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. 14-0737 

Issued: September 4, 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: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 12, 2014 appellant, through counsel, filed a timely appeal from an 

August 21, 2013 schedule award 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 schedule award. 

ISSUE 

The issue is whether appellant established more than one percent permanent impairment 

of the right or left upper extremities for which he received a schedule award. 

On appeal counsel asserts that OWCP did not properly develop the medical record as it 

failed to provide complete and accurate medical histories for reviewing physicians, and 

improperly allowed a medical adviser to provide a second record review. For these reasons, 

 1

 5 U.S.C. §§ 8101-8193. 
2

appellant argues that the reports of the second opinion, referee physician, and OWCP medical 

advisers should be excluded. 

FACTUAL HISTORY 

On April 30, 2001 appellant, then a 45-year-old painter/blaster, filed an occupational 

disease claim alleging that his employment duties caused arm and wrist pain. He began limited 

duty. OWCP accepted carpal tunnel syndrome, lateral epicondylitis, and bilateral forearm 

tendinitis of each arm as employment related. 

A November 1, 2001 electrodiagnostic study showed right mild median neuropathy at the 

wrist. The study on the left was at the high end of the reference range. Dr. Randi D. Lebar, a 

Board-certified orthopedic surgeon, performed a right carpal tunnel release on 

December 21, 2001. 

In a January 24, 2003 report, Dr. John T. Chance, Board-certified in orthopedic surgery 

and surgery of the hand, noted appellant’s complaint of right and left hand pain and a prior 

history of a right thumb fracture. He diagnosed left ulnar neuropathy (cubital tunnel syndrome), 

bilateral/lateral epicondylitis, Dupuytren disease (not work related), and right thumb 

degenerative joint disease, status post remote injury. On June 24, 2003 Dr. Chance advised that 

appellant’s bilateral arm pain and numbness were worse. 

On December 29, 2003 appellant filed a schedule award claim. By letter dated 

January 12, 2004, OWCP informed him of the evidence needed to support a schedule award 

claim and enclosed a form letter for his physician. The letter advised that an impairment 

determination should be completed in accordance with the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment2 (hereinafter A.M.A., Guides). 

In an August 8, 2005 report, Dr. William Chernin, Board-certified in family medicine, answered 

all questions on the form letter “permanently disabled.” 

Nothing further was submitted by appellant until his attorney contacted OWCP in 

July 2008. In a February 18, 2009 report, Dr. Minh Tran, a Board-certified physiatrist, reviewed 

the 2001 carpal tunnel surgery and appellant’s complaint that shoulder problems began at work 

around 2002. She indicated that appellant had left shoulder acromioplasty and distal clavicle 

excision on April 5, 2005. Dr. Tran examined appellant and diagnosed right acromioclavicular 

(ACL) joint degenerative disease. 

In a September 22, 2009 report, Dr. Frank A. Graf, a Board-certified orthopedic surgeon, 

noted the accepted conditions and appellant’s medical history and job duties. After his 

retirement, appellant worked part time as a janitor from 2004 to 2008. He reported that in late 

2000 he began having constant thumb and wrist pain that extended into the forearm, elbows, 

upper arms and shoulders which continued and now included neck pain. Dr. Graf reviewed 

medical records and provided findings on examination. Appellant had bilateral upper extremity 

repetitive motion and vibration syndrome that evolved from work exposure. Dr. Graf noted that 

appellant had permanent changes in multiple upper extremity anatomical structures including 

 2

 A.M.A., Guides (5th ed. 2000). 
3

bilateral carpal tunnel syndrome, bilateral chronic tendinitis and lateral epicondylitis, bilateral 

chronic forearm tendinitis, bilateral chronic shoulder pain with symptomatic rotator cuff and 

ACL joints, bilateral chronic hand pain with symptomatic carpometacarpal (CMC) and carpal to 

carpal osteoarthritis. He also diagnosed bilateral Dupuytren’s nodular fasciitis that was not work 

related. 

Dr. Graf stated that under the sixth edition of the A.M.A., Guides,

3

 there was no listing 

for hand/arm vibration syndrome or repetitive motion syndrome, noting that appellant did not 

have vasomotor, pseudomotor and trophic changes found in complex pain syndrome. He opined 

that appellant had a condition which had global effects on both arms, and that hand/arm vibration 

syndrome should be a listed impairment class. To establish an appropriate diagnosis for each 

injured part of the arm, Dr. Graf assigned an appropriate class of impairment, followed by use of 

the adjustment grid and grade modifiers including functional history, physical examination and 

clinical studies with assignment of upper extremity ratings, which he combined under the 

Combined Values Chart for each diagnosis. He combined the arm impairments following the 

ratings for each diagnosis, concluding that complex regional pain syndrome was a global 

diagnosis with class assignments and impairment ratings for global upper extremity symptoms. 

Dr. Graf indicated that appellant had a bilateral class 2 impairment for thumb arthritis, for five 

percent arm impairment; a bilateral class 1 impairment for epicondylitis, for seven percent arm 

impairment; a bilateral class 1 impairment for shoulder ACL joint and rotator cuff injury, for 

seven percent arm impairment; and that, under Table 15-23, he had a bilateral median nerve 

syndrome for five percent arm impairment. He stated that using the Combined Values Chart and 

appellant’s QuickDASH score, he had a total 39 percent impairment to each upper extremity. 

Dr. Graf referenced Table 15-1 and opined that appellant’s bilateral hand/arm vibration 

syndrome and repetitive motion disorder was a class 3 or severe problem. 

On November 9, 2009 Dr. Barry W. Levine, an OWCP medical adviser Board-certified 

in internal medicine and pulmonary disease, reviewed Dr. Graf’s report. He stated that based on 

the sixth edition of the A.M.A., Guides appellant had an 11 percent right upper extremity 

impairment and an 18 percent left upper extremity impairment. OWCP requested that 

Dr. Levine explain the difference between his rating and those of Dr. Graf. In a June 13, 2010 

report, he stated that Dr. Graf’s impairment ratings were not accurate. Dr. Levine explained his 

findings and conclusions. 

On October 26, 2010 Dr. Graf stated that maximum medical improvement for the right 

upper extremity was reached six months after the December 21, 2001 carpal tunnel release, or 

June 21, 2002, and that his conclusion that appellant had 39 percent upper extremity impairment 

was a total combined for right and left arm impairments. 

In December 2010 OWCP referred the record to Dr. Christopher R. Brigham, an OWCP 

medical adviser Board-certified in family and occupational medicine. In a January 3, 2011 

report, Dr. Brigham disagreed with Dr. Graf’s impairment analysis, noting that Dr. Graf did not 

reference any tables or properly apply grade modifiers. He stated that maximum medical 

improvement was reached on October 26, 2010, the date of Dr. Graf’s evaluation. Dr. Brigham 

 3 Id. (6th ed. 2008). 
4

comprehensively explained his conclusion that appellant had a total 12 percent right upper 

extremity impairment and 11 percent impairment on the left. 

On May 11, 2011 OWCP asked Dr. Graf to provide range of motion measures for 

appellant’s arms. In a May 25, 2011 response, Dr. Graf stated that range of motion was of 

limited relevance and referred to his 2009 report. OWCP forwarded Dr. Brigham’s July 21, 

2011 report to Dr. Graf for review. In a July 26, 2011 report, Dr. Graf noted that a critique of 

another physician’s permanent impairment analysis was not the same as an opinion of 

permanency in a specific patient and that to arrive at such an opinion, a clinical examination was 

essential to a fair and equitable process. He reiterated that the A.M.A., Guides had limitations 

with regard to appellant, as he discussed in his September 22, 2009 report. 

In August 2011 OWCP referred appellant to Dr. Lawrence Leonard, a Board-certified 

orthopedic surgeon, for a second opinion. In a September 26, 2011 report, Dr. Leonard reviewed 

the statement of accepted facts and medical record. He noted appellant’s report that after 

retirement from the shipyard, he worked as a cab driver and a janitor; stopped work about three 

years prior, and at the present time, volunteered as driver driving 900 miles over approximately 

24 hours weekly. Appellant complained of bilateral thumb, wrist, elbow, and shoulder pain. 

Dr. Leonard noted appellant’s description of his daily activities that included, in addition to 

volunteer driving, cooking, yard work, fishing, and walking his dog. He described physical 

examination findings and diagnosed status post left shoulder acromioplasty and distal clavicle 

excision in April 2005; status post right carpal tunnel release in December 2001; bilateral 

Dupuytren’s contracture; history of open reduction of fracture, right metacarpal, age 16; and 

history of multiple joint aches and pains, etiology undetermined. Dr. Leonard determined that 

maximum medical improvement would be six months postsurgery for the left shoulder and right 

hand. He found that no impairment rating was necessary for appellant’s shoulders and CMC 

joint arthritis because these conditions were not accepted. There was no impairment due to a 

preexisting injury. Dr. Leonard advised that, under the A.M.A., Guides, utilizing the diagnosisbased impairment methodology, Table 15-4, appellant had one percent impairment of each arm 

due to bilateral elbow epicondylitis. He found no impairment due to carpal tunnel syndrome, as 

there were no sensory deficits on physical examination. Dr. Leonard concluded that appellant 

had one percent impairment of each arm. 

In an October 31, 2011 report, Dr. Brigham agreed with Dr. Leonard that appellant had 

no impairment due to carpal tunnel syndrome. Excluding the ratings for the unaccepted 

conditions, he agreed that appellant had one percent impairment to each upper extremity. 

OWCP found that a conflict in medical opinion arose regarding appellant’s upper 

extremity impairments. In a May 22, 2012 letter to appellant, it identified the conflict as 

between Dr. Leonard and Dr. Brigham, and referred him to Dr. David N. Markellos, a Boardcertified orthopedic surgeon, for an impartial evaluation. In a second May 22, 2012 letter, 

addressed to Dr. Markellos, OWCP again identified the conflict as between Dr. Leonard and 

Dr. Brigham. 

In May 29, 2012 correspondence appellant’s counsel informed OWCP that in the letter 

addressed to Dr. Markellos, the conflict was identified as between Dr. Leonard and Dr. Brigham. 

He also maintained that appellant’s bilateral shoulder conditions were work related. 
5

In an August 7, 2012 report, Dr. Markellos noted his review of the medical record and 

appellant’s description of his work duties. Appellant complained of bilateral elbow, shoulder 

and forearm pain over the years. Dr. Markellos further indicated that appellant reported that 

after he left federal employment he worked in a janitorial job and currently did volunteer driving 

for the disabled, averaging about 30 hours per week. He was puzzled by the identified conflict 

between Dr. Leonard and Dr. Brigham as the physicians agreed in their impairment analyses. 

Dr. Markellos provided upper extremity physical examination findings including normal 

shoulder range of motion bilaterally. He indicated that there was no evidence of residual carpal 

tunnel syndrome either by history or clinical examination with negative Tinel’s sign and 

Phalen’s test, normal sensation of all digits, and no evidence of atrophy. There was no 

tenderness at the lateral epicondyles but pain of the dorsal extensors and no evidence at the 

present time of cubital tunnel syndrome. Dr. Markellos advised that he agreed with the 

impairment assessment regarding epicondylitis found by Dr. Leonard and confirmed by 

Dr. Brigham, that appellant had a one percent permanent impairment of each upper extremity 

due to epicondylitis and no impairment for carpal tunnel syndrome. 

In a November 13, 2012 report, Dr. Morley Slutsky, Board-certified in occupational 

medicine and an OWCP medical adviser, indicated that to complete a review of the record, he 

needed a copy of a NeuroMetrix study performed prior to the December 21, 2001 right carpal 

tunnel release, the April 4, 2005 operative report for appellant’s left shoulder surgery, and any 

additional diagnostic tests. At OWCP’s request, appellant forwarded the November 1, 2001 

NeuroMetrix test; Dr. Lebar’s treatment notes from November 9, 2001 to September 7, 2006; 

November 11, 2004 bilateral shoulder x-rays that demonstrated degenerative changes about the 

ACL joints; bilateral hand x-rays dated November 11, 2004 that demonstrated degenerative joint 

disease; a preoperative history and physical dated April 1, 2005 prior to left shoulder surgery; 

and an April 4, 2005 operative report for left shoulder acromioplasty and distal clavicle excision 

for left shoulder rotator cuff tendinitis and ACL joint arthritis. 

On July 24, 2013 Dr. Slutsky reviewed the record, including Dr. Markellos’ report. He 

stated that maximum medical improvement was reached on September 21, 2011. Dr. Slutsky 

agreed that, as there was no clinical evidence of carpal tunnel syndrome or cubital tunnel 

syndrome, appellant had no impairment for these conditions. He noted that the A.M.A., Guides

provide that range of motion is used primarily as a physical examination adjustment factor and, 

only if no other approach was available, should an impairment calculation be based on range of 

motion. Dr. Slutsky advised that appellant’s most impairing diagnosis was bilateral/lateral 

epicondylitis. Under Table 15-4, he determined that appellant had one percent impairment of 

each arm due to a diagnosis of lateral epicondylitis. 

By decision dated August 21, 2013, appellant was granted schedule awards for one 

percent impairment of the right and left arms. The awards totaled 6.24 weeks, to run from 

September 21 to November 3, 2011. OWCP credited the opinion of Dr. Markellos who provided 

a referee impairment evaluation.4

 

 4

 In the August 21, 2013 decision, OWCP identified the conflict as between the opinions of Drs. Graf, Brigham 

and Leonard. 
6

LEGAL PRECEDENT 

The schedule award provision of FECA5 and its implementing federal regulations,6 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.7 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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).9

 Under the sixth edition, for upper extremity impairments the evaluator 

identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by 

grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and 

Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX).11 In determining entitlement to a schedule award, preexisting impairment to the 

scheduled member is to be included.12

Although the diagnosis-based approach is the preferred method of evaluating permanent 

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

13 Table 15-2 through Table 15-5 

provide that, if loss of motion is present, the impairment may alternatively be assessed under 

section 17-7, range of motion impairment.14 A range of motion impairment stands alone and is not 

combined with a diagnosis-based impairment.15

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.16 In 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

8

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

9

 A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.” 

10 Id. at 385-419. 

11 Id. at 411. 

12 Peter C. Belkind, 56 ECAB 580 (2005). 

13 A.M.A., Guides, supra note 4 at 461, section 15.7. 

14 Id. at 391-05. 

15 Id. at 405. 

16 Id. at 449. 
7

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.17 

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.18 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.19 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.20 

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’s medical adviser who 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.21 

ANALYSIS 

The accepted conditions in this case are bilateral carpal tunnel syndrome, bilateral/lateral 

epicondylitis and bilateral forearm tendinitis. 

The Board notes that Dr. Brigham considered appellant’s impairment rating on two 

occasions. OWCP procedures indicate that only after a case has been referred for a referee 

examination, is it necessary to route the file to a new OWCP medical adviser for schedule award 

calculation review.22 In this case, OWCP referred appellant’s file to Dr. Brigham in 

December 2010 and October 2011, prior to its determination in May 2012 that a conflict in 

medical evidence arose. There was no error in referring the record to Dr. Brigham on two 

occasions. The Board also notes that, although Dr. Slutsky submitted two reports dated 

 17 Id. at 448-50. 

18 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

19 20 C.F.R. § 10.321. 

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

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

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

22 Id. 
8

November 13, 2012 and July 24, 2013, he merely requested OWCP to obtain additional test 

reports. In the second report, he reviewed the record including the additional evidence. 

As to appellant’s arguments regarding the statement of accepted facts, OWCP procedures 

provide that the statement of accepted facts should include accepted conditions.23 There is no 

mandate that it include preexisting or subsequently acquired conditions. OWCP has not accepted 

that appellant sustained an employment-related shoulder condition. However, as discussed 

below, preexisting impairment to a scheduled member is to be included in an impairment 

analysis.24

Regarding the identified conflict in medical opinion, the Board notes that OWCP stated 

that it arose between Dr. Leonard, who provided a second opinion evaluation for OWCP, and 

Dr. Brigham, an OWCP medical adviser. The Board has held a conflict in medical evidence is 

created between the medical opinion of an employee’s physician and the medical opinion of 

either a second opinion physician or an OWCP medical adviser, not between two OWCP 

physicians.25 Since the conflict in this case was between two OWCP physicians, Dr. Markellos 

cannot serve as a referee physician. His opinion cannot be accorded the special weight accorded 

an impartial examiner.26 Dr. Markellos’ opinion, however, can still be considered for its own 

intrinsic value.27 His impairment conclusion, as supported by that of Dr. Leonard and 

Drs. Brigham and Slutsky, OWCP medical advisers, constitutes the weight of the medical 

evidence that appellant has one percent impairment of each arm due to epicondylitis and no 

impairment of either arm due to carpal tunnel syndrome. Both Dr. Leonard and Dr. Markellos 

performed thorough physical examinations. Dr. Leonard advised that, in accordance with the 

A.M.A., Guides, utilizing the diagnosis-based impairment methodology, under Table 15-4, 

appellant had one percent impairment of each upper extremity due to bilateral elbow 

epicondylitis. He found no impairment due to carpal tunnel syndrome, noting that there were no 

sensory deficits on his examination. Dr. Leonard concluded that appellant had one percent 

impairment of each arm. Dr. Markellos agreed with this conclusion regarding appellant’s upper 

extremity impairments, as did Dr. Brigham in his October 27, 2011 report and Dr. Slutsky on 

July 24, 2013. 

While Dr. Graf performed an impairment evaluation, he did not appropriately follow the 

process outlined in the A.M.A., Guides. Rather he did not reference tables other than Table 15-

1, Definition of Impairment Classes. As Dr. Graf did not properly follow the procedures 

outlined in the A.M.A., Guides, his opinion is of diminished probative value.28 The Board 

 23 Id. at Chapter 2.809.5 (February 2013). 

24 Peter C. Belkind, supra note 12. 

25 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321. 

26 See, e.g., Delphia Y. Jackson, 55 ECAB 373 (2004) (where the Board found that OWCP improperly found a 

conflict under 5 U.S.C. § 8123 between two physicians, neither of whom was appellant’s physician; the physician 

selected to resolve the assumed conflict was not considered an impartial medical specialist and his report was not 

entitled to special weight). 

27 See Cleopatria McDougal Saddler, 47 ECAB 480 (1996). 

28 R.A., Docket No. 09-2134 (issued August 3, 2010). 
9

therefore concludes that the medical evidence of record establishes that appellant has one percent 

impairment of each upper extremity due to epicondylitis and no impairment of either upper 

extremity due to carpal tunnel syndrome. 

CONCLUSION 

The Board finds appellant has failed to establish more than one percent permanent 

impairment of the right or left upper extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the August 21, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed.29

Issued: September 4, 2015 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 29 Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member 

of the Board effective December 27, 2014.