United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.A., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer

__________________________________________

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Docket No. 17-0665

Issued: November 8, 2017

Appearances: Case Submitted on the Record

John L. Whitehouse, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 2, 2017 appellant, through counsel, filed a timely appeal from a 

November 8, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(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 six percent permanent impairment of the 

left upper extremity, for which he previously received a schedule award.

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 20, 2009 appellant, then a 58-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on August 20, 2009 his left hand and arm were numb and 

painful after he moved a steel postal cage that struck a dock plate. He stopped work on 

August 20, 2009. 

OWCP accepted appellant’s claim for left cubital tunnel syndrome. It paid continuation 

of pay (COP) and wage-loss compensation. 

On November 20, 2009 appellant underwent authorized left carpal tunnel release surgery 

and stopped work. OWCP paid wage-loss compensation until January 7, 2010. On January 8, 

2010 appellant returned to full duty.

Appellant underwent a left hand electromyography (EMG) and nerve conduction velocity 

(NCV) study on July 5, 2012 by Dr. Albert L. Fullerton, a neurologist. Dr. Fullerton noted 

evidence of a significant residual left ulnar neuropathy at the elbow, affecting sensory and motor 

components, and a mild residual left medial neuropathy at the wrist affecting motor components. 

On January 31, 2013 appellant filed a claim for a schedule award (Form CA-7).

By letter dated February 15, 2013, OWCP requested that appellant provide a medical 

report from his treating physician with an opinion on whether he had reached maximum medical 

improvement (MMI) and whether he had a permanent impairment rating utilizing the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).3 Appellant was afforded 30 days to submit the additional 

evidence.

Appellant submitted reports by Dr. Benjamin P. Levine, a Board-certified orthopedic 

hand surgeon, dated January 18, 2012 to March 5, 2013. Dr. Levine noted appellant’s history of 

left hand cubital tunnel syndrome. He related appellant’s complaints of localized pain on the 

palmar side of his hand with worsening symptoms with pressure. Dr. Levine indicated that the 

left hand EMG study on July 5, 2012 showed a significant residual left ulnar neuropathy at the 

elbow and a mild residual left medial neuropathy at the wrist, with no evidence of cervical 

radiculopathy. He reviewed appellant’s history and conducted a physical examination of 

appellant’s left elbow. Dr. Levine noted no swelling, ecchymosis, or erythema. Range of 

motion was active and normal. Dr. Levine reported that sensory examination showed decreased 

sensation in the ulnar nerve distribution. Tinel’s test was positive for cubital tunnel syndrome.

Dr. Levine diagnosed cubital tunnel syndrome.

In a letter dated March 5, 2013, appellant informed OWCP that Dr. Levine was unable to 

provide a report because he had recommended additional surgery. 

 

3

6

th ed. 2009.
3

By letter dated April 16, 2013, appellant informed OWCP that he cancelled his surgery 

with Dr. Levine and wished to proceed with his schedule award claim. He noted that he had 

asked Dr. Levine more than once for a narrative report. 

Dr. Levine related in a June 21, 2013 report that he first treated appellant on 

August 25, 2009. He noted that appellant underwent EMG testing, which showed symptoms of 

possible ulnar tunnel and cubital tunnel of appellant’s left wrist and ulnar nerve. Dr. Levine 

indicated that, based on the EMG results, surgery was performed on November 20, 2009. He 

related that he examined appellant again on January 7, 2010 and noted that appellant was doing 

great so he authorized appellant to return to work. 

Dr. Levine reported that he examined appellant on January 18, 2012 because of 

complaints of pain on the palmer side of his left hand and problems holding objects. He 

indicated that appellant’s examination was consistent with cubital tunnel syndrome. Dr. Levine 

opined that he was not sure whether or not appellant had reached MMI. He explained that, if 

appellant decided not to have any surgical intervention then he was at MMI, but a repeat surgery 

of this nature would not ensure a normal hand since appellant had residual symptoms after the 

first surgery. Dr. Levine diagnosed carpal tunnel and cubital tunnel syndrome. He reported that 

appellant continued to have difficulty grabbing and performing fine manipulation. Dr. Levine 

advised that appellant refrain from repetitive elbow flexion. He indicated that he was not 

comfortable giving appellant a rating based on the sixth edition of the A.M.A., Guides because 

he had not properly measured all of appellant’s functionality in terms of motor and range of 

motion. Dr. Levine recommended surgical intervention.

By letter dated October 31, 2013, counsel advised OWCP that it was enclosing

Dr. Levine’s response to the February 15, 2013 development letter. He submitted an October 29, 

2013 report by Dr. Levine. In this report Dr. Levine related that appellant’s left hand and elbow 

were problematic. Upon examination of appellant’s left elbow, he observed no swelling, 

ecchymosis, or erythema. Range of motion was active and normal. Sensory examination 

showed decreased sensation in the ulnar nerve distribution. Dr. Levine reported that Tinel’s test 

was positive for cubital tunnel. Elbow flexion was also positive. Dr. Levine diagnosed cubital 

tunnel syndrome. He opined that, according to Table 15-21, page 443 of the A.M.A., Guides, 

appellant was a class 2, which resulted in 17 percent upper extremity impairment and 10 percent 

whole body impairment according to Table 15-11.

OWCP referred appellant, along with a statement of accepted facts (SOAF) and the 

record, to Dr. Frank A. Graf, a Board-certified orthopedic surgeon, for a second opinion 

examination in order to determine whether appellant sustained any ratable impairment of his left 

upper extremity condition in accordance with the A.M.A., Guides.

In a February 11, 2014 report, Dr. Graf reviewed the SOAF and the evidence of record. 

He noted that appellant’s claim was accepted for cubital tunnel syndrome and that appellant had 

also undergone left carpal tunnel release surgery. Dr. Graf indicated that an August 30, 2012 

EMG study showed significant residual left ulnar neuropathy and residual median neuropathy. 

He related appellant’s current complaints of continued numbness, tingling, and pain along the 

left ulnar border forearm and in all digits of the left hand. Upon physical examination, Dr. Graf 

reported positive Tinel’s sign of appellant’s right wrist and positive Tinel’s sign of his right ulnar 
4

cubital tunnel. Examination of appellant’s left upper extremity revealed a thinning of the 

interosseous muscles diffusely present on the left and thenar atrophy. Dr. Graf reported that 

Phalen’s test or carpal tunnel was negative on the left. He indicated that Tinel’s test was positive 

at the left wrist and at the ulnar cubital tunnel.

Dr. Graf reported that appellant had reached MMI regarding his left and right upper

extremities. He explained that appellant obtained little benefit from surgery and did not wish to 

have another surgery. Dr. Graf further recommended that appellant’s claim be expanded to 

include right carpal tunnel and right ulnar cubital tunnel dysfunction. He referenced Table 15-

21, page 443, of the A.M.A., Guides and indicated that appellant was a class 2, grade C for ulnar 

nerve above forearm, which equaled 17 percent left upper extremity impairment. Dr. Graf also 

referred to Table 15-21, page 438 for median nerve below mid forearm entire nerve with 

moderate sensory deficit and noted that appellant was a class 2, grade C which equaled 17 

percent left upper extremity impairment. He applied the net adjustment formula to the default 

ratings for each condition and noted grade modifiers of 2 for Functional History (GMFH), 2 for 

Physical Examination (GMPE), and 2 for Clinical Studies (GMCS). Utilizing the Combined 

Values Chart, Dr. Graf indicated that appellant had combined 31 percent left upper extremity 

impairment. 

In a March 4, 2014 addendum report, Dr. Graf related that his opinion was based upon 

history taken directly from the patient, patient examination, and with reference to the sixth 

edition of the A.M.A., Guides. He indicated that the ratings submitted would not be recalculated 

since they represented his opinion of appellant’s permanent impairment. 

In a May 4, 2014 report, Dr. David I. Krohn, a Board-certified internist and OWCP 

medical adviser, noted that he had reviewed Dr. Graf’s February 11, 2014 report. He indicated 

that Dr. Graf combined appellant’s impairment for carpal tunnel syndrome and for ulnar nerve 

impairment to obtain appellant’s final impairment rating, but the SOAF did not include carpal 

tunnel syndrome as an accepted work-related condition. Dr. Krohn also related that Dr. Graf 

assigned a grade modifier of 2 for clinical studies, but he would have assigned a grade modifier 

of 1 because appellant did not have a second left ulnar nerve transposition in June 2013 as

Dr. Graf noted. He assigned a MMI date of February 11, 2014. Dr. Graf referenced Table 15-

21, page 443, of the A.M.A., Guides, for ulnar nerve injury and related that appellant was a class 

2 for moderate motor deficit, which equaled 17 percent permanent impairment of the left upper 

extremity. Dr. Krohn reported grade modifiers of 2 for GMFH, 2 for GMPE, and 1 for GMCS. 

After applying the net adjustment formula, he calculated that appellant had 15 percent left upper 

extremity permanent impairment.

OWCP found that a conflict in medical evidence existed between the opinions of

Dr. Graf, the second opinion physician, and Dr. Krohn, OWCP’s medical adviser, regarding the 

degree of appellant’s permanent impairment of his left upper extremity. It referred appellant to

Dr. Joseph Abate, a Board-certified orthopedic surgeon, for an impartial medical examination 

and opinion to resolve the conflict in medical opinion evidence.

In a December 8, 2014 report, Dr. Abate reviewed the SOAF and appellant’s history. 

Upon physical examination of appellant’s left upper extremity, he observed a minimal visible 

scar at the right wrist with a mildly positive Tinel’s and Phalen’s test. Dr. Abate reported 
5

weakness of grasp, 50 percent left as compared to right. He noted mild arthritic deformities of 

the DIP joints, index and long fingers, and minimal sensory loss to pin prick of thumb, index, 

and long finger. Examination of appellant’s left elbow demonstrated positive Tinel’s sign with 

tingling into the fourth and fifth fingers and positive elbow flexion test. Dr. Abate diagnosed 

status post left cubital tunnel syndrome postoperative with residual and left carpal tunnel 

syndrome postoperative. 

Dr. Abate noted that Dr. Krohn disagreed with Dr. Graf’s impairment rating because the 

SOAF did not include carpal tunnel syndrome as an accepted work-related condition. He related 

that the SOAF did include appellant’s left carpal tunnel syndrome. Dr. Abate reported that 

including both impairments and based on his physical findings, appellant had 17 percent 

impairment left upper extremity. He referenced Table 15-21, page 443, of the A.M.A., Guides 

and noted that appellant had moderate motor deficit for a class 2, default 17 percent permanent 

impairment of the left upper extremity. Dr. Abate reported grade modifiers of 0 for GMPE 

and -1 for GMCS for conduction delay, no motor conduction block for a total of 15 percent left 

upper extremity impairment. He related that appellant also had 17 percent left upper impairment 

for nerve below mid forearm moderate sensory. Dr. Abate utilized the Combined Values Chart 

and concluded that appellant had a total of 29 percent left upper extremity impairment. He noted 

an MMI date of November 20, 2009. 

OWCP referred appellant’s schedule award claim to a second OWCP medical adviser. In 

a May 5, 2015 report, Dr. Henry J. Magliato, a Board-certified orthopedic surgeon, reviewed 

appellant’s history and noted that his claim was accepted for left hand cubital tunnel syndrome. 

He indicated that he reviewed and disagreed with the December 8, 2014 impairment rating and 

report. Dr. Magliato explained that appellant’s permanent impairment should have been rated 

under the peripheral nerve entrapment section on page 448, 449, and Table 15-23. He noted that 

when there are two entrapments in the same extremity, the second one was rated at only 50 

percent and the two values are then combined for the total left upper extremity impairment. 

Dr. Magliato related that appellant’s positive neurological findings should have been included in 

the GMPE, which would either increase or decrease the default value. He recommended that the 

impartial medical examiner use the correct methods as outlined above or get a new impartial 

medical examiner.

In a May 30, 2015 report, Dr. Abate noted that he received OWCP’s request to provide a 

supplemental report with an impairment rating based on Table 15-23, page 448, for peripheral 

nerve entrapment. He indicated that based on the conditions of carpal tunnel and cubital tunnel 

syndrome status postsurgical release, appellant had a GMCS of one due to conduction delay, 

GMFH of one for mild intermittent symptoms, and a GMPE of two for decreased sensation. 

Dr. Abate related that appellant had an average of 1.3 for a default impairment of two percent 

upper extremity impairment. He explained that for ulnar nerve entrapment, appellant had GMCS 

of one for conduction delay, GMFH of two for significant intermittent symptoms, and GMPE of 

two for decreased sensation for an average of two. Dr. Abate noted that appellant had a default 

value of five percent upper extremity impairment. He related that he selected the lower value of 

four percent impairment for the ulnar nerve. Dr. Abate calculated that with the full four percent 

impairment combined with 50 percent of the rating of the second nerve at two percent, the 

combined value of four percent and one percent resulted in a total of five percent left upper 

extremity permanent impairment. 
6

Dr. Magliato reviewed Dr. Abate’s May 30, 2015 supplemental report in a July 24, 2015 

report. He calculated that appellant had two percent impairment for median nerve entrapment 

and five percent impairment for ulnar nerve entrapment. Dr. Magliato noted that Dr. Abate used 

the “lowest value” for four percent impairment, but it was not clear why. He explained that 

when he combined five percent impairment with one percent impairment, appellant had a total of 

six percent left upper extremity permanent impairment. Dr. Magliato recommended that OWCP 

either accept a six percent left upper extremity impairment rating or ask Dr. Abate why he 

reduced the five percent for the ulnar nerve to the lower value of four percent.

In an October 2, 2015 report, Dr. Abate noted that he erroneously changed appellant’s 

left ulnar nerve impairment rating from five percent to four percent. He reported that the correct 

value for ulnar nerve impairment should be five percent plus the median nerve value at one 

percent for a total of six percent left upper extremity permanent impairment. 

OWCP noted in a February 4, 2016 memorandum that Dr. Abate should be treated as a 

second opinion examiner because it incorrectly declared a conflict in medical opinion between

Dr. Graf and Dr. Krohn. 

In a decision dated February 10, 2016, OWCP granted appellant a schedule award for six 

percent permanent impairment of the left upper extremity. It noted a MMI date of 

February 11, 2014. The award ran from February 11 to June 22, 2014. OWCP noted that 

appellant’s permanent impairment rating was based on Dr. Abate’s October 2, 2015 report and

Dr. Magliato’s July 24, 2015 report. 

On February 22, 2016 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. On June 30, 2016 OWCP advised appellant that it received his 

petition to withdraw his hearing request and that it was returning his claim back to the district 

OWCP. 

On September 2, 2016 appellant, through counsel, requested reconsideration. He 

reviewed the timeline of appellant’s schedule award claim. Counsel alleged that OWCP erred in 

instructing Dr. Abate to evaluate appellant’s impairment in accordance with Table 15-23 rather 

than Table 15-21 as used by Drs. Graf, Krohn, Levine, and Abate. He noted that the A.M.A., 

Guides indicated that Section 15-23 “may” be used when rating more than one impairment. 

Counsel asserted that the language was permissive, not mandatory. He related that Table 2.1 

mandated that, if the A.M.A., Guides provided for more than one method to rate a particular 

impairment or condition, the method producing the higher rating “must be used.” Counsel 

further alleged that OWCP should not have obtained a second opinion from Dr. Abate when it 

had already obtained a second opinion from Dr. Graf. He asserted that OWCP should have 

adopted Dr. Graf’s impairment rating.

By decision dated November 8, 2016, OWCP denied modification of the February 10, 

2016 schedule award decision. It found that Dr. Magliato and Dr. Abate properly based 

appellant’s impairment rating on Table 15-23 of the A.M.A., Guides because appellant’s 

impairment rating was based on diagnoses of carpal and cubital tunnel syndrome.
7

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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.4 FECA, however, does not 

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

method used in making such determination is a matter which rests in the sound 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. The 

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of scheduled losses and 

the Board has concurred in such adoption.5 For schedule awards after May 1, 2009, the 

impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.6

The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method 

of evaluation utilizing the World Health Organization’s International Classification of 

Functioning, Disability and Health (ICF).7 Under the sixth edition, the evaluator identifies the 

impairment for the Class of Diagnoses (CDX) condition, which is then adjusted by grade 

modifiers based on functional history, physical examination, and clinical studies. The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Evaluators are 

directed to provide reasons for their impairment rating choices, including the choices of 

diagnosis from regional grids and calculations of modifier scores.9

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

10

 In Table 15-23, grade 

modifier levels (ranging from zero to four) are described for the categories of 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 based on functional scale, an assessment of impact on daily 

living activities.11 The A.M.A., Guides specifically indicate that, if multiple simultaneous 

neuropathies occur in the same limb, both impairments may be related and the nerve qualifying 

for the larger impairment is given the full impairment while the nerve qualifying for the smaller 

 

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

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

Claims, Chapter 2.806.6.6a (January 2010). 

7 A.M.A., Guides (6th ed. 2009) 3, section 1.3.

8

Id. at 385-419.

9

See R.V., Docket No. 10-1827 (issued April 1, 2011).

10 Supra note 5 at 449.

11 Id. at 448-49.
8

impairment is rated at 50 percent.12 The A.M.A., Guides further indicate that Table 15-23 is to 

be used for rating focal nerve compromise,13 and Appendix 15-B provides further guidance 

regarding electrodiagnostic evaluation of entrapment syndromes.14

ANALYSIS

OWCP accepted appellant’s claim for left cubital tunnel syndrome as a result of an 

August 20, 2009 employment injury. On November 20, 2009 appellant underwent authorized 

left ulnar nerve and carpal tunnel release surgery. On January 31, 2013 he filed a claim for a 

schedule award. By decision dated February 10, 2016, OWCP granted appellant a schedule 

award of six percent permanent impairment of the left upper extremity. On November 8, 2016 it

denied modification of its February 10, 2016 schedule award decision and found that appellant 

did not have more than six percent left upper extremity permanent impairment.

The Board finds that appellant has not met his burden of proof to establish more than six 

percent permanent impairment of the left upper extremity.

OWCP granted appellant’s schedule award based on the opinion of Dr. Magliato, the 

second OWCP medical adviser. In a July 24, 2015 report, Dr. Magliato related that he reviewed

Dr. Abate’s May 30, 2015 report, which determined that appellant had five percent permanent 

impairment of the left upper extremity according to the A.M.A., Guides. In calculating 

appellant’s impairment for left cubital tunnel syndrome, he properly utilized Table 15-23, 

Entrapment/Compression Neuropathy, Impairment, page 449 of the A.M.A., Guides and 

properly applied Dr. Abate’s clinical findings. Dr. Magliato noted that for appellant’s median 

nerve entrapment, appellant had a grade modifier of one for test findings for conduction delay. 

Clinical studies included a July 7, 2012 EMG/NCV study, which showed evidence of significant 

residual left ulnar neuropathy and mild residual left medial neuropathy at the wrist. Dr. Magliato 

further determined that appellant had grade modifier of one for functional history due to mild 

intermittent symptoms and grade modifier of two for physical examination for decreased 

sensation. He properly calculated the average of the modifiers to equal one and determined that 

appellant had two percent left upper extremity impairment under Table 15-23 of the A.M.A., 

Guides based on Dr. Abate’s clinical findings. 

Regarding appellant’s ulnar nerve entrapment, Dr. Magliato reported that appellant had 

grade modifier of one for clinical studies. He also noted a grade modifier of two for functional 

history due to significant intermittent symptoms and two for physical examination due to 

decreased sensation. Dr. Magliato properly calculated the average of the modifiers to equal two, 

which resulted in five percent left upper extremity impairment. He indicated that he disagreed 

with Dr. Abate’s decision to use the lower value of four percent to rate appellant’s ulnar nerve 

entrapment and noted that Dr. Abate did not explain why he chose the lower value. Dr. Magliato 

further noted that for patients with multiple neuropathies, the second or smaller nerve 

 

12 Id. at 448.

13 Id. 

14 Id. at 487-90
9

impairment was rated at 50 percent of the impairment listed in Table 15-23. He accurately 

combined these impairment ratings and concluded that appellant had six percent permanent 

impairment of the left upper extremity. In an October 2, 2015 report, Dr. Abate agreed with

Dr. Magliato’s impairment rating that the correct value for ulnar nerve impairment should be five

percent. He noted that he erroneously changed appellant’s left ulnar nerve impairment rating 

from five percent to four percent. 

The Board finds that OWCP’s medical adviser’s opinion represents the weight of the 

evidence and establishes that appellant has no more than the six percent permanent impairment 

previously awarded. In his July 24, 2015 report, Dr. Magliato properly applied the appropriate 

provisions of the A.M.A., Guides to the clinical findings of record to determine appellant’s 

impairment rating for his accepted left cubital tunnel syndrome.15 There is no current medical 

evidence of record, in conformance with the sixth edition of the A.M.A., Guides, showing 

greater impairment.

The Board finds that the additional medical reports on the record fail to establish that 

appellant has more than six percent permanent impairment of the left upper extremity. 

In support of his schedule award claim, appellant submitted a report from his treating 

physician, Dr. Levine, who opined in an October 29, 2013 report that appellant had 17 percent 

left upper extremity permanent impairment according to Table 15-21, page 443, of the A.M.A., 

Guides and 10 percent whole body impairment according to Table 15-11, page 420 of the of the 

A.M.A., Guides. As noted above, however, when rating impairment due to cubital tunnel 

syndrome an evaluator should follow the scheme outlined in Table 15-23 for Entrapment/

Compression Neuropathy Impairment of the A.M.A., Guides and accompanying relevant text.16 

The Board has held that an attending physician’s report is of diminished probative value where 

the A.M.A., Guides are not properly followed.17 Because Dr. Levine did not properly follow the 

A.M.A., Guides in providing an impairment rating for appellant’s left cubital tunnel syndrome, 

his report is insufficient to support an additional schedule. 

Likewise, the reports of OWCP’s referral physicians, including Dr. Graf’s February 11, 

2014 report, Dr. Krohn’s May 4, 2014 report, and Dr. Abate’s December 8, 2014 report also fail 

to demonstrate that appellant is entitled to an additional schedule award as their impairment 

ratings were also improperly based on Table 15-21 of the A.M.A., Guides. The Board has found 

that when the examining physician does not provide an estimate of impairment conforming to the 

proper edition of the A.M.A., Guides, OWCP may rely on the impairment rating provided by the 

medical adviser.18 

The Board finds that Dr. Magliato, the second OWCP medical adviser, was the only 

physician of record who properly applied the specific methodology for rating appellant’s left 

 

15 See M.T., Docket No. 16-0296 (issued May 20, 2016).

16 Supra note 8.

17 J.G., Docket No. 09-1128 (issued December 7, 2009).

18 See J.Q., 59 ECAB 366 (2008).
10

upper extremity permanent impairment due to his accepted left cubital tunnel syndrome in 

accordance with the A.M.A., Guides. Accordingly, there is no medical basis to support 

appellant’s claim for an additional schedule award. 

On appeal counsel alleges that OWCP erroneously failed to use Table 15-21 of the 

A.M.A., Guides in determining appellant’s schedule award benefits. As explained above, 

however, the proper method for rating permanent impairment due to cubital tunnel syndrome is 

found in Table 15-23 of the A.M.A., Guides. The Board finds that, as the second OWCP 

medical adviser properly applied the A.M.A., Guides to determine appellant’s left upper 

extremity permanent impairment, his opinion represents the weight of the medical evidence.

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not established more than six percent permanent 

impairment of the left upper extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 8, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board