United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, SOUTHERN 

MARYLAND PROCESSING & DISTRIBUTION 

CENTER, Capital Heights, MD, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-1208

Issued: July 19, 2019

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 October 12, 2018 appellant filed a timely appeal from an April 24, 2018 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from April 24, 2018, the date of OWCP’s last decision, was Sunday,

October 21, 2018, with Monday, October 22, 2018 the first business day. Since using May 9, 2019, the date the appeal 

was received by the Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark 

is considered the date of filing. The date of the U.S. Postal Service postmark is October 12, 2018, rendering the appeal 

timely filed. See 20 C.F.R. § 501.3(f)(1); A.M., Docket No. 18-1098 (issued April 22, 2019).
2

Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.3

ISSUE

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

percent permanent impairment of her bilateral upper extremities, for which she previously received 

schedule award compensation.

FACTUAL HISTORY

On October 24, 2012 appellant, a 46-year-old mail processor/distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome and 

tendinitis due to factors of her federal employment. On October 24, 2014 OWCP accepted the 

claim for bilateral carpal tunnel syndrome. It paid appellant intermittent wage-loss compensation 

on the supplemental rolls retroactive to October 16, 2012.4

Dr. Gary R. Smith, Board-certified in orthopedic and hand surgery, performed bilateral 

carpal tunnel decompression surgery on March 21, 2014. He performed revision of left median 

nerve decompression on April 27, 2015, and revision of right carpal tunnel decompression on 

August 24, 2015. On March 8, 2016 appellant returned to four hours of limited duty daily. She 

continued to receive partial disability compensation. 

On December 7, 2017 appellant filed a schedule award claim (Form CA-7) and submitted 

an October 1, 2017 report in which Dr. Smith advised that she had reached maximum medical 

improvement (MMI). Dr. Smith noted that appellant had two electrodiagnostic studies, 

electromyography/nerve conduction velocity (EMG/NCV), and described her surgical history.

5

 

He indicated that she had a lot of scar tenderness, weakness, and ongoing pain with 

hypersensitivity in both palms and mild persistent dysesthesias in the fingertips. Dr. Smith advised 

that, in accordance with Table 15-23, Entrapment/Compression Neuropathy Impairment, of the 

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

Impairment (A.M.A., Guides),

6

appellant had eight percent right upper extremity permanent 

 

2 5 U.S.C. § 8101 et seq. 

3 The Board notes that following the April 24, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.

4 The record contains decisions dated September 16 and October 5, 2015 denying specific periods of disability in 

2012.

5 A May 18, 2011 EMG/NCV study demonstrated bilateral carpal tunnel syndrome with no evidence of acute C5 

radiculopathy and right ulnar conduction delay at the elbow. An October 30, 2014 EMG/NCV study demonstrated 

moderate-to-marked severe bilateral median neuropathy at the wrist consistent with carpal tunnel syndrome, left more 

than right, and mild right ulnar compression neuropathy at the elbow. 

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

impairment and eight percent permanent impairment on the left upper extremity. He noted that 

the diagnosis of bilateral carpal tunnel syndrome had been confirmed electrodiagnostically and 

that, despite two previous decompressions on each side, appellant had ongoing symptoms. 

Dr. Smith found a clinical studies grade modifier (GMCS) of 3 for axonal loss, a functional history 

grade modifier (GMFH) of 3 for constant symptoms, a grade modifier of 3 for physical 

examination (GMPE) findings of ongoing weakness and decreased sensation, and a moderate 

functional scale of 3, for a combined eight percent permanent impairment of each upper extremity. 

On January 31, 2018 OWCP referred appellant to Dr. Scott M. Tintle, Board-certified in 

orthopedic and hand surgery, for a second opinion and impairment evaluation. In a February 15, 

2018 report, Dr. Tintle reviewed the medical record, a statement of accepted facts (SOAF), and a 

list of questions regarding appellant’s permanent impairment. He provided examination findings

indicating that when he initially tested two-point discrimination in the median and ulnar nerve 

distributions to both hands, appellant seemed uncooperative, but that eventually she had normal 

two-point discrimination of approximately six millimeters to all digits of bilateral hands. 

Dr. Tintle noted that she would not allow him to touch her carpal tunnel incisions because she 

stated they were very sensitive. Phalen’s test did not reproduce any numbness into her fingers 

although it did cause her some discomfort. Dr. Tintle further noted that he had not performed a 

Tinel’s test because appellant indicated that she was too tender. He advised that she demonstrated 

full range of motion (ROM) of her hands and thumbs and she had normal wrist, elbow, and 

shoulder ROM. Sensation was intact to the radial, median, and ulnar nerve distributions of 

appellant’s bilateral hands. Dr. Tintle concluded that she was at MMI with regard to her bilateral 

carpal tunnel syndrome, that she had no need for further treatment, and that she had two percent 

permanent impairment of each upper extremity. 

In an addendum dated March 14, 2018, Dr. Tintle advised that, in accordance with Table 

15-23 of the A.M.A., Guides, appellant had a GMCS of 0, a GMFH of 3 because she described 

constant symptoms, and a GMPE of 0 as appellant’s physical examination findings were 

nonphysiologic. He utilized these values to reach a final rating of grade 1 impairment, with a 

default value of two percent.

OWCP referred the medical record and a SOAF to Dr. Herbert White, Board-certified in 

preventive medicine and a district medical adviser (DMA). In a March 28, 2018 report, Dr. White

reviewed Dr. Smith’s October 1, 2017 report and Dr. Tintle’s February 15 and March 14, 2018 

reports. He advised that for each upper extremity, in accordance with Table 15-23, appellant had 

a GMCS of 3 for axon loss, a GMFH pf 3 for constant symptoms, and GMPE of 1 for pain, which 

yielded a grade 2 impairment with a default value of five percent for each upper extremity. 

Dr. White noted that a functional scale rating was not indicated as there was no QuickDASH score. 

He concluded that MMI was reached on October 1, 2017. 

By decision dated April 24, 2018, OWCP granted appellant a schedule award for five 

percent bilateral upper extremity permanent impairment. The award ran for 24.4 weeks during the 

period January 20 to July 9, 2018. It accorded the weight of the medical evidence to the reports 

of the DMA. 
4

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8set forth the 

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

or 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 a 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 sixth edition of the A.M.A., 

Guides.

9

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.10

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In 

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

studies, 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 functional scale with an assessment 

of impact on daily living activities.12

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

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

permanent impairment specified.13

FECA provides that if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.14 

 

7 Supra note 2.

8 20 C.F.R. § 10.404.

9 For decision issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used, supra note 6. Federal 

(FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 

(March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

10 J.M., Docket No. 18-1334 (issued March 7, 2019).

11 Supra note 6 at 449.

12 Id. at 448-49.

13 Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.6(d) (March 2017).

14 5 U.S.C. § 8123(a); see A.G., Docket No. 18-0815 (issued January 24, 2019).
5

For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

15

 

ANALYSIS

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

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. It granted her a 

schedule award for five percent permanent impairment of each upper extremity. 

The Board finds that a conflict in the medical opinion evidence has been created between

Dr. Smith, appellant’s attending hand surgeon, and OWCP’s referral physician and Dr. White, its 

DMA. Both physicians used Table 15-23 of the A.M.A., Guides in assessing appellant’s upper 

extremity permanent impairment.

In an October 1, 2017 report, Dr. Smith opined that appellant had eight percent bilateral

upper extremity permanent impairment. He noted that the diagnosis of bilateral carpal tunnel 

syndrome had been confirmed electrodiagnostically and that, despite two previous decompressions 

on each side, appellant had ongoing symptoms. Dr. Smith advised that appellant had a GMCS of 

3 for axonal loss, a GMFH of 3 for constant symptoms, and a GMPE of 3 for ongoing weakness 

and decreased sensation, with a corresponding functional scale modifier of 3. He found a 

combined eight percent permanent impairment of each upper extremity. 

In a March 14, 2018 report, Dr. Tintle advised that appellant had a GMCS of 0, a GMFH 

of 3 because she described constant symptoms, and a GMPE of 0 as her physical examination 

findings were nonphysiologic. He utilized these values to reach a final rating of a grade 1 

impairment, with a default value of two percent for each upper extremity.

Thereafter, in a March 28, 2018 report, the DMA advised that for each upper extremity, 

appellant had a GMCS of 3 for axon loss, a GMFH of 3 for constant symptoms, and a GMPE of 1 

for pain, which yielded a grade 2 impairment with a default value of five percent bilateral upper 

extremity permanent impairment. 

The Board finds that a conflict exists between the opinions of Dr. Smith on behalf of 

appellant and the DMA, who had premised his report on the physical findings of Dr. Tintle. The 

Board finds the reports of Dr. Smith and the DMA to be of virtually equal weight resulting in a 

conflict which requires referral to an independent medical examiner.

As noted above, if there is a disagreement between an employee’s physician and an OWCP 

referral physician, OWCP shall appoint a referee physician or impartial medical specialist who 

shall make an examination.16 Consequently, as there is disagreement in this case, it must be 

referred to an impartial medical specialist to resolve the existing conflict in the medical opinion 

evidence regarding the extent of the permanent impairment of appellant’s bilateral upper 

 

15 A.I., Docket No. 19-0193 (issued May 1, 2019).

16 Supra note 14.
6

extremities.17 On remand OWCP should refer appellant, along with the case record and an SOAF, 

to an appropriate specialist for an impartial medical evaluation and report including a rationalized 

opinion as to the extent of appellant’s bilateral upper extremity permanent impairment. Following 

this and such further development deemed necessary, OWCP shall issue a de novo decision 

regarding appellant’s schedule award claim. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 24, 2018 decision of the Office of Workers’

Compensation Programs is a set aside and the case is remanded to OWCP for proceedings 

consistent with this opinion of the Board.

Issued: July 19, 2019

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

 

17 See C.H., Docket No. 18-1065 (issued November 29, 2018).