United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.H., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Philadelphia, PA, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1388 

Issued: March 17, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 23, 2016 appellant, through counsel, filed a timely appeal from a March 23, 

2016 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 established more than seven percent right upper 

extremity permanent impairment for which she previously received a schedule award. 

FACTUAL HISTORY 

On August 13, 2013 appellant, then a 50-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on July 31, 2013 she sustained injuries to her right hand and 

fingers while in the performance of duty. She alleged that she was attempting to separate two 

containers and one fell on her right hand and fingers. OWCP accepted the claim for closed distal 

tuft fracture of the right index finger. Appellant stopped working on July 31, 2013. 

On April 23, 2015 appellant submitted a claim for compensation (Form CA-7) and 

indicated that she was claiming a schedule award. She submitted a January 29, 2015 report from 

Dr. Nicholas Diamond, an osteopath, in support of her claim. Dr. Diamond provided a history 

and results on examination, including range of motion (ROM) for the right fingers. Based on 

loss of ROM in the right index, long, and ring fingers, he opined that appellant had 15 percent 

right upper extremity permanent impairment based on the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment. 

OWCP referred appellant for a second opinion examination with Dr. Robert Smith, a 

Board-certified orthopedic surgeon. In a report dated April 25, 2014, Dr. Smith opined that 

appellant could return to full-duty work as a mail handler. Appellant returned to work and 

received wage-loss compensation through May 16, 2014. 

OWCP referred the relevant evidence to an OWCP medical adviser. In a report dated 

July 8, 2015, the medical adviser, Dr. Arnold Berman, a Board-certified orthopedic surgeon, 

opined that appellant had seven percent right upper extremity permanent impairment. He found 

that the diagnosis-based impairment (DBI) methodology was proper in this case and that 

Dr. Diamond had included digits that were not accepted as employment related. Dr. Berman 

applied Table 15-2, the digit regional grid, and indicated that appellant had 39 percent right 

index finger permanent impairment. He concluded that under Table 15-11 this resulted in seven 

percent right upper extremity permanent impairment. 

By decision dated October 21, 2015, OWCP issued a schedule award for 22.74 weeks of 

compensation commencing January 29, 2015. It described the permanent impairment as “Hand 

(Right) [eight percent], 1st Finger (Right) [seven percent].” 

On November 4, 2015 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. A hearing was held on February 17, 2016. Counsel argued that 

Dr. Diamond represented the weight of the medical evidence, or in the alternative, that a conflict 

between Dr. Diamond and Dr. Berman had been created. 

By decision dated March 23, 2016, the hearing representative modified the October 21, 

2015 decision to reflect seven percent right upper extremity permanent impairment, for 21.84 

weeks of compensation. He found the DBI evaluation method was proper, as a rating based on 
3

loss of ROM was appropriate only when no other approach was available. Dr. Berman was 

found to represent the weight of the medical evidence. 

LEGAL PRECEDENT 

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.3

 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of 

use of specified members, functions, and organs of the body.4

 FECA, however, does not specify 

the manner by which the percentage loss of a member, function, or organ shall be determined. 

To ensure consistent results and equal justice under the law, good administrative practice 

requires the use of 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.5 

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first 

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into 

the second printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).6

 The Board has approved the 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.7

ANALYSIS 

The issue on appeal is whether appellant has more than seven percent right upper 

extremity permanent impairment. Appellant submitted a January 29, 2015 report from 

Dr. Diamond opining that he had 15 percent right upper extremity permanent impairment based 

on the loss of ROM methodology for the evaluation of permanent impairment. An OWCP 

medical adviser, Dr. Berman, opined that appellant had seven percent right upper extremity 

permanent impairment, using the DBI methodology. 

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

5

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

6

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

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

7 Isidoro Rivera, 12 ECAB 348 (1961). 
4

The Board finds that this case is not in posture for decision. 

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth 

edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No 

consistent interpretation has been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.8 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.9

 In T.H., the Board concluded that OWCP physicians are 

at odds over the proper methodology for rating upper extremity impairment, having observed 

attending physicians, evaluating physicians, second opinion physicians, impartial medical 

examiners, and district medical advisers use both DBI and ROM methodologies interchangeably 

without any consistent basis. Furthermore, the Board has observed that physicians 

interchangeably cite to language in the first printing or the second printing when justifying use of 

either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the 

application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent 

results and equal justice under the law for all claimants.10 

In light of the conflicting interpretation by OWCP of the sixth edition with respect to 

upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing 

regulations and/or internal procedures, to establish a consistent method for rating upper 

extremity impairment. In order to ensure consistent results and equal justice under the law for 

cases involving upper extremity impairment, the Board will set aside the March 23, 2016 

decision. Following OWCP’s development of a consistent method for calculating permanent 

impairment for upper extremities to be applied uniformly, and such other development as may be 

deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper 

extremity schedule award. 

CONCLUSION 

The Board finds that the case is not in posture for decision with respect to an upper 

extremity permanent impairment. 

 8 T.H., Docket No. 14-0943 (issued November 25, 2016). 

9 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

10 Supra note 8.
5

ORDER 

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

Compensation Programs dated March 23, 2016 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: March 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board