United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.B., Appellant 

and 

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

New York, NY, Employer 

__________________________________________ 

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Docket No. 16-0814 

Issued: February 22, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 15, 2016 appellant, through counsel, filed a timely appeal from a 

November 13, 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 met her burden of proof to establish more than three 

percent permanent impairment of the right arm, for which she previously received a schedule 

award. 

On appeal, counsel contends that the medical opinion of Dr. Robert F. Draper, Jr., a 

Board-certified orthopedic surgeon and OWCP referral physician, cannot carry the weight of the 

medical opinion evidence because he did not reference the July/August 2009 The Guides 

Newsletter to rate impairment of appellant’s cervical condition. He further contends that 

Dr. Draper failed to explain how he calculated his one percent right shoulder impairment rating. 

FACTUAL HISTORY 

OWCP accepted that on February 18, 2009 appellant, then a 64-year-old workers’ 

compensation claims examiner, sustained a right fracture of the carpal bone, neck sprain, and 

right shoulder impingement when she slipped in a building lobby at work. She stopped work on 

the date of injury. On June 29, 2009 appellant returned to full-time limited-duty work with 

restrictions. The employing establishment terminated her employment, effective July 31, 2009, 

due to unsatisfactory/unacceptable work performance. 

In an October 19, 2009 decision, OWCP terminated appellant’s wage-loss compensation 

for partial disability, effective July 31, 2009. It found that the medical evidence of record 

established that she would have been able to continue working in her limited-duty position at the 

employing establishment had she not been terminated for cause. That decision was affirmed on 

March 15, 2010 by an OWCP hearing representative. 

In a March 2, 2011 medical report, Dr. David Weiss, an attending osteopath, found that 

appellant had 16 percent permanent impairment of the right upper extremity pursuant to the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter A.M.A., Guides). He diagnosed chronic post-traumatic cervical strain 

and sprain, aggravation of preexisting, age-related, multilevel discogenic disease of the cervical 

spine, right upper extremity radiculitis, post-traumatic acromioclavicular joint arthropathy with 

impingement to the right shoulder, status post triquetral fracture to the right wrist, and posttraumatic right carpal tunnel syndrome. Dr. Weiss’ impairment rating was based on appellant’s 

right shoulder range of motion deficit, entrapment neuropathy of the right median nerve of the 

wrist, and right wrist triquetral fracture. He concluded that she had reached maximum medical 

improvement (MMI) on the date of his examination. 

On May 5, 2012 appellant filed a claim for a schedule award (Form CA-7). 

On July 10, 2012 Dr. Daniel O. Zimmerman, an OWCP medical adviser who is a Boardcertified internist, reviewed the medical evidence, and advised that Dr. Weiss’ March 2, 2011 

report could not be used to calculate a schedule award as his impairment ratings were based on 

conditions not accepted by OWCP and he used the range of motion method to rate impairment of 

appellant’s right shoulder. 
3

By letter dated August 22, 2012, OWCP referred appellant to Dr. Robert A. Smith, a 

Board-certified orthopedic surgeon, for a second opinion evaluation to determine her permanent 

impairment. In a September 14, 2012 medical report, Dr. Smith rated 10 percent permanent 

impairment of the right arm under the sixth edition of the A.M.A., Guides. He concluded that 

appellant had reached MMI on February 18, 2010, which was one-year post injury. 

On September 19, 2012 Dr. Zimmerman reviewed the medical record, including 

Dr. Smith’s findings and agreed that appellant had 10 percent permanent impairment of the right 

upper extremity under the sixth edition of the A.M.A., Guides. He further found that she had 

eight percent permanent impairment of the cervical spine and two percent permanent impairment 

of the right shoulder. Dr. Zimmerman reported no impairment due to a right avulsion triquetral 

fracture. He agreed with Dr. Smith’s finding that appellant had reached MMI on 

February 18, 2010. 

In a November 2, 2012 report, Dr. Weiss found that appellant had 17 percent permanent 

impairment of the right upper extremity based on the sixth edition of the A.M.A., Guides. His 

impairment rating was based on appellant’s right shoulder range of motion deficit, right wrist 

triquetral fracture, and peripheral nerve root impairment at C5 and C6. Dr. Weiss concluded that 

she had reached MMI on March 2, 2011, the date of his prior report. 

On December 5, 2012 Dr. Zimmerman again reviewed the medical record, including 

Dr. Weiss’ new report and advised that the 10 percent right upper extremity impairment rating 

remained the same. He noted that he had previously explained why Dr. Weiss’ March 2, 2011 

report could not be used to process an impairment rating for a schedule award. Dr. Zimmerman 

found no information in Dr. Weiss’ November 2, 2012 report that would require any 

modification of the right upper extremity impairment rating provided in his September 19, 2012 

report. On December 28, 2012 he noted Dr. Smith’s impairment evaluation and maintained that 

Dr. Weiss’ report did not suggest that the conditions for which his impairment ratings were 

considered had changed. 

By letter dated January 11, 2013, OWCP referred appellant to Dr. Noubar A. Didizian, a 

Board-certified orthopedic surgeon, for another second opinion evaluation. In a February 15, 

2013 report, Dr. Didizian found that appellant had seven percent permanent impairment of the 

right upper extremity. He determined that she had reached MMI on the date of his examination. 

On March 15, 2013 Dr. Zimmerman reviewed the medical record, including 

Dr. Didizian’s February 15, 2013 report. He agreed with Dr. Didizian’s seven percent right 

upper extremity impairment rating and date of MMI. 

On April 1, 2013 OWCP found a conflict in medical opinion between Dr. Weiss, 

Dr. Smith, and Dr. Didizian regarding the extent of appellant’s permanent impairment. By letter 

dated April 17, 2013, it referred her, together with the case record, a list of questions, and a 

statement of accepted facts (SOAF), to Dr. Edward B. Krisiloff, a Board-certified orthopedic 

surgeon, for an impartial medical examination. 

In a May 7, 2013 report, Dr. Krisiloff found that appellant had three percent whole person 

impairment of the cervical spine due to symptomatic degenerative disc disease, two percent 
4

impairment of the right shoulder due to a sprain/strain, and one percent impairment of the right 

wrist joint. He utilized Table 17-2, Table 15-5, and Table 15-3, pages 564, 401, and 395 of the 

sixth edition of the A.M.A., Guides to rate impairment of her cervical spine, right shoulder, and 

right wrist, respectively. Dr. Krisiloff determined that appellant had reached MMI on 

February 18, 2010, one year after her date of injury. 

On June 19, 2013 Dr. Morley Slutsky, an OWCP medical adviser who is Board-certified 

in preventive medicine, reviewed the medical record, including Dr. Krisiloff’s report. He 

advised that he was unable to determine if Dr. Krisiloff correctly applied the A.M.A., Guides. 

Dr. Slutsky recommended that OWCP obtain a supplemental report from Dr. Krisiloff clarifying 

how he used the A.M.A., Guides to calculate his impairment ratings. 

In a June 24, 2013 decision, OWCP granted appellant a schedule award for one percent 

impairment of the right wrist and two percent impairment of the right shoulder, totaling three 

percent permanent impairment of the right arm based on Dr. Krisiloff’s May 7, 2013 report. It 

paid her compensation for 9.36 weeks from February 18 to April 24, 2010. OWCP stated that 

additional development of the medical evidence was necessary to determine whether appellant 

had permanent aggravation of her underlying cervical disc disease based on Dr. Krisiloff’s three 

percent whole impairment rating for symptomatic cervical disc disease. 

By letter dated July 1, 2013, appellant, through counsel, requested an oral hearing before 

an OWCP hearing representative. 

In a September 6, 2013 decision, an OWCP hearing representative set aside the June 24, 

2013 decision and remanded the case for OWCP to refer appellant for a new second opinion 

examination to determine the nature and extent of her right upper extremity impairment. She 

found that OWCP had improperly found a conflict in medical opinion between Dr. Weiss, 

Dr. Smith, and Dr. Didizian, finding that Dr. Weiss had not provided a rationalized medical 

opinion to establish that appellant’s right arm and cervical conditions were causally related to the 

accepted February 18, 2009 employment injuries. The hearing representative further found that 

Dr. Smith had not provided a rationalized opinion to establish a causal relationship between 

appellant’s cervical condition and the accepted work injuries, Dr. Didizian had not addressed this 

matter, and there could be no conflict between these physicians because they were both OWCP 

second opinion physicians. Moreover, she found that Dr. Krisiloff’s report did not have special 

weight as Dr. Slutsky was unable to determine whether he had properly utilized the A.M.A., 

Guides to rate appellant’s impairment. 

On remand, QTC Medical Services referred appellant to Dr. Draper for a second opinion 

examination. In a November 19, 2013 report, Dr. Draper reviewed the SOAF and appellant’s 

medical history and examined appellant. He reported range of motion measurements for the 

cervical spine, right elbow, right forearm, right wrist, right fingers, and right shoulder. 

Dr. Draper also reported motor function of +5 for the right and left deltoids, biceps, triceps, wrist 

and finger extensors and flexors and finger grip strength. Reflex function for the brachioradialis, 

biceps, and triceps was reported as +1 for the right and left. Light touch sensation was normal 

from the C2 to T1 dermatomes. A compression test was negative with a tilt to the right and left. 

The right hand had no thenar or hypothenar atrophy. Light touch sensation was normal at the tip 
5

of the index finger and little finger. A Phalen’s sign was negative. The right shoulder had 

negative a Yergason’s sign, impingement test, and Hawkins’ sign. 

Dr. Draper diagnosed degenerative cervical disc disease at multiple levels without 

cervical radiculopathy, right shoulder impingement syndrome, right carpal bone fracture (healed 

dorsal triquetral avulsion-type fracture), and right carpal tunnel syndrome. Utilizing the 

diagnosis-based impairment rating method, under Table 15-5 of the A.M.A., Guides, he found 

that appellant’s right shoulder impingement syndrome represented a class 1 impairment, grade C 

default value which yielded one percent impairment. Dr. Draper assigned grade modifiers 1 for 

GMFH, GMPE, and GMCS. He applied the net adjustment formula and concluded that 

appellant had one percent right arm impairment due to her shoulder condition. Utilizing Table 

15-2, page 396, Dr. Draper classified her right carpal triquetral avulsion fracture as a class 1 

impairment. He assigned grade modifiers 1 for GMFH, GMPE, and GMCS. Dr. Draper applied 

the net adjustment formula and found that appellant had three percent right arm impairment for 

this condition. Utilizing Table 15-23, page 449, he assigned grade modifiers 1 for GMFH, 

GMPE, and GMCS due to appellant’s right carpal tunnel syndrome. Dr. Draper applied the net 

adjustment formula and found that she had two percent right arm impairment. He added these 

impairment ratings to calculate five percent arm impairment attributable to the right wrist. 

Dr. Draper then added the one percent impairment for the right shoulder and five percent for the 

right wrist to yield six percent permanent impairment of the right upper extremity. He advised 

that his clinical examination did not reveal any specific findings consistent with a cervical 

radiculopathy and, thus, concluded that there was no additional impairment due to this condition. 

On November 29, 2013 Dr. Zimmerman reviewed Dr. Draper’s report and disagreed with 

his right wrist impairment ratings. He noted that OWCP had not accepted appellant’s claim for 

carpal tunnel syndrome or wrist fracture. Dr. Zimmerman noted that a triquetral fracture was a 

carpal bone, not a wrist bone. He maintained that Dr. Draper’s impairment ratings for the right 

wrist fracture and right carpal tunnel syndrome were not usable for schedule award purposes as 

the medical documentation did not address how these conditions were due to or a consequence of 

the accepted February 18, 2009 employment injuries. Dr. Zimmerman noted that Dr. Draper’s 

one percent right shoulder impairment rating was less than the two percent impairment already 

processed, and, thus it had no impact. He related that his finding of no cervical impairment also 

had no impact. Dr. Zimmerman concluded that Dr. Draper’s report did not establish greater right 

upper extremity impairment. 

In a January 15, 2014 decision, OWCP found that the weight of the medical evidence 

rested with the opinions of Drs. Draper and Zimmerman and concluded that appellant was not 

entitled to a schedule award greater than that which was previously awarded for the right upper 

extremity. 

By letter dated January 30, 2014, counsel requested an oral hearing before an OWCP 

hearing representative, which was held on June 12, 2014. 

In an August 29, 2014 decision, an OWCP hearing representative set aside the 

January 15, 2014 decision and remanded the case for OWCP to obtain clarification from 

Dr. Draper as to whether appellant’s cervical degenerative disc disease was caused or aggravated 

by the accepted February 18, 2009 employment injuries. She also requested that it obtain 
6

clarification from Dr. Zimmerman regarding whether he understood that his eight percent 

cervical impairment rating had not been awarded and an opinion from him on the extent of 

appellant’s impairment based on the accepted conditions. 

On October 22, 2014 Dr. Draper reviewed a SOAF that superseded all prior SOAFs. In 

response to OWCP’s question, he opined that there was a temporary aggravation of appellant’s 

degenerative cervical disc disease and multilevel spondylotic ridge bulging disc complexes at 

C3-4, C4-5, C-6, and C6-7 without focal herniation. Careful review of a magnetic resonance 

imaging (MRI) scan showed no structural changes that were traumatically induced or the result 

of trauma. Consequently, Dr. Draper determined that there was no structural change that was 

traumatically induced with respect to the cervical disc pathology. He concluded that there was 

no evidence of permanent aggravation of the preexisting degenerative cervical disc disease and 

cervical spondylotic ridge with bulging disc complexes. Dr. Draper noted that a temporary 

aggravation would last two to four months from February 18, 2009, the date of injury. He found 

no evidence of permanent aggravation of preexisting cervical conditions during his 

November 19, 2013 examination. Dr. Draper related that the conclusions in that report remained 

the same. 

By decision dated January 20, 2015, OWCP found that appellant had no permanent 

impairment of the cervical spine based on Dr. Draper’s October 22, 2014 report. 

In a letter dated January 27, 2015, counsel requested an oral hearing before an OWCP 

hearing representative, which was held on August 28, 2015. 

By decision dated November 13, 2015, an OWCP hearing representative affirmed the 

January 20, 2015 decision. She found that the weight of the medical evidence rested with the 

opinion of Dr. Draper and concluded that appellant was not entitled to a schedule award greater 

than that which was previously awarded for the right upper extremity or a schedule award for 

impairment to the cervical spine. 

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 the Office of Workers’ 

Compensation Programs.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 American 

 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). 
7

Medical Association, Guides to the Evaluation of Permanent Impairment 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. 

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

ANALYSIS 

The issue on appeal is whether appellant has met her burden of proof to establish more 

than three percent impairment of the right arm, for which she previously received a schedule 

award. 

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 diagnosis-based 

impairment or the range of motion methodology when assessing the extent of permanent 

impairment for schedule award purposes.8

 The purpose of the use of uniform standards is to 

ensure consistent results and to ensure equal justice under the law to all claimants.9 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 

diagnosis-based impairment and range of motion 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 range of motion 

or diagnosis-based impairment methodology. Because OWCP’s own physicians are inconsistent 

 5

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

6

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

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

7 Isidoro Rivera, 12 ECAB 348 (1961). 

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

9 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
8

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.10 

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 November 13, 2015 

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 November 13, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: February 22, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 10 Supra note 8.