United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, NEWARK POST 

OFFICE, Newark, NJ, Employer

__________________________________________

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Docket No. 23-0439

Issued: September 18, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 9, 2023 appellant, through counsel, filed a timely appeal from an August 31, 

2022 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 permanent 

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

FACTUAL HISTORY

On November 11, 1993 appellant, then a 34-year-old letter sorting machine clerk, filed an

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

to factors of her federal employment, including continuously keying the letter sorting machine 

while at work. She noted that she first became aware of her condition on April 13, 1993 and first 

realized its relationship to her federal employment on July 6, 1993. On April 12, 1994 OWCP 

accepted appellant’s claim for right carpal tunnel syndrome.

3

On September 14, 2021 appellant filed a claim for compensation (Form CA-7) for a 

schedule award.

In support of her claim, appellant submitted a May 26, 2021 impairment evaluation report 

by Dr. Albert Johnson, a Board-certified neurologist, who reviewed her medical records and 

recounted her current complaints of right hand pain and stiffness. Dr. Johnson noted that an 

electromyogram and nerve conduction velocity (EMG/NCV) study of the upper extremities dated 

January 25, 1995,revealed right carpal tunnel syndrome. Physical examination of appellant’s right 

wrist revealed range of motion (three times) supination of 90 degrees, 90 degrees, 90 degrees;

pronation of 90 degrees, 90 degrees, 90 degrees; ulnar deviation of 35 degrees, 35 degrees, 35 

degrees; radial deviation of 25 degrees, 25 degrees, 25 degrees; dorsiflexion of 90 degrees, 90 

degrees, 90 degrees; and palmar flexion of 90 degrees, 90 degrees, 90 degrees. Dr. Johnson noted 

all fingers cascade normally and touch the distal palmar crease, she was able to touch the tip of the 

thumb to all four digits of the distal palmar crease at the periphery, thenar atrophy was present, 

symmetrical gross power of adductor and abductors, symmetrical thenar and hyperthenar function, 

negative Tinel’s and Phalen’s sign, and intact Semmes-Weinstein monofilament testing. He

diagnosed repetitive occupational syndrome producing strain and sprain of lumbar spine, disc 

bulge at L4-L5 and L5-S1, subligamentous disc herniation at L5-S1, sprain/strain of the left hip, 

aggravation of underlying degenerative arthritis, repetitive occupational syndrome with strain and 

sprain of right wrist, and right carpal tunnel syndrome. Dr. Johnson opined that the cumulative 

and repetitive occupational trauma sustained by the April 13, 1993 employment injury, was the 

competent producing factors for the claimant’s subjective and objective findings. 

Referencing the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment(A.M.A., Guides),4Dr. Johnsonutilized the diagnosis-based 

impairment (DBI) rating method for appellant’s entrapment neuropathy of the right median nerve 

at the wrist under Table 15-23 (Entrapment/Compression Neuropathy Impairment), page 449. He 

3 On May27, 1997 OWCP proposed to terminate appellant’s wage-loss compensation and medical benefits because 

her April 13, 1993 employment injury had resolved. By decision dated July 21, 1997, it finalized the termination of 

appellant’s wage-loss compensation and medical benefits, effective July 17, 1997.

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

assigned a grade modifier for functional history (GMFH) of 3, a grade modifier for physical 

examination (GMPE) of 3, and a grade modifier for clinical studies (GMCS) of 1. Dr. Johnson

calculated that appellant had five percent permanent impairment of the right upper extremity. He

reported that appellant reached maximum medical improvement (MMI) on May 26, 2021.

OWCP received additional evidence. Dr. Bhudev Sharma, a specialist in internal medicine 

and cardiology, treated appellant on February 21, 1994 for right wrist and hand pain. Appellant 

reported being treated by an orthopedist who diagnosed carpal tunnel syndrome based on nerve 

conduction studies that showed mild neuropathy. She continued light-duty work.

An October 12, 1994 EMG/NCV study revealed “somewhat prolonged distal median 

sensory latencies, consistent with mild carpal tunnel syndrome.” An EMG/NCV study dated 

January 25, 1995 revealed “worsening carpal tunnel syndrome (more prolonged distal median 

sensory latencies compared to 10/12/94 study).” An October 11, 1996 EMG/NCV study was 

normal and revealed no electrodiagnostic evidence of carpal tunnel syndrome or peripheral 

neuropathy in the upper extremities. 

Dr. Smita Modi, a Board-certified neurologist, treated appellant on January 26, March 17,

March 31, November 8, November 16, 1995, for pain, paresthesia, and numbness along her ring 

and little finger of both hands present since September 21, 1994. She noted that appellant’s

electrodiagnostic studies confirmed carpal tunnel syndrome and prescribed a splint, physical 

therapy, and continued disability from work. On July 17, 1997 Dr. Modi returned appellant to 

work with restrictions.

On March 12 and 24, 1997 Dr. Bilal A. Mian, a Board-certified neurologist, diagnosed 

cervical sprain/strain, chronic radiculopathy, herniated nucleus pulposus at C5-6, and possible 

depression. He noted appellant’s complaints of numbness, weakness, and paresthesia were 

generalized and very vague, and opined that her symptoms may be caused by a cervical injury and 

functional overlay. Dr. Mian noted the neurological examination was within normal limits except 

subjective complaints of sensory loss that did not follow any particular pattern of a nerve or root, 

reflexes were intact, no unusual wasting was present, and Tinel’s sign was negative. He further 

noted that the EMG/NCV studies were unremarkable and fell within normal limits including distal 

latencies.

On January 12, 2022 OWCP routed Dr. Johnson’s May 26, 2021 report, a statement of 

accepted facts (SOAF), and the case file to Dr. David J. Slutsky, a Board-certified orthopedist,

serving as OWCP’s district medical adviser (DMA), for review and a determination of permanent 

impairment of appellant’s upper extremity under the A.M.A., Guides, and her date of MMI. It 

requested that the DMA, review Dr. Johnson’s May 26, 2021 report and explain whether he agreed 

with his findings.

In a report dated February 1, 2022, the DMA, Dr. Slutsky, indicated that he reviewed the 

SOAF and the medical record. He referred to the range of motion (ROM) method of the A.M.A., 

Guides,

5 he utilized Table 15-32, Table 15-35, and Table 15-36 to determine that she had zero 

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

percent permanent impairment of the right upper extremity due to limited ROM of the right wrist. 6 

The DMA related that her right carpal tunnel impairment was rated under the DBI method for 

nonspecific wrist pain as her right median nerve measurements did not meet the criteria for 

measurement under Table 15-23, page 449 of the A.M.A., Guides for entrapment compression 

neuropathy. Utilizing Table 15-3, page 395, he identified the class of diagnosis (CDX) for the 

diagnosis of nonspecific wrist pain as a Class 1 impairment. The DMA assigned a GMFH of 1, in 

accordance with Table 15-7, page 406, as appellant had complaints of daily wrist pain and no 

QuickDASH score. He found that a GMPE and a GMCS were not applicable. The DMA utilized 

the net adjustment formula, (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX) = -1, which 

resulted in grade A, or zero percent permanent impairment of the right upper extremity. He 

disagreed with Dr. Johnson’s impairment rating provided on May 26, 2021 noting that he 

improperly rated appellant pursuant to Table 15-23, page 449 of the A.M.A., Guides for 

entrapment compression neuropathy. The DMA noted that the EMG/NCV studies dated 

October 12, 1994 and October 11, 1996 were negative and a January 25, 1995 study revealed mild 

carpal tunnel syndrome. The DMA further stated that pursuant to the A.M.A., Guides, page 445:

“[T]he diagnosis of 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 a ratable impairment. If a nerve conduction test is not performed 

or does not meet [the] ... diagnostic criteria, there is no ratable impairment from 

the section.” 

In this instance, the three EMG/NCV studies did not meet the diagnostic criteria and 

therefore, there was no ratable impairment using this section. The DMA opined that appellant 

reached MMI on May 26, 2021.

By decision dated February 14, 2022, OWCP denied appellant’s schedule award claim.

On February 22, 2022 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

June 21, 2022.

By decision dated August 31, 2022, OWCP’s hearing representative affirmed the 

February 14, 2022 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA7 and its implementing regulations8 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. For consistent 

results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., 

6 A.M.A., Guides 473, Table 15-32; 477, Table 15-35; 477, Table 15-36.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.
5

Guides as the uniform standard applicable to all claimants and the Board has concurred in such 

adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.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 modifiers levels (ranging from zero to four) are described for the categories of 

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 based on functional scale, an assessment of impact on 

daily living activities.12

In addressing upper extremity impairments, the sixth edition requires identification of the 

CDX, which is then adjusted by GMFH, GMPE, and GMCS.13 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides in pertinent part:

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guidesidentify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)15

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allows for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE [claims examiner]. If the medical evidence 

9

Id. at § 10.404(a); see also T.T.,Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB 

139 (2002).

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

2.808.5a (March 2017);see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010).

11 A.M.A., Guides (6th ed. 2009) at 449.

12 Id. at 448-49.

13 Id. at 383-492.

14 Id. at 411.

15 FECA Bulletin No. 17-06 (issued May 8, 2017).
6

of record is [in]sufficient for the DMA to render a rating on ROM where allowed, 

the DMA should advise as to the medical evidence necessary to complete the rating. 

However, the DMA should still render an impairment rating using the DBI method, 

if possible, given the available evidence.”

16

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

should be routed to its 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.17

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 May 26, 2021 report, Dr. Johnson, appellant’s attending orthopedist, determined that 

appellant had five percent permanent impairment of the right upper extremity due to her accepted 

right carpal tunnel syndrome. He utilized the DBI rating method for appellant’s entrapment 

neuropathy of the right median nerve at the wrist and found that, under Table 15-23 page 449, she 

had a GMFH of 3, a grade GMPE of 3, and a GMCS of 1. Dr. Johnson calculated that appellant 

had five percent permanent impairment of the right upper extremity. 

In a February 1, 2022 report, the DMA, Dr. Slutsky,reviewed Dr. Johnson’s May 26, 2021

report and disagreed with his finding that appellant had five percent permanent impairment of the 

right upper extremity for carpal tunnel syndrome. He noted that Dr. Johnson improperly rated 

appellant pursuant to Table 15-23, for entrapment compression neuropathy despite the fact that 

her right median nerve measurements did not meet the criteria for measurement under Table 15-

23, page 449 of the A.M.A., Guides. The DMA specifically noted that the EMG/NCV studies did 

not yield findings sufficient to meet the criteria set forth in the A.M.A., Guides at Appendix 15-B 

on page 445 for rating an impairment due to entrapment/compression neuropathy. He noted that 

if a nerve conduction test is not performed or does not meet the diagnostic criteria there is no 

ratable impairment from this section. The DMA utilized Table 15-3 (Wrist Regional Grid), page 

395, and noted the CDX for nonspecific wrist pain was a Class 1 impairment. He assigned a

GMFH of 1, and noted that a GMPE and GMCS were not applicable. The DMA applied the net 

adjusted formula, which resulted in 0 percent permanent impairment of the right upper extremity. 

The Board finds that OWCP properly found that the February 1, 2022 opinion by the DMA,

Dr. Slutsky, constituted the weight of the medical evidence.18 The DMA properly applied the 

appropriate tables and grading schemes of the A.M.A., Guides based on Dr. Johnson’s clinical and 

physical examination findings. There is no probative medical evidence of record demonstrating 

16 Id.

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

2.808.5(a) (March 2017).

18 K.J., Docket No. 19-0901 (issued December 6, 2019).
7

impairment. As such, appellant has not established permanent impairment of a scheduled member 

or function of the body, warranting a schedule award.19

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

scheduled member or function of the body causally related to the accepted employment injury, the 

Board finds that appellant has not met her burden of proof. 

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 permanent 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 August 31, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 18, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

19 Id.