United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, OR, Employer 

__________________________________________ 

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Docket No. 16-1189 

Issued: May 4, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 13, 2016 appellant, through counsel, filed a timely appeal from an April 4, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has established a permanent impairment of her right upper 

extremity due to her work-related injuries sufficient to warrant 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

FACTUAL HISTORY 

On June 16, 2011 appellant, then a 39-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that same date she sustained a broken right wrist and right 

forearm when she was struck by a tow motor. OWCP accepted the claim for closed fracture of 

lower end of the right radius; closed fracture of upper end of the right ulna; closed fracture of 

shaft radius and right ulna; and right shoulder adhesive capsulitis. Appellant stopped work on 

the date of injury and received wage-loss compensation. She returned to work on December 5, 

2011 in a part-time limited-duty capacity. 

By letter dated December 23, 2014, Dr. Hoang Nguyen, Board-certified in internal 

medicine, reported that appellant had reached maximum medical improvement (MMI). 

On January 26, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated February 9, 2015, OWCP requested that appellant submit an impairment 

evaluation from her attending physician in accordance with the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009).3 It 

provided her 30 days to submit the requested evidence. 

In support of her claim, appellant submitted a February 19, 2015 impairment evaluation 

from Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon. Dr. Gritzka provided a 

detailed medical history and findings on physical examination. He reported findings regarding 

the right shoulder of 4/5 motor strength and intact sensation, negative Tinel’s test, positive 

Phalen’s test, no right shoulder crepitus, negative apprehension and adduction tests, and negative 

impingement sign. Range of motion (ROM) was 120 degrees right shoulder extension, 120 

degrees right elbow extension, right wrist 35 degrees flexion, 45 degrees extension, 20 degrees 

ulnar deviation, and 10 degrees radial deviation; and right thumb 45 degrees abduction. 

Dr. Gritzka reported that the most accurate way to rate appellant’s impairment was as a 

stand-alone entity using the ROM method. Utilizing the sixth edition of the A.M.A., Guides at 

Table 15-30 (thumb ROM),4

 Table 15-33 (elbow/forearm ROM),5 and Table 15-11 (impairment 

values calculated from upper extremity impairment),6 he opined that appellant sustained a 

combined 26 percent permanent impairment of the right upper extremity referable to loss of 

ROM in the shoulder, elbow, wrist, and thumb. 

On April 9, 2015 OWCP routed Dr. Gritzka’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. Kenneth D. Sawyer, a Board-certified surgeon serving as an 

OWCP district medical adviser (DMA), for review and determination regarding whether 

appellant sustained a permanent impairment of the right upper extremity and the date of MMI. 

 3

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

4 Id. at 468. 

5 Id. at 474. 

6 Id. at 420. 
3

In an April 14, 2015 report, Dr. Sawyer reported that Dr. Gritzka had found a combined 

26 percent impairment of the upper right extremity based on loss of right shoulder, elbow, and 

wrist motion, as well as decreased right thumb motion not previously identified. He disagreed 

with Dr. Gritzka’s findings and noted that the physician used the ROM rating methodology 

instead of the “preferred” diagnosis-based impairment (DBI) method also contained in the 

A.M.A., Guides. Dr. Sawyer noted that Dr. Gritzka had not reported his motion measurements 

rounded to the nearest 10 degrees as required by the A.M.A., Guides which would change the 

rating to 23 percent permanent impairment of the right upper extremity.7

 He further noted that 

Dr. Gritzka had not provided complete ROM loss findings as required under the A.M.A., Guides, 

including a report of multiple (at least three) measurements and a comparison of active to passive 

motion.8

 Dr. Sawyer noted that appellant’s prior examinations revealed greater ROM than the 

findings provided by Dr. Gritzka and varied significantly from 2011 through 2015. The DMA 

noted that where active movement varies between examiners, the measurements should be 

deemed invalid due to variation of the evidence.9

 He concluded that Dr. Gritzka had failed to 

determine MMI and suggested a new rating examination by a different examiner. 

By letter dated June 1, 2015, OWCP provided Dr. Gritzka a copy of Dr. Sawyer’s 

April 14, 2015 report and the SOAF for review requesting that he respond to the concerns 

presented by the DMA within 30 days. No further evidence was received. 

By decision dated July 6, 2015, OWCP denied appellant’s claim for a schedule award 

finding that the medical evidence failed to establish that her condition had reached a fixed and 

permanent state. 

On July 13, 2015 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

In support of her claim, appellant submitted a June 10, 2015 supplemental report from 

Dr. Gritzka following his review of Dr. Sawyer’s assessment. Dr. Gritzka reported that he had 

performed three ROM measurements and noted that, if three measurements of a specific range 

were close (within six percent of each other), the lowest ROM or that which would give the 

greatest impairment should be used. He explained that appellant’s motion, when assessed 

repetitively, deteriorated and thus he used the lowest of the three measurements. Dr. Gritzka 

explained that the measurements he reported did not differ greatly from those reported by the 

other physicians of record. He opined that appellant reached MMI in December 2011 when she 

returned to work with restrictions. Dr. Gritzka argued that Dr. Sawyer had provided a similar 

impairment rating at 23 percent verses his 26 percent impairment of the upper right extremity. 

He noted that he was essentially on the same page with Dr. Sawyer and that a reasonable 

approach would be to split the difference and assign appellant a 24.5 percent impairment of the 

upper right extremity. Dr. Gritzka concluded that his 26 percent impairment rating was based on 

his measurements, including repetitive measurements of the same motion and comparison of 

 7 Id. at section 15.7a, page 461. 

8 Id. 

9 Id. at 425. 
4

active and passive ROM, while acknowledging that the same individual may have slightly 

different impairments based on physical examination from day to day. 

At the February 29, 2016 hearing, counsel for appellant testified that appellant’s prior 

examinations which, revealed varying ROM measurements, were of no probative value as the 

reports were stale. Counsel argued that Dr. Gritzka’s June 10, 2015 report provided the 

appropriate rationale for her right upper extremity impairment. 

By decision dated April 4, 2016, OWCP’s hearing representative denied modification of 

the July 6, 2015 decision finding the evidence insufficient to establish any permanent impairment 

to a member or function of the body. He found that appellant’s treating physicians had not 

properly evaluated using the preferred DBI method. Therefore, the hearing representative 

concluded that the weight of the medical evidence rested with Dr. Sawyer, serving as OWCP’s 

DMA, who properly evaluated her permanent impairment under the DBI method utilizing the 

A.M.A., Guides. 

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.10 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.11 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 A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.12 

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).13 The Board has approved the use by OWCP of the A.M.A., 

 10 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

12 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

13 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). 
5

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.14

ANALYSIS 

OWCP accepted appellant’s claim for closed fracture of the lower end of the right radius, 

closed fracture of the upper end of the right ulna, closed fracture of the shaft radius and right 

ulna, and right shoulder adhesive capsulitis. The issue is whether appellant sustained any 

permanent impairment to a scheduled member. 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.15 

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

justice under the law to all claimants.16 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 methodology. 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.17 

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 April 4, 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 that this case is not in posture for a decision. 

 14 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

17 Supra note 15. 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: May 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board