United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.H., Appellant 

and 

DEPARTMENT OF THE NAVY, 

PORTSMOUTH NAVAL SHIPYARD, 

Portsmouth, NH, Employer 

__________________________________________ 

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Docket No. 15-0031 

Issued: July 24, 2015 

Appearances: Case Submitted on the Record

James G. Noucas, Jr., Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 7, 2014 appellant, through counsel, filed a timely appeal from a June 18, 

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 established that he has more than five percent impairment 

of the right upper extremity for which he received a schedule award. 

On appeal counsel asserts that, as the opinion of the referee physician is insufficient, 

vague, and not responsive, the case must be remanded for appointment of a new and impartial 

referee. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On March 23, 2009 appellant, then a 57-year-old battery ship alteration installation 

manager, filed an occupational disease claim alleging that employment duties caused right carpal 

tunnel syndrome and ulnar neuropathy at the right elbow. A March 17, 2009 right upper 

extremity electrodiagnostic study showed severe median mononeuropathy across the wrist and 

electrophysiologic evidence of focal ulnar neuropathy across the elbow. 

OWCP accepted right carpal tunnel and cubital tunnel syndromes. On August 25, 2009 

Dr. Sacha D. Matthews, Board-certified in orthopedic and hand surgery, performed right carpal 

tunnel release and right subcutaneous ulnar nerve transposition. Appellant received appropriate 

compensation after surgery. On November 9, 2009 he returned to full-time work and missed 

intermittent periods thereafter for medical treatment and therapy. 

On April 11, 2011 appellant filed a Form CA-7 for a schedule award. In an April 26, 

2011 report, Dr. Matthews indicated that appellant reached maximum medical improvement on 

February 14, 2011. He stated that appellant had some persistent impairment consisting of 

paresthesias/numbness of the little finger. Dr. Matthews advised that he did not perform 

impairment evaluations. Appellant retired in June 2011. 

By letter dated July 26, 2011, OWCP informed appellant of the type of medical evidence 

needed to support a schedule award claim, including an impairment determination completed in 

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

of Permanent Impairment2

 (hereinafter A.M.A., Guides). 

In a February 4, 2011 report, Dr. John Dolan, a Board-certified neurologist, performed 

right upper extremity electrodiagnostic testing that demonstrated persistent compressive 

demyelination of the median nerve across the carpal tunnel space with evidence of axon loss of 

the ulnar nerve. He diagnosed carpal tunnel syndrome and ulnar neuropathy. 

In an August 9, 2011 report, Dr. Frank A. Graf, a Board-certified orthopedist, noted the 

accepted conditions and appellant’s medical history and job duties. He reviewed medical records 

and provided examination findings. Dr. Graf referenced Table 15-23, Entrapment/Compression 

Neuropathy Impairment, of the sixth edition of the A.M.A., Guides. After applying grade 

modifiers and the net adjustment formula, he concluded that appellant had five percent right arm 

impairment for carpal tunnel syndrome. Dr. Graf next determined that appellant had a class 2 

ulnar nerve impairment under Table 15-21, Peripheral Nerve Impairment, with a default value of 

17 percent. He applied grade modifiers and the net adjustment formula and concluded that 

appellant had 23 percent impairment for ulnar nerve injury. Using the Combined Values Chart, 

Dr. Graf concluded that appellant had a total 27 percent right arm impairment. 

On December 21, 2011 Dr. Christopher R. Brigham, an OWCP medical adviser who is 

Board-certified in family and occupational medicine, reviewed Dr. Graf’s report. He disagreed 

with Dr. Graf’s finding of impairment pursuant to the sixth edition of the A.M.A., Guides, 

stating, in accordance with Table 15-23, appellant had two percent right upper extremity 

 2

 A.M.A., Guides (6th ed. 2008). 
3

impairment due to peripheral neuropathy at the carpal tunnel and eight percent arm impairment 

due to peripheral neuropathy at the cubital tunnel. Dr. Brigham noted that, as appellant had more 

than one entrapment syndrome, the nerve qualifying for the larger impairment, the ulnar nerve at 

the elbow, was given the full impairment of 8 percent, but that the median nerve impairment with 

a lesser impairment of 2 percent was to be rated at 50 percent, which yielded 1 percent 

impairment due to carpal tunnel syndrome. He found that appellant had nine percent total right 

arm impairment. 

OWCP determined that a conflict had been created between Dr. Graf and Dr. Brigham 

regarding the degree of appellant’s right upper extremity impairment, and referred him to 

Dr. David N. Markellos, a Board-certified orthopedic surgeon, for an impartial evaluation. In a 

June 12, 2012 report, Dr. Markellos noted that appellant was left hand dominant. He reviewed 

the medical record and reported appellant’s complaint of persistent symptoms following surgery. 

Physical examination demonstrated a mildly tender elbow incision and a mildly positive ulnar 

nerve Tinel’s sign on the right with no visible asymmetry or atrophy and decreased sensation to 

light and sharp touch on the ulnar aspect of the right hand and slightly diminished right gross 

grip strength measured by three tests of the Jamar dynamometer. There was full range of motion 

of the elbow, wrist, and all digits. Dr. Markellos diagnosed history of right nondominant carpal 

tunnel syndrome and cubital tunnel syndrome, status postsurgical repair in August 2009; no 

significant objective clinical findings that would indicate persistent right carpal tunnel syndrome; 

and clinical evidence of mild residual ulnar neuropathy (cubital tunnel syndrome). He advised 

that maximum medical improvement was reached on February 14, 2011 and adopted 

Dr. Brigham’s application of the A.M.A., Guides, concluding that appellant had a nine percent 

right upper extremity impairment. 

In reports dated August 30 and September 15, 2012, Dr. Morley Slutsky, Board-certified 

in occupational medicine and an OWCP medical adviser, reviewed the record. Regarding carpal 

tunnel syndrome, he disagreed with the conclusions of Drs. Graf, Brigham and Markellos, stating 

that none of the physicians provided an analysis of the electrodiagnostic criteria and that 

Dr. Markellos assigned two percent impairment for carpal tunnel syndrome without performing 

calculations demonstrating how he arrived at his numbers. Dr. Slutsky indicated that for test 

findings, he used a March 17, 2009 preoperative electrodiagnostic study. He found that, in 

accordance with Table 15-23, appellant had a grade modifier of 2 for test findings, a modifier 1 

for history, and a 0 modifier for physical examination findings. Dr. Slutsky averaged this, which 

yielded right arm impairment of two percent. He rated appellant’s QuickDASH score as 

moderate which raised the right upper extremity impairment due to compression at the wrist to 

three percent. For cubital tunnel syndrome, ulnar nerve entrapment, Dr. Slutsky again noted that 

Dr. Markellos did not explain how he arrived at his eight percent rating. He indicated that under 

Table 15-23, appellant had a grade modifier of 1 for history, and a grade modifier of 2 for 

physical findings, with a default value of five. Dr. Slutsky again averaged this, which yielded a 

right arm impairment of two percent which, when raised by appellant’s moderate QuickDASH 

score, yielded three percent right arm impairment due to compression at the elbow. He noted 

that, when there are multiple simultaneous nerve entrapments, the larger one is given full value 

and the second largest rating is given 50 percent of its value, and these are combined. As each 

impairment yielded a three percent value and Dr. Slutsky used one at full value or three percent 

and second at 1.5 percent, which he rounded up to two percent. Dr. Slutsky concluded that 

appellant had five percent right upper arm. 
4

By decision dated November 27, 2012, appellant was granted a schedule award for five 

percent impairment of the right upper extremity, for a total of 15.6 weeks, to run from 

February 15 to June 4, 2011. OWCP found that the weight of the medical evidence rested with 

the impairment calculation of Dr. Slutsky, an OWCP medical adviser. 

Appellant, through counsel, requested a review of the written record.3

 On March 29, 

2013 an OWCP hearing representative set aside the November 27, 2012 decision and remanded 

the case to OWCP to clarify questions raised in Dr. Slutsky’s report regarding dysfunction of the 

ulnar nerve and assignment of the cubital tunnel impairment that required clarification from 

Dr. Markellos, the referee physician. On remand OWCP was to obtain a supplemental report 

from Dr. Markellos. 

On April 30, 2013 OWCP asked Dr. Markellos to provide a supplemental report 

regarding his impairment calculations. In a September 4, 2013 report, Dr. Markellos noted his 

review of Dr. Slutsky’s report concerning appellant’s right upper extremity impairment. He 

stated: 

“Although I have 35 years of orthopedic experience, the limitations of my report 

are due to my experience being limited to the 4th edition of the [A.M.A., Guides,] 

used in Maine and limited exposure to the 6th edition of the [A.M.A., Guides] in 

our practice. My review of Dr. Slutsky’s report finds it to be detailed, complete, 

and accurate.” 

On June 18, 2014 OWCP found that appellant was not entitled to a right arm impairment 

rating greater than five percent, for which he received a schedule award on November 27, 2012. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 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. 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

 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

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 

 3

 Appellant initially requested a hearing but changed his request to written record review. 

4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 
5

and Health (ICF).8

 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.9

 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.10 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.11 The 

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

compromise,12 and Appendix 15-B provides further guidance regarding electrodiagnostic 

evaluation of entrapment syndromes.13 

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.14 The implementing regulations 

state 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.15 When there exist opposing medical reports of virtually equal weight 

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.16 

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 OWCP medical adviser. The medical adviser should 

not resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the 

 8 Supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.” 

9 Id. at 449. 

10 Id. at 448-50. 

11 Id. at 448. 

12 Id. 

13 Id. at 487-90. 

14 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

15 20 C.F.R. § 10.321. 

16 V.G., 59 ECAB 635 (2008). 
6

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

referee specialist.17 

ANALYSIS 

OWCP accepted appellant’s occupational disease claim for right carpal and cubital tunnel 

syndromes. On April 11, 2011 appellant filed a schedule award claim. OWCP found that a 

conflict in medical evidence was created between the opinions of Dr. Graf, an attending 

orthopedist who found 27 percent right arm impairment, and Dr. Brigham, an OWCP medical 

adviser who found 9 percent impairment. OWCP then referred appellant to Dr. Markellos, a 

Board-certified orthopedic surgeon, for an impartial evaluation. 

In a June 12, 2012 report, Dr. Markellos provided physical examination findings. He 

advised that maximum medical improvement was reached on February 14, 2011 and adopted 

Dr. Brigham’s application of the A.M.A., Guides, concluding that appellant had nine percent 

right upper extremity impairment. 

Dr. Slutsky, a second OWCP medical adviser, reviewed the medical record.18 In reports 

dated August 30 and September 15, 2012, he noted that neither Dr. Graf, Dr. Brigham, nor 

Dr. Markellos provided an analysis of the electrodiagnostic criteria and that Dr. Markellos 

assigned two percent impairment for carpal tunnel syndrome without performing calculations 

which showed how he arrived at his numbers. Dr. Slutsky indicated that for test findings, he 

used a March 17, 2009 preoperative electrodiagnostic study and found that, in accordance with 

Table 15-23, appellant had a grade modifier of 2 for test findings, a modifier 1 for history, and a 

0 modifier for physical examination findings. He averaged this, which yielded two percent right 

arm impairment. Dr. Slutsky rated appellant’s QuickDASH score as moderate which raised the 

right arm impairment due to compression at the wrist to three percent. Regarding cubital tunnel 

syndrome, ulnar nerve entrapment, he again noted that Dr. Markellos did not explain how he 

arrived at his rating of eight percent. Dr. Slutsky indicated that, under Table 15-23, appellant 

had a grade modifier of 1 for history, and a grade modifier of 2 for physical findings, with a 

default value of five. He again averaged this, which yielded a right upper extremity impairment 

of two percent which, when raised by appellant’s moderate QuickDASH score, yielded a right 

arm impairment due to compression at the elbow to three percent. Dr. Slutsky noted that when 

there are multiple simultaneous nerve entrapments, the larger one is given full value and the 

second largest rating is given 50 percent of its value, and that these are combined. He indicated 

that in this case each impairment yielded a three percent value and therefore used one at full 

value or three percent and the second at 1.5 percent, which he rounded up to two percent. 

Dr. Slutsky concluded that appellant had a total five percent right arm impairment. 

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

Chapter 2.808.6(g)(1,2) (February 2013). 

18 A second OWCP medical adviser was selected because the conflict was between Dr. Graf, an attending 

orthopedic surgeon, and Dr. Brigham, the first OWCP medical adviser. See Federal (FECA) Procedure Manual, 

Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6g. (February 2013). 
7

On November 27, 2012 appellant was granted a schedule award for a five percent 

impairment of the right arm. Following appellant’s request for review of the written record, in a 

March 29, 2013 decision, an OWCP hearing representative set aside the November 27, 2012 

decision and remanded the case to OWCP to clarify questions raised in Dr. Slutsky’s report that 

required clarification from Dr. Markellos, the referee physician. On remand OWCP was to 

obtain a supplemental report from Dr. Markellos. 

In a September 4, 2013 report, Dr. Markellos noted his review of Dr. Slutsky’s report 

concerning appellant’s right arm impairment. He indicated that, while his experience was 

somewhat limited in that Maine used the fourth edition of the A.M.A., Guides, he had reviewed 

Dr. Slutsky’s report and found it to be detailed, complete, and accurate. 

On June 18, 2014 OWCP found that appellant was not entitled to a right upper extremity 

impairment rating greater than five percent, for which he received a schedule award on 

November 27, 2012. 

 When OWCP obtains an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or 

elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in 

his original report. However, when the impartial specialist is unable to clarify or elaborate on his 

original report or if his supplemental report is also vague, speculative or lacking in rationale, 

OWCP must submit the case record and a detailed statement of accepted facts to a second 

impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.19 

In a June 12, 2012 report, Dr. Markellos adopted Dr. Brigham’s application of the 

A.M.A., Guides, concluding that appellant had nine percent right upper extremity impairment. 

In his September 4, 2013 report, Dr. Markellos, who reviewed Dr. Slutsky’s report concerning 

appellant’s right upper extremity impairment, merely stated: 

“Although I have 35 years of orthopedic experience, the limitations of my report 

are due to my experience being limited to the 4th edition of the [A.M.A., Guides,] 

used in Maine and limited exposure to the 6th edition of the [A.M.A., Guides] in 

our practice. My review of Dr. Slutsky’s report finds it to be detailed, complete, 

and accurate.” 

The Board finds that Dr. Markellos’ reports are not sufficiently rationalized such that his 

medical opinion is of diminished probative value. In Frederick Justiniano,

20 the Board set aside 

the report of an impartial specialist who stated his agreement with the opinion of an OWCP 

second opinion physician without offering adequate medical rationale to support his own medical 

conclusions. The Board finds that in the present appeal, Dr. Markellos relied too extensively on 

the impairment evaluations of Dr. Brigham and Dr. Slutsky without providing an adequate 

 19 L.R. (E.R.), 58 ECAB 369 (2007). 

20 45 ECAB 491 (1994). 
8

impairment evaluation in which he applied the process under the sixth edition of the A.M.A., 

Guides.

21

The conflict in medical opinion thus remains unresolved. When an impartial specialist is 

unable to clarify or elaborate on his original report or if his supplemental report is also vague, 

speculative, or lacking in rationale, OWCP must submit the case record to another impartial 

specialist for the purpose of obtaining a rationalized medical opinion on the issue.22 

Upon return of the case record, OWCP should refer appellant to another impartial 

specialist. The impartial specialist should provide an evaluation in accordance with the sixth 

edition of the A.M.A., Guides regarding appellant’s right arm impairment. Following this and 

any other development deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds this case is not in posture for decision as there is an unresolved conflict 

in medical opinion evidence regarding the degree of appellant’s right upper extremity 

impairment. 

 21 See Charles H. Miller, Docket No. 93-2000 (issued March 22, 1995) (in a situation where there exists a 

medical conflict, if the weight of the medical evidence lies anywhere, it must be with the opinion of the specialist 

chosen to resolve the outstanding conflict). 

22 Id. 
9

ORDER 

IT IS HEREBY ORDERED THAT the June 18, 2014 decision of the Office of 

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

proceedings consistent with this opinion of the Board. 

Issued: July 24, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board