United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.A., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Montgomery, AL, Employer 

__________________________________________ 

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Docket Nos. 16-1621 & 

16-1622 

Issued: May 12, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 9, 2016 appellant, through counsel, filed timely appeals from two merit 

decisions of the Office of Workers’ Compensation Programs (OWCP). One appeal was from an 

April 22, 2016 merit decision under OWCP File No. xxxxxx275, assigned Docket No. 16-1621 

and the other appeal was from a May 5, 2016 merit decision under OWCP File No. xxxxxx825, 

assigned Docket No. 16-1622. 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 -- OWCP FILE NO. xxxxxx275 

The issue is whether appellant met his burden of proof to establish ratable permanent 

impairment of his right fifth finger, warranting a schedule award. 

On appeal, counsel contends that OWCP’s April 22, 2016 decision is contrary to fact and 

law. 

FACTUAL HISTORY – OWCP FILE NO. xxxxxx275 

On December 22, 2003 appellant, then a 44-year-old criminal investigator/deputy 

marshal, filed a traumatic injury claim (Form CA-1) assigned File No. xxxxxx275 alleging that 

on that date he sustained right hand and little finger injuries when a shelf fell while he was 

arranging ammunition boxes in a weapons vault. He heard a ripping sound and experienced 

immediate swelling of his right little finger as it was pulled away from his right hand. 

A hospital report dated December 22, 2003 bearing an unknown signature from a medical 

provider who indicated a history of injury that on that date appellant sustained a right little finger 

injury when a box of ammunition fell on his right hand. The report noted a diagnosis of sprain of 

the right fifth finger metacarpophalangeal (MCP) radiating with pain. 

On June 9, 2015 appellant filed a claim for a schedule award (Form CA-7). No new 

evidence was submitted along with the claim. 

On June 25, 2015 OWCP accepted appellant’s claim for sprain of the right fifth finger. 

In a letter of the same date, it advised him of the deficiencies of his schedule award claim and 

requested that he submit a medical report from his treating physician establishing that the 

accepted condition had attained maximum medical improvement (MMI), and providing an 

impairment rating according to the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (hereinafter, the A.M.A., Guides).3

In a July 17, 2015 medical report, Dr. Lawrence T. Williams, an attending family 

practitioner and internist, noted that he had examined appellant on February 8, 2015. He 

indicated that appellant related a history of injury that he had a painful right fifth finger condition 

and diagnosed a strain. Dr. Williams related that apparently appellant had a tear of the ligature 

in his hand that caused the finger to be in an attitude of adduction with weakness. He maintained 

that appellant apparently tore this ligature while moving ammunition boxes from shelving that 

fell and caused his injury. Dr. Williams advised that it seemed appellant had reached MMI and 

concluded that at most he had five percent permanent impairment. 

By decision dated July 28, 2015, OWCP denied appellant’s schedule award claim. It 

found that he did not submit any medical evidence in response to its June 25, 2015 development 

letter. 

 3

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

On July 31, 2015 appellant requested a telephone hearing with an OWCP hearing 

representative, which was held on March 8, 2016. 

During the March 8, 2016 telephone hearing, appellant described his December 22, 2003 

employment injury, current symptoms, and medical treatment. Dr. Williams testified that he had 

reviewed his medical records, which indicated that appellant had a right hand injury with 

separation of the small finger into a permanent abduction with weakness in the right small finger. 

He reiterated his opinion that appellant sustained a tear in his hand and right small finger when 

ammunition boxes fell off a shelf. Dr. Williams related that he could not determine the extent of 

his permanent impairment at the time of the hearing. The hearing representative requested that 

he provide an impairment rating based on the A.M.A., Guides. 

Following the March 8, 2016 hearing, OWCP received copies from appellant of pages 

from the sixth edition of the A.M.A., Guides, which included Table 15-2, Digital Regional Grid,4

Table 15-9 regarding clinical studies adjustments for upper extremities,5 and Table 15-10, 

Methodology for Determining the Grade in an Impairment Class.6

In an April 22, 2016 decision, an OWCP hearing representative affirmed the July 28, 

2015 decision. He found that Dr. Williams’ July 17, 2015 impairment rating of five percent was 

speculative. The hearing representative also found that he did not provide objective findings in 

accordance with the sixth edition of the A.M.A., Guides to support his impairment rating. 

ISSUE -- OWCP FILE NO. xxxxxx825 

The issue is whether appellant met his burden of proof to establish ratable permanent 

impairment of his left elbow, warranting a schedule award. 

On appeal, counsel contends that OWCP’s May 5, 2016 decision is contrary to fact and 

law. 

FACTUAL HISTORY -- OWCP FILE NO. xxxxxx825 

On July 31, 2007 appellant filed a (Form CA-1) assigned File No. xxxxxx825 alleging 

that on July 20, 2007 he sustained a left elbow injury when he struck it twice on a billiard table 

in a living room. 

In reports dated October 5, 17, and 23, 2007, Dr. George D. Walcott, Jr., a Boardcertified orthopedic surgeon, and Dr. Williams noted a history that on July 20, 2007 appellant 

was involved in an altercation while arresting a fugitive. Appellant struck his left olecranon on 

the floor or pool table. The physicians examined appellant, diagnosed left olecranon bursitis, 

and recommended surgery. Dr. Walcott opined that the diagnosed condition was caused by the 

July 20, 2007 incident. 

 4 Id. at 394. 

5 Id. at 410. 

6 Id. at 412. 
4

On November 2, 2007 OWCP accepted appellant’s claim for left olecranon bursitis. It 

authorized a left olecranon bursectomy performed by Dr. Walcott on November 8, 2007.7 

In a January 7, 2008 report, Dr. Walcott examined appellant’s left elbow. He reported 

full range of motion of the elbow. There was no drainage, redness, or tenderness. Appellant had 

a little bit of swelling that looked like normal postoperative swelling. Dr. Walcott provided an 

impression of left olecranon bursitis two months status post bursectomy with some initial 

drainage in the postoperative period now resolved after oral antibiotics. Based on his 

examination findings, he released appellant to full duty with no restrictions. Dr. Walcott advised 

that appellant had no permanent impairment. He concluded that appellant had reached MMI as 

of the date of his examination. 

On June 9, 2015 appellant filed a Form CA-7 claim for a schedule award. No new 

evidence was submitted along with the claim. 

By letter dated June 22, 2015, OWCP advised appellant of the deficiencies of his claim 

and requested a medical report from his treating physician assessing his permanent impairment 

based on the sixth edition of the, A.M.A., Guides and establishing that he had reached MMI. 

In a July 17, 2015 report, Dr. Williams noted that he had examined appellant on 

July 8, 2015. He also noted that appellant sustained left olecranon bursitis as a result of his 

July 20, 2007 work injury. Dr. Williams reviewed appellant’s medical treatment and advised 

that he had reached MMI on April 7, 2008, approximately 18 months after his work injury. He 

reported that appellant still had pain in his left elbow and pain with full extension of the elbow. 

Dr. Williams also reported that appellant had no preexisting condition of pain or impairment of 

the left elbow prior to his injury. He concluded that appellant had 10 percent permanent 

impairment of his left elbow based on his subjective pain experience with the use of the elbow. 

By decision dated July 28, 2015, OWCP denied appellant’s schedule award claim. It 

found that he did not submit any medical evidence in response to its June 22, 2015 development 

letter. 

On July 31, 2015 appellant requested a telephone hearing with an OWCP hearing 

representative, which was held on March 8, 2016.8 

During the March 8, 2016 telephone hearing, appellant testified that he hurt his right 

elbow and experienced pain subsequent to his employment-related left elbow injury. 

Dr. Williams testified that appellant had swelling and pain in his bursa. He noted that he would 

have to examine appellant and utilize the sixth edition of the A.M.A., Guides to determine the 

extent of impairment to his left elbow. 

Following the March 8, 2016 hearing, OWCP received an undated report from 

Dr. Williams, in which he reiterated findings and his diagnosis of left olecranon bursitis from his 

 7

 Appellant returned to work on November 19, 2007. 

8

 The Board notes that the March 8, 2016 telephone hearing was held separately from the previous telephone held 

on the same date in appellant’s claim assigned File No. xxxxxx275. 
5

July 17, 2015 report. Dr. Williams noted that he had no medical records regarding appellant’s 

claim of impairment to his right elbow. He found a class 1 diagnosis-based impairment (DBI) 

Class of Diagnosis (CDX) for left olecranon bursitis. Dr. Williams assigned a grade modifier 2 

for Functional History (GMFH), grade modifier 2 for Physical Examination (GMPE), and grade 

modifier 1 for Clinical Studies (GMCS). He applied the net adjustment formula of (GMFH - 

CDX) + (GMPE - CDX) + (GMCS - CDX), or (2-1) + (2-1) + (1-1), which yielded a grade 

adjustment of 2, resulting in a grade E impairment. 

In an April 2, 2016 report, Dr. Williams again noted a history of the accepted July 20, 

2007 left elbow injury, appellant’s medical treatment, and diagnosis of left olecranon bursitis. 

He also noted that appellant was retired. Dr. Williams reported that his functional history 

included residual pain, scarring, and an ability to move his elbow appropriately with some pain 

and weakness. On physical examination he found a six-centimeter scar from the left olecranon 

process. Dr. Williams reported that clinical studies revealed that appellant required surgical 

removal of his bursa with shaving of the olecranon bony traumatic growth. Referring to Table 

15-4, page 398 of the sixth edition of the A.M.A., Guides, he again found a class 1 DBI for the 

diagnosis of left olecranon bursitis. Dr. Williams again assessed grade modifiers 2 for GMFH 

and GMPE and grade modifier 1 for GMCS, which yielded a grade E or three percent whole 

person impairment. He noted that the calculated total whole person impairment was 47 percent. 

In a May 5, 2016 decision, the prior OWCP hearing representative affirmed the July 28, 

2015 decision. He found that Dr. Williams’ reports did not provide objective findings in 

accordance with the sixth edition of the A.M.A., Guides to support his left elbow impairment 

ratings, particularly in light of Dr. Walcott’s January 7, 2008 opinion that appellant had no 

permanent impairment. 

LEGAL PRECEDENT -- OWCP FILE NO. xxxxxx275 and xxxxxx825 

The schedule award provision of FECA9

 and its implementing federal regulations set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions and organs of the body. 

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 for all 

claimants under the law, good administrative practice requires the use of uniform standards 

applicable to all claimants.10 The A.M.A., Guides has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.11 For decisions issued 

after May 1, 2009, the sixth edition is used to calculate schedule awards.12 

 9

 5 U.S.C. § 8107. 

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

11 K.H., Docket No. 09-341 (issued December 30, 2011). 

12 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). 
6

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

Health Organization’s International Classification of Functioning, Disability and Health. For 

lower extremity impairments, the evaluator identifies the impairment class for the diagnosed 

condition CDX, which is then adjusted by grade modifiers based on GMFH, GMPE, and 

GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14 

Evaluators are directed to provide reasons for their impairment rating choices, including choices 

of diagnoses from regional grids and calculations of modifier scores.15

It is the claimant’s burden to establish that he or she has sustained a permanent 

impairment of the scheduled member as a result of any employment injury.16 OWCP procedures 

provide that, to support a schedule award, the file must contain competent medical evidence, 

which shows that the impairment has reached a permanent and fixed state and indicates the date 

on which this date occurred (date of MMI), describe the impairment in sufficient detail so that it 

can be visualized on review and computes the percentage of impairment in accordance with the 

A.M.A., Guides.

17

ANALYSIS -- OWCP FILE NO. xxxxxx275 

OWCP accepted that appellant sustained a right fifth finger sprain on December 22, 2003 

while in the performance of duty in his claim assigned File No. xxxxxx275. In decisions dated 

July 28, 2015 and April 22, 2016, it denied his claim for a schedule award. 

The Board finds that appellant has not met his burden of proof to establish entitlement to 

a schedule award for his accepted right fifth finger condition. 

In a July 17, 2015 report, Dr. Williams, an attending physician, found that it “seemed” 

that appellant had reached MMI and at most he had five percent impairment. His opinion on the 

issue of whether appellant had reached MMI is speculative in nature.18 Moreover, Dr. Williams 

did not cite to any Tables or pages in the sixth edition of the A.M.A., Guides to support his rating 

or otherwise explain his determination.19 The Board notes that he opined that appellant had 

“apparently” torn the ligature in his right hand due to the accepted employment injury. 

Dr. Williams’ diagnosis is speculative in nature.20 Further, the Board notes that OWCP has not 

accepted torn ligament of the right hand as employment related. For conditions not accepted by 

 13 Supra note 4 at 493-531. 

14 Id. at 521. 

15 R.V., Docket No. 10-1827 (issued April 1, 2011). 

16 A.A., Docket No. 16-41 (issued February 11, 2016); Tammy L. Meehan, 53 ECAB 229 (2001). 

17 Supra note 13 at Chapter 2.808.5 (February 2013). 

18 Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. 

Kelley, 55 ECAB 206 (2004). 

19 See Mary L. Henninger, 52 ECAB 408 (2001). 

20 Supra note 19. 
7

OWCP as being employment related, it is the employee’s burden to provide rationalized medical 

evidence sufficient to establish causal relation, not OWCP’s burden to disprove such 

relationship.21 Dr. Williams did not provide any medical rationale explaining how appellant’s 

torn ligament of the right hand was caused or aggravated by the accepted December 22, 2003 

employment injury. The Board has held that a medical opinion not fortified by rationale is of 

diminished probative value.22 

Appellant submitted copies of pages from the sixth edition of the A.M.A., Guides, which 

discussed the process for rating impairment of a digit and upper extremities. This evidence does 

not provide a physician’s medical opinion regarding whether appellant had reached MMI and 

whether he had any permanent impairment of his right finger due to his accepted employment 

injury under the sixth edition of the A.M.A., Guides. 

As stated, it is appellant’s burden of proof to establish that he sustained permanent 

impairment of a scheduled member as a result of an employment injury.23 He did not submit 

such evidence and thus, he did not meet his burden of proof in his claim assigned File No. 

xxxxxx275.24

On appeal, counsel contends that OWCP’s April 22, 2016 decision is contrary to fact and 

law. For the reasons stated above, the Board finds that counsel’s contentions are not 

substantiated. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

ANALYSIS -- OWCP FILE NO. xxxxxx825 

The Board notes that under File No. xxxxxx825, OWCP accepted appellant’s claim for 

left olecranon bursitis due to a July 20, 2007 employment-related injury. In decisions dated 

July 28, 2015 and May 5, 2016, it denied his claim for a schedule award. 

The Board finds that the case is not in posture for decision regarding appellant’s left 

elbow impairment. 

Appellant submitted medical reports dated July 17, 2015 and April 2, 2016 and an 

undated report from Dr. Williams. In the July 17, 2015 report, Dr. Williams found that appellant 

sustained left olecranon bursitis as a result of the July 20, 2007 work injury, reached MMI on 

April 7, 2008, and had 10 percent permanent impairment of the left elbow. In the April 2, 2016 

 21 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 

51 ECAB 638 (2000). 

22 Cecilia M. Corley, 56 ECAB 662 (2005). 

23 See cases cited supra note 17. 

24 L.F., Docket No. 10-0343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010). 
8

and undated reports, he reiterated his prior diagnosis of work-related left olecranon bursitis and 

that appellant had reached MMI as of April 7, 2008. He applied relevant tables of the sixth 

edition of the A.M.A., Guides and determined that appellant had three percent whole person 

impairment of the left upper extremity. Dr. Williams noted that the calculated total whole person 

impairment was 47 percent. 

While Dr. Williams offered different impairment ratings of the left elbow, OWCP may 

rely on the opinion of an OWCP district medical adviser (DMA) to apply the A.M.A., Guides to 

the findings reported by the attending physician.25 OWCP procedures provide that in a claim for 

a schedule award, if the medical evidence indicates MMI has been reached and describes the 

permanent partial impairment of the affected member in accordance with the current edition of 

the A.M.A., Guides, the case should be referred to the DMA for review.26 In this case, however, 

it did not refer Dr. Williams’ July 17, 2015, April 2, 2016, and undated reports to a DMA for 

review of a permanent impairment. In his May 5, 2016 decision, an OWCP hearing 

representative found that his medical reports did not provide any objective findings and 

concluded that the medical evidence did not establish permanent impairment of the left elbow. 

The hearing representative, however, made a medical determination without the benefit of 

medical advice or review by OWCP’s DMA that appellant’s injury did not cause or contribute to 

any permanent impairment of the left elbow.27 OWCP procedures provide that, after obtaining 

all necessary medical evidence, the file should be routed to the DMA for an opinion concerning 

the nature and percentage of any impairment in accordance with the A.M.A., Guides.

28 

However, OWCP did not forward this medical evidence to the DMA for review. 

Once OWCP undertakes development of the record it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.29 Despite having 

submitted medical evidence in support of his schedule award claim, OWCP failed to develop the 

evidence as appellant’s case record was not referred to a DMA for review for a determination on 

whether MMI had been reached and the percentage of permanent partial impairment of the left 

elbow.30 

For these reasons, the May 5, 2016 decision will be set aside and the case remanded to 

OWCP for review of the medical record by OWCP’s DMA. If the DMA is unable to render a 

reasoned opinion fully explaining the application of the A.M.A., Guides, OWCP shall refer 

appellant to an appropriate Board-certified specialist for a second opinion regarding the extent of 

 25 See Linda Beale, 57 ECAB 429 (2006). 

26 Supra note 13 at Chapter 2.810.8(i) (September 2010). 

27 J.C., Docket No. 13-0195 (issued April 3, 2013). 

28 See supra note 13 at Chapter 2.808.6(f) (February 2013). 

29 Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of 

Lionel F. Richard, 53 ECAB 430 (2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 

699 (1985). 

30 Supra note 27; J.G., Docket No. 09-1714 (issued April 7, 2010). 
9

his left elbow extremity impairment.31 Following such development as OWCP deems necessary, 

it shall issue a de novo decision on appellant’s schedule award claim. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish ratable 

permanent impairment of his right fifth finger, entitling him to a schedule award under File No. 

xxxxxx275. The Board further finds, however, that the case is not in posture for decision as to 

whether appellant has ratable permanent impairment of his left elbow, entitling him to a schedule 

award under File No. xxxxxx825. 

ORDER 

IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’ 

Compensation Programs is set aside and the case is remanded for further proceedings consistent 

with the decision of the Board. The April 22, 2016 decision of OWCP is affirmed. 

Issued: May 12, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy 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 

 31 If the medical evidence does not contain the required elements for a schedule award impairment calculation, the 

claims examiner should request such information from the attending physician prior to a DMA review. If the 

attending physician does not submit the requested information, the claims examiner should obtain the evidence 

through a second opinion evaluation prior to a DMA review. Supra note 27.