United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Springfield, MO, Employer

__________________________________________

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Docket No. 18-1334

Issued: March 7, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

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 June 26, 2018 appellant filed a timely appeal from a June 14, 2018 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 this case.

ISSUE

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

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

schedule award.

FACTUAL HISTORY

On September 14, 2015 appellant, then a 61-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that he sustained an aggravation of his 

 

1 5 U.S.C. § 8101 et seq.
2

preexisting left carpal tunnel syndrome while in the performance of his federal employment duties. 

On April 27, 2016 OWCP accepted the claim for left carpal tunnel syndrome.2 

On May 13, 2011 appellant underwent nerve conduction velocity testing which 

demonstrated bilateral trans carpal median neuropathies, greater on the right side. 

In a report dated August 19, 2015, Dr. Victoria D. Kubik, a Board-certified orthopedic 

surgeon, recommended left carpal tunnel surgical intervention. On August 19, 2015 she performed

left carpal tunnel release, left wrist ulnar nerve release, and left radial tunnel and extensor carpi 

radialis brevis releases. Dr. Kubik found compression of the ulnar nerve at the Guyon’s canal, left 

upper extremity radial tunnel, recurrent carpal tunnel, and lateral epicondylitis. 

Dr. Kubik, in a February 23, 2016 report, summarized appellant’s medical history and 

treatment for his carpal tunnel condition and tendinitis. Following the August 19, 2015 surgery 

appellant reported tingling numbness, and some forearm pain, but overall significant improvement. 

Dr. Kubik released him as his symptoms significantly improved following the August 19, 2015 

surgery. 

In a May 3, 2016 report, Dr. Kubik opined that appellant had reached maximum medical 

improvement (MMI) and was status post ulnar nerve through Guyon’s canal, left carpal tunnel 

release, and left radial tunnel release with extensor carpi radialis brevis tendon release. 

In a letter dated June 4, 2016, appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated June 16, 2016, OWCP informed appellant that additional 

medical evidence was necessary to establish his schedule award claim. It advised him to submit a 

report from his treating physician which evaluated his permanent impairment pursuant to the sixth 

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

(A.M.A., Guides).

3

 OWCP afforded him 30 days to submit the necessary evidence. 

Appellant subsequently submitted a report dated June 21, 2016, wherein Dr. Kubik 

indicated that she did not perform permanent impairment ratings. 

OWCP forwarded Dr. Kubik’s reports of record to Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA). In a November 2, 2016 

report, Dr. Katz reviewed the medical evidence of record and found that it lacked sufficient detail 

for a permanent impairment determination. He recommended that a second opinion physician who 

is familiar with the sixth edition of the A.M.A., Guides examine and rate appellant’s permanent 

impairment.

On February 13, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Michael S. Clarke, a Board-certified orthopedic surgeon. In a February 22, 2017 report,

 

2 Under OWCP File No. xxxxxx371, OWCP had accepted appellant’s March 14, 2003 claim for bilateral carpal 

tunnel syndrome and on June 5, 2006 granted a schedule award for an eight percent permanent impairment of his left 

upper extremity.

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

Dr. Clarke, reviewed the medical record, a statement of accepted facts (SOAF), and a list of 

questions regarding appellant’s permanent impairment. He related appellant’s complaints of left

fingertip numbness of his four lateral fingers and grip weakness. Appellant’s physical examination 

revealed no decreased medical nerve sensation, an equivocal Phalen’s test, positive reverse 

Phalen’s test, negative Froment’s and Finkelstein’s tests, negative carpal tunnel Tinel’s sign, and 

no old sensitivity. Dr. Clarke attributed appellant’s persistent lateral elbow pain to lateral 

epicondylitis, which he advised could be treated by injections. He provided an impairment rating 

utilizing Table 15-23, Entrapment/Compression neuropathy of the A.M.A., Guides.

4

 Dr. Clarke

noted that the diagnosis of carpal tunnel syndrome had been confirmed prior to his two carpal 

tunnel release surgeries. He concluded that test findings of reduced conduction delay resulted in 

a grade modifier of 1.5 Dr. Clarke noted that appellant’s complaints of numbness and pain resulted 

in a grade modifier of 1 for history. He found that his physical findings of decreased sensation 

resulted in a grade modifier of 2 for physical findings. Dr. Clarke averaged these grade modifiers 

and found that the appropriate grade modifier was 1.33, which he rounded down to 1. He then 

proceeded to modify the default impairment for Grade 2 based on the functional scale grade. 

Dr. Clarke found that appellant’s QuickDASH score was 43, which equaled a moderate grade. 

Dr. Moore concluded that appellant had a total of three percent permanent impairment of the left

upper extremity. 

On April 22, 2017 Dr. Katz reviewed Dr. Clarke’s February 22, 2017 report and concurred 

with his finding of three percent left upper extremity permanent impairment. In a supplemental 

report dated April 27, 2017, he reviewed additional information under OWCP File No. xxxxxx371,

along with Dr. Clarke’s February 22, 2017 report. Dr. Katz noted that appellant had previously 

been granted a schedule award for eight percent left upper extremity permanent impairment based 

on a May 10, 2006 DMA report under OWCP File No. xxxxxx371. He again concurred with

Dr. Clarke that appellant currently had three percent permanent impairment of the left upper 

extremity.

By decision dated June 14, 2018, OWCP denied appellant’s claim for an additional 

schedule award. It found that he had not established more than the eight percent left upper 

extremity permanent impairment previously awarded under OWCP File No. xxxxxx371. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set forth the 

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

 

4

Id. at 449, Table 15-23.

5

Id.

6 Supra note 1.

7 20 C.F.R. § 10.404.
4

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 2009.8 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.9 It is well established that in determining the amount of a schedule award for a member 

of the body that sustained an employment-related impairment, preexisting impairments are to be 

included.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 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 OWCP’s medical adviser for an opinion concerning the nature and percentage 

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

rationale for the percentage of impairment specified.13

ANALYSIS

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

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

schedule award compensation.

The Board notes that on June 5, 2006, OWCP granted appellant a schedule award for eight 

percent permanent impairment of the left upper extremity due to his accepted left carpal tunnel 

syndrome under OWCP File No. xxxxxx371.14

In support of his current claim appellant submitted reports dated February 23 and May 3, 

2016 from Dr. Kubik. Dr. Kubik noted that appellant was released from her care in the 

 

8 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 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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

10 P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

11 A.M.A., Guides 449, Table 15-23; 449. See also L.G., Docket No. 18-0065 (issued June 11, 2018).

12 Id. at 448-49.

13 See supra note 8 at Chapter 2.808.6(d) (March 2017).

14 See supra note 2.
5

February 22, 2016 report and indicated that he had reached MMI. She indicated that she did not 

perform permanent impairment ratings. 

In his February 22, 2017 second opinion report, Dr. Clarke, a Board-certified orthopedic 

surgeon, calculated three percent permanent impairment of the left upper extremity for appellant’s

accepted left carpal tunnel syndrome under the A.M.A., Guides using the formula set forth above. 

Dr. Clarke provided clinical findings and explained how those objective elements 

warranted the percentages assessed. 

OWCP’s DMA, Dr. Katz, concurred with Dr. Clarke’s three percent left upper permanent 

impairment rating and methodology. 

The Board finds that OWCP properly found the impairment ratings by Dr. Clarke and

Dr. Katz constituted the weight of the medical evidence. Dr. Clarke’s opinion was based on an 

accurate SOAF and the complete medical record. He provided a thorough impairment rating, 

utilizing the appropriate portions of the A.M.A., Guides. Dr. Clarke described how the objective 

clinical findings, intermittent symptoms, and physical examination warranted the specified 

percentage of impairment. There is no probative medical evidence of record demonstrating that 

appellant sustained more than the eight percent permanent impairment of his left upper extremity

previously awarded due to his accepted left upper extremity carpal tunnel syndrome under OWCP 

File No xxxxxx371. Thus, appellant has not met his burden of proof.15

On appeal appellant disagrees with OWCP’s impairment rating and contends that OWCP 

failed to properly review his claim. As set forth above, the Board has found that the opinion of

Dr. Clarke constituted the weight of the evidence. Appellant further asserts that OWCP failed to 

timely process his schedule award claim. The Board finds that there is no evidence of record 

establishing a delay in the processing and adjudication of the schedule award claim.

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 more than eight percent permanent

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

 

15 OWCP should consider combining OWCP File Nos. xxxxxx533 and xxxxxx371. It’s procedures provide that 

cases should be combined when correct adjudication of the issue(s) depends on frequent cross-reference between files. 

Supra note 8 at Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000).
6

ORDER

IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 7, 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