United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.T., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, SCOTT AIR FORCE 

BASE, IL, Employer

__________________________________________

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Docket No. 17-1465

Issued: September 25, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 1, 2017 appellant, through counsel, filed a timely appeal from a March 2, 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 to consider 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 greater than two percent permanent 

impairment of the right upper extremity for which he previously received a schedule award.

FACTUAL HISTORY

On October 18, 2013 appellant, then a 62-year-old store associate, filed an occupational 

disease claim (Form CA-2) alleging that his duties as a cashier caused his bilateral carpal tunnel 

condition after he returned to work following his December 4, 2009 back, neck, and shoulder 

injury. He stopped work on October 18, 2013.3 OWCP accepted the claim for bilateral carpal 

tunnel syndrome and. It subsequently expanded the acceptance of the claim to include right index 

trigger finger (acquired). OWCP authorized surgery for right carpal tunnel release and right trigger 

finger release, which was performed on April 16, 2014. 

On November 6, 2014 appellant filed a claim for a schedule award (Form CA-7). 

In support of his schedule award claim, appellant submitted a November 20, 2014 report 

from Dr. Neil Allen, a Board-certified internist and neurologist. Dr. Allen briefly noted 

appellant’s medical and employment history and diagnosed bilateral carpal tunnel syndrome and 

right acquired trigger finger. A physical examination revealed: no atrophy in either wrist; right 

tenderness in distal carpal row and carpal tunnel region; left tenderness on the distal row palmar 

surface; and negative Phalen’s and Tinel’s signs bilaterally. Regarding muscle strength, Dr. Allen

related that appellant was rated 5/5 for flexion, extension, radial deviation and ulnar deviation. 

Grip and opposition strength was 4/5. A February 14, 2011 electromyography (EMG) study

showed no evidence of cervical radiculopathy or brachial plexopathy, mild bilateral focal median 

wrist neuropathy, and no bilateral focal ulnar neuropathy. Dr. Allen opined that, according to 

Table15-23 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

4

appellant had six percent permanent impairment of 

each upper extremity due to his accepted bilateral carpal tunnel syndrome. He explained that the 

rating was based on a QuickDASH disability score of 71 percent, a grade modifier of 1 for test 

findings of conduction delay, a grade modifier of 1 for history of mild intermittent symptoms, and 

a grade modifier of 3 for physical findings of weakness. 

On March 20, 2015 Dr. Michael Hellman, an orthopedic surgeon serving as an OWCP 

district medical adviser (DMA) reviewed Dr. Allen’s impairment rating and opined that it was “too 

high” and inconsistent with previous findings of record. He recommended that appellant be 

 

3 Appellant has a prior traumatic injury claim under OWCP File No. xxxxxx238 which OWCP accepted for cervical 

radiculitis, thoracic sprain, lumbar sprain, and shoulder pain. He was receiving wage-loss compensation for 

intermittent disability on the supplemental rolls under OWCP File No. xxxxxx238 when the present occupational 

disease claim was filed. On November 25, 2013 OWCP granted appellant a schedule award under that claim for two 

percent permanent impairment of the left upper extremity. By decision dated December 27, 2017, the Board affirmed 

the hearing representative’s decision which affirmed the left upper extremity schedule award. Docket No. 17-1116 

(issued December 27, 2017). Appellant’s claims have not been administratively combined by OWCP. 

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

referred for a second opinion evaluation. The DMA determined the date of maximum medical 

improvement to be November 20, 2014. 

On December 8, 2015 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. James Stiehl, a Board-certified orthopedic surgeon, for a 

second opinion evaluation in order to determine whether he sustained permanent impairment of 

his accepted bilateral carpal tunnel syndrome and right trigger finger condition in accordance with 

the A.M.A., Guides.

In an impairment evaluation dated January 20, 2016, Dr. Stiehl reviewed appellant’s

history of injury, and the medical evidence including the February 14, 2011 EMG study. He noted 

that the February 14, 2011 EMG study showed a motor nerve conduction latency of 4.5 minutes 

in the left median nerve and 4.2 minutes sensory delay in the right wrist. Physical examination 

findings included negative bilateral Phalen’s and Tinel’s signs and normal bilateral wrist and 

fingers range of motion. Using Table 15-23, page 449 of the sixth edition of the A.M.A., Guides

Dr. Stiehl placed appellant in grade modifier 1, with mild symptoms, which carries a default value 

of two percent permanent impairment of each upper extremity. He opined that appellant reached 

maximum medical improvement on July 17, 2014. 

On May 3, 2016 Dr. Morley Slutsky, a Board-certified occupational medicine specialist, 

acting as an OWCP DMA, reviewed the impairment ratings by both Dr. Allen and Dr. Stiehl. He

found that the EMG test findings met the A.M.A., Guides criteria for compression neuropathy 

under Table 15-23, page 449. The DMA found the date of maximum medical improvement to be 

January 20, 2016, the date of Dr. Stiehl’s examination. Using Table 15-23 at page 449, he rated 

appellant’s right carpal tunnel syndrome. The DMA found the three grade modifiers of history,

physical findings, and test results resulted in an average grade modifier of 1. He concluded that 

appellant had two percent permanent impairment of the right upper extremity. For the left upper 

extremity, the DMA found a history grade modifier of 1, a grade modifier for physical findings of 

0, a grade modifier for test findings of 1, which resulted in an average grade modifier of -1 or zero 

impairment. He determined the date of maximum medical improvement to be January 20, 2016, 

the date of Dr. Stiehl’s examination. The DMA explained that his evaluation of appellant’s left 

wrist permanent impairment differed from Dr. Stiehl’s because Dr. Stiehl had not documented 

more than one motion per joint, which was not consistent with the validation criteria in section 

15.7 of the A.M.A., Guides, page 464. Therefore appellant was assigned a zero grade modifier for 

physical examination findings. 

By decision dated June 22, 2016, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right upper extremity.

On June 30, 2016 counsel requested a telephonic hearing before an OWCP hearing 

representative, which was held on January 25, 2017. 

By decision dated March 2, 2017, the hearing representative affirmed the June 22, 2016 

decision.
4

LEGAL PRECEDENT

Under section 8107 of FECA5and section 10.404 of the implementing federal regulations,6

schedule awards are payable for permanent impairment of specified body members, functions or 

organs. FECA, however, does not specify the manner in which the percentage of impairment shall 

be determined. For consistent results and to ensure equal justice under the law for 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.7 

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).8 Under the sixth edition, the evaluator identifies 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).9 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).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 zero to four) 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.12

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.13

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7 D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8 A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.

9

Id. at 383-419.

10 Id. at 411.

11 Id. at 449.

12 Id. at 448-49.

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

Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 

ECAB 349 (2006).
5

ANALYSIS

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

impairment of the right upper extremity, for which he previously received a schedule award. 

Dr. Allen, an examining Board-certified internist and neurologist determined that appellant 

had a six percent impairment of each upper extremity due to his accepted bilateral carpal tunnel 

syndrome. He assigned a grade modifier of 1 for test findings of conduction delay, a grade 

modifier of 1 for mild intermittent symptoms, and a grade modifier of 3 for physical findings of 

weakness. On March 20, 2015 the DMA reviewed Dr. Allen’s report and determined that it was 

of limited probative value as it was inconsistent with previous medical findings. The Board notes 

that, while Dr. Allen assigned a grade modifier of 3 for weakness of both wrists, he did not 

document significant weakness. Dr. Allen related that regarding muscle strength appellant was 

5/5 for flexion, extension, radial and ulnar deviation, and 4/5 for grip and opposition strength. To 

be of probative value, the medical evidence must describe the impairment in sufficient detail so 

that it can be visualized on review and utilized to compute the percentage of impairment in 

accordance with the A.M.A., Guides.

14

 Dr. Allen failed to adequately explain how the A.M.A., 

Guides supported his findings of a greater impairment.15 Since Dr. Allen did not explain how 

appellant’s examination findings would warrant a grade 3 modifier, his opinion is of limited 

probative value. 

OWCP properly referred appellant for a second opinion evaluation as Dr. Allen’s report 

was of limited probative value. Dr. Stiehl, the second opinion physician determined that appellant 

had two percent permanent impairment of each upper extremity due to his accepted bilateral carpal 

tunnel syndrome. He noted that appellant’s motor conduction delay which would place him in 

grade modifier 1 of Table 15-23 of the A.M.A., Guides. Appellant’s history of mild symptoms, 

with normal physical examination findings, would result in the default rating of two percent. 

Therefore he concluded that pursuant to Table 15-23 appellant had two percent permanent 

impairment of each upper extremity. 

The DMA determined that appellant had only two percent permanent impairment of the 

right upper extremity. OWCP determined that the weight of the evidence was represented by the 

opinion of the DMA.

The DMA properly applied Table 15-23, which pertains to entrapment/compression 

neuropathy to evaluation of appellant’s right wrist permanent impairment. He explained that 

appellant’s right wrist conduction delay and mild intermittent symptoms, with normal physical 

findings placed appellant in grade 1 of this Table. The DMA concurred with Dr. Stiehl that 

application of the formula for grade modifiers resulted in a total impairment value of two percent 

permanent impairment of the right wrist. The Board finds that the DMA properly reviewed the 

EMG/NCV testing and explained his findings with regard to history and physical examination by 

reviewing the medical findings in the record and applying them to the criteria set forth in the 

A.M.A., Guides.

 

14 See G.D., Docket No. 16-1712 (issued August 11, 2017). 

15 Id.
6

The Board thus finds that well-rationalized opinions of the second opinion physician and 

the DMA represent the weight of the medical evidence regarding permanent impairment of 

appellant’s right wrist.

16

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 greater than two percent permanent 

impairment of his right upper extremity, for which he previously received a schedule award. 

ORDER

IT IS HEREBY ORDERED THAT the March 2, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: September 25, 2019

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

 

16 Id.