United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRUBUTION CENTER, 

Capitol Heights, MD, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1934 

Issued: January 15, 2015 

Appearances: Case Submitted on the Record

Richard A. Daniels, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JURISDICTION 

On August 31, 2014 appellant, through her representative, filed a timely appeal from a 

March 31, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case. 

ISSUE 

The issue is whether appellant has more than two percent permanent impairment of each 

arm, for which she received schedule awards. 

FACTUAL HISTORY 

This case has previously been before the Board. In a decision dated June 16, 2011, the 

Board reversed a February 23, 2010 decision terminating appellant’s compensation for refusing 

 1

 5 U.S.C. § 8101 et seq. 
2

suitable work.2 The Board determined that the medical evidence was insufficient to establish 

that appellant met the physical requirements of the offered position. The facts and circumstances 

as set forth in the prior decision are hereby incorporated by reference. The facts relevant to the 

present appeal are set forth below. 

OWCP accepted that appellant, a contract technician, sustained bilateral carpal tunnel 

syndrome and bilateral wrist tendinitis causally related to factors of her federal employment. 

Electrodiagnostic testing performed in October 1999 revealed moderate carpal tunnel syndrome 

of the right wrist and mild carpal tunnel syndrome of the left wrist. Appellant underwent a right 

carpal tunnel release on October 29, 1999. She returned to part-time work on March 27, 2000. 

OWCP accepted that appellant experienced a recurrence of disability beginning March 6, 2001. 

In September 2009, appellant retired from the employing establishment and began receiving 

retirement benefits from the Office of Personnel Management. 

On December 6, 2012 appellant filed a claim for a schedule award. In an impairment 

evaluation dated October 26, 2012, Dr. David Weiss, an osteopath Board-certified in family 

practice, reviewed the medical records, including the results of electrodiagnostic testing. He 

noted that nerve conduction studies (NCS) performed on July 30, 1999 revealed moderate right 

carpal tunnel syndrome and mild left carpal tunnel syndrome. A December 6, 2006 NCS was 

normal and a March 10, 2010 NCS showed mild carpal tunnel syndrome bilaterally. Dr. Weiss 

diagnosed bilateral carpal tunnel syndrome post releases. Citing the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009), 

he identified the diagnosis as entrapment neuropathy of the wrists under Table 15-23 on page 

449. Dr. Weiss applied grade modifiers bilaterally of one for test findings, three for history, and 

one for physical examination, which yielded an average modifier of two and an upper extremity 

impairment of five percent. He advised that the QuickDASH (Disabilities of the Arm, Shoulder 

and Hand) score of 93 on the right and 95 on the left moved the impairment finding over one 

place to the left. Dr. Weiss concluded that appellant had a six percent permanent impairment of 

each upper extremity. 

On January 29, 2013 an OWCP medical adviser reviewed the evidence of record. He 

determined that Dr. Weiss’ findings in his October 26, 2012 report were sufficient to reach a 

schedule award rating. The medical adviser concurred with Dr. Weiss’ determination that 

appellant had a five percent upper extremity impairment using Table 15-23. He found, however, 

that it was unclear how Dr. Weiss found a QuickDASH score given that he did not perform an 

examination. The medical adviser thus concluded that appellant had a five percent rather than a 

six percent impairment of each upper extremity. 

On April 15, 2013 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified 

orthopedic surgeon, for an impairment evaluation. In a report dated April 30, 2013, Dr. Gordon 

discussed her complaints of hand pain worse on the right and difficulty performing activities 

such as brushing her hair, using dinner ware, and bathing. On examination he found full range of 

motion, mild thenar atrophy, and intact flexor and extensor function. Dr. Gordon noted that 

x-rays showed bilateral ulnar variance and mild arthritis of the carpometacarpal (CMC) joint. He 

 2

 Docket No. 10-2142 (issued June 16, 2011). 
3

diagnosed bilateral carpal tunnel syndrome and “unrelated carpometacarpal arthritis.” Using 

Table 15-23 of the A.M.A., Guides, Dr. Gordon applied grade modifiers of one for test findings 

based on the results of electrodiagnostic testing of mild to normal findings, two for history based 

on subjective complaints and one for physical findings of mild thenar atrophy with normal 

sensation. He rounded the modifiers to find a grade modifier of one and a two percent 

impairment of each upper extremity. 

On May 13, 2013 an OWCP medical adviser concurred with Dr. Gordon’s findings of a 

two percent permanent impairment of each upper extremity. Dr. Gordon opined that his opinion 

was entitled to more weight than Dr. Weiss as he was a Board-certified orthopedic surgeon and 

had performed a physical examination. 

By decision dated July 25, 2013, OWCP granted appellant a schedule award for a two 

percent permanent impairment of each upper extremity. The period of the award ran for 12.48 

weeks from April 30 to July 26, 2013. 

On November 13, 2013 appellant, through her representative, requested reconsideration. 

In support of the request, she submitted a September 17, 2013 report from Dr. Weiss, who 

reviewed her complaints of stiffness, pain, numbness, tingling, and weakness in her hands and 

difficulty performing activities of daily living. Appellant had a QuickDASH score of 90 on the 

left side and 95 on the right side. On examination of the right hand and wrist, Dr. Weiss found 

no thenar or hypothenar atrophy and a positive Tinel’s sign and Phalen’s test. For the left wrist 

he found thenar flattening and atrophy and a positive Tinel’s sign, Phalen’s test, and carpal 

compression test. Dr. Weiss measured range of motion of the wrists bilaterally, grip and pinch 

strength, and two-point discrimination. He diagnosed repetitive trauma disorder and bilateral 

carpal tunnel syndrome. Using Table 15-23 on page 449, Dr. Weiss found grade modifiers of 

one for test findings, three for history, and three for physical examination due to loss of pinch 

strength, which yielded a five percent permanent impairment of each upper extremity. He 

increased the rating to six percent for each upper extremity based on the QuickDASH scores. 

On March 23, 2014 an OWCP medical adviser noted that Dr. Weiss’ findings on physical 

examination differed substantially from Dr. Gordon even though his examination was only five 

months later. He indicated that the most recent electromyogram showed “mild abnormalities 

with no documentation of motor conduction block.” The medical adviser found that 

Dr. Gordon’s opinion was entitled to the most weight as he was a Board-certified orthopedic 

surgeon. He concurred with Dr. Gordon’s finding of a grade modifier of one for test results 

based on the lack of a motor conduction block, a grade modifier of two for history, and a grade 

modifier of one for physical findings of normal sensation. The medical adviser opined that 

Dr. Weiss’ QuickDASH recommendation was “totally inconsistent with Dr. Gordon’s 

examination and, therefore, it is negated.” 

By decision dated March 31, 2014, OWCP denied modification of its July 25, 2013 

decision. 

On appeal, appellant’s representative argues that the medical adviser erred in finding that 

Dr. Weiss’ opinion was entitled to less weight than that of Dr. Gordon. He advises that 
4

Dr. Weiss is qualified as an orthopedic surgeon. The representative argues that a conflict in 

medical opinion exists between Dr. Weiss and Dr. Gordon. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing federal regulations4 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.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. Recognizing that FECA allows ratings for 

extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to 

rating spinal nerve impairments.7 OWCP has adopted this approach for rating impairment to the 

upper or lower extremities caused by a spinal injury.8

 The impairment is premised on evidence 

of radiculopathy affecting the upper and/or lower extremities.9 

Section 8123(a) 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.10 The implementing regulations 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.11

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5

 Id. at § 10.404(a). 

6

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

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

7

 Federal (FECA) Procedure Manual, id. at Chapter 3.700, Exhibit 4 (January 2010); see R.M., Docket No. 

12-1811 (issued March 14, 2013). 

8 Id. 

9 Id. 

10 5 U.S.C. § 8123(a). 

11 20 C.F.R. § 10.321. 
5

ANALYSIS 

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral 

wrist tendinitis due to factors of her federal employment. On December 6, 2012 appellant filed a 

claim for a schedule award and, in support of her claim, submitted an October 26, 2012 

impairment evaluation from Dr. Weiss based on his review of the medical evidence. Dr. Weiss 

diagnosed bilateral carpal tunnel syndrome post releases. He noted that the most recent NCS 

revealed bilateral mild carpal tunnel syndrome. Dr. Weiss applied Table 15-23 on page 449, 

relevant to determining impairments due to entrapment neuropathy under the sixth edition of the 

A.M.A., Guides. He found that appellant had a grade modifier of one for test findings or clinical 

studies, a grade modifier of three for functional history, and a grade modifier of one for physical 

examination, which yielded an average grade modifier for the identified condition of entrapment 

neuropathy of two and a default impairment value of five percent. Dr. Weiss applied the 

QuickDASH score of 93 on the right and 95 on the left to move the default impairment over one 

place and concluded that appellant had a six percent permanent impairment of each upper 

extremity.12 

OWCP referred appellant to Dr. Gordon for a referral examination. In a report dated 

April 30, 2013, Dr. Gordon diagnosed bilateral carpal tunnel syndrome and arthritis of the CMC 

joint. On examination he found full range of motion and mild thenar atrophy. Dr. Gordon 

utilized Table 15-23 of the A.M.A., Guides and found that appellant had grade modifiers of one 

for test findings, two for history based on subjective complaints, and one for physical findings of 

mild thenar atrophy with normal sensation, which yielded a two percent permanent impairment 

of each upper extremity. 

On September 17, 2013 Dr. Weiss examined appellant and found a positive Tinel’s sign 

and Phalen’s test bilaterally and a thenar flattening, atrophy and a positive carpal compression 

test on the left. He applied grade modifiers for test findings or clinical studies of one, functional 

history of three, and physical examination of three to find a five percent permanent impairment 

of each upper extremity, which he increased to six percent due to the QuickDASH scores of 90 

on the left side and 95 on the right side. 

On March 23, 2014 an OWCP medical adviser indicated that the findings of Dr. Weiss 

and Dr. Gordon on physical examination differed significantly. He determined that Dr. Gordon’s 

opinion constituted the weight of the evidence as he was a Board-certified orthopedic surgeon 

and as electrodiagnostic testing did not reveal a motor conduction block. 

The Board finds that the case is not in posture for decision due to a conflict in medical 

opinion. Dr. Weiss provided an impairment rating in conformance with the protocols under the 

sixth edition of the A.M.A., Guides and found six percent permanent impairment of each upper 

extremity. Dr. Gordon, an OWCP referral physician, also properly applied the A.M.A., Guides

to his clinical findings and determined that appellant had two percent permanent impairment. 

 12 On January 29, 29013 an OWCP medical adviser indicated that Dr. Weiss properly found that appellant had a 

five percent upper extremity impairment using Table 15-23. He indicated, however, that it was not clear how 

Dr. Weiss arrived at a QuickDASH score and opined that appellant had a five rather than a six percent impairment of 

each upper extremity. 
6

Section 8123(a) of FECA provides that if there is a 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.13 On remand, OWCP should refer 

appellant to an appropriate physician for an impartial medical examination. Following this and 

any further development deemed necessary, it shall issue a de novo decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: January 15, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 13 5 U.S.C. § 8123(a).