United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

SUPPLY SYSTEMS COMMAND, Gulfport, MS, 

Employer

__________________________________________

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Docket No. 17-1603

Issued: April 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 18, 2017 appellant filed a timely appeal from March 13 and 22, and May 12, 2017 

merit decisions and May 5 and June 22, 2017 nonmerit decisions 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.

ISSUES

The issues are: (1) whether appellant met his burden of proof to establish employmentrelated carpal tunnel syndrome and whether OWCP properly denied the request for decompression 

surgery for this condition; (2) whether appellant established more than seven percent permanent 

impairment of the right arm for which he received a schedule award; (3) whether OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. 

§ 8128(a) regarding denial of the expansion of his claim and authorization for surgery; and, 

 

1 5 U.S.C. § 8101 et seq. 
2

(4) whether OWCP properly denied appellant’s request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a) regarding the schedule award issue.

On appeal appellant asserts that the medical evidence establishes that carpal tunnel 

syndrome is causally related to the July 8, 2008 employment injury and that he is entitled to an 

increased schedule award.

FACTUAL HISTORY

This case has previously been before the Board. By decision dated November 15, 2010, 

the Board affirmed September 29, 2009 and January 4, 2010 OWCP merit decisions that denied 

appellant’s claim for a schedule award.2In a February 14, 2013 decision, the Board found that, 

by a July 26, 2012 decision, OWCP properly denied appellant’s request for a hearing.3 In a second 

February 14, 2013 decision, the Board affirmed an August 17, 2012 OWCP decision on the issue 

of whether appellant established clear evidence of error regarding the denial of his claim for 

disability compensation. The Board, however, found that OWCP erroneously denied appellant’s 

request for reconsideration regarding his entitlement to a schedule award under the clear evidence 

of error standard because the record contained a September 15, 2010 impairment analysis from an

attending Board-certified orthopedic surgeon, Dr. Henry Leis, who concluded that, under the sixth 

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

(A.M.A., Guides),4appellant had four percent permanent right arm impairment. The Board 

remanded the case to OWCP to issue a merit decision regarding appellant’s schedule award 

request.

5

 By decision dated October 24, 2016, the Board found that appellant did not establish 

more than seven percent impairment of the right arm, for which he previously received a schedule 

award. The Board further found that OWCP properly refused to reopen appellant’s claim for 

further review of the merits of the schedule award pursuant to 5 U.S.C. § 8128(a), and that OWCP 

properly denied appellant’s request for a hearing.6 The facts of the case as presented in the prior 

Board decisions are incorporated herein by reference. The relevant facts are as follows.

The accepted conditions in this case are sprain of the right elbow and forearm, lateral 

epicondylitis and entrapment lesion of the ulnar nerve at the right elbow, and articular cartilage 

disorder of the right elbow, caused by a July 8, 2008 employment injury when appellant was 

unloading pallets of electricians’ kits in his capacity as a materials handler. He last worked at the 

 

2 Docket No. 10-823 (issued November 15, 2010). On July 8, 2008 appellant, a 49-year-old materials handler, 

sustained work-related sprains of the right elbow and forearm and right lateral epicondylitis while unloading pallets. 

He had right arm surgery on February 16, 2009 and returned to modified duty on March 2, 2009. Appellant was 

removed from federal employment for cause in April 2009. On September 29, 2009 OWCP denied his claim for 

disability compensation, noting that he was terminated for cause and not due to his inability to perform his modifiedduty assignment. By separate September 29, 2009 decision, OWCP denied appellant’s claim for a schedule award 

finding that the medical evidence submitted did not establish permanent impairment. 

3 Docket No. 12-1699 (issued February 14, 2013). 

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

5 Docket No. 12-1906 (issued February 14, 2013). 

6 Docket No. 16-0669 (issued October 24, 2016). 
3

employing establishment on February 16, 2009. By decision dated April 3, 2013, appellant was 

granted a schedule award for seven percent permanent impairment of the right arm. 

During the pendency of appellant’s most recent appeal before the Board,7in treatment 

notes dated October 28, 2015 to March 10, 2016, Dr. Brian K. Tsang, a Board-certified 

anesthesiologist, described monthly pain management for the accepted right upper extremity 

conditions. 

On October 23, 2015 Dr. Leis advised that, in accordance with the sixth edition of the 

A.M.A., Guides, appellant had eight percent right upper extremity impairment and had reached 

maximum medical improvement on August 6, 2015. 

A January 26, 2016 magnetic resonance imaging (MRI) scan of the right elbow 

demonstrated osteoarthrosis, chronic partial-thickness tear bisecting the common extensor tendon 

with superimposed chronic lateral epicondylitis, mild chronic medial epicondylitis, mild bicipital 

tendinopathy, mild triceps tendinopathy, and mild ulnar neuritis. A June 7, 2016 electromyogram

(EMG) study demonstrated bilateral carpal tunnel syndrome. 

Beginning on April 10, 2016, pain management reports from Dr. Tsang’s office were 

completed by Linda Bell and Ashley Burroughs, both of whom are nurse practitioners. 

Dr. Leis reviewed the EMG on June 13, 2016 and diagnosed carpal tunnel syndrome. He 

recommended surgical release, and requested authorization for the surgery on June 29, 2016. In a 

treatment note dated June 21, 2016, Dr. Leis noted appellant’s report of recalcitrant right arm pain 

worsening over the past three weeks with heavy labor. He advised that physical examination 

showed a significant progression in neurological symptoms from the employment injury. Dr. Leis 

diagnosed cubital tunnel syndrome, elbow pain, lateral epicondylitis, and carpal tunnel syndrome. 

By decision dated August 30, 2016, OWCP found that the evidence of record did not 

support expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel 

syndrome and also denied authorization for right wrist endoscopic carpal tunnel release. 

In an August 3, 2016 treatment note, submitted on October 4, 2016, Dr. Leis reiterated his 

conclusions reported on June 21, 2016.

In August 2016, OWCP referred appellant to Dr. Simon Finger, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to assess the extent and degree of appellant’s

disability related to the July 8, 2008 employment injury. In a September 15, 2016 report,

Dr. Finger noted the history of injury and appellant’s report of continued right elbow pain and 

weakness. Following physical examination, he advised that the accepted conditions had not 

resolved, noting objective findings of pain with extension of the wrist and fingers, positive Tinel’s 

at the elbow, decreased sensation in the ulnar digits, and a weak ulnar grip. Dr. Finger advised 

that appellant could not perform his regular job duties, but could work eight hours of restricted 

 

7

Id.
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duty daily with restrictions of no overhead lifting, no repetitive motion of the right upper extremity, 

and a weight restriction of five pounds. 

Appellant requested reconsideration of the August 30, 2016 decision denying expansion of 

the acceptance of his claim on September 26, 2016. 

Following the Board’s October 24, 2016 decision,8 by decision dated November 22, 2016, 

OWCP found that the medical evidence of record did not establish that the diagnosed carpal tunnel 

syndrome and need for decompression surgery were causally related to the July 8, 2008 

employment injury and therefore denied modification of its August 30, 2016 decision. 

On December 13, 2016 appellant requested reconsideration of the November 22, 2016 

decision. On December 21, 2016 he filed a schedule award claim (Form CA-7). On December 21, 

2016 appellant also requested reconsideration of the schedule award issue affirmed in the 

October 24, 2016 Board decision.

In a December 23, 2016 treatment note, Dr. Leis reiterated his findings and conclusions. 

Ms. Bell completed a work capacity evaluation (Form 5c) on January 16, 2017. She advised that 

appellant had a permanent weight limit of five pounds. Ms. Bell and Ms. Burroughs continued to 

submit monthly treatment notes. 

By decision dated March 13, 2017, OWCP noted that the medical evidence did not 

establish that the diagnosed carpal tunnel syndrome and need for decompression surgery were 

causally related to the July 8, 2008 employment injury and denied modification of the August 30, 

2016 decision. 

By decision dated March 22, 2017, OWCP found the record insufficient to establish right 

upper extremity permanent impairment greater than seven percent, for which appellant previously 

received a schedule award. 

In an April 10, 2017 memorandum, OWCP asked its medical adviser to review the record 

for an impairment evaluation. The memorandum instructed that a clear explanation regarding 

calculations should be given, and, if applicable, and an explanation as to why the method of 

diagnosis-based impairment (DBI) or range of motion (ROM) was chosen.

On April 17, 2017 appellant requested reconsideration of the March 22, 2017 decision. On 

April 19, 2017 he requested reconsideration of the March 13, 2017 decision. 

In a May 1, 2017 report, Dr. William Tontz, Jr., a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed the medical record for the purpose of an impairment evaluation. 

He concluded that, for a diagnosis of lateral epicondylitis with no significant objective abnormal 

findings, under Table 15-4 of the A.M.A., Guides, appellant had zero permanent impairment. 

By decision dated May 5, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of the March 13, 2017 decision, finding the evidence submitted irrelevant or immaterial 

 

8 Supra note 6.
5

regarding the merit issue of whether carpal tunnel syndrome was employment related and whether 

surgery for the condition should be authorized. 

By decision dated May 12, 2017, OWCP denied appellant’s request for an additional 

schedule award for his right upper extremity conditions. It noted that the evidence submitted did 

not address additional impairment and that its medical adviser found that the evidence did not 

demonstrate impairment.9

In separate requests dated June 2, 2017, appellant requested reconsideration of the May 5 

and 12, 2017 OWCP decisions. He generally asserted that he was entitled to an increased schedule 

award and that carpal tunnel syndrome should be accepted as a work-related condition.

In correspondence dated June 21, 2017, OWCP informed appellant that his only right of 

appeal from the May 5, 2017 decision was an appeal to the Board. 

By decision dated June 22, 2017, OWCP denied appellant’s request for reconsideration of 

the merits of the May 12, 2017 schedule award decision. It noted that medical evidence submitted 

did not address the issue of permanent impairment and, thus, was insufficient to warrant merit 

review of the May 12, 2017 decision. 

LEGAL PRECEDENT -- ISSUE 1

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, Larson notes that, when the question is whether compensability 

should be extended to a subsequent injury or aggravation related in some way to the primary injury, 

the rules that come into play are essentially based upon the concepts of direct and natural results 

and of claimant’s own conduct as an independent intervening cause. The basic rule is that a 

subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the direct and natural result of a compensable primary injury.10

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. The opinion must be one 

of reasonable medical certainty and must be supported by medical rationale explaining the nature 

of the relationship of the diagnosed condition and the specific employment factors or employment 

injury.11

 

9

In separate May 12, 2017 correspondence, OWCP informed appellant that it appeared that he was requesting that 

additional conditions be accepted. It explained that the instant claim was accepted for a right arm injury that occurred 

on July 8, 2008, and if he believed he had additional medical conditions resulting from repetitive or cumulative work 

exposure, these must be addressed in a separate occupational disease claim. 

10 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey, 

54 ECAB 421 (2003).

11 Charles W. Downey, id.
6

In order for a surgical procedure to be authorized, a claimant must submit evidence to show 

that the surgery is for a condition causally related to an employment injury and that it is medically 

warranted. Both of these criteria must be met in order for OWCP to authorize payment.12 

ANALYSIS -- ISSUE 1

The Board finds that appellant did not meet his burden of proof to establish that the 

diagnosed carpal tunnel syndrome was causally related to the July 8, 2008 employment injury. 

The medical evidence that addresses carpal tunnel syndrome includes a June 7, 2016 EMG 

study that demonstrated bilateral carpal tunnel syndrome. This study does not address a cause of 

the diagnosed condition. Diagnostic studies are of limited probative value as they do not address 

whether the employment incident caused any of the diagnosed conditions.13 Medical evidence that 

does not offer any opinion regarding the cause of an employee’s condition is of limited probative 

value on the issue of causal relationship.14 On June 13, 2016 Dr. Leis reviewed the EMG and 

diagnosed carpal tunnel syndrome. He recommended surgical release and requested authorization 

for the study on June 29, 2016. On June 21, 2016 Dr. Leis again diagnosed carpal tunnel 

syndrome. He, however, did not relate appellant’s diagnosed carpal tunnel syndrome in any way 

to the July 8, 2008 employment injury.

It is appellant’s burden to establish that a consequential condition is causally related to the 

July 8, 2008 employment injury.15 The record before the Board contains insufficient evidence to 

establish that appellant’s bilateral carpal tunnel syndrome was causally related to this injury. As 

he has not established employment-related carpal tunnel syndrome, OWCP did not abuse its 

discretion in denying authorization for corrective surgery for that condition.16 

LEGAL PRECEDENT -- ISSUE 2

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.17 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use 

of specified members, functions, and organs of the body.18 FECA, however, does not specify the 

manner by which the percentage loss of a member, function, or organ shall be determined. To 

ensure consistent results and equal justice under the law, good administrative practice requires the 

 

12 R.C., 58 ECAB 238 (2006).

13 See J.S., Docket No. 17-1039 (issued October 6, 2017).

14 Willie M. Miller, 53 ECAB 697 (2002).

15 Charles W. Downey, supra note 10.

16 R.C., supra note 12.

17 See 20 C.F.R. §§ 1.1-1.4.

18 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).
7

use of uniform standards applicable to all claimants. Through its implementing regulations, 

OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.19

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first printing 

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second 

printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).20 The Board has approved the use by OWCP of the A.M.A., Guides

for the purpose of determining the percentage loss of use of a member of the body for schedule 

award purposes.21

ANALYSIS -- ISSUE 2

By decision dated April 3, 2013, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the right arm. As to whether appellant is entitled to an additional 

schedule award for the accepted right upper extremity conditions, the Board finds this case is not 

in posture for decision.

The Board has found that OWCP had inconsistently applied Chapter 15 of the sixth edition 

of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent 

interpretation had been followed regarding the proper use of DBI or ROM methodology when 

assessing the extent of permanent impairment for schedule award purposes.22 The purpose of the 

use of uniform standards is to ensure consistent results and to ensure equal justice under the law 

to all claimants.23 In T.H., the Board concluded that OWCP physicians were at odds over the 

proper methodology for rating upper extremity impairment, having observed that attending 

physicians, evaluating physicians, second opinion physicians, impartial medical examiners, and 

district medical advisers use both DBI and ROM methodologies interchangeably without any 

consistent basis. The Board observed that physicians interchangeably cite to language in the first 

printing or the second printing when justifying use of either ROM or DBI methodology. Because 

OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the Board 

found that OWCP could no longer ensure consistent results and equal justice under the law for all 

 

19 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

20 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

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

Claims, Chapter 2.808.5a (February 2013).

21 Isidoro Rivera, 12 ECAB 348 (1961).

22 T.H., Docket No. 14-0943 (issued November 25, 2016).

23 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
8

claimants.24 OWCP issued FECA Bulletin No. 17-06 on May 8, 2017. It directs the rating 

physician and its OWCP medical adviser to calculate upper extremity permanent impairment using 

both the ROM and DBI methods and identify the higher rating and, if the medical evidence or 

record is insufficient for OWCP’s medical adviser to render a ROM rating, he should advise 

OWCP what medical evidence is necessary to complete a rating.25

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the June 22, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied 

uniformly,26 and after such other development as may be deemed necessary, OWCP shall issue a 

de novo decision on appellant’s claim for an upper extremity schedule award.

In light of the Board’s disposition regarding this issue, the issue of whether OWCP properly 

denied appellant’s request for reconsideration of the merits of his claim in its June 22, 2017 

decision is rendered moot. 

LEGAL PRECEDENT -- ISSUE 3 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

it will review an award for or against compensation, either under its own authority or on application 

by a claimant.27 Section 10.608(a) of OWCP’s regulations provide that a timely request for 

reconsideration may be granted if OWCP determines that the employee has presented evidence 

and/or argument that meets at least one of the standards described in section 10.606(b)(3).28 This 

section provides that the application for reconsideration must be submitted in writing and set forth 

arguments and contain evidence that either: (i) shows that OWCP erroneously applied or 

interpreted a specific point of law; or (ii) advances a relevant legal argument not previously 

considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously 

considered by OWCP.29 Section 10.608(b) provides that when a request for reconsideration is 

timely, but fails to meet at least one of these three requirements, OWCP will deny the application 

for reconsideration without reopening the case for a review on the merits.30

ANALYSIS -- ISSUE 3

On April 19, 2017 appellant requested reconsideration of the March 13, 2017 decision 

denying that the diagnosed carpal tunnel syndrome and need for decompression surgery were 

 

24 Supra note 22.

25 FECA Bulletin No. 17-06 (issued May 8, 2017).

26 Id.

27 5 U.S.C. § 8128(a).

28 20 C.F.R. § 10.608(a).

29 Id. at § 10.606(b)(3).

30 Id. at § 10.608(b).
9

causally related to the July 8, 2008 employment injury. He generally asserted that the carpal tunnel 

syndrome should be accepted. 

The Board finds that, as appellant did not assert that OWCP erroneously applied or 

interpreted the law or advance a relevant legal argument not previously considered by OWCP, he 

was not entitled to a review of the merits of her claim based on the first and second above-noted 

requirements under section 10.606(b)(2).31 

With respect to the third above-noted requirement under section 10.606(b)(2), Ms. Bell and

Ms. Burroughs submitted monthly treatment notes. Their reports, however, are not relevant as 

they do not constitute competent medical evidence as a nurse practitioner is not a physician under 

FECA.32 

As appellant did not show that OWCP erred in applying a point of law, advance a relevant 

legal argument not previously considered, or submit relevant and pertinent new evidence not 

previously considered by OWCP, OWCP properly denied his reconsideration request.

CONCLUSION

The Board finds that appellant failed to establish that carpal tunnel syndrome was caused 

by the July 8, 2008 employment injury, and that OWCP properly denied authorization for 

decompression surgery. The Board further finds that OWCP properly denied appellant’s request 

for reconsideration of the merits of his claim on these issues, pursuant to 5 U.S.C. § 8128(a). The 

Board also finds this case is not in posture for decision regarding the degree of impairment of 

appellant’s right upper extremity.

 

31 20 C.F.R. § 10.606(b).

32 See G.A., Docket No. 09-2153 (issued June 10, 2010). Section 8101(2) of the FECA provides that “physician”

includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2).
10

ORDER

IT IS HEREBY ORDERED THAT the May 5 and March 13, 2017 decisions of the 

Office of Workers’ Compensation Programs are affirmed. OWCP decisions dated June 22, 

May 12, and March 22, 2017 are set aside, and the case is remanded for proceedings consistent 

with this decision of the Board.

Issued: April 10, 2018

Washington, DC

Christopher J. Godfrey, 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