United States Department of Labor

Employees’ Compensation Appeals Board

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A.G., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, Tracy, CA, Employer

__________________________________________

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Docket No. 18-0329

Issued: July 26, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 4, 2017 appellant filed a timely appeal from a July 24, 2017 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than three 

percent permanent impairment of his right upper extremity, for which he previously received a 

schedule award.

 

1 5 U.S.C. § 8101 et seq.

2 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, by order dated May 17, 2018, the Board denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 18-0329 (issued May 17, 2018).
2

FACTUAL HISTORY

On January 28, 2015 appellant, then a 46-year-old industrial equipment mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on January 27, 2015 he sustained injury at work

when his right finger got caught between the drive chain and drive sprocket of a conveyor drive 

motor he was servicing. He stopped work on January 27, 2015.

On January 28, 2015 appellant underwent right index finger/hand surgery, including open 

debridement to the bone level and open reduction with Kirschner wire fixation of proximal phalanx 

fracture.3 On February 12, 2015 OWCP accepted appellant’s claim for right index finger crush 

injury with open fracture.4

On September 15, 2015 appellant underwent OWCP-approved right index finger/hand 

surgery, including extensor tenolysis and proximal interphalangeal joint capsulotomy.5 On 

December 15, 2015 he underwent OWCP-approved right index finger/hand/wrist surgery 

including flexor tenolysis of the superficialis tendon from index finger to wrist and the profundus 

tendon from index finger to wrist.

On February 29, 2016 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to his accepted January 27, 2015 employment injury.

Due to the absence of a permanent impairment rating from an attending physician, OWCP 

referred appellant for a second opinion evaluation to Dr. Aubrey A. Swartz, a Board-certified 

orthopedic surgeon. It requested that Dr. Swartz provide an opinion regarding appellant’s 

permanent impairment under the standards of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6

In a May 6, 2016 report, Dr. Swartz discussed appellant’s factual and medical history 

regarding his accepted January 27, 2015 employment injury and reported the findings of the 

physical examination he conducted on May 6, 2016. He noted that appellant exhibited tenderness 

over the proximal and middle phalanges of the right index finger. Range of motion (ROM) testing 

of the right index finger revealed 0 to 80 degrees of motion at the metacarpophalangeal (MCP)

joint, 0 to 40 degrees of motion at the proximal interphalangeal (PIP) joint, and -45 to 50 degrees 

of motion at the distal interphalangeal (DIP) joint. Dr. Swartz indicated that he could not apply 

the diagnosis-based impairment (DBI) rating method found at Table 15-2 on page 391 of the sixth 

edition of the A.M.A., Guides because “it is based upon a normal [ROM] of the involved finger.” 

He determined that, under Table 15-31 on page 470 of the sixth edition, appellant had 6 percent 

 

3 On February 10, 2015 appellant returned to modified work for the employing establishment without wage loss. 

4 Prior to formally accepting appellant’s claim on February 12, 2015, OWCP had administratively accepted 

appellant’s claim for payment of limited medical expenses. It retroactively approved the January 28, 2016 surgery 

after formally accepting appellant’s claim. 

5 Appellant stopped work from mid-September 2015 to early-January 2016 and received disability compensation 

on the daily rolls from September 15 to December 31, 2015. On February 11, 2016 he returned to modified work for 

the employing establishment without wage loss.

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

permanent impairment due to ROM findings for the MCP joint of the right index finger, 42 percent 

permanent impairment due to ROM findings for the PIP joint, and 10 percent permanent 

impairment due to ROM findings for the DIP joint. He combined these values, under the 

Combined Values Chart on page 604, to equal 58 percent permanent impairment of the right index 

finger. Dr. Swartz indicated that, under Table 15-12 on page 422, this rating converted to 12 

percent permanent impairment of the right hand and 10 percent permanent impairment of the right 

upper extremity.

OWCP referred appellant’s case to Dr. Herbert White, Jr., a Board-certified occupational 

medicine physician serving as its district medical adviser (DMA). It requested that Dr. White 

review the medical evidence of record, including Dr. Swartz’ May 6, 2016 report, and provide an 

opinion regarding appellant’s permanent impairment under the standards of the sixth edition of the 

A.M.A., Guides. 

In a September 14, 2016 report, Dr. White indicated that he was unable to rate appellant’s 

permanent impairment because Dr. Swartz did not obtain three measurements for each joint tested 

and did not otherwise obtain his ROM findings in accordance with the instructions found on page 

464 of the sixth edition of the A.M.A., Guides.

7

 He recommended that Dr. Swartz be asked to 

provide ROM findings obtained in accordance with the relevant instructions.

OWCP requested that Dr. Swartz provide a supplemental report containing ROM findings 

for appellant’s right index finger that were obtained in accordance with the instructions found in 

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

In an October 27, 2016 report, Dr. Swartz noted that he had obtained three ROM 

measurements for each joint of appellant’s right index finger. Appellant had ROM findings of 50, 

45, and 80 degrees for the MCP joint, 40, 45, and 50 degrees for the PIP joint, and 50, 75, and 75 

degrees for the DIP joint. Dr. Swartz determined that, under Table 15-31 on page 470 of the sixth 

edition, appellant had 22 percent permanent impairment due to ROM findings for the MCP joint 

of the right index finger and 36 percent permanent impairment due to ROM findings for the PIP 

joint. He indicated that the 22 percent rating converted to 4 percent permanent impairment of the 

right hand and 4 percent permanent impairment of the right upper extremity. The 36 percent rating 

converted to 7 percent permanent impairment of the right hand and 6 percent permanent 

impairment of the right upper extremity. Dr. Swartz used the Combined Values Chart to combine 

the 4 percent and 7 percent rating values to determine that appellant had 10 percent permanent 

impairment of his right upper extremity. 

OWCP again referred the case to Dr. White as the DMA. It requested that Dr. White 

review Dr. Swartz’ October 27, 2016 report, and provide an opinion regarding appellant’s 

permanent impairment under the standards of the sixth edition of the A.M.A., Guides. 

In a December 5, 2016 report, Dr. White advised that he had reviewed Dr. Swartz’

October 27, 2016 supplemental report. He indicated that the sixth edition the A.M.A., Guides (per 

the text on page 464) required that the three measurements for a given joint must fall within 10

 

7 The A.M.A., Guides provides that ROM should be measured after a “warm up” in which the individual moves 

the joint through its maximum ROM at least three times. A.M.A., Guides 464.
4

percent of the mean value of the three measurements.8 Dr. White found that Dr. Swartz’

permanent impairment ratings based on the ROM method were not valid because the findings for 

MCP and DIP joint motion did not meet this requirement. Dr. White then applied the DBI rating 

method noting that, under Table 15-2 on page 393, appellant’s right proximal phalanx fracture fell 

under class 1 with a default value of six percent. He calculated grade modifiers, applied the net 

adjustment formula, and noted that movement two spaces to the right of the default value on Table 

15-2 was required. Therefore, appellant had eight percent permanent impairment of his right index 

finger due to the right proximal phalanx fracture. Dr. White noted that, under Table 15-2 on page 

392, appellant’s extensor tendon laceration fell under class 1 with a default value of six percent. 

He calculated grade modifiers, applied the net adjustment formula, and noted that movement one 

space to the right of the default value on Table 15-2 was required. Therefore, appellant had seven 

percent permanent impairment of his right index finger due to the right extensor tendon laceration. 

Dr. White used the Combined Values Chart to combine the 8 percent and the 7 percent rating

values and concluded that appellant had 14 percent permanent impairment of his right index finger 

under the standards of the sixth edition of the A.M.A., Guides. He further indicated that 14 percent 

permanent impairment of the right index finger equaled 3 percent permanent impairment of the 

right upper extremity.

By decision dated January 5, 2017, OWCP granted appellant a schedule award for 14 

percent permanent impairment of his right index finger. The award ran for 6.44 weeks from 

October 27 to December 11, 2016 and was based on the opinion of Dr. White.

On February 2, 2017 appellant requested a hearing with a representative of OWCP’s 

Branch of Hearings and Review. During the hearing held on May 24, 2017, he discussed his righthand problems, including his inability to make a fist due to his right index finger not being able to 

close.

By decision dated July 13, 2017, OWCP’s hearing representative set aside OWCP’s 

January 5, 2017 decision and remanded the case for further development. She found that, because 

appellant’s permanent impairment extended from his right finger/hand into his right upper 

extremity, a permanent impairment calculation also should be made for his right upper extremity. 

The hearing representative indicated that, if the calculation for right upper extremity permanent 

impairment provided a greater amount of schedule award compensation, appellant should be 

awarded the greater amount. She determined that the calculation for right upper extremity 

permanent impairment would, in fact, provide a greater amount of schedule award compensation. 

The hearing representative directed that, upon remand, OWCP should issue a de novo schedule 

award decision finding that appellant has three percent permanent impairment of his right upper 

extremity and paying appropriate additional schedule award compensation. 

 

8

Id.
5

By decision dated July 24, 2017, OWCP granted appellant a schedule award for three 

percent permanent impairment of his right upper extremity (right arm). The total award ran for 

9.36 weeks from October 27 to December 31, 2016.9

LEGAL PRECEDENT

The schedule award provision of FECA,10 and its implementing federal regulation,11 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. 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.12 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.13

The sixth edition requires identifying the impairment class for the Class of Diagnosis 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), Physical 

Examination (GMPE), and Clinical Studies (GMCS).14 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).15

 

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides:

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).”

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guidesidentify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

 

9 OWCP indicated that appellant had already been paid $5,168.70 in schedule award compensation and noted that 

the present schedule award entitled him to an additional $2,343.54 in schedule award compensation.

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404.

12 Id. at § 10.404(a).

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

14 A.M.A., Guides 494-531.

15 Id. at 521.
6

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

16

 (Emphasis in the original.)

The Bulletin further advises: 

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,] 

Guides, that ROM is not permitted as an alternative rating method for the diagnosis 

in question.

“If the rating physician provided an assessment using the DBI method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

17

ANALYSIS

The Board finds this case is not in posture for decision.

The Board has previously found that OWCP had 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.18 

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

justice under the law to all claimants.19 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 

 

16 FECA Bulletin No. 17-06 (issued May 8, 2017).

17 Id.

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

19 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
7

examiners, and DMAs 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. The Board therefore found that OWCP should develop a consistent method for 

calculating permanent impairment for upper extremities, which could be applied uniformly.

As noted above, FECA Bulletin No. 17-06 provides that, if the rating physician provided 

an assessment using the ROM method and the A.M.A., Guides allows for use of ROM for the 

diagnosis in question, the DMA should independently calculate impairment using both the ROM 

and DBI methods and identify the higher rating for the CE.20

The Board therefore finds that this case requires further development of the medical 

evidence. Since Dr. Swartz provided a rating based upon appellant’s loss of ROM of the right 

index finger, which is allowed (by asterisk) pursuant to Table 15-2 of the A.M.A., Guides,

Dr. White should have independently calculated appellant’s impairment using both the ROM and 

DBI methods under the relevant standards of the sixth edition of the A.M.A., Guides, and identified 

the higher rating for the claims examiner. Although Dr. White attempted to apply both the ROM 

and DBI rating methods, he did not do so in an appropriate manner. He indicated that the sixth 

edition of the A.M.A., Guides (per the text on page 464) required that the three measurements for 

a given joint must fall within 10 percent of the mean value of the three measurements and he 

entirely discounted Dr. Swartz’ permanent impairment ratings based on the ROM method because 

the findings for MCP and DIP joint motion did not meet this requirement. However, Dr. Swartz 

failed to note that the three measurements for PIP joint motion did meet the above-noted 

requirement and that, under Table 15-31 on page 470, these measurements would warrant a 

permanent impairment rating.21 If the medical evidence of record is insufficient for Dr. White to 

render a rating using the ROM or DBI method, he should advise as to the medical evidence 

necessary to complete the rating.22

This case will therefore be remanded for application of the new OWCP procedures found 

in FECA Bulletin No. 17-06. After such further development of the medical evidence as necessary, 

OWCP shall issue a de novo decision. 

CONCLUSION

The Board finds that this case is not in posture for decision.

 

20 See supra note 17.

21 See A.M.A., Guides 470, Table 15-31.

22 See supra note 17.
8

ORDER

IT IS HEREBY ORDERED THAT the July 24, 2017 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further action consistent with 

this decision.

Issued: July 26, 2018

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