United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.N., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Southeastern, PA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-937 

Issued: October 20, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 18, 2014 appellant, through his attorney, filed a timely appeal from merit 

decisions of the Office of Workers’ Compensation Programs (OWCP) dated November 29, 2013 

and January 8, 2014. 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. 

ISSUES 

The issues are: (1) whether appellant has more than a 6 percent right arm and 10 percent 

left arm permanent impairment; and (2) whether OWCP properly determined the date of 

maximum medical improvement. 

 1

 5 U.S.C. § 8101 et seq. 
2 

FACTUAL HISTORY 

Appellant has two compensation claims that have been administratively combined. On 

February 13, 2006 he, then a 57-year-old clerk, filed an occupational disease claim for 

compensation (Form CA-2) alleging that he sustained a left shoulder injury as a result of his 

duties of federal employment. Appellant identified repetitive activity such as picking up 

magazines and parcels and sweeping mail. On February 14, 2006 he underwent left shoulder 

arthroscopic surgery by Dr. Samuel Puleo, a Board-certified orthopedic surgeon. OWCP 

accepted this claim on June 9, 2006 for left shoulder calcific tendinitis with rotator cuff 

impingement. 

On July 23, 2007 appellant filed a Form CA-2 alleging that he sustained carpal tunnel 

syndrome as a result of repetitive activity in his federal employment. He again identified 

repetitive work activity as a clerk. On January 18, 2008 OWCP accepted bilateral carpal tunnel 

syndrome. Appellant underwent a left carpal tunnel release on April 24, 2008 and a right carpal 

tunnel release on June 4, 2008, performed by Dr. Puleo. 

OWCP referred appellant to Dr. Noubar Didizian, a Board-certified orthopedic surgeon, 

for a second opinion evaluation. In a report dated April 3, 2009, Dr. Didizian provided a history 

and results on examination. He diagnosed status post bilateral carpal tunnel release with residual 

weakness and stiffness of the digits. 

On April 21, 2009 appellant submitted a report dated February 24, 2009 from Dr. David 

Weiss, an osteopath, providing a history and results on examination. Dr. Weiss diagnosed: 

cumulative and repetitive trauma disorder; left shoulder impingement syndrome; left shoulder 

calcific tendinosis; a partial thickness rotator cuff tear to the left shoulder; status post 

arthroscopic surgery to the left shoulder; left wrist and forearm chronic flexor tendinitis; bilateral 

carpal tunnel syndrome; and status post left and right open carpal tunnel syndrome release. He 

provided an opinion as to permanent impairment under the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment.

OWCP referred appellant to Dr. Didizian, requesting an opinion with respect to a 

permanent impairment under the A.M.A., Guides. In a report dated August 31, 2009, 

Dr. Didizian provided results on examination. He opined that appellant had a 24 percent left arm 

impairment, based on the regional shoulder grid, loss of range of motion, and sensory and motor 

findings. Dr. Didizian also opined that appellant had a 10 percent right arm impairment for 

carpal tunnel syndrome. He stated that the date of maximum medical improvement (MMI) was 

90 days after the June 4, 2008 carpal tunnel surgery. 

On October 13, 2009 appellant submitted a second report from Dr. Weiss dated 

February 24, 2009. Dr. Weiss opined that, under the sixth edition of the A.M.A., Guides, 

appellant had a 12 percent left arm impairment. He found that appellant had a 5 percent 

impairment for partial rotator cuff tear under Table 15-5, and 8 percent for left median nerve 

entrapment neuropathy under Table 15-23. For the right arm, Dr. Weiss opined that appellant 

had a seven percent impairment based on entrapment neuropathy. 
3 

In a report dated October 20, 2009, an OWCP medical adviser, Dr. Arnold Berman, 

opined that appellant had a six percent impairment to the left arm based on loss of shoulder range 

of motion. He stated that carpal tunnel was not indicated as an accepted condition, but if it was 

included, then there would be a two percent impairment. In a brief report dated November 9, 

2009, Dr. Berman opined that appellant had a two percent right arm and eight percent left arm 

impairment. He found the date of MMI was April 3, 2009. 

By decision dated November 18, 2009, OWCP issued a schedule award for a two percent 

impairment to each arm. The period of the award was 12.48 weeks from April 3, 2009. 

In a letter dated November 24, 2009, appellant requested a hearing before an OWCP 

hearing representative. By decision dated February 22, 2010, the hearing representative 

remanded the case to OWCP. The hearing representative found that the case records should be 

combined, a statement of accepted facts prepared and the case referred to an OWCP medical 

adviser for an opinion as to the percentage of permanent impairment under the A.M.A., Guides. 

OWCP prepared a statement of accepted facts and referred the case for a second opinion 

examination by Dr. Robert Smith, a Board-certified orthopedic surgeon. In a report dated 

April 15, 2010, Dr. Smith provided a history and results on examination. He opined that 

appellant had a six percent left arm impairment under Table 15-23 of the A.M.A., Guides for 

carpal tunnel syndrome. Dr. Smith also found a two percent left arm impairment based on 

application of the shoulder regional grid. As to the right arm, he opined that appellant had a six 

percent impairment for carpal tunnel syndrome. Dr. Smith indicated the date of MMI for the left 

wrist was April 24, 2009 and for the right wrist June 4, 2009, as this was one year after surgery. 

In a report dated June 6, 2010, Dr. Berman indicated that he agreed with Dr. Smith as to 

the percentages of impairment. He stated that the date of MMI was April 15, 2010. 

By decision dated June 23, 2010, OWCP issued a schedule award for an additional six 

percent for the left arm and four percent for the right arm. The period of the award was 31.20 

weeks from April 15, 2010. 

Appellant requested a hearing before an OWCP hearing representative. By decision 

dated September 15, 2010, the hearing representative set aside the June 23, 2010 OWCP 

decision. The hearing representative found that the medical adviser had not properly considered 

the report of Dr. Weiss, who had provided a rationalized opinion with regard to permanent 

impairment. 

In a report dated October 31, 2010, Dr. Berman stated that the rating by Dr. Weiss could 

not be considered as he provided an opinion under the fifth edition of the A.M.A., Guides. 

By decision dated January 6, 2011, OWCP found that appellant was not entitled to an 

additional schedule award. Appellant again requested a hearing by letter dated January 11, 2011. 

In a decision dated March 14, 2011, an OWCP hearing representative set aside the 

January 6, 2011 decision. She noted that Dr. Weiss had submitted a report with an opinion under 

the sixth edition of the A.M.A., Guides, and the medical adviser should be asked to provide a 

thorough discussion regarding the ratings of Dr. Smith and Dr. Weiss. 
4 

By report dated March 22, 2011, Dr. Berman stated that Dr. Didizian’s report did not 

confirm loss of sensation reported by Dr. Weiss. According to Dr. Berman, Dr. Weiss also 

stated that the distal clavicle resection was carried out as part of the operative procedure, when 

only a subacromial decompression was done. 

In a decision dated June 2, 2011, OWCP found that appellant was not entitled to an 

additional schedule award. Appellant again requested a hearing by letter dated June 7, 2011. A 

hearing was held on September 21, 2011. 

By decision dated December 19, 2011, the hearing representative remanded the case for 

further development. She noted that Dr. Weiss did not base an opinion as to permanent 

impairment on a distal clavicle resection. The case was again remanded for review by an OWCP 

medical adviser. 

In a report dated February 27, 2012, Dr. Berman acknowledged that Dr. Weiss used a 

diagnosis of partial rotator cuff tear, and while Dr. Weiss’ use of grade modifiers was 

questionable, Dr. Berman recommended acceptance of five percent left arm impairment under 

the shoulder regional grid table. According to Dr. Berman, there were discrepancies between 

Dr. Weiss and Dr. Didizian. In applying Table 15-23 for entrapment neuropathy, Dr. Berman 

stated grade modifier three for history was acceptable, but grade modifier one was proper for 

physical findings because Dr. Didizian found no sensory or motor loss. He opined that appellant 

had a 10 percent left arm impairment and a 6 percent right arm impairment. 

By decision dated March 5, 2012, OWCP issued a schedule award for an additional two 

percent to the left arm. The period of the award was 6.24 weeks from June 30, 2009. 

In a letter dated March 8, 2012, appellant requested a hearing before an OWCP hearing 

representative. A hearing was held on June 13, 2012. 

By decision dated August 21, 2012, the hearing representative set aside the March 8, 

2012 decision and remanded for yet further development. She indicated that it was unclear why 

Dr. Berman referred to the findings of Dr. Didizian, without discussing the more recent second 

opinion report from Dr. Smith. The hearing representative remanded the case to ask Dr. Berman 

to consider the reports of Dr. Smith and Dr. Weiss. 

In a report dated October 22, 2012, Dr. Berman stated that Dr. Weiss was not a Boardcertified orthopedic surgeon, and his opinion was not as credible as Dr. Smith’s. 

By decision dated May 1, 2013, OWCP found that appellant was not entitled to an 

additional schedule award. Appellant requested a hearing by letter dated May 6, 2013. On 

September 3, 2013 appellant indicated that the request was for a review of the written record. 

In a decision dated November 29, 2013, the hearing representative found appellant was 

not entitled to an additional schedule award. She noted that the schedule award decisions had 

each contained a different date of MMI, and the case was remanded for an opinion from an 

OWCP medical adviser on the issue. 
5 

By report dated December 4, 2013, Dr. Berman noted that the last examination was 

April 15, 2010, and “it would not be appropriate to reach a conclusion utilizing these older 

examinations.” He recommended an additional second opinion examination. Dr. Berman also 

stated his recommendations as to the degree of impairment remained unchanged. 

In a decision dated January 8, 2014, OWCP stated that Dr. Berman had found no change 

in his opinion. The decision did not make specific findings with respect to date of MMI. 

LEGAL PRECEDENT -- ISSUES 1 & 2 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.2

 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants, OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.4 

The period covered by a schedule award commences on the date that the employee 

reaches MMI from the residuals of the injury. The question of when MMI has been reached is a 

factual one which depends upon the medical findings in the record. The determination of such 

date is to be made in each case upon the basis of the medical evidence in that case.5 

ANALYSIS -- ISSUES 1 & 2 

As the above history indicates, the development of the case has involved repeated 

referrals to an OWCP medical adviser, Dr. Berman. This development did not properly resolve 

the medical issue. Dr. Weiss, the attending physician, provided an opinion as to the degree of 

permanent impairment to the upper extremities under the sixth edition of the A.M.A., Guides. 

He applied Table 15-5, the shoulder regional grid, and Table 15-23, for entrapment neuropathy.6 

Dr. Weiss opined that appellant had a 12 percent left arm impairment and a 7 percent right arm 

 2

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

3 A. George Lampo, 45 ECAB 441 (1994). 

4

 FECA Bulletin No. 09-03 (March 15, 2009). 

5 L.H., 58 ECAB 561 (2007). 

6

 A.M.A., Guides 401-05, Table 15-5, and 449, Table 15-23. 
6 

impairment, and explained how the tables were applied.7

 As noted by a hearing representative in 

the September 15, 2010 decision, Dr. Weiss provided a rationalized medical opinion on the issue. 

On the other hand, the second opinion physician, Dr. Smith, provided an opinion that 

conflicted with Dr. Weiss. He found that appellant had an eight percent left arm and six percent 

right arm permanent impairment under the A.M.A., Guides. Dr. Smith explained how he 

determined the impairment and applied relevant tables. It is well established that, when there is a 

disagreement between the physician making the examination for the United States and the 

physician of the employee, a third physician shall be appointed to make an examination to 

resolve the conflict.8

 The case will accordingly be remanded to OWCP for selection of a referee 

physician9

 and proper resolution of the conflict in accord with established procedures. The 

referee physician should provide a reasoned medical opinion with respect to an employmentrelated permanent impairment under the A.M.A., Guides. 

The referee physician should also provide an opinion with respect to the proper date of 

maximum medical improvement. As noted by the hearing representative in the November 29, 

2013 decision, the record contains several different dates with respect to MMI. The hearing 

representative remanded the case on this issue but the January 8, 2014 decision did not make any 

specific findings on the issue. After such development as is warranted to resolve the issues 

presented, OWCP should issue an appropriate decision. 

CONCLUSION 

The Board finds that there is a conflict in the medical evidence and the case is remanded 

to OWCP for resolution of the conflict. 

 7

 The Board has previously noted concern with medical reports of Dr. Weiss which provide ratings of impairment 

under the sixth edition of the A.M.A., Guides without a contemporaneous medical evaluation -- frequently relying 

upon stale and outdated physical findings previously utilized for an evaluation of impairment under the fifth edition. 

While, Dr. Weiss herein provides a rating under the sixth edition based upon a prior evaluation, the prior evaluation 

in this matter was not unduly stale. See Cf. K.S., Docket No. 12-43 (issued March 12, 2013); L.T., Docket No. 13-

997 (issued June 10, 2014); W.M., Docket No. 12-773 (issued March 29, 2013). 

8 Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a). The Board notes that in the August 21, 2012 

hearing representative decision, 5 U.S.C. § 8123(a) was cited, but no finding that a conflict existed was made. 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.4 (May 2013). 
7 

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated January 8, 2014 and November 29, 2013 are set aside and the 

case remanded for further action consistent with this decision. 

Issued: October 20, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board