United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.S., Appellant 

and 

DEPARTMENT OF COMMERCE, BUREAU 

OF THE CENSUS, Jeffersonville, IN, Employer 

__________________________________________ 

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Docket No. 17-0869 

Issued: August 14, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 13, 2017 appellant, through counsel, filed a timely appeal from a February 3, 

2017 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 permanent impairment of the right ring 

finger or right upper extremity, warranting 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 

This case has previously been before the Board.3 The facts and the circumstances 

outlined in the Board’s prior decision are incorporated herein by reference. The facts relevant to 

this appeal are set forth below. 

On February 22, 2011 appellant, then a 51-year-old geography clerk, filed a traumatic 

injury claim (Form CA-1) alleging that on February 9, 2011 she fractured a bone in her right 

hand. She stopped work on February 9, 2011 and returned to work on February 11, 2011. 

OWCP accepted the claim for a closed fracture of the right ring finger phalanx. 

On June 9, 2011 Dr. Rodrigo Moreno, an orthopedic surgeon, related that appellant was 

doing well after her right ring finger fracture. He measured full range of motion (ROM) of the 

right ring finger and grip strength of 55 for the right hand and 66 for the left hand. Dr. Moreno 

opined that appellant was at maximum medical improvement and released her to return as 

necessary. 

Appellant’s term appointment with the employing establishment ended on 

September 30, 2011. On February 7, 2013 she filed a claim for a schedule award (Form CA-7). 

OWCP, by letter dated February 12, 2013, requested that appellant submit an evaluation 

addressing the extent of any permanent impairment in accordance with the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides) (6th ed. 2009). 

Dr. Moreno, on May 31, 2013, requested that right ring finger tenosynovitis “be added to 

[appellant’s] claim as this condition is a result of her previous work-related injury of right ring 

finger proximal phalanx fracture.” 

Dr. Martin Fritzhand, a Board-certified urologist, provided an impairment evaluation on 

June 13, 2013. Referencing the sixth edition of the A.M.A., Guides, he identified the diagnosis 

as a class 1 proximal phalanx fracture using Table 15-2 on page 393, the digit regional grid. 

Dr. Fritzhand applied grade modifiers and found seven percent permanent impairment of the 

digit, or one percent permanent impairment of the right upper extremity. 

On September 19, 2013 OWCP requested that an OWCP medical adviser review the 

medical evidence and provide an opinion on Dr. Fritzhand’s June 13, 2013 impairment 

evaluation. In an accompanying statement of accepted facts (SOAF), it identified right ring 

finger tenosynovitis as a nonemployment-related condition. 

Dr. Morley Slutsky, a Board-certified orthopedic surgeon and OWCP medical adviser, 

reviewed the evidence on September 23, 2013 and recommended a second opinion examination. 

 3

 Docket No. 14-1787 (issued December 1, 2014). 
3

By decision dated September 25, 2013, OWCP denied appellant’s claim for a schedule 

award as the medical evidence of record did not support that she had a permanent impairment of 

the right upper extremity. 

On October 1, 2013 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. In a decision dated June 5, 2014, an OWCP hearing 

representative affirmed the September 25, 2013 decision. She found that the medical evidence of 

record did not support entitlement to a schedule award. 

Appellant appealed to the Board. By decision dated December 1, 2014, the Board set 

aside the June 5, 2014 decision.4

 The Board found that OWCP failed to refer her for a second 

opinion examination as recommended by an OWCP medical adviser and did not explain the 

basis for its finding that the right ring finger tenosynovitis was not employment related. The 

Board remanded the case for OWCP to refer appellant for a second opinion examination 

regarding whether she sustained permanent impairment of the right ring finger due to her 

February 9, 2011 work injury and to determine whether her claim should be expanded to include 

right ring finger tenosynovitis. 

OWCP, on August 11, 2015, referred appellant to Dr. Edward Gregory Fisher, a Boardcertified orthopedic surgeon, for a second opinion examination. It provided him with a SOAF 

indicating that it had accepted her claim for a closed fracture of the phalanx or phalanges of the 

right proximal ring finger. OWCP also indicated that appellant fractured her right wrist when 

she fell on February 9, 2011 and that she had the nonemployment-related condition of 

tenosynovitis. 

In a September 8, 2015 impairment evaluation, Dr. Fisher identified the accepted 

condition as a closed fracture of the phalanges of the right proximal ring finger. On examination 

he found normal extension and flexion of the right ring finger with mild soreness of the base and 

proximal interphalangeal (PIP) joint, but no malalignment, increased warmth, instability, 

swelling, or loss of sensation. Dr. Fisher related: 

“The examination of the right ring finger is normal with no objective findings 

present only minimal soreness over the PIP and metacarpophalangeal joints. 

There is no loss of [ROM] of the three joints involving the ring finger. There is 

no malalignment or malrotation present. The sensation is intact and the motor 

power both in flexion and extension of the finger is 5/5 and she is able to make a 

full fist with all her fingers.” 

Dr. Fisher opined that there were no objective findings of the accepted condition or of 

tenosynovitis of the right ring finger, noting that appellant had no “locking or triggering and 

there was no nodular or soft tissue mass over the base on the volar aspect of the ring finger to 

support a diagnosis of a tenosynovitis of the right ring finger.” Referencing Table 15-31 on page 

470 of the A.M.A., Guides, used to determining impairment due to loss of finger motion, he 

found no impairment of the right upper extremity. 

 4 Id. 
4

An OWCP medical adviser and Board-certified orthopedic surgeon, Dr. Andrew 

Robinson, reviewed the evidence on December 2, 2015 and concurred with Dr. Fisher’s finding 

that appellant had no permanent impairment of the right ring finger. He noted, however, that the 

SOAF listed a right wrist fracture due to her employment injury. The medical adviser contended 

that, if so, it might have impaired her function. 

By decision dated April 12, 2016, OWCP denied appellant’s claim for a schedule award. 

It found that the weight of the medical evidence failed to establish permanent impairment due to 

her accepted employment injury. 

Appellant, through counsel, on April 22, 2016 requested a telephone hearing. At the 

telephone hearing, held on December 14, 2016, she related that she experienced pain and aching 

in her right ring and little fingers with resulting difficulty performing some activities of daily 

living. 

In a decision dated February 3, 2017, OWCP’s hearing representative affirmed the 

April 12, 2016 decision. She found that the opinions of Dr. Fisher and OWCP’s medical adviser 

constituted the weight of the evidence and established that appellant did not have employmentrelated permanent impairment, warranting a schedule award.5

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.6 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.7 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.8

 

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

 The issue statement in the decision actually refers to permanent impairment of the left lower extremity. 

However, this appears to be a harmless transcription error as the remainder of the decision references appellant’s 

claim for a schedule award involving her right hand and arm. 

6 See 20 C.F.R. §§ 1.1-1.4. 

7

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

§ 8107(c)(1). 

8

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

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).9

 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.10

ANALYSIS 

The issue on appeal is whether appellant has a permanent impairment of the right ring 

finger or right upper extremity causally related to her accepted employment injury.11 

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 had been followed regarding the proper use of the diagnosis-based 

impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment 

for schedule award purposes.12 The purpose of the use of uniform standards is to ensure 

consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the Board 

concluded that OWCP physicians were 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 

observed that physicians interchangeably cited to language in the first printing or the second 

printing when justifying use of either ROM or DBI methodology. Because OWCP’s own 

physicians were inconsistent in the application of the A.M.A., Guides, the Board found that 

OWCP could no longer ensure consistent results and equal justice under the law for all 

claimants.14 

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the February 3, 2017 decision. Utilizing a 

 9 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). 

10 Isidoro Rivera, 12 ECAB 348 (1961). 

11 On prior appeal the Board instructed OWCP to develop the issue of whether appellant sustained tenosynovitis 

of the right finger due to her work injury. In his September 8, 2015 report, Dr. Fisher found no evidence of 

tenosynovitis. OWCP, however, did not address this issue in its April 12, 2016 and February 3, 2017 decisions and 

thus it is not before the Board at this time. See 20 C.F.R. § 501.2(c). 

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

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

14 Supra note 11. 
6

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.15 It should further 

address, as previously instructed by the Board, the issue of whether she sustained right ring 

finger tenosynovitis causally related to her accepted employment injury. 

CONCLUSION 

The Board finds this case not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the February 3, 2017 decision of the Office of 

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

consistent with this decision. 

Issued: August 14, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 The Board notes that the August 11, 2015 SOAF inaccurately indicated that appellant fractured her right wrist 

on February 9, 2011.