mild ulnar neuropathy at the 

level of the elbow. The mild intermittent symptoms and the normal physical 

examination would also qualify for a [g]rade 1 modifier. Given these average a 

[g]rade 1 modifier, 2 percent LUE PPI [permanent partial impairment] is awarded 

for the residual cubital tunnel syndrome. As it relates to the radial styloid 

tenosynovitis, 1 percent LUE PPI is awarded for a history of painful injury 

without consistent objective symptoms as noted in Table 15-3, p. 395 of the 

A.M.A., Guides. Use of the combined values table on p. 604 of the A.M.A., 

Guides, 3 percent LUE PPI is awarded. The date of MMI [maximum medical 

improvement] occurred on December 20, 2011 per Dr. Freedberg’s 

recommendation.” 

On August 25, 2013 Dr. Christopher Gross, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, concurred with Dr. Garelick’s impairment rating and explained 

that Dr. Garelick’s three percent impairment rating was in addition to the five percent left arm 

impairment previously awarded. He stated that Dr. Garelick’s impairment rating “is additional 

to the five percent already assigned since that impairment rating accounted for cervical 

pathology and not pathology at the wrist and elbow.” 

By decision dated December 13, 2013, OWCP granted appellant a schedule award for 

eight percent permanent impairment of her left arm less the five percent impairment previously 

awarded. The award ran for 9.36 weeks from December 20, 2011 to February 23, 2012. 

Appellant requested a telephonic hearing with an OWCP hearing representative. During 

the June 10, 2014 hearing, counsel argued that appellant’s schedule award should have been 

based on the range of motion rating method. 

In a July 29, 2014 decision, OWCP hearing representative affirmed OWCP’s 

December 13, 2013 decision. She found that Dr. Garelick’s report properly evaluated appellant’s 

left arm impairment under the sixth edition of the A.M.A., Guides. 
4

LEGAL PRECEDENT 

The schedule award provision of FECA2 and its implementing regulations3 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.4 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.5

Peripheral nerve impairment is evaluated under the scheme found in Table 15-23 

(Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.6

 In Table 

15-23, grade modifier 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.7

While Section 15.2 of the sixth edition of the A.M.A., Guides provides that “[d]iagnosisbased impairment is the primary method of evaluation for the upper limb,” Table 15-2 through 

Table 15-5 also provide that, if motion loss is present for a claimant who has certain upper 

extremity conditions, impairment may alternatively be assessed using section 15.7 (range of 

motion impairment). Such a range of motion impairment stands alone and is not combined with 

a diagnosis-based impairment.8

Section 15.7 of the sixth edition of the A.M.A., Guides provides: 

“Range of motion should be measured after a “warm up,” in which the individual 

moves the joint through its maximum range of motion at least [three] times. The 

range of motion examination is then performed by recording the active 

measurements from [three] separate range of motion efforts. Measurements 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404 (1999). 

4 Id. 

5

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Disability, Chapter 2.808.5(a) 

(February 2013). 

6 See A.M.A., Guides 449, Table 15-23. 

7

 A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the 

functional scale score. Id. at 448-49. 

8 Id. at 387, 391-405, 475-78. 
5

should be rounded up or down to the nearest number ending in 0.... All 

measurements should fall within 10 [degrees] of the mean of these three 

measurements. The maximum observed measurement is used to determine the 

range of motion impairment.”9

ANALYSIS 

OWCP granted appellant schedule awards for eight percent permanent impairment of her 

left arm. A portion of the award was based on the June 3, 2013 report of Dr. Garelick, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser. In this report, he found that 

appellant had three percent permanent impairment of her left arm based on entrapment 

neuropathy caused by cubital tunnel syndrome and radial styloid tenosynovitis.10 Dr. Gross, a 

Board-certified orthopedic surgeon serving as an OWCP medical adviser, indicated that 

appellant had previously been granted a five percent rating for left arm impairment which was 

based on peripheral nerve impairment stemming from her neck and noted that combining this 

five percent impairment with the three percent impairment based on appellant’s entrapment 

neuropathy, as calculated by Dr. Garelick, meant that appellant had a total left arm impairment of 

eight percent. 

In his June 3, 2013 report, Dr. Garelick discussed his review of the medical records and 

provided an opinion that appellant had three percent impairment for cubital tunnel syndrome and 

radial styloid tenosynovitis under the standards of the sixth edition of the A.M.A., Guides.11 He 

properly applied these standards to reach his conclusion about appellant’s permanent left arm 

impairment. 

Dr. Garelick properly made reference to Table 15-23 (Entrapment/Compression 

Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides.

12 He correctly 

chose grade modifiers from the table for the various categories, including test findings, history, 

physical findings and functional scale, based on Dr. Freedberg’s findings. Dr. Garelick 

concluded that appellant had three percent impairment, comprised of two percent impairment 

due to cubital tunnel syndrome combined with one percent impairment due to radial styloid 

tenosynovitis.13 This three percent impairment rating was properly added to the previously 

awarded five percent impairment rating to equal a total left arm impairment of eight percent. 

The Board notes that there is no medical evidence of record showing that appellant has 

more than eight percent permanent impairment of her left arm, for which she already received 

 9 Id. at 464. 

10 Dr. Garelick derived his impairment rating after reviewing the medical evidence of record, including the 

December 20, 2011 examination findings of Dr. Freedberg, an attending Board-certified orthopedic surgeon. 

11 OWCP’s decision regarding impairment was not issued until after May 1, 2009 and therefore evaluation of 

appellant’s impairment under the sixth edition of the A.M.A., Guides was appropriate. See supra note 5. 

12 A.M.A., Guides 449, Table 15-23 (6th ed. 2009). 

13 Id. 
6

schedule awards. In an October 22, 2012 report, Dr. Allen, attending Board-certified internist 

and neurologist, determined that appellant had 46 percent permanent impairment of her left arm. 

However, this impairment rating was not carried out in accordance with the standards of the sixth 

edition of the A.M.A., Guides. Although the sixth edition of the A.M.A., Guides specifies that the 

range of motion rating method may be used as an alternative to rating some diagnosis-based 

conditions of the upper extremities, Dr. Allen did not specify for which diagnosis-based condition 

he was using the range of motion method as an alternative nor provide a rationalized basis for 

departing from the preferred diagnosis-based impairment method of evaluation.14 In addition, 

Dr. Allen did not indicate that his range of motion measurements were obtained after a warm up, 

provide active measurements from three separate range of motion efforts, or provide passive range 

of motion measurements as required when evaluating motion under the sixth edition of the 

A.M.A., Guides.

15

For these reasons, OWCP properly declined to award appellant additional schedule award 

compensation. Appellant may request a schedule award or increased schedule award based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish more than an 

eight percent permanent impairment of her left arm, for which she received schedule awards. 

 14 In Table 15-2 through Table 15-5 pertaining to the upper extremities, certain diagnosis-based conditions 

contain an asterisk (*) which indicate that the range of motion method may be used as an alternative stand-alone 

rating method. See A.M.A., Guides 391-405, Table 15-2 through Table 15-5. 

15 See supra note 9. 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 14, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board