United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-1230 

Issued: July 7, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 24, 2016 appellant, through counsel, filed a timely appeal from a February 17, 

2016 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 to consider the merits of this case. 

ISSUE 

The issue is whether appellant has established more than five percent permanent 

impairment of the left upper extremity, for which she previously received a schedule award. 

 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

On appeal counsel contends there is an unresolved conflict in the medical opinion 

evidence. 

FACTUAL HISTORY 

On June 7, 2008 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on June 7, 2008 she injured her left leg and wrist when she fell on 

cracked pavement. OWCP accepted the claim for left closed distal radius fracture, abrasion of 

trunk without infection, abrasion of right elbow without infection, and left knee contusion, which 

was subsequently expanded to include left upper limb reflex sympathetic dystrophy. 

On June 5, 2014 appellant filed a claim for a schedule award (Form CA-7). In support of 

her claim, she submitted a March 4, 2014 impairment rating by Dr. David Weiss, a Boardcertified osteopathic physician. 

In the March 4, 2014 report, Dr. Weiss provided a history of appellant’s injury, reviewed 

prior medical reports and objective tests, and provided findings on physical examination. In an 

attached undated QuickDASH (QD) worksheet, rating the disabilities of the left arm, shoulder 

and hand, provided score of 36 percent. Dr. Weiss used appellant’s postoperative history, 

examination findings, diagnostic studies, and QD scores to process an impairment rating of the 

left upper extremity using the sixth edition of the American Medical Association, Guides to the 

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

 According to the Wrist Regional 

Diagnostic Grid, Table 15-3, he identified the left wrist fracture as class 1 with a default value of 

three percent.4 Using the QD score of 36 percent, Functional History (GMFH) equated to a 

grade modifier of 1;5 and Physical Examination (GMPE) a grade modifier of 2.6 Dr. Weiss 

indicated that Clinical Studies (GMCS) were not applicable. 

Applying the net adjustment formula at section 15-3, pages 409 and 411 of the A.M.A., 

Guides,

7

 Dr. Weiss subtracted 1, the numerical value of the class, from the numerical value of 

the grade modifier for each component (functional history and physical examination, as clinical 

studies was not applicable) and then added those values, resulting in a net adjustment of 1 ((1-1) 

+ (2-1)).8 Using the net adjustment value of 1 moved the grade within the class 1 position to the 

 3

 A.M.A., Guides (2009). 

4 Id. at 396. 

5 Id. at 406, Table 15-7. 

6 Id. at 408, Table 15-8. 

7 Id. at 409, 411. 

8 Id. 
3

right from 3 to 4 or a grade D.9

 This resulted in four percent left upper extremity impairment for 

the left wrist fracture.10

For appellant’s mild sensory deficit of the left median nerve above the mid forearm, 

Dr. Weiss indicated that appellant fell within class 1 of the Peripheral Nerve Impairment 

Diagnostic Grid at five percent using Table 15-21.11 Using the QD score of 36 percent, 

functional history equated to a grade modifier of 112 and a grade modifier of 4 for symptomatic 

clinical studies.13 As physical examination was not applicable, the net modifier adjustment 

formula was 3 which moved the rating from 1 to the right for 10 percent left median peripheral 

nerve impairment.14 Thus, Dr. Weiss concluded that appellant had a total seven percent 

permanent impairment of her left upper extremity for sensory deficit under the sixth edition of 

the A.M.A., Guides. 

For appellant’s moderate motor strength deficit of the left median nerve (grip), Dr. Weiss 

indicated that appellant fell within class 2 of the Peripheral Nerve Impairment Diagnostic Grid at 

17 percent using Table 15-21.15 He found a grade modifier of 1 for functional history due to 

mild problems and a grade modifier of 4 for symptomatic clinical studies. As physical 

examination was not applicable, the net modifier adjustment formula was a net adjustment of 1 

which moved the rating to the right to class D for 20 percent moderate left median nerve motor 

strength impairment.16 Thus, Dr. Weiss concluded that appellant had a total 31 percent 

permanent impairment of her left upper extremity under the sixth edition of the A.M.A., Guides. 

He found that appellant had reached maximum medical improvement (MMI) on March 4, 2014. 

On September 8, 2014 OWCP routed Dr. Weiss’ report, a statement of accepted facts 

(SOAF), and the case file to an OWCP district medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine. In a September 9, 2014 report, the medical adviser stated that 

appellant had reached MMI of the upper left extremity on March 14, 2014. Dr. Slutsky noted 

that complex regional pain syndrome (CRPS) was an accepted condition; however, the objective 

evidence was insufficient to warrant a schedule award. The medical adviser provided 

calculations regarding the wrist fracture using Table 15-3 of the Wrist Regional Diagnostic Grid 

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

17 He identified the left wrist fracture as class 1, assigned a 

 9 Id. at 396, Table 15-3.

10 Supra note 3. 

11 A.M.A., Guides 437, Table 15-21 

12 Id. at 406, Table 15-7. 

13 Id. at 411, Table 15-9. 

14 Supra note 11. 

15 Id. 

16 Supra note 11. 

17 Supra note 4. 
4

grade modifier of 2 for functional history;18 a grade modifier of 1 for physical examination due 

to left wrist range of motion19 and a grade modifier of 2 for x-rays under clinical studies.20 

Applying the net adjustment formula at section 15-3, pages 409 and 411 of the A.M.A., 

Guides,

21 resulted in a net adjustment of 2 ((2-1) + (1-1) + (2-1)).22 Using net adjustment 

formula, the value of 2 moved the grade within the class 1 position to the right from 3 to 5, or 

grade E.23 This resulted in five percent left upper extremity impairment. Thus, the medical 

adviser concluded that appellant had five percent permanent impairment of the left upper 

extremity. 

By decision dated April 29, 2015, OWCP granted appellant a schedule award for five 

percent permanent impairment of the left upper extremity. 

In a letter dated May 5, 2015, counsel requested an oral hearing before an OWCP hearing 

representative, which was held on September 24, 2015. 

In an October 9, 2015 report, Dr. Weiss reviewed the medical adviser’s September 9, 

2015 report and noted his disagreement with the medical adviser regarding an impairment rating 

for CRPS. He related that CRPS was an accepted condition. Dr. Weiss explained that there 

were two types of CRPS. In CRPS Type 1, neither the initiating causative factor nor the 

symptoms involve a specific peripheral nerve structure; therefore, the impairment is rated under 

Table 15-26 CRPS Type I. In CRPS Type II, a specific sensory of mixed nerve structure is 

involved; therefore, the rating is based on Table 15-21, peripheral nerve impingement upper 

extremity impairments.24 Dr. Weiss concluded that appellant had been diagnosed with CRPS 

Type II and that Table 15-21, page 437 was appropriate to be used in calculating her impairment 

rating. He reiterated that appellant was entitled to 31 percent left upper extremity permanent 

impairment rating based on his prior impairment rating. 

By decision dated December 9, 2015, an OWCP hearing representative set aside the 

April 29, 2015 decision and remanded the case for the medical adviser to review Dr. Weiss’ 

October 9, 2015 report. 

On January 12, 2016 OWCP routed the October 9, 2015 report, a SOAF, and the case file 

to a different medical adviser, Dr. Taisha S. Williams, a physiatrist. In a January 23, 2016 

report, Dr. Williams reviewed Dr. Weiss’ October 9, 2015 report and noted her disagreement 

with the diagnosis of CRPS. She related that appellant’s condition did not meet the criteria for 

 18 Id. at 406, Table 15-7. 

19 Id. at 409, Table 15-8. 

20 Id. at 419, Table 15-9. 

21 Id. at 409, 411 

22 Id. 

23 Id. at 396, Table 15-3. 

24 Id. at 451. 
5

CRPS under Table 15-24, page 453. Dr. Williams reported that the impairment rating remained 

unchanged from Dr. Slutsky’s prior finding of five percent left upper extremity permanent 

impairment. She found the date of MMI to be March 4, 2014. 

By decision dated February 17, 2016, OWCP denied appellant’s claim for an additional 

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 the FECA program with the Director of OWCP.25 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.26 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.27

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).28 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.29

 25 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

27 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

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

Chapter 2.808.5(a) (February 2013). 

29 Isidoro Rivera, 12 ECAB 348 (1961). 
6

The A.M.A., Guides notes that when impairment results strictly from a peripheral nerve 

lesion, no other rating method is applied to this section (15.4 Peripheral Nerve Impairment) to 

avoid duplication or unwarranted increase in the impairment estimation.30

Section 8123(a) provides that, if there is 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.31 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.32

ANALYSIS 

OWCP accepted the claim for left closed distal radial fracture, abrasion of trunk without 

infection, abrasion of right elbow without infection, left knee contusion, and left upper limb 

reflex sympathetic dystrophy. By decision dated April 29, 2015, it granted appellant a schedule 

award for five percent permanent left upper extremity impairment based upon the medical 

adviser’s opinion for fracture of the left wrist. OWCP denied her request for an additional 

schedule award in a February 17, 2016 decision. The issue on appeal is whether appellant has 

established more than five percent permanent impairment of the left upper extremity, for which 

she previously received a schedule award. 

The Board finds that this case is not in posture for decision due to a conflict in medical 

opinion between Dr. Weiss and the medical advisers as to whether appellant had ratable CRPS, 

thereby warranting an increased schedule award. 

In a September 9, 2014 report, Dr. Slutsky, the medical adviser, advised that based on the 

A.M.A., Guides appellant had five percent impairment of the left upper extremity. Using 

Table 15-3 of the Wrist Regional Diagnostic Grid sixth edition of the A.M.A., Guides, left wrist 

fracture, appellant had a class 1, grade E, five percent permanent impairment. Dr. Williams, a 

second medical adviser, concurred with Dr. Slutsky’s assessment. 

The medical advisers also noted that, while CRPS was an accepted condition, they 

disagreed with Dr. Weiss’ finding that appellant’s condition was ratable. The medical advisers 

related that pursuant to Table 15-24 on page 453 appellant’s CRPS was not ratable. 

By contrast, in reports dated March 4, 2014 and October 9, 2015, Dr. Weiss opined that 

appellant had a total 31 percent impairment of the left upper extremity. Specifically regarding 

CRPS, he calculated appellant’s permanent impairment for mild sensory deficit of the median 

 30 A.M.A., Guides at 423. The Board notes that the A.M.A., Guides provide that peripheral nerve impairment 

may be combined with DBIs at the upper extremity as long as the DBI does not encompass the nerve impairment. 

Id. at 419. 

31 5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008); 

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

32 A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB 

713 (2005). 
7

nerve using Table 15-21, Peripheral Nerve Impairment Diagnostic Grid. Dr. Weiss explained 

that, pursuant to the A.M.A., Guides, there were two types of CRPS. As appellant had CRPS 

Type II, his rating was based on Table 15-21 for peripheral nerve impairments. Dr. Weiss rated 

appellant’s permanent impairment for mild sensory deficit and moderate strength deficit of the 

median nerve using Table 15-21.33 

The Board finds there is an unresolved conflict in the medical opinion evidence 

concerning the extent of permanent impairment arising from appellant’s CRPS. Dr. Weiss 

determined that appellant was entitled to an impairment rating for CRPS under Table 15-21 of 

the A.M.A., Guides while the medical advisers determined appellant did not have a ratable 

CRPS, under Table 15-24, and therefore appellant was not entitled to an impairment rating for 

this condition. Therefore, in order to resolve the conflict in the medical opinions, the case will 

be remanded to OWCP for referral of the case record, including a SOAF and appellant, to an 

impartial medical specialist for a determination, in accordance with the relevant standards of the 

A.M.A., Guides, as to whether appellant and is entitled to an impairment rating for the CRPS. 

The Board further finds that the case is not in posture for decision with regard to the 

extent and degree of left upper extremity impairment regarding appellant’s left wrist fracture. 

Dr. Weiss utilized the diagnosis-based impairment (DBI) methodology to conclude that 

appellant’s left wrist fracture contributed to his overall 31 percent permanent impairment of the 

left upper extremity by four percent. In also utilizing the DBI methodology, the medical advisers 

concluded that the left wrist fracture was the only ratable impairment resulting in a total five 

percent permanent impairment of the left upper extremity. 

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 had been followed regarding the proper use of the DBI or the range of 

motion (ROM) methodology when assessing the extent of permanent impairment for schedule 

award purposes.34 The purpose of the use of uniform standards is to ensure consistent results and 

to ensure equal justice under the law to all claimants.35 In T.H., the Board concluded that 

OWCP’s physicians were 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 observed 

that physicians interchangeably cited to language in the first printing or the second printing when 

justifying use of either ROM or DBI methodology. Because OWCP’s own physicians were 

inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no 

longer ensure consistent results and equal justice under the law for all claimants.36 

 33 Id. at 438. 

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

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

36 Supra note 34. 
8

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the February 17, 2016 decision. Utilizing 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 a left upper extremity schedule award. 

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this opinion, to be followed by a de novo decision. 

Issued: July 7, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board