United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.E., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Springfield, IL, Employer

__________________________________________

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Docket No. 17-0863

Issued: October 5, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 10, 2017 appellant, through counsel, filed a timely appeal from a February 8, 

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 to consider the merits of the case.

ISSUE

The issue is whether appellant has met his burden of proof to establish an increased 

schedule award for his bilateral upper extremities.

 

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 September 17, 2010 appellant, then a 48-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel syndrome due to 

repetitive motion and heavy lifting at work. He retired on May 1, 2009.

Appellant underwent electromyogram (EMG) and nerve conduction velocity (NCV) 

studies on December 17, 2009 which demonstrated moderately-severe bilateral carpal tunnel 

syndrome. He underwent an authorized right carpal tunnel release on January 29, 2010 and left 

carpal tunnel release on March 5, 2010.

On December 1, 2010 OWCP accepted appellant’s claim for bilateral carpal tunnel 

syndrome.

Appellant filed a schedule award claim (Form CA-7) on March 16, 2011. He underwent 

a right-hand magnetic resonance imaging (MRI) scan on November 12, 2010 which 

demonstrated mild degenerative osteoarthritis and no significant carpal tunnel abnormalities. A

left-hand MRI scan on November 12, 2010 demonstrated a small ganglion cyst, tendinitis of the 

extensor tendon, and no significant carpal tunnel abnormalities.

In a letter dated March 23, 2011, OWCP requested medical evidence describing 

appellant’s permanent impairment as a result of his accepted employment injuries. It afforded 

him 30 days for a response. Appellant requested a second opinion evaluation on April 2, 2011.

On May 10, 2011 OWCP referred appellant for a second opinion evaluation with

Dr. Richard T. Katz, a Board-certified physiatrist. In a report dated May 23, 2011, Dr. Katz 

examined appellant and diagnosed bilateral carpal tunnel syndrome based on EMG/NCV studies. 

He reported that appellant had normal strength, normal two-point discrimination and normal 

range of motion. Dr. Katz opined that appellant had no evidence of impairment of his upper 

extremities based on carpal tunnel syndrome. He concluded that appellant had reached 

maximum medical improvement on May 5, 2010.

OWCP’s medical adviser reviewed Dr. Katz’ report on October 3, 2011 and agreed that 

given appellant’s lack of complaints of numbness and tingling and his normal physical 

examination, there was no objective basis for a schedule award.

Dr. Edward Trudeau, a Board-certified physiatrist, examined appellant on 

September 29, 2012. Appellant reported burning pain at his scars, weaker grip, and pain in his 

fingers and thumbs following his carpal tunnel surgeries. Dr. Trudeau performed NCV studies 

which showed bilateral prolongations of the median motor and sensory latencies. He diagnosed 

moderately-severe bilateral carpal tunnel syndrome, greater on the right.

Dr. Theresa Hegge, a plastic surgeon, examined appellant on October 11, 2012 and 

diagnosed bilateral carpal tunnel syndrome. She recommended repeated surgeries. Appellant 

underwent a second right carpal tunnel release on January 22, 2013. He underwent a second left

carpal tunnel release on March 12, 2013. OWCP authorized both surgeries.
3

Dr. Michael W. Neumeister, a Board-certified hand surgeon of professorial rank,

examined appellant on July 15, 2013 and reviewed his history of injury. He noted that appellant 

had increased sensitivity at his incision on the left following surgery which was treated with 

Botox resulting in dramatic improvement. Dr. Neumeister found that appellant’s grip strength 

was good bilaterally.

In a letter dated March 5, 2014, Dr. Neumeister opined that appellant had reached 

maximum medical improvement on July 15, 2013. He noted that appellant was “doing 

extremely well” on July 15, 2013.

Appellant filed a schedule award claim (Form CA-7) on June 24, 2014. In a letter dated 

July 28, 2014, OWCP requested additional medical evidence in support of his claim for 

employment-related permanent impairment.

In a report dated July 16, 2014, Dr. Neil Allen, a Board-certified neurologist, examined 

appellant and found that he had reached maximum medical improvement. He noted that 

appellant reported bilateral hand pain with intermittent numbness and tingling. Dr. Allen

performed a physical examination and found that appellant had negative Phalen’s test and 

Tinel’s sign bilaterally. He reviewed appellant’s clinical studies. Dr. Allen applied the sixth 

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

Impairment,3(A.M.A., Guides) specifically the entrapment/compression neuropathy impairment 

table,4and found that appellant had nine percent bilateral upper extremity permanent 

impairment. He reported bilaterally: test findings, grade modifier 3 due to axon loss; history 

grade modifier 3 due to constant symptoms; and physical findings grade modifier 3 due to 

weakness. Dr. Allen also listed appellant’s functional scale of grade modifier 3, severe due to a 

QuickDASH score of 64.

OWCP’s medical adviser reviewed Dr. Allen’s report on September 22, 2014 and 

disagreed with his impairment rating, finding Dr. Allen’s rating was inconsistent with

Dr. Neumeister’s assessment of appellant’s progress. The medical adviser determined that 

appellant had three percent permanent impairment of each arm due to his bilateral carpal tunnel 

syndrome.

By decision dated December 5, 2014, OWCP granted appellant schedule awards for three 

percent permanent impairment of each arm. Counsel requested an oral hearing from OWCP’s 

Branch of Hearings and Review on December 11, 2014.

In a decision dated May 21, 2015, an OWCP hearing representative determined that the 

case was not in posture for a decision and remanded the case for additional development of the 

medical evidence, including referral to a second opinion physician for a determination of 

appellant’s permanent impairment for schedule award purposes.

 

3

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 --

Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

4 A.M.A., Guides 449, Table 15-23.
4

On July 9, 2015 OWCP referred appellant for a second opinion evaluation with

Dr. James B. Stiehl, a Board-certified orthopedic surgeon. In his July 27, 2015 report, Dr. Stiehl 

reviewed appellant’s history of injury and medical history. He noted that appellant continued to 

have chronic numbness in both hands, greater on the right. Appellant was capable of lifting and 

grabbing with both hands without difficulty. Dr. Stiehl determined that appellant’s QuickDASH

score was 68. Phalen’s test was negative with moderate discomfort to palpation over the right 

transverse carpal ligament. Sensation was normal to two-point discrimination testing except for 

the right thumb. Semmes Weinstein test was normal in all fingers except the right thumb and 

index finger. Dr. Stiehl reported that grip strength and pinch were normal with no evidence of 

abductor pollicis atrophy. He reviewed appellant’s EMG studies and found that these did not 

establish carpal tunnel syndrome on the left. Dr. Stiehl applied the A.M.A., Guides and found 

that under Table 15-23 appellant’s left wrist was normal with normal physical findings. He 

noted, “I would state that the conflicting evidence of peripheral neuropathy aggravated by 

diabetes, hypothyroidism, and other issues in addition to the documented double crush syndrome 

negate the presence of chronic occupational left carpal tunnel syndrome. The impairment would 

be zero.” Dr. Stiehl applied the A.M.A., Guides to appellant’s right upper extremity and found a 

motor conduction block, grade modifier 2, based on the presence of fibrillation and positive 

waves in the abductor pollicis brevis muscle and evidence of conduction delays seen with motor 

and sensory latency studies. He found significant intermittent symptoms of the right hand and a 

demonstration of decreased sensation with both two-point discrimination and Semmes Weinstein 

test. Dr. Stiehl listed appellant’s physical findings as grade modifier 1, functional score as grade 

modifier 3, and concluded that appellant had five percent permanent impairment of the right arm. 

In an August 12, 2015 supplemental report, Dr. Stiehl found that, due to appellant’s 

level 3 QuickDASH score of 68, appellant had six percent permanent impairment of the right 

arm. 

Appellant underwent additional EMG/NCV studies on August 31, 2015. These 

electrodiagnostic studies showed prolonged distal latency in the left and right median motor 

nerves. These studies demonstrated severe right distal median neuropathy consistent with severe 

right carpal tunnel syndrome and milder left distal median neuropathy consistent with mild left 

carpal tunnel syndrome.

On October 10, 2015 OWCP requested an additional supplemental report from Dr. Stiehl 

and supplied him the report from OWCP’s medical adviser. He responded on October 28, 2015 

and opined that he had correctly applied the A.M.A., Guides in his July 27, and August 12, 2015 

reports.

Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, and OWCP medical adviser, 

reviewed Dr. Stiehl’s reports on January 4, 2016. He agreed with the impairment ratings of six 

percent permanent impairment of the right upper extremity and no ratable impairment of the left 

upper extremity.

Dr. Neumeister completed a note on March 29, 2016 and opined that it was unclear 

whether appellant’s conditions of diabetes, hypothyroidism, and chronic obesity caused or 

aggravated his bilateral carpal tunnel syndrome.
5

In a decision dated April 28, 2016, OWCP found that appellant had six percent 

permanent impairment of his right arm and no ratable impairment of his left arm for which he 

had received schedule award compensation.5 Counsel requested an oral hearing from this 

decision on May 9, 2016.

Appellant testified at the oral hearing before an OWCP hearing representative on 

December 22, 2016. Counsel contended that appellant’s most recent electrodiagnostic studies 

supported Dr. Allen’s report and requested that OWCP provide Dr. Stiehl with those studies.

By decision dated February 8, 2017, OWCP’s hearing representative found that appellant 

had no more than six percent impairment of his bilateral upper extremities for which he had

received schedule awards.

LEGAL PRECEDENT

The schedule award provision of FECA6and its implementing regulations7set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for 

loss of use of scheduled members or functions of the body. FECA, however, does not specify 

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

making such determination is a matter which rests in the 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. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides.

8

 

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In 

Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories 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 

 

5 OWCP noted that appellant previously received a schedule award for three percent impairment of each arm. It 

advised that, as the current medical evidence supported six percent permanent impairment of the right arm and no 

impairment of the left arm, no additional payment was warranted. To the extent that OWCP purported to combine 

impairment for the right and left arm into an award for bilateral impairment, the Board notes that there is no 

provision for bilateral arm impairment under 5 U.S.C. § 8107. Each arm impairment is considered separately under 

FECA. R.C., Docket No. 07-0254 (issued August 23, 2007); Cf. Carl J. Cleary, 57 ECAB 563 (2006) (each leg 

impairment is considered separately under FECA; there is no provision for bilateral leg impairment).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See supra note 3.

9 A.M.A., Guides 449, Table 15-23.
6

value may be modified up or down by one percent based on functional scale, an assessment of 

impact on daily living activities.10

ANALYSIS

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

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized 

repeated surgeries. Dr. Allen provided his findings and opined that appellant had nine percent 

impairment of each upper extremity under Table 15-23, page 449, of the A.M.A., Guides. The 

Board notes that applying the compression neuropathy rating process to his grade modifiers 

results in an average grade modifier of 3 which corresponds to a default upper extremity 

impairment of eight percent bilaterally.11 The functional scale modifier of 64 is also grade 

modifier 3, such that the default value of eight percent is appropriate.

Dr. Stiehl, OWCP’s second opinion physician, examined appellant and reviewed his 

diagnostic studies. He found that appellant’s EMG/NCV studies dated September 29, 2012 did 

not establish carpal tunnel syndrome on the left. The A.M.A., Guides provide that the diagnosis 

of a neuropathy syndrome must be documented by sensory and motor nerve conduction studies 

or EMG to be ratable as impairment.12 As did Dr. Stiehl did not find appellant’s left carpal 

tunnel syndrome documented by NCV or EMG, he declined to rate this impairment in keeping 

with the A.M.A., Guides. Dr. Stiehl applied the A.M.A., Guides to appellant’s right upper 

extremity and found a motor conduction block, test findings grade modifier 2, physical findings 

as grade modifier 1, functional scale as grade modifier 3, averaging these grade modifiers results 

in a final rating category of 2 with a default value of 5. Dr. Stiehl found that appellant had a 

QuickDASH score of 68, corresponding to a functional scale grade modifier of 3, which would 

increase appellant’s impairment rating of the right upper extremity to six percent permanent 

impairment.

Both Dr. Allen and Dr. Stiehl provided impairment ratings under the A.M.A., Guides. 

Due to the disagreement between these physicians on the evaluation of whether appellant had 

EMG/NCV studies documenting left carpal tunnel syndrome and the variance in the grade 

modifiers, the Board finds that there is a conflict of medical opinion evidence requiring further 

development by OWCP. When there are opposing reports of virtually equal weight and 

rationale, the case will be referred to an impartial medical specialist pursuant to section 8123(a) 

of FECA which provides that, if there is 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 and resolve the conflict of medical evidence.13 

 

10 A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the 

functional scale score. A.M.A., Guides 448-49.

11 A.M.A., Guides, 448-449.

12 Id. at 445.

13 5 U.S.C. § 8123(a); B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).
7

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.14

On remand OWCP should refer appellant, a statement of accepted facts, and a list of 

specific questions to an appropriate Board-certified physician to determine the extent and degree 

of any ratable permanent impairment of both upper extremities. After this and such other 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

conflict of medical opinion evidence.

ORDER

IT IS HEREBY ORDERED THAT the February 8, 2017 decision of the Office of 

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

with this opinion of the Board.

Issued: October 5, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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