United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

FEDERAL COMMUNICATIONS 

COMMISSION (FCC), Oakdale, LA, Employer 

__________________________________________ 

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Docket No. 16-0422 

Issued: October 6, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 January 4, 2016 appellant, through counsel, filed a timely appeal from an October 22, 

2015 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 met her burden of proof to establish more than one 

percent permanent impairment to her left upper extremity, for which she received a schedule 

award.3

FACTUAL HISTORY 

On May 8, 2008 appellant, then a 49-year-old senior case manager, filed an occupational 

disease claim (Form CA-2) alleging that her trigger finger condition was caused or aggravated by 

excessive typing. OWCP accepted the claim for the condition of bilateral trigger finger and paid 

appropriate compensation benefits. Appellant underwent right fourth trigger finger release on 

the left hand on March 27, 2008 and on the right hand on April 24, 2008 performed by 

Dr. Angela Mayeux-Hebert, her treating Board-certified orthopedic surgeon. 

On July 2, 2012 counsel submitted a claim for compensation (Form CA-7) requesting 

schedule award compensation. 

In a July 8, 2011 report, Dr. M. Stephen Wilson, an orthopedic surgeon, noted appellant’s 

history of injury and that she underwent fourth trigger finger release on the left hand on 

March 27, 2008 and on the right hand on April 24, 2008. He reviewed her medical records and 

presented examination findings of chronic changes in left and right ring fingers with pain, 

weakness, and intermittent triggering. Dr. Wilson opined that appellant reached maximum 

medical improvement (MMI). Utilizing the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment4 (A.M.A., Guides hereinafter), and citing to 

tables and figures, he opined that she sustained six percent digit impairment or two percent hand 

impairment or two percent upper extremity impairment to both the left and right extremities. 

Under Table 15-2, Dr. Wilson found that appellant had class 1 triggering of the ring finger 

requiring surgery with a default value of six percent digit impairment. Under Tables 15-7 

through 15-9, grade modifiers were assessed as grade 1 for functional history, grade 1 for 

physical examination, and nonapplicable for clinical studies. A net adjustment of 0 was found 

under the net adjustment formula, (GMFH - CDX)(1-1) + (GMPE - CDX)(1-1) + (GMCS - 

CDX) (N/A), which resulted in six percent impairment to the digit. Dr. Wilson opined that six 

percent digit impairment was equivalent to two percent hand impairment or two percent upper 

extremity impairment. 

On October 20, 2014 an OWCP medical adviser reviewed the record, the statement of 

accepted facts (SOAF) and Dr. Wilson’s July 8, 2011 impairment report. He agreed with 

Dr. Wilson’s impairment calculations of six percent ring digit for the left and right, but indicated 

under Table 15-12, page 421, six percent ring digit equaled one percent upper extremity 

impairment, not two percent upper extremity impairment as indicated by Dr. Wilson. The 

medical adviser noted that a review of the record indicated that, in a September 15, 2009 report, 

 3

 Based on the evidence of record, the schedule award should have been issued for the right upper extremity, not 

the left upper extremity. The Board will treat this as a typographical error on OWCP’s part. 

4

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

Dr. Mayeux-Hebert indicated that “physical exam[ination] of the left hand shows that the scars 

have healed to the point that I can[no]t find them. [Appellant] has no scarring in her palm. She 

had no triggering. [Appellant’s] right hand also shows fair grip strength. She does have early 

triggering of the right index finger.” The medical adviser opined that Dr. Mayeux-Hebert’s 

examination of September 15, 2009 appeared to conflict with Dr. Wilson’s July 8, 2011 

examination findings and recommended that appellant undergo a second opinion examination. 

Based on the deficiencies noted by OWCP’s medical adviser, OWCP referred appellant 

to Dr. Brett Rothaermel, Board-certified in physical medicine and rehabilitation, for a second 

opinion impairment rating. In a December 11, 2014 report, Dr. Rothaermel noted the history of 

injury, his review of the medical records and the SOAF, and presented examination findings. He 

found full range of motion and strength throughout bilateral hands and upper extremities and 

indicated that appellant had the normal ability to reach, push, pull, grasp, and perform fine and 

gross motor movements. There was also normal muscle bulk and tone throughout the hands. 

Dr. Rothaermel opined that she was at MMI. For the right upper extremity, he found diagnostic 

classification of digital stenosing tenosynovitis under Table 15-2, page 392, was class 1 with 

default value of six percent digit impairment. Under Tables 15-7 through 15-9, grade modifiers 

were provided along with an explanation. A grade 2 modifier was provided for Functional 

History (GMFH), a grade modifier 0 was provided for Physical Examination (GMPE), and grade 

modifier 1 was provided for Clinical Studies (GMCS). A net adjustment of 0 was found under 

the net adjustment formula, (GMFH - CDX)(2-1) + (GMPE - CDX)(0-1) + (GMCS - CDX)(1-1), 

which resulted in six percent impairment to the right digit. 

For the left upper extremity, Dr. Rothaermel found diagnostic classification of digital 

stenosing tenosynovitis under Table 15-2, page 392, was class 1 with default value of six percent 

digit impairment. Under Tables 15-7 through 15-9, grade modifiers were provided along with an 

explanation. A grade modifier for GMFH was not applicable as it was utilized for the right 

upper extremity, a grade modifier 0 was assigned for GMPE, and a grade modifier 1 was 

assigned for GMCS. A net adjustment of -1 was found under the net adjustment formula, 

(GMFH - CDX) (N/A) + (GMPE - CDX)(0-1) + (GMCS - CDX)(1-1), which resulted in five 

percent digit impairment. 

On February 20, 2015 an OWCP medical adviser reviewed Dr. Rothaermel’s 

December 5, 2014 impairment report. He opined that appellant reached MMI on December 5, 

2014, the date of Dr. Rothaermel’s evaluation. The medical adviser opined that Dr. Rothaermel 

correctly applied the A.M.A., Guides to his impairment findings. He noted, in evaluating 

Dr. Rothaermel’s report, that he inverted his findings for the left upper extremity and the right 

upper extremity. The medical adviser also related that Dr. Rothaermel did not convert the digit 

impairments to upper extremity impairment. Under Table 15-12, page 421, he converted the six 

percent right digit impairment to one percent right upper extremity permanent impairment and 

the five percent left digit impairment to zero percent left upper extremity permanent 

impairment.5

 

 5

 The medical adviser mislabeled the left and right extremity findings. 
4

By decision dated October 22, 2015, OWCP granted appellant a schedule award for one 

percent left upper extremity.6 The award ran 3.12 weeks from December 5 to 26, 2014. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations 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.7

 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. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.8 

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning (ICF), Disability, and Health.9

 

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition 

(including identification of a default grade value), the net adjustment formula is applied using the 

GMFH, GMPH, and GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) 

+ (GMCS - CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their 

impairment rating choices, including choices of diagnoses from regional grids and calculations 

of modifier scores.12 

In the sixth edition, diagnosis-based impairment (DBI) is the primary method of 

evaluation for the upper extremity. A grid listing relevant diagnoses is provided for each region 

of the upper extremity: the digit region, the wrist region, the elbow region, and the shoulder 

region. A regional impairment will be defined by class and grade. The class is determined first 

by using the corresponding regional grid. The grade is initially assigned the default value for 

that class. This value may be adjusted slightly using nonkey grade modifiers such as GMFH, 

 6 See supra note 3. The schedule award should have been issued for right upper extremity, not the left upper 

extremity. 

7

 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

8 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition 

will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); id. at Part 3 -- 

Claims, Schedule Awards Chapter 3.700, Exhibit 1 (January 2010). 

9

 A.M.A., Guides, supra note 4, section 1.3, The ICF: A Contemporary Model of Disablement. 

10 Id. at 385-419. 

11 Id. at 411. 

12 Id. at 23-28. 
5

GMPE, and GMCS.13 The sixth edition of the A.M.A., Guides also provides that, under certain 

circumstances, range of motion may be selected as an alternative approach in rating impairment. 

An impairment rating that is calculated using range of motion may not be combined with a DBI 

and stands alone as a rating.14

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.15 

Section 8123(a) provides that, if there is a disagreement between the physician making 

the examination for the United States and the physician of the employee, the Secretary shall 

appoint a third physician who shall make an examination.16 The implementing regulations state 

that, if a conflict exists between the medical opinion of the employee’s physician and the medical 

opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint 

a third physician to make an examination. This is called a referee examination and OWCP will 

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.17 In situations where there exist opposing medical reports of virtually equal 

weight and rationale and the case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationale and based upon 

a proper factual background, must be given special weight.18

ANALYSIS 

The Board finds that the weight of the medical evidence establishes that appellant has no 

more than one percent permanent impairment of her right upper extremity. The Board further 

finds that the case is not in posture as to the impairment of the left upper extremity due to a 

conflict in the medical opinion evidence. 

OWCP accepted that appellant sustained bilateral trigger finger (acquired) conditions. 

Section 15.2 of the A.M.A., Guides provide that DBI is the primary method of evaluation for the 

upper extremities.19 Table 15-2, Digit Regional Grid, is the appropriate table for use in finger 

impairments.20

 13 Id. at 387. 

14 Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are 

followed by an asterisk. 

15 See supra note 8 at Chapter 2.808.6 (February 2013). 

16 R.C., Docket No. 12-437 (issued October 23, 2012). 

17 20 C.F.R. § 10.321. 

18 See supra note 15 at Chapter 2.808.11 (February 2013). 

19 A.M.A., Guides 387-90. 

20 Id. at 391-94. 
6

In his July 8, 2011 report, Dr. Wilson presented examination findings of chronic changes 

in left and right ring fingers with pain, weakness, and intermittent triggering. He indicated that 

appellant reached MMI. Utilizing the sixth edition of the A.M.A., Guides,21 and citing to tables 

and figures, Dr. Wilson also opined that appellant sustained impairment to both the right and left 

upper extremities. Under Table 15-2, he found that appellant had class 1 triggering of the ring 

finger requiring surgery with a default value of six percent digit impairment. Under Tables 15-7 

through 15-9, grade modifiers were assessed as grade 1 for GMFH, grade 1 for GMPE, and 

nonapplicable for GMCS. A net adjustment of 0 was found under the net adjustment formula, 

(GMFH - CDX)(1-1) + (GMPE - CDX)(1-1) + (GMCS - CDX) (N/A), which resulted in six 

percent impairment to the digit. An impairment rating for a given digit is converted to an 

impairment rating for an upper extremity using Table 15-12 on pages 421 through 423.22 While 

Dr. Wilson opined that six percent digit impairment was equivalent to two percent upper 

extremity impairment, the Board notes that under Table 15-12, page 421, six percent digit 

impairment equals one percent upper extremity impairment. Thus, he opined that appellant had 

one percent right upper extremity impairment and one percent left upper extremity impairment. 

The medical adviser reviewed Dr. Wilson’s opinion and agreed that appellant had one percent 

right and one percent left upper extremity impairment. While he found Dr. Wilson’s 2011 

physical examination findings conflicted with a 2009 examination of record, the earlier report is 

stale and is therefore not a proper basis to discredit Dr. Wilson’s impairment report.23 

In his December 11, 2014 report, Dr. Rothaermel reviewed appellant’s medical record, 

the SOAF, and presented examination findings. He properly utilized Table 15-2 in his 

impairment analysis. In accordance with Table 15-2, for a diagnosis of digital stenosing 

tenosynovitis,24 appellant had class 1 impairment. For the right upper extremity, Dr. Rothaermel 

found under Tables 15-7 through 15-9, a grade 2 modifier for GMFH, a grade 0 modifier for 

GMPE, and grade 1 modifier for GMCS. A net adjustment of 0 was found under the net 

adjustment formula, (GMFH - CDX)(2-1) + (GMPE - CDX)(0-1) + (GMCS - CDX) (1-1), which 

resulted in six percent impairment to the right digit. For the left upper extremity, Dr. Rothaermel 

found diagnostic classification of digital stenosing tenosynovitis under Table 15-2, page 392, 

was class 1 impairment with default value of six percent digit impairment. Under Tables 15-7 

through 15-9, he found a grade modifier for GMFH was not applicable as it was utilized for the 

right upper extremity, a grade 0 modifier for GMPE, and a grade 1 modifier for GMCS. A net 

adjustment of -1 was found under the net adjustment formula, (GMFH - CDX)(N/A) + (GMPE - 

CDX)(0-1) + (GMCS - CDX) (1-1), which resulted in five percent digit impairment. An OWCP 

medical adviser agreed with Dr. Rothaermel’s digit impairment calculations and, under Table 15-

12 converted the digit impairments to upper extremity impairments. For the right ring trigger 

finger, six percent digit impairment converts to one percent right upper extremity impairment. 

For the left ring finger, five percent digit impairment converts to zero percent left upper 

extremity impairment. 

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

22 Id. at 421-23, Table 15-12. See also R.P., Docket No. 14-0883 (issued August 7, 2014). 

23 See A.A., Docket No. 15-0898 (issued July 28, 2015). 

24 A.M.A., Guides 392. 
7

With regard to the right upper extremity, the Board finds that Dr. Wilson, appellant’s 

treating physician, and Dr. Rothaermel, an OWCP second opinion physician, both opined that 

appellant had one percent right upper extremity impairment. There is no other medical evidence 

of record to establish greater than the one percent right upper extremity permanent impairment, 

for which she has received a schedule award.25

With regard to the left upper extremity, there exists an unresolved conflict as to whether 

appellant established her entitlement to a schedule award between appellant’s treating physicians 

and the physician who conducted the second opinion examination for OWCP. Dr. Wilson 

opined that she had one percent left upper extremity impairment, while Dr. Rothaermel opined 

that she had no left upper extremity impairment. The dispute between the physicians centers on 

varying opinions relative to the use of grade modifiers for GMFH and GMPE in the permanent 

impairment calculation. If there is disagreement between OWCP’s referral physician and 

appellant’s physician, OWCP will appoint a third physician who shall make an examination.26 

For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and 

rationale.27 The Board finds that the opinion of Dr. Wilson is of equal weight as the opinion of 

Dr. Rothaermel. Accordingly, there was an unresolved conflict in the medical evidence. 

The Board finds that a conflict exists in the medical evidence with regard to the amount 

of appellant’s impairment of her left upper extremity. The Board will remand the case for 

referral to an impartial medical specialist for resolution of the conflict in the medical opinion 

evidence. After such further development as OWCP deems necessary, it shall issue a de novo

decision.28

CONCLUSION 

The Board finds that appellant has failed to establish more than one percent permanent 

impairment of the right upper extremity. The Board further finds that this case is not in posture 

for decision due to an unresolved conflict in the medical opinion evidence with regard to the left 

upper extremity impairment. 

 25 See L.C., Docket No. 14-1892 (issued February 2, 2015); see also supra note 2. 

26 5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008). 

27 Darlene R. Kennedy, 57 ECAB 414 (2006). 

28 Due to the disposition of this case, appellant’s arguments on appeal will not be addressed. 
8

ORDER 

IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed as modified in part and set aside in part and the 

case remanded for further consideration consistent with this opinion. 

Issued: October 6, 2016 

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