United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.R., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Detroit, MI, Employer 

__________________________________________ 

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Docket No. 14-1211 

Issued: February 22, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On April 30, 2014 appellant, through counsel, filed a timely appeal from an April 4, 2014 

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 the decision. 

 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 three percent permanent 

impairment of the left upper extremity, for which she received a schedule award. 

On appeal, counsel contends that OWCP’s April 4, 2014 decision is “contrary to law and 

fact.” 

FACTUAL HISTORY 

OWCP accepted that on July 20, 2010 appellant, then a 51-year-old maintenance worker, 

sustained a fracture of the radius and ulna of the left wrist and a sprain of the left upper arm, 

shoulder and acromioclavicular (AC) joint when she tripped and fell on some plastic which had 

been left on a floor, landing on her left hand. July 21, 2010 x-rays showed an acute comminuted 

fracture of the distal radius with fracture line extending through the articular surface. 

In a September 13, 2010 report, Dr. Chenicheri Balakrishnan, an attending Boardcertified orthopedic surgeon, noted a preexisting history of bilateral chronic wrist pain requiring 

splints. 

On March 3, 2011 appellant filed a claim for a schedule award (Form CA-7). In a 

March 11, 2011 letter, OWCP advised her of the evidence needed to establish her schedule 

award claim, including a report from her attending physician evaluating permanent impairment 

under the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides). 

Following a course of physical therapy, Dr. Balakrishnan released appellant from care on 

June 6, 2011, finding that the left wrist fracture and tendinitis had resolved.3

 He found her able 

to resume full duty. Appellant returned to full duty with no restrictions on June 7, 2011. 

In support of her schedule award claim, appellant submitted an August 5, 2011 

impairment rating from Dr. William N. Grant, a Board-certified internist, who provided a history 

of injury and treatment and opined that she had attained maximum medical improvement. 

Dr. Grant related appellant’s symptoms of “constant left wrist painful paresthesias” causing 

difficulties with activities of daily living. Appellant wore a “left wrist splint and a special glove 

for support of her left wrist.” On examination, Dr. Grant found positive Tinel’s and Phalen’s 

signs. He diagnosed a closed fracture of the left radius and ulna and a left AC joint sprain. 

Referring to Table 15-23 of the A.M.A., Guides,

4

 Dr. Grant found, using the range of motion 

(ROM) method, three percent impairment for left wrist flexion limited to 30 degrees, three 

percent impairment for extension limited to 30 degrees and two percent impairment for radial 

deviation limited to 10 degrees. He added the impairments to equal 10 percent. Dr. Grant also 

assessed nine percent impairment of the left upper extremity due to a grade 3 diagnosis-based 

 3

 A May 27, 2011 magnetic resonance imaging scan of the left wrist showed a small bony density adjacent to the 

triquetrum, possible fracture fragment and small cysts and changes in the lunate, triquetrum and trapezoid. 

4

 Table 15-32, page 473 of the A.M.A., Guides is entitled “Wrist Range of Motion.” 
3

impairment (DBI) Class of Diagnosis (CDX) for entrapment/compression neuropathy at the wrist 

according to Table 15-23,5 based on appellant’s QuickDASH score of 72. He added the 9 and 10 

percent impairments to total 19 percent permanent impairment of the left upper extremity. 

On January 5, 2012 an OWCP medical adviser opined that Dr. Grant had not properly 

applied the A.M.A., Guides as he had not specified which tables he had used for each element of 

his impairment rating or fully explain his calculations. The medical adviser also stated that 

Dr. Grant’s clinical findings did not comport with the medical or factual record. 

On April 13, 2012 OWCP obtained a second opinion from Dr. Emmanuel Obianwu, a 

Board-certified orthopedic surgeon, who reviewed the medical record and a statement of 

accepted facts. Dr. Obianwu noted that appellant had diabetes mellitus and her complaints of 

pain, weakness, stiffness, and episodic numbness in the left hand and wrist. He found flexion of 

the left wrist limited to 30 degrees, dorsiflexion at 60 degrees, ulnar deviation at 20 degrees, 

radial deviation at 10 degrees, diminished grip strength in the left hand and negative Tinel’s and 

Phalen’s signs. Dr. Obianwu noted full ROM of the left shoulder with a negative impingement 

test. He obtained x-rays showing that the left distal radius fracture was well healed, but that the 

ulnar styloid fracture had not united. X-rays of the left shoulder showed mild degenerative 

changes of the AC joint. 

Referring to Table 15-3, the Wrist Regional Grid, and using the DBI method of rating 

Dr. Obianwu found class 1 for the CDX of fracture with residual symptoms did not apply to 

appellant as it suggested normal motion, whereas her disability was best characterized as a loss 

of motion. He therefore chose to use the ROM method as indicated in Table 15-32. 

Dr. Obianwu enclosed a worksheet finding that, according to Table 15-23, appellant had three 

percent impairment of the left upper extremity due to volar flexion limited to 30 degrees, three 

percent impairment for dorsiflexion limited to 40 degrees, two percent impairment for radial 

deviation at 10 degrees and two percent impairment for ulnar deviation limited to 20 degrees. 

He added these impairments to total 10 percent permanent impairment of the left upper 

extremity. In a February 6, 2013 report, an OWCP medical adviser concurred with 

Dr. Obianwu’s impairment rating. 

As Dr. Obianwu relied on the ROM method and not the DBI method, OWCP referred the 

record to another OWCP medical adviser for review. In an August 24, 2013 report, the medical 

adviser found that appellant had attained maximum medical improvement as of June 6, 2011, as 

her condition had stabilized and she was released from care. He explained that the DBI method 

was the preferred rating scheme for her impairment, noting that ROM loss was encompassed by 

the CDX classification. The medical adviser also noted that Dr. Obianwu’s ROM measurements 

were not valid as he had documented only one motion per movement and not the three 

repetitions as required by the A.M.A., Guides at section 15.7.6

 He provided a class 1 CDX for 

left wrist fracture. The medical adviser found a grade modifier of 1 for Functional History 

 5

 Table 15-23, page 449 of the A.M.A., Guides is entitled “Entrapment/Compression Neuropathy Impairment.” 

6

 Section 15.7 of the A.M.A., Guides is entitled “Range of Motion Impairment.” Section 15.7(a), “Clinical 

Measurements of Motion” at page 464, provides that following a warm-up of a minimum of three maximum ROMs, 

the examiner records “the active measurements from 3 separate [ROM] efforts.” 
4

(GMFH) according to Table 15-77

 and a grade modifier of 1 for Physical Examination (GMPE) 

according to Table 15-88

 for mild objective deficits on examination. He noted that there was no 

applicable modifier for Clinical Studies (GMCS) as the studies were used to determine the CDX. 

Applying the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or 

(1-1) + (1-1), the medical adviser calculated a net adjustment of zero, leaving the CDX grade at 

C, equaling three percent permanent impairment of the left upper extremity. 

By decision dated September 23, 2013, OWCP granted appellant a schedule award for 

three percent impairment of the left upper extremity, based on Dr. Obianwu’s clinical findings as 

interpreted by OWCP’s medical adviser. The period of the award ran from June 6 to 

August 10, 2011. 

On September 30, 2013 counsel requested a telephonic hearing, held March 3, 2014. At 

the hearing, he asserted that OWCP should have relied on Dr. Obianwu’s impairment rating as 

the ROM based assessment method was better suited to appellant’s presentation. Counsel also 

contended that OWCP should not have referred the case to the second medical adviser. 

By decision dated and finalized April 4, 2014, an OWCP hearing representative affirmed 

the September 23, 2013 schedule award, finding that OWCP had properly relied on the opinion 

of OWCP’s medical adviser. The hearing representative found that the medical adviser applied 

the appropriate portions of the A.M.A., Guides to Dr. Obianwu’s clinical findings and provided 

detailed rationale explaining why the DBI method was superior to the ROM based method in 

appellant’s case. 

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.9 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.10 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.11 

 7

 Table 15-7 page 406 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment: 

Upper Extremities” 

8

 Table 15-8, page 408 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment: 

Upper Extremities.” 

9 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

11 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
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).12 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.13

ANALYSIS 

The issue on appeal is whether appellant has established that she sustained greater than 

three percent impairment of the left upper extremity, for which she received a schedule award. 

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.14 

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

justice under the law to all claimants.15 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.16 

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 

 12 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). 

13 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

16 Supra note 14. 
6

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 April 4, 2014 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 this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the April 4, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.17

Issued: February 22, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 17 James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the 

Board effective November 16, 2015.