United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.A., Appellant

and

U.S. POSTAL SERVICE, O’HARE AIR MAIL 

CENTER, Chicago, IL, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 19-1057

Issued: March 18, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 12, 2019 appellant, through counsel, filed a timely appeal from a February 25, 

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 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 met her burden of proof to establish greater than one 

percent permanent impairment of each upper extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On January 15, 1998 appellant, then a 34-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she had developed bilateral carpal tunnel syndrome due 

to factors of her federal employment including repetitive duties. On January 16, 1999 she

underwent electrodiagnostic studies including an electromyogram and nerve conduction velocity 

(EMG/NCV) studies of the upper extremities. These tests demonstrated bilateral median nerve 

findings. OWCP assigned the claim File No. xxxxxx810 and, on March 17, 1999, accepted it for 

bilateral carpal tunnel syndrome.3 

On February 5, 2000 appellant filed an occupational disease claim (Form CA-2) alleging 

that she developed pain and stiffness in her neck, shoulder, and middle back area on her left side 

due to factors of her federal employment including repetitive movements. OWCP assigned that 

claim File No. xxxxxx757 and, on February 23, 2000, accepted it for cervical and left trapezius 

strains.

On December 29, 2000 OWCP administratively combined OWCP File No. xxxxxx810 and 

OWCP File No. xxxxxx757. OWCP File No. xxxxxx810 was designated as the master file. 

On May 8, 2002 appellant filed a schedule award claim (Form CA-7). She alleged that she 

had reached maximum medical improvement (MMI) for her accepted bilateral carpal tunnel 

syndrome. By decision dated February 24, 2004, OWCP denied the schedule award claim.

On November 19, 2012 appellant again filed a schedule award claim (Form CA-7).

In a December 4, 2012 development letter, OWCP noted the deficiencies in the schedule 

award claim and requested medical evidence supporting permanent impairment. It afforded 

appellant 30 days to respond.

In a December 7, 2012 report, Dr. Neil Allen, a Board-certified neurologist, opined that 

appellant had reached MMI and listed her ongoing symptoms of bilateral hand numbness, pain, 

tingling, weakness, and locking of the digits. On physical examination he found mild thenar 

atrophy on the left, loss of muscle strength in extension, and loss of grip strength. For the right

upper extremity Dr. Allen reported mild thenar atrophy, loss of muscle strength in extension and 

in grip strength, and a positive Tinel’s sign and Phalen’s test. He applied the sixth edition of the 

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

 

3 On April 16, 1999 appellant underwent a right carpal tunnel surgical release. On October 18, 2000 she underwent 

a left carpal tunnel surgical release.
3

Guides)

4

and rated appellant’s right upper extremity impairment in accordance with Table 15-23, 

page 449, Entrapment/Compression Neuropathy Impairment. Dr. Allen referenced appellant’s 

January 18, 1999 EMG and found a grade modifier for test findings of 1. He then applied a grade 

modifier of 3 for history, due to constant symptoms; a grade modifier of 3 for physical findings, 

due to atrophy or weakness, based on appellant’s mild thenar atrophy, and mild reductions in grip 

and pincher strength; and functional scale, grade modifier 3, based on a QuickDASH score of 80. 

Dr. Allen reached six percent permanent impairment of each of appellant’s upper extremities.

On November 4, 2013 OWCP’s district medical adviser (DMA), Dr. David H. Garelick, 

Board-certified in orthopedic sports medicine, reviewed Dr. Allen’s December 7, 2012 report. He 

disagreed with Dr. Allen’s reliance on the 1999 preoperative EMG, as well as his findings of 

weakness and atrophy, and concluded that appellant had no permanent impairment of her upper 

extremities.

By decision dated February 26, 2015, OWCP denied appellant’s schedule award claim,

finding that Dr. Garelick’s November 4, 2013 report was entitled to the weight of the medical 

evidence.

On March 5, 2015 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated January 15, 2016, OWCP’s hearing representative vacated the 

February 26, 2015 decision and remanded the case for further development, including a second

opinion evaluation.

On September 30, 3016 OWCP referred appellant, a statement of accepted facts (SOAF), 

and a list of questions to Dr. Allen Brecher, a Board-certified orthopedic surgeon, for a second 

opinion evaluation of her permanent impairment for schedule award purposes.

In his October 21, 2016 report, Dr. Brecher reviewed the SOAF and noted appellant’s 

accepted carpal tunnel syndrome, history of back fusion and herniated cervical disc. On physical 

examination he found positive Tinel’s sign and Phalen’s test, which were reduced with distraction, 

which he determined indicated an exaggeration of symptoms. Dr. Brecher disagreed with

Dr. Allen’s findings of loss of strength and loss of range of motion, and noted questionable positive 

Tinel’s sign and Phalen’s test. He applied Table 15-23, page 449 of the A.M.A., Guides, and listed 

a grade modifier for functional history (GMFH) of 1, due to mild impairment; a grade modifier for 

physical examination (GMPE) of 1, as she had no atrophy or numbness; a grade modifier for 

clinical studies (GMCS) of 1, as she had a prior abnormal EMG/NCV studies. Dr. Brecher found 

a final upper extremity impairment rating of two percent permanent impairment of each upper 

extremity due to carpal tunnel syndrome. He further found that appellant’s accepted cervical 

sprain had resolved with no impairment of the upper extremities due to normal sensory and motor 

findings.

On December 23, 2016 OWCP’s DMA, Dr. William Tontz, a Board-certified orthopedic 

surgeon, reviewed Dr. Brecher’s report and concluded that appellant had one percent permanent 

 

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

impairment of each of her upper extremities in accordance with page 449 of the A.M.A., Guides. 

He found that appellant had reached MMI on October 21, 2016.

By decision dated January 19, 2017, OWCP granted appellant a schedule award for one 

percent permanent impairment of each upper extremity. On January 24, 2017 appellant, through 

counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and 

Review.

In a May 11, 2017 addendum to his December 7, 2012 report, Dr. Allen asserted that

Dr. Tontz inappropriately applied postoperative electrodiagnostic studies to determine the test 

findings grade modifier of Table 15-23, page 449, of the A.M.A., Guides. He further asserted that

Dr. Tontz did not explain how he reached his one percent permanent impairment rating. Dr. Allen 

concluded that his initial December 7, 2012 impairment rating was correct.

By decision dated September 26, 2017, OWCP’s hearing representative vacated the 

January 19, 2017 OWCP decision and remanded for a DMA to consider Dr. Allen’s May 11, 2017 

addendum.

In an October 16, 2017 report, Dr. Michael M. Katz, a Board-certified internist and DMA, 

reviewed the medical evidence and found a conflict in the physical findings from Drs. Allen and 

Brecher. He requested an impartial medical examination to resolve this issue.

On February 14, 2018 OWCP declared a conflict in the medical evidence and referred 

appellant, along with a SOAF and list of questions to Dr. Hytham Shadid, a Board-certified 

orthopedic surgeon, for an impartial medical examination.

In his April 12, 2018 report, Dr. Shadid reviewed the SOAF and medical records, and 

performed a physical examination. He noted that appellant reported bilateral hand pain. 

Dr. Shadid found full range of motion and strength in muscle testing in appellant’s bilateral upper 

extremities. He also noted normal sensory findings in the medial nerve distribution confirmed by 

two point discrimination. Dr. Shadid noted normal Phalen’s testing and Tinel’s signs bilaterally. 

He reviewed appellant’s January 16, 1999 EMG which included findings of abnormal sensory 

action potentials, bilaterally. Dr. Shadid applied the nerve entrapment evaluation method of the 

A.M.A., Guides found in Table 15-23, page 449 of the A.M.A., Guides. He determined that the 

grade modifier test findings was one based on the preoperative 1999 electrodiagnostic testing. 

Dr. Shadid found that the grade modifier physical findings was also one due normal appearance, 

strength, and sensory examinations. He determined that the grade modifier history was one due to 

subjective complaints. Dr. Shadid determined that appellant had one percent permanent 

impairment of each of her upper extremities. 

Dr. Shadid explained his disagreement with Dr. Allen’s impairment rating asserting that

Dr. Allen had “over relied on subjective factors” such as the QuickDASH score. He opined that 

this score was based on exaggerated subjective complaints as appellant currently reported that she 

was capable of performing all her activities of daily living as well as performing light-duty work 

independently. Dr. Shadid also found no evidence for loss of range of motion, thenar atrophy, or 

radicular pain on his physical examination and noted that these findings were supported by 

appellant’s negative electrodiagnostic studies. He found that appellant had reached MMI.
5

On April 19, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and DMA, 

reviewed the medical evidence of record and found that appellant had one percent right upper 

extremity permanent impairment due to carpal tunnel syndrome and one percent left upper 

extremity permanent impairment due to carpal tunnel syndrome.

By decision dated May 10, 2018, OWCP denied appellant’s claim for an additional 

schedule award. On May 16, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated February 25, 2019, OWCP’s hearing representative found that appellant 

had no more than one percent permanent impairment of her upper extremities for which she had 

previously received a schedule award, noting that the special weight of the medical evidence rested 

with Dr. Shadid.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,6set 

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

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

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.

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.7 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.8

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).9 Evaluators are directed to provide reasons for their impairment choices, 

including the choices of diagnoses from regional grids and calculations of modifier scores.10

 

5 Supra note 2.

6 20 C.F.R. § 10.404.

7 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

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

9 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

10 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).
6

Permanent impairment due to carpal tunnel syndrome is evaluated under the procedures 

found in Table 15-23, page 449, Entrapment/Compression Neuropathy Impairment, and 

accompanying relevant text.11 In Table 15-23, grade modifier 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.12

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

should be routed to consultant DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides with the DMA providing rationale for the 

percentage of impairment specified.13

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.14 

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

rationale.”

15

 

ANALYSIS

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

OWCP had determined that there was a conflict in the medical opinion evidence between

Dr. Allen an attending physician, and Dr. Brecher, an OWCP referral physician, on the issue of 

the extent of appellant’s upper extremity permanent impairment due to her accepted condition. In 

order to resolve the conflict, it properly referred appellant, pursuant to section 8123(a) of FECA,16

to Dr. Shadid, a Board-certified orthopedic surgeon, for an impartial medical examination and an 

opinion on permanent impairment.

In an April 12, 2018 report, Dr. Shadid reviewed the medical record and the SOAF and 

provided examination findings. Based on his examination findings, he applied Table 15-23, page 

449 of the A.M.A., Guides and determined that the grade modifier for test findings was 1 based 

on the preoperative 1999 electrodiagnostic testing. Dr. Shadid found that the grade modifier for 

physical findings was also one due normal strength and sensory examinations. He determined that 

the grade modifier for history was one due to subjective complaints. Dr. Shadid then determined 

 

11 A.M.A., Guides 449, Table 15-23; C.M., Docket No. 19-0125 (issued August 16, 2019).

12 A survey completed by a given claimant, known by the name QuickDASH (Disabilities of the Arm, Shoulder, 

and Hand), may be used to determine the function scale score. A.M.A., Guides 448-49.

13 Supra note 7 at Chapter 2.808.6(f) (August 2002).

14 5 U.S.C. § 8123(a); A.G., Docket No. 18-0815 (issued January 24, 2019).

15 A.I., Docket No. 19-0193 (issued May 1, 2019).

16 Supra note 14.
7

that appellant had one percent permanent impairment of each of her upper extremities. He found 

that appellant had reached MMI.

On April 19, 2018 a DMA reviewed Dr. Shadid’s April 12, 2018 report and concurred in 

his rationale and determination. 

The Board finds that Dr. Shadid and the DMA improperly utilized Table 15-23. The rating 

process found in Table 15-23 requires an average of the three grade modifiers to reach the grade 

of the final rating category. In applying the average of Dr. Shadid’s grade modifiers, the grade is 

one, which has a default impairment value of two in accordance with page 448 and Table 15-23, 

page 449 of the A.M.A., Guides. This default value is then to be modified up or down based on 

the functional scale grade which is based on QuickDASH score. As neither Dr. Shadid, nor the 

DMA applied the appropriate formula or explained why appellant’s permanent impairment rating 

should be reduced to one from the default value two, the Board finds that the case is not in posture 

for a decision.

When OWCP secures an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the opinion from the specialist requires 

clarification or elaboration, it has the responsibility to secure a supplemental report from the 

specialist for the purpose of correcting a defect in the original report.17 OWCP’s procedures further 

provide that, while an OWCP medical adviser may review the opinion of an impartial medical

specialist in a schedule award case, the resolution of the conflict is the specialist’s responsibility 

and not that of OWCP’s medical adviser. The medical adviser should not resolve the conflict of 

medical opinion or attempt to clarify or expand the opinion of the medical referee. If clarification 

is necessary, a supplemental report should be obtained from the referee specialist.18 

The case shall therefore be remanded for OWCP to request a supplemental report from

Dr. Shadid applying the formula as described on page 448 of the A.M.A., Guides to the grade 

modifiers that he found. It shall also request that he provide an accurate QuickDASH score, and 

apply this score to modify the default value for the grade found, if necessary. After this and other 

such further development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

 

17 Supra note 7 at OWCP Directed Medical Examinations, Chapter 3.500.4.g(3)(b) (July 2011) (If clarification or 

additional information is necessary, the claims examiner should write to the specialist to obtain it.) K.S., Docket No. 

17-1663 (issued March 28, 2018); P.O., Docket No. 15-1631 (issued June 2, 2016); K.C., Docket No. 14-0791 (issued 

August 8, 2014); Guiseppe Aversa, 55 ECAB 164 (2003).

18 Supra note 7 at Chapter 2.808.6(g)(1) and (2) (March 2017).
8

ORDER

IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: March 18, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board