United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer

__________________________________________

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Docket No. 19-0415

Issued: September 4, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2018 appellant, through counsel, filed a timely appeal from a

September 24, 2018 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 over the merits of this case.

 

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

ISSUE

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

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

FACTUAL HISTORY

On July 5, 1990 appellant, then a 29-year-old postal clerk, filed an occupational disease 

claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome and tendinitis due 

to repetitive employment duties including keyboard usage. OWCP accepted her claim for bilateral 

carpal tunnel syndrome, thoracic outlet syndrome (brachial plexus lesions), and depression, and 

paid her wage-loss compensation for periods of work stoppage.3

On April 25, 2012 appellant filed a claim for a schedule award (Form CA-7) due to her 

accepted employment-related conditions. By decision dated September 26, 2012, OWCP denied 

her schedule award claim because she had not provided an impairment rating from her physician.

On October 9, 2012 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. She submitted an October 10, 2012 

report from Dr. John L. Dunne, an osteopath Board-certified in occupational medicine. Dr. Dunne 

utilized Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth 

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

(A.M.A., Guides).4 He indicated that appellant’s QuickDASH score was 43 and used that score

as the basis for a grade modifier of 3 for functional scale. Dr. Dunne found that the average of the 

grade modifiers for test findings, history, and physical findings was 3. He calculated that, under 

Table 15-23, this warranted an eight percent permanent impairment for each upper extremity due

to bilateral carpal tunnel syndrome. Dr. Dunne noted that there was zero percent permanent 

impairment of the upper extremities for brachial plexus lesions because his physical examination 

did not reveal evidence of brachial neuritis or brachial plexus lesion.

On November 1, 2012 OWCP referred appellant’s case to an OWCP district medical 

adviser (DMA) for review.

Prior to a hearing being held, OWCP’s hearing representative issued a December 12, 2012 

decision which set aside the September 26, 2012 decision and remanded the case for a de novo

decision upon receipt of a report from a DMA.

On remand, OWCP referred appellant’s case to Dr. Brian M. Tonne, a Board-certified 

orthopedic surgeon, for review in his a capacity as a DMA.

In a May 13, 2013 report, Dr. Tonne advised that maximum medical improvement (MMI) 

was reached on October 10, 2012. Utilizing Table 15-23 for each upper extremity, he derived a 

 

3 Appellant retired on disability effective July 1, 1990.

4 A.M.A., Guides (6th ed. 2009).
3

grade modifier of 1 for test findings and grade modifiers of 3 for history and physical findings. 

Dr. Tonne calculated the average of these grade modifiers to arrive at an average grade of 2.

5

 He

indicated that based upon the QuickDASH score of 43 noted by Dr. Dunne, the default value of 

five percent applied for each upper extremity. Dr. Tonne concluded that appellant had five percent 

permanent impairment of each upper extremity due to her bilateral carpal tunnel syndrome.

By decision dated June 7, 2013, OWCP granted appellant a schedule award for five percent 

impairment of each upper extremity. The award ran for 31.2 weeks from October 10, 2012 to 

May 16, 2013 and was based on the opinion of Dr. Tonne.

On November 21, 2015 appellant filed a claim for an additional schedule award (Form CA7) and submitted a November 24, 2015 report from Dr. Neil Allen, a Board-certified internist and 

neurologist. Dr. Allen indicated that appellant reported undergoing electromyogram and nerve 

conduction velocity (EMG/NCV) studies in 1994 which confirmed bilateral carpal tunnel 

syndrome. However, he indicated that these studies were not available for review. Following his 

physical examination Dr. Allen applied a grade modifier of 1 for test findings and grade modifiers 

of 3 for history and physical findings, as derived from Table 15-23 on page 449. He noted that the 

functional scale modifier was based on appellant’s QuickDASH score of 61. Dr. Allen concluded 

that, according to the “Rating Process” associated with Table 15-23, appellant had six percent

permanent impairment of each upper extremity.

OWCP referred the case record, including Dr. Allen’s November 24, 2015 report, to

Dr. Jovito B. Estaris, a Board-certified occupational medicine physician, for review in his capacity 

as a DMA. It requested that he provide an opinion on the extent of appellant’s upper extremity 

impairment under the sixth edition of the A.M.A., Guides.

In a February 2, 2016 report, the DMA indicated that Dr. Allen had not reviewed any

particular EMG/NCV findings, but rather accepted the information from appellant that her 

EMG/NCV studies showed bilateral carpal tunnel syndrome. Using Table 15-23, he assigned a 

grade modifier of 0 for test findings and grade modifiers of 3 for history for both upper extremities. 

For physical findings, the DMA applied a grade modifier of 2 for the right upper extremity (due 

to no atrophy noted on examination and insignificant motor weakness) and a grade modifier of 3 

for the left upper extremity (due to weakness without atrophy). With respect to the functional 

scale modifier, he noted that the QuickDASH score by Dr. Allen was 61 and the QuickDASH score 

by Dr. Dunne was 43. The DMA indicated that the determinations by these physicians were

inconsistent and that the QuickDASH score was therefore excluded from the grading process per

pages 406 and 407 of the A.M.A., Guides where it is noted, “If the functional history is determined 

to be unreliable or inconsistent with other documentation, it is excluded from the grading process.” 

He added the grade modifiers and obtained an average of 2 for each upper extremity.

6

 The DMA 

concluded that appellant had five percent permanent impairment of each upper extremity.

 

5 Dr. Tonne rounded down to 2 from the average value of 2.33.

6 For the right upper extremity, Dr. Estaris rounded up to 2 from the average value of 1.66.
4

By decision dated June 8, 2016, OWCP denied appellant’s claim for an additional schedule

award, noting that the DMA had properly applied the standards of the A.M.A., Guides.

On June 16, 2016 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. Appellant submitted an August 3, 

2016 addendum report from Dr. Allen and a report of June 30, 2016 EMG/NCV studies which 

showed normal findings in both upper extremities. In his August 3, 2016 report, Dr. Allen 

provided an assessment of appellant’s upper extremity permanent impairment which was similar 

to the assessment he provided in his November 24, 2015 report. He disagreed with the DMA’s

exclusion of the functional scale in the grading process by explaining that there were no such 

indications for said exclusion in A.M.A., Guides. Dr. Allen concluded that appellant had six 

percent permanent impairment of each upper extremity.

During the hearing held on February 14, 2017, counsel argued that Dr. Allen’s August 3, 

2016 supplemental report established that appellant had six percent permanent impairment of each 

upper extremity.

By decision dated April 25, 2017, the hearing representative affirmed the June 8, 2016 

decision, noting that the DMA had properly applied the standards of the A.M.A., Guides.

On April 3, 2018 appellant, through counsel, requested reconsideration of the April 25, 

2017 decision.

Appellant submitted a July 26, 2017 report from Dr. Allen, who again disagreed with the 

DMA’s exclusion of the functional scale score in the grading process. Dr. Allen indicated that it 

was reasonable that an individual’s functional capacity might vary from week to week or from 

month to month.

On July 20, 2018 OWCP referred Dr. Allen’s July 26, 2017 report to the DMA for review. 

In a July 25, 2018 report, he referenced the report of June 30, 2016 EMG/NCV studies which 

showed normal findings in both upper extremities. The DMA noted that, under Table 15-23, the 

normal findings of these EMG/NCV studies meant that appellant fell under the grade modifier 0 

category for each upper extremity and, therefore, appellant presently had no permanent impairment 

of either upper extremity.

By decision dated September 24, 2018, OWCP denied modification of the April 25, 2017 

decision.

LEGAL PRECEDENT

The schedule award provision of FECA7and its implementing regulation8set 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. However, FECA does not 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404 (1999).
5

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 

sixth edition of the A.M.A., Guides has been adopted by OWCP as the appropriate standard for 

evaluating schedule losses.9 

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In 

Table 15-23, grade modifiers 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 

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

assessment of impact on daily living activities.11

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than five 

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

In a February 2, 2016 report, Dr. Estaris, the DMA, discussed his review of the medical 

records and provided an opinion that appellant had five percent permanent impairment of each 

upper extremity under the standards of the sixth edition of the A.M.A., Guides. He properly applied 

these standards to calculate appellant’s upper extremity permanent impairment. The DMA correctly

made reference to Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 

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

12

 For each upper extremity, he chose grade modifiers 

from the table for the various categories, including test findings, history, and physical findings

based on Dr. Allen’s findings. The DMA then correctly averaged the grade modifiers and 

identified the default value of five on Table 15-23 for the grade modifier 2 category. He then noted 

that the QuickDASH score by Dr. Allen was 61 and the QuickDASH score by Dr. Dunne was 43 

and properly determined that, because the determinations by these physicians were inconsistent, 

that the functional scale score was therefore excluded from the grading process per pages 406 and 

407 of the A.M.A., Guides.

13

 Therefore, the DMA determined that the functional scale analysis

 

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

2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010).

10 See A.M.A., Guides 449, Table 15-23.

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

scale score. Id. at 448-49. However, if the functional history is determined to be unreliable or inconsistent with other 

documentation, it is excluded from the grading process. Id. at 406-07. 

12 Supra note 10.

13 See supra note 11.
6

did not result in movement from the default value of five percent and concluded that appellant had 

five percent permanent impairment of each upper extremity.

The Board notes that Dr. Allen provided assessments in several reports, including those 

dated November 13, 2015 and August 3, 2016, that appellant had six percent permanent 

impairment of each upper extremity. This higher rating was based on Dr. Allen’s opinion that the 

functional scale score was not excluded from the grading process, but the Board has explained 

why it was proper to exclude the functional scale score under the relevant standards. The Board 

has held that an opinion on permanent impairment is of limited probative value if it is not derived 

in accordance with the standards adopted by OWCP and approved by the Board as appropriate for 

evaluating schedule losses.14 As such, Dr. Allen’s reports are of limited probative value.

Moreover, after the DMA produced his February 2, 2016 report, appellant submitted a 

report of June 30, 2016 EMG/NCV studies which showed normal findings in both upper 

extremities. In his July 25, 2018 report, the DMA referenced this June 30, 2016 report and 

properly noted that, under Table 15-23, the normal findings of the EMG/NCV studies meant that 

appellant fell under the grade modifier 0 category for each upper extremity and that she had no 

permanent impairment of either upper extremity at that time. 

As there is no medical evidence of record establishing that appellant has more than five 

percent permanent impairment of each upper extremity, the Board finds that appellant has not met 

her burden of proof to establish greater impairment than that previously awarded.

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish more than five 

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

 

14 See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).
7

ORDER

IT IS HEREBY ORDERED THAT the September 24, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 4, 2019

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