United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Cleveland, OH, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-0641

Issued: June 27, 2018

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 January 27, 2017 appellant, through counsel, filed a timely appeal from a December 20, 

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.

 

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 met his burden of proof to establish greater than one 

percent permanent impairment of the right upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On January 9, 2012 appellant, then a 50-year-old automation clerk, filed an occupational 

disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome due to sweeping 

mail while in the performance of duty. OWCP accepted the claim for right wrist sprain and 

bilateral carpal tunnel syndrome. Appellant underwent a right carpal tunnel release on 

February 18, 2013. OWCP paid appellant wage-loss compensation and medical benefits.

On November 13, 2013 appellant filed a claim for a schedule award (Form CA-7). 

OWCP developed the claim, and by decision dated March 4, 2015, it denied appellant’s 

claim for a schedule award, finding that the evidence submitted was insufficient to establish that 

he sustained permanent impairment of a scheduled member due to his accepted work injury.

On March 9, 2015 appellant, through counsel, requested a hearing before a representative 

of OWCP’s Branch of Hearings and Review.

In a report dated July 22, 2015, Dr. Catherine Watkins Campbell, Board-certified in family 

practice and occupational medicine, noted appellant’s history of injury and treatment. She utilized 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (2009) (A.M.A., Guides).3 Dr. Watkins Campbell provided findings which recorded 

that range of motion of the right wrist measured 64, 64, 60 degrees of flexion, 44, 44, 50 degrees 

of extension, 30, 38, 28 degrees of radial deviation and 10, 10 degrees of ulnar deviation. She 

determined that appellant had a three centimeter vertical scar across the volar aspect of the wrist 

and that there was mild tenderness over the scar and at the first metacarpal phalangeal (MCP) joint. 

Dr. Watkins Campbell determined that normal strength in the right wrist was noted. Additionally 

a grade of 4/5 strength deficit of finger flexion was noted. Dr. Watkins Campbell found two-point 

discrimination was abnormal, that appellant had a negative Tinel’s sign and a positive Phalen’s 

test at forty. She found that appellant reached MMI on May 22, 2015 and determined that appellant 

had seven percent permanent impairment to the right upper extremity.4 The seven percent 

permanent right upper extremity impairment rating was based on residuals of right wrist sprain 

and pain post-surgery and right carpal tunnel syndrome postsurgery under Table 15-3, Wrist 

 

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

4

Id. at 475, Table 15-34.
3

Regional Grid, A.M.A., Guides.

5

 Dr. Watkins Campbell also referenced Table 15-32, Wrist Range 

of Motion, A.M.A., Guides.

6

By decision dated September 2, 2015, the hearing representative found that the case was 

not in posture for decision as further medical development was necessary. She set aside the prior 

decision and remanded the case for a de novo decision. OWCP found that the case should be 

referred to an OWCP district medical adviser (DMA), for a detailed and rationalized opinion 

concerning the extent of appellant’s impairment utilizing the A.M.A., Guides. 

By letter dated September 22, 2015, OWCP requested that a DMA provide an opinion 

regarding the extent of appellant’s impairment utilizing the A.M.A., Guides. 

In a September 26, 2015 report, the DMA utilized the physical findings of Dr. Watkins

Campbell and utilized the A.M.A., Guides. He explained the inconsistencies in Dr. Watkins

Campbell’s report and opined that appellant reached MMI on May 22, 2015 and had one percent 

impairment of the right upper extremity. The DMA’s one percent right upper extremity 

impairment rating was based on residuals of right wrist sprain and pain postsurgery and right carpal 

tunnel syndrome postsurgery under Table 15-3, Wrist Regional Grid, A.M.A., Guides.

7

 He also 

referenced Table 15-32, Wrist Range of Motion, A.M.A., Guides.

8

 The DMA explained that the 

diagnosis-based method was the preferred rating method and would be used for final impairment 

calculations. 

On October 30, 2015 appellant again requested a schedule award (Form CA-7).

By decision dated January 6, 2016, OWCP granted appellant a schedule award for one 

percent permanent impairment of his right upper extremity. The award covered a period of 3.12 

weeks, from May 22 to June 12, 2015. OWCP based the award on the DMA’s September 26, 2015

impairment rating, noting that the DMA determined that appellant’s physician had “incorrectly 

applied the [A.M.A., Guides]....”

On January 15, 2016 appellant, through counsel, requested a telephonic hearing, which was 

held on September 12, 2016. He argued that there was an unresolved conflict in medical opinion.

By decision dated December 20, 2016, the hearing representative affirmed the January 6, 

2016 schedule award decision.

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 

 

5

Id. at 395, Table 15-3.

6

Id. at 473, Table 15-32.

7 Supra note 5.

8 Supra note 6.
4

vested the authority to implement the FECA program with the Director of OWCP.

9

 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.10 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.11 

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).12 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.13

ANALYSIS

The issue on appeal is whether appellant has met his burden of proof to establish that he 

has greater than one percent permanent impairment of his right upper extremity for which he 

previously received a schedule award. 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 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.14 The purpose 

of the use of uniform standards is to ensure consistent results and to ensure equal justice under the 

law to all claimants.15 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, 

 

9 See 20 C.F.R. §§ 1.1-1.4.

10 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

11 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

12 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 (March 2017). 

13 Isidoro Rivera, 12 ECAB 348 (1961).

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

15 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
5

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.16 

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

upper extremity impairment, the Board will set aside the December 20, 2016 decision. Following 

OWCP’s development of a consistent method for calculating permanent impairment for upper 

extremities to be applied uniformly,

17 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.

CONCLUSION

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

 

16 T.H., supra note 14.

17 See FECA Bulletin No. 17-06 (issued May 8, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the December 20, 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: June 27, 2018

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