United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.M., Appellant 

and 

DEPARTMENT OF COMMERCE, 

U.S. CENSUS BUREAU, Toledo, OH, Employer 

__________________________________________ 

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Docket No. 16-0367 

Issued: March 27, 2017 

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 December 22, 2015 appellant, through counsel, filed a timely appeal from a July 28, 

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 more than 10 percent left lower extremity permanent 

impairment and more than 8 percent left upper extremity permanent impairment, for which she 

previously received schedule awards. 

FACTUAL HISTORY 

On April 9, 2010 appellant, then a 62-year-old enumerator, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained injuries in a motor vehicle accident on April 6, 2010 

while in the performance of duty. OWCP has accepted the claim for left ankle fracture and left 

arm distal radius fracture (Colles fracture). Appellant received wage-loss compensation through 

May 31, 2010, returned to work part time, and her employment was terminated as of 

July 31, 2010. 

Appellant filed a claim for a schedule award (Form CA-7) on December 29, 2010. 

OWCP sent the treating physician, Dr. Robert Kalb, an orthopedic surgeon, a December 29, 

2011 letter requesting information regarding whether appellant had permanent impairment of 

either the left upper or lower extremity. In a January 4, 2011 report, Dr. Kalb provided a history 

and results on examination. He completed a permanent impairment worksheet for the lower 

extremity and indicated that appellant had sustained no permanent impairment. As to the upper 

extremity, Dr. Kalb responded to the December 29, 2011 and indicated that she had left wrist 

pain, but no permanent impairment as there was full range of motion (ROM). 

By report dated February 10, 2011, an OWCP medical adviser opined that appellant had 

no left leg or arm permanent impairment. 

By decision dated February 14, 2011, OWCP denied the claim for a schedule award. It 

found that the medical evidence of record failed to establish an employment-related permanent 

impairment. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on March 2, 2011. She submitted a report dated March 18, 2011 from Dr. William Grant, a 

Board-certified internist, who opined that she had 19 percent left arm permanent impairment 

based on the condition of entrapment neuropathy. Dr. Grant also opined that appellant had 21 

percent left leg permanent impairment. 

By decision dated August 18, 2011, the hearing representative remanded the case for 

further development. She found that the medical evidence from Dr. Grant was sufficient to 

require further development. 

OWCP referred appellant to Dr. Richard Deerhake, a Board-certified orthopedic surgeon, 

for a second opinion examination. In a report dated January 10, 2012, Dr. Deerhake provided a 

history and results on examination. He opined that appellant had eight percent left upper 

extremity permanent impairment based on loss of ROM in the left wrist. For the left lower 

extremity, Dr. Deerhake found that she had 10 percent permanent impairment using the 

diagnosis-based impairment (DBI) method. 
3

An OWCP medical adviser reviewed Dr. Deerhake’s report and, in a March 5, 2012 

report, indicated that he concurred there was 10 percent left lower extremity permanent 

impairment. He opined that he disagreed with Dr. Deerhake regarding the impairment assigned 

to the left upper extremity. The medical adviser opined that the permanent impairment based on 

loss of wrist ROM was four percent. A second medical adviser reviewed Dr. Deerhake’s 

January 10, 2012 report and, in a May 3, 2012 report, opined that the left upper extremity 

impairment was eight percent. However, he indicated that Dr. Deerhake had used 50 degrees of 

extension and flexion, with 10 degrees adduction. According to the medical adviser, this would 

result in an eight percent left upper extremity permanent impairment. 

By decision dated May 7, 2012, OWCP issued a schedule award for 10 percent left lower 

extremity permanent impairment and 8 percent left upper extremity permanent impairment. The 

period of the award was 28.80 weeks for the left leg and 24.96 weeks for the left arm, 

commencing November 10, 2011. 

On May 30, 2012 appellant, through counsel, again requested a hearing before an OWCP 

hearing representative. A hearing was held on September 11, 2012. By decision dated 

November 21, 2012, the hearing representative affirmed the May 7, 2012 decision. She found 

that the medical evidence of record did not establish more than 10 percent left lower extremity 

permanent impairment or 8 percent left upper extremity permanent impairment. 

On June 19, 2013 appellant submitted a February 7, 2013 report from Dr. John Dunne, an 

osteopath. Dr. Dunne provided a history and results on examination, including ROM test results 

for the left wrist and ankle. For the left ankle and foot, he reported 10 degrees dorsiflexion, 20 

degrees plantar flexion, 5 degrees eversion, and 15 degrees inversion. Dr. Dunne opined that 

there was no applicable diagnosis under the wrist regional grid of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides). He opined that, for loss of wrist ROM, appellant had 10 percent left arm permanent 

impairment. For the left lower extremity, Dr. Dunne found that she had 18 percent permanent 

impairment based on loss of ROM. 

An OWCP medical adviser reviewed Dr. Dunne’s report and submitted a November 29, 

2013 report. He opined that appellant’s left upper extremity permanent impairment was four 

percent. The medical adviser reported that the DBI method was “the preferred method” of 

evaluation. He also indicated that he felt the ROM results were “unreliable” for wrist flexion 

and extension. According to the medical adviser, applying the wrist regional grid resulted in 

four percent left upper extremity permanent impairment. As to lower extremity impairment, he 

again indicated that the DBI method was preferred, and that the ROM results were unreliable. 

The medical adviser opined that appellant had eight percent left lower extremity permanent 

impairment based on the diagnosis of left ankle fracture with mild motion loss. 

On June 30, 2014 appellant submitted a May 16, 2014 report from Dr. Dunne. In this 

report, Dr. Dunne wrote that he disagreed with OWCP’s medical adviser’s November 29, 2013 

report. He asserted that all ROM test results were determined in accord with the A.M.A., 

Guides, including taking the average of three or more ROM assessments. Dr. Dunne also 

indicated that he disagreed with the medical adviser as to the use of the DBI method taking 

preference over the ROM method as to the wrist. He noted that for upper extremities the DBI 
4

grids refer to the ROM method. Dr. Dunne opined that this should apply to the lower extremities 

as well. 

OWCP’s medical adviser submitted a July 30, 2014 report. He again indicated that 

appellant had four percent left upper extremity permanent impairment and eight percent left 

lower extremity permanent impairment. 

By decision dated November 6, 2014, OWCP found that appellant was not entitled to an 

additional schedule award. It found that the medical evidence did not establish an additional 

upper or lower extremity permanent impairment. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on November 14, 2014. A hearing was held on June 1, 2015. 

By decision dated July 28, 2015, the hearing representative affirmed the November 6, 

2014 OWCP decision. He held that the probative medical evidence did not establish more than 

10 percent left lower extremity permanent impairment or 8 percent left upper extremity 

permanent impairment. 

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 FECA program with the Director of OWCP.3 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.4 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.5 

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. 

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

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

§ 8107(c)(1). 

5

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).6

 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.7

In determining impairment for the lower extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower 

extremity to be rated. With respect to the ankle, the relevant portion of the leg (foot) for the 

present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 

501.8 After the Class of Diagnosis (CDX) is determined from the Foot and Ankle Regional Grid 

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

grade modifier for Functional History (GMFH), grade modifier for Physical Examination 

(GMPE), and grade modifier for Clinical Studies (GMCS). The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

 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.10

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that DBI is the primary method of calculation for the lower limb and that most 

impairments are based on the DBI where impairment class is determined by the diagnosis and 

specific criteria as adjusted by the grade modifiers for functional history, physical examination, 

and clinical studies.11 Chapter 16 further provides: “Alternative approaches are also provided 

for calculating impairment for peripheral nerve deficits, complex regional pain syndrome, 

amputation, and [ROM]. [ROM] is primarily used as a physical examination adjustment factor 

and is only used to determine actual impairment values when it is not possible to otherwise 

define impairment.”12

ANALYSIS 

With respect to the left lower extremity, appellant received a schedule award on May 7, 

2012 for 10 percent permanent impairment. She submitted a report dated February 7, 2013 from 

Dr. Dunne, who opined that she had 18 percent permanent impairment to the left lower 

extremity. Dr. Dunne used a ROM method and reported that he was applying Tables 16-20 

 6 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). 

7 Isidoro Rivera, 12 ECAB 348 (1961). 

8 See A.M.A., Guides 501-07 (6th ed. 2009). 

9 Id. at 515-22. 

10 Id. at 23-28. 

11 Id. at 497. 

12 Id. 
6

through 16-22, and Table 16-25. The first question presented is whether a ROM method is 

appropriate in this case. 

As noted above, the DBI method is the primary method of lower extremity permanent 

impairment evaluation. The ROM method is used to determine actual impairment values of the 

lower extremities only when it is not possible to otherwise define impairment.13 Dr. Dunne fails 

to explain why the percentage of impairment could not be defined under Table 16-2. He refers to 

the lack of an applicable rating for the wrist in his February 7, 2013 report, but does not discuss 

the ankle. In his May 16, 2014 report, Dr. Dunne again discusses the upper extremity with 

respect to ROM. OWCP’s medical adviser identified the diagnosis of ankle fracture under Table 

16-2, which is an accepted condition. The Board finds that the medical adviser properly 

determined the left lower extremity impairment should be evaluated using the DBI method. 

OWCP’s medical adviser identifies class 1 (mild problem) for an ankle fracture with mild 

motion deficits and/or mild malalignments.14 This is consistent with the findings of Dr. Dunne. 

The medical adviser reported 10 degrees dorsiflexion and 20 degrees plantar flexion for the left 

ankle. Under Table 16-22, this is a mild impairment.15 Dr. Dunne also reported 5 degrees 

eversion and 15 degrees of inversion, which are mild impairments under Table 16-20.16 

The grade C (default) impairment is 10 percent under Table 16-2. The medical adviser 

applied the net adjustment formula noted above, and found an adjustment of -1 to a grade B 

impairment of eight percent. The net adjustment was based on grade modifiers for functional 

history of 1 (mild problem) and physical examination of 0 (stable, no consistent findings).17

The Board finds that the opinion of OWCP’s medical adviser represents the weight of the 

evidence with respect to left lower extremity permanent impairment. OWCP’s medical adviser 

properly applied the A.M.A., Guides using the DBI method, finding that the left lower extremity 

permanent impairment was eight percent. The probative evidence does not establish more than 

10 percent left lower extremity permanent impairment for which appellant previously received a 

schedule award. 

With respect to the upper extremity, the Board finds that the case is not in posture for 

decision. Dr. Dunne used the ROM method with respect to the upper extremity, opining that the 

DBI method was not appropriate in this case. 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 

 13 E.M., Docket No. 14-0311 (issued July 8, 2014). 

14 A.M.A., Guides 503, Table 16-2. 

15 Id. at 549 Table 16-22. While OWCP’s medical adviser referred to the ROM results as unreliable, Dr. Dunne 

indicated in his May 16, 2014 report that he followed A.M.A., Guides requirements for ROM. 

16 Id. at Table 16-20. 

17 See id. at 516-17, Table 16-6 and Table 16-7. The medical adviser did not use a grade modifier for clinical 

studies. When clinical studies are used to establish the diagnosis class, it is not used as a grade modifier. A.M.A., 

Guides 500. 
7

regarding the proper use of the DBI or the ROM methodologies when assessing the extent of 

permanent impairment for schedule award purposes.18 The purpose for 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 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 

methodologies. 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.20 

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 July 28, 2015 decision 

with respect to the upper extremity. 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 additional upper extremity schedule award. 

CONCLUSION 

The Board finds that appellant has failed to establish more than 10 percent left lower 

extremity permanent impairment, for which she previously received a schedule award. The 

Board further finds that the case is not in posture with respect to left upper extremity permanent 

impairment, and the case is therefore remanded for further development consistent with this 

decision. 

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

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

20 Supra note 18. 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 28, 2015 is affirmed with respect to left lower extremity 

permanent impairment, and set aside and remanded for further action consistent with this 

decision with respect to left upper extremity permanent impairment. 

Issued: March 27, 2017 

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