United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Fort Dix, NJ, Employer

__________________________________________

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Docket Nos. 17-1585 &

17-1815

Issued: February 16, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 14, 2017 appellant, through counsel, filed a timely appeal from a May 24, 2017 

merit decision of the Office of Workers’ Compensation Programs (OWCP), to which the Board 

assigned Docket No. 17-1585, and on August 24, 2017 he filed a timely appeal from an 

August 16, 2017 merit decision of OWCP, to which the Board assigned Docket No. 17-1815. 

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.

 

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

ISSUE

The issue is whether appellant met his burden of proof to establish more than 25 percent 

permanent impairment of his right second digit, for which he previously received a schedule 

award. 

FACTUAL HISTORY

On March 20, 2014 appellant, then a 28-year-old corrections officer, filed a traumatic 

injury claim (Form CA-1) alleging that on March 20, 2014 he sustained injury to the second digit 

of his right hand at work. He asserted that a razor wire sliced a tendon on his right second digit

when he was scraping a fence with a screwdriver to detect radio monitor zones.3 Appellant 

stopped work on March 20, 2014 and returned to work shortly thereafter. 

OWCP accepted appellant’s claim for open wound of his right second digit with tendon 

involvement and the condition of mallet finger.

In a June 4, 2015 report, Dr. Nicholas Diamond, an attending Board-certified osteopath, 

applied the standards of the sixth edition of the American Medical Association, Guides to the 

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

4

 Using Table 15-31 to evaluate 

permanent impairment due to restricted range of motion (ROM) of the fingers, he found that 

appellant had 25 percent permanent impairment of his right second digit due to 20 degrees of 

flexion of the distal interphalangeal joint and 1 percent permanent impairment of his right second 

digit due to 5 degrees of extension of the distal interphalangeal joint. Dr. Diamond combined 

these values to find that the total permanent impairment of appellant’s right second digit was 

26 percent, which equaled 5 percent permanent impairment of his right upper extremity. He 

indicated that appellant reached maximum medical improvement by June 4, 2015. 

On December 2, 2015 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to his accepted employment injury. 

OWCP referred Dr. Diamond’s June 4, 2015 report and the case record to Dr. Arthur S. 

Harris, a Board-certified orthopedic surgeon serving as a district medical adviser (DMA), and 

requested that he provide an opinion on permanent impairment under the sixth edition of the 

A.M.A., Guides. 

In a January 5, 2015 report, Dr. Harris indicated that he agreed with Dr. Diamond that the 

total permanent impairment of appellant’s right second digit was 26 percent, which equaled 

5 percent permanent impairment of his right upper extremity.

 

3 The right second digit is more commonly known as the right middle finger.

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

By decision dated April 29, 2016, OWCP granted appellant a schedule award for 26 

percent permanent impairment of his right third digit. The award ran for 6.5 weeks from June 4 

to July 19, 2015.5

Appellant disagreed with the April 29, 2016 decision and, through counsel, requested a 

hearing with a representative of OWCP’s Branch of Hearings and Review. Prior to the hearing 

being, an OWCP hearing representative conducted a preliminary review and issued a July 28, 

2016 decision setting aside OWCP’s April 29, 2016 decision. The case was remanded to OWCP 

in order to confirm that appellant’s right second digit (rather than his right third digit) was being 

rated, to determine whether or not the right second digit injury extended into his right hand, and 

to evaluate whether or not the five percent right upper extremity rating was simply a conversion

from the digit rating. The hearing representative explained that appellant had injured his right 

second digit and that 26 percent permanent impairment of the right second digit equated to 

7.5 weeks of compensation, but noted that he was only awarded 6.5 weeks of compensation for 

the incorrect finger (right third digit). She directed OWCP to issue an appropriate decision after 

completing this development. 

OWCP referred the case to Dr. Harris, the DMA, for the directed clarification. In a report 

dated September 1, 2016, Dr. Harris explained his impairment rating, noting that the impairment 

did not extend into the right hand and that the five percent right upper extremity rating was 

simply a conversion. He determined that, under Table 15-31, appellant had 25 percent

permanent impairment of his right second finger due to restricted ROM of the distal 

interphalangeal joint upon flexion. Dr. Harris advised that the five degrees of extension of 

appellant’s right distal interphalangeal joint did not warrant an impairment rating. 

By decision dated October 19, 2016, OWCP found that Dr. Harris properly determined 

that appellant had 25 percent permanent impairment of his right second finger and that appellant 

had not established that he sustained a greater degree of permanent impairment of his right 

second digit. It determined that appellant had been overpaid for one percent permanent 

impairment and indicated that the overpayment would be addressed within a separate decision.

Appellant disagreed with the October 19, 2016 decision and, through counsel, requested a 

video hearing with a representative of OWCP’s Branch of Hearings and Review. During the 

February 28, 2016 hearing, counsel argued that appellant was owed additional compensation 

because OWCP granted a schedule award for the wrong finger, although this had already been 

acknowledged and resolved. He also asserted that there was a conflict in the medical opinion 

evidence between the opinion of Dr. Diamond and the opinion of Dr. Harris. 

By decision dated May 24, 2017, OWCP’s hearing representative affirmed OWCP’s 

October 19, 2016 decision, as modified, to correct an error with respect to the identified impaired

finger. The hearing representative found that Dr. Harris, the DMA, properly determined that 

appellant had 25 percent permanent impairment of his right second finger and that appellant had 

not established a greater degree of permanent impairment of his right second digit. She noted, 

however, that appellant was entitled to additional compensation because OWCP originally had 

 

5 OWCP granted the award for appellant’s right third digit, i.e., right ring finger, but it was later determined that it 

should have granted it for his right second digit.
4

erroneously granted a schedule award for the right third digit, rather than for the right second 

digit. The hearing representative indicated that appellant received 6.5 weeks of schedule award 

compensation under OWCP’s April 29, 2016 decision, but was entitled to receive 7.5 weeks of 

schedule award compensation. She directed OWCP to issue an amended decision reflecting the 

25 percent permanent impairment of his right second finger and his entitlement to an additional 

week of schedule award compensation. 

By decision dated August 16, 2017, OWCP granted appellant a schedule award based on 

the finding that he had 25 percent permanent impairment of his right second digit. It noted that 

such an award entitled him to 7.5 weeks of schedule award compensation. As appellant already 

received 6.5 weeks of schedule award compensation under OWCP’s April 29, 2016 decision, he 

was effectively entitled to receive an additional one week of schedule award compensation. 

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 FECA’s 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 It, 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 

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

 

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).

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).
5

ANALYSIS

OWCP accepted appellant’s claim for open wound of the right second digit with tendon 

involvement and the condition of mallet finger. The issue on appeal is whether appellant has met 

his burden of proof to establish more than 25 percent permanent impairment of his right second 

digit, for which he previously received a schedule award. 

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

Dr. Diamond, an attending physician, evaluated the permanent impairment of appellant’s 

right second digit using the ROM method under Table 15-31 of the sixth edition of the A.M.A., 

Guides.

11

 Dr. Harris, the DMA, also evaluated the permanent impairment of appellant’s right 

second digit using this ROM method. The Board finds that Table 15-2 (Digit Regional Grid)

provides that a rupture/laceration of a digit’s extensor or flexor tendon may be evaluated using 

the diagnosis-based impairment (DBI) rating method or alternatively, by asterisk, using the ROM 

method.

12

 

The Board has previously found that OWCP had 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 DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.13 

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

justice under the law to all claimants.14 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 DMAs 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. The Board therefore found that OWCP should develop a consistent method for 

calculating permanent impairment for upper extremities, which could be applied uniformly. 

In response, OWCP issued FECA Bulletin No. 17-06.15 Its revised procedures provide 

that: 

“4. Upon initial review of a referral for upper extremity impairment evaluation, 

the DMA should identify (1) the methodology used by the rating physician (i.e. 

DBI or ROM) (2) whether the applicable tables in Chapter 15 of the [A.M.A., 

 

11 See A.M.A., Guides 470, Table 15-31.

12 See id. at 392, Table 15-2.

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

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

15 FECA Bulletin No. 17-06. This Bulletin was effective for all decisions issued by OWCP on and after 

May 8, 2017. 
6

Guides] identify a diagnosis that can alternatively be rated by ROM. If the 

[A.M.A., Guides] allow for the use of both the DBI and ROM methods to calculate 

an impairment rating for the diagnosis in question, the method producing the 

higher rating should be used.

“5. If the rating physician provided an assessment using the ROM method and the 

[A.M.A., Guides] allow for use of ROM for the diagnosis in question, the DMA

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the [claims examiner].

“6. If the rating physician provided an assessment using the ROM method and the 

[A.M.A., Guides] do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A., 

Guides], that ROM is not permitted as an alternative rating method for the 

diagnosis in question.”

The Board therefore finds that this case requires further development of the medical 

evidence. Since Dr. Diamond provided a rating based upon appellant’s loss of ROM of the right 

second digit, which is allowed (by asterick) pursuant to Table 15-2 of the A.M.A., Guides,

Dr. Harris should have independently calculated appellant’s impairment using both the ROM and 

DBI methods and identified the higher rating for the claims examiner. If the medical evidence of 

record was not sufficient for Dr. Harris to render a rating using the ROM or DBI method, he 

should advise as to the medical evidence necessary to complete the rating.16

This case will therefore be remanded for application of the new OWCP procedures found 

in FECA Bulletin No. 17-06. After such further development of the medical evidence as 

necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

 

16 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the August 16 and May 24, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside, and the case is remanded for further 

action consistent with this decision.

Issued: February 16, 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