United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-1847 

Issued: March 4, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant, through counsel, filed a timely appeal from a July 22, 

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 this case. 

ISSUE 

The issue is whether appellant has proven permanent impairment of his right upper 

extremity warranting a schedule award. 

FACTUAL HISTORY 

On April 29, 2007 appellant, then a 40-year-old mail processor, filed a traumatic injury 

claim (Form CA-1) alleging that on that same date he sustained a contusion of the right hand 

when he smashed his hand between a steel column and mail wagon rack. He did not stop work. 

 1

 5 U.S.C. § 8101 et seq.
2

OWCP accepted the claim for right hand contusion, right wrist traumatic median neuropathy, 

and right wrist traumatic radial neuropathy. 

In a February 18, 2008 electromyography (EMG) report, Dr. Robert F. Richardson, a 

Board-certified neurologist, reported that the right upper extremity EMG revealed evidence of a 

mild median mononeuropathy at the right wrist (carpal tunnel syndrome), without active 

denervation of thenar muscle. The testing also provided electrophysiological evidence of a distal 

sensory radial neuropathy. 

On October 16, 2009 appellant underwent right carpal tunnel release and decompression 

of the right ulnar nerve at the elbow and wrist. He returned to work on October 29, 2009 with 

restrictions of no repetitive use of his right hand or elbow. Appellant continued to work 

modified light duty. He received intermittent short-term rolls wage-loss benefits as of 

August 26, 2010. 

OWCP referred appellant, a statement of accepted facts (SOAF), a series of questions, 

and the case file to Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, on January 19, 

2012 for an examination and opinion regarding the nature and extent of disability.2

In a February 7, 2012 report, Dr. Kaffen provided a review of past medical records and 

findings on physical examination. He opined that appellant’s accepted injuries of contusion of 

right wrist and hand, right wrist median neuropathy, and right wrist radial neuropathy had 

resolved and that his current medical condition of ulnar neuropathy of the right upper extremity 

at the elbow was nonwork related. Dr. Kaffen concluded that appellant was capable of 

performing his work duties as a mail processor without restrictions on a full-time basis based on 

the accepted conditions in this claim. 

On February 18, 2014 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated February 24, 2014, OWCP requested that appellant submit an impairment 

evaluation from his attending physician in accordance with the American Medical Association, 

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

him 30 days to submit the requested impairment evaluation. 

By letter dated April 9, 2014, counsel argued that appellant sustained permanent 

impairment due to his work-related injuries and submitted a March 27, 2014 report from 

Dr. Catherine Watkins Campbell, Board-certified in family medicine, in support of his schedule 

award claim. 

In the March 27, 2014 report, Dr. Campbell related that she evaluated appellant on 

March 6, 2014 for the accepted conditions of contusion of right wrist and hand, right median 

nerve lesion, and lesion of right radial nerve. She summarized past medical records, reviewed 

 2

 While OWCP referred to Dr. Kaffen as a referee physician, absent a conflict in medical opinion regarding the 

degree of permanent impairment. Dr. Kaffen’s designation as an impartial medical examiner was inappropriate 

regarding the schedule award issue. His finding therefore, may not be afforded the special weight of an impartial 

medical specialist and he should be considered as a second opinion physician. See M.R., Docket No. 11-1419 

(issued May 12, 2012). 
3

diagnostic testing, and provided findings on physical examination. Dr. Campbell opined that 

appellant reached maximum medical improvement (MMI) during the summer of 2013. 

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

3

 Dr. Campbell opined that appellant had 

five percent permanent impairment of the right upper extremity. According to Table 15-23 

(Entrapment/Compression Neuropathy Impairment), she calculated three percent upper extremity 

impairment for the diagnosis right median nerve lesion.4

 For the diagnosis of right radial nerve 

lesion, in accordance with Table 15-18 (Impairment of Sensory Only Peripheral Nerve), 

Dr. Campbell calculated one percent impairment of the right upper extremity.5

 Based on 

Table 15-3 (Wrist Regional Grid), she calculated one percent impairment of the right upper 

extremity for the diagnosis of right wrist and hand contusion.6 Thus, Dr. Campbell determined 

that appellant had five percent permanent impairment of the right upper extremity. 

OWCP routed Dr. Campbell’s report, the SOAF, and the case file to Dr. Morley Slutsky, 

an OWCP district medical adviser (DMA) Board-certified in occupational medicine, for review 

and a determination on whether appellant sustained a permanent partial impairment of the right 

upper extremity and the appropriate date of MMI. 

In a July 30, 2014 report, Dr. Slutsky disagreed with Dr. Campbell’s assessment and 

opined that appellant had no ratable right upper extremity impairment as a result of his workrelated injuries. He explained that the date of MMI was February 7, 2012, the date of 

Dr. Kaffen’s examination. Dr. Slutsky further noted that he utilized Dr. Kaffen’s findings for 

final rating purposes as he found no objective evidence of right wrist contusion and radial nerve 

involvement. He reported that there was dysesthesia in the right medial nerve distribution but 

appellant’s pre and postoperative EMG testing did not meet the A.M.A., Guides criteria to use 

Table 15-23 (Entrapment/Compression Neuropathy Impairment).7

 Dr. Slutsky noted that 

because appellant’s symptoms related to carpal tunnel syndrome, the A.M.A., Guides required 

the right wrist to be rated as nonspecific wrist pain.8

 He noted that Dr. Campbell documented 

sensory changes in the right radial nerve distribution which were not found by other providers in 

recent records and rated appellant’s wrist contusion when this condition had resolved. 

Dr. Slutsky further noted that Dr. Campbell used the compression neuropathy table despite pre 

and postoperative EMG/nerve conduction velocity (NCV) tests which revealed normal findings. 

Utilizing Table 15-3 for the diagnosis of right wrist nonspecific pain, Dr. Slutsky 

subtracted 1, the numerical value of the class, from the numerical value of the grade modifier for 

each applicable component he assigned (physical examination, functional history, and clinical 

 3

 A.M.A., Guides (2009). 

4 Id. at 449. 

5 Id. at 429. 

6 Id. at 395. 

7 Supra note 3. 

8 Id. at 445-46. 
4

studies) and then added those values, resulting in a net adjustment of -2 ((0-1) + (1-1) + (0-1)).9

 

Application of the net adjustment formula meant that movement was warranted two places to the 

left of class 1 default value grade C to grade A for zero percent right upper extremity 

impairment.10

By decision dated December 3, 2014, OWCP denied appellant’s claim for a schedule 

award as the evidence was insufficient to establish a permanent impairment to a member or 

function of the body. 

On December 9, 2014 appellant, through counsel, requested a telephone hearing before a 

hearing representative in OWCP’s Branch of Hearings and Review. 

At the June 9, 2015 hearing, counsel for appellant argued that Dr. Campbell’s report was 

sufficient to establish permanent impairment to the right upper extremity. He further asserted 

that there was a conflict between Dr. Slutsky and Dr. Campbell and the case should be sent for 

an impartial examination to resolve the conflict in medical opinion. 

By decision dated July 22, 2015, a hearing representative affirmed the December 3, 2014 

schedule award decision. She noted that Dr. Slutsky properly utilized the A.M.A., Guides to 

determine that appellant did not sustain any permanent impairment to a member or function of 

the body. 

LEGAL PRECEDENT 

The schedule award provision 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.11 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 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.12

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability and Health (ICF).13 

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

 9 Supra note 5. 

10 Id. 

11 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

12 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth 

edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 

13 A.M.A., Guides, supra note 2 at 3, section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement. 
5

to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition 

(including identification of a default grade value), the net adjustment formula is applied using the 

grade modifier for Functional History (GMFH), grade modifier for Physical Examination 

(GMPE) and grade modifier for Clinical Studies (GMCS).14 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15 Under Chapter 2.3, evaluators are directed 

to provide reasons for their impairment rating choices, including choices of diagnoses from 

regional grids and calculations of modifier scores.16

In the sixth edition, a grid listing relevant diagnoses is provided for each region of the 

upper extremity: the digit region, the wrist region, the elbow region, and the shoulder region. A 

regional impairment will be defined by class and grade. The class is determined first by using 

the corresponding regional grid. The grade is initially assigned the default value for that class. 

This value may be adjusted slightly using nonkey grade modifiers such as functional history, 

physical examination, and clinical studies.17

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

should be routed to an OWCP 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.18

ANALYSIS 

OWCP accepted appellant’s claim for right hand contusion, right wrist traumatic median 

neuropathy, and right wrist traumatic radial neuropathy. It approved surgery for decompression 

of the right ulnar nerve at elbow and wrist and a right carpal tunnel release of October 16, 2009. 

The issue is whether appellant established permanent impairment due to his work-related 

injuries. The Board finds this case is not in posture for decision. 

OWCP based its denial of appellant’s schedule award claim on the July 30, 2014 medical 

report of Dr. Slutsky, serving as the OWCP DMA. The Board notes that Dr. Slutsky based his 

impairment rating on the findings made by Dr. Kaffen in his February 7, 2012 second opinion 

medical examination. Dr. Campbell’s impairment rating was based on her March 6, 2014 

evaluation documenting more current findings pertaining to appellant’s condition. The Board 

finds that Dr. Slutsky’s impairment rating was based on stale medical evidence and is 

insufficient to form the basis for appellant’s schedule award claim.19

 14 Id. at 385-419. 

15 Id. at 411. 

16 Id. at 23-28. 

17 Id. at 387. 

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

Chapter 2.808.6 (February 2013). 

19 B.N., Docket No. 12-1394 (issued August 5, 2013). 
6

Dr. Slutsky references the results of pre and postoperative EMG testing as a basis to 

utilize the diagnosis of right wrist nonspecific pain. However, the only EMG study specifically 

addressed was the February 18, 2008 preoperative test in support of his assessment. It is unclear 

what postoperative report Dr. Slutsky is referring to as the record is devoid of an EMG study 

following appellant’s April 29, 2007 injury. Moreover, while Dr. Slutsky noted that 

Dr. Campbell documented sensory changes in the right radial nerve distribution which were not 

found by other providers in recent records, he failed to specifically address what current records 

he was referring to and the differences in these evaluation findings. It is unclear why Dr. Slutsky 

would utilize a February 18, 2008 report if there were more current medical examination 

findings of record. Thus, the older medical reports referenced by Dr. Slutsky are insufficient to 

establish appellant’s claim for a schedule award.20

The Board has held that stale medical evidence cannot form the basis for current 

evaluation of residual symptomology or disability determination.21 Therefore, the Board finds 

that Dr. Slutsky’s report is of reduced probative value as he is relying on stale examination 

findings to calculate his impairment rating.22 Given that Dr. Slutsky did not base his rating on 

current examination findings, his opinion on permanent impairment is deficient and insufficient 

to form the basis of appellant’s schedule award claim.23 

On remand, OWCP should refer appellant to have EMG and NCV testing performed on 

the upper right extremities. It should then refer the results of the EMG/NCV studies, a SOAF, 

the case record, and appellant for a second opinion examination and opinion regarding whether 

he sustained any permanent partial impairment as a result of his employment-related injuries and 

date of MMI.24 Following this and any other further development as deemed necessary, OWCP 

shall issue a de novo decision on appellant’s schedule award claim. 

CONCLUSION 

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

 20 See H.C., Docket No. 11-1407 (issued May 11, 2012) (finding that Dr. Weiss did not reexamine appellant and 

relied on a 2004 examination such that his report constituted stale medical evidence and did not create a conflict of 

medical opinion evidence). 

21 See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two 

years old deemed invalid basis for disability determination and loss of wage-earning capacity determination). 

22 L.T., Docket No.13-997 (issued June 10, 2014). 

23 See W.M.., Docket No. 12-773 (issued March 29, 2013) (where the Board found that a physician’s 2010 

impairment opinion, seeking to update a prior report based on 2004 findings, constituted stale medical evidence); 

P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found a physician’s impairment opinion of reduced 

probative value where the physician relied on three-year old findings to update his impairment rating). 

24 J.S., Docket No. 13-2132 (issued July 23, 2014). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 22, 2015 decision of the Office of 

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

consistent with this decision. 

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 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board