United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer 

__________________________________________ 

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Docket No. 15-1629 

Issued: July 3, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 27, 2015 appellant filed a timely appeal from an April 30, 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.2

ISSUE 

The issue is whether appellant has met her burden of proof to establish more than two 

percent permanent impairment of her right upper extremity, for which she previously received a 

schedule award. 

 1

 5 U.S.C. § 8101 et seq. 

2

 Appellant submitted additional evidence after OWCP’s April 30, 2015 decision. The Board cannot consider 

evidence which was not before OWCP at the time it issued its final decision. Thus, the Board is precluded from 

reviewing this evidence. See 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 The facts and circumstances of the case 

as set forth in the Board’s prior decision and order are incorporated herein by reference. The 

relevant facts are as follows. 

Appellant, a 63-year-old former secretary, has an accepted occupational disease claim 

(Form CA-2) for bilateral carpal tunnel syndrome, right de Quervain’s/radial styloid 

tenosynovitis, right hand/wrist tenosynovitis, right lateral epicondylitis, and right shoulder 

disorder of the bursae and tendons. These conditions arose on or about February 22, 2008. 

Appellant voluntarily retired effective May 31, 2011. 

In a December 29, 2011 report, Dr. Samuel J. Chmell, an attending Board-certified 

orthopedic surgeon, indicated that, under Table 15-23 of the sixth edition of the American 

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

Guides), appellant had 23 percent permanent impairment of her left upper extremity due to 

carpal tunnel syndrome. He advised that, under Table 15-32 through Table 15-34, she had 56 

percent permanent impairment of her right upper extremity due to limited range of motion 

(ROM) of her right wrist, elbow, and shoulder.4

On April 25, 2013 Dr. Chmell noted that his prior impairment rating was based not only 

on carpal tunnel syndrome, but also on tenosynovitis of the right hand and wrist, disorder of 

bursae/tendons of the right shoulder, and lateral epicondylitis of the right elbow. 

Appellant filed a claim for a schedule award (Form CA-7) due to her accepted work 

injuries. In a February 7, 2014 decision, OWCP determined that she had failed to establish 

permanent impairment warranting a schedule award compensation. 

OWCP subsequently referred appellant for a second opinion examination and impairment 

evaluation to Dr. Allan Brecher, a Board-certified orthopedic surgeon. In a June 30, 2014 report, 

Dr. Brecher determined that appellant’s carpal tunnel syndrome, epicondylitis, and right shoulder 

tendinitis had resolved and, therefore, she had no permanent impairment due to these conditions. 

He also determined that appellant continued to have right de Quervain’s tenosynovitis and 

concluded that she had two percent permanent impairment of her right upper extremity due to 

this condition under the standards of the sixth edition of the A.M.A., Guides. Dr. Brecher noted, 

“[W]e look at Table 15-5, she has a class 1, grade D, functional history 2, physical exam[ination] 

2, clinical studies 3, and [QuickDASH] score 52 gives her [two] percent upper extremity 

impairment. Therefore, [appellant’s] regional impairment is [two] percent.”5

 

 3

 Docket No. 14-1896 (issued January 15, 2015). 

4

 Dr. Chmell noted that, with respect to her right wrist, appellant had three percent permanent impairment due to 

45 degrees of flexion, three percent permanent impairment due to 40 degrees of extension, and two percent 

permanent impairment due to 10 degrees of ulnar deviation. 

5

 Regarding Dr. Chmell’s April 25, 2013 report, Dr. Brecher indicated that in the past Dr. Chmell had used the 

ROM impairment rating method, but noted that this was “not relevant as we are supposed to use diagnosis-related 

impairment.” 
3

In an August 4, 2014 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon 

serving as an OWCP medical adviser, indicated that he agreed with Dr. Brecher’s assessment 

that appellant had two percent permanent impairment of her right upper extremity under the 

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

In an August 14, 2014 decision, OWCP granted appellant a schedule award for two 

percent permanent impairment of her right upper extremity. The award ran for 6.24 weeks from 

June 27 to August 9, 2014 and was based on the June 30, 2014 report of Dr. Brecher and the 

August 4, 2014 report of Dr. Garelick. 

Appellant filed an appeal with the Board on August 25, 2014. In a January 15, 2015 

decision, the Board set aside OWCP’s August 14, 2014 decision and remanded the case for 

further development of the medical evidence.6

 The Board found that there were various 

deficiencies in Dr. Brecher’s June 30, 2014 report that needed to be clarified. The Board noted 

that Dr. Brecher rated the right shoulder tendinitis condition using the diagnosis-based 

impairment (DBI) rating method, under Table 15-5 of the sixth edition of the A.M.A., Guides, 

without explaining why he chose this diagnosed condition as the primary condition for rating. 

The Board further indicated that Dr. Brecher did not provide adequate explanation for how he 

chose the grade modifier for Functional History (GMFH), grade modifier for Physical 

Examination (GMPE), and grade modifier for Clinical Studies (GMCS). Additionally, the Board 

found that Dr. Brecher indicated that various accepted conditions other than de Quervain’s 

tenosynovitis had resolved, including bilateral carpal tunnel syndrome and right epicondylitis, 

but he did not provide adequate rationale as to why he opined that they had resolved. Lastly, the 

Board determined that Dr. Brecher did not adequately explain why he discounted Dr. Chmell’s 

use of the ROM impairment rating method, rather than the DBI impairment rating method. The 

Board directed OWCP to carry out development to clarify these matters and issue a decision 

regarding whether appellant has more than two percent permanent impairment of her right upper 

extremity. 

On remand OWCP referred the case back to Dr. Brecher for a supplemental opinion 

clarifying the matters raised by the Board in its January 15, 2015 decision. 

In a March 13, 2015 report, Dr. Brecher provided an assessment of appellant’s 

impairment under the sixth edition of the A.M.A., Guides. He indicated that appellant had 

de Quervain’s tenosynovitis, rather than right shoulder tendinitis, and that the portion of 

Table 15-2 regarding digital stenosing tenosynovitis (class 1) provided the correct standards to 

use for this diagnosis. Dr. Brecher opined that appellant’s bilateral carpal tunnel and shoulder 

conditions had resolved based on her subjective complaints and the findings on physical 

examination. He noted that, under Table 15-7 through Table 15-9, appellant had a GMFH of 2 

due to a moderate problem with a history of difficulty using her right hand, decreased sensation, 

and decreased ROM in the right thumb. Dr. Brecher also noted a GMPE of 2 due to moderate, 

clearly palpatory findings including a positive Finkelstein test. Finally, he found a GMCS of 2 

due to clinical confirmation of moderate de Quervain’s tenosynovitis. Dr. Brecher advised that 

 6 See supra note 3. 
4

application of the net adjustment formula meant that appellant had eight percent permanent 

impairment of her right upper extremity. 

On April 6, 2015 Dr. Garelick, again serving as an OWCP medical adviser, reviewed the 

supplemental opinion of Dr. Brecher. He indicated that he disagreed with Dr. Brecher’s 

conclusion that appellant had eight percent permanent impairment of her right upper extremity. 

Dr. Garelick noted that Dr. Brecher properly indicated that appellant had ongoing de Quervain’s 

tenosynovitis, but improperly assigned the DBI category for the diagnosis of stenosing 

tenosynovitis in Table 15-2 of the sixth edition of the A.M.A., Guides. He opined that 

de Quervain’s tenosynovitis fell under the DBI category for a wrist sprain in Table 15-3. 

Dr. Brecher found that the most appellant could be awarded for her permanent impairment under 

this DBI category was two percent of the right upper extremity. 

By decision dated April 30, 2015, OWCP found that appellant did not meet her burden of 

proof to establish more than two percent permanent impairment of her right upper extremity for 

which she previously received a schedule award. It based this determination on Dr. Garelick’s 

April 6, 2015 review of Dr. Brecher’s March 13, 2015 report.7

LEGAL PRECEDENT 

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 Director of the Office of Workers’ 

Compensation Programs.8

 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.9 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 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.10

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 

 7

 After appellant filed this appeal on July 27, 2015, OWCP issued a March 17, 2016 decision granting her an 

award for five percent permanent impairment of her left upper extremity and an additional five percent permanent 

impairment of her right upper extremity. This decision, however, is null and void as the Board and OWCP may not 

simultaneously have jurisdiction over the same case. OWCP may not issue a decision regarding the same issue on 

appeal before the Board, in this instance, a schedule award for upper extremity impairment. See Russell E. Lerman,

43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3). 

8 See 20 C.F.R. §§ 1.1-1.4. 

9

 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

10 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

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).11 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.12

ANALYSIS 

The issue on appeal is whether appellant has met her burden of proof to establish more 

than two percent permanent impairment of her right upper extremity for which she previously 

received a schedule award. 

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

The Board has found that OWCP has 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 the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.13 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.14 In T.H., the Board concluded that OWCP physicians 

were at odds over the proper methodology for rating upper extremity impairment, having 

observed 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. Furthermore, the Board has observed that 

physicians interchangeably cited 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 claimants.15

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 April 30, 2015 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities to be applied 

uniformly, and 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. 

 11 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). 

12 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

15 Supra note 13. 
6

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: July 3, 2017 

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