United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, FOOD & DRUG 

ADMINISTRATION, Jamaica, NY, Employer 

__________________________________________ 

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Docket No. 15-0383 

Issued: July 1, 2015 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On December 9, 2014 appellant, through counsel, filed a timely appeal from a 

November 7, 2014 merit 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. 

ISSUE 

The issue is whether appellant established that he has more than one percent impairment 

of his left upper extremity for which he received a schedule award. 

On appeal, appellant, through counsel, contends that he has established a schedule award 

for 25 percent impairment of his left upper extremity based on the report of his treating 

physician. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 25, 2011 appellant, then a 67-year-old microbiologist, filed a traumatic injury 

claim alleging that on April 20, 2011 he tripped and fell and dislocated his forearm bones and 

fractured his elbow joint. A closed treatment of the left elbow was performed on the date of 

injury. On November 21, 2011 OWCP accepted appellant’s claim for dislocation of elbow and 

fracture of coronoid process of elbow. 

On May 14, 2013 appellant filed a claim for a schedule award. In support thereof, he 

submitted reports dated August 29 and September 21, 2012, wherein Dr. Nader Paksima, an 

osteopath and chief of Orthopedic Surgery at Jamaica Hospital Medical Center, noted that he 

treated appellant with a closed reduction of the elbow fracture dislocation and then closed 

treatment of this injury with follow-up x-rays, physical therapy, and monitoring. Dr. Paksima 

noted that he last saw appellant on August 29, 2012 at which time he noted range of motion to 

the left elbow from 20 to 135 degrees which lacked 20 degrees of extension. He indicated that 

appellant’s ulnar collateral ligament showed approximately 10 to 15 degrees of laxity. 

Dr. Paksima noted that the radial collateral ligament was intact, that there was crepitus to 

palpatation along the joint, that muscle strength was 5/5 for biceps and triceps, and that his nerve 

examination was intact. He further noted that x-rays showed loss of medial-sided joint space as 

well as loss of joint space on the lateral side, osteophyte formation and loose bodies around the 

elbow, and periarticular calcifications. Dr. Paksima opined that appellant was at maximum 

medical improvement. He noted that, based on Table 15-4, pages 399-400 of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th

ed. 2009), appellant had a class 2, grade D level of impairment with regard to his collateral 

ligament injury and a class 1, grade D level of impairment with regard to his elbow dislocation 

and class 1, grade D level of impairment with regard to the coronoid fracture, and a class 1, 

grade D impairment with regard to loose bodies or osteochondral lesions. Dr. Paksima stated 

that in reaching this conclusion he followed instructions given on page 383 through 390 and the 

instructions in section 15.3 of the A.M.A., Guides. 

In a February 19, 2013 addendum, Dr. Paksima opined that, pursuant to the sixth edition 

of the A.M.A., Guides, appellant had a class 2, grade D degree of impairment, which 

corresponded to 25 percent loss of use of the left upper extremity. 

On June 20, 2013 OWCP referred the case to an OWCP medical adviser. In a response 

of the same date, the medical adviser stated that he needed an addendum showing how 

Dr. Paksima arrived at the 25 percent figure. 

By letter to Dr. Paksima dated October 10, 2013, OWCP requested a supplemental report 

requesting specific information with regard to how he arrived at his conclusion that appellant had 

25 percent impairment of the left upper extremity. It advised Dr. Paksima that the report should 

include step-by-step calculations noting exact pages and tables. OWCP advised that grade 

modifiers should be used and an explanation provided with regard to net modifiers and the 

adjustment formula. 

In a December 12, 2013 letter, Dr. Paksima stated that appellant had a class 2, grade D 

degree of impairment. He stated that, while there was a range given for the class 2 degree of 
3

impairment, the subgrading system of letter D pertains to the severity of his impairment, which is 

why he picked 25 percent loss of use of the left upper extremity. Dr. Paksima referred to his 

prior report of August 29, 2012. 

On March 12, 2014 OWCP asked its medical adviser to review appellant’s claim. In a 

March 19, 2014 response, the medical adviser contended that Dr. Paksima’s report made no 

sense and that he did not believe that Dr. Paksima was familiar with the methodology of the sixth 

edition of the A.M.A., Guides. He noted that to properly apply the sixth edition of the A.M.A., 

Guides, one must pick one major diagnosis for a particular joint and use only one method that 

gives the highest value. The medical adviser also noted that one does not pick grade D 

arbitrarily, but must choose a class and then one can modify the class by using the net modifier 

adjustment formula. He recommended obtaining a second opinion by an orthopedic surgeon 

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

On June 20, 2014 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion. In a July 11, 2014 report, Dr. Askin opined that 

appellant had reached maximum medical improvement with regard to his employment injury. 

He noted that appellant’s diagnosis was coronoid process fracture with subluxation or dislocation 

of the elbow that had been treated. With regard to objective findings, Dr. Askin noted that 

appellant may have had some limitation of motion early on, but that his two elbows now have 

equal motion. He then applied the sixth edition of the A.M.A., Guides to determine appellant’s 

permanent impairment. Dr. Askin indicated that, with respect to analysis on the basis of loss of 

motion, none was relevant at the present time because appellant does have equivalent motion for 

both flexion and extension of the elbow, and pronation and supination of the forearm. Regarding 

the fracture itself, he stated that, pursuant to Table 15-4 on page 399, the residual symptoms 

pertaining to the elbow itself were minimal, so based on the fracture, appellant would have a 

class 1 Class of Diagnosis with a default consideration of three percent impairment of the upper 

extremity. As per Table 15-7 on page 406 of the A.M.A., Guides, the Functional History grade 

modifier (GMFH) would be zero, as appellant is able to exercise regularly. As per Table 15-8 on 

page 408 of the A.M.A., Guides, Dr. Askin indicated that the Physical Examination grade 

modifier (GMPE) would also be zero as there is symmetry to the opposite side. As per Table 

15-9 on page 410 of the A.M.A., Guides, the Clinical Studies grade modifier (GMCS) would be 

one as the studies confirmed the diagnosis, but the claimant had an excellent outcome. Dr. Askin 

then used the net adjustment formula on page 411 of (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX) and found (0-1) + (0-1) + (1-1) = -2. He then found that the net adjustment of -2 

translated to a grade A impairment and a final one percent impairment rating. Dr. Askin noted 

that he was not provided with any documentation that there was arthritic change secondary to 

injury. He also noted that he was provided with Dr. Paksima’s calculation of February 19, 2013 

suggesting 25 percent loss of use of the upper extremity, but that he was not provided with 

clinical documentation that corroborates that calculation. 

OWCP referred the case to a new OWCP medical adviser, and in a report dated 

October 21, 2014, the medical adviser agreed with the report of Dr. Askin, and opined that 

appellant had one percent impairment of the left upper extremity. 

By decision dated November 7, 2014, OWCP issued a schedule award for one percent 

impairment of the left upper extremity. 
4

LEGAL PRECEDENT 

The schedule award provision of FECA2 and its implementing regulations3 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 standards 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.

4

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

by the implementing regulations as the appropriate standard for evaluating schedule losses.5 For 

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

evaluating permanent impairment to use the sixth edition.6

The sixth edition requires identifying the impairment class for the diagnosed condition, 

which is then adjusted by grade modifiers based on functional history, physical examination and 

clinical studies.7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - 

CDX).8 

ANALYSIS 

OWCP accepted appellant’s claim for a dislocation of his left elbow and a fracture of the 

coronoid process of his left elbow. Appellant filed a claim for a schedule award on 

May 14, 2013. 

In support of his claim for a schedule award, appellant submitted reports by his treating 

osteopath, Dr. Paksima, who found that appellant had 25 percent impairment of the left upper 

extremity pursuant to the A.M.A., Guides. Dr. Paksima explained his conclusion only by general 

references to Table 15-4 at pages 399 to 400 of the A.M.A., Guides and pages 383 through 390 

and section 15.3 of the A.M.A., Guides. He did not sufficiently explain how he arrived at his 

rating. OWCP, at the advice of its medical adviser, asked Dr. Paksima for a supplemental report. 

In a December 12, 2013 addendum, Dr. Paksima again indicated that appellant had a class 2 

grade D degree of impairment and 25 percent impairment of his left upper extremity. However, 

he did not apply the formula as set forth in the A.M.A., Guides, did not explain how he applied 

 2

 5 U.S.C. § 8107. 

3

 20 C.F.R. § 10.404. 

4 Id. 

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

6

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

Chapter 2.808.5 (February 2013). 

7

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

8 Id. at 521. 
5

the grade modifiers to reach a grade D degree of impairment, did not provide mathematical 

calculations indicating how he calculated the 25 percent impairment, or sufficiently explain his 

calculations pursuant to the A.M.A., Guides. As such, his report was properly found to be of 

diminished probative value. 

At the suggestion of OWCP’s medical adviser, it referred appellant to Dr. Askin for a 

second opinion. Dr. Askin concluded that appellant had one percent impairment of his left upper 

extremity. He thoroughly explained his rating process. Dr. Askin noted that, pursuant to Table 

15-4 on page 399 of the A.M.A., Guides, appellant had a class 1 diagnosis based on his fracture 

with minimal residual symptoms. He then applied the grade modifiers of zero for functional 

history, zero for physical examination and one for clinical studies. Applying the formula as set 

forth in the A.M.A., Guides, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated 

(0-1) + (0-1) + (1-1) = -2. Dr. Askin then moved the grade calculation to the left two spaces and 

found that appellant had one percent impairment of the left upper extremity. The medical 

adviser agreed with Dr. Askin’s calculations. 

As Dr. Paksima did not properly apply the rating criteria of the A.M.A., Guides, OWCP 

properly relied on the reports of the second opinion physician, Dr. Askin, as well as the medical 

adviser. Dr. Askin and the medical adviser properly applied the appropriate sections of the 

A.M.A., Guides, calculated the proper diagnosis class, and applied correct grade modifiers. Both 

physicians provided a detailed discussion of how each element of the rating scheme related to 

appellant’s impairment. Therefore, OWCP decision finding one percent impairment of the left 

upper extremity was proper under the facts and circumstances of this case. There is no probative 

medical evidence establishing a greater degree of impairment.9

Appellant may request a schedule award or increased schedule award regarding the left 

upper extremity at any time, based on evidence of a new exposure or medical evidence showing 

a progression of an employment-related condition resulting in permanent impairment or 

increased impairment. 

CONCLUSION 

The Board finds that appellant has not established that he has more than one percent 

impairment of his left upper extremity for which he received a schedule award. 

 9 See W.S., Docket No. 14-1184 (issued January 8, 2015). 
6

ORDER 

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

Compensation Programs dated November 7, 2014 is affirmed. 

Issued: July 1, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board