United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Chicago, IL, Employer

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Docket No. 18-0901

Issued: January 24, 2019

Appearances: Case Submitted on the Record

Stephanie N. Leet, Esq., for the appellant1

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 March 29, 2018 appellant, through counsel, filed a timely appeal from a February 27, 

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 established more than three percent permanent 

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

compensation.

FACTUAL HISTORY

On January 21, 2010 appellant, then a 54-year-old program support clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on that day she experienced pain in both wrists, right hand, 

shoulder, arm, and neck as a result of repetitive typing while in the performance of duty. 

In a November 1, 2011 development letter, OWCP informed appellant that initially her 

claim appeared to be for a minor injury that resulted in minimal or no lost time from work and 

therefore had been administratively handled. However, as expenses had exceeded $1,500.00, it 

would now be adjudicating her claim. OWCP subsequently accepted the claim for bilateral carpal 

tunnel syndrome, bilateral radial styloid tenosynovitis, and cervical strain. 

On December 3, 2014 appellant filed a claim for a schedule award (Form CA-7). 

OWCP, in another development letter dated December 5, 2014, requested that appellant

submit a medical report from her physician assessing her permanent impairment based on the sixth 

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

(A.M.A., Guides)

3

and establishing the date on which she reached maximum medical 

improvement (MMI). 

In a December 31, 2014 medical report, Dr. Eugene P. Lopez, a Board-certified orthopedic 

surgeon, provided findings on physical examination and an impression that appellant had workrelated bilateral carpal tunnel syndrome, de Quervain’s tenosynovitis, and cervical strain. He

advised that she had reached MMI. Dr. Lopez ordered a functional capacity evaluation (FCE) to 

determine appellant’s work restrictions and impairment under the A.M.A., Guides. 

On January 20, 2015 appellant underwent an FCE by physical therapist, Patricia Canar. In

Ms. Canar’s report dated January 26, 2015, she related that appellant could perform employment 

duties at the light physical demand level. 

OWCP referred the case to Dr. David H. Garelick, a Board-certified orthopedic surgeon 

serving as an OWCP district medical adviser (DMA). It requested that he review the case record, 

including Ms. Canar’s January 26, 2015 FCE report, and provide an opinion on the degree of 

appellant’s permanent impairment under the standards of the sixth edition of the A.M.A., Guides.

In a February 23, 2015 report, Dr. Garelick noted that he had reviewed medical records, 

including Dr. Lopez’ notes and Ms. Canar’s January 20, 2015 FCE report. He noted that the FCE 

results and appellant’s subjective complaints were not necessarily a reliable representation of her 

condition based on inconsistencies noted during the FCE. Thus, Dr. Garelick advised that there 

was no objective basis for finding upper extremity permanent impairment based on de Quervain’s 

 

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

tenosynovitis. He concluded that appellant had two percent permanent impairment of each upper 

extremity for mild carpal tunnel syndrome under Table 15-23, page 449 of the A.M.A., Guides. 

Dr. Garelick determined that she had reached MMI as of December 31, 2014, the date of

Dr. Lopez’ examination. 

By decision dated March 10, 2015, OWCP granted appellant a schedule award for two 

percent permanent impairment of each upper extremity. The award ran for the period 

December 31, 2014 to March 28, 2015, for a total of 12.48 weeks of compensation, and was based 

on Dr. Garelick’s February 23, 2015 opinion.

In an appeal request form and letter received by OWCP on September 16, 2015, appellant, 

through counsel, requested reconsideration and submitted additional medical evidence. In a 

June 1, 2015 report, Dr. Neil Allen, a Board-certified internist and neurologist, related a history of 

the accepted January 21, 2010 employment injuries and discussed his examination findings. He 

utilized the diagnosis-based impairment (DBI) method to determine impairment for de Quervain’s 

tenosynovitis and found that appellant had a combined 32 percent permanent impairment of the 

upper extremity due to motor and sensory deficits under the sixth edition of the A.M.A., Guides. 

Dr. Allen noted that, in accordance with pages 419 and 448 of the A.M.A., Guides, he did not 

determine impairment due to the condition of bilateral carpal tunnel syndrome because, although 

she underwent electrodiagnostic testing, he was unable to obtain a report indicating the findings 

and conclusions of the examination.

On January 27, 2016 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified internist serving as an OWCP DMA, for review. In a report dated January 27, 2016,

Dr. Katz noted that Dr. Allen had not specified whether his impairment ratings were applicable to 

one extremity or both extremities. He opined that, Dr. Allen’s report could not be considered 

probative for the purpose of recommending a schedule award for multiple reasons. Dr. Katz noted 

that brachial neuritis/radiculitis was not an accepted condition of appellant’s claim and cervical 

sprain would not be expected to produce the findings reported by Dr. Allen. Given that the medical 

file contained findings from electrodiagnostic testing performed on February 11, 2010, the 

appropriate method to rate carpal tunnel syndrome was solely by Table 15-23. Dr. Allen’s findings 

were in direct conflict with this electrodiagnostic report, which demonstrated only mild-tomoderate carpal tunnel syndrome bilaterally with no evidence for radicular/spinal nerve 

impairment. 

By decision dated February 2, 2016, OWCP denied modification of its March 10, 2015 

decision. It found that the weight of the medical evidence rested with Dr. Katz’ January 27, 2016 

opinion and established that appellant had no more than two percent permanent impairment of 

each upper extremity.

On December 20, 2016 counsel requested reconsideration and submitted additional 

medical evidence, including Dr. Allen’s February 19, 2016 addendum to his June 1, 2015 report. 

In this addendum report, Dr. Allen disagreed with Dr. Katz’ assessment of his findings. He 

maintained that his June 1, 2015 report indicated that sensory and motor deficits were bilateral and 

explained the reason why he could not rate appellant’s impairment due to her accepted bilateral 

carpal tunnel syndrome. Dr. Allen cited medical literature and referenced medical reports in the 

record in support of his cervical spine findings. He concluded that Dr. Katz’ analysis and opinions 

lacked scientific evidence and support within the literature. 
4

On March 29, 2017 OWCP referred appellant’s case to Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon serving as an OWCP DMA. On March 31, 2017 Dr. Harris opined 

that she had two percent permanent impairment of each upper extremity for residual problems with 

mild carpal tunnel syndrome and status post carpal tunnel release. He assigned a grade modifier 

1 for clinical studies under Table 15-23, page 449 for each upper extremity. Dr. Harris advised 

that the two percent bilateral upper extremity permanent impairment rating was the sole 

impairment resulting from the accepted January 21, 2010 work injury. He determined that 

appellant had reached MMI on June 1, 2015, the date of Dr. Allen’s examination. Dr. Harris noted 

that contrary to Dr. Allen’s finding that he was unable to rate her impairment for bilateral carpal 

tunnel syndrome because no electrodiagnostic studies were available, he reviewed 

electrodiagnostic studies performed on February 11, 2010, which were consistent with bilateral 

carpal tunnel syndrome and a basis for his impairment ratings. 

By decision dated April 4, 2017, OWCP denied modification of its February 2, 2016 

decision. It accorded the weight of the medical evidence to Dr. Harris’ March 31, 2017 opinion.

On May 30, 2017 counsel requested reconsideration. 

On June 12, 2017 OWCP again referred appellant’s case to Dr. Harris. In a June 13, 2017 

report, Dr. Harris noted that Dr. Allen’s examination documented that she had significant 

problems with bilateral C5, C6, C7, and C8 radiculopathy. He noted that the accepted condition 

was cervical strain and prior electrodiagnostic studies had not demonstrated evidence of cervical 

radiculopathy. In addition, no magnetic resonance imaging scans documented cervical pathology 

which would account for appellant’s ongoing cervical radiculopathy. Based on his findings,

Dr. Harris recommended that she be seen by another physician for evaluation, including 

documentation of her subjective complaints, objective findings, and impairment rating based on 

the sixth edition of the A.M.A., Guides regarding her problems with residual carpal tunnel 

syndrome and cervical spine injury. Thus, he noted that he could not comment on any change in 

appellant’s impairment based on his recommendation that she undergo further evaluation.

On July 17, 2017, QTC Medical Services, OWCP’s scheduler, referred appellant, together 

with the medical record, statement of accepted facts (SOAF), and a set of questions, to

Dr. Allan M. Brecher, a Board-certified orthopedic surgeon, for a second opinion regarding the 

extent of her bilateral upper extremity permanent impairment. 

In an August 29, 2017 report, Dr. Brecher discussed examination findings. He noted that 

appellant’s surgery for de Quervain’s tenosynovitis and carpal tunnel syndrome was scheduled to 

be performed that month, but it had been delayed. Dr. Brecher therefore advised that she had not 

reached MMI for her upper extremities and that he could not rate her impairment based on the 

sixth edition of the A.M.A., Guides. He related that appellant would need to be checked several 

months postsurgery and completion of postoperative therapy. Regarding her cervical sprain,

Dr. Brecher related that it should have resolved based on time. He indicated that appellant may 

have underlying problems in her neck, but he had an incomplete workup and there was certainly 

no evidence other than the carpal tunnel syndrome and de Quervain’s tenosynovitis that showed 

any impairment in the upper extremities. Dr. Brecher further indicated that he could not address 

her adhesive capsulitis as it was not an accepted condition.
5

By decision dated September 29, 2017, OWCP denied modification of its April 4, 2017 

decision, finding that Dr. Brecher’s report indicated that appellant had not reached MMI and, thus, 

he could not render an impairment rating. 

In a letter received on November 14, 2017 by OWCP, appellant, through counsel, requested 

reconsideration. Counsel indicated that appellant was not undergoing surgery at that time, but that 

her physicians found that she had reached MMI.

Appellant submitted an October 13, 2017 report from Dr. Kevin W. Chen, a Boardcertified orthopedic surgeon. Dr. Chen noted that she had chosen to not undergo surgery for her 

bilateral carpal tunnel syndrome. He further noted that appellant had reached MMI.

On February 12, 2018 OWCP again referred appellant’s case to Dr. Harris to review the 

SOAF and the case record, including Dr. Brecher’s August 29, 2017 report and Dr. Chen’s 

October 13, 2017 report, and provide an opinion on her permanent impairment in accordance with 

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

In a February 13, 2018 report, Dr. Harris noted the accepted diagnoses of bilateral carpal 

tunnel syndrome and bilateral de Quervain’s tenosynovitis.4 He utilized the DBI method and found

that appellant had two percent permanent impairment of the right upper extremity for residual 

problems with mild carpal tunnel syndrome (grade modifier 1C, Table 15-23, page 449). 

Dr. Harris noted that the sixth edition of the A.M.A., Guides did not allow for impairment ratings 

to be calculated by the range of motion (ROM) method for a carpal tunnel syndrome diagnosis. 

He determined that appellant had one percent permanent impairment of the right upper extremity 

due to residual problems with de Quervain’s tenosynovitis ([diagnosed condition] (CDX) 1C, 

Table 15-3, page 395). Dr. Harris further related that there was insufficient information contained 

in the case file to calculate an impairment rating utilizing the ROM method. He explained that

Dr. Brecher’s report did not contain the complete ROM measurements for the right wrist. 

Dr. Harris indicated that he calculated impairment for the entire extremity, including both accepted 

and nonaccepted conditions in accordance with “FECA Transmittal 17-02.” He found that 

appellant had two percent permanent impairment of the left upper extremity for residual problems 

with mild carpal tunnel syndrome (grade modifier 1C, Table 15-23, page 449). Dr. Harris also 

found that she had one percent impairment of the right upper extremity due to residual problems 

with de Quervain’s tenosynovitis ([diagnosed condition] (CDX) 1C, Table 15-3, page 395). 

Utilizing the Combined Values Chart, he combined the two percent upper extremity impairment 

rating and one percent impairment upper extremity rating, which yielded three percent permanent 

impairment of each upper extremity.

By decision dated February 27, 2018, OWCP granted modification of its prior decision as 

it found that appellant had an additional one percent permanent impairment of each upper 

 

4 The Board notes that in his February 13, 2018 report, Dr. Harris indicated that appellant’s diagnosis of de 

Quervain’s tenosynovitis was not a condition accepted by OWCP. The condition of de Quervain’s disease is a painful 

tenosynovitis due to relative narrowness of the common tendon sheath of the abductor pollicis longus and the extensor 

pollicis brevis. The radial styloid process is the area at the distal end of the forearm connected to the hand. See

DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003) 531, 1865, 1565. The Board notes that radial styloid 

tenosynovitis, the condition accepted by OWCP as employment related, is also known as de Quervain’s tenosynovitis. 

S.S., Docket No. 14-211 (issued May 1, 2014).
6

extremity, totaling three percent permanent impairment, based on the opinions of Dr. Brecher and

Dr. Harris. 

In a separate decision dated February 27, 2018, OWCP granted appellant a schedule award 

for an additional one percent permanent impairment of each upper extremity, totaling three percent 

permanent impairment. The schedule award ran for the period August 29 to October 11, 2017, for 

a total of 6.24 weeks of compensation.

LEGAL PRECEDENT

The schedule award provision of FECA5and its implementing federal regulations6set forth 

the number of weeks of compensation payable to employees sustaining permanent impairment 

from loss or loss of use, of scheduled members, functions, and organs of the body. FECA, 

however, does not specify the manner by which the percentage loss of a member, function, or 

organ shall be determined. To ensure consistent results and equal justice for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.7 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides (2009).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 

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning (ICF), Disability and 

Health.11 The sixth edition 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

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 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

8

Id.

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

2.808.6 (March 2017); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (March 2017).

10 Isidoro Rivera, 12 ECAB 348 (1961).

11 Supra note 3, page 3, section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement.

12 Supra note 3 at 411.

13 Id.

14 Id. at 449.
7

Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of 

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 based on functional scale, an assessment of impact on 

daily living activities (QuickDASH-Disabilities of the Arm, Shoulder, and Hand).15

Regarding the application of ROM or DBI methodologies in rating permanent impairment 

of the upper extremities, FECA Bulletin No. 17-06 provides: 

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rated by ROM. If the 

[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate 

an impairment rating for the diagnosis in question, the method producing the 

higher rating should be used.”

16 (Emphasis in the original.) 

The Bulletin further advises: 

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the claims examiner (CE).

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available evidence.

“However, the DMA should still render an impairment rating using the DBI 

method, if possible, given the available evidence. Upon receipt of such a report, 

and if the impairment evaluation was provided from the claimant’s physician, the 

CE should write to the claimant advising of the medical evidence necessary to 

complete the impairment assessment and provide 30 days for submission. Any 

evidence received in response should then be routed back to the DMA for a final 

determination. Should no evidence be received within 30 days of the date of the 

CE’s letter, the CE should proceed with a referral for a second opinion medical 

evaluation to obtain the medical evidence necessary to complete the rating. After 

receipt of the second opinion physician’s evaluation, the CE should route that report 

to the DMA for a final determination.”

17

 

15 Id. at 448-49.

16 FECA Bulletin No. 17-06 (issued May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018).

17 Id.
8

ANALYSIS

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

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, bilateral radial 

styloid tenosynovitis, and cervical strain. On March 10, 2015 it issued a schedule award for two 

percent permanent impairment of the right upper extremity and two percent permanent impairment 

of the left upper extremity for mild carpal tunnel syndrome under Table 15-23 of the A.M.A., 

Guides. The Board finds that there is no medical evidence of record that appellant has more than 

a two percent permanent impairment of her bilateral wrists due to carpal tunnel syndrome. The 

Board also notes that regarding the accepted condition of cervical strain, there is no evidence of 

record that this condition has caused a permanent impairment, pursuant to the A.M.A., Guides.

On February 27, 2018 OWCP granted appellant a schedule award for an additional one 

percent impairment of each upper extremity due to her accepted condition of de Quervain’s 

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

In his February 13, 2018 report, Dr. Harris, OWCP’s DMA, opined that the DBI method 

was appropriate for bilateral de Quervain’s tenosynovitis conditions, rather than the ROM 

approach. He also noted that there was insufficient information contained in the case file to 

calculate an impairment rating utilizing the ROM method. Dr. Harris related that Dr. Brecher’s 

report did not contain the complete measurements for the right wrist. Regarding impairment due 

to de Quervain’s tenosynovitis, he used Table 15-3 on page 395 and assigned a grade modifier 1 

for clinical studies for residual problems with this condition, which represented one percent 

impairment of the right upper extremity. 

The Board notes that a rating based upon appellant’s loss of ROM of her upper extremities 

for de Quervain’s tenosynovitis is allowed (by asterisk) pursuant to Table 15-3 of the A.M.A., 

Guides.

18

 The Board therefore finds that, pursuant to FECA Bulletin No. 17-06, if the medical 

evidence of record was insufficient for OWCP’s medical adviser to render a rating using the ROM 

or DBI method, he should have advised as to the medical evidence necessary to complete the 

rating.19

Dr. Harris was required to independently calculate appellant’s impairment using both the 

DBI and ROM methods and identify the higher rating for the claim’s examiner.

20 He indicated 

that the record did not contain adequate ROM findings to conduct a permanent impairment rating 

under the ROM method. As noted above, FECA Bulletin No. 17-06 provides detailed instructions 

for obtaining sufficient evidence to conduct a complete permanent impairment evaluation, 

including referral for a second opinion evaluation in some cases. However, such instructions were 

 

18 A.M.A., Guides 395, Table 15-3.

19 Supra note 16.

20 Id.
9

not carried out in the present case and therefore this case requires further development of the 

medical evidence in accordance with FECA Bulletin No. 17-06.21

This case will therefore be remanded for application of the new OWCP procedures found 

in FECA Bulletin No. 17-06 following the referral of appellant to a second opinion examination 

at which time appropriate physical findings can be assessed. After this and any other such 

development of the medical evidence as necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision of the Board.

Issued: January 24, 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

 

21 See A.G., Docket No. 18-1314 (issued January 11, 2019).