United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.S., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

BUREAU OF THE PUBLIC DEBT, 

Parkersburg WV, Employer 

__________________________________________ 

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Docket No. 16-1762 

Issued: April 10, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 1, 2016 appellant filed a timely appeal from an August 2, 2016 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 met his burden of proof to establish that he has greater 

than eight percent bilateral upper extremity impairment, for which he previously received 

schedule awards. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted additional evidence on appeal after OWCP issued its August 2, 2016 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

This case has previously been before the Board.3 Appellant, a 67-year-old former 

maintenance worker/mail clerk, has an accepted occupational disease claim (Form CA-2) for 

bilateral lateral epicondylitis and aggravation of bilateral localized primary hand osteoarthritis 

(basal joint/thumb), which arose on or about June 25, 2009.4

 On December 20, 2014 he filed a 

claim for a schedule award (Form CA-7). 

In a January 29, 2015 decision, OWCP denied appellant’s claim for a schedule award 

because he had not submitted an impairment rating in accordance with OWCP’s prior 

instructions. 

On an appeal request form dated and postmarked February 17, 2015, appellant requested 

a telephonic hearing with OWCP’s Branch of Hearings and Review. It was held on 

September 8, 2015. 

By decision dated November 17, 2015, OWCP’s hearing representative affirmed 

OWCP’s January 29, 2015 decision. She noted that appellant’s treating physician, Dr. Stephen 

Popper, an osteopath, was equivocal with respect to whether he had reached maximum medical 

improvement (MMI). Whereas Dr. Popper had previously indicated that appellant reached MMI, 

the hearing representative noted that his latest report, dated October 17, 2013, indicated that 

appellant had not reached MMI. In light of the treating physician’s apparent equivocation, she 

found that the record was devoid of medical evidence establishing that appellant’s condition had 

reached a permanent and fixed state. 

Appellant appealed to the Board on December 16, 2015. 

In its April 4, 2016 decision, the Board found that the case was not in posture for decision 

regarding entitlement to a schedule award. The Board determined that there was sufficient 

medical evidence of record that appellant reached MMI in 2013, thereby warranting further 

development regarding the issue of permanent impairment. Accordingly, the Board set aside the 

hearing representative’s November 17, 2015 decision, and remanded the case to OWCP for 

referral to a second opinion physician to address the extent of any bilateral upper extremity 

permanent impairment under the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) (2009). The facts and 

circumstances opined in the Board’s April 4, 2016 decision are incorporated herein by reference. 

In a May 24, 2016 report, Dr. James H. Rutherford, a Board-certified orthopedic surgeon 

and OWCP-referral physician, reviewed appellant’s medical records, a statement of accepted 

facts, and provided his findings on physical examination. Based on his evaluation, he found that 

appellant did not have ratable permanent impairment due to the accepted condition of bilateral 

 3

 Docket No. 16-0344 (issued April 4, 2016). 

4

 Appellant last worked for the employing establishment in March 2013. OWCP paid wage-loss compensation 

for temporary total disability through November 15, 2014. Effective November 16, 2014, appellant elected to 

receive a disability retirement annuity from the Office of Personnel Management. 
3

lateral epicondylitis. However, Dr. Rutherford found that there was permanent impairment 

based on appellant’s accepted condition of aggravation of bilateral hand osteoarthritis. He rated 

appellant based on the range of motion (ROM) method because there was “no category for 

arthritis of the hands” under the diagnosis-based impairment (DBI) method. Dr. Rutherford 

provided ROM measurements for the various joints of the thumb interphalangeal, 

metacarpophalangeal (MCP), and carpometacarpal and four fingers distal interphalangeal, 

proximal interphalangeal and MCP of each hand.5

 He first calculated the individual digit 

impairments, then determined the corresponding percentage of impairment to the hand, and 

ultimately converted the hand impairment to an upper extremity impairment utilizing Table 15-

12, A.M.A., Guides 421 (6th ed., 2009). With respect to appellant’s right thumb/finger(s) ROM 

limitations, Dr. Rutherford found 31 percent permanent impairment of the right upper extremity. 

Regarding the left upper extremity, he found 22 percent permanent impairment. 

On June 13, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and district 

medical adviser (DMA), reviewed the medical evidence of record and noted his disagreement 

with Dr. Rutherford’s May 24, 2016 impairment rating. The DMA explained that he utilized the 

preferred DBI method for calculating appellant’s permanent impairment. He rated appellant 

under Table 15-2, Digit Regional Grid, A.M.A., Guides 392 (6th ed., 2009) based on a diagnosis 

of degenerative joint disease. Although the default (grade C) rating for class 1 impairment was 

six percent, the DMA assigned eight percent (grade E) digit impairment for each thumb and 

finger, bilaterally. He indicated that the combined digit impairments of the thumb and four 

fingers on each hand represented eight percent bilateral upper extremity permanent impairment. 

By decision dated August 2, 2016, OWCP granted appellant a schedule award for eight 

percent permanent impairment of each upper extremity. The bilateral upper extremity award, 

totaling 16 percent, covered a 49.92-week period from May 24, 2016 through May 8, 2017. 

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.6

 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.7

 FECA, however, does not specify 

the manner by which the percentage loss of a member, function, or organ shall be determined. 

 5

 With respect to appellant’s right and left thumbs, Dr. Rutherford found 20 percent permanent digit impairment, 

bilaterally pursuant to Table 15-30, Thumb Range of Motion, A.M.A., Guides 468 (6th ed., 2009). In determining 

impairment of the individual fingers, he applied Table 15-31, Finger Range of Motion, A.M.A., Guides 470 (6th ed., 

2009). For the right and left index (2nd) fingers, Dr. Rutherford found 45 and 25 percent permanent digit 

impairment, respectively. Regarding appellant’s middle (3rd) finger on each hand, he found 45 percent on the right 

and 25 percent permanent digit impairment on the left. Lastly, the ring (4th) and little (5th) fingers on both hands had 

41 percent and 25 percent permanent digit impairment on the right and left side, respectively. 

6 See 20 C.F.R. §§ 1.1-1.4. 

7

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

§ 8107(c)(1). 
4

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.8

 

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).9

 The Board has approved OWCP’s use 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.10

ANALYSIS 

The issue is whether appellant has met his burden of proof to establish that he has more 

than eight percent permanent impairment of each upper extremity for which he previously 

received schedule awards. 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.11 

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

justice under the law to all claimants.12 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 DMAs 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 

 8

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

9 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). 

10 Isidoro Rivera, 12 ECAB 348 (1961). 

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

12 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
5

A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent results and equal 

justice under the law for all claimants.13 

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 August 2, 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. 

ORDER 

IT IS HEREBY ORDERED THAT the August 2, 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 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 Supra note 11.