United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

SOUTHERN NEVADA HEALTHCARE 

SYSTEM, Las Vegas, NV, Employer

__________________________________________

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Docket No. 17-1964

Issued: April 2, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 21, 2017 appellant, through counsel, filed a timely appeal from an 

August 31, 2017 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.

 

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

ISSUE

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

upper extremity for which she previously received a schedule award. 

FACTUAL HISTORY

On May 28, 2016 appellant, then a 61-year-old program support assistant, filed an 

occupational disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome 

causally related to factors of her federal employment. OWCP accepted the claim for bilateral 

carpal tunnel syndrome.3 

A July 31, 2007 electromyogram (EMG) and nerve conduction velocity (NCV) study 

showed mild-to-moderate left carpal tunnel syndrome and mild right carpal tunnel syndrome. It 

indicated that appellant had prolonged median motor distal latency at 4.9 milliseconds on the left 

and normal median motor latency on the right, and prolonged median sensory distal latency on the 

left at 3.5 milliseconds and prolonged median sensory distal latency on the right of 3.3 

milliseconds. 

Dr. Bishr Hijazi, a Board-certified surgeon, performed a left carpal tunnel release on 

July 15, 2013 and a right carpal tunnel release on May 9, 2014. OWCP paid appellant wage-loss 

compensation until June 27, 2014.4 Appellant retired from the employing establishment on 

July 11, 2014. 

In a June 11, 2014 progress report, Dr. Hijazi noted that appellant had no further right hand 

pain or paresthesia, but experienced intermittent pain and paresthesia in the ulnar digits of the left 

hand. On examination he found normal sensation of the right hand at the median and ulnar nerve 

distribution and normal range of motion of the fingers. Dr. Hijazi found normal gross sensation 

of the ulnar digits of the left hand. He diagnosed status post right carpal tunnel syndrome “with 

resolved acute median nerve compression symptoms” and early left cubital tunnel syndrome.

On May 7, 2015 Dr. Hijazi advised that appellant had obtained maximum medical 

improvement. 

Appellant, on May 26, 2015, filed a claim for a schedule award (Form CA-7). By letter 

dated June 16, 2015, OWCP requested that she submit an impairment evaluation from her 

attending physician addressing the extent of any permanent impairment due to her accepted 

 

3 OWCP previously accepted appellant’s June 2007 occupational disease claim for bilateral carpal tunnel syndrome 

under OWCP File No. xxxxxx002. 

4

In an October 9, 2014 decision, OWCP denied appellant’s claim for wage-loss compensation from June 10 to 

27, 2014. By decision dated July 1, 2015, an OWCP hearing representative reversed the October 9, 2014 decision and 

instructed OWCP to pay her wage-loss compensation from July 11 to 27, 2014. She noted that appellant worked on 

July 9 and 10, 2014. 
3

employment injury using the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).5 

By decision dated November 16, 2015, OWCP denied appellant’s schedule award claim. 

It found that she had not submitted an impairment evaluation as requested.

On November 25, 2015 appellant, through counsel, requested a telephone hearing before 

an OWCP hearing representative. 

In a May 11, 2016 impairment evaluation, Dr. Mesfin Seyoum, who specializes in family 

medicine, reviewed appellant’s history of carpal tunnel syndrome due to repetitive work duties 

treated with bilateral carpal tunnel releases. He noted that she currently experienced tingling and 

numbness in her wrists and hands, pain that she rated as level 2 out of 10, nighttime awakening, 

and difficulty with the activities of daily living. Dr. Seyoum indicated that appellant had a 

QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 41. On examination he found 

a positive Tinel’s sign and Phalen’s test of the hands and wrists bilaterally, with full range of wrist 

motion and mild tenderness. Dr. Seyoum found reduced motor strength in the hands and “slightly 

decreased sensation in the distribution pattern of the median nerve in the hand, bilaterally.” He 

noted that July 31, 2007 electrodiagnostic testing revealed mild-to-moderate left carpal tunnel 

syndrome and mild right carpal tunnel syndrome. Dr. Seyoum diagnosed employment-related 

bilateral carpal tunnel syndrome. Referencing Table 15-23 on page 449 of the A.M.A., Guides, 

for both the right and left side, he applied a grade modifier of 2 for test findings, a grade modifier 

of 2 for intermittent significant symptoms, and a grade modifier of 2 for reduced sensation in the 

left hand, which yielded an average grade modifier of 2 and a default impairment rating of five 

percent. Dr. Seyoum found that appellant’s QuickDASH score did not alter the impairment rating, 

and concluded that she had five percent permanent impairment of the left upper extremity and five 

percent permanent impairment of the right upper extremity.

During the telephone hearing, held on July 13, 2016, OWCP’s hearing representative noted 

that appellant had now submitted an impairment evaluation. She issued a summary decision on 

July 28, 2016 remanding the case for OWCP to refer the impairment evaluation to an OWCP 

medical adviser. 

An OWCP medical adviser reviewed the evidence on August 17, 2016. He noted

Dr. Seyoum’s findings on physical examination differed from the July 11, 2014 findings by

Dr. Hijazi, who noted normal sensation in the right hand postoperatively. The medical adviser 

recommended that OWCP refer appellant for a second opinion examination.

On August 31, 2016 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified 

orthopedic surgeon, for a second opinion examination. In a report dated October 18, 2016,

Dr. Swartz reviewed her history of bilateral carpal tunnel releases and discussed her current 

complaints of hand numbness at night and hand pain greater on the left side radiating into the 

forearms. On examination, he found a negative Durkin’s test in the bilateral wrists and slight 

numbness in the base of the thumbs with Tinel’s testing bilaterally. Dr. Swartz determined that 

appellant’s Tinel’s test was negative in the elbows and that she had minimal hypesthesias to 

 

5 A.M.A., Guides, 6th ed. 2009. 
4

pinwheel testing in the right little finger. He measured strength and range of motion of the wrists. 

Dr. Swartz diagnosed status post bilateral surgery for carpal tunnel syndrome. Referencing Table 

15-23 of the A.M.A., Guides, he found that the July 31, 2007 electrodiagnostic studies showed 

prolonged median sensory distal latency bilaterally and prolonged motor latency on the left, but 

not the right. Dr. Swartz applied a grade modifier of 0 for test results on the right, a grade modifier 

of 1 for a history of numbness at night, and a grade modifier of 1 for slight hypesthesias in the 

right little finger and right thumb numbness at the base, for an average grade modifier of 1. He 

applied the QuickDASH score of 40 and concluded that appellant had a grade modifier of 1 for 

mild carpal tunnel syndrome, which yielded two percent permanent impairment of the right upper 

extremity.

For the left side, Dr. Swartz applied a grade modifier of 2 for test findings of prolonged 

distal sensory and motor latency, a grade modifier of 1 for history, and a grade modifier of 0 for 

normal findings on examination, for an average grade modifier of 1. He found the default value 

of two percent unchanged after applying the QuickDASH score of 40, which yielded two percent 

permanent impairment of the left upper extremity.

An OWCP medical adviser reviewed the evidence on November 22, 2016 and concurred 

with Dr. Swartz’ finding of two percent permanent impairment of the each upper extremity. He 

noted that the physical examination findings of Dr. Swartz corresponded to those found by 

appellant’s attending physician.

By decision dated November 29, 2016, OWCP granted appellant a schedule award for two 

percent permanent impairment of each upper extremity. The period of the award ran for 87.36 

days from October 18, 2016 to January 13, 2017.

On December 8, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. At the telephone hearing, held on June 19, 2017, counsel 

contended that Dr. Swartz used inaccurate grade modifiers and compared his application of grade 

modifiers with the grade modifiers found by Dr. Seyoum. 

By decision dated August 31, 2017, OWCP’s hearing representative affirmed the 

November 29, 2016 decision. She found that the opinion of Dr. Swartz constituted the weight of 

the evidence and established that appellant had no more than two percent permanent impairment 

of each upper extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA,6and its implementing federal regulations,

7

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 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.
5

the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

The sixth edition requires identifying the impairment by Class of Diagnosis (CDX)

condition, 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). 

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 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 modifiers are averaged to arrive at the 

appropriate overall grade modifier level and to identify a default rating value. 

ANALYSIS

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome causally related 

to factors of her federal employment. Dr. Hijazi performed a left carpal tunnel release on July 15, 

2013 and a right carpal tunnel release on May 9, 2014.

An EMG and NCV study obtained on July 31, 2007 revealed mild-to-moderate left carpal 

tunnel syndrome and mild right carpal tunnel syndrome. The testing showed no axon loss, but a 

prolonged median motor distal latency on the left, normal median motor latency on the right, and 

prolonged median sensory distal latency bilaterally. 

On June 11, 2014 Dr. Hijazi advised that found that appellant had normal sensation of the 

median and ulnar nerve distribution after surgery and normal range of motion. She related that 

she had no further right hand pain or paresthesia, but had some intermittent paresthesia and pain 

in the ulnar digits of the left hand.

In a May 11, 2016 impairment evaluation, Dr. Seyoum discussed appellant’s bilateral 

complaints of pain, numbness, and tingling in her hands. He found a positive Tinel’s sign and 

Phalen’s test at the wrists bilaterally with some tenderness but no loss of motion. Dr. Seyoum 

further found a loss of sensation in the bilateral median nerve distribution. He reviewed the results 

of the July 31, 2007 EMG, which he advised showed mild-to-moderate left carpal tunnel syndrome 

and mild right carpal tunnel syndrome. Dr. Seyoum, using Table 15-23 on page 449 of the A.M.A., 

Guides, found a bilateral grade modifier of 2 for test findings, a bilateral grade modifier of 2 for 

history, and a bilateral grade modifier of 2 for physical findings, which yielded an average grade 

 

8

Id. at § 10.404(a).

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

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

(January 2010). 

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

11 Id. at 449, Table 15-23.
6

modifier of 2 and a default value of five percent. He found that the five percent bilateral 

impairment rating unaltered by appellant’s QuickDASH score of 41. The Board notes, however, 

that a grade modifier of 2 for test findings is only appropriate when test results reveal a motor 

conduction block. Appellant’s July 31, 2007 EMG and NCV did not show a motor conduction 

block on the right side, and thus she was not entitled to a grade modifier of 2 on the right side for 

test findings under Table 15-23. Dr. Seyoum’s opinion, consequently, does not fully conform to 

the provisions of the A.M.A., Guides.

12

An OWCP medical adviser considered the evidence on August 17, 2016 and noted that

Dr. Seyoum’s examination findings differed significantly than those of Dr. Hijazi. He 

recommended a second opinion examination, and OWCP referred appellant to Dr. Swartz for an 

impairment evaluation.

On October 18, 2016 Dr. Swartz noted that appellant experienced numbness of the hands 

at night and hand pain especially on the left radiating into her forearm. On examination he found 

slight numbness at the base of the thumbs with Tinel’s testing and slight hypesthesias with 

pinwheel testing in the right little finger, with otherwise good sensation of the hands and digits.

Dr. Swartz noted that an EMG and NCV performed July 31, 2007 showed sensory latency at the 

median nerve bilaterally and motor latency at the median nerve on the left side. Using Table 15-

23, for the right side, he applied a grade modifier of 0 for test results, a grade modifier of 1 for a 

history of numbness at night, and a grade modifier of 1 for slight hypesthesia in the right little 

finger and thumb, which yielded an average modifier of 1 and a default value of two percent. For 

the left side, Dr. Swartz applied a grade modifier of 2 for tests findings of prolonged motor latency, 

a grade modifier of 1 for history, and a grade modifier of 0 for normal examination findings, which 

yielded an average modifier of 1 and a default impairment value of two percent. He found that the 

application of the QuickDASH score of 40 did not change the default value, and concluded that 

appellant had two percent permanent impairment of each upper extremity. 

An OWCP medical adviser on November 22, 2016 concurred with Dr. Swartz’ impairment 

rating, noting that his physical findings were similar to those of appellant’s attending physician. 

The Board finds that OWCP properly relied upon the opinion of Dr. Swartz in finding that 

appellant had no more than two percent permanent impairment of each upper extremity due to her 

accepted bilateral carpal tunnel syndrome.13 Dr. Swartz provided detailed examination findings 

and appropriately applied the A.M.A., Guides to his clinical findings. He further provided 

rationale for his choice of grade modifiers. Dr. Swartz’ opinion, consequently, represents the 

weight of the evidence and establishes that appellant has two percent permanent impairment of the 

right upper extremity and two percent permanent impairment of the left upper extremity.14

 

12 See A.R., Docket No. 15-1694 (issued February 9, 2016).

13 See M.P., Docket No. 17-0150 (issued June 21, 2017).

14 See H.S., Docket No. 16-1624 (issued January 13, 2017).
7

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 employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has no more than two percent permanent impairment of each 

upper extremity for which she previously received a schedule award. 

ORDER

IT IS HEREBY ORDERED THAT the August 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 2, 2018

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