United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Margate, NJ, Employer 

__________________________________________ 

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Docket No. 15-0038 

Issued: March 10, 2016 

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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 6, 2014 appellant, through counsel, filed a timely appeal from a July 7, 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 the case. 

ISSUE 

The issue is whether appellant has more than one percent permanent impairment of the 

left upper extremity for which he received a schedule award. 

On appeal counsel asserts that the referee physician’s report is vague, speculative, and 

incomplete, that OWCP erred in its factual basis for finding a conflict, and that the referee was 

improperly selected under the Physicians Directory System (PDS). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 11, 2005 appellant, then a 48-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that employment duties caused a pinched nerve in his left upper 

extremity. He had stopped work on May 6, 2005. 

A May 5, 2005 electrodiagnostic study showed evidence of ulnar neuropathy at the left 

elbow (cubital tunnel syndrome), but no evidence of left hand carpal tunnel syndrome. The 

claim was accepted for lesion of ulnar nerve, left. A report of February 21, 2006 

electrodiagnostic testing showed bilateral ulnar nerve neuropathies at the elbow, very significant 

on the left, and mild compromise of the left ulnar nerve at the wrist, bilateral median nerve 

neuropathies at the wrist, bilateral symmetric and significant radial nerve neuropathy, and mild 

right upper brachial plexus post-ganglionic sensory component compromise. Appellant returned 

to part-time work in October 2006, following back surgery.2 On September 25, 2007 

Dr. Scott M. Fried, a Board-certified osteopath specializing in orthopedic surgery, performed a 

transposition of the ulnar nerve of the left arm. 

In December 2007, appellant was referred to Dr. Zohar Stark, a Board-certified 

orthopedic surgeon, for a second opinion. In reports dated January 10, 2008, Dr. Stark reviewed 

appellant’s medical and surgical history. He found no findings or pathology relating to the ulnar 

nerve on physical examination, including no weakness or sensory deficit. Dr. Stark advised that 

appellant could return to work without restriction.3

On November 17, 2008 appellant requested a schedule award and submitted an August 5, 

2008 report from Dr. Steven M. Allon, an orthopedic surgeon. Dr. Allon advised that, in 

accordance with the fifth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (hereinafter A.M.A., Guides),4 appellant had 48 percent impairment of 

the left arm. 

In a March 18, 2009 report, Dr. Henry J. Magliato, a Board-certified orthopedist and 

OWCP medical adviser, disagreed with Dr. Allon’s finding that appellant had 48 percent left arm 

impairment due to the accepted condition. 

On April 4, 2009 Dr. Andrew A. Merola, also a Board-certified orthopedist and OWCP 

medical adviser, noted that there were significant discrepancies between the opinions of 

Dr. Stark and Dr. Allon, as Dr. Stark found that appellant’s condition had resolved while 

Dr. Allon found that it resulted in permanent impairment. He recommended an impartial 

evaluation. Dr. Fried continued to treat appellant through 2008. 

 2

 Appellant has a claim for a back condition that OWCP has adjudicated under a separate claim. It is not before 

the Board on the present appeal. 

3

 On March 4, 2008 OWCP terminated appellant’s wage loss and medical benefits. Appellant returned to regular 

duty in March 2008. On August 18, 2008 an OWCP hearing representative affirmed the March 4, 2008 decision. In 

a May 29, 2009 decision, OWCP denied modification of the termination of compensation benefits. 

4

 A.M.A., Guides (5th ed. 2001). 
3

OWCP determined that a conflict in medical evidence had been created between 

Dr. Stark and Dr. Allon regarding whether appellant had any impairment of the left upper 

extremity due to the accepted condition, and in June 2009 referred him to Dr. Frederick G. 

Dalzell, a Board-certified orthopedic surgeon, for an impartial evaluation. In a July 22, 2009 

report, Dr. Dalzell noted appellant’s medical, surgical, and work history and his complaint of 

weakness and hypersensitivity at the surgical site of his left upper extremity. He reviewed the 

medical record including 2005 and 2006 electrodiagnostic studies and upper extremity x-ray 

studies. Left upper extremity physical examination demonstrated intact sensation and 16 percent 

deficit in lateral pinch on grip testing. Dr. Dalzell concluded that appellant had 10 percent left 

upper extremity impairment. 

In a September 28, 2009 report, Dr. Merola, an OWCP medical adviser, reviewed 

Dr. Dalzell’s report. He indicated that Dr. Dalzell did not provide any calculations upon which 

to make appropriate impairment recommendations and did not utilize the A.M.A., Guides. 

Dr. Merola asked that a supplemental report be obtained. Dr. Dalzell did not respond to 

OWCP’s request. 

In February 2010 OWCP referred appellant to Dr. Jonathan Fox, a Board-certified 

orthopedic surgeon, for an impartial medical evaluation. In a February 23, 2010 report, Dr. Fox 

noted his review of the record. Examination of the left arm showed no neurologic deficits. 

Tinel’s sign was negative, pin sensation, grip strength, and range of motion were no normal. 

There were no signs of muscle atrophy, and muscle strength versus resistance was normal. 

Dr. Fox indicated that maximum medical improvement had been reached, the examination was 

normal, and appellant had no left arm impairment. On June 7, 2010 Dr. Magliato, an OWCP 

medical adviser, reported that, based on Dr. Fox’s opinion, had zero percent left upper extremity 

impairment. 

By decision dated June 22, 2010, OWCP denied appellant’s claim for a left arm schedule 

award based on the opinion of Dr. Fox. A hearing was held on October 13, 2010. In a 

December 23, 2009 report, Dr. Allon updated his August 5, 2008 report to conform with the 

sixth edition of the A.M.A., Guides.

5

 He did not re-examine appellant. Dr. Allon stated that 

maximum medical improvement was reached on August 5, 2008. He advised that, in accordance 

with Table 15-23 of the sixth edition of the A.M.A., Guides, appellant had four percent 

impairment due to entrapment neuropathy of the left ulnar nerve at the elbow and two percent 

impairment for entrapment neuropathy of the left median nerve at the wrist, for a total left upper 

extremity impairment of six percent.6

On January 12, 2011 the hearing representative remanded the case to OWCP to obtain a 

supplemental report from Dr. Fox providing a clear explanation as to how he used the A.M.A., 

Guides. On February 1, 2011 OWCP asked Dr. Fox to submit a supplemental report. On 

 5 Id. at (6th ed. 2008). 

6

 Regarding elbow neuropathy, Dr. Allon found modifiers of one for test findings, three for history and two for 

physical examination; for wrist neuropathy he found modifiers of two for test findings, zero for history and three for 

physical examination. 
4

February 23, 2011 Dr. Fox advised OWCP that he did not have the sixth edition of the A.M.A., 

Guides and recommended referral to a hand surgeon. 

On March 21, 2011 OWCP referred appellant to Dr. George P. Glenn, a Board-certified 

orthopedic surgeon, for an impartial evaluation. In a May 12, 2011 report, Dr. Glenn reviewed 

appellant’s history and described physical examination findings. Range of motion of the 

shoulders, elbows, wrists, and fingers was normal with complaints of soreness of the thumb on 

the left, no swelling, redness, or heat, and soreness to firm palpation through the ulnar groove on 

the left. Muscle tone was excellent, and upper and forearm circumferences were equal, with no 

atrophy. Grip and key pinch were normal, and reflexes were brisk. Sensory was well preserved 

except for a complaint of a stocking-type distribution on the left. Two-point discrimination, 

vibratory, and position sense were preserved. Phalen’s and reverse Phalen’s produced 

complaints of shoulder discomfort on the left. Tinel’s sign was negative bilaterally. Dr. Glenn 

diagnosed ulnar nerve compression syndrome, left (cubital tunnel syndrome), status post 

transposition of the ulnar nerve with complete recovery, and no residual symptoms or signs. He 

recommended a left elbow x-ray. In a May 4, 2011 work capacity evaluation, Dr. Glenn 

indicated that appellant could perform his usual job with no restrictions. A July 1, 2011 bilateral 

elbow x-ray demonstrated surgical changes on the left. 

In an August 24, 2011 decision, OWCP found that appellant had no left arm impairment 

based on Dr. Glenn’s opinion. On November 21, 2011 the hearing representative remanded the 

case for an OWCP medical adviser to review Dr. Glenn’s report. 

In a January 2, 2012 report, Dr. Merola, an OWCP medical adviser, reviewed Dr. Glenn’s 

report and found that appellant had no left arm impairment. On January 17, 2012 OWCP again 

found that appellant had no left arm impairment and denied his schedule award claim. On 

June 24, 2012 the hearing representative remanded the case for OWCP to obtain a supplemental 

report from Dr. Glenn that provided elbow range of motion findings in degrees and discussed 

electrodiagnostic test results in accordance with the A.M.A., Guides. 

In an August 23, 2012 report, Dr. Glenn stated that he had asked appellant to return to his 

office so that he could specifically remeasure elbow range of motion.7

 He explained that section 

15.4f of the A.M.A., Guides should be used to evaluate entrapment neuropathy. Dr. Glenn 

indicated that appellant had a functional history modifier of zero, as there was no demonstrable 

interference with function but noted that, in the interest of fairness as a consequence of 

appellant’s subjective complaints, one could accept a functional history modifier of one. He 

further found that, although appellant did not fulfill all the criteria listed, Dr. Glenn could assign 

a grade modifier of one for physical examination. Finally, Dr. Glenn indicated that May 5, 2005 

electrodiagnostic studies would equate a grade modifier of one. He applied the net adjustment 

formula and concluded that appellant had one percent left arm impairment. 

In September 2012 appellant moved from New Jersey to Maine. On October 8, 2012 

Dr. Merola concurred that appellant had one percent left arm impairment. On October 23, 2012 

appellant was granted a schedule award for one percent impairment of the left arm. The award 

 7

 Although not specifically stated by Dr. Glenn, a reading of his report indicates that appellant did not return for 

further evaluation. 
5

ran from August 23 to September 13, 2012. Counsel requested a hearing, which was held on 

February 5, 2013. In a March 14, 2013 decision, the hearing representative found that 

Dr. Glenn’s report was incomplete because appellant did not return to his office for further 

measurement. The case was remanded to OWCP to obtain a new impartial evaluation, to include 

elbow range of motion measurements, to be followed by a de novo decision. 

Upon remand, OWCP prepared a new statement of accepted facts and set of questions. 

On May 15, 2013 it referred appellant to Dr. David N. Markellos, a Board-certified orthopedic 

surgeon. With regard to Dr. Markellos’ selection, the record contains an April 29, 2013 iFECS 

Report: ME023 Appointment Schedule Notification referring appellant to Dr. Markellos for an 

impartial evaluation. The record additionally contains a bypass history and a number of screen 

shots, including that no appropriate specialists were found within a 25, 50, 75, 100, 125, 150, and 

175 mile radius.8

In a May 29, 2013 report, Dr. Markellos noted his review of an extensive medical record, 

a statement of accepted facts, a set of questions, a position description, appellant’s description of 

his employment and medical history, and his complaint that his left elbow was a more sore than 

usual due to the five-hour drive to the examination. Left arm examination demonstrated no 

visible asymmetry or atrophy of the paraspinous, periscapular, shoulder girdle, deltoid, either 

arm or forearm, when compared to the right side. Circumferential measurements of the forearm 

and arm were equal bilaterally, indicating no measurable disuse atrophy. Appellant had full 

unrestricted and painless range of motion of the neck and both shoulders and equal range of 

motion of both elbows, from full extension to 140 degrees of flexion; full and equal 90 degrees 

of supination; and 80 degrees of pronation. A well-healed medial elbow scar was slightly tender 

to palpation. Tinel’s sign was negative along the course of the expected position of the 

transposed ulnar nerve. There was no visible or measurable atrophy of the forearm and no 

visible atrophy with intrinsics of the hands. Strength was equal and +5/+5 of the upper arm, 

forearm, and intrinsics bilaterally. Froman’s test for ulnar intrinsic weakness was negative with 

no hypothenar atrophy. Appellant reported subjective decreased sensation of the fifth finger 

only. Two-point discrimination was four millimeters in both the ulnar and median side of the 

hand, indicating no residual sensory deficit. Grip strength on the right was a consistent 56 to 57 

kilograms but, because it varied from 10 to 38 kilograms on the left, this inconsistent and varied 

reading was not ratable. X-rays that day revealed two medial epicondylar anchors in place and 

no early osteoarthritis, soft tissue calcifications, or other abnormality. Dr. Markellos diagnosed 

history of left ulnar nerve entrapment neuropathy, status post ulnar nerve decompression and 

anterior submuscular transposition, with excellent clinical result and no objective evidence of 

residual neuropathy, weakness, or limited mobility. He indicated that, under the sixth edition of 

the A.M.A., Guides, for a diagnosis of entrapment neuropathy of the left upper extremity, section 

15.4f was applicable, which indicated that grade modifiers should be determined for the purposes 

of calculating impairment. Dr. Markellos advised that appellant’s clinical history was consistent 

with mild, intermittent symptoms with tingling and no objective restriction from current 

activities of daily living. His physical examination revealed full unrestricted range of motion of 

the elbow, a well-healed surgical incision, two-point discrimination in the normal range, and no 

 8

 The bypass history documents that 17 physicians were bypassed before Dr. Markellos’ name was reached. The 

reasons given included telephone out of service, did not accept OWCP patients, and did not treat hands. 
6

objective clinical atrophy. Grip testing was variable, inconsistent, and therefore unratable. 

Dr. Markellos advised that at some point, to truly define objective impairment, appellant could 

be referred for electrodiagnostic studies but that, at present, his clinical findings were normal 

with no objective motor or sensory deficit, and with full left elbow range of motion. He 

concluded that appellant had a class 0 rating for nerve entrapment, for zero percent left upper 

extremity permanent impairment and that maximum medical improvement was attained by the 

time of Dr. Allon’s August 2008 assessment, approximately one year following surgery. 

On September 5, 2013 Dr. Hormozan Aprin, a Board-certified orthopedic surgeon and an 

OWCP medical adviser, reviewed the record, including Dr. Markellos’ report. He indicated that 

the referee physician correctly applied the A.M.A., Guides, as defined in section 15.4f. 

Dr. Aprin concluded that the most probable date appellant reached maximum medical 

improvement was when appellant was last evaluated by Dr. Fried. 

In an October 28, 2013 decision, OWCP denied appellant’s claim for an additional 

schedule award, finding that the weight of the medical evidence rested with Dr. Markellos, as 

appropriately reviewed by the OWCP medical adviser. Counsel requested a hearing that was 

held on April 14, 2014. He asserted that there was no actual conflict because Dr. Stark was not 

asked about impairment in his second opinion examination and therefore could not create a 

conflict. Moreover, counsel asserted that Dr. Markellos was improperly selected as an impartial 

examiner. 

Subsequent to the hearing, appellant submitted an April 18, 2014 report from Dr. David 

Weiss, an osteopath and associate of Dr. Allon. Dr. Weiss noted his review of Dr. Allon’s 

reports dated August 5, 2008 and December 23, 2009, the May 29, 2013 report from 

Dr. Markellos, and the September 5, 2013 report from Dr. Aprin. He disagreed with 

Dr. Markellos’ impairment analysis, asserting that, based on appellant’s August 2008 

examination findings, he had four percent left arm impairment due to left ulnar nerve entrapment 

at the elbow and two percent impairment for entrapment of the median nerve, for a total six 

percent left arm impairment. 

By decision dated July 7, 2014, the hearing representative found that the weight of the 

medical evidence rested with the opinion of Dr. Markellos and affirmed the October 28, 2013 

decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA9

 and its implementing federal regulations10 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 

 9

 5 U.S.C. § 8107. 

10 20 C.F.R. § 10.404. 
7

the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.12

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).13 Section 15.4f provides the framework for evaluating entrapment 

neuropathy.14 Impairment due to carpal tunnel and cubital tunnel syndrome is evaluated under 

the scheme found in Table 15-23 (Entrapment/Compression Neuropathy Impairment) and 

accompanying relevant text.15 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.16 The A.M.A., Guides

specifically indicate that, if multiple simultaneous neuropathies occur in the same limb, both 

impairments may be rated and the nerve qualifying for the larger impairment is given the full 

impairment while the nerve qualifying for the smaller impairment is rated at 50 percent.17 The 

A.M.A., Guides further indicate that Table 15-23 is to be used for rating focal nerve 

compromise,18 and Appendix 15-B provides further guidance regarding electrodiagnostic 

evaluation of entrapment syndromes.19 

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

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

shall appoint a third physician who shall make an examination.20 The implementing regulation 

states that, if a conflict exists between the medical opinion of the employee’s physician and the 

medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall 

appoint a third physician to make an examination. This is called a referee examination, and 

OWCP will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.21 When there exist opposing medical reports of virtually equal weight 

 11 Id. at § 10.404(a). 

12 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

13 A.M.A., Guides, supra note 4 at 3, section 1.3, “ICF: A Contemporary Model of Disablement.” 

14 Id. at 432-50. 

15 Id. at 449. 

16 Id. at 448-50. 

17 Id. at 448. 

18 Id. 

19 Id. at 487-90. 

20 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

21 20 C.F.R. § 10.321. 
8

and rationale and the case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based 

upon a proper factual background, must be given special weight.22 

OWCP procedures further provide that, while an OWCP medical adviser may review the 

opinion of a referee specialist in a schedule award case, the resolution of the conflict is the 

specialist’s responsibility and not that of the medical adviser. The medical adviser should not 

resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the medical 

referee. If clarification is necessary, a supplemental report should be obtained from the referee 

specialist.23 

A physician selected by OWCP to serve as an impartial medical specialist should be one 

wholly free to make a completely independent evaluation and judgment. In order to achieve this, 

OWCP has developed specific procedures for the selection of the impartial medical specialist 

designed to provide adequate safeguards against any possible appearance that the selected 

physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial 

medical specialist will be selected on a strict rotating basis in order to negate any appearance that 

preferential treatment exists between a particular physician and OWCP.24

The medical management application (MMA), which replaced the PDS, allows users to 

access a database of Board-certified specialist physician, and is used by OWCP to schedule 

referee examinations. The application contains an automatic, and strict rotational scheduling 

feature to provide for consistent rotation among physicians and to record the information needed 

to document the selection of the physician.25

The claims examiner is not able to determine which physician serves as the impartial 

medical specialist. A medical scheduler inputs the claim number into the application, from 

which the claimant’s home zip code is loaded. The scheduler chooses the type of examination to 

be performed (second opinion or impartial referee) and the applicable medical specialty. The 

next physician in the roster appears on the screen and remains until an appointment is scheduled 

or the physician is bypassed. If the physician agrees to the appointment, the date and time are 

entered into the application. Upon entry of the appointment information, the application prompts 

the medical scheduler to prepare an ME023 appointment notification report for imaging into the 

case file. Once an appointment with a medical referee is scheduled, the claimant and any 

authorized representative are to be notified.26

 22 V.G., 59 ECAB 635 (2008). 

23 See Federal (FECA) Procedure Manual, Part 2, supra note 12 at Chapter 2.808.6(g)(1,2) (February 2013). 

24 Raymond J. Brown, 52 ECAB 192 (2001). 

25 Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5 

(May 2013); see also R.C., Docket No. 12-468 (issued October 25, 2012). 

26 B.N., Docket No. 12-1394 (issued August 5, 2013). 
9

If an appointment cannot be scheduled in a timely manner or cannot be scheduled for 

some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will 

update the application with an appropriate bypass code. Upon the entering of a bypass code, the 

MMA will select the next physician in the rotation.27 

ANALYSIS 

OWCP accepted appellant’s claim for lesion of the left ulnar nerve. In December 2007, it 

referred him to Dr. Stark for a second opinion evaluation, and on January 10, 2008 Dr. Stark 

found no pathology relating to the ulnar nerve of physical examination, including no weakness or 

sensory deficit. Dr. Stark advised that appellant could return to work without restriction. 

Appellant filed a schedule award claim on November 17, 2008 and submitted an August 5, 2008 

report from Dr. Allon who found 48 percent permanent left arm impairment. OWCP found that 

a medical conflict was created between Dr. Stark and Dr. Allon regarding appellant’s impairment 

and condition and first referred him to Dr. Dalzell, and then to Dr. Fox for an impartial 

evaluation. Following denial of the schedule award claim on June 22, 2010 based upon the 

medical opinion of Dr. Fox, appellant submitted a December 23, 2009 report from Dr. Allon who 

updated his August 2008 report now finding that appellant had six percent left arm impairment 

due to ulnar nerve entrapment at the elbow and wrist pursuant to the sixth edition of the A.M.A., 

Guides. 

On January 12, 2011 the hearing representative remanded the case for a supplemental 

report from Dr. Fox, who recommended referral to a hand surgeon as he did not have a sixth 

edition of the A.M.A., Guides. OWCP then referred appellant to Dr. Glenn for an impartial 

evaluation. Dr. Glenn found no impairment. OWCP again denied appellant’s schedule award 

claim on August 24, 2011. On November 21, 2011 it remanded the case for review by an OWCP 

medical adviser, who concluded that appellant had no left arm impairment, and on January 17, 

2012, OWCP again denied the schedule award claim. 

On June 24, 2012 the hearing representative remanded the case for OWCP to obtain a 

supplemental report from Dr. Glenn. In an August 23, 2012 report, he advised that appellant had 

a one percent left arm impairment. On October 23, 2012 appellant was granted a schedule award 

for one percent impairment of the left upper extremity. 

On March 14, 2013 the hearing representative directed a new impartial evaluation 

regarding appellant’s left arm impairment that was to include elbow range of motion 

measurements. OWCP then referred appellant to Dr. Markellos who provided a comprehensive 

report dated May 29, 2013 in which he found that appellant had no left arm impairment. On 

October 28, 2013 it denied an additional schedule award based on the opinion of Dr. Markellos. 

Appellant requested a hearing and submitted an April 18, 2014 report from Dr. Weiss 

who maintained that that the physical examination findings from Dr. Allon in 2008 and his 

analysis in 2009 established that appellant had six percent impairment of the left upper 

extremity. On July 7, 2014 the hearing representative affirmed the October 28, 2013 decision. 

 27 Supra note 25. 
10

Counsel has asserted that Dr. Markellos was improperly selected as an impartial 

specialist. OWCP uses the MMA, as described above. This application replaced the PDS and 

allows users to access a database of Board-certified specialist physicians and is used to schedule 

examinations. The application contains an automatic and strict rotational scheduling feature to 

provide for consistent rotation among physicians and to record the information needed to 

document the selection of the physician.28 

In the present case, the record contains an OWCP ME023 report documenting 

Dr. Markellos’ selection under the MMA. Additionally, as required, the record contains a bypass 

history report certifying that the MMA was used to schedule appellant’s appointment with 

Dr. Markellos. This report provides explanations for each physician bypassed until 

Dr. Markellos was reached.29 This evidence, within the MMA system, indicates that all 

physicians were appropriately bypassed until Dr. Markellos was selected. The Board finds that 

OWCP provided sufficient documentation to establish that it properly utilized its MMA system 

in selecting Dr. Markellos as the impartial medical examiner. By doing so, OWCP has met its 

affirmative obligation to establish that it properly followed its selection procedures.30 Thus, 

counsel’s argument is without merit. 

In his May 29, 2013 report, Dr. Markellos noted his review of the factual and medical 

record, and appellant’s description of his employment and medical history and physical 

complaints. He fully described examination findings and diagnosed history of left ulnar nerve 

entrapment neuropathy, status post ulnar nerve decompression and anterior submuscular 

transposition, with excellent clinical result and no objective evidence of residual neuropathy, 

weakness, or limited mobility. Dr. Markellos indicated that, in accordance with section 15.4 of 

the A.M.A., Guides, for a diagnosis of entrapment neuropathy of the left arm, appellant’s clinical 

history was consistent with mild, intermittent symptoms with tingling and no objective 

restriction from current activities of daily living. He noted that appellant’s examination revealed 

full unrestricted range of motion of the elbow, a well-healed surgical incision, two-point 

discrimination in the normal range, and no objective clinical atrophy. Grip testing was variable, 

inconsistent, and therefore unratable. Dr. Markellos advised that appellant’s clinical findings 

were normal with no objective motor or sensory deficit, and with full left elbow range of motion. 

He concluded that appellant had a class 0 rating for nerve entrapment, for zero percent left upper 

extremity impairment, and indicated that maximum medical improvement was attained 

approximately one year following surgery. 

On September 5, 2013 Dr. Aprin, the OWCP medical adviser, reviewed the record, 

including Dr. Markellos’ report. He determined that Dr. Markellos correctly applied the A.M.A., 

Guides as defined in section 15.4f and that appellant reached maximum medical improvement on 

July 17, 2008. 

 28 Supra note 25; see also L.H., Docket No. 14-1060 (issued October 1, 2014). 

29 Supra note 8. 

30 See A.M., Docket No. 14-1275 (issued January 12, 2015). 
11

The Board has carefully reviewed the opinion of Dr. Markellos and finds that it has 

reliability, probative value, and convincing quality with respect to its conclusions regarding the 

relevant issue in the present case.31 Dr. Markellos’ opinion is based on a proper factual and 

medical history, which he thoroughly reviewed. He accurately summarized the relevant medical 

evidence and provided medical rationale that appellant had a class 0 rating for ulnar nerve 

entrapment, for a zero left upper extremity impairment. This finding is in accordance with 

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

32 When a case is referred to an impartial medical specialist 

for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if 

sufficiently well rationalized and based on a proper background, must be given special weight.33 

Dr. Markellos’ opinion is consequently entitled to special weight as the impairment medical 

examiner.34 Appellant therefore did not meet his burden of proof to establish that he has 

impairment of the left upper extremity greater than the one percent previously awarded. 

On appeal counsel asserts that the referee physician’s report is vague, speculative, and 

incomplete, that the Office erred in its factual basis for finding a conflict, and that the referee 

was improperly selected under the PDS. The Board has previously found herein that the 

independent medical report of Dr. Markellos was well reasoned and entitled to the special weight 

as an independent medical examination. As has also been noted above, the findings of Dr. Stark 

who performed a second opinion in which he found no physical abnormalities relating to 

appellant’s ulnar nerve were sufficient to create a conflict with the attending physician, 

Dr. Allon, who found ulnar nerve impairment and a resulting 48 percent permanent impairment 

rating. Finally, the Board has previously found herein that OWCP properly selected the 

independent medical examiner, Dr. Markellos, under the PDS system. 

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 establish a left upper extremity impairment greater 

than one percent impairment for which he has received a schedule award. 

 31 See C.M., Docket No. 13-2107 (issued April 21, 2014). 

32 Id. 

33 Supra note 22. 

34 Id.
12

ORDER 

IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed.35

Issued: March 10, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 35 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member 

of the Board effective November 16, 2015.