United States Department of Labor 

Employee’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hartford, CT, Employer 

__________________________________________ 

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Docket No. 17-0275 

Issued: August 14, 2017 

Appearances: Case Submitted on the Record

William Bothwell, 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 November 17, 2016 appellant, through her representative, filed a timely appeal from 

August 10 and November 7, 2016 merit decisions of the Office of Workers’ Compensation 

Programs (OWCP).2

 Pursuant to the Federal Employees’ Compensation Act3 (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

 Appellant also filed a timely request for oral argument in this case. By order dated April 24, 2017, the Board, 

after exercising its discretion, denied appellant’s request for oral argument as oral argument would further delay 

issuance of a Board decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket 

No. 17-0275 (issued April 24, 2017). 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant has established that she has more than eight percent 

permanent impairment of the left upper extremity for which she previously received a schedule 

award. 

FACTUAL HISTORY 

On January 30, 2014 appellant, then a 54-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 29, 2014 she sustained a left wrist fracture when she 

slipped on the floor and landed on her left wrist while in the performance of duty. By decision 

dated February 13, 2014, OWCP accepted the claim for left distal radius fracture. By decision 

dated June 16, 2014, it accepted the claim for the additional conditions of left carpal tunnel 

syndrome and left cubital tunnel syndrome. Appellant stopped work on January 29, 2014 and 

returned on April 28, 2014. She again stopped work on May 29, 2014 and did not return, 

receiving medical and wage-loss compensation benefits. 

On February 14, 2014 appellant underwent open reduction/internal fixation of the left 

wrist. On July 3, 2014 she underwent carpal tunnel release and cubital tunnel release with 

subcutaneous transposition of the ulnar nerve. Appellant sought treatment with Dr. Matthew P. 

Gordon, a Board-certified orthopedic surgeon. 

In a September 24, 2015 medical report, Dr. Gordon reported that in accordance with the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (A.M.A., Guides),4 appellant sustained a combined 15 percent permanent impairment of 

the left upper extremity. He reported five percent permanent impairment for a diagnosis of distal 

radius fracture under class 1 placement E,5 six percent permanent impairment for cubital tunnel 

syndrome, and four percent permanent impairment for carpal tunnel syndrome.6 

On October 22, 2015 appellant filed a claim for a schedule award (Form CA-7). 

On November 6, 2015 OWCP routed Dr. Gordon’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. David Krohn, Board-certified in internal medicine serving as an 

OWCP district medical adviser (DMA), for review and determination regarding whether 

appellant sustained a permanent impairment of the left upper extremity and date of maximum 

medical improvement (MMI). OWCP noted accepting the additional condition of left lesion of 

ulnar nerve. 

In a November 20, 2015 report, Dr. Krohn disagreed with Dr. Gordon’s impairment 

rating. He determined that, based on examination findings, there was no ratable impairment of 

the left upper extremity due to residuals of the work-related injury. 

 4

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

5 Id. at 396, Table 15-3. 

6 Id. at 449, Table 15-23. 
3

By letter dated December 4, 2015, OWCP provided Dr. Gordon a copy of Dr. Krohn’s 

November 20, 2015 report and SOAF for review, requesting that he respond to the concerns 

presented by the DMA within 30 days. 

In a December 31, 2015 addendum report, Dr. Gordon disagreed with Dr. Krohn’s 

impairment rating and argued that his initial impairment was correct based on evidence of 

consistent and ongoing dysfunction of the left upper extremity. 

OWCP referred appellant, a series of questions, the SOAF, and the medical record to 

Dr. Steven A. Silver, a Board-certified orthopedic surgeon, for a second opinion examination and 

determination as to whether appellant sustained a permanent impairment and the date of MMI. 

In his March 1, 2016 medical report, Dr. Silver reviewed the case record and summarized 

the relevant medical and diagnostic reports. Utilizing the sixth edition of the A.M.A., Guides, he 

provided a diagnosis of left wrist fracture, and class 1 diagnosis for residual symptoms and 

functional loss.7

 Dr. Silver assigned a grade modifier of 2 for functional history due to pain with 

symptoms and difficulty in self-care;8 a grade modifier of 2 for physical examination due to 

decreased range of motion (ROM);9 and a grade modifier of 1 for clinical studies which 

confirmed the pathology.10 Applying the net adjustment formula, he subtracted 1, the numerical 

value of the class, from the numerical value of the grade modifier for each applicable component 

(functional history, physical examination, and clinical studies) and then added those values, 

resulting in a net adjustment of 2 ((2-1) + (2-1) + (1-1).11 Application of the net adjustment 

formula dictated that movement was warranted two places to the right of class 1 default value 

grade C to grade E based on Table 15-3.12 Therefore, the diagnosis-based impairment (DBI) 

rating for appellant’s left wrist fracture yielded four percent permanent impairment.13 With 

respect to median nerve compression, Dr. Silver utilized Table 15-23 to calculate two percent 

permanent impairment of the left upper extremity.14 For ulnar nerve compression, he utilized 

Table 15-21 to calculate another two percent permanent impairment of the left upper extremity.15 

Dr. Silver concluded that MMI was reached on September 3, 2015. 

OWCP routed Dr. Silver’s report and the case file to Dr. Jovito Estaris, Board-certified in 

occupational medicine serving as an OWCP DMA, for review and determination regarding 

 7 Supra note 5. 

8 Id. at 406, Table 15-7. 

9 Id. at 408, Table 15-8. 

10 Id. at 410, Table 15-9. 

11 Id. at 411. 

12 Supra note 5. 

13 Id.

14 Supra note 6. 

15 Id. at 444. 
4

whether appellant sustained a permanent impairment of the left upper extremity and date of 

MMI. The request noted the accepted conditions of left closed fracture of lower end of radius, 

left carpal tunnel syndrome, left cubital tunnel syndrome, and left lesion of ulnar nerve. 

In an April 21, 2016 medical report, Dr. Estaris provided a diagnosis of class 1 for left 

fracture distal radius. He assigned a grade modifier of 2 for functional history due to pain with 

normal activity. Dr. Estaris assigned a grade modifier of 1 for physical examination, explaining 

that total joint ROM of the wrist was nine percent based on Dr. Silver’s measurements. No 

grade modifier was assigned for clinical studies as an x-ray of the wrist was used for placement 

of the diagnosis. Applying the net adjustment formula resulted in 1, warranting movement one 

place to the right of class 1 default value grade C to grade D for four percent permanent 

impairment of the upper left extremity. Dr. Estaris further calculated four percent permanent 

impairment for left carpal tunnel syndrome and five percent permanent impairment for left 

cubital tunnel syndrome based on entrapment/compression neuropathy.16 He combined the four 

percent left wrist fracture impairment with the four percent impairment for carpal tunnel 

syndrome as both conditions were in the wrist, totaling eight percent permanent impairment. 

Dr. Estaris then added an additional 5 percent impairment for left cubital tunnel syndrome, 

resulting in a combined 13 percent permanent impairment of the left upper extremity. 

In another May 12, 2016 report, Dr. Estaris reported that appellant sustained four percent 

permanent impairment due to fracture of the left distal radius. He further determined that left 

carpal tunnel syndrome resulted in four percent permanent impairment while left cubital tunnel 

syndrome resulted in two percent impairment. Utilizing the formula for multiple simultaneous 

neuropathy, Dr. Estaris determined that appellant sustained five percent permanent impairment 

for entrapment.17 He combined four percent for radial fracture with five percent for entrapment, 

resulting in nine percent permanent impairment of the left upper extremity. 

OWCP requested that Dr. Estaris provide clarification pertaining to his impairment 

rating, noting that he appeared to have rated two diagnoses of the left wrist and that the A.M.A., 

Guides only allowed for the most impairing diagnosis to be rated. 

In a June 3, 2016 addendum report, Dr. Estaris reported that the A.M.A., Guides provides 

that in rare cases, the examiner may combine multiple impairments within a single region if the 

most impairing diagnosis does not adequately reflect the losses.18 He further noted that 

peripheral nerve impairment may be combined with the DBI at the upper extremity as long as the 

DBI does not encompass the nerve impairment.19 Dr. Estaris explained that appellant’s limited 

ROM of the left wrist was explained by the fracture radius. However, the fracture did not 

encompass the symptoms of numbness and tingling, as well as decrease sensation to the left 

thumb and index finger. Dr. Estaris noted that these were typical symptoms of median nerve 

neuropathy at the wrist for carpal tunnel syndrome, which was further confirmed by 

 16 Supra note 6. 

17 Id. at 448. 

18 Id. at 419, 15.3f. 

19 Id. at 15.4. 
5

electromyography and nerve conduction studies. He determined that in appellant’s case, 

peripheral nerve impairment for carpal tunnel syndrome could be combined with the DBI for the 

radius fracture, resulting in eight percent permanent impairment for the left wrist. Dr. Estaris 

concluded that there was no change in the impairment rating provided on April 21, 2016. 

On June 17, 2016 OWCP requested Dr. Estaris provide clarification with regard to his 

impairment rating, noting that he had previously provided nine percent permanent impairment 

rating, as well as an eight percent permanent impairment rating of the left upper extremity, for 

permanent impairment of the left wrist. 

On June 24, 2016 Dr. Estaris resubmitted his June 3, 2016 report finding an eight percent 

permanent impairment of the left upper extremity, due to impairment of the left wrist. 

By letter dated July 8, 2016, OWCP routed the reports of Dr. Estaris to Dr. Silver for 

review and comment, noting that the two physicians provided different impairment ratings. 

In a July 15, 2016 addendum report, Dr. Silver reported that he would yield to 

Dr. Estaris’ eight percent impairment finding, noting reference to Table 15-23.20 

By decision dated August 10, 2016, OWCP granted appellant a schedule award for eight 

percent permanent impairment of the left upper extremity. The date of MMI was noted as 

September 30, 2015. OWCP noted that the percentage of impairment was based on the medical 

findings and reports of Dr. Silver and Dr. Estaris. 

On August 24, 2016 appellant requested an oral hearing before an OWCP hearing 

representative. 

On October 11, 2016 appellant, through her representative, requested the appeal be 

changed to review of the written record. 

In support of the claim, appellant’s representative submitted a memorandum arguing that 

she was entitled to 16 percent permanent impairment of the left upper extremity. He alleged that 

since loss of ROM was present, appellant’s permanent impairment should alternatively be rated 

based on Section 15.7 of the A.M.A., Guides, for loss of ROM. Appellant’s representative 

reported that loss of ROM warranted 11 percent impairment while entrapment resulted in 

5 percent impairment, totaling a combined permanent impairment rating of 16 percent. 

By decision dated November 7, 2016, OWCP’s hearing representative affirmed the 

August 10, 2016 decision finding that appellant was properly awarded eight percent permanent 

impairment of the left upper extremity. 

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 

 20 Supra note 6. 
6

vested the authority to implement FECA program with the Director of OWCP.21 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.22 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.23 

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).24 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.25

The A.M.A., Guides notes that, when impairment results directly from a peripheral nerve 

lesion, on other rating method is applied to this section (15.4 Peripheral Nerve Impairment) to 

avoid duplication or unwarranted increase in the impairment estimation.26

ANALYSIS 

OWCP accepted appellant’s claim for left distal radius fracture, left carpal tunnel 

syndrome, left cubital tunnel syndrome, and left lesion of ulnar nerve. The issue is whether 

appellant sustained more than an eight percent permanent impairment of the left upper extremity 

for which she received a schedule award. The Board finds this case is not in posture for 

decision. 

 21 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

23 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

24 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (February 2013). 

25 Isidoro Rivera, 12 ECAB 348 (1961). 

26 A.M.A., Guides 423 (note that peripheral nerve impairment may be with DBI at the upper extremity as long as 

the DBI does not encompass the nerve impairment. Id. at 419. 
7

In support of her claim, appellant submitted a September 24, 2015 medical report from 

his treating physician, Dr. Gordon who opined that she sustained 15 percent permanent 

impairment to the left upper extremity. After further development the case was referred to 

Dr. Silver, serving as a second opinion physician, who opined that appellant was entitled to nine 

percent permanent impairment of the left upper extremity. OWCP routed Dr. Silver’s report to 

Dr. Estaris, serving as OWCP’s DMA, who calculated eight percent permanent impairment of 

the left upper extremity. While Dr. Estaris related that appellant’s peripheral nerve impairment 

for carpal tunnel could be combined with the DBI for appellant left wrist fracture of the radius, 

he also noted that appellant’s limited ROM of the left wrist was explained by the fracture of the 

radius.27 He did not however rate appellant’s left wrist impairment for utilizing the ROM 

methodology provided in the A.M.A., Guides. 

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 had been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.28 

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

justice under the law to all claimants.29 In T.H., the Board concluded that OWCP physicians 

were 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 observed that physicians 

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

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

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.30 

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the August 10 and November 7, 2016 

decisions. Utilizing a consistent method for calculating permanent impairment for upper 

extremities to be applied uniformly, and after 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 this case is not in posture for a decision. 

 27 Id. 

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

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

30 Supra note 27. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 7 and August 10, 2016 decisions of 

the Office of Workers’ Compensation Programs are set aside and the case is remanded for 

further development consistent with this decision. 

Issued: August 14, 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