United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Plantville, CT, Employer

__________________________________________

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Docket No. 17-1484

Issued: October 27, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

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 June 20, 2017 appellant filed a timely appeal from a January 18, 2017 merit decision 

and a March 10, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish permanent 

impairment due to the accepted right thumb laceration; and (2) whether OWCP properly denied 

appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

On appeal appellant asserts that she continues to have thumb impairments.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On August 24, 2015 appellant, then a 47-year-old clerk, filed a traumatic injury claim 

(Form CA-1) alleging that she cut her thumb when pulling on a mail container that day. OWCP 

accepted a right thumb laceration. Appellant returned to light-duty work on August 27, 2015, 

and was performing full-time, full-duty work by September 23, 2015. 

Dr. Richard L. Manzo, Board-certified in orthopedics and surgery of the hand, began 

treating appellant in October 2015 for the thumb laceration. He described the employment injury 

and noted appellant’s complaint of intermittent, aching pain made worse by attempted right 

thumb flexion. Dr. Manzo indicated that an October 5, 2015 x-ray showed mild interphalangeal 

joint space narrowing, but no bony injury. Following physical examination, he diagnosed 

hypertrophic scar, contracture of the right thumb, and status post crush injury of the right thumb. 

Dr. Manzo continued to treat appellant. On August 29, 2016 he noted that appellant had not 

been seen since February, and that she denied pain with routine activities. Right thumb 

examination demonstrated a well-healed laceration that was mildly hypertrophic, but not 

sensitive to palpation. Thumb interphalangeal range of motion was 30 of hyperextension to 40 

of flexion. Dr. Manzo diagnosed status post right thumb crush injury with laceration and 

interphalangeal joint extension contracture. He advised that, in accordance with Table 16-1 and 

Figure 16-12 of the fifth edition of the American Medical Association, Guides to the Evaluation 

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

2

appellant had three percent permanent 

right thumb impairment, or one percent permanent impairment of the right hand.

On October 11, 2016 appellant filed a claim for a schedule award (Form CA-7). In 

November 2016, OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified 

orthopedic surgeon, for a second opinion evaluation and impairment rating. In a December 24, 

2016 report, Dr. Somogyi described the history of injury and noted his review of the medical 

record and appellant’s complaint of range of motion (ROM) limitation of the right thumb and 

occasional pain and awkwardness with writing and using the thumb. He advised that appellant’s 

ROM was comparable to the left thumb with no limitations, indicating that the only objective 

finding was a well-healed “hockey-stick” type scar over the dorsoradial aspect of the 

interphalangeal joint of the right thumb. Dr. Somogyi concluded that, under the sixth edition of 

the A.M.A., Guides,

3

appellant had no ratable impairment, with December 24, 2016 the date of 

maximum medical improvement. 

By decision dated January 18, 2017, OWCP denied appellant’s claim for a schedule 

award finding that the weight of the medical evidence rested with the opinion of Dr. Somogyi.

On February 13, 2017 appellant requested reconsideration. She asserted that she had 

difficulty writing for long periods and right thumb ROM impairments.

In a nonmerit decision dated March 10, 2017, OWCP denied the reconsideration request, 

noting that the evidence submitted was insufficient to warrant merit review.

 

2 A.M.A., Guides (5th ed. 2001).

3

Id. (6th ed. 2009).
3

LEGAL PRECEDENT -- ISSUE 1

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.4 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.5 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.6

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).7 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.8

ANALYSIS -- ISSUE 1

The merit issue in this appeal is whether appellant established entitlement to a schedule 

award for the accepted right thumb laceration.

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

Appellant’s treating physician Dr. Manzo reported on August 29, 2016 that she had three 

percent permanent impairment of the right thumb. He referenced the fifth edition of the A.M.A., 

Guides rather than the sixth edition. Dr. Manzo, however, also reported that appellant had 

interphalangeal joint extension contracture, noting right thumb ROM was 30 of hyperextension 

 

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1).

6

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

7

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).

8

Isidoro Rivera, 12 ECAB 348 (1961).
4

to 40 of flexion. Dr. Somogyi, an OWCP referral physician, reviewed the record and concluded 

that appellant had no right thumb impairment under the sixth edition of the A.M.A., Guides. 

Dr. Somogyi did not reference a specific table or provide specific right thumb ROM

measurements, other than to indicate that appellant had no limitation.

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 had 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.9 The purpose of the use of uniform standards is to ensure 

consistent results and to ensure equal justice under the law to all claimants.10 In T.H., the Board 

concluded that OWCP physicians were at odds over the proper methodology for rating upper 

extremity impairment, having observed that 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 have 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.11

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

upper extremity impairment, the Board will set aside the January 18, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities 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.12

In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.

CONCLUSION

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

 

9

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

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

11 T.H., supra note 9.

12 See FECA Bulletin No. 17-06 (issued May 8, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the March 10 and January 18, 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: October 27, 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