United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Atlantic City, NJ, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0131 

Issued: April 3, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 27, 2016 appellant, through counsel, filed a timely appeal from a 

June 30, 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 the 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 on appeal is whether appellant met his burden of proof to establish more than 

45 percent permanent impairment of the right fifth finger, for which he previously received a 

schedule award. 

FACTUAL HISTORY 

On January 6, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on January 2, 2014 he had a vehicle door closed on his right 

hand causing a contusion of the right fifth finger. He did not initially stop work. 

Initial medical reports documented a displaced fracture of the right fifth metacarpal bone. 

OWCP accepted the claim for closed fracture of the right metacarpal bone. 

On January 16, 2014 Dr. Victor Frankel, a Board-certified orthopedist, performed an 

authorized open reduction and internal fixation of the right fifth metacarpal. He diagnosed 

displaced fracture of the right fifth metacarpal neck. In a March 27, 2014 report, Dr. Frankel 

indicated that appellant had completed physical therapy. He advised that appellant had 

essentially full range of motion (ROM) of the metacarpophalangeal (MCP) joints and 

interphalangeal (IP) joints. Dr. Frankel noted that appellant had tolerated his light-duty activities 

and would be released to full duty without restrictions. He discharged appellant from his care. 

On April 2, 2015 appellant filed a claim for a schedule award (Form CA-7). He 

submitted a January 8, 2015 report from Dr. Nicholas Diamond, an osteopath. Dr. Diamond 

advised that maximum medical improvement (MMI) was reached on January 2, 2014. He 

provided upper extremity physical examination findings. Dr. Diamond diagnosed status post 

crush injury to the right hand, post-traumatic right little finger metacarpal displaced oblique 

extra-articular fracture with significant dorsal angular apex deformity and foreshortening of the 

metacarpal neck area, status post January 16, 2014 open reduction internal fixation of right little 

finger, and right little finger MCP joint and proximal interphalangeal (PIP) joint arthrofibrosis. 

Semmes-Weinstein Monofilament Testing “reveals diminished sensibility at 3.61 MGS over the 

hypothenar area of the dorsum of the right hand,” grip strength testing performed via Jamar Hand 

Dynamometer at Level III performed 5 times revealed 32.5 kilograms (kg) of force strength in 

the right hand versus 47.25 kg of force strength in the left hand, and pinch key testing performed 

five times revealed 5 kg in the right hand versus 9 kg in the left hand. Dr. Diamond evaluated 

appellant’s impairment in accordance with Table 15-31 page 470 of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment,

3 (A.M.A., Guides). Using the 

ROM method of evaluating permanent impairment he measured the ROM of the right fifth digit 

three times and found 80 degrees extension-flexion of the metacarpal phalangeal (MP) for six 

percent digit impairment, extension-flexion of 70 degrees of the PIP joint for 21 percent digit 

impairment, and extension-flexion of 25 degrees of the DIP joint for 25 percent digit impairment. 

Dr. Diamond noted that all ROM were carried through with pain at the extremes. He advised 

 3

 A.M.A., Guides (6th ed. 2009). 
3

that the combined index finger impairment was 45 percent of the digit or four percent of the right 

arm. 

In a report dated April 17, 2015, Dr. Frankel, the surgeon, reviewed the January 8, 2015 

report of Dr. Diamond and concurred with his findings that appellant had four percent 

impairment to his right upper extremity. 

On November 12, 2015 OWCP’s medical adviser reviewed the record, including 

Dr. Diamond’s report. He noted that OWCP had accepted a closed fracture of a metacarpal bone 

in the right hand and that on January 16, 2014 an open reduction, internal fixation of the right 

fifth metacarpal bone was performed. The medical adviser noted that the January 8, 2015 

schedule award evaluation by Dr. Diamond for the right upper extremity rendered four percent 

impairment of the right arm. He noted that Dr. Diamond had used the ROM method, using the 

A.M.A., Guides, and found ROM for the MP joint was 80 degrees for 6 percent impairment of 

the digit, ROM for the PIP joint was 70 degrees for 21 percent impairment of the digit, and ROM 

for the DIP joint was 25 degrees for 25 percent impairment. The medical adviser calculated 45 

percent impairment of the digit or four percent impairment of the right upper extremity using the 

conversion table.4

 He concurred with Dr. Diamond that appellant had four percent right upper 

extremity impairment. The medical adviser noted that the date of MMI was the date of 

Dr. Diamond’s evaluation, January 8, 2015. 

By decision dated January 11, 2016, OWCP granted appellant a schedule award for 45 

percent impairment of the right fifth finger. The period of the award was from January 8 to 

February 24, 2015 for 6.75 weeks of compensation. 

On January 18, 2016 appellant, through counsel, requested an oral hearing which was 

held on April 11, 2016. At the hearing, he indicated that appellant was entitled to four percent 

impairment of the right arm for 12.48 weeks of compensation. Counsel asserted that appellant’s 

work-related fracture caused impairment to his hand and arm. He noted appellant’s continuing 

symptoms and asserted that Dr. Diamond’s January 8, 2015 report supported impairment of the 

right hand and arm. Counsel reiterated Dr. Diamond’s examination findings pertaining to 

diminished sensibility as well as right hand weakness. 

Appellant submitted an April 4, 2016 report from Dr. Diamond who reviewed his 

previously January 8, 2015 report as well as the medical adviser’s report dated 

November 12, 2015. Dr. Diamond noted the impairment rating for the right fifth digit according 

to the ROM deficit as outlined in his report was 45 percent impairment of the digit. Using Table 

15-12, page 422 of the A.M.A., Guides, the impairment rating was converted to five percent 

right hand impairment or a final right arm impairment of four percent impairment. 

Also submitted was an undated statement from appellant who noted that, as a result of the 

work injury of January 2, 2014 and resulting surgery, he has difficulty writing, cleaning, 

exercising, holding a toothbrush, and lifting a cup. He noted constant pain which affected his 

daily job, home and recreational duties, constant numbness which made it hard to hold a pen, and 

 4 Id. at 421, Table 15-12. 
4

lack of motion of the right hand and finger. Appellant indicated that he was unable to play sports 

as he cannot grip a golf club, bat or ball, or lift weights. 

By decision dated June 30, 2016, OWCP’s hearing representative affirmed the decision 

dated January 11, 2016, finding that appellant had failed to establish more than 45 percent 

impairment of the right fifth finger. 

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.5

 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.6 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.7 

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).8 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.9

 5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 

7

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

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

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

Claims, Chapter 2.808.5a (February 2013). 

9 Isidoro Rivera, 12 ECAB 348 (1961). 
5

ANALYSIS 

The issue on appeal is whether appellant met his burden of proof to establish more than 

45 percent permanent impairment of the right fifth finger, for which he previously 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.10 

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

justice under the law to all claimants.11 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.12 

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 June 30, 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 this case not in posture for decision.

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

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

12 Supra note 10. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 30, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: April 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board