United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.O., Appellant

and

U.S. POSTAL SERVICE, SOUTH PORTLAND 

CARRIER ANNEX, South Portland, ME, 

Employer

__________________________________________

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Docket No. 20-0287

Issued: June 1, 2021

Appearances: Case Submitted on the Record

William Bothwell, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 21, 2019 appellant, through his representative, filed a timely appeal from an 

October 29, 2019 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.3

 

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.

3 The Board notes that, following the issuance of the October 29, 2019 decision, OWCP received additional

evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence

in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be 

considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from 

reviewing this additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 13 percent 

permanent impairment of his left upper extremity, for which he previously received a schedule 

award.

FACTUAL HISTORY

On August 20, 2004 appellant, then a 37-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained left shoulder rotator cuff tendinitis due to his 

federal employment duties. OWCP assigned the claim OWCP File No. xxxxxx724 and accepted 

it for left shoulder tendinitis. It authorized diagnostic glenohumeral arthroscopy, debridement of 

a partial-thickness rotator cuff tear, and arthroscopic subacromial decompression with 

acromioplasty and resection of the distal clavicle, which occurred on November 16, 2004. 

Appellant returned to limited-duty work on November 30, 2004. By decision dated October 12, 

2006, OWCP granted him a schedule award for 13 percent permanent impairment of his left upper 

extremity.

On December 31, 2007 appellant, then a 41-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 24, 2007 he injured his left arm, sustained a ring 

finger sprain and fracture below his left thumb, and experienced left elbow and shoulder pain when 

he slipped on ice as he climbed back into his truck while in the performance of duty. He stopped 

work on December 27, 2007 and returned to work on December 31, 2007. OWCP assigned the

claim OWCP File No. xxxxxx023, and accepted it for left sprain of the proximal interphalangeal

joint of the fourth finger, grade 1 left acromioclavicular (AC) separation, and left wrist 

injury/navicular fracture. On April 3, 2008 appellant returned to full-time limited-duty work. 

OWCP File Nos. xxxxxx724 and xxxxxxx023 have been administratively combined with the latter 

serving as the master file.

On July 30, 2009 appellant filed a claim for an additional schedule award (Form CA-7)

and submitted medical evidence.

After further development of the medical evidence, OWCP, by decision dated February 4, 

2010, denied appellant’s claim for an additional schedule award, finding that the weight of the 

medical evidence established that he had no more than the previously awarded 13 percent 

permanent impairment of his left upper extremity

On January 5, 2012 appellant underwent OWCP-authorized left shoulder arthroscopy, 

subacromial decompression, and arthroscopic distal clavicle excision. He returned to full-time 

modified-duty work on March 16, 2012.

On May 11, 2012 appellant filed another Form CA-7 for an additional schedule award and 

submitted medical evidence in support of his claim. 

After further development of the medical evidence, OWCP, by decision dated January 28, 

2013, again denied appellant’s schedule award claim, finding that the medical evidence of record 

was insufficient to establish he had greater than 13 percent permanent impairment of his left upper 

extremity previously awarded.
3

On February 4, 2013 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

On June 24, 2013 OWCP expanded the acceptance of appellant’s claim to include inferior 

trunk plexopathy (injury to the brachial plexus).

An OWCP hearing representative, by decision dated July 30, 2013, set aside the 

January 28, 2018 decision and remanded the case to OWCP for further development of the medical 

evidence regarding the extent of appellant’s left upper extremity permanent impairment.

On remand OWCP continued to develop the medical evidence.

By decision dated January 24, 2014, OWCP continued to deny appellant’s claim for an 

additional schedule award, finding that the weight of the medical evidence established that he had 

no more than the previously awarded 13 percent permanent impairment of his left upper extremity. 

The January 24, 2014 decision was affirmed on November 3, 2014 by an OWCP hearing 

representative. By decision dated August 27, 2015, OWCP denied appellant’s request for 

reconsideration pursuant to 5 U.S.C. § 8128(a).

OWCP received an August 15, 2017 report by Dr. Frank A. Graf, an attending Boardcertified orthopedic surgeon.

4

 Dr. Graf reviewed appellant’s medical records and provided 

findings on physical examination. He determined that appellant had reached maximum medical 

improvement (MMI). Dr. Graf reiterated his prior opinion that appellant had 23 percent permanent 

impairment of his left upper extremity.

5

 He reasoned that his examination documented residuals 

of the original employment-related cervical spine, left shoulder, and peripheral nerves injuries with 

ongoing permanent impairment. Dr. Graf disagreed with the opinion of an OWCP district medical 

adviser (DMA) regarding the use of electromyogram/nerve conduction velocity (EMG/NCV)

studies in rating permanent impairment. He maintained that such studies should not be used rigidly 

as they have high specificity when positive, but low sensitivity and did not reflect the multi-focal 

nature of the ongoing nerve dysfunction present in appellant at both the spinal nerve root, brachial 

plexus, and peripheral nerve.

On September 12, 2017 appellant continued to file a Form CA-7 for an additional schedule 

award.

OWCP, by development letter dated September 21, 2017, advised appellant that no medical 

evidence had been submitted in support of his schedule award claim. It requested that he submit 

a report from his treating physician addressing whether he had reached MMI and evaluating the 

 

4 The Board notes that Dr. Graf previously served as an OWCP referral physician and submitted reports dated 

June 5 and July 3, 2012 and October 23 and December 19, 2013. On September 7, 2012 OWCP found a conflict in 

the medical opinion evidence between Dr. Graf who opined that appellant had 23 percent permanent impairment of 

the left upper extremity and an OWCP DMA who opined that appellant had 12 percent permanent impairment of the 

same extremity and referred him for an impartial medical examination.

5

In his June 5 and July 3, 2012 reports, Dr. Graf determined that appellant had 12 percent permanent impairment 

of his left upper extremity under the ROM rating method and12 percent permanent impairment of the same extremity 

under the diagnosis-based impairment (DBI) rating method based on a diagnoses of neural stretch injuries to the

inferior trunk of the brachial plexus and C8 spinal nerve root. He combined the range of motion (ROM) and DBI 

impairment ratings which yielded 23 percent permanent impairment of the left upper extremity.
4

extent of permanent impairment, if any, in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6 

OWCP afforded appellant 30 days to submit the necessary evidence.

By letter dated November 2, 2017, OWCP requested that Dr. Graf provide a medical report 

which included an impairment rating in accordance with the sixth edition of the A.M.A., Guides. 

It afforded him 30 days to submit the requested evidence.

In response, Dr. Graf related in a November 13, 2017 letter that his prior opinion on 

appellant’s permanent impairment was based on the sixth edition of the A.M.A., Guides and his 

rating of 23 percent impairment of his left upper extremity remained unchanged.

On January 2, 2018 OWCP referred appellant, together with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Lawrence M. Leonard, a Board-certified orthopedic 

surgeon, for a second opinion impairment evaluation in accordance with the sixth edition of the 

A.M.A., Guides.

On February 12, 2018 OWCP again expanded the acceptance of appellant’s claim to 

include injury to brachial plexus.

In a February 27, 2018 letter, Dr. Leonard reviewed appellant’s medical records and noted 

examination findings. He diagnosed left shoulder arthrosis and bursitis. Dr. Leonard opined that 

appellant had reached MMI on April 26, 2012, the date that Dr. Vincent P. Herzog, an attending 

Board-certified physiatrist, opined that appellant could perform regular-duty work and his normal 

activities. Utilizing the DBI rating method found at Table 15-5 on page 403 of the A.M.A., Guides, 

he noted that appellant had a class of diagnosis (CDX) of 1 for distal clavicle resection. He had a 

QuickDASH score of 57.5. Dr. Leonard assigned a grade modifier for functional history (GMFH)

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

studies (GMCS) of 2. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) 

which resulted in a net adjustment of grade E, 12 percent permanent impairment of the left upper 

extremity. Dr. Leonard also utilized the ROM rating method and found that, under Table 15-34 

on page 475, 90 degrees of flexion yielded 9 percent permanent impairment, 30 degrees of 

extension yielded 1 percent permanent impairment, 95 degrees of abduction yielded 3 percent 

permanent impairment, 30 degrees of adduction yielded 3 percent permanent impairment, 80

degrees of internal rotation yielded 0 percent permanent impairment, and 85 degrees of external 

rotation yielded 0 percent permanent impairment, totaling 14 percent permanent impairment of the 

left upper extremity with a grade modifier 2. He then found that, under Table 15-3, a 14 percent 

left upper extremity rating was consistent with a grade 2 modifier, and accordingly no modification 

of the permanent impairment was indicated. Next, Dr. Leonard utilizing Table 15-36 adjusted the 

impairment rating using the grade modifier 2 for GMFH by 1.4 percent (10 percent x 14 percent 

or 1.4), 1 percent + 14 percent or 15 percent left upper extremity permanent impairment. He 

explained that as the ROM method resulted in a higher rating than the DBI method, the ROM 

calculation should be used. Dr. Leonard noted that appellant had previously received a schedule 

for 13 percent permanent impairment of his left upper extremity and advised that he was entitled 

 

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

to an additional schedule award for 2 percent permanent impairment due to his October 2000 

employment injury.

On December 11, 2018 OWCP referred the medical evidence and a SOAF to Dr. David J. 

Slutsky, a Board-certified orthopedic surgeon serving as a DMA for OWCP, to review the findings 

in the February 27, 2018 report by Dr. Leonard and evaluate appellant’s permanent impairment

under the sixth edition of the A.M.A., Guides. In a December 30, 2018 report, the DMA utilized

the DBI rating method under Table 15-5 on page 403 and determined that a CDX of 1 for left distal 

clavicle resection represented a class 1 impairment with a default value of 10 percent. He assigned 

a GMFH of 3 due to moderate shoulder pain and a QuickDASH score of 57.5, under Table 15-7 

on page 406. The DMA assigned a GMPE of 1 due to mild tenderness to palpation posteriorly, 

under Table 15-8 on page 408. He assigned a GMCS of 1 due an inconclusive March 15, 2010 

magnetic resonance imaging (MRI) scan and x-rays consistent with AC joint separation on 

December 27, 2007, under Table 15-9 on page 410. The DMA applied the net adjustment formula 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (2 - 1) = 0, resulting in 

a class 1, grade C, 10 percent permanent impairment of the left upper extremity. Additionally, he

utilized the ROM rating method to determine permanent impairment to the left upper extremity

and found that, under Table 15-34 on page 475, 90 degrees of flexion yielded 3 percent permanent 

impairment, 30 degrees of extension yielded 1 percent permanent impairment, 95 degrees of 

abduction yielded 3 percent permanent impairment, 20 to 30 degrees of adduction yielded 1

percent permanent impairment, 80 degrees of internal rotation yielded 0 percent permanent 

impairment, and 85 degrees of external rotation yielded 0 percent permanent impairment, totaling 

8 percent permanent impairment of the left upper extremity. The DMA determined that, under 

Table 15-36 on page 477, a grade modifier 1 for 12 percent left upper extremity ROM permanent 

impairment rating. He found a net modifier of 2 for GMFH under the same table. The DMA

multiplied 10 percent impairment by 8 percent impairment, which totaled .8 percent or 9 percent 

permanent impairment of the left upper extremity for loss of ROM. He concluded that appellant 

had no additional permanent impairment. The DMA found that he reached MMI on February 27, 

2018, the date of Dr. Leonard’s impairment evaluation. He noted discrepancies in Dr. Leonard’s 

impairment ratings. The DMA indicated that Dr. Leonard awarded nine percent permanent 

impairment for abduction of 95 degrees, but according to Table 15-34, this represented three 

percent impairment.

By letter dated January 15, 2019, OWCP requested that Dr. Leonard review the DMA’s 

December 30, 2018 findings. In a February 8, 2019 letter, Dr. Leonard agreed with the DMA’s 

assessment that he had incorrectly calculated nine percent permanent impairment rating for 95 

degrees of abduction. He noted that, according to Table 15-34, the rating should be three percent 

permanent impairment for the left upper extremity.

On February 25, 2019 OWCP requested that the DMA review the findings in the 

August 15, 2017 report by Dr. Graf. In a March 11, 2019 report, the DMA referenced findings in

Dr. Graf’s July 3, 2012 report in which he found that appellant had 23 percent permanent 

impairment of the left upper extremity based on the DBI rating method. He disagreed with

Dr. Graf’s 12 percent left upper extremity permanent impairment rating for a diagnosis of left 

distal clavicle resection, noting his determination that appellant had 10 percent left upper extremity 

permanent impairment based on such diagnosis under the DBI rating method and he had 9 percent 

left upper extremity permanent impairment under the ROM rating method. Further, the DMA 

noted that there was no clinical or electrodiagnostic evidence of a lower trunk plexopathy or C8 
6

radiculopathy. The DMA indicated that Dr. Graf reported negative diagnostic test results for 

carpal tunnel syndrome and did not perform additional diagnostic testing to determine a diagnoses 

of cubital tunnel syndrome or assess upper extremity muscle strength. He noted that other 

diagnostic test results of record were negative for these conditions. Therefore, the DMA concluded 

that there was no clinical basis for the diagnosis of carpal tunnel syndrome, cubital tunnel 

syndrome, or a brachial plexopathy based on physical examination. He referenced page 445 of the 

A.M.A., Guides to support his opinion. The DMA determined that appellant had zero percent 

permanent impairment for the diagnosis of either focal neuropathy or brachial plexopathy. He 

disputed Dr. Graf’s rationale for not using EMG/NCV studies as vague and meaningless based on 

his above-noted rationale. Additionally, he noted that the whole point behind using the A.M.A. 

Guides was to determine an impairment rating was to rigidly adhere to impairment criteria it laid 

out.

By decision dated March 28, 2019, OWCP denied appellant’s claim for an additional 

schedule award based on the opinion of its DMA.

On April 3, 2019 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review, which was held on August 13, 2019.

By decision dated October 29, 2019, OWCP’s hearing representative affirmed the 

March 28, 2019 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8set 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. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.9 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).10 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.11

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

10 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, 

Chapter 2.808.5a (March 2017).

11 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
7

to be rated. With regard to the shoulder, the relevant portion of the arm for the present case, 

reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX 

is determined from the Shoulder Regional Grid (including identification of a default grade value), 

the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment 

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

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

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

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“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.” (Emphasis in the original.)

* * *

“If the rating physician provided an assessment using the DBI 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 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.”

13

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

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

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.14

 

12 See A.M.A., Guides (6th ed.) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant with 

certain diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM 

impairment). Such a ROM assessment stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.

13 FECA Bulletin No. 17-06 (May 8, 2017).

14 See supra note 10 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).
8

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 13 

percent permanent impairment of his left upper extremity, for which he previously received a 

schedule award.

In his December 30, 2018 report, the DMA properly calculated appellant’s left upper 

extremity permanent impairment in accordance with the sixth edition of the A.M.A., Guides based 

on the clinical findings of the second opinion physician, Dr. Leonard. Utilizing the DBI rating 

method, under Table 15-5, page 403, the DMA found that appellant’s diagnosis of left distal 

clavicle resection represented a CDX of 1 with a default value of 10 percent impairment. He 

assigned a GMFH of 3 under Table 15-7, page 406, a GMPE of 1 under Table 15-8, page 408, and 

a GMCS of 1 under Table 15-9, page 410. The DMA applied the net adjustment formula (GMFH 

- CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (2 - 1) = 0, yielding a class 1, 

grade C, 10 percent permanent impairment of the left upper extremity. Additionally, he utilized 

the ROM rating method to determine permanent impairment to the left upper extremity and found 

that, under Table 15-34 on page 475, 90 degrees of flexion yielded three percent permanent 

impairment, 30 degrees of extension yielded one percent permanent impairment, 95 degrees of 

abduction yielded three percent permanent impairment, 20 to 30 degrees of adduction yielded one 

percent permanent impairment, 80 degrees of internal rotation yielded zero percent permanent 

impairment, and 85 degrees of external rotation yielded zero percent permanent impairment, 

totaling eight percent permanent impairment of the left upper extremity. The DMA determined 

that, under Table 15-36 on page 477, a grade modifier 1 for 12 percent left upper extremity ROM 

permanent impairment rating. He found a net modifier of 2 for GMFH under the same table. The 

DMA multiplied 10 percent impairment by 8 percent impairment, which totaled .8 percent or 9

percent permanent impairment of the left upper extremity for loss of ROM. He concluded that 

appellant had no additional permanent impairment. The Board finds that the DMA correctly 

calculated appellant’s permanent impairment utilizing both the DBI and ROM rating methods to 

find that he had no more than 13 percent permanent impairment of his left upper extremity for 

which he previously received a schedule award. 

The case record contains reports of Dr. Graf, appellant’s attending physician, and

Dr. Leonard, the second opinion physician, which includes higher impairment rating calculations 

for the left upper extremity, but the Board finds that their impairment rating analysis are of little 

probative value because neither physician properly utilized the standards of the sixth edition of the 

A.M.A., Guides.

15

 The DMA properly identified the deficiencies in both physicians’ impairment 

rating analysis. He explained that Dr. Leonard, who opined in his February 27, 2018 report that 

appellant had 15 percent left upper extremity permanent impairment based on the ROM rating 

method, incorrectly found under Table 15-34 that 95 degrees of abduction yielded nine percent 

permanent impairment rather than three percent permanent impairment. Moreover, the Board 

notes that Dr. Leonard, in a subsequent report dated February 8, 2019, agreed with the DMA’s 

assessment of his incorrect application of appellant’s ROM measurement to Table 15-34.

 

15 See J.H., Docket No. 19-0395 (issued August 10, 2020); N.A., Docket No. 19-0248 (issued May 17, 2019); 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).
9

In an August 15, 2017 report, Dr. Graf opined that appellant had 12 percent permanent 

impairment of his left upper extremity under the ROM rating method and 12 percent permanent 

impairment of the same extremity under the DBI rating method based on a diagnosis of neural 

stretch injuries to the inferior trunk of the brachial plexus and C8 spinal nerve root. He combined 

these impairment ratings which yielded 23 percent permanent impairment of the left upper 

extremity. The DMA disagreed with Dr. Graf’s 12 percent left upper extremity permanent 

impairment rating for a left distal clavicle resection as he properly determined that appellant had 

10 percent left upper extremity permanent impairment based on the distal clavicle resection 

diagnosis under the DBI rating method and he had nine percent left upper extremity permanent 

impairment under the ROM rating method. Further, the DMA explained that there was no clinical 

basis for Dr. Graf’s diagnoses of carpal tunnel syndrome, cubital tunnel syndrome, or a brachial 

plexopathy as he reported negative diagnostic test results for carpal tunnel syndrome and did not 

perform additional diagnostic testing to determine a diagnosis of cubital tunnel syndrome or assess 

upper extremity muscle strength. Additionally, he noted that other diagnostic test results of record 

were negative for these conditions. The DMA referenced page 445 of the A.M.A., Guides to 

support his opinion and opined that appellant had zero percent permanent impairment for the 

diagnosis of either focal neuropathy or brachial plexopathy. He disagreed with Dr. Graf’s rationale 

for not using EMG/NCV studies as vague and meaningless based on his above-noted rationale for 

the importance of diagnostic testing and the purpose for using the A.M.A. Guides to rate

impairment.

The Board finds that the DMA, Dr. Slutsky, properly applied the A.M.A., Guides to find 

that appellant had no more than 13 percent permanent impairment of the left upper extremity, for 

which he previously received schedule award compensation. His reports are detailed, well 

rationalized, and based on a proper factual background, and thus his opinion represents the weight 

of the medical evidence.16 As such, the Board finds that appellant has not met his burden of proof 

to establish greater left upper extremity permanent impairment than what was previously awarded.

On appeal appellant’s representative contends that a conflict remains in the medical 

opinion evidence and that the case should be remanded for referral of appellant to a referee 

physician to resolve the conflict. For the reasons explained above, the Board finds that the 

evidence of record is insufficient to establish that appellant has more than 13 percent permanent 

impairment of the left 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.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish more than 13 

percent permanent impairment of his left upper extremity, for which he previously received a 

schedule award.

 

16 Id.
10

ORDER

IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 1, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board