United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 17-0335 

Issued: July 26, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 30, 2016 appellant, through counsel, filed a timely appeal from an 

August 19, 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 has established more than two percent permanent 

impairment of his left upper extremity, for which he 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

FACTUAL HISTORY 

On September 23, 2009 appellant, then a 51-year-old letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that, on September 18, 2009, he sprained his left wrist when 

he slipped on wet leaves and fell down in the performance of duty. He did not stop work. 

OWCP accepted his claim for left wrist sprain and left cubital tunnel syndrome. 

On November 7, 2009 appellant stopped work and filed various claims for wage-loss 

compensation (Form CA-7) as of that date. OWCP paid disability compensation benefits on the 

supplemental rolls commencing November 7, 2009.3

 Appellant underwent authorized 

decompression of the ulnar nerve, anterior transposition of ulnar nerve, and posterior splint 

application on January 26, 2011. On May 23, 2013 he returned to full-time modified duty.4

 

On September 21, 2015 appellant filed a claim for a schedule award (Form CA-7). 

In support of his schedule award claim, appellant submitted a May 19, 2015 report from 

Dr. Nicholas Diamond, a physiatrist. Dr. Diamond referenced appellant’s September 18, 2009 

employment injury and reviewed his medical history. He related appellant’s complaints of left 

elbow pain and stiffness and left hand numbness and tingling. Dr. Diamond reported that 

appellant had a QuickDASH score of 63 involving the left upper extremity. Upon examination 

of appellant’s left elbow, Dr. Diamond observed olecranon tenderness and medial epicondyle 

tenderness. Tinel’s sign was positive. Range of motion (ROM) testing was full. Upon 

examination of appellant’s left wrist, Dr. Diamond observed palmar tenderness over the ulnar 

aspect. Cervical compression and Finkelstein tests were positive. Dr. Diamond noted that ROM 

testing was performed three times. He reported decreased ROM with flexion to 60 degrees with 

pain, palmar-flexion to 60 degrees with pain, radial deviation of 20 degrees, and ulnar deviation 

of 20 degrees. Sensory examination revealed a perceived decreased sensation over the left ulnar 

and median nerves. Dr. Diamond diagnosed post-traumatic left elbow contusion/sprain, posttraumatic left ulnar nerve neuropathy at the elbow, status post left cubital tunnel ulnar nerve 

decompression and transportation of ulnar nerve with post-splint application, post-traumatic left 

wrist/hand contusion with left dorsal wrist hamate fracture, and post-traumatic left carpal tunnel 

syndrome. He opined that the work-related injury of September 18, 2009 was the competent 

producing factor for appellant’s subjective and objective findings. 

Referring to the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) (6th ed. 2009), Table 15-23, page 449, Dr. Diamond reported that 

appellant had six percent permanent impairment for left elbow ulnar nerve entrapment 

neuropathy. He related grade modifiers of one for test findings, three for functional history, and 

two for physical examination, which resulted in five percent impairment, increased to six percent 

due to the 63 QuickDASH score. Dr. Diamond also noted a diagnosis for left elbow median 

 3

 OWCP paid compensation benefits on the periodic rolls effective July 3, 2011. 

4

 On September 30, 2013 OWCP terminated appellant’s wage-loss compensation benefits based on his actual 

wages as a modified letter carrier. It determined that his current wages exceeded the current wages of the job he 

held when injured and, accordingly, he was no longer entitled to wage-loss compensation benefits. 
3

nerve entrapment and reported grade modifiers of one for test findings, two for physical 

examination, and three for functional history. After applying the net adjustment formula, he 

calculated three percent permanent impairment rating. Dr. Diamond also referred to Table 15-3, 

page 396, for appellant’s left hamate wrist fracture. He indicated grade modifiers of three for 

functional history and two for physical examination and applied the net adjustment formula, 

which resulted in a left upper extremity permanent impairment of five percent. Dr. Diamond 

reported a date of maximum medical improvement (MMI) of May 19, 2015. He concluded that 

appellant had a total left upper extremity permanent impairment of 14 percent. 

Dr. Mark Avart, an orthopedic surgeon, indicated in a September 24, 2015 note that he 

reviewed Dr. Diamond’s impairment rating report and agreed with his finding that appellant had 

a 14 percent permanent impairment of the left upper extremity. 

In an October 19, 2015 report, Dr. Morley Slutsky, a Board-certified occupational 

medicine specialist and an OWCP medical adviser, reviewed Dr. Diamond’s report and the 

statement of accepted facts and referenced appellant’s accepted conditions of left wrist sprain 

and left ulnar nerve lesion. He noted that Dr. Diamond provided an impairment rating for the 

accepted conditions of wrist sprain and lesion of the left ulnar nerve, as well as the nonaccepted 

conditions of left hamate fracture and left carpal tunnel syndrome. Dr. Slutsky explained that, 

since the two later diagnoses were not accepted conditions, he would not address them in his 

report. He reported a date of MMI of May 19, 2015. Dr. Diamond referenced Table 15-23, page 

449, and assigned a diagnosis of left cubital tunnel syndrome. He indicated grade modifiers of 

one for clinical studies, one for functional history, and one for physical examination, which 

resulted in an adjustment of one after applying the net adjustment formula. Dr. Diamond 

concluded that appellant had two percent permanent impairment of the left upper extremity. He 

referenced Appendix 15-B, page 488, and noted that conduction block was not present per the 

A.M.A., Guides criteria. Dr. Slutsky also noted that, as Dr. Diamond had not found a left wrist 

sprain, there was no impairment rating for this condition. 

Dr. Avart examined appellant again and in a November 12, 2015 progress note related his 

complaints of continued left elbow pain and chronic cubital tunnel syndrome post-traumatic from 

work and chronic weakness. Upon physical examination, Dr. Avart observed decreased grip 

strength with mild tingling and parethesias into the small finger of the left hand. He also 

reported medial epicondylitis with pain radiating into the medial forearm. 

In a decision dated February 9, 2016, OWCP granted appellant a schedule award for two 

percent permanent impairment of his left upper extremity. 

On February 18, 2016 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. A hearing was held on June 14, 2016. Counsel was present. Appellant 

indicated that he started work as a letter carrier for the employing establishment in May 1999. 

He described the September 18, 2009 employment injury and the medical treatment he had 

received as a result of his employment injury. Counsel related a request for appellant’s claim to 

be expanded to include the conditions of left dorsal wrist hamate fracture and left carpal tunnel 

syndrome. She noted that an October 20, 2009 left wrist computerized tomography (CT) scan 

showed the fracture. Counsel asserted that Dr. Diamond found a left ulnar nerve impairment 

rating to be a total of six percent and noted that Dr. Slutsky had not examined appellant. She 
4

alleged that, at the very least, a conflict of medical opinion evidence existed between 

Dr. Diamond and Dr. Slutsky regarding appellant’s impairment rating and should be referred for 

an impartial medical examination. 

Appellant submitted a July 14, 2015 progress note by Dr. Avart who related appellant’s 

complaints of persistent left elbow pain. Upon physical examination, he observed left elbow 

medial epicondylitis with pain radiating along the ulnar forearm with a minimal Tinel’s present. 

Grip strength was decreased. Dr. Avart reported paresthesias in the small and ring finger on the 

left hand. Muscle strength was 4/5. He recommended that appellant work with restricted use of 

the left arm. 

By decision dated August 19, 2016, an OWCP hearing representative affirmed the 

schedule award decision. He determined that because Dr. Diamond incorrectly included a 

diagnosis of left hamate fracture in his impairment rating, OWCP properly based its schedule 

award decision on Dr. Slutsky’s impairment rating report.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 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., Guides 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

 The hearing representative also denied expanding appellant’s claim to include a left hamate fracture. She noted 

that an October 20, 2009 CT scan indicated that a fracture was questionable, and there was insufficient medical 

evidence to establish an additional condition. 

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

Section 8123(a) provides that, if there is a disagreement between the physician making 

the examination for the United States and the physician of the employee, the Secretary shall 

appoint a third physician who shall make an examination.11 The implementing regulations state 

that, if a conflict exists between the medical opinion of the employee’s physician and the medical 

opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint 

a third physician to make an examination. This is called a referee examination and OWCP will 

select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.12 In situations where there exist opposing medical reports of virtually equal 

weight and rationale and the case is referred to an impartial medical specialist for the purpose of 

resolving the conflict, the opinion of such specialist, if sufficiently well rationale and based upon 

a proper factual background, must be given special weight.13

ANALYSIS 

The issue on appeal is whether appellant has more than two percent permanent 

impairment of his left upper extremity, for which he previously received a schedule award. The 

accepted conditions in this case are left wrist sprain and left cubital tunnel syndrome. 

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

Regarding the accepted condition of left cubital tunnel syndrome, the Board notes that 

Dr. Diamond rated appellant for left elbow ulnar nerve entrapment neuropathy, and left elbow 

median nerve entrapment. He related various grade modifiers ranging from one for clinical 

studies, to two and three for physical examination, and functional history. Dr. Slutsky, however, 

assigned the diagnosis of left cubital tunnel syndrome, and related grade modifiers of one for 

each of clinical studies, functional history, and physical examination. The opinions of record are 

in conflict as to the modifier degree to be applied to the impairment values. The Board therefore 

 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 5 U.S.C. § 8123(a). 

12 20 C.F.R. § 10.321. 

13 F.C., Docket No. 14-0560 (issued November 12, 2015). 
6

finds a conflict in medical opinion as to the extent of permanent impairment to appellant’s left 

upper extremity caused by his accepted injury.14

Regarding the accepted condition of left wrist sprain, appellant’s treating physician, 

Dr. Diamond, noted the accepted conditions and provided ROM findings for appellant’s left 

wrist. However, Dr. Slutsky, OWCP’s medical adviser, related that Dr. Diamond had not found 

residuals of a left wrist strain. 

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 diagnosis-based 

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

for schedule award purposes.15 The purpose of the use of uniform standards is to ensure 

consistent results and to ensure equal justice under the law to all claimants.16 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 has 

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.17 

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 August 19, 2016 decision of OWCP. 

Utilizing a consistent method for calculating permanent impairment for upper extremities to be 

applied uniformly, 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. 

CONCLUSION 

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

 14 D.G., Docket No. 10-2267 (issued August 24, 2011). The Board found a conflict in medical opinion between 

appellant’s treating physician and OWCP’s district medical adviser regarding the degree of permanent impairment 

based upon assignment of differing grade modifiers. 

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

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

17 Supra note 15. 
7

ORDER 

IT IS HEREBY ORDERED THAT the August 19, 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: July 26, 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