United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.G., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Kearny, NJ, 

Employer

__________________________________________

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Docket No. 18-0065

Issued: June 11, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 18, 2017 appellant filed a timely appeal from an August 31, 2017 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 permanent 

impairment of her upper extremities, warranting a schedule award.

 

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its August 31, 2017 decision. 

The Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision. 

Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. 

§ 501.2(c)(1).
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts set forth in the Board’s prior 

decision are incorporated herein by reference. The relevant facts are as follows.

Appellant, a 65-year-old former mail processor and distribution clerk, has an accepted 

occupational disease claim (Form CA-2) for bilateral carpal tunnel syndrome (CTS), which arose 

on or about March 19, 2002. That claim was assigned OWCP File No. xxxxxx977. Appellant

also has an accepted traumatic injury claim (Form CA-1) for left arm strain and cervical radiculitis 

due to a September 17, 2002 employment-related lifting incident. That claim was assigned OWCP 

File No. xxxxxx014.4 OWCP has administratively combined the two above-noted claims, with

File No. xxxxxx014 designated as the master file.

In June 2005, appellant filed a claim for a schedule award (Form CA-7) under both of her 

accepted claims.

In a September 21, 2004 report, Dr. David Weiss, an attending Board-certified orthopedic 

surgeon and osteopath, opined that appellant had 45 percent permanent impairment of her right 

upper extremity under the standards of the fifth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 In an October 11, 2005 

report, Dr. Andrew Hutter, a Board-certified orthopedic surgeon serving as an OWCP referral 

physician, determined that appellant had no permanent impairment of either upper extremity.

By decision dated November 23, 2005, OWCP denied appellant’s claim for a schedule 

award. Appellant requested a hearing and in a February 7, 2006 decision, an OWCP hearing 

representative vacated the November 23, 2005 decision and remanded the case to OWCP for a 

resolution of a conflict in the medical opinion evidence between Dr. Weiss and Dr. Hutter.

On remand OWCP referred appellant to Dr. Ronald Gennace, a Board-certified orthopedic

surgeon, for an impartial medical examination and opinion on her upper extremity permanent 

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

An initial evaluation by Dr. Gennace, which occurred on November 14, 2006, was 

concluded prematurely when appellant became ill. A reevaluation was scheduled for February 27, 

2007, but appellant failed to attend the examination.

By decision dated March 22, 2007, OWCP denied appellant’s claim for a schedule award, 

determining that the medical evidence of record was insufficient to support permanent impairment

of a scheduled member or function of the body.

 

3 Docket No. 11-0162 (issued July 20, 2011).

4 Appellant attributed her injury to lifting flat trays from a postal container (post-con). She reported experiencing 

pain in her wrist that radiated up her left arm to her neck. Effective October 4, 2002, appellant received federal 

retirement (disability) annuity benefits.

 

5 A.M.A., Guides (5th ed. 2001).
3

On March 28, 2007 OWCP’s Branch of Hearings and Review received appellant’s request 

for an oral hearing. On March 30, 2007 appellant, through counsel, expressed her willingness to 

undergo the impartial medical examination by Dr. Gennace.

Following a preliminary review, by a June 4, 2007 decision, an OWCP hearing 

representative set aside the March 22, 2007 decision, and remanded the case for an impartial 

medical examination with Dr. Gennace.

In an October 25, 2007 report, Dr. Gennace found that appellant had no permanent 

impairment of her upper extremities causally related to her accepted conditions.

On February 7, 2008 OWCP issued a decision denying appellant’s claim for a schedule 

award, finding there was no permanent employment-related impairment of her upper extremities.

Appellant requested an oral hearing, which was held on May 13, 2008. By decision dated 

August 4, 2008, OWCP’s hearing representative set aside the February 7, 2008 decision, finding 

that the statement of accepted facts (SOAF) provided to Dr. Gennace was incomplete in that it 

failed to reflect that OWCP had accepted appellant’s traumatic injury claim for cervical radiculitis 

and did not address whether repetitive duties caused or aggravated her preexisting degenerative 

disc disease. The hearing representative remanded the case with instructions for OWCP to obtain 

a supplemental report from Dr. Gennace after providing him with an updated SOAF reflecting 

OWCP’s acceptance of appellant’s cervical radiculitis condition.

In an October 21, 2008 report, Dr. Gennace provided examination findings, which revealed 

no atrophy of the upper extremities, no strength loss secondary to median nerve deficiency, and 

full cervical range of motion. He opined that appellant’s bilateral carpal tunnel syndrome had 

resolved, as evidenced by a recent electromyogram (EMG) and nerve conduction velocity (NCV)

testing, and that her cervical radiculopathy no longer was work related. Dr. Gennace concluded 

that she had no permanent impairment related to her accepted condition under the fifth edition of 

the A.M.A., Guides.

On November 13, 2008 the district medical adviser reviewed Dr. Gennace’s findings and 

determined that appellant had no ratable upper extremity permanent impairment pursuant to the 

provisions of the fifth edition of the A.M.A., Guides. He referred to the results of the February 5, 

2008 EMG/NCV testing of appellant’s upper extremities, which revealed no significant 

abnormalities.

By decision dated December 2, 2008, OWCP denied appellant’s claim for a schedule award 

based upon Dr. Gennace’s October 21, 2008 report.

Appellant, through counsel, timely requested an oral hearing, which was held before an 

OWCP hearing representative on May 19, 2009. In a July 6, 2009 decision, the hearing 

representative affirmed the December 2, 2008 decision. He found that Dr. Gennace’s opinion, 

which was well rationalized and based on an accurate medical and factual background, established 

that appellant had no permanent impairment of her upper extremities causally related to her 

accepted work injuries.
4

On July 6, 2010 appellant, through counsel, requested reconsideration. Counsel contended 

that Dr. Gennace’s referee report was not well reasoned. He contended that the evidence did not 

support Dr. Gennace’s conclusion that appellant’s carpal tunnel syndrome condition had resolved.

By decision dated August 17, 2010, OWCP denied appellant’s request for reconsideration, 

finding that the evidence and argument presented were insufficient to warrant merit review.

Appellant appealed to the Board. In a July 20, 2011 decision, the Board affirmed the 

August 17, 2010 nonmerit decision of OWCP.

6

On August 25, 2015 appellant again filed a claim for compensation (Form CA-7) seeking 

a schedule award.

By decision dated October 9, 2015, OWCP denied appellant’s claim for a schedule award, 

finding that she failed to submit a permanent impairment rating that was calculated in accordance 

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

7

Appellant disagreed with the October 9, 2015 decision and requested a hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on July 7, 

2016, she testified that she continued to have pain due to her work injuries.

By decision dated August 25, 2016, OWCP’s hearing representative affirmed the 

October 9, 2015 decision, noting that the medical evidence of record did not contain an explanation 

as to how any currently established medical condition or permanent impairment was causally 

related to the accepted work injuries.

On November 4, 2016 appellant requested reconsideration of the August 25, 2016 

decision.

In a January 11, 2017 letter, OWCP advised appellant that, since she did not submit any 

relevant evidence not previously considered in support of her claim for a schedule award, her 

request was not being reviewed on the merits. It informed her that any future request for 

reconsideration had to be made within one year of the August 25, 2016 decision.

On May 15, 2017, under OWCP File No. xxxxxx014, appellant again filed a claim for a 

schedule award (Form CA-7).

By decision dated July 14, 2017, OWCP denied appellant’s claim, finding that she had not 

established permanent impairment of her upper extremities as she had not submitted a permanent 

impairment rating calculated in accordance with the sixth edition of the A.M.A., Guides.

8

 

6 Supra note 3.

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

8

Id.
5

On August 24, 2017 appellant requested reconsideration of the July 14, 2017 decision.

In an August 1, 2017 report, Dr. Neil Sinha, an attending Board-certified pain medicine 

physician, indicated that appellant was involved in a work-related injury that resulted in permanent 

injuries to the cervical spine. He discussed MRI scans of the cervical spine dated June 28, 2010 

and April 21, 2014 and indicated that EMG and NCV testing of the upper extremities revealed 

carpal tunnel syndrome. Dr. Sinha noted that appellant had reached maximum medical 

improvement (MMI), diagnosed cervical radiculopathy and cervical spondylosis, and opined that

appellant sustained work-related permanent injuries to her cervical spine that prevented her from 

holding objects.

Appellant also submitted an April 21, 2014 MRI scan of the cervical spine, June 16, 2017 

EMG and NCV test findings for the upper extremities, a July 5, 2017 report from Dr. Dev Sinha, 

an attending Board-certified physical medicine and rehabilitation physician, and a July 11, 2017 

report from Dr. Dipan Patel, an attending Board-certified internist.

In an August 31, 2017 decision, OWCP denied modification of its July 14, 2017 decision, 

noting that appellant had not submitted probative medical evidence establishing that she had workrelated permanent impairment of her upper extremities.

LEGAL PRECEDENT

An employee seeking compensation under FECA

9 has the burden of proof to establish the 

essential elements of his or her claim, including that he or she sustained an injury in the 

performance of duty as alleged, and that an employment injury contributed to the permanent 

impairment for which schedule award compensation is alleged.10 The schedule award provisions

of FECA11 and its implementing regulations

12 set 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 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 A.M.A., Guides has been 

adopted by the implementing regulations as the appropriate standard for evaluating schedule 

losses.13 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.14

 

9 Supra note 1.

 

10 See Bobbie F. Cowart, 55 ECAB 476 (2004).

 

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404 (1999).

 

13 Id.

14 FECA Bulletin No. 09-03 (issued March 15, 2009).
6

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

15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.15 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 Functional Scale, an assessment of 

impact on daily living activities.16

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.17 

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

rationale.”

18

 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and 

based upon a proper factual background, must be given special weight.19

ANALYSIS

The Board finds that appellant has failed to establish work-related permanent impairment 

of her upper extremities.

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, left arm strain, 

and cervical radiculopathy. Appellant claimed entitlement to schedule award compensation 

permanent impairment of her upper extremities.

OWCP had determined that there was a conflict in the medical opinion evidence between

Dr. Weiss, an attending physician, and Dr. Hutter, an OWCP referral physician, on the issue of 

whether appellant had permanent impairment of her upper extremities. In order to resolve the 

conflict, it properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Gennace, a 

Board-certified orthopedic surgeon, for an impartial medical examination and an opinion on the 

matter. 

In an October 21, 2008 report, Dr. Gennace provided examination findings, which revealed 

no atrophy of the upper extremities, no strength loss secondary to median nerve deficiency, and 

full cervical range of motion. He opined that appellant’s bilateral carpal tunnel syndrome had 

resolved, as evidenced by a recent EMG and NCV testing, and that her cervical radiculopathy no 

longer was work related. Dr. Gennace concluded that she had no permanent impairment related 

to her accepted conditions under the fifth edition of the A.M.A., Guides. 

 

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

16 A survey completed by a given claimant, known by the name QuickDASH (Disabilities of the Arm, Shoulder, 

and Hand), may be used to determine the function scale score. Id. at 448-49.

17 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

18 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

19 Gary R. Sieber, 46 ECAB 215, 225 (1994).
7

The Board notes that the well-rationalized report of opinion by Dr. Gennace represented 

the special weight of the medical evidence with respect to appellant’s upper extremity permanent 

impairment around the time it was produced.20 The Board further notes that, beginning in May 1, 

2009, the sixth edition of the A.M.A., Guides became effective.21 Appellant continued to claim 

entitlement to schedule award compensation for permanent impairment of her upper extremities 

during the effective period of the sixth edition of the A.M.A., Guides.

The Board finds that appellant has not submitted probative medical evidence containing a 

rating for permanent impairment of her upper extremities derived in accordance with the standards 

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

Appellant submitted an April 21, 2014 MRI scan of the cervical spine, June 16, 2017 EMG 

and NCV test findings for the upper extremities, a July 5, 2017 report from Dr. Dev Sinha, and a 

July 11, 2017 report from Dr. Patel. However, these documents are of no probative value 

regarding appellant’s schedule award claim because they do not contain an impairment rating 

derived in accordance with the standards of the sixth edition of the A.M.A., Guides.

22

In an August 1, 2017 report, Dr. Neil Sinha indicated that appellant was involved in a workrelated injury that resulted in permanent injuries to the cervical spine. He discussed MRI scans of 

the cervical spine dated June 28, 2010 and April 21, 2014 and indicated that EMG and NCV testing 

of the upper extremities revealed carpal tunnel syndrome. Dr. Sinha noted that appellant had 

reached MMI, diagnosed cervical radiculopathy and cervical spondylosis, and opined that 

appellant sustained work-related permanent injuries to her cervical spine that prevented her from 

holding objects. This report also is of no probative value regarding appellant’s schedule award 

claim because it does not contain an impairment rating derived in accordance with the standards of 

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

23

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 failed to meet her burden of proof to establish permanent 

impairment of her upper extremities, warranting a schedule award.

 

20 Id.

21 See supra note 10.

22 See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the standards 

adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative value 

in determining the extent of a claimant’s permanent impairment).

23 Id.
8

ORDER

IT IS HEREBY ORDERED THAT the August 31, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 11, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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