United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.E., Appellant 

and 

DEPARTMENT OF THE ARMY, 

Fort Monmouth, NJ, Employer 

__________________________________________ 

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Docket No. 17-0128 

Issued: May 4, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 27, 2016 appellant, through counsel, filed a timely appeal from a June 30, 

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 established more than eight percent impairment of the left 

little finger, 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 asserts that the opinion of Dr. David Weiss, an osteopath, establishes a 

left upper extremity impairment of 13 percent. 

FACTUAL HISTORY 

On March 16, 2008 appellant, then a 48-year-old protocol specialist, fractured a phalanx 

of her left little finger when she tripped and fell at work. She stopped work that day and received 

continuation of pay and wage-loss compensation. 

Dr. Eddy Atik, Board-certified in orthopedic and hand surgery, repaired the finger 

fracture on March 21, 2008. In a November 18, 2008 report, Dr. Robert D. Goldstein, Boardcertified in plastic surgery and an OWCP referral physician, advised that appellant had no 

functional capacity with her left hand and had developed left hand reflex sympathetic dystrophy 

(RSD). OWCP additionally accepted RSD also known as complex regional pain syndrome 

(CRPS). 

Dr. Andrew M. Hutter, a Board-certified orthopedic surgeon, provided a second opinion 

evaluation on December 31, 2009. He diagnosed status post fracture of the left fifth finger and 

RSD and concluded that appellant could return to modified duty. 

Appellant returned to modified duty on March 5, 2009. She thereafter received 

compensation for medical and therapy appointments. 

On November 18, 2015 appellant filed a schedule award claim (Form CA-7). In an 

October 7, 2013 report, Dr. Weiss provided physical examination findings. He diagnosed status 

post fracture of the proximal phalanx of the left little finger with surgical repair, post-traumatic 

contracture deformity of the left little finger, post-traumatic CRPS of the left upper extremity, 

ulnar nerve neuropathy of the left arm at the cubital tunnel, and post-traumatic median nerve 

neuropathy (carpal tunnel syndrome) of the left hand.3

 Dr. Weiss advised that, in accordance 

with the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (hereinafter A.M.A., Guides),4 using the range of motion (ROM) 

methodology, he found a motion deficit of the left fifth digit, under Table 15-31 appellant had 6 

percent impairment, and for class 1 CRPS, under Table 15-26 she had 7 percent impairment, for 

a combined left upper extremity permanent impairment of 13 percent. Dr. Weiss found that 

appellant reached maximum medical improvement on October 7, 2013. 

Dr. Morley Slutsky, an OWCP medical adviser, who is Board-certified in occupational 

medicine, reviewed the medical record, including Dr. Weiss’ report. In a December 5, 2015 

report, he found that appellant had zero percent impairment for the CRPS diagnosis, and that, 

utilizing the diagnosis-based impairment (DBI) method, under Table 15-2, Digit Regional Grid, 

for a left little finger proximal phalanx fracture, appellant had a class 1 impairment. Dr. Slutsky 

 3

 Initially in Chapter 15, when defining DBI, ROM is noted to be used primarily as a physical examination 

adjustment factor and only to determine actual impairment values when a grid permits its use as an option. 

Diagnoses in the particular regional grids that may alternatively be rated using ROM are followed by an asterisk (*). 

Proximal phalanx fracture is a diagnosed condition listed in the grid followed by an *. 

4

 A.M.A., Guides (6th ed. 2009). 
3

found no modifier for functional history, and modifiers of 2 for physical examination and clinical 

studies. After applying the net adjustment formula, he concluded that appellant had eight percent 

permanent digit impairment of the left little finger. 

By decision dated December 22, 2015, appellant was granted a schedule award for eight 

percent permanent impairment of the left fifth finger, to run for 1.2 weeks, from October 7 

to 15, 2013. 

Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings 

and Review. Dr. Weiss updated his October 7, 2013 report on May 2, 2016. He did not 

reexamine appellant, but reiterated that she had six percent left upper extremity impairment 

under Table 15-31 of the A.M.A., Guides, due to loss of fifth digit ROM. The updated report did 

not include an impairment rating for CRPS. 

At the hearing, held on April 11, 2016, counsel argued that appellant’s impairment rating 

should be based on the ROM method and should not be limited to the left little finger. Appellant 

described the employment injury and her medical condition, testifying that she continued to have 

symptoms of RSD with pain that radiated up her arm, decreased hand motion, and limitations in 

activities of daily living. 

In a June 30, 2016 report, an OWCP hearing representative found the weight of the 

medical evidence rested with Dr. Slutsky and affirmed the December 22, 2015 decision. 

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.5

 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.6

 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.7

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 

 5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 

7

 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

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).8

 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.9

ANALYSIS 

The issue on appeal is whether appellant established that she has more than eight percent 

impairment of the left little finger for which she previously received a schedule award. The 

accepted conditions in this case are fracture of phalanx of left little finger and RSD. 

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.10 

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

justice under the law to all claimants.11 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.12 

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. 

 8 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). 

9 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

12 Supra note 10. 
5

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 18, 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. 

CONCLUSION 

The Board finds this case not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the June 30, 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: May 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board