United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

San Diego, CA, Employer

__________________________________________

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Docket No. 21-0136

Issued: March 28, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

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 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 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.3

1 On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP. 

However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The 

only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See 

20 C.F.R. §§ 501.2(c) and 501.3.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that,following the October 8, 2020 decision, appellant submitted additional evidence to OWCP 

and on appeal to the Board. 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 her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances of the case 

as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts 

are as follows.

On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury 

claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back 

area when she engaged in reaching and lifting duties while in the performance of duty.

5

 She 

stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of 

preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from 

work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013

on the periodic rolls.

On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule 

award due to her accepted April 14, 2013 employment injury. In support of her claim, she 

submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified 

orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment

rating.” 

By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.

By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015 

decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence. 

By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of 

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

4 Docket No. 15-1437 (issued May9, 2016).

5 Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2) 

because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers 

to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,

whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday 

or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler, 

44 ECAB 343, 351 (1992).
3

Appellant also appealed to the Board and, by decision dated May 9, 2016,6the Board 

affirmed the decision.7

In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon, 

determined that appellant had zero percent permanent impairment of the upper extremities 

stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction 

velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there 

was no frank neurologic evidence of either condition upon which to rate a diagnosis-based 

impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one 

percent permanent impairment of each upper extremity due to the reported symptoms by utilizing 

Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8 

In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon, 

indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy. 

A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the 

cervical spine. The study revealed mild findings in the ulnar and median nerves. 

On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a 

Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It 

requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal 

Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter), 

which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22, 

2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no 

evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter, 

there was no spinal nerve root abnormality that would result in a ratable upper extremity 

impairment.

On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts 

(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P. 

Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment 

utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual 

and medical history and reported the findings of the physical examination he conducted on that 

date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal 

tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and 

motor findings.9 He indicated that she had subjective complaints of possible radicular symptoms 

of the upper extremities, but advised that the diagnostic testing of record, including a magnetic 

6

Supra note 4. 

7 Appellant also appealed January 2 and 27 and June8, 2015 merit decisions of OWCP, which the Board affirmed 

in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.

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

9 Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his 

examination.
4

resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural 

impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent 

impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides 

Newsletter.

On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as 

a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent 

impairment of the upper extremities. He expressed his agreement with the conclusions of

Dr. Kelly.

By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim, 

finding that she did not meet her burden of proof to establish permanent impairment of a scheduled 

member or function of the body.

On October 14, 2019 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she 

argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel 

syndrome and a cubital tunnel condition.

Appellant submitted additional medical evidence, including September 19 and 30, 2019

reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of 

bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent 

ulnar nerve subluxation.

By decision dated April 28, 2020, OWCP’s hearing representative affirmed the 

September 16, 2019 decision, finding that appellant failed to establish an upper extremity

impairment emanating from the cervical spine.

On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision. 

Appellant submitted additional medical evidence, including May 19 and June 4, 2020 

reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,

Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1, 

2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow 

and wrist.

On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of 

questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to 

have residuals of her accepted April 22, 2013 employment injury.

In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history 

and reported the findings of the physical examination he conducted on that date. He noted that the 

cervical compression test he conducted was negative and that she did not exhibit spasms in her 

cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia, 

cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that 
5

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral 

carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical 

spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was 

entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused

numbness, tingling, and weakness of digits four and five of the left hand, but indicated that this 

was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI. 

By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020

decision.

LEGAL PRECEDENT

The schedule award provisions of FECA10 and its implementing regulations

11 set 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, OWCP has adopted the A.M.A., Guides as 

the uniform standard applicable to all claimants.12 As of May 1, 2009, the sixth edition of the 

A.M.A., Guidesis used to calculate schedule awards.13

Neither FECA nor its implementing regulations provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.15 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a 

supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations 

where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded 

ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy 

affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve 

extremity impairment are incorporated in the Federal (FECA) Procedure Manual.16

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404.

12 Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010). 

14 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); 

Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

15 Supra note 13at Chapter 2.808.5c(3) (March 2017).

16 Supra note 13at Chapter 3.700, Exhibit 4 (January 2010).
6

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and 

reported the findings of the physical examination he conducted on that date. He noted atypical 

and equivocal medical findings without regard to any true ulnar or carpal tunnel condition. 

Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.

He indicated that she had subjective complaints of possible radicular symptoms of the upper 

extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical 

spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore, 

appellant did not have a ratable permanent impairment of the upper extremities under the sixth 

edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019 

report that she did not have a ratable permanent impairment of the upper extremities. Dr. White 

expressed his agreement with the conclusions of Dr. Kelly.17

Appellant has not submitted probative medical evidence establishing ratable permanent 

impairment of the upper extremities. The Board has held that an opinion on permanent impairment 

is of little probative value if it is not derived in accordance with the standards adopted by OWCP 

and approved by the Board as appropriate for evaluating schedule losses. 18

Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms 

of pain in her wrists and found one percent permanent impairment of each upper extremity due to 

the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A., 

Guides.

19

 However, OWCP has not accepted an employment-related wrist condition. Moreover,

Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the 

employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.

20

 In 

addition, he acknowledged in the same report that appellant had zero percent permanent 

impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted 

that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar condition, 

there was no frank neurologic evidence of either condition upon which to rate a diagnosis-based 

impairment. The Board notes that neither of these conditions has been accepted by OWCP.

The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral 

physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well17 The Board notes that Dr.Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he 

found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on 

permanent impairment.

18 See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

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

20 See supra note 19. 
7

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity 

impairment and represents the weight of the medical evidence with respect to the matter.

Appellant may request a 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 her burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 28, 2022

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