United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Southeastern, PA, Employer 

__________________________________________ 

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Docket No. 16-1908 

Issued: May 22, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

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 September 29, 2016 appellant, through counsel, filed a timely appeal from a June 30, 

2016 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 this case. 

ISSUE 

The issue is whether appellant has established more than nine percent permanent 

impairment of the right upper extremity, for which she previously received a schedule award. 

 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

On appeal counsel argues there is an unresolved conflict in the medical opinion evidence. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts of the case as presented in the 

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

On March 16, 2003 appellant, then a 51-year-old clerk, filed an occupational disease 

claim (Form CA-2) alleging that on February 3, 2003 she first realized her carpal tunnel 

syndrome was due to continuous typing. OWCP accepted the claim for right carpal tunnel 

syndrome. Appellant received compensation on the supplemental rolls from February 4 to 

27, 2003. OWCP subsequently expanded the acceptance of the claim to include right ulnar nerve 

compression. Appellant underwent neurolysis of the right wrist medial and ulnar nerves on 

July 15, 2005.4

Appellant filed a claim for a schedule award (Form CA-7) and submitted an impairment 

evaluation dated September 13, 2011 from Dr. Arthur Becan, an orthopedic surgeon, who noted 

appellant’s employment and medical history. He noted that electromyogram (EMG) testing 

dated February 22, 2003 and October 14, 2004 showed abnormalities in the carpal tunnel. 

Dr. Becan diagnosed right carpal tunnel syndrome, status post right carpal tunnel release, right 

elbow ulnar neuropathy, and status post right wrist ulnar nerve neurolysis. On physical 

examination he noted a positive Tinel’s sign along the right elbow ulnar nerve, restricted right 

elbow range of motion, pain on flexion and extension, right wrist palmar tenderness, positive 

right wrist Tinel’s and Phalen’s signs, restricted right wrist range of motion, and pain on palmar 

flexion, ulnar deviation, and dorsiflexion. Dr. Becan determined that appellant had a 

QuickDASH disability/symptom score of 79 percent. Using the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he concluded that 

appellant had 11 percent right upper extremity permanent impairment. Using Table 15-23,5

 3

 Docket No. 10-2399 (issued September 28, 2011), denying petition for reconsideration (issued May 25, 2012). 

The Board also issued an order denying appellant’s request for an oral argument under Docket No. 10-2399 on 

May 25, 2012. Docket No. 15-0318 (issued September 8, 2015). 

4

 On July 27, 2006 appellant alleged a recurrence of disability (Form CA-2a) commencing July 5, 2006. OWCP 

accepted this notice of recurrence of disability by decision dated October 16, 2006. Appellant received 

compensation on the supplemental rolls from July 5, 2006 until May 12, 2007. She thereafter received 

compensation on the periodic rolls from May 13, 2007 until September 27, 2008. Appellant returned to work in a 

full-time limited-duty position on October 3, 2008. She again alleged a recurrence of disability commencing 

October 23, 2008. OWCP denied this recurrence claim on April 9, 2009. Following further development, including 

referral to an impartial medical examiner, OWCP again denied this recurrence claim on December 2, 2009. On 

September 27, 2010 appellant filed an appeal to the Board. On September 28, 2011 the Board remanded this case 

for OWCP to clarify the selection of the impartial medical examiner. Docket No. 10-2399, (issued 

September 28, 2011). OWCP thereafter terminated appellant’s compensation benefits effective February 6, 2013. 

On November 25, 2014 appellant filed an appeal to the Board. On September 8, 2015 the Board affirmed the 

termination of appellant’s compensation benefits, however the Board found that the case was not in posture for 

decision as to whether appellant had continuing residuals or disability causally related to the accepted injury. Docket 

No. 15-0318 (issued September 8, 2015). On January 30, 2017 OWCP found that appellant had not established 

continuing residuals or disability. This decision is not the subject of the current appeal. 

5

 A.M.A., Guides 449, Table 15-23 
3

Dr. Becan assigned a grade modifier of 3 for test findings, a grade modifier of 3 for history, a 

grade modifier of 3 for physical examination findings based on decreased pinch, which totaled 9, 

averaged 3 and resulted in an eight percent right upper extremity permanent impairment. He 

noted using Table 15-7.6

 Her QuickDASH score was 79 for functional history which resulted in 

eight percent right upper extremity permanent impairment. Next, Dr. Becan used Table 15-237

to determine the impairment rating for appellant’s right elbow ulnar nerve entrapment 

neuropathy. He assigned a grade modifier of 1 for test findings, a grade modifier of 3 for 

history, and a grade modifier of 2 for physical examination findings of decreased sensory. Using 

the QuickDASH score of 79 percent in functional history increased the impairment to 6 percent, 

which was decreased by 50 percent due to the second compression neuropathy, resulting in a 

total of 3 percent permanent impairment. Combining the impairment for the right wrist median 

nerve entrapment neuropathy and right elbow ulnar nerve entrapment neuropathy resulted in a 

total of 11 percent right upper extremity impairment. 

By letter dated August 9, 2012, OWCP requested that Dr. John R. Donahue, a Boardcertified orthopedic surgeon and independent medical examiner, to assess appellant’s right upper 

extremity permanent impairment using the sixth edition of the A.M.A., Guides. 

In a September 17, 2012 report, Dr. Donahue detailed the reports and objective tests he 

reviewed. Appellant’s physical examination revealed negative elbow Tinel’s sign; negative 

bilateral Spurling’s test; normal pinch strength; normal wrist and elbow extension, abduction, 

adduction, and flexion; no evidence of thenar eminence weakness; full bilateral shoulders, wrist, 

elbows, and hand range of motion without pain; normal strength and stability; and unremarkable 

reflex, motor, and sensory examination although appellant complained of variable right arm 

tingling. He further observed that the physical examination revealed no evidence supporting any 

ongoing ulnar nerve compression or carpal tunnel syndrome and that she could return to her 

regular duty without restrictions. 

By decision dated October 1, 2012, based on Dr. Donahue’s report, OWCP denied 

appellant’s claim for a schedule award as there was no evidence of any permanent impairment 

due to the accepted conditions. 

By letter dated October 4, 2012, counsel requested an oral hearing before an OWCP 

hearing representative, which was held on January 30, 2013. 

Subsequent to the hearing appellant submitted a December 11, 2012 report from 

Dr. Stanton A. Bree, an examining osteopath and Board-certified physiatrist, and a February 11, 

2013 report from Dr. Scott Fried, a treating Board-certified osteopathic orthopedic surgeon. 

In a December 11, 2012 report, Dr. Bree noted that he had examined appellant on that 

day and had conducted motor and sensory conduction studies, as well as an EMG examination. 

Based on these studies, he diagnosed mild right wrist median neuropathy, moderate left wrist 

neuropathy, and mild right C5 radiculopathy. A motor conduction study revealed right median 

 6 Id. at 406, Table 15-7. 

7 Supra note 5. 
4

nerve prolonged distal latency, normal conduction velocity and normal amplitude, and right ulnar 

nerve above and below the elbow normal amplitude, distal latency, and conduction velocity. A 

sensory examination revealed normal right ulnar nerve latency and amplitude. 

In a February 11, 2013 report, Dr. Fried noted the history of appellant’s employment 

injury, her work history, and the medical care she had received. He disagreed with 

Dr. Donahue’s opinion as his report did not contain any documentation that “standard neurologic 

testing for carpal tunnel or brachial plexus involvement in either upper extremity” was 

performed. Dr. Fried diagnosed bilateral flexor tenosynovitits, bilateral radial neuropathy at the 

radial tunnel, brachial plexitis, carpal tunnel median neuropathy due to work activities, and right 

Raynaud’s versus White hand syndrome. He related that objective testing in the form of EMG 

examination and nerve conduction studies showed that appellant continued to have residuals of 

right carpal tunnel syndrome as well as “[p]roximal involvement at the brachial plexus” and 

radial and ulnar nerve involvement. 

By decision dated May 30, 2013, an OWCP hearing representative set aside the 

October 1, 2012 decision denying appellant’s claim for a schedule award. He found further 

development of the medical evidence was required. 

By letter dated September 13, 2013, OWCP requested Dr. Donahue provide a 

supplemental report following review of the new evidence of record. 

In a supplemental report dated October 3, 2013, Dr. Donahue, based on a review of a 

December 11, 2012 EMG report by Dr. Bree, and a February 11, 2013 report from Dr. Fried, 

reiterated his conclusion that appellant had no residuals or disability due to her accepted 

conditions. He noted that he had “inadvertently left out the negative Tinel’s and Phalen’s sign” 

on the examination of appellant’s right wrist. Dr. Donahue related that he found no evidence of 

carpal tunnel syndrome either clinically or objectively and that the condition had been surgically 

corrected. He found no permanent impairment using the A.M.A., Guides. 

In a November 12, 2013 report, OWCP’s medical adviser reviewed the evidence relevant 

to appellant’s schedule award claim. He noted that “[m]ultiple EMG studies have demonstrated 

significant distal latencies in the carpal tunnel” including the most recent study of 

December 11, 2012.” Based on review of this objective evidence, the medical adviser opined 

that there was “definite abnormality in regard to the EMG study.” He disagreed with 

Dr. Donahue’s finding that there was no permanent impairment. Using Dr. Becan’s examination 

findings and the A.M.A, Guides, he determined that appellant had nine percent right upper 

extremity permanent impairment. The medical adviser determined the date of maximum medical 

improvement (MMI) was September 11, 2011, the date of Dr. Becan’s report. 

By decision dated November 26, 2013, OWCP granted appellant a schedule award for 

nine percent permanent impairment of the right upper extremity. 

By letter dated December 3, 2013, counsel requested an oral hearing before an OWCP 

hearing representative. A hearing was held on May 22, 2014. 

By decision dated August 21, 2014, OWCP’s hearing representative set aside the 

November 26, 2013 schedule award determination. She found that Dr. Donahue’s report was 
5

insufficient to determine appellant’s impairment rating as it failed to correctly apply the A.M.A., 

Guides. The hearing representative found that as OWCP had undertaken development of the 

evidence by referral to a second opinion physician that it had an obligation to secure a report 

resolving the issue in question. As Dr. Donohue’s reports were insufficient to resolve the issue 

of appellant’s impairment, OWCP should have referred appellant for another second opinion 

evaluation. The hearing representative then remanded the case to OWCP for referral to a proper 

specialist to make an impairment determination using the sixth edition of the A.M.A., Guides. 

On July 28, 2015 OWCP referred appellant for a second opinion evaluation with Dr. F. 

Draper, Jr., a Board-certified orthopedic surgeon, for a determination of appellant’s right upper 

extremity impairment. 

In an August 13, 2015 report, Dr. Draper noted appellant’s medical history. He related 

that examination of her right elbow revealed flexion of 150 degrees, elbow extension lag of 0 

degrees, forearm supination of 85 degrees, and forearm pronation was 80 degrees. Physical 

examination findings for right wrist revealed extension of 60 degrees, flexion of 60 degrees, 

ulnar deviation of 40 degrees, and radial deviation of 30 degrees. The fingers of the right hand 

showed range of motion for the distal interphalangeal joint for the index, middle, ring, and little 

finger of 70 degrees, range of motion for the proximal interphalangeal joint for the index, 

middle, ring, and little finger of 100 degrees, and the range of motion for the 

metacarpophalangeal joint for the index, middle, ring, and little finger of 90 degrees. Dr. Draper 

noted a slight positive Tinel’s sign over the right elbow ulnar nerve and a negative Tinel’s sign 

over the right wrist ulnar nerve and right elbow median nerve, and grip strength was +5.5 for the 

right hand. He related that appellant had normal light touch at the tip of the right index and little 

finger. Dr. Draper explained that her diagnoses included right carpal tunnel syndrome, status 

post 2005 right carpal tunnel release, and mild right elbow ulnar nerve entrapment syndrome. 

He calculated appellant’s impairment rating for right bilateral carpal tunnel syndrome and right 

ulnar nerve entrapment syndrome under Table 15-2,8

 of the A.M.A., Guides for peripheral nerve 

impairment. Using the table for right median nerve, he noted a grade modifier for test findings 

of 1, a grade modifier for physical examination of 2 and a grade modifier for history of 2 for a 

total of 5 which he divided by 3 to arrive at 1.66 or four percent impairment for grade 1. 

Dr. Draper then calculated appellant’s impairment for right ulnar nerve and noted a grade 

modifier for test findings of 0, a grade modifier for physical examination of 0 and a grade 

modifier for history of 1 for a total of 1 which he divided by 3 to arrive at 0.33 or 0 percent for a 

grade 0. Lastly, Dr. Draper combined the impairment ratings for the right median nerve and 

right ulnar nerve to arrive at a total four percent right upper extremity permanent impairment. 

Dr. Draper, in a supplemental report dated November 9, 2015, determined the date of 

MMI to be July 15, 2006, which he noted was one year following right carpal tunnel release 

surgery on July 15, 2005. 

By decision dated December 17, 2015, OWCP denied appellant’s request for an 

additional schedule award. 

 8 Supra note 5 at Table 15-2. 
6

By letter dated December 29, 2015, counsel requested an oral hearing before an OWCP 

hearing representative. This hearing was held on April 11/2016. 

By decision dated June 30, 2016, an OWCP hearing representative affirmed the 

December 17, 2015 decision denying appellant’s claim for an additional schedule award. The 

hearing representative found the weight of the medical opinion evidence rested with Dr. Draper’s 

August 13, 2015 report. 

LEGAL PRECEDENT 

Under section 8107 of FECA9

 and section 10.404 of the implementing federal 

regulations,10 schedule awards are payable for permanent impairment of specified body 

members, functions, or organs. FECA, however, does not specify the manner in which the 

percentage of impairment shall be determined. For consistent results and to ensure equal justice 

under the law for 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.11 

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the 

Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on 

Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).13 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

The A.M.A., Guides notes that, when impairment results strictly from a peripheral nerve 

lesion, no other rating method is applied to this section (15.4 Peripheral Nerve Impairments) to 

avoid duplication or unwarranted increases in the impairment estimation.15

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

 9

 5 U.S.C. § 8107. 

10 20 C.F.R. § 10.404. 

11 D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

12 A.M.A., Guides 3 (6th ed., 2009), section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement. 

13 Id. at 383-419. 

14 Id. at 411. 

15 A.M.A., Guides 423 (note that peripheral nerve impairment may be combined with diagnosis-based 

impairments (DBI) at the upper extremity as long as the DBI does not encompass the nerve impairment. Id. at 419. 
7

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical 

adviser providing rationale for the percentage of impairment specified.16

ANALYSIS 

OWCP accepted that appellant sustained right carpal tunnel syndrome and right ulnar 

nerve compression. On December 15, 2011 appellant filed a claim for a schedule award. By 

decision dated November 26, 2013, OWCP granted appellant a schedule award for nine percent 

right upper extremity permanent impairment with September 13, 2011 as the date of MMI. By 

decision dated August 21, 2014, the hearing representative set aside the November 26, 2013 

schedule award determination and remanded the case for referral to a proper specialist to make 

an impairment determination using the sixth edition of the A.M.A., Guides. On remand, OWCP 

referred appellant to Dr. Draper for a second opinion evaluation. Dr. Draper diagnosed right 

carpal tunnel syndrome, status post 2005 right carpal tunnel release, and mild right elbow ulnar 

nerve entrapment syndrome. He reviewed the medical and evidence and provided examination 

findings. Dr. Draper applied the A.M.A., Guides and concluded that appellant had four percent 

right upper extremity impairment due to her accepted right carpal tunnel and right elbow ulnar 

nerve entrapment syndrome and that the date of MMI was July 15, 2006. By decision dated 

December 17, 2015, OWCP denied appellant’s request for an additional schedule award based 

on Dr. Draper’s report, which was affirmed by a hearing representative on June 30, 2016. 

After OWCP received the report from Dr. Draper, if the claims examiner determined that 

the case was in posture for a schedule award determination, the case should have been referred to 

a DMA for review. OWCP’s procedures specifically provide: “The [c]laims [e]xaminer (CE) 

will ask the [d]istrict [m]edical [a]dviser (DMA) to evaluate a case when it appears to be in 

posture for schedule award determination. The DMA is responsible for reviewing the file, 

particularly the medical report on which the award is to be based, and then calculating the 

award.”17

On appeal counsel contends there is a discrepancy in the medical opinion evidence 

regarding appellant’s impairment rating between Dr. Becan, appellant’s examining physician, 

and Dr. Draper, a second opinion physician. The Board notes that Dr. Becan in his 

September 13, 2011 report found that appellant had 11 percent permanent impairment of the 

right upper extremity. In assessing appellant’s impairment for right carpal tunnel syndrome, 

Dr. Becan assigned grade modifiers of 3, for test findings, history, and physical examination 

findings. While assessing appellant’s ulnar nerve entrapment neuropathy he assigned a grade 

modifier of 1 for test results, a grade modifier of 3 for history, and a grade modifier of 2 for 

physical examination findings. Based upon Dr. Becan’s findings OWCP’s medical adviser 

found in his November 12, 2013 report that appellant had nine percent permanent impairment of 

the right upper extremity. OWCP thereafter granted appellant a schedule award for nine percent 

permanent impairment of the right upper extremity. Dr. Draper, however, concluded in his 

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

Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 

ECAB 349 (2006).

17 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010). 
8

August 13, 2015 report that appellant only had four percent permanent impairment of the right 

upper extremity. He evaluated appellant’s impairment under the Tables for right median and 

right ulnar nerve. Dr. Draper assigned grade modifiers lower than those of Dr. Becan. For 

example, in rating appellant’s right ulnar nerve impairment he assigned a grade modifier of 0 for 

test findings, a grade modifier of 0 for physical examination and a grade modifier of 1 for 

history. Dr. Draper, however, related that appellant had reached MMI in 2006, years prior to 

Dr. Becan’s evaluation. 

Reinforcing the requirement for DMA review of a schedule award claim, OWCP 

procedures also provide that, after obtaining all necessary medical evidence, the file should be 

routed to an OWCP medical adviser for an opinion concerning the percentage of impairment 

using the A.M.A., Guides.

18 OWCP accepted Dr. Draper’s examination findings in denying 

appellant’s request for an additional schedule award. Dr. Draper’s examination findings suggest 

that appellant’s condition may have improved since Dr. Becan’s evaluation, if OWCP believed 

that all necessary medical evidence was now of record, it was incumbent on the claims examiner 

to request that OWCP’s medical adviser review the record. The facts of this case remain unclear 

as to whether appellant’s condition improved after 2011, or if MMI occurred in 2006. 

Dr. Draper’s report was not forwarded to an OWCP medical adviser for review and thus 

it did not comply with its procedures. For this reason, the Board will set aside the June 30, 2016 

decision and remand the case to OWCP. On remand, OWCP should have a medical adviser 

evaluate Dr. Draper’s August 13 and November 9, 2015 reports and provide an opinion 

concerning the extent of appellant’s impairment in accordance with the A.M.A., Guides. After 

such further development as may be necessary, it shall render a de novo decision. 

CONCLUSION 

The Board finds this case not in posture for decision.

 18 See Federal (FECA) Procedure Manual, supra note 16 at Chapter 2.808.6(f) (February 2013); C.K., Docket No. 

09-2371 (issued August 18, 2010); M.R., Docket No. 13-1279 (issued December 5, 2013); C.K., Docket No. 09-

2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006). 
9

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 30, 2016 is set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board. 

Issued: May 22, 2017 

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