United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.R., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, DAYTON 

INTERNATIONAL AIRPORT, Vandalia, OH, 

Employer

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Docket No. 17-1243

Issued: November 6, 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

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 16, 2017 appellant, through counsel, filed a timely appeal from a March 13, 

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 the 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 has more than one percent permanent impairment of his 

right upper extremity, for which he previously received a schedule award. 

FACTUAL HISTORY

On May 5, 2007 appellant, then a 40-year-old transportation security screener, filed an 

occupational disease claim (Form CA-2) alleging that factors of his federal employment, 

including repetitively lifting luggage and heavy “wanding,” caused an injury to his right arm. He 

did not stop work, but was placed on limited duty. OWCP accepted appellant’s claim for right 

elbow and forearm strain, and the acceptance of the claim was later expanded to include right 

lateral epicondylitis.3 

On August 23, 2007 appellant filed a claim for recurrence of disability (Form CA-2a)

alleging that, while on limited duty on August 19, 2007, a passenger handed him a box to be 

screened, that the box was not labeled as heavy, and that as he lifted the box he immediately felt 

forearm muscle and elbow strain in the same area he had hurt before. OWCP considered his

claim as a claim for new traumatic injury.4 On September 28, 2007 it accepted this claim for 

aggravation of a right forearm strain and right elbow strain. Appellant received intermittent 

wage-loss compensation on the supplemental rolls commencing December 7, 2007.

OWCP again expanded acceptance of the claim to include a lesion of the right radial 

nerve and a May 29, 2008 right radial tunnel release surgery. Appellant missed time from work 

on an intermittent basis until May 30, 2008, when he stopped work due to his May 29, 2008 right 

radial tunnel release surgery. He returned to full-time, limited-duty work on June 30, 2008. 

Appellant continued working in that capacity until November 20, 2011, at which time the 

employing establishment determined his restrictions could no longer be accommodated. He

received wage-loss compensation on the periodic rolls commencing January 15, 2012. 

OWCP referred appellant to vocational rehabilitation services, which resulted in 

placement as a security guard at the Great-Wolf Lodge in Mason, OH beginning July 2, 2014. 

By decision dated March 3, 2015, OWCP found that appellant’s actual wages as a security guard 

represented his wage-earning capacity, and reduced his compensation benefits effective 

July 2, 2014.

By letter received on November 21, 2014, appellant, through counsel, filed a claim for a 

schedule award. In a report dated November 5, 2014, Dr. Martin Fritzhand, appellant’s Boardcertified preventive medicine physician, listed appellant’s accepted conditions as sprain of right 

elbow and forearm, unspecified site, right lateral epicondylitis, and right lesion of radial nerve. 

He noted that appellant’s right elbow was normal. Dr. Fritzhand noted no tenderness on 

palpation of the right epicondyle. He noted a 13 centimeter longitudinal surgical scar over the 

radial aspect of the right forearm commencing 2 centimeters below the antecubital fossa, which 

 

3

File No. xxxxxx111.

4 OWCP assigned File No. xxxxxx337. 
3

was tender to palpation. Dr. Fritzhand noted muscle strength was well-preserved over the right 

elbow flexors and extensors, and that there was no evidence of muscle atrophy. He noted 

pinprick and light touch were diminished over the radial aspect of the right forearm.

Dr. Fritzhand utilized Table 15-23 of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides) to 

assess impairment. He noted that appellant’s test findings resulted in grade modifier of 0, history 

grade modifier of 2, and physical examination grade modifier of 2. Dr. Fritzhand added these 

together to equal 4 and then divided by 3 to equal 1.33, which he rounded down to 1, therefore,

he found that the grade modifier of 1 represented the final rating class. He noted that appellant’s 

QuickDASH was 66, but that as this value was substantially higher than the rating category, it 

was not used for rating. Dr. Fritzhand assigned the default value, and indicated that appellant

had sustained a permanent impairment of the right upper extremity of two percent.

On August 29, 2007 OWCP referred appellant’s case to Dr. Morley Slutsky, a Boardcertified occupational medicine physician serving as OWCP’s medical adviser, for a calculation 

of permanent impairment of appellant’s right upper extremity. In a report dated September 27, 

2015, Dr. Slutsky noted that appellant had both a negative right elbow magnetic resonance 

imaging (MRI) scan and a negative electromyogram/nerve conduction velocity (EMG/NCV) test 

regarding radial nerve involvement at the right elbow. On May 29, 2008 the right elbow area 

was diagnosed with right radial tunnel syndrome and the claimant underwent right radial tunnel 

release, entire radial tunnel. As appellant did not have EMG/NCV testing which met the criteria 

as set forth in the A.M.A., Guides, Dr. Slutsky determined that the use of Table 15-23 for 

compression neuropathy was inapplicable, and appellant could only be rated for nonspecific right 

elbow pain. Accordingly, Dr. Slutsky applied the calculations as set forth in Table 15-4 of the 

A.M.A., Guides. He noted that the diagnosis-based impairment (DBI) method was the preferred 

rating method and would be used for final impairment calculations. Dr. Slutsky placed appellant 

in class 1 for the most impairing diagnosis in the elbow region for nonspecific pain. He noted 

that although Dr. Fritzhand found a grade modifier of 2 for functional history, he disagreed. 

Dr. Slutsky noted that Dr. Fritzhand gave appellant a QuickDASH score of 66 percent, which 

equaled a grade modifier of 3, which was 2 grade modifiers higher than the clinical studies

modifier, and therefore the grade modifier for functional history was unreliable. He noted that 

he agreed with Dr. Fritzhand the grade modifier for physical examination was 2, noting 

decreased sensation to light touch and pinprick. Dr. Slutsky also agreed with Dr. Fritzhand that 

appellant had a grade modifier of 0 for clinical studies, noting negative EMG/NCV testing and a 

negative MRI scan for radial nerve involvement. The Class of Diagnosis (CDX) was 1, the 

Functional History (GMFH) modifier was unreliable, the Physical Examination (GMPE) was 2, 

and the Clinical Studies (GMCS) grade modifier was 0. Using the net adjustment formula, 

(GMPE–CDX) + (GMCS–CDX), or (2-1) + (0-1), he found the net adjustment was 0, and that 

appellant had a permanent impairment of his right upper extremity of 1 percent.

By letter dated March 3, 2016, OWCP asked Dr. Fritzhand to comment on Dr. Slutsky’s 

report, and afforded him 30 days to submit a response. Dr. Fritzhand did not respond.

By decision dated May 17, 2016, OWCP issued a schedule award for one percent 

permanent impairment of the right upper extremity.
4

By letter from counsel received by OWCP on May 31, 2016, appellant requested a 

telephonic hearing before an OWCP hearing representative.

At the hearing held on January 12, 2017, counsel asked that OWCP review appellant’s 

case in light of the Board’s decision in T.H.,

5 with regard to schedule awards for upper extremity 

impairments. He argued that Dr. Slutsky utilized outdated A.M.A., Guides, and that

Dr. Slutsky’s reports had been criticized. Counsel further contended that in T.H, the Board had 

found Dr. Slutsky unreliable and that a consistent method for rating upper extremity impairment

was required to ensure consistent results. 

By decision dated March 13, 2017, OWCP’s hearing representative affirmed the May 17, 

2016 decision, finding that the weight of the medical evidence rested with the opinion of

Dr. Slutsky. She rejected counsel’s argument that the Board’s decision in T.H. required a 

different result, noting that the issue in that case discussed the use of DBI impairment method 

versus the range of motion (ROM) method, which was not the issue in the instant case as neither 

physician used the ROM method to reach an impairment rating.

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 

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into 

the second printing of the sixth edition. 

 

5 Docket No. 14-0943 (issued November 25, 2016). 

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

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 is whether appellant has more than one percent permanent impairment of his 

right upper extremity, for which he previously received a schedule award. The March 13, 2017 

schedule award was based upon the one percent permanent impairment rating of Dr. Slutsky. In 

his September 27, 2015 report, Dr. Slutsky relied upon Table 15-4 of the A.M.A., Guides using 

the DBI rating method for the diagnosed condition of elbow region nonspecific pain. The Board 

finds that this diagnosis as listed in Table 15-4 is one with an asterisk which alternatively allows 

for consideration of the ROM method of assigning permanent impairment.

The Board finds 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.11 

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

justice under the law to all claimants.12 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 had shown

inconsistency 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.13 

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

upper extremity impairment, the Board will set aside the March 13, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly, 

 

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

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

13 Supra note 11.
6

and after 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.14

CONCLUSION

The Board finds this case not in posture for decision.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated March 13, 2017 is set aside, and the case is remanded for further 

action consistent with this decision.

Issued: November 6, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

14 FECA Bulletin No. 17-06 (issued May 8, 2017).