United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

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Docket No. 17-1800

Issued: May 25, 2018

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 August 21, 2017 appellant filed a timely appeal from a February 27, 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 the claim.

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of her bilateral upper extremities, warranting a schedule award. 

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On November 14, 1985 appellant, then a 28-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging bilateral wrist injury. On March 5, 2006 OWCP accepted the 

claim for de Quervain’s tenosynovitis of the right wrist. It subsequently expanded acceptance of 

the claim to include bilateral carpal tunnel syndrome.3

Appellant stopped work on May 11, 2005 and has not returned.

Dr. Samuel J. Chmell, an attending Board-certified orthopedic surgeon, performed a left 

median nerve release on April 20, 2006 and a right median nerve release on December 15, 2006.

On June 20, 2008 appellant filed a claim for a schedule award (Form CA-7). In support of 

her claim, she provided Dr. Chmell’s July 14, 2008 impairment evaluation utilizing the fifth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment4

(hereinafter, A.M.A., Guides) finding 77 percent impairment of the right upper extremity due to 

limited shoulder motion, weakness, and cervical radiculopathy, and 40 percent impairment of the 

left arm due to diminished sensation and weakness. OWCP obtained a second opinion from

Dr. David H. Trotter, a Board-certified orthopedic surgeon, who found no permanent impairment 

of either upper extremity. 

OWCP subsequently found that a conflict of medical opinion existed between Dr. Chmell, 

for appellant, and Dr. Trotter, for the government. To resolve the conflict, it obtained an impartial

medical opinion on March 26, 2012 from Dr. Jaroslaw Dzwinyk, a Board-certified neurologist, 

who found no ratable permanent impairment of either upper extremity. Dr. Dzwinyk explained 

that appellant had no objective evidence of carpal tunnel syndrome or de Quervain’s tenosynovitis, 

full range of motion throughout the upper extremities, and a normal neurologic examination. In a 

March 17, 2014 supplemental report, he opined that according to page 487 of the sixth edition of 

the A.M.A., Guides,

5

a May 20, 2013 electromyography study was within normal limits as her

 

2 Docket No. 15-1286 (issued December 14, 2015).

3 The present claim was assigned OWCP File No. xxxxxx055. This claim is a master file and has been doubled 

with two other accepted claims. Under OWCP File No. xxxxxx273, on September 11, 1978 appellant filed a notice 

of traumatic injury (Form CA-1) alleging that she had sustained a right shoulder injury on September 8, 1978 when 

she fell out of a chair while she was performing her federal employment duties. OWCP accepted that claim for 

contusion of the right shoulder and upper arm, contusion of the face, scalp, neck, and headache. Under OWCP File 

No. xxxxxx862, appellant filed a notice of occupational disease (Form CA-1) on August 23, 2005 alleging that she 

sustained a right rotator cuff tear, herniated cervical disc with degenerative disc disease, and degenerative lumbar 

disease. OWCP accepted this claim for herniated cervical disc at C5-7, right rotator cuff tear, and lumbar strain. 

OWCP subsequently expanded acceptance of the claim to include bilateral aggravation of osteoarthritis of the hips.

4

(5th ed. 2001).

5

(6th ed. 2009).
3

distal latencies were 2.75 milliseconds on the right and 3.85 milliseconds on the left, less than the 

4.0 millisecond latency considered normal. 

By decision dated August 14, 2014, OWCP denied appellant’s claim for a schedule award,

finding that Dr. Dzwinyk’s opinion constituted the weight of the medical evidence. 

On September 3, 2014 OWCP received appellant’s request for a hearing before an OWCP 

hearing representative. The hearing was held on February 11, 2015. By decision dated April 17, 

2015 OWCP’s hearing representative affirmed the August 14, 2014 denial of appellant’s schedule 

award claim.

On May 18, 2015 appellant appealed to the Board. By decision and order issued 

December 14, 2015, the Board affirmed OWCP’s April 17, 2015 decision.

6

On December 6, 2016 appellant requested reconsideration. She contended that OWCP did 

not fully consider medical evidence of record which demonstrated neurologic impairment of the 

upper extremities related to her accepted conditions. Appellant submitted February 24 and

July 25, 2014, December 20, 2015, and January 9, 2017 letters which alleged a pattern of 

corruption, malfeasance, and retaliation by OWCP and various government officials. She also 

provided additional medical evidence.

In December 3, 2015 reports, Dr. Chmell, related appellant’s complaints of pain 

throughout the cervical, thoracic, and lumbosacral spine, and bilateral hand and wrist pain, worse 

in the left thumb. On examination, he found paraspinal spasm and tenderness throughout the spine, 

a bilaterally positive Spurling’s test, and “diminished sweating and sensation in both hands with 

some thenar atrophy.” Dr. Chmell diagnosed bilateral carpal tunnel syndrome and right radial 

styloid tenosynovitis under OWCP File No. xxxxxx055, and cervical disc displacement under 

OWCP File No. xxxxxx862. He opined that appellant had objective spinal abnormalities with 

“peripheral findings in the upper and lower extremities demonstrating neurologic impingement.”

In a March 26, 2016 report, Dr. Chmell opined that appellant continued to have active 

residuals of accepted bilateral carpal tunnel syndrome, radial styloid tenosynovitis, cervical disc 

displacement, and a right rotator cuff rupture. He found her disabled from all work due to the 

accepted conditions.

Appellant submitted a June 17, 2016 lumbar magnetic resonance imaging (MRI) scan 

which showed degenerative changes from L3 through S1, with mild facet hypertrophy. A June 22, 

2016 MRI scan of the cervical spine demonstrated the continued presence of a posterior disc 

osteophyte complex at C5-6 with mild effacement of the ventral thecal sac, without central or 

neural foraminal stenosis. A June 28, 2016 thoracic MRI scan showed stable anterior disc disease 

from T8 through T11 without significant spinal stenosis or neuroforaminal compromise.

 

6 Docket No. 15-1286 (issued December 14, 2015).
4

In September 1, 2016 reports, Dr. Chmell requested that OWCP accept “traumatic 

aggravation of degenerative disc disease of the thoracic spine with facet joint arthritis.” He 

diagnosed bilateral carpal tunnel syndrome and right radial styloid tenosynovitis.

By decision dated February 27, 2017, OWCP denied modification of its April 17, 2015

decision, as the medical reports, imaging studies, and correspondence appellant submitted in 

support of her request were insufficient to establish permanent impairment.

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8 provide for 

compensation to employees sustaining impairment from loss or loss of use of specified members of 

the body. It, however, does not specify the manner in which the percentage loss of a member shall 

be determined. The method used in making such determination is a matter which rests in the sound 

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. The 

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the 

Board has concurred in such adoption.9 For schedule awards after May 1, 2009, the impairment is 

evaluated under the sixth edition of the A.M.A., Guides, published in 2008.10

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the 

A.M.A., Guides requires identifying the impairment Class of Diagnosis (CDX) condition, which 

is then adjusted by grade modifiers based on Functional History GMFH, Physical Examination 

GMPE, and Clinical Studies GMCS.

12

 The net adjustment formula is (GMFH - CDX) + (GMPE 

- CDX) + (GMCS - CDX).13

OWCP procedures provide that, to support a schedule award, the file must contain 

competent medical evidence, which shows that the impairment has reached a permanent and fixed 

state and indicates the date on which this occurred (date of maximum medical improvement), 

describes the impairment in sufficient detail so that it can be visualized on review and computes 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9 Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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

2.808.5(a) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010). 

11 A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement (6

th ed. 2009).

12 Id. at 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13 Id. at 411.
5

the percentage of impairment in accordance with the A.M.A., Guides.

14

 Evaluators are directed to 

provide reasons for their impairment rating choices, including the choices of diagnoses from 

regional grids and calculations of modifier scores.15

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, under FECA a schedule award is not payable for injury to the spine.16 In 

1960, amendments to FECA modified the schedule award provisions to provide for an award for

permanent impairment to a member of the body covered by the schedule regardless of whether the 

cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the 

schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to an extremity even though the cause of the impairment 

originated in the spine.17

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an 

alternative approach to rating spinal nerve impairments.18 OWCP has adopted this approach for 

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in 

section 3.700 of its procedures, which memorializes proposed tables outlined in the 

July/August 2009, The Guides Newsletter.

19

ANALYSIS

The Board finds that appellant has not established permanent impairment of her bilateral 

upper extremities, warranting a schedule award.

On prior appeal, the Board affirmed OWCP’s April 17, 2015 decision which denied 

appellant’s schedule award claim based upon the report of Dr. Dzwinyk, the impartial medical 

examiner. The findings made in the Board’s prior decision are res judicata absent any further 

review by OWCP under section 8128 of FECA.20 

Appellant subsequently requested reconsideration of OWCP’s April 17, 2015 decision 

denying her schedule award claim for bilateral upper extremity permanent impairment. She 

submitted letters alleging wrongdoing by OWCP and various government officials. These letters 

 

14 Supra note 7 at Chapter 2.808.5 (February 2013).

15 See R.V., Docket No. 10-1827 (issued April 1, 2011).

16 Pamela J. Darling, 49 ECAB 286 (1998).

17 Thomas J. Engelhart, 50 ECAB 319 (1999).

18 Rozella L. Skinner, 37 ECAB 398 (1986).

19 FECA Transmittal Docket No. 10-0004 (issued January 9, 2010); supra note 8 at Chapter 3.700, Exhibit 1, note 

5 (January 2010); The Guides Newsletter is included as Exhibit 4.

20 See H.G., Docket No. 16-1191 (issued November 25, 2016).
6

are insufficient to meet appellant’s burden of proof to establish permanent impairment as they are 

not medical evidence.21

In support of her request, appellant also submitted reports from Dr. Chmell, an attending 

Board-certified orthopedic surgeon, dated from December 3, 2015 to September 1, 2016. 

Dr. Chmell opined that the accepted bilateral carpal tunnel syndrome, right radial styloid 

tenosynovitis, and C5-6 disc herniation remained active and disabling. He, however, did not 

address the issue of permanent impairment in his reports. Dr. Chmell did not provide an 

assessment of appellant’s upper extremities according to the applicable tables and grading schemes 

of the A.M.A., Guides. As previously noted to be of probative value the medical report must 

describe the impairment in sufficient detail so that it can be visualized on review and must compute 

the percentage of impairment in accordance with the A.M.A., Guides.

22

 As Dr. Chmell did not 

provide an impairment rating in accordance with the A.M.A., Guides, his reports are of greatly 

diminished probative value in establishing whether appellant had a ratable permanent impairment 

due to her accepted upper extremities conditions.

The Board also finds that Dr. Chmell did not opine that the June 2016 MRI scans of 

appellant’s cervical, thoracic, and lumbar spine established permanent impairment of her upper 

extremities. The sixth edition of the A.M.A., Guides does not provide for a schedule award for 

injury to the spine.23 However, impairment of a scheduled member of the upper extremities is 

payable under FECA, if it originates from the spine.24 The approach of rating impairment of the 

upper extremities caused by a spinal injury is provided in section 3.700 of OWCP procedures, 

which memorializes proposed tables as outlined in a July/August 2009, The Guides Newsletter.25 

The Board notes that Dr. Chmell did not reference or provide an evaluation in accordance with the 

July/August 2009, The Guides Newsletter. Dr. Chmell’srating is therefore insufficient to establish 

permanent impairment of appellant’s upper extremities due to her accepted cervical conditions.26

On appeal, appellant contends that an accepted cervical spine condition caused a ratable 

permanent impairment of her upper extremities. As noted above, the medical evidence of record 

is insufficient to establish that the accepted C5-6 disc herniation caused permanent impairment of 

either upper extremity.

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.

 

21 Edward Matthew Diekemper, 31 ECA 224-25 (1979).

22 Supra note 11. 

23 Supra note 13. 

24 Supra note 14. 

25 Supra note 16. 

26 E.D., Docket No. 10-0967 (issued January 7, 2011).
7

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her bilateral upper extremities, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 25, 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