United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Southeastern, PA, Employer 

__________________________________________ 

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Docket No. 15-1564 

Issued: March 4, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 13, 2015 appellant, through counsel, filed a timely appeal from a March 11, 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 over the merits of the case. 

ISSUE 

The issue is whether appellant is entitled to a schedule award greater than 23 percent to 

her right upper extremity, for which she has received an award. 

On appeal, counsel argues that OWCP improperly evaluated the medical evidence, and 

that at the very least, referral for an impartial medical examination is necessary. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 13, 2003 appellant, then a 51-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that after returning to work on October 15, 2002, following a July 8, 

2002 right carpal tunnel release, her symptoms recurred. On July 14, 2003 OWCP accepted her 

claim for proximal radiculitis with bilateral brachial plexitis. The record reflects that appellant 

had a previously accepted claim for bilateral carpal tunnel syndrome in OWCP File No. 

xxxxxx734. Appellant previously received a schedule award for 23 percent of each upper 

extremity based on accepted bilateral carpal tunnel syndrome in OWCP File No. xxxxxx734. 

The prior schedule award was calculated according to the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (fifth 

edition 2001). 

On October 30, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a May 6, 2011 report, Dr. Arthur Becan, an orthopedic surgeon, evaluated appellant 

under the sixth edition of the A.M.A., Guides (6th ed. 2009). He determined that pursuant to 

Table 15-20, appellant had a class 2 Class of Diagnosis (CDX) severe sensory deficit right 

brachial plexus (upper trunk) which equaled 18 percent impairment.2 Dr. Becan listed grade 

modifiers 3 for Functional History (GMFH) (based on a QuickDASH of 79 percent), and grade 

modifiers 1 for Clinical Studies (GMCS). Applying the formula set forth in the A.M.A., Guides, 

(GMFH-CDX) + (GMCS-CDX) = net adjustment, he determined that GMFH-CDX (3-2) =1, and 

GMCS-CDX (1-2) = -1, and adding these sums together yielded a net adjustment of 0, which left 

appellant with no grade modification, and a right upper extremity impairment after net 

adjustment of 18 percent. Dr. Becan next evaluated her severe sensory deficit right brachial 

plexus (middle trunk), which he found equaled a class 1 CDX of four percent pursuant to Table 

15-20.3 He then applied grade modifiers 3 for GMFH and 1 for GMCS. Applying the formula 

Dr. Becan determined that GMFH-CDX (3-1) = 2; GMCS-CDX (1-1) = 0. Adding 0 + 2 = 2, he 

noted a net adjustment of 2, which yielded a right upper extremity impairment of four percent. 

Dr. Becan then considered entrapment neuropathy right median nerve under Table 15-23,4 and 

noted test findings of 1, history of 3, and physical examination (decreased pinch) of 3, which 

equaled a total of 7, average 3, which equaled an eight percent impairment. He then noted that 

GMFH (QuickDASH of 79 percent) equaled 3, so the impairment remained 8 percent. Dr. Becan 

then combined the findings of 18 percent, 4 percent and 8 percent, and determined that appellant 

had 28 percent permanent impairment of the right upper extremity. With regard to the left upper 

extremity, he found an impairment of 22 percent. 

By letter dated September 4, 2013, counsel argued that an award be given for the right 

extremity for the difference between the 23 percent previously award and 28 percent found by 

Dr. Becan when he rated both of the accepted conditions of carpal tunnel syndrome and brachial 

plexopathy. Counsel did not request an extra award for impairment to the left upper extremity. 

 2

 A.M.A., Guides 434, Table 15-20. 

3 Id. at 435. 

4 Id. at 449. 
3

On November 4, 2013 OWCP referred appellant’s case to its medical adviser for 

evaluation of appellant’s impairment rating. In response, the medical adviser noted that 

appellant was previously issued a schedule award for 23 percent permanent impairment of each 

upper extremity, and that the additional award by Dr. Becan was based on a class 2 severity right 

brachial plexus impairment of 18 percent which was inconsistent with the clinical findings. 

Accordingly, she determined that appellant was not entitled to a greater schedule award. 

By decision dated December 2, 2013, OWCP denied appellant’s claim for an additional 

schedule award. 

On December 9, 2013 appellant, through counsel, requested a hearing. 

In an April 2, 2014 decision, the hearing representative remanded the case. She found 

that this case should be combined with File No. xxxxxx734, and that appellant should then be 

referred to an appropriate Board-certified specialist to perform an assessment in conformance 

with the sixth edition of the A.M.A., Guides. 

On April 7, 2014 OWCP doubled the cases in File Nos. xxxxxx429 and xxxxxx734 

(master). 

On April 8, 2014 OWCP referred appellant to Dr. Noubar A. Didizian, a Board-certified 

orthopedic surgeon, for a second opinion. In reports dated June 4, 2014, Dr. Didizian noted that 

she had previously received 46 percent bilateral upper extremity impairment for bilateral carpal 

tunnel. He noted that this brachial neuritis claim has been combined with the carpal tunnel claim 

to ascertain if there is any combined additional impairment. Dr. Didizian noted that, based on 

his examination and review of the record, he did not find any evidence of brachial plexopathy or 

neuritis, and appellant’s carpal tunnel syndromes had minimal sensory loss. In his supplemental 

report of the same date, he noted that, for bilateral carpal tunnel syndrome, status postsurgery, he 

used Table 15-23 of the A.M.A., Guides and found that the test findings indicating positive 

electromyogram (EMG) gave appellant a grade modifier 1 for sensory and/or motor loss; for 

history mild intermittent symptoms indicated a grade modifier 1; and for physical findings a 

grade modifier 1 was due to very mild findings. Dr. Didizian noted a normal functional scale. 

Adding these figures for test findings, history, and physical findings, he found a sum of 3, which 

divided by 3 is 1. Dr. Didizian indicated that the default percentage under grade modifier 1 of 

Table 15-23 was two percent. He noted that QuickDASH was normal and therefore had a value 

of 0. Dr. Didizian noted that this is one less than the calculated grade modifier 1 and therefore 

would shift the percentage to the left for a final percentage of one percent for each upper 

extremity, for a combined upper extremity impairment of two percent. 

Dr. Didizian continued that, as far as brachial neuritis was concerned, the same 

methodology was used in Table 15-23. He noted that the test findings with EMG were grade 

modifier 1, history of mild intermittent symptoms would be grade modifier 1, and physical 

findings were normal and would also be grade modifier 1. Dr. Didizian noted calculation of a 

final grade modifier 1 with a default percentage of two percent of the upper extremities. Since 

only one diagnosis received the full percentage, and both diagnoses were rated at two percent 

impairment, he found that the carpal tunnel syndrome was more significant and would remain 

two percent impairment, while brachial plexus will be calculated at a level of 50 percent as a 

second neuropathy, as indicated on page 448 of the A.M.A., Guides. Dr. Didizian therefore 
4

concluded that appellant had a combination of bilateral carpal tunnel two percent upper 

extremity impairment combined with the brachial neuritis of one percent totaling three percent 

permanent impairment for each upper extremity. 

On July 16, 2014 OWCP asked the medical adviser to comment on the impairment rating. 

The medical adviser found that the average of grade modifiers (test results, history and physical 

examination) rounded to the nearest integer equaled one. He noted that the default upper 

extremity impairment was two percent permanent impairment of each upper extremity. The 

medical adviser noted that, as the functional scale was normal, he adjusted the rating to the left 

by one value for a final bilateral upper extremity impairment of one percent. 

By decision dated July 22, 2014, OWCP denied appellant’s claim for a greater award. 

At the hearing held on December 22, 2014, counsel argued that Dr. Didizian’s report was 

too poorly reasoned to carry the weight of the evidence, and that at the very least Dr. Didizian’s 

report was in conflict with the reports of appellant’s physician. 

By decision dated March 11, 2015, OWCP denied appellant’s claim for an increased 

schedule award. The hearing representative found that the weight of the evidence was 

represented by the opinion of the OWCP medical adviser. 

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, 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 insure equal justice under the law to all claimants, good administrative practice 

necessitates 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 the implementing regulations as the 

appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.8

The sixth edition requires identifying the impairment class for the diagnosed condition 

(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9

 The 

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

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404.

7 Id. 

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

Chapter 2.808.5a (February 2013) and see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

9

 A.M.A., Guides 494-531. 

10 Id. at 521. 
5

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to the medical adviser for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale 

for the percentage of impairment specified.11

Section 8123(a) 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.12 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.13 In situations where 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 rationale and based upon 

a proper factual background, must be given special weight.14

ANALYSIS 

Appellant previously received a schedule award for 23 percent permanent impairment of 

each upper extremity. She now asks for an increased award to her right upper extremity. 

Appellant’s treating physician, Dr. Becan, determined that appellant was previously 

awarded 23 percent permanent impairment to each upper extremity based on carpal tunnel 

syndrome. However, he calculated that she was entitled to 28 percent impairment of the right 

upper extremity, after adjustments are made for sensory deficit for right branchial plexus and 

entrapment neuropathy to the right nerve. Dr. Didizian the second opinion physician disagreed 

and determined that appellant was not entitled to a greater award, finding that she had only three 

percent total upper extremity impairment. Appellant’s case was sent to the medical adviser for 

review. He determined that she had only one percent permanent impairment of the right upper 

extremity. OWCP determined that the weight of the evidence was represented by the opinion of 

the medical adviser. 

The Board finds that there is an unresolved conflict in the medical evidence. Dr. Becan, 

who made an impairment evaluation on behalf of appellant, determined that she had 28 percent 

permanent impairment. Dr. Didizian, the second opinion physician, found that she had a total of 

three percent permanent impairment of the upper extremities. The medical adviser determined 

that appellant had one percent bilateral upper extremity impairment. If there is disagreement 

between OWCP’s referral physician and appellant’s physician, OWCP will appoint a third 

physician who shall make an examination.15 For a conflict to arise, the opposing physician’s 

 11 See supra note 8 at Chapter 2.808.6(f) (February 2013). 

12 R.C., Docket No. 12-437 (issued October 23, 2012). 

13 20 C.F.R. § 10.321. 

14 F.C., Docket No. 14-0560 (issued November 12, 2015). 

15 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 
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viewpoints must be of virtually equal weight and rationale.16 The Board finds that the opinions 

of Dr. Becan and Dr. Didizian are of equal weight and presented a conflict in the medical 

evidence. OWCP erred when it gave decisive weight to the opinion of the medical adviser. 

While an OWCP medical adviser may create a conflict in medical opinion, he or she may 

generally not resolve it.17 

The Board finds that a conflict exists in the medical evidence with regard to the amount 

of appellant’s impairment of her right upper extremity. The Board will remand the case for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence. After such further development as OWCP deems necessary, it shall issue a de novo 

decision. 

CONCLUSION 

The Board finds that this case is not in posture for decision due to an unresolved conflict 

in the medical opinion evidence. 

ORDER 

IT IS HEREBY ORDERED THAT the March 11, 2015 decision of the Office of 

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

consistent with this opinion. 

Issued: March 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Darlene R. Kennedy, 57 ECAB 414 (2006). 

17 See S.J., Docket No. 15-1500 (issued November 3, 2015).