United States Department of Labor

Employees’ Compensation Appeals Board

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R.T., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OKLAHOMA CITY VA MEDICAL CENTER, 

Oklahoma City, OK, Employer

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Docket No. 22-0811

Issued: January 12, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

On May 4, 2022 appellant, through counsel, filed a timely appeal from a February 22, 2022

merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards assigned Docket No. 22-0811.

On June 26, 1996 appellant, then a 39-year-old vascular laboratory technician, filed an 

occupational disease claim (Form CA-2) alleging that on June 14, 1996 she first realized that her 

right arm, hand, and wrist severe pain, swelling, numbness, and tingling were causally related to 

factors of her federal employment. The record reveals that OWCP accepted the claim for bilateral 

cubital tunnel syndrome (lesion of the ulnar nerve), bilateral elbow and forearm sprain, bilateral 

foreign body granuloma of the muscle, carbuncle of the right upper arm and forearm, and bilateral 

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

benign neoplasm of the skin. It authorized right carpal tunnel release surgeries, which were 

performed in 1996 and 1998. 

By decision dated May 5, 2009, OWCP denied appellant’s schedule award claim. It found 

that she had not submitted any medical evidence establishing a permanent loss of use of a member 

or function of the body listed under 5 U.S.C. § 8107 or 20 C.F.R. § 10.404.

In a report dated September 29, 2009, Dr. John W. Ellis, a Board-certified family medicine

specialist, found that appellant had 16 percent right upper extremity permanent impairment and 6

percent left upper extremity permanent impairment pursuant to the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 He

rated her permanent impairment based on a diagnosis of right ulnar nerve entrapment with 

decreased elbow range of motion (ROM) and left cubital tunnel entrapment syndrome.

3

On November 4, 2009 OWCP’s hearing representative affirmed the May 5, 2009 schedule 

award decision, as modified. She noted that, by decision dated September 19, 2001, OWCP had 

previously granted appellant a schedule award for six percent right upper extremity permanent 

impairment and four percent left upper extremity permanent impairment. However, the hearing 

representative found that the appellant had not established entitlement to an increased schedule 

award.

On December 14, 2009 OWCP forwarded Dr. Ellis’ report to Dr. H. Mobley, serving as an 

OWCP district medical adviser (DMA), for review. In a report dated January 4, 2010,

Dr. Arthurs S. Harris, Board-certified orthopedic surgeon, based on his review of the evidence, 

determined that appellant was entitled to an additional 10 percent right upper extremity schedule 

award and an additional 1 percent left upper extremity schedule award.

By decision dated January 8, 2010, OWCP vacated the prior May 5 and November 4, 2009 

schedule award decisions and remanded the case for a de novo decision regarding appellant’s

entitlement to an additional schedule award. 

By decision dated January 19, 2010, OWCP granted appellant a schedule award for an 

additional 10 percent permanent impairment of the right upper extremity, for a total of 16 percent 

right upper extremity permanent impairment, and an additional 1 percent permanent impairment 

of the left upper extremity, for a total of 5 percent left upper extremity permanent impairment. 

In a report dated April 16, 2020, Dr. M. Stephen Wilson, a Board-certified physiatrist, 

found that appellant had nine percent left upper extremity permanent impairment pursuant to the 

A.M.A., Guides. He rated her permanent impairment based on a diagnosis of left cubital tunnel 

syndrome requiring release.4

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

3 Table 15-23, Entrapment/Compression Neuropathy Impairment, A.M.A., Guides 449 (6th ed. 2009).

4

Id.
3

On May 10, 2021 appellant filed a claim for compensation (Form CA-7) for an increased 

schedule award. 

On July 14, 2021 OWCP forwarded Dr. Wilson’s report to Dr. Harris, serving as a DMA, 

for review. In a report dated July 15, 2021, Dr. Harris noted that ROM was not applicable to the 

accepted diagnosis. Based on his review of the evidence, he determined that appellant was not 

entitled to an additional schedule award for an increased left upper extremity permanent 

impairment. 

By decision dated August 12, 2021, OWCP denied appellant’s claim for an increased 

schedule award. 

On August 18, 2021 appellant, through counsel, requested a telephonic hearing, which was 

held on December 8, 2021. 

By decision dated February 22, 2022, OWCP’s hearing representative affirmed the 

August 12, 2021 decision. 

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

decision.

The record submitted to the Board is incomplete. OWCP’s decision dated September 19, 

2001 granting appellant a schedule award for six percent right upper extremity permanent 

impairment and four percent left upper extremity permanent impairment is missing from the 

record. Also missing are the reports which served as the basisfor the September 19, 2001 schedule 

award decision, the decision(s) noting the conditions OWCP had accepted, and the initial claim 

form. As the issue before the Board is whether appellant has met her burden of proof to establish 

a greater than five percent impairment of the left upper extremity, for which she previously 

received schedule award compensation, the missing decisions and reports that the formed the basis

for her prior schedule award are relevant to interpreting the medical evidence of record.

Because the record as transmitted to the Board is incomplete and would not permit an 

informed adjudication of the case,5the Board is unable to properly consider and decide appellant’s 

claim. The case, therefore, is remanded to OWCP for reconstruction and proper assemblage of the 

record.

6

 After such further development as deemed necessary, OWCP shall issue a de novo

decision on appellant’s claim for an increased schedule award for the left upper extremity. 

Accordingly,

5

See E.G., Order Remanding Case, Docket No. 20-1398 (issued February 2, 2022); G.B., Order Remanding Case, 

Docket No. 20-0236 (issued May 26, 2020); H.C.,Docket No. 19-1976 (issued May26, 2020);D.H., Docket No. 17-

0224 (issued August 16, 2018).

6

Id.
4

IT IS HEREBY ORDERED THAT the February 22, 2022 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: January 12, 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