United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.F., Appellant 

and 

DEPARTMENT OF THE ARMY, LUCIUS D. 

CLAY KASERNE ARMY GARRISON, 

Wiesbaden, Germany, Employer 

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Docket No. 16-1847 

Issued: April 18, 2017 

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 September 19, 2016 appellant filed a timely appeal from an April 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. 

ISSUE 

The issue is whether appellant established more than two percent permanent impairment 

of the right upper extremity and one percent permanent impairment of the left upper extremity 

for which he previously received schedule awards. 

On appeal appellant asserts that the opinion of the attending orthopedist, who identified 

impairments of 15 percent of the right upper extremity and 15 percent on the left, should be 

credited. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 13, 2012 appellant, then a 46-year-old supervisory information technology 

specialist, injured both hands upon exiting the employing establishment when the gate barricade 

at the military base in Germany where he was working rose up and hit the rear wheel of his 

bicycle, throwing him to the ground. Appellant stopped work that day. An employing 

establishment report dated December 14, 2012 indicates that appellant was taken home by 

military personnel, and went to the hospital the next day where it was determined that he had 

multiple fractures on both hands. 

Appellant had corrective surgery on December 21, 2012. He returned to work on 

February 12, 2013. 

On March 1, 2013 OWCP accepted closed fracture of metacarpal bone, closed fractures 

of multiple sites of bilateral phalanges, and bilateral contusions of the wrist and hand. Appellant 

received intermittent compensation for medical and therapy appointments. 

On February 11, 2016 appellant submitted a schedule award claim (Form CA-7).2 In an 

attached medical report, Dr. M. M. Malek, a Board-certified orthopedic surgeon, noted the 

history of injury and appellant’s complaints of dull upper extremity pain, and difficulty with 

activities that required pushing and pulling, including driving. Upper extremity examination of 

both shoulders and both wrists was normal. Examination of the right and left hands revealed 

about 10 degrees of valgus angulation at the distal interphalangeal (DIP) joint of the left third 

finger with no other deformity noted. Strength evaluation and grip examination utilizing manual 

dynamometer demonstrated 22 pounds of force application on the right and 18 pounds of force 

application on the left. Tinel’s and Phalen’s tests are negative. Dr. Malek reviewed x-rays done 

on December 14, 2012. He diagnosed post-traumatic contusion and sprain of the right and left 

wrists, post-traumatic comminuted fracture of the right fourth finger metacarpal, post-traumatic 

oblique fracture of the third digit, right hand, and post-traumatic fracture of the fifth metacarpal 

left hand. Dr. Malek advised that appellant had reached maximum medical improvement. He 

advised that, in accordance with the appropriate charts, tables, and chapter of the latest edition of 

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

(hereinafter A.M.A., Guides) with a reasonable degree of medical probability and consideration 

of appellant’s level of pain, weakness, atrophy, loss of endurance, and loss of function (range of 

motion (ROM)), appellant had 15 percent permanent impairment of the left upper extremity and 

15 percent permanent impairment of the right upper extremity. 

OWCP forwarded the medical evidence, including Dr. Malek’s report, to its medical 

adviser, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, for review and an 

impairment evaluation. In a March 21, 2016 report, Dr. Harris noted his review of the record 

and the accepted conditions. He disagreed with Dr. Malek’s assessment, noting the only 

abnormality found was some deformity of the right middle digit. Dr. Harris advised that, in 

 2

 Appellant had initially submitted one page of a schedule award claim on May 4, 2015. By letter dated June 1, 

2015 OWCP informed him that it would take no further action on the claim until it received a claim form, completed 

and certified by the appropriate employing establishment. 
3

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

3

 and using the diagnosis-based 

impairment (DBI) rating under Table 15-2, Digit Regional Grid, for residual problems with 

fractures of right middle and ring digits, appellant had six percent digit impairment for each, 

which was equivalent to one percent right upper extremity impairment for each, or a total two 

percent right upper extremity impairment. He found that for residual problems with fracture of 

left small digit, appellant had six percent digit impairment or one percent left upper extremity 

impairment. OWCP’s medical adviser found the date of maximum medical improvement was 

November 12, 2015, when appellant was examined by Dr. Malek. 

By decision dated April 20, 2016, appellant was granted a schedule award for one percent 

permanent impairment of the left upper extremity and two percent permanent impairment of the 

right upper extremity, to run for 9.36 weeks, from November 12, 2015 to January 16, 2016. 

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.4

 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.5 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.6

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).7

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

 3

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

4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 

6

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

7 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 1 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 
4

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

schedule award purposes.8

ANALYSIS 

The issue on appeal is whether appellant established more than two percent permanent 

impairment of the right upper extremity and one percent permanent impairment of the left upper 

extremity for which he previously received schedule awards. The accepted conditions in this 

case are closed fracture of metacarpal bone, closed fractures of multiple sites of bilateral 

phalanges, and bilateral contusions of the wrist and hand. Appellant received a schedule award 

dated April 20, 2016 for a total one percent permanent impairment of the left upper extremity 

and two percent permanent impairment on the right 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 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.9

 

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

justice under the law to all claimants.10 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.11 

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 20, 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 additional right upper extremity 

schedule award. 

 8

 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

11 Supra note 8. 
5

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the April 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: April 18, 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