United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Westhampton, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0632

Issued: October 19, 2018

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 1, 2018 appellant, through counsel, filed a timely appeal from an August 14, 

2017 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 the 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 his burden of proof to establish more than two 

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

award compensation.

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 are incorporated herein by reference. The relevant facts 

are as follows.

On March 7, 2007 appellant, then a 50-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome due to his federal 

employment duties, which included casing mail.

OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant underwent an 

authorized left carpal tunnel release on March 10, 2008 and an authorized right carpal tunnel 

release on March 31, 2008. OWCP issued a schedule award on October 19, 2009 for four percent

permanent impairment of each upper extremity. On January 31, 2013 it issued a schedule award 

for an additional one percent permanent impairment of each upper extremity, for a total of five 

percent. 

Appellant, through counsel, requested a hearing. A hearing was held on May 29, 2013. 

By decision dated October 17, 2013, the hearing representative set aside the January 31, 2013 

schedule award decision due to an unresolved conflict in the medical opinion evidence regarding 

whether appellant had an additional permanent impairment of either upper extremity. 

On remand OWCP referred appellant to Dr. John P. Nolan, a Board-certified orthopedic 

surgeon, for an impartial medical examination. Based on Dr. Nolan’s March 11 and July 2, 2014 

reports, by decision dated March 18, 2015, OWCP found that appellant had sustained only two 

percent permanent impairment of each upper extremity, and that the additional three percent 

previously awarded constituted an overpayment of compensation. 

On August 5, 2015 appellant, through counsel, appealed to the Board. By decision dated 

February 9, 2016,4the Board set aside OWCP’s March 18, 2015 decision, finding that the case 

was not in posture for a decision as Dr. Nolan’s opinion was equivocal and therefore insufficient 

to carry the special weight afforded to an impartial medical examiner. The Board remanded the 

case to OWCP for further development, to include the appointment of a new impartial medical 

examiner regarding the appropriate percentage of permanent impairment of each of appellant’s 

upper extremities. The Board further found that the issues of whether OWCP properly determined 

an overpayment of schedule award compensation and whether OWCP properly denied waiver of 

 

3 Docket No. 15-1694 (issued February 9, 2016).

4

Id.
3

recovery of the overpayment were not in posture for decision as it was premature to address those

issues before the proper percentage of permanent impairment was determined.

Counsel subsequently submitted a February 29, 2016 letter requesting that OWCP 

document the selection process of the new impartial medical examiner. He requested that OWCP 

provide the names of three qualified specialists in appellant’s commuting area so that appellant 

could choose from among them. 

The case record contains a bypass history for searches performed using the Medical 

Management Application (MMA). Of the 94 entries, 75 were bypassed as the physician did not 

accept patients from the Department of Labor (DOL), 12 were bypassed as the telephone number 

was disconnected or incorrect, and two were bypassed as appellant had either been examined by 

that physician or another physician in the same practice. Additionally, one physician did not 

evaluate the upper extremities, one was deceased, one was located outside the permitted traveling 

distance, and one physician was unavailable due to performing surgery.

OWCP telephoned Dr. Joseph Albert Abboud, a Board-certified orthopedic surgeon, on 

April 1, 2016, then at two of his other offices on May 10, 2016. It noted that it received “different 

answers” from Dr. Abboud’s three offices as to why he could not examine appellant, including 

that the practice did not accept DOL patients, only treated certain conditions, or required payment

prior to the examination. On May 10, 2016 administrative staff at two of Dr. Abboud’s practices 

indicated that he did “not accept DOL patients.” OWCP telephoned Dr. Paul Pollice, a Boardcertified orthopedic surgeon, at 8:20 a.m. on June 21, 2016, noting that it had obtained a telephone 

number from an information service as there was none in the MMA. It had left several messages 

for appellant’s case “and others and to this date no one called back.” OWCP then contacted the 

next physician in the MMA list at 8:20 a.m. 

On an Appointment Schedule Notification form (Form ME023) dated August 25, 2016, 

OWCP noted its selection of Dr. Lawrence Weiss, a Board-certified orthopedic surgeon, as 

impartial medical examiner.

In a letter dated September 22, 2016, counsel again requested that OWCP document that

Dr. Weiss was properly selected as impartial medical examiner.

Dr. Weiss provided an October 6, 2016 report in which he reviewed the medical record and 

an updated statement of accepted facts (SOAF). He provided appellant a QuickDASH (Disabilities 

of the Arm, Shoulder, and Hand) questionnaire which was scored at 25. Appellant related that he 

had no pain, intermittent numbness, and no functional limitations in activities of daily living. On 

examination, Dr. Weiss found negative Tinel’s and Phalen’s signs at the carpal tunnel bilaterally, 

no thenar atrophy, asymptomatic arthritis of the metacarpophalangeal joint and wrists bilaterally, 

full flexion and extension of all digits, a prior left index finger amputation from a table saw, no 

grip weakness, wrist flexion and extension at 60 degrees on the right and 50 degrees on the left, 

pronation and supination at 75 degrees bilaterally, radial deviation at 20 degrees bilaterally, and 

ulnar deviation at 40 degrees bilaterally. Referring to the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides),5

 

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

Dr. Weiss opined that, according to Table 15-21,6appellant had a class 1 median nerve impairment 

due to status post bilateral carpal tunnel releases, with an impairment range of one to three percent. 

According to Table 15-23,7 he found a grade modifier for functional history (GMFH) of 1, a grade 

modifier for findings on physical examination (GMPE) of 2, and a grade modifier for clinical 

studies (GMCS) of 1. Dr. Weiss averaged these modifiers to equal 1.33, rounded down to one, to 

equal a one percent impairment of each upper extremity. The QuickDASH score of 25 provided 

an additional percentage point, for a final rating of two percent permanent impairment of each 

upper extremity. Dr. Weiss noted that this was a similar percentage to that arrived at by Dr. Nolan 

two years prior. 

In a January 11, 2017 report, an OWCP district medical adviser (DMA) reiterated that

Dr. Nolan’s 2014 reports could not represent the special weight of the medical opinion as he did 

not properly apply or explain his use of Table 15-23. 

In a memorandum dated January 19, 2017, OWCP requested the DMA review Dr. Weiss’

report and impairment rating. The DMA responded in a January 20, 2017 report that Dr. Weiss 

properly applied the A.M.A., Guides in finding two percent permanent impairment of each upper 

extremity. He opined that the date of maximum medical improvement was October 6, 2016, the 

date of Dr. Weiss’ impartial medical examination. 

By decision dated January 30, 2017, OWCP found that appellant was not entitled to an 

additional schedule award as the weight of the medical evidence, as represented by Dr. Weiss, 

indicated only two percent impairment of each upper extremity, which was less than the five 

percent previously awarded.

On February 7, 2017 counsel requested an oral hearing before an OWCP hearing 

representative. In a letter dated May 17, 2017, he requested a review of the written record in lieu 

of an oral hearing. Counsel argued that OWCP’s January 30, 2017 decision must be vacated as

Dr. Weiss provided an identical impairment rating based on the same discredited rationale 

originally offered by Dr. Nolan. 

By decision dated August 14, 2017, an OWCP hearing representative affirmed the 

January 30, 2017 decision, finding that the medical evidence of record was insufficient to establish 

more than two percent permanent impairment of each upper extremity. The hearing representative 

found that Dr. Weiss properly applied the appropriate portions of the A.M.A., Guidesto his clinical 

findings, and that the DMA had confirmed the correctness and completeness of this rating. The 

hearing representative noted that OWCP should consider reissuing a preliminary overpayment

determination to ensure due process.

 

6 Table 15-21, page 438 of the A.M.A., Guides is titled “Peripheral Nerve Impairment: Upper Extremity 

Impairments,” Median Nerve, Below midforearm.

7 Table 15-23, page 449 of the A.M.A., Guides is titled “Entrapment/Compression Neuropathy Impairment.”
5

LEGAL PRECEDENT

An employee seeking compensation under FECA8 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.9 The schedule award provisions 

of FECA10 and its implementing regulations11 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.12 The effective date of the sixth edition of the A.M.A., Guides is May 1, 2009.13

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

Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant 

text.14 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.15

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.16 

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

rationale.”

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

 

8 Supra note 2.

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

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404 (1999).

12 Id.

13 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A., 

Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability 

Claims, Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010).

14 See A.M.A., Guides 449, Table 15-23. See also L.G., Docket No. 18-0065 (issued June 11, 2018). 

15 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. 

16 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994). 

17 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 
6

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.18

ANALYSIS

The Board finds that appellant has not established more than two percent permanent 

impairment of each upper extremity, for which he previously received schedule award

compensation.

On February 9, 2016 the Board remanded the case to OWCP to obtain a new impartial 

medical opinion regarding the appropriate percentage of permanent impairment to the upper 

extremities caused by accepted bilateral carpal tunnel syndrome. 

On remand of the case, OWCP properly selected Dr. Weiss as the impartial medical 

examiner using the MMA. Dr. Weiss provided an October 26, 2016 report in which he reviewed 

the medical record, an updated SOAF, and noted detailed findings on clinical examination. 

Referring to Table 15-21, addressing peripheral nerve impairment in the upper extremity in the 

median nerve below the mid-forearm, Dr. Weiss found a class 1 diagnosis-based impairment for 

bilateral carpal tunnel syndrome status post median nerve release. He then utilized Table 15-23, 

“Entrapment/Compression Neuropathy Impairment,” to specify a GMFH of 1, a GMPE of 2, and 

a GMCS of 1. Dr. Weiss averaged these modifiers to equal 1.33, rounded downward to one, 

equaling one percent permanent impairment of each upper extremity. He then added an additional 

percent for a QuickDASH score of 25, resulting in a final rating of two percent permanent 

impairment of each upper extremity. In a January 20, 2017 report, an OWCP DMA concurred 

with Dr. Weiss’ impairment rating, application of the A.M.A., Guides, and method of calculation.

The Board finds that OWCP properly accorded the special weight of the medical evidence 

to the well-reasoned report of Dr. Weiss.19 Appellant has not submitted probative medical 

evidence establishing greater permanent impairment of his upper extremities using the A.M.A., 

Guides. As such, he has not met his burden of proof.

On appeal counsel contends that there is an unresolved conflict of medical opinion between

Dr. Weiss, who found no thenar atrophy, and Dr. Nolan, who found a GMPE of 1 for thenar 

atrophy. The Board notes that a conflict of medical opinion refers to a difference of reasoning 

between an attending physician and a medical specialist examining a claimant on behalf of the 

government. As Dr. Nolan and Dr. Weiss were both selected as impartial medical examiners, there 

can be no conflict between them under 5 U.S.C. § 8123(a). Counsel also asserts that Dr. Weiss’

opinion is unreliable as it is based on the same reasoning and methods of calculation as those 

offered by Dr. Nolan, whose opinion was discredited by the Board. As set forth above, unlike

Dr. Nolan, Dr. Weiss based his opinion on a proper application of the A.M.A., Guides and 

provided sufficient rationale in support of his opinion.

 

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

19 Id.
7

Counsel also argues that Dr. Weiss cannot serve as impartial medical examiner as he was 

not properly selected by OWCP. He contends that OWCP improperly bypassed Dr. Pollice 

because the bypass log indicates only one call to him but the notes reflect that OWCP had left 

several messages. Counsel argues that OWCP procedures require the scheduler to “allow the 

physician’s office a minimum of two business hours to allow for a returned call.” The Board notes, 

however, that the complete bypass note states that OWCP had left “several messages for this case 

and others,” which clearly refers to a number of calls over time. There is no dispositive evidence 

that OWCP failed to conform to its procedures. Counsel also asserts that Dr. Abboud was 

improperly bypassed because administrative staff at his three different practices gave OWCP 

conflicting answers as to why he could not examine appellant. The Board notes that the lack of 

absolute uniformity in the answers OWCP received to its three attempts to contact Dr. Abboud 

indicate an issue with the physician’s office staff, not OWCP.

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 established more than two percent permanent

impairment of each upper extremity, for which he previously received schedule award

compensation.
8

ORDER

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

Compensation Programs dated August 14, 2017 is affirmed.

Issued: October 19, 2018

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