United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Warwick, RI, Employer 

__________________________________________ 

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Docket No. 16-0252 

Issued: October 7, 2016 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 23, 2015 appellant, through his representative, filed a timely appeal from 

an October 6, 2015 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. 

 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

ISSUES 

The issues are: (1) whether OWCP properly found two percent permanent impairment of 

the right hand, for which he received a schedule award; and (2) whether OWCP applied the 

appropriate cost-of-living increase in calculating the January 8, 2015 schedule award. 

FACTUAL HISTORY 

OWCP accepted that on March 31, 2011 appellant, then a 42-year-old special agent, 

sustained metacarpal neck fractures of the right small and ring fingers while delivering hand 

strikes to a boxing bag during physical training in the performance of duty. He stopped work on 

April 4, 2011. Appellant did not receive wage-loss compensation related to the accepted right 

small and ring finger fractures.3

Dr. Hervey L. Kimball, a Board-certified orthopedic surgeon, obtained April 7, 2011 

x-rays demonstrating “a fracture at the junction of the fifth metacarpal distal diaphysis and fifth 

metacarpal head with apex dorsal angulation.” On April 18, 2011 he performed an open 

reduction and internal fixation of the right small finger metacarpal neck fracture. Dr. Kimball 

removed the pins on May 16, 2011 and released appellant to light duty.4 August 30, 2011 x-rays 

confirmed a stable union. Appellant returned to full duty on September 1, 2011. 

On August 25, 2012 appellant claimed a schedule award.5

 In support of his claim, he 

submitted a November 26, 2012 impairment rating from Dr. Kimball, noting that appellant had 

reached maximum medical improvement. On examination, appellant found mild residual 

stiffness, with a 15-degree proximal interphalangeal joint extensor lag in the fourth finger, and a 

5-degree lag in the fifth finger. Referring generally to the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Kimball 

found four percent permanent impairment of the right hand. 

In a June 24, 2014 letter, OWCP advised appellant of the evidence needed to establish his 

claim, including his physician’s impairment rating of the accepted injury, utilizing the sixth 

edition of the A.M.A., Guides. 

In response, appellant provided a July 18, 2014 impairment rating from Dr. Andrew J. 

Rogers, an attending Board-certified orthopedic surgeon. Dr. Rogers noted that appellant 

underwent right shoulder surgery in 2012 with repair of a superior labral tear from anterior to 

posterior lesion, debridement, and resection of calcium in the rotator cuff. Appellant also 

 3

 Appellant had filed prior claims which were accepted in OWCP File No. xxxxxx822, for a left shoulder 

hematoma and partial left rotator cuff tear sustained on November 1, 1995, OWCP File No. xxxxxx841, for an 

April 30, 2001 injury accepted for cervical sprain, cervical radiculopathy, and permanent aggravation of 

degenerative cervical spondylosis, OWCP File No. xxxxxx376, for a right rotator cuff sprain and right shoulder 

tendinitis sustained on March 7, 2006, and OWCP File No. xxxxxx700 for a left shoulder condition sustained on 

June 27, 1997. 

4

 Appellant participated in physical therapy from July to September 2011. 

5

 On April 14, 2014 appellant telephoned OWCP and requested that OWCP reimburse his providers for right 

shoulder surgery. He requested that OWCP combine the present claim with three of his other claims in considering 

his schedule award. 
3

underwent left shoulder surgery in 1996. On examination, Dr. Rogers found a slight proximal 

interphalangeal extensor lag in the right fourth and fifth fingers, slightly decreased sensation in 

the radial nerve, slight discomfort with range of motion, a loss of 15 to 20 degrees forward 

flexion of the right shoulder, loss of 10 degrees abduction, 10-degree loss of external rotation, 

and loss of 25 degrees of internal rotation, and a positive impingement sign. He also noted 

limited motion of the left shoulder. Dr. Rogers opined that appellant reached maximum medical 

improvement regarding the right hand and found that, according to Table 15-11 of the A.M.A., 

Guides,

6

 appellant had three percent whole person impairment. 

On September 19, 2014 an OWCP medical adviser reviewed the medical record and a 

statement of accepted facts. He concurred that appellant had attained maximum medical 

improvement as of July 18, 2014 regarding the accepted metacarpal neck fractures of the right 

small and ring fingers. The medical adviser noted that as Dr. Rogers had not provided specific 

calculations, his impairment rating could not be utilized. He opined that appellant had two 

percent impairment of the right hand using the diagnosis-based method under Table 15-2.7

 

Regarding the fourth finger, the medical adviser found, based on the metacarpal neck fracture a 

Class of Diagnosis (CDX) 1, (diagnosis-based impairment), a grade 1 modifier for Functional 

History (GMFH) as appellant did not require functional modifications in daily living, and a grade 

1 modifier for findings on Physical Examination (GMPE) due to slight discomfort with range of 

motion. The medical adviser noted that there was no applicable grade modifier for Clinical 

Studies (GMCS) as imaging studies were used to determine the diagnostic class. Applying the 

net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1), 

he found a net adjustment of zero, leaving the CDX at the default grade C, equaling eight percent 

impairment of the right fourth digit. The medical adviser applied the identical tables and grading 

schemes to the small finger metacarpal neck fracture, also calculating eight percent impairment of 

the right fifth finger. He utilized Table 15-128

 to convert the eight percent fourth finger 

impairment to one percent impairment of the right hand, and the eight percent fifth finger 

impairment to one percent impairment of the right hand. The medical adviser therefore found a 

two percent permanent impairment of the right hand. 

On November 12, 2014 Dr. Rogers reviewed OWCP medical adviser’s September 19, 

2014 report and concurred with his calculation of two percent permanent impairment of the right 

hand. 

By decision dated January 8, 2015, OWCP issued a schedule award for two percent 

permanent impairment of the right hand caused by the accepted metacarpal neck fractures of the 

right small and ring fingers. The period of the award ran from July 18 to August 21, 2014, a 

period of 4.88 weeks. As appellant had a spouse he was entitled to the augmented 75 percent 

compensation rate for claimants with eligible dependents. OWCP calculated that 75 percent of 

his weekly pay rate of $2,508.58 as of April 4, 2011, the date disability began, was $1,881.44. It 

 6

 Table 15-11, page 420 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated 

from Upper Extremity Impairment.” 

7

 Table 15-2, page 393 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit 

Impairments, Fractures.” 

8

 Table 15-12, page 421 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated 

from Digit Impairment.” 
4

noted that it added the applicable March 1, 2012 cost-of-living adjustment of 3.2 percent, 

increasing appellant’s schedule award payments to $1,886.69 a week. OWCP did not provide 

the mathematical calculations used to determine the amount of the increase attributable to the 

CPI. 

Appellant disagreed and requested a hearing, held August 11, 2015. At the hearing, 

appellant’s representative noted that OWCP applied the March 1, 2012 cost-of-living increase to 

schedule award compensation issued at the April 4, 2011 pay rate, increasing his monthly 

payments from $1,881.44 to $1,886.69, a difference of $5.25. He contended, however, that 

appellant was entitled additionally to all cost-of-living adjustments issued from April 4, 2011 

through the end of the schedule award on August 21, 2014, as follows: 3.2 percent from 

March 1, 2012 through February 2013; 1.7 percent from March 1, 2013 through February 2014; 

1.5 percent from March 1 through August 21, 2014. The representative asserted that each of 

these adjustments should have been added to appellant’s schedule award payments. 

Following the hearing, appellant provided a July 28, 2015 impairment rating from 

Dr. Samy Bishai, an orthopedic surgeon. Dr. Bishai reviewed medical records and opined that 

appellant had attained maximum medical improvement regarding the accepted metacarpal neck 

fractures of the right small and ring fingers. On right hand examination, he found a deformity of 

the fourth and fifth fingers visible when appellant closed his fist, revealing “depression of the 

metacarpal heads of both the right fourth and fifth fingers.” Dr. Bishai noted weakness of the 

right hand compared to the left, and related appellant’s complaints of pain with use of the hand. 

He found no indication on examination that appellant’s cervical spine or right shoulder injuries 

affected the right hand. Referring to Table 15-2 of the A.M.A., Guides, Dr. Bishai found, for a 

diagnosis of metacarpal neck fractures of the right ring and little fingers, a CDX of 1, and grade 

modifiers of 2 for physical findings and functional history. Applying the net adjustment formula, 

he calculated a net modifier of 2, raising the default CDX from C to E. This equaled 10 percent 

impairment for each digit. Dr. Bishai found that this equaled two percent right hand 

impairment.9

By decision dated and finalized October 6, 2015, an OWCP hearing representative 

affirmed the January 8, 2015 schedule award, finding two percent permanent impairment of the 

right hand. The hearing representative noted that Dr. Rogers and Dr. Bishai both found that 

appellant had two percent impairment of the right hand. While Dr. Kimball found a greater 

percentage of impairment, he did not refer to the specific tables and grading schemes on which 

he based the rating. The hearing representative further found that appellant had received the 

appropriate CPI adjustment and was not entitled to additional CPI increases. The schedule 

award was based on a weekly pay rate of $1881.44 a week, equaling 75 percent of $2,508.88, his 

weekly pay rate of April 4, 2011, the date disability began for the right hand injury. OWCP then 

applied the current CPI adjustment, increasing the $1,881.44 amount to $1,886.69. The hearing 

representative found that appellant’s representative failed to provide any evidence establishing 

that appellant would be eligible for additional applicable CPI adjustments.10 

 9

 Although he provided an impairment rating for the left and right shoulder and cervical radiculopathy the only 

rating before the Board is the right hand impairment rating. 

10 The hearing representative advised that if appellant was claiming a schedule award for the shoulder or cervical 

issue it would have to be filed under those respective claim numbers. 
5

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provisions of FECA11 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members of the body. FECA, however, 

does not specify the manner in which the percentage loss of a member shall be determined. The 

method used in making such determination is a matter which rests in the sound discretion of 

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a 

single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A., 

Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board 

has concurred in such adoption.12 For schedule awards after May 1, 2009, the impairment is 

evaluated under the sixth edition of the A.M.A., Guides, published in 2008.13 

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).14 In addressing upper extremity impairments under the sixth edition, the 

evaluator identifies the impairment class for the diagnosed condition, which is then adjusted by 

grade modifiers based on functional history, physical examination and clinical studies.15 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 The sixth edition 

of the A.M.A., Guides also provides that, under certain circumstances, range of motion may be 

selected as an alternative approach in rating impairment. An impairment rating that is calculated 

using range of motion may not be combined with a diagnosis-based impairment and stands alone 

as a rating.17

Section 8107(c)(17) of FECA18 and OWCP’s procedures19 provide that in general, loss of 

less than one digit should be computed in terms of impairment to the digit itself, while loss of 

two or more digits should be computed in terms of impairment to the whole hand. 

 11 5 U.S.C. § 8107. 

12 Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

14 A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement.” 

15 Id. at (6th ed. 2008), pp. 494-531. 

16 A.M.A., Guides 411. 

17 Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are 

followed by an asterisk. 

18 5 U.S.C. § 8107(c)(17). 

19 Supra note 11 at Chapter 2.808.5(e) (February 2013). See Charles B. Carey, 49 ECAB 528 (1998) (where the 

Board remanded the case for OWCP to consider whether an accepted finger impairment also impaired the right 

hand). 
6

It is well established that, when the examining physician does not provide an estimate of 

impairment conforming to the A.M.A., Guides, OWCP may rely on the impairment rating 

provided by a medical adviser.20

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained metacarpal neck fractures of the right small and 

ring fingers. On August 25, 2012 appellant claimed a schedule award. In support of his claim, 

he provided a November 26, 2012 report from Dr. Kimball, an attending Board-certified 

orthopedic surgeon, who opined that appellant had four percent impairment of the right hand due 

to the accepted metacarpal neck fractures of the right small and ring fingers according to 

unspecified elements of the A.M.A., Guides. As Dr. Kimball did not explain the basis for his 

rating, OWCP could not utilize his report.21

Appellant also submitted July 18 and November 12, 2014 impairment ratings from 

Dr. Rogers, an attending Board-certified orthopedic surgeon, who found that appellant had 

reached maximum medical improvement. Dr. Rogers found that, according to the diagnosisbased rating method under Table 15-11, the accepted right small and ring finger fractures 

equaled a two percent permanent impairment of the right hand. An OWCP medical adviser 

reviewed Dr. Rogers’ clinical findings and the medical record, and agreed that appellant had two 

percent permanent impairment of the right hand using the diagnosis-based rating method. 

Regarding the fractures of fourth and fifth fingers, he found a class 1 CDX, a grade 1 GMFH as 

appellant could perform all activities of daily living, and a grade 1 GMPE due to slight 

discomfort with range of motion. The medical adviser explained that a GMCS was not 

appropriate as imaging studies were used to determine the CDX. Applying the net adjustment 

formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1), he found a net 

adjustment of zero, leaving the CDX at the default grade C, equaling an eight percent impairment 

of the right fourth and fifth digits. The medical adviser used Table 15-1222 to convert the eight 

percent impairment of the fourth finger to one percent right hand impairment, and the eight 

percent impairment of the fifth finger impairment to one percent right hand impairment. OWCP 

therefore issued the January 8, 2015 schedule award for two percent impairment of the right 

hand. 

Appellant disagreed, and pursuant to an August 11, 2015 hearing, provided an 

impairment rating from Dr. Bishai, an attending orthopedic surgeon. Based on a thorough 

examination and records review, Dr. Bishai also found two percent impairment of the right hand 

due to the accepted right small and ring finger fractures. As appellant submitted no probative 

evidence indicating that he sustained any additional impairment to the right hand, OWCP issued 

its October 6, 2015 decision affirming the January 8, 2015 schedule award. 

The Board finds that OWCP properly relied on Dr. Rogers’ clinical findings, as 

interpreted by the medical adviser, in determining that the accepted fractures constituted two 

 20 J.Q., 59 ECAB 366 (2008). 

21 D.N., 59 ECAB 576 (2008). 

22 Supra note 8. 
7

percent permanent impairment of the right hand. The medical adviser applied the appropriate 

tables and grading schemes to Dr. Rogers’ findings on examination, and provided a clear 

explanation of each element in the rating. His opinion is entitled to the weight of the medical 

evidence in this case.23

On appeal, appellant’s representative contends that OWCP should have relied on the 

impairment rating provided by Dr. Bishai. As set forth above, Dr. Bishai also opined that 

appellant had two percent impairment of the right hand, concurring with the impairment figure 

provided by Dr. Rogers and the medical adviser. 

Appellant may request a schedule award or increased schedule award regarding the right 

upper extremity, based on evidence of a new exposure or medical evidence showing progression 

of an employment-related condition resulting in permanent impairment or increased impairment. 

LEGAL PRECEDENT -- ISSUE 2 

When an injury that does not result in disability causes permanent impairment, the 

beneficiary is eligible for cost-of-living adjustments under section 8146(a) of FECA, where the 

award for such impairment began more than one year prior to the date the cost-of-living 

adjustment took effect.24 When there is prior injury-related disability, OWCP’s procedures 

provide that the cost-of-living adjustment increase start date for the schedule award is the 

effective date of the applicable pay rate.25 

ANALYSIS -- ISSUE 2 

In calculating the January 8, 2015 schedule award, OWCP properly utilized April 4, 2011 

as the start date, the date that disability began for the hand injury. As of April 4, 2011, 

appellant’s pay rate was $2,508.58 a week. OWCP properly applied the 75 percent rate as 

appellant had eligible dependents. It calculated that 75 percent of $2,508.58 was $1,881.44. 

OWCP applied the March 1, 2012 CPI of 3.2 percent to appellant’s compensation as of April 4, 

2011, increasing the weekly compensation date to $1,888.69. 

The Board notes that April 4, 2011, the date that disability began is less than one year 

prior to March 31, 2012, the date of the CPI OWCP apparently applied to the schedule award. 

This does not meet the requirement under section 8146(a) of FECA26 that the impairment begin 

more than one year prior to the effective date of the CPI. Also, OWCP did not provide the 

mathematical calculations used to determine the amount of the increase attributable to the CPI. 

The Board finds the issue requires clarification. 

The case will be remanded to OWCP to clarify which CPI it applied to the January 8, 

2015 schedule award. Also, it shall set forth the mathematical calculations used to determine the 

 23 Supra note 20. 

24 5 U.S.C. § 8146(a); 20 C.F.R. § 10.420(b). 

25 Supra note 13 at Part 2 -- Claims, Determining Pay Rates, Chapter 2.900, Exhibit 1 (January 2010). 

26 5 U.S.C. § 8146(a). 
8

amount of the increase in appellant’s monthly payments. Following this and any other 

development deemed necessary, OWCP shall issue an appropriate decision in the case. 

On appeal, appellant’s representative asserts that appellant was entitled to cost-of-living 

increases from 2012 to 2014. As set forth above, the case will be remanded for clarification of 

the CPI issue. 

CONCLUSION 

The Board finds that OWCP properly found that appellant sustained two percent 

permanent impairment of the right hand, for which he received a schedule award. The Board 

further finds that the case is not in posture for a decision regarding whether OWCP applied the 

appropriate cost-of-living increase in calculating the January 8, 2015 schedule award. 

ORDER 

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

Compensation Programs dated October 6, 2015 is affirmed in part regarding the percentage of 

permanent impairment, and set aside and remanded in part regarding whether OWCP applied the 

appropriate cost-of-living increase to appellant’s schedule award. 

Issued: October 7, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board