United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, ROSELAND POST 

OFFICE, Chicago, IL, Employer

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Docket No. 21-1403

Issued: June 6, 2022

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 18, 2021 appellant filed a timely appeal from a March 25, 2021 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. 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s March25, 2021 decision was September 21, 2021. 

Because using the September 23, 2021 date of receipt would result in the loss of appeal rights, the date of the postmark

is considered the date of filing. The date of the U.S. Postal Service postmark is September 18, 2021, rendering the 

appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

2

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of bilateral upper extremities, warranting a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

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

follows.

On November 14, 1985 appellant, then a 28-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging bilateral wrist injuries. OWCP accepted the claim for 

de Quervain’s tenosynovitis of the right wrist and right radial tenosynovitis. It subsequently 

expanded the acceptance of appellant’s claim to include bilateral carpal tunnel syndrome.4

Under OWCP File No. xxxxxx862, on June 20, 2008 appellant filed a claim for 

compensation (Form CA-7) for a schedule award.

On June 25, 2008 OWCP requested that she submit a permanent impairment evaluation 

from her physician addressing the extent of any employment-related permanent impairment using 

the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (A.M.A., Guides) then in effect. 

Appellant provided a July 14, 2008 impairment evaluation by Dr. Samuel J. Chmell, an 

attending Board-certified orthopedic surgeon, utilizing the fifth edition of the A.M.A., Guides.

5

Following development of the medical evidence, OWCP denied the claim, by decisions 

dated August 14, 2014 and April 17, 2015, based on the opinion of Dr. Jaroslaw Dzwinyk, a 

Board-certified orthopedic surgeon and impartial medical examiner, who found no permanent 

impairment of either upper extremity in his March 26, 2012 and April 8, 2014 reports.

3 Order Remanding Case, Docket No. 20-0838 (issued February 24, 2021); Docket No. 17-1800 (issued May25, 

2018); Docket No. 15-1286 (issued December 14, 2015); Docket No. 10-2126 (issued July 5, 2011).

4 OWCP assigned the present claim OWCP File No. xxxxxx055. Under OWCP File No. xxxxxx273, on 

September 11, 1978, appellant filed a traumatic injury claim (Form CA-1) alleging that she had sustained a right 

shoulder injury on September 8, 1978 when she fell out of a chair while she was performing her federal employment 

duties. OWCP accepted that claim for contusion of the right shoulder and upper arm, contusion of the face, scalp, 

neck, and headache. Under OWCP File No. xxxxxx862, appellant filed a noccupational disease claim (Form CA-2) 

on August 23, 2005 alleging that she sustained a right rotator cuff tear, herniated cervical disc with degenerative disc 

disease, and degenerative lumbar disease. OWCP accepted this claim for herniated cervical disc at C5-6, right rotator 

cuff tear, and lumbar strain. It subsequently expanded acceptance of appellant’s claim to include bilateral aggravation 

of osteoarthritis of the hips. Appellant’s claims have been administratively combined by OWCP with the present 

claim,OWCP File No. xxxxxx055,serving as the master file. 

5 A.M.A., Guides(5th ed. 2001).
3

Appellant then appealed to the Board. By decision dated December 14, 2015,6the Board 

affirmed OWCP’s April 17, 2015 decision.

On December 6, 2016 appellant requested reconsideration, contending that OWCP did not 

consider neurologic impairment to her upper extremities originating in the spine.

By decision dated February 27, 2017, OWCP denied modification of its prior decision. 

Appellant again appealed to the Board.

During the pendency of the appeal, OWCP received additional medical reports from

Dr. Chmell dated March 11, 2017 through March 22, 2018, opining that the accepted bilateral 

carpal tunnel syndrome and right radial tenosynovitis remained active and disabling. In his 

March 22, 2018 report, Dr. Chmell noted that she complained of cervical radiculopathy with 

radiation into both upper extremities.

By decision dated May 25, 2018,7the Board affirmed OWCP’s February 27, 2017 

decision, as Dr. Chmell had not provided an updated impairment rating in accordance with the 

sixth edition of the A.M.A., Guides.

8

On May 17, 2019 appellant requested reconsideration. She contended that the medical 

evidence of record established her entitlement to a schedule award for upper extremity impairment 

due to a complete right rotator cuff tear and herniated cervical disc accepted under OWCP File 

No. xxxxxx862, bilateral carpal tunnel syndrome and right radial styloid tenosynovitis accepted 

under OWCP File No. xxxxxx055. Appellant alleged that OWCP had not considered all of the 

accepted conditions that Dr. Dzwinyk ignored imaging and electrodiagnostic studies in his 

March 26, 2012 report, and that the Board did not consider her argument regarding the evaluation 

of cervical radiculopathy under the A.M.A., Guides in its May 1, 2018 decision.

In reports dated March 21, 2019, Dr. Chmell noted continued pain, paresthesias, and 

weakness in both hands. In a letter dated April 4, 2019, he contended that OWCP had not 

requested nor authorized an impairment rating regarding appellant’s accepted bilateral carpal 

tunnel syndrome.

By decision dated September 4, 2019, OWCP denied appellant’s request for 

reconsideration as Dr. Chmell’s March 21 and April 4, 2019 reports were insufficient to warrant a 

review of the merits of the claim. Appellant subsequently appealed to the Board.

During the pendency of the appeal, OWCP received additional medical reports by

Dr. Chmell. In an April 29, 2020 report, Dr. Chmell opined that appellant remained totally 

disabled for work due to her accepted bilateral carpal tunnel syndrome, radial styloid tenosynovitis, 

6 Docket No. 15-1286 (issued December 14, 2015).

7 Docket No. 17-1800 (issued May 25, 2018).

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

cervical disc displacement, thoracic disc displacement, lumbar disc displacement, right rotator cuff 

rupture.

In a May 7, 2020 report, Dr. Chmell opined that appellant remained totally disabled from 

work due to bilateral carpal tunnel syndrome and right radial styloid tenosynovitis accepted under 

the present claim, OWCP File No. xxxxxx055. 

In a report dated May 15, 2020, Dr. Chmell noted findings of muscle spasm, tenderness, 

and limited motion throughout the spine, effusion and tenderness of both knees, and diminished 

strength and sensation in all extremities. He opined that bilateral carpal tunnel syndrome, radial 

styloid tenosynovitis, and de Quervain’s tenosynovitis accepted under the present claim, and 

additional conditions accepted under OWCP File Nos. xxxxxx089 and xxxxxx862, totally and 

permanently disabled appellant from gainful employment.

In a July 21, 2020 report, Dr. Chmell opined that appellant continued to be totally disabled 

from work due to her accepted conditions.

By order dated February 24, 2021,9the Board set aside the September 4, 2019 OWCP 

decision and remanded the case to OWCP for consideration of Dr. Chmell’s reports dated 

March 11, 2017 through March 22, 2018, to be followed by issuance of a de novo decision.

By decision dated March 25, 2021, OWCP denied modification, finding that Dr. Chmell’s 

reports were irrelevant to the schedule award issue as he had not provided an impairment rating in 

accordance with the sixth edition of the A.M.A., Guides.

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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. 10 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.11 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).12 The Board has approved the 

9 Order Remanding Case, Docket No. 20-0838 (issued February 24, 2021).

10 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

11 Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January2010). Id. at Chapter 2.808.5a (March 2017).
5

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.13

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

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

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.14

ANALYSIS

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

impairment of her bilateral upper extremities, warranting a schedule award.

On June 20, 2008 appellant filed a claim for a schedule award. On June 25, 2008 OWCP 

requested that appellant submit a permanent impairment evaluation from her physician addressing 

the extent of any employment-related permanent impairment using the fifth edition of the A.M.A., 

Guides. While Dr. Chmell provided a July 14, 2008 evaluation of the bilateral upper extremities 

utilizing the fifth edition of the A.M.A., Guides, he has not provided an updated evaluation 

utilizing the sixth edition of the A.M.A., Guides, as requested.

As noted above, appellant must submit an evaluation from a physician that includes a 

description of impairment in sufficient detail so that the claims examiner and others reviewing the 

file will be able to clearly visualize the impairment with its resulting restrictions and limitations.15 

As the medical evidence of record is insufficient to establish permanent impairment of her bilateral 

upper extremities due to her accepted conditions, the Board finds that appellant has not met her 

burden of proof.16

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 her burden of proof to establish permanent 

impairment of her bilateral upper extremities, warranting a schedule award. 

13 J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

14 Supra note 12at Chapter 2.808.6(f) (March 2017).

15 J.P., Docket No. 21-0801 (issued December 22, 2021); see D.J., Docket No. 20-0017 (issued August 31, 2021); 

B.V., Docket No. 17-0656 (issued March 13, 2018); C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket 

No. 13-1592 (issued January 7, 2014).

16 J.P., id.
6

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’Compensation 

Programs dated March 25, 2021 is affirmed.

Issued: June 6, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board