United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Little Rock, AR, Employer 

__________________________________________ 

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Docket No. 14-1592 

Issued: November 10, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 8, 2014 appellant filed a timely appeal from a February 25, 2014 merit decision 

and a June 2, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant established more than a one percent impairment of 

his left arm; and (2) whether OWCP properly refused to reopen his case for further review of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

On appeal, appellant contends that OWCP improperly utilized the report of the second 

opinion physician who did not use the functional capacity evaluation, did not consider all of his 

issues and did not give him a fair assessment. He contends that it sent him to a physician that 

they have contracted to lower or undermine the rating of the treating physician. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

On December 21, 2012 appellant, then a 44-year-old mail handler, filed a traumatic 

injury claim alleging a contusion and bruise of his left wrist during the course of his federal 

employment. OWCP accepted his claim for contusion of the left wrist and crushing injury of left 

hand and left wrist. 

In an April 24, 2013 report, Dr. Richard S. Wirges, appellant’s treating Board-certified 

surgeon, noted that appellant was four months status post crush injury to the left hand and that 

his main pain was over the mid portion of the third metacarpal bone and the third 

metacarpophalangeal joint area. On physical examination, he noted that there was no swelling, 

bruising, signs of reflex sympathetic dystrophy or complex regional pain syndrome. Dr. Wirges 

noted decent range of motion, but residual stiffness and soreness. He indicated that appellant 

was at maximum medical improvement and was ready for an impairment rating as well as a 

functional capacity evaluation. In a June 25, 2013 report, Dr. Wirges considered appellant’s 

permanent impairment under the fourth edition of the A.M.A., Guides to the Evaluation of 

Permanent Impairment (1993) (A.M.A., Guides) and determined that appellant had a four 

percent left upper extremity impairment based on loss of wrist flexion and extension. 

On August 15, 2013 appellant filed a claim for a schedule award. 

By letter dated August 23, 2013, OWCP advised appellant that his physician’s report was 

insufficient and asked that he provide a new medical report in support of his claim for a schedule 

award. It noted that the opinion should utilize the sixth edition of the A.M.A., Guides, state 

when he reached maximum medical improvement, provide the diagnosis on which the 

impairment is based and a detailed description of the permanent impairment. 

In a July 8, 2013 report, Dr. Wirges provided an impairment rating pursuant to the sixth 

edition of the A.M.A., Guides. He noted that appellant’s impairment is based mainly on the loss 

of motion of his wrist with 55 degrees of wrist extension and 40 degrees of wrist flexion. Using 

the wrist regional grid, Dr. Wirges noted that appellant had wrist pain, post-acute injury/crush 

injury with healed minor soft tissue skin injuries. He noted a history of painful injury and 

residual symptoms with consistent objective findings at maximum medical improvement, which 

would fall into class 1.2

 Dr. Wirges noted that appellant had pain and symptoms with strenuous 

and vigorous activities, but that medication controlled those symptoms and that appellant was 

able to perform self-care activities independently. He opined that appellant is a class 1D based 

on a grade modifier 1 for Functional History (GMFH), a grade modifier 1 for Physical 

Examination (GMPE) and grade modifier 1 for Clinical Studies (GMCS). Dr. Wirges then 

concluded that as the impairment range for the upper extremity was between 1 percent and 13 

percent, appellant had 8 percent wrist upper extremity impairment. 

OWCP sent appellant’s file to its medical adviser, who noted that range of motion was 

not reported in all applicable planes. Dr. Zimmerman, the medical adviser, stated that the report 

seemed to suggest a rating based on a grid diagnosis without citing the history or examination 

 2

 Although Dr. Wirges does not specify the exact table of the A.M.A., Guides, he appears to be using Table 15-3 

on page 395 of the sixth edition of the A.M.A., Guides. 
3

findings that were actually considered near the maximum medical improvement date. He opined 

that the physician chose unsupported grade modifiers to process the rating. Moreover, 

Dr. Zimmerman noted for a crush injury, there is no grid diagnosis that can be used to offer the 

eight percent impairment rating. He noted that appellant was eligible for consideration of 

impairment rating due to the accepted conditions of contusion of the left wrist. Accordingly, 

Dr. Zimmerman recommended referral for further consideration under the sixth edition of the 

A.M.A., Guides and particularly noted that the rating shall use the instructions of Chapter 15 or 

in rare instances, Chapter 3. 

OWCP sent appellant to Dr. W. Brent Sprinkle, an osteopath, for a second opinion 

evaluation. In a December 31, 2013 report, Dr. Sprinkle assessed appellant with left wrist 

contusion and crush injury. He noted, in reviewing prior evaluations, that the functional capacity 

evaluation was not available for review so it was unclear how this was used to determine his 

impairment rating. Dr. Sprinkle noted that based on Table 15-3 of the sixth edition of the 

A.M.A., Guides, for a wrist contusion or crush injury there is a class 1 impairment.3

 He noted 

that appellant did have some residual symptoms but there were no consistent objective findings, 

rendering a default rating of one percent. Dr. Sprinkle noted a functional history of grade 1 since 

appellant was able to perform self-care activities independently and a clinical studies grade 1 

secondary to imaging studies showing only mild pathology. He allowed a physical examination 

grade 1 secondary to minimal palpatory findings of tenderness and mild decrease in maximum 

wrist flexion. Dr. Sprinkle noted that the net adjustment formula calculated out to zero, 

rendering an impairment of one percent to the left upper extremity. 

OWCP’s medical adviser reviewed Dr. Sprinkle’s report on January 7, 2014 and agreed 

with the one percent impairment of the left arm was acceptable based on the A.M.A., Guides. 

By decision dated February 25, 2014, OWCP issued a schedule award for one percent 

impairment of the left arm. 

By letter dated March 5, 2014, appellant requested reconsideration. He contended that 

Dr. Sprinkle did not conduct a thorough examination and did not consider the functional capacity 

evaluation. Appellant argued that Dr. Wirges conducted a more thorough examination. He 

contended that Dr. Wirges gave him an eight percent impairment rating based on his findings and 

the results of the functional capacity evaluation. Appellant also indicated that Dr. Wirges stated 

that he had an additional two percent impairment of his ring finger in addition to his wrist. In 

support of his reconsideration request, he resubmitted the prior reports by Dr. Wirges and a copy 

of the May 14, 2013 functional capacity evaluation. 

In a decision dated June 2, 2014, OWCP denied appellant’s request for reconsideration 

without conducting a merit review. 

 3

 A.M.A., Guides 395. 
4

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA4 and its implementing regulations5 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, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform stands applicable to all 

claimants. OWCP evaluates the degree of permanent impairment according to the standards set 

forth in the specified edition of the A.M.A., Guides.

6

 The A.M.A., Guides has been adopted by 

the implementing regulations as the appropriate standard for evaluating schedule losses.7 For 

impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician 

evaluating per impairment to use the sixth edition.8

The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is 

then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9

 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 The sixth edition of the 

A.M.A., Guides also provides that range of motion may be selected as an alternative approach in 

rating impairment under certain circumstances. A rating that is calculated using range of motion 

may not be combined with a diagnosis-based impairment and stands alone as a rating.11

ANALYSIS -- ISSUE 1 

The Board finds that OWCP properly determined that appellant had a one percent 

impairment of his left arm. For schedule award ratings calculated after May 1, 2009, the sixth 

edition of the A.M.A., Guides applies.12 As Dr. Wirges used the sixth edition of the A.M.A., 

Guides in his June 25, 2013 report, this report was of limited probative value. Although he later 

attempted to apply the sixth edition of the A.M.A., Guides in his July 8, 2013 report, he did not 

adequately support his conclusion of eight percent impairment of the left arm. Dr. Wirges 

appears to be using the Wrist Regional Grid found at Table 15-3 of the A.M.A., Guides. He 

discusses class impairment and grade modifiers. Dr. Wirges’ conclusion that appellant has an 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. 

7 See id.; Jacqueline S. Harris, 54 ECAB 139 (2002). 

8

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

Chapter 2.808.6.a (January 2010). 

9

 A.M.A., Guides 494-531. 

10 Id. at 521. 

11 L.B., Docket No. 12-910 (issued October 5, 2012). 

12 A.W., Docket No. 13-621 (issued July 22, 2013). 
5

eight percent impairment of the left arm is not supported by the Table 15-3. It appears that he, 

after discussing the correct criteria to be applied, simply noted that for all wrist injuries there is a 

range of 1 percent to 13 percent impairment of the upper extremity allowed and he simply took 

the average. It is necessary, however, to address the individual impairment classes and not just 

take an average between the extremes. Therefore, the Board finds that Dr. Wirges did not 

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

Accordingly, in order to determine the extent and degree of any employment-related 

permanent impairment, OWCP properly referred appellant to Dr. Sprinkle for a second opinion 

evaluation. In reviewing his report, its medical adviser noted that Dr. Sprinkle correctly applied 

the sixth edition of the A.M.A., Guides. Dr. Sprinkle noted that appellant had a class 1 

impairment. In reaching this conclusion, he indicated that appellant did have some residual 

symptoms but that they were not consistent objective findings so this would be a default rating of 

one percent. Dr. Sprinkle then allowed a grade modifier 1 for functional history since appellant 

was able to perform self-care activities, a grade 1 modifier for clinical studies secondary to 

imaging studies showing mild pathology and a physical examination modifier of grade 1 

secondary to minimal palpatory findings. He noted that the net adjustment formula calculated to 

equal zero, so he concluded that appellant had an impairment of one percent to the left extremity. 

As Dr. Sprinkle appropriately applied the sixth edition of the A.M.A., Guides, the Board finds 

that appellant had a one percent permanent impairment of the left arm. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.14 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her 

application for review within one year of the date of that decision.15 When a claimant fails to 

meet one of the above standards, OWCP will deny the application for reconsideration without 

reopening the case for review on the merits.16 

 13 5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or 

against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

14 20 C.F.R. § 10.606(b)(3). 

15 Id. at § 10.607(a). 

16 Id. at § 10.608(b). 
6

ANALYSIS -- ISSUE 2 

On reconsideration, appellant resubmitted medical reports by Dr. Wirges that were 

already in evidence and previously considered by OWCP. Submitting evidence that repeats or 

duplicates information already of record does not constitute a basis for reopening a claim.17 The 

work capacity evaluation was new evidence, but it was not relevant to the schedule award issue. 

A claimant may be entitled to a merit review by submitting pertinent new and relevant evidence, 

but appellant did not submit any evidence in this case which was both new and relevant.18

The Board finds that appellant did not meet any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific 

point of law, advance a relevant legal argument not previously considered by OWCP or submit 

relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, 

OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant has not established that he had greater than a one percent 

impairment of his left arm, for which he had received a schedule award. The Board further finds 

that OWCP properly refused to reopen appellant’s case for further review of the merits of his 

claim under 5 U.S.C. § 8128(a). 

 17 K.M., Docket No. 13-1459 (issued December 5, 2013). 

18 G.T., Docket No. 14-859 (issued August 13, 2014). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated June 2 and February 25, 2014 are affirmed. 

Issued: November 10, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board