United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.W., Appellant

and

DEPARTMENT OF THE NAVY, NAVAL 

EXPEDITIONARY MEDICAL SUPPORT, 

Williamsburg, VA, Employer

__________________________________________

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Docket No. 17-0791

Issued: December 14, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 February 28, 2017 appellant filed a timely appeal from a December 20, 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 has met her burden of proof to establish permanent 

impairment to a scheduled member, for schedule award purposes.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On September 15, 2014 appellant, then a 53-year-old support service assistant, filed a 

traumatic injury claim (Form CA-1) alleging that on September 10, 2014, while leaving a workrelated training session, she tripped on uneven pavement and fell bruising the top of her right hand 

and breaking her ring and little finger. OWCP accepted her claim for right little finger comminuted 

fracture or proximal interphalangeal (PIP) joint and left hand abrasion. It authorized surgeries that 

were performed on September 17 and December 19, 2014. Initial medical reports dated 

September 10, 2014 from Dr. Matt A. Uzer, a Board-certified internist specializing in emergency 

medicine, diagnosed closed phalanx fracture and abrasion of the left hand. An x-ray of the right 

hand of even date revealed acute fracture head of the fifth right proximal phalanx and lucent lesions 

within the fourth proximal phalanx. 

On September 17, 2014 Dr. Nicholas A. Smerlis, a Board-certified orthopedist, performed 

an authorized open reduction of articular fracture involving the PIP joint with fixation. He 

diagnosed right little comminuted articular fracture involving the PIP joint. In reports dated 

September 19 to November 25, 2014, Dr. Smerlis noted that appellant had transitioned to 

nighttime splinting and therapy focused on range of motion on the ulnar aspect of the hand. X-rays 

of the finger dated November 25, 2014 revealed acceptable alignment of fracture and hardware 

without intervening complications. Dr. Smerlis recommended removal of hardware from the right 

little finger with extensor tenolysis and PIP joint capsulectomy. On December 19, 2014 he

performed a capsulectomy of the right little PIP joint, tenolysis of the right little extensor tendon, 

and removal of hardware of the right little finger. Dr. Smerlis diagnosed right little articular 

fracture involving the PIP joint with retained hardware, PIP joint capsular adhesions, and extensor 

tendon adhesions. On February 13, 2015 he noted mild volar subluxation of the PIP joint by x-ray 

and opined that improvement in the PIP joint extension was not anticipated and would be 

accompanied by post-traumatic degenerative changes. Dr. Smerlis noted that there would be 

residual partial impairment. 

Appellant underwent occupational therapy from September 23, 2014 to March 6, 2015. 

A January 2, 2015 magnetic resonance imaging (MRI) scan of the right hand revealed 

extensive lobulated marrow replacing process from the base to the head of the right fourth proximal 

phalanx, and postoperative changes seen in the region of the fifth PIP joint related to previous open 

reduction internal fixation and hardware removal. 

Appellant was reexamined by Dr. Smerlis on April 10, 2015 who noted that she recovered 

grip strength and was gradually returning to full duty without restrictions. Dr. Smerlis diagnosed 

closed fracture of the middle or proximal phalanx of the hand, benign neoplasm of connective and 

other soft tissue of upper limb, and bone lesion. On May 8, 2015 he noted appellant’s history of 

injury and diagnosed closed fracture of the middle or proximal phalanx or phalanges of the right 

hand. Dr. Smerlis noted that she was status post right articular fracture involving the PIP joint, 

status post open reduction internal fixation, subsequent removal and tenolysis/contracture. He

advised that appellant had reached maximum medical improvement (MMI) without permanent 

restrictions. Dr. Smerlis opined that she had nine percent permanent impairment of her hand 

pursuant to the fifth edition of the American Medical Association, Guides to the Evaluation of 
3

Permanent Impairment, (A.M.A., Guides).

3

 He noted findings on examination of the right little 

finger “+20 (0%)/ 80 (6%) MCP [metacarpophalangeal], -75 (52%) / 95 (3%) PIP, -5 (1%) / 30 

(21%) DIP [distal interphalangeal].” With regard to the right ring finger Dr. Smerlis noted findings 

of “+10 (3%) / 80 (6%) MCP, -25 (9%) / 105 (0%) PIP, 0 (0%)/55 (7%) DIP.” He noted “Grip 

96% 45/47, 71% 22/31, 65% 30/46, 49% 18/37.” Dr. Smerlis opined that loss of range of motion 

for the right little finger yielded 68 percent digit impairment4 which converted to 7 percent hand 

impairment, pursuant to Table 16-1 of the A.M.A., Guides. He further noted that loss of range of 

motion for the right finger yielded 22 percent digit impairment5 which converted to 2 percent hand 

impairment, pursuant to Table 16-1 of the A.M.A., Guides. Dr. Smerlis opined that appellant had 

nine percent impairment rating of the right hand. 

In a report dated January 15, 2016, Dr. Smerlis treated appellant for increasing right hand 

pain radiating to the wrist. He noted a history of injury and diagnoses. Dr. Smerlis noted findings 

on examination of the right little finger of healed surgical incision without hypertrophy or 

tenderness, no gross laxity to radial or ulnar stress, moderate tenderness at the PIP joint, no atrophy, 

intact sensory and motor function in the median, radial and ulnar nerves. He noted range of motion 

for the right little finger of “+20 (+20)/80 (80) MCP, -80 (-75)/95 (95) PIP, -5 (-5) / 30 (30) DIP.”

Dr. Smerlis recommended symptomatic management including splinting, oral medications, topical 

medications therapy, injections, and trial compounding transdermal pain formulation.

On August 23, 2016 appellant filed a claim for a schedule award (Form CA-7). 

On September 12, 2016 OWCP requested that appellant submit a detailed report from

her treating physician which provided an impairment evaluation pursuant to the sixth edition of

the A.M.A., Guides.

6

 It specifically requested an opinion as to whether she had reached MMI, a

diagnosis upon which the impairment was based including surgery and a detailed description of

objective and subjective complaints, a detailed description of any permanent impairment, a final

rating of permanent impairment, and a discussion of the rationale for the calculation of

impairment with references to the applicable criteria and tables in the A.M.A., Guides. 

Appellant submitted reports from Dr. Smerlis dated September 15, 2014 to January 15, 

2016 and a right hand MRI scan dated September 12, 2016, all previously of record.

On November 9, 2016 OWCP’s medical adviser, reviewed the record, including

Dr. Smerlis’ May 8, 2015 report. He noted that an impairment rating for the diagnosis of an intraarticular proximal phalanx fracture of the right small finger could not be calculated because of a 

lack of information. The medical adviser requested a detailed history of appellant’s current 

complaints including pain at rest and with activity, the ability to perform self-care activities, 

 

3 A.M.A., Guides (5th ed. 2001).

4

Id. at Figure 16-21, Figure 16-23, and Figure 16-25.

5

Id.

6 A.M.A., Guides (6th ed. 2009).
4

physical findings including alignment of the phalanx fracture, valid finger range of motion 

measurements, and the most recent x-rays.

On November 15, 2016 OWCP requested that Dr. Smerlis submit a detailed report which

provided an impairment evaluation pursuant to the sixth edition of the A.M.A., Guides.

7

 It

specifically requested an opinion including a detailed description of any permanent impairment,

a final rating of permanent impairment, and a discussion of the rationale for the calculation of

impairment with references to the applicable criteria and tables in the sixth edition of the 

A.M.A., Guides.

On December 2, 2016 Dr. Smerlis resubmitted his report dated May 8, 2015.

By decision dated December 20, 2016, OWCP denied appellant’s claim for a schedule 

award because the evidence of record was insufficient to establish permanent impairment to a 

scheduled member due to her accepted work injury.

LEGAL PRECEDENT

The schedule award provision of FECA8and its implementing federal regulations,9set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions issued 

beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.11

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).12 Under the sixth edition, for upper extremity impairments the evaluator 

identifies the impairment class of diagnosis (CDX) condition, which is then adjusted by grade 

modifiers based on functional history (GMFH), physical examination (GMPE), and clinical studies 

(GMCS).13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14 

 

7

Id. 

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404. 

10 Id. at § 10.404(a).

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

2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

12 A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.

13 Id. at 385-419.

14 Id. at 411.
5

The grade modifiers are used on the net adjustment formula described above to calculate a net 

adjustment. The final impairment grade is determined by adjusting the grade up or down the 

default value C, by the calculated net adjustment.15

The Board has held that where the residuals of an injury to a member of the body specified 

in the schedule award provisions of FECA16 extend into an adjoining area of a member also 

enumerated in the schedule, such as an injury of a finger into the hand, of a hand into the arm or 

of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use 

of the larger member.17

ANALYSIS

The Board finds that the case is not in posture for decision.

In support of her claim for a schedule award appellant submitted a May 8, 2015 report from

Dr. Smerlis who diagnosed closed fracture of the middle or proximal phalanx or phalanges of the 

right hand. Dr. Smerlis noted that she was status post right articular fracture involving the PIP 

joint, status post open reduction internal fixation, and subsequent removal and tenolysis/

contracture. He noted findings on examination and referenced the fifth edition of the A.M.A., 

Guides noting that loss of range of motion for the right little finger yielded 68 percent digit 

impairment18 or 7 percent hand impairment under Table 16-1. Dr. Smerlis further found that loss 

of range of motion of the right finger yielded 22 percent digit impairment19 or 2 percent hand 

impairment under Table 16-1. 

In order to further develop the claim as to the nature and extent of permanent impairment, 

on November 9, 2016 OWCP’s medical adviser reviewed Dr. Smerlis’ report and noted that an 

impairment rating could not be calculated because of a lack of information. The district medical 

adviser (DMA) requested that an updated medical report be obtained from the attending physician 

to provide a detailed history of appellant’s current complaints including pain at rest and with 

activity and the ability to perform self-care activities, physical findings including alignment of the 

phalanx fracture and valid finger range of motion measurements, and the most recent x-rays. 

On November 15, 2016 OWCP requested that Dr. Smerlis submit a detailed report 

addressing the physical examination findings that the DMA had noted that he required to complete 

a rating of permanent impairment under the sixth edition of the A.M.A., Guides. On December 2, 

2016 Dr. Smerlis merely resubmitted his report dated May 8, 2015, which had previously been 

 

15 Id. at 387.

16 5 U.S.C. § 8107.

17 Asline Johnson, 42 ECAB 619 (1991); Manuel Gonzales, 34 ECAB 1022 (1983). See supra note 11 at Chapter 

2.808.5(e) (February 2013).

18 Supra note 4.

19 Supra note 4.
6

found deficient by the DMA. Without further claim development, by decision dated 

December 20, 2016, OWCP denied appellant’s schedule award claim. 

Proceedings under FECA are not adversarial in nature, nor was OWCP a disinterested 

arbiter. While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence.20 It has the obligation to see 

that justice is done. Accordingly, once OWCP undertakes to develop the medical evidence 

further, it has the responsibility to do so in the proper manner.21

OWCP’s DMA reported that the physical findings reported by Dr. Smerlis were 

insufficiently detailed to calculate a rating of permanent impairment under the sixth edition of 

the A.M.A., Guides. Dr. Slutsky indicated that a permanent impairment rating could not be 

performed due to a “lack of information.” However, the Board finds that Dr. Smerlis provided 

range of motion findings, but Dr. Slutsky provided no explanation as to the deficiencies in those 

findings in his medical report. The Board notes that OWCP procedures require that if the DMA 

believes that the impairment has not been correctly described by the claimant’s physician or the 

second opinion examiner, the DMA should specify the missing information so that it can be 

requested.22 Herein, the Board cannot discern the missing information necessary to complete an 

impairment evaluation. The case will accordingly be remanded to OWCP for further development. 

After such further development as is deemed necessary, and shall issue a de novo decision

consistent with this decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

20 R.B., Docket No. 08-1662 (issued December 18, 2008).

21 See P.D., Docket No. 15-1111 (issued December 7, 2015).

22 Supra note 17 at Chapter 2.808.6(d) (February 2013); see also id. Chapter 2.808.6(f)(2)(c) (February 2013) (when 

OWCP’s medical adviser believes that the permanent impairment has not been properly described, a new evaluation 

may be obtained).
7

ORDER

IT IS HEREBY ORDERED THAT the December 20, 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: December 14, 2018

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