United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.Q., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

PUGET SOUND HEALTH CARE SYSTEM, 

Seattle, WA, Employer 

__________________________________________ 

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Docket No. 15-1933 

Issued: January 27, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 28, 2015 appellant filed a timely appeal of a June 8, 2015 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 to 

consider the merits of the case. 

ISSUE 

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of her right upper extremity entitling her to a schedule award. 

FACTUAL HISTORY 

On July 30, 2013 appellant, then a 35-year-old health technician, filed an occupational 

disease claim (Form CA-2) alleging that repetitive use of her right forearm and hand in the 

performance of her job duties, while conducting venipunctures, had resulted in injury. Dr. Nilda 

 1

 5 U.S.C. § 8101 et seq.
2

Arbelo, a Board-certified family practitioner, examined appellant on July 29 and August 5, 2013 

and described appellant’s complaints of right wrist, thumb and forearm injury as a result of her 

work as a phlebotomist. She diagnosed tendinitis of the right forearm and wrist with paresthesia 

component. Appellant underwent nerve conduction studies and electromyography (EMG) of the 

right arm on August 7, 2013 which were normal. 

On August 19, 2013 OWCP accepted appellant’s claim for radial styloid tenosynovitis of 

the right thumb and tendinitis of the right forearm and wrist. 

Appellant underwent a magnetic resonance imaging (MRI) scan on October 23, 2013 

which demonstrated mild tenosynovitis of the extensor pollicis tendons consistent with a history 

of de Quervain’s tendinitis as well as heterogeneous triangular fibrocartilage with either fraying 

or a small tear. On December 12, 2013 Dr. William L. Clark, a Board-certified orthopedic 

surgeon and hand surgeon, diagnosed de Quervain’s tenosynovitis associated with repetitive 

overuse. He recommended a first dorsal compartment release. 

On January 15, 2014 Dr. Clark performed an authorized first dorsal compartment release 

and synovectomy. He found that the first dorsal compartment had significant tenosynovitis with 

inflamed tendons. Dr. Clark noted the radial sensory nerve overlying the first dorsal 

compartment appeared inflamed, enlarged and slightly erythematous. 

In a report dated May 1, 2014, Dr. Clark noted that appellant was experiencing a delayed 

recovery. He attributed her condition to inflammation and irritation of the radial sensory nerve. 

Dr. Clark released appellant to return to work four hours a day. On June 12, 2014 he noted that 

appellant continued to experience pain. Dr. Clark reported a negative Finkelstein’s test, but 

hypersensitivity over the radial aspect of her wrist with decreased sensation and paresthesia of 

the radial sensory nerve. He applied an immobilization cast. On July 11, 2014 Dr. Clark 

diagnosed Wartenberg syndrome or continued and persistent irritation of the radial sensory 

nerve. He examined appellant on August 21, 2014 and found negative Finkelstein’s test, 

decreased hypersensitivity and dysesthesias over the radial sensory nerve. 

In a note dated September 23, 2014, Dr. Clark found that appellant had no signs of 

de Quervain’s tenosynovitis. He reported that appellant continued to exhibit dysesthesias in the 

radial sensory nerve distribution. Dr. Clark diagnosed radial sensory nerve irritation/ 

Wartenberg’s syndrome. He also diagnosed diffuse wrist and hand pain without significant 

osteoarthritis. Dr. Clark opined that appellant had partial impairment and was partially disabled. 

OWCP referred appellant for a second opinion evaluation on October 31, 2014 with 

Dr. Alfred Blue, a Board-certified orthopedic surgeon. Dr. Blue examined appellant on 

November 18, 2014. He described her work duties and history of injury. Dr. Blue performed a 

physical examination and found that appellant’s de Quervain’s disease had resolved and that 

appellant had reached maximum medical improvement with regard to this condition. He 

concluded that appellant had no objective complaints. Dr. Blue stated that appellant had a loss of 

wrist extension and loss of motion due to pain. He could not explain her loss of grip strength. 

Dr. Blue found strong evidence of low effort and inconsistent behavior during his examination 

and in reviewing her physical capacity evaluation. 
3

In a December 4, 2014 report, Dr. Clark reviewed appellant’s physical capacity 

evaluation and noted the report of poor effort and pain behavior on a statistically significant 

level. He recommended that appellant return to modified duty. Dr. Clark opined that pain from 

Wartenberg’s syndrome or peripheral nerve pain might cause pain behavior without significant 

objective findings. 

Appellant provided Dr. Clark with Dr. Blue’s report on February 12, 2015. On 

February 24, 2015 Dr. Clark diagnosed first dorsal compartment tenosynovitis and radial sensory 

nerve inflammation or Wartenberg’s syndrome. He did not agree that appellant’s right wrist was 

normal and did not believe that she could return to her full-time date-of-injury position. 

Dr. Clark agreed that appellant did not have objective findings that could be quantified and that 

her symptoms were basically subjective. He concluded, “With respect to permanent impairment, 

I would agree with Dr. Blue in that she does not have the physical criteria as outlined in the 

[American Medical Association, Guides to the Evaluation of Permanent Impairment2

] to warrant 

permanent impairment.... It is only to say that she does not have findings based on specific and 

detailed criteria in [the A.M.A., Guides] to warrant a ratable/calculable impairment.” 

Appellant filed a claim for compensation (Form CA-7) requesting a schedule award on 

March 3, 2015. 

In a report dated March 12, 2015, Dr. Alvin Nayan, a physician Board-certified in 

preventative medicine, noted appellant’s history of injury and medical treatment. He diagnosed 

regional impairment diagnosis following a first dorsal compartment release, post de Quervain’s 

tenosynovitis release with persistent positive Finkelstein’s test and minor limitation of 

movements. Dr. Nayan found swelling on the extensor tendon of the thumb and soreness on 

appellant’s surgical scar. He found loss of range of motion of the right wrist. Dr. Nayan 

reported negative Finkelstein’s test, Tinel’s sign, Phalen’s test and median nerve compression 

test. He found obvious weakness on resisted thumb range of motion, but no muscle atrophy. 

Dr. Nayan applied the A.M.A., Guides finding that appellant had a class 1, midrange default 

value of seven in accordance with Table 15-3.3

 He determined that appellant’s functional history 

grade modifier was 2, as was her physical examination grade modifier. Dr. Nayan indicated that 

her clinical studies grade modifier was based on MRI scan findings of chronic inflammation of 

the extensor tendons as well as mild tenosynovitis of the extensor pollicis longus. He opined that 

appellant’s net adjustment was +2 and that she had nine percent impairment of her right upper 

extremity. 

Dr. Nayan completed a report on May 14, 2015 and again diagnosed right de Quervain’s 

tenosynovitis and first dorsal compartment release. He opined that appellant had significant 

objective findings based on her operative report as well as physical examination. Dr. Nayan 

listed decreased range of motion and inflammation. He asserted, “I stand by my rating 

examination.” 

 2

 A.M.A., Guides, 6th ed. (2009). 

3

 A.M.A., Guides 395, Table 15-3. The Board notes that there is no class 1, grade C impairment value of seven 

on this page of the A.M.A., Guides. 
4

On May 28, 2015 OWCP’s medical adviser reviewed the record and appellant’s medical 

treatment. He noted that appellant’s physician Dr. Clark and the second opinion physician 

Dr. Blue agreed that appellant had reached maximum medical improvement and that there was 

no evidence of ratable impairment under the A.M.A., Guides based on objective physical 

findings. The medical adviser agreed with these reports. He reviewed Dr. Nayan’s report 

finding symptoms of pain and weakness in the right wrist and thumb resulting in nine percent 

impairment of the right arm due to de Quervain’s tenosynovitis. The medical adviser found that 

this impairment rating did not correlate with the diagnosis or impairment level in the A.M.A., 

Guides.

4

 He further determined that Dr. Nayan’s report was internally inconsistent as he 

attributed the impairment to a persistent positive Finkelstein’s test, but also reported that 

Finkelstein’s test was negative. The medical adviser further found that Dr. Nayan also failed to 

identify any atrophy to support appellant’s claimed weakness. He concluded that he agreed with 

Drs. Clark and Blue that appellant had no permanent impairment of her right upper extremity as 

objective findings were normal and there was significant evidence of symptom magnification. 

By decision dated June 8, 2015, OWCP denied appellant’s claim for a schedule award 

finding that the weight of the medical evidence failed to establish permanent impairment of the 

right upper extremity entitling her to a schedule award. 

LEGAL PRECEDENT 

The schedule award provision of FECA5

 and its implementing regulations6 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so 

that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

7

 

It is well established that, when the attending physician fails to provide an estimate of 

impairment conforming to the A.M.A., Guides his opinion is of diminished probative value in 

establishing the degree of permanent impairment and OWCP may rely on the opinion of its 

medical adviser to apply the A.M.A., Guides to the findings reported by the attending physician.8

 4

 A.M.A., Guides 395, Table 15-3. De Quervain’s disease of the wrist includes a maximum impairment rating of 

two percent. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010). 

8 Linda Beale, 57 ECAB 429, 434 (2006). 
5

ANALYSIS 

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her right upper extremity entitling her to a schedule award. 

OWCP accepted appellant’s claim for radial styloid tenosynovitis of the right thumb and 

tendinitis of the right forearm and wrist. Appellant’s surgeon, Dr. Clark diagnosed 

de Quervain’s tenosynovitis. He performed a surgical release of the first dorsal compartment on 

January 15, 2014 and described an inflamed, enlarged and slightly erythematous radial sensory 

nerve. Dr. Clark diagnosed Wartenberg’s syndrome or continued and persistent irritation of the 

radial sensory nerve on July 11, 2014. On September 23, 2014 he found that appellant had no 

signs of de Quervain’s tenosynovitis, but opined that she demonstrated permanent impairment. 

Dr. Blue, the second opinion physician, examined appellant on November 18, 2014 and 

found that appellant’s de Quervain’s disease had resolved and that appellant had reached 

maximum medical improvement with regard to this condition. Dr. Clark reviewed this report 

and agreed that appellant did not have permanent impairment as defined by the A.M.A., Guides. 

Appellant submitted a report from Dr. Nayan dated March 12, 2015 supporting nine 

percent impairment of her right arm due to de Quervain’s tenosynovitis. He indicated that he 

was applying the A.M.A., Guides. The Board finds that OWCP’s medical adviser properly noted 

that Dr. Nayan’s diagnosis and impairment rating are not in keeping with the A.M.A., Guides. 

The provision cited does not provide for more than two percent impairment and cannot support 

nine percent impairment as found by Dr. Nayan.9

 Furthermore, both Dr. Blue and Dr. Clark 

opined that appellant’s de Quervain’s tenosynovitis had resolved. These physicians opined that 

appellant had no ongoing ratable impairment as a result of this condition. The Board finds that 

the weight of the medical opinion evidence rests with appellant’s attending physician, Dr. Clark, 

who opined that her condition had no ratable impairment as Dr. Nayan did not provide findings 

consistent with his impairment rating. The Board finds that appellant has not submitted the 

necessary medical opinion evidence comporting with the A.M.A., Guides to establish permanent 

impairment entitling her to a schedule award due to her accepted right upper extremity 

conditions. 

On appeal, appellant notes her disagreement with OWCP’s decision and asserted that she 

continued having symptoms of her accepted conditions. As explained, the medical evidence 

does not establish that she has a ratable impairment pursuant to the A.M.A., Guides.

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 has not met her burden of proof to establish permanent 

impairment of her right upper extremity entitling her to a schedule award. 

 9

 A.M.A., Guides 395, Table 15-3. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 8, 2015 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: January 27, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board