United States Department of Labor

Employees’ Compensation Appeals Board

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R.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Raleigh, NC, Employer

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Docket No. 19-1933

Issued: March 19, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On September 18, 2019 appellant filed a timely appeal from a March 29, 2019 decision of 

the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-1933.

On November 13, 2011 appellant, then a 41-year-old transportation security officer, filed 

an occupational disease claim (Form CA-2) alleging that he sustained injuries to his right wrist, 

arm, and shoulder and left wrist and arm due to factors of his federal employment, including the 

repetitive use of his hands. By decision dated January 3, 2012, OWCP accepted the claim for 

bilateral carpal tunnel syndrome (CTS).

On April 23, 2012 appellant underwent authorized right carpal tunnel release surgery.

In an evaluation for permanent impairment rating dated November 28, 2012,

Dr. Harrison G. Tuttle, a Board-certified orthopedic hand surgeon and appellant’s treating 

physician, indicated that she had reached maximum medical improvement (MMI) and opined that 

she had six percent permanent impairment of her right hand and eight percent permanent 
2

impairment of her left hand, using the sixth edition of the American Medical Association, Guides 

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

1

.

On December 21, 2012 appellant filed a claim for a schedule award (Form CA-7).

On February 5, 2013 OWCP’s district medical adviser (DMA) indicated that appellant had 

reached MMI on November 28, 2012, the date of Dr. Tuttle’s impairment rating. The DMA 

opined that appellant had two percent permanent impairment of her right upper extremity and zero 

percent permanent impairment of the left upper extremity.

By decision dated March 15, 2013, OWCP granted appellant a schedule award for two 

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

impairment of the left upper extremity.

Appellant subsequently underwent authorized left carpal tunnel release surgery on 

March 26, 2015.

On July 7, 2017 Dr. Tuttle provided an additional evaluation for permanent impairment 

where he found that appellant had reached MMI and opined that she had a permanent impairment 

rating of 10 percent in each upper extremity.

On January 11, 2018 appellant filed a Form CA-7 for an increased schedule award.

In a February 10, 2018 report, Dr. David J. Slutsky, a Board-certified orthopedic hand 

surgeon serving as an OWCP district medical adviser (DMA), found that appellant had reached 

MMI on July 7, 2017, the date of Dr. Tuttle’s impairment rating. He disagreed with Dr. Tuttle’s 

rating noting that Dr. Tuttle did not provide an explanation or calculations to support his findings. 

Dr. Slutsky opined that appellant had two percent permanent impairment of the right upper 

extremity and zero percent permanent impairment of the left upper extremity.

OWCP subsequently referred appellant to Dr. Chason S. Hayes, a Board-certified 

orthopedic surgeon, for a second opinion examination. In his January 4, 2019 report, Dr. Hayes 

diagnosed status-post bilateral carpal tunnel release and indicated that his impairment rating was 

calculated by using the compression neuropathy impairment for CTS on Table 15-23, page 449, 

of the A.M.A., Guides. He concluded that appellant had two percent permanent impairment of the 

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

On February 26, 2019 Dr. Slutsky reviewed Dr. Hayes’ January 4, 2019 report and found 

that he had assigned a grade modifier for functional history (GMFH) of 3 apparently based on 

constant symptoms, but noted that there was no documentation of paresthesias or numbness 

involving the fingers and if appellant had constant symptoms there should have been physical 

findings of thenar atrophy and EMG evidence of axon loss, which was not present. He, however, 

concurred with Dr. Hayes’ overall impairment rating of two percent for the right upper extremity. 

With regard to appellant’s left CTS, Dr. Slutsky found that Dr. Hayes had assigned a grade 

modifier for clinical studies (GMCS) of 1 but the electrodiagnostic studies that had been performed 

 

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

on December 5, 2011 were incomplete, with no distal median motor latencies documented. He 

indicated that the distal median sensory latencies were considered to be within the nonratable 

range. Dr. Slutsky further indicated that according to page 445 of the A.M.A., Guides, the 

diagnosis of a focal neuropathy syndrome must be documented by sensory and motor nerve 

conduction studies and/or needle EMG as stated in appendix 15-B in order to be ratable as 

impairment. If a nerve conduction velocity test was not performed or did not meet this section’s 

diagnostic criteria, there was no permanent impairment from the section. Dr. Slutsky concluded, 

therefore, that appellant had no permanent impairment of the left upper extremity.

By decision dated March 29, 2019, OWCP denied appellant’s claim for an increased 

schedule award, finding that the medical evidence of record did not demonstrate additional 

permanent impairment of the right upper extremity and no measurable impairment of the left upper 

extremity.

The Board having duly considered the matter, finds that this case is not in posture for 

decision.

The Board has previously found that OWCP had inconsistently applied Chapter 15 of the 

sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. 

No consistent interpretation had been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.2 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.3 In T.H., the Board concluded that OWCP physicians were 

at odds over the proper methodology for rating upper extremity impairment, having observed 

attending physicians, evaluating physicians, second opinion physicians, impartial medical 

examiners, and DMAs use both DBI and ROM methodologies interchangeably without any 

consistent basis. Furthermore, the Board observed that physicians interchangeably cited to 

language in the first printing or the second printing when justifying use of either ROM or DBI 

methodology. Because OWCP’s own physicians were inconsistent in the application of the 

A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal 

justice under the law for all claimants.4

This case will therefore be remanded for application of OWCP’s procedures found in 

FECA Bulletin No. 17-06. After such further development of the evidence as necessary, OWCP 

shall issue a de novo decision on appellant’s claim for an upper extremity schedule award.

5

 

Accordingly,

 

2 T.H., Docket No. 14-0943 (issued November 25, 2016).

3 A.B., Docket No. 16-0706 (issued February 15, 2018); Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

Id.

5 See FECA Bulletin No. 17-06 (issued May 8, 2017). See also P.T. Docket No. 18-0968 (issued October 23, 2018),

D.S., Docket No. 19-0025 (issued September 3, 2019); D.D., Docket No. 16-0558 (issued August 5, 2016).
4

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

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

consistent with this order of the Board.

Issued: March 19, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board