United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.V., Appellant

and

PEACE CORPS VOLUNTEER SERVICES, 

La Paz, Honduras, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0427

Issued: November 9, 2018

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 December 26, 2017 appellant filed a timely appeal from an October 26, 2017 merit 

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 the case.

2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 13 percent 

permanent impairment of his right upper extremity, for which he previously received schedule 

award compensation.

 

1 5 U.S.C. § 8101 et seq.

2 Appellant submitted additional evidence on appeal. However, “The Board’s review of a case is limited to the 

evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will 

not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded 

from reviewing this evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

This case has previously been before the Board.3 The facts as presented in the Board’s 

prior decision are incorporated herein by reference. The relevant facts are as follows.

On March 24, 2011 appellant, then a 68-year-old Peace Corps volunteer, filed a traumatic 

injury claim (Form CA-1) alleging that on February 9, 2011 he injured his right arm when he fell 

down steps at his home in Honduras. OWCP accepted the claim for fracture of the right radius 

head, closed fracture of the olecranon process of the right ulna, contracture of elbow joint, and 

pain in joint, arm, and hand of the right upper extremity. After having surgery in Honduras and 

Panama, Dr. Douglas P. Hanel, a Board-certified orthopedic surgeon, performed additional right 

elbow surgery on June 1 and October 12, 2011 in Seattle, Washington. 

By decision dated March 21, 2012, OWCP terminated appellant’s wage-loss 

compensation, finding that he had no further disability due to his work injury. Following a request 

for reconsideration, by decision dated July 6, 2012, it denied modification of its prior decision.

Appellant filed a schedule award claim (Form CA-7) on July 27, 2012.

In a July 24, 2012 report, Dr. Honorio Claros Fortin, an orthopedic surgeon, noted 

appellant’s physical examination findings of right elbow active flexion of 50 degrees, extension to 

165 degrees, right wrist dorsiflexion of 55 degrees, left wrist dorsiflexion of 75 degrees, right volar 

flexion of 55 degrees, and left volar flexion of 80 degrees. There was no pronation or supination, 

and the fingers of the right and left hand had complete mobility and normal strength.

By development letter dated August 21, 2012, OWCP asked appellant to provide an 

impairment rating in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).4 It afforded him

30 days to submit the requested information. Appellant submitted no additional medical reports. 

By decision dated September 26, 2012, OWCP denied appellant’s schedule award claim. 

Following a request for reconsideration, by decision dated November 1, 2012, it denied 

modification of the September 26, 2012 decision.

In a November 1, 2012 letter, OWCP forwarded the medical evidence of record to

Dr. Hanel and requested a permanent impairment evaluation in accordance with the sixth edition 

of the A.M.A., Guides. On January 14, 2013 Dr. Hanel indicated that appellant had been examined 

15 months status post right elbow resection of heterotopic ossification with contracture release on 

October 12, 2011. He provided physical examination findings and advised that appellant’s right 

shoulder range of motion was full, flexion-extension of the right elbow was 25 to 130 degrees, and 

appellant could pronate to 30 degrees and supinate to neutral. Sensation was noted as normal. 

Dr. Hanel indicated that arthritis of the ulnohumeral joint was continuing to worsen and that 

 

3 Docket No. 14-0986 (issued January 17, 2017). 

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

appellant was at maximum medical improvement (MMI). He indicated that appellant would 

require a total elbow arthroplasty or arthrodesis in the future.

OWCP attempted to schedule a second opinion evaluation while appellant was stateside, 

but was unsuccessful. Appellant scheduled his own appointment with Dr. Brian D. Cameron, a 

Board-certified orthopedic surgeon, and OWCP authorized the visit. In his February 3, 2013 

report, Dr. Cameron described the employment injury and subsequent medical treatment and noted 

appellant’s complaint of persistent right elbow pain and a sense of weakness. He advised that 

physical examination demonstrated 30 degrees of flexion contracture to approximately 110 

degrees with profound weakness in both pronation and supination due to ankylosis. Sensation was 

intact distally. Dr. Cameron diagnosed severe post-traumatic arthritis of the right elbow with 

associated ankylosis in supination, status post radial head prosthetic arthroplasty. He indicated 

that appellant had reached MMI and advised that at some point he would require a total elbow 

replacement. In accordance with the fifth edition of the A.M.A., Guides,

5 Dr. Cameron found a 

combined 53 percent right upper extremity permanent impairment.

On March 13, 2013 OWCP asked Dr. Cameron to provide an impairment rating in 

accordance with the sixth edition of the A.M.A., Guides. On June 10, 2013 Dr. Cameron advised 

that, in accordance with Table 15-33, elbow/forearm range of motion (ROM), appellant had a 

class 1 limitation of flexion to approximately 110 degrees, for 3 percent permanent impairment, 

30 degrees lack of full extension for 2 percent permanent impairment, and 20 degrees of supination 

for 15 percent upper extremity impairment rating, for a combined right upper extremity permanent 

impairment of 20 percent.

On June 20, 2013 Dr. Morley Slutsky, an OWCP medical adviser Board-certified in 

occupational medicine, reviewed the medical record, including Dr. Cameron’s June 10, 2013 

report. Dr. Slutsky indicated that Dr. Cameron’s ROM measurements were invalid because he did 

not follow instructions found in the A.M.A., Guides. He advised that appellant’s most impairing 

diagnosis was radial head arthroplasty, complicated. Dr. Slutsky found that, utilizing the 

diagnosis-based impairment (DBI) method, under Table 15-4, Elbow Regional Grid, for this 

diagnosis, appellant had a class 1 impairment with a default value of 11 percent, and modifiers of 

2 for functional history and 3 each for physical examination and clinical studies. After applying 

the net adjustment formula, he concluded that appellant had 13 percent right upper extremity 

permanent impairment, the maximum allowed for this diagnosis.

On July 18, 2013 OWCP forwarded Dr. Slutsky’s evaluation to Dr. Cameron for review. 

On July 24, 2013 it notified appellant that it would not authorize another physician visit for an 

impairment evaluation.

Appellant submitted an August 13, 2013 report in which Dr. Charles N. Brooks, a Boardcertified orthopedic surgeon, noted appellant’s complaint of pain and stiffness in the right elbow

and that he had limitations in using his right arm in activities of daily living. Dr. Brooks indicated 

that motions on left and right elbows respectively were extension 0/10 degrees and flexion 140/110 

degrees. Crepitus was readily apparent in the right elbow with elbow motion, both palpably and 

audibly. Forearm pronation was 90/10 degrees and supination 0/90 degrees, respectively. Grip 

 

5

Id. (5th ed. 2000).
4

and pinch, were weaker on the right. Sensory testing revealed hypoesthesia throughout most of 

the right forearm and also involving the ulnar aspect of appellant’s right hand, ring, and little 

fingers. Dr. Brooks diagnosed open fracture dislocation of the right elbow, including comminuted 

fractures of the radial head and neck, fractures of the olecranon and coronoid process, and tears of 

both the medial and lateral collateral ligaments, due to the February 9, 2011 employment injury.

He further diagnosed post-traumatic arthritis of the right elbow, complicating the elbow fracturedislocation, and right ulnar neuropathy, also complicating the elbow fracture-dislocation, status 

post submuscular ulnar nerve transposition.

Dr. Brooks indicated that, in accordance with Table 15-4, the radial head arthroplasty 

diagnosis, complicated by heterotopic ossification and ankylosis, was the highest causally related 

rating diagnosis, with an impairment range of 9 to 13 percent. He found a grade modifier of 2 for 

functional history, 3 for physical examination, and no modifier for clinical studies. Dr. Brooks

applied the net adjustment formula and concluded that appellant had 13 percent right upper 

extremity permanent impairment based on the diagnosis of radial head arthroplasty. 

Dr. Brooks further found that the A.M.A., Guides indicated that a peripheral nerve 

impairment could be combined with a DBI rating of the upper extremity level as long as the DBI 

rating did not encompass the nerve impairment. He advised that appellant’s ulnar neuropathy was 

a separate and distinct diagnosis, which caused an increased impairment. Dr. Brooks utilized 

Table 15-23, Entrapment/Compression Neuropathy Impairment, and indicated that appellant had 

no modifier for test findings because there was no electrodiagnostic study, and he had a grade 

modifier of 3 for history due to constant hypoesthesia in the ulnar distribution. He further indicated 

that appellant had a modifier of 2 for physical examination due to decreased sensation. Dr. Brooks 

averaged the grade modifiers, concluding that appellant had grade modifier of 2 which under 

Table 15-23 which yielded an impairment rating of seven to nine percent. He concluded that, 

based on appellant’s QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 45, he 

had eight percent right upper extremity impairment due to his peripheral nerve injury. Dr. Brooks 

combined the 13 percent permanent impairment due to the radial head arthroplasty with the 8 

percent permanent impairment due to the peripheral nerve injury and concluded that appellant had 

20 percent permanent impairment of the right upper extremity.

On January 14, 2014 Dr. Slutsky again reviewed the medical record, including Dr. Brooks’

report. He advised that the date of MMI was August 13, 2013, the date of appellant’s impairment 

evaluation by Dr. Brooks. Dr. Slutsky agreed with Dr. Brooks’ conclusion that appellant had 13 

percent permanent impairment under Table 15-4. He determined, however, that appellant was not 

entitled to an additional impairment rating for the right ulnar nerve peripheral neuropathy. 

Dr. Slutsky noted that the condition was first diagnosed on June 1, 2011 during surgery and had 

not been accepted as causally related to the accepted employment injury. He concluded that 

appellant’s final right upper extremity permanent impairment rating was 13 percent, based on the 

complicated right radial head arthroplasty.

By decision dated February 6, 2014, OWCP granted appellant a schedule award for 13 

percent permanent impairment of the right upper extremity.

Appellant thereafter appealed to the Board. By decision dated January 17, 2017, the Board 

set aside the February 6, 2014 decision and remanded the case to OWCP to apply the standards 
5

found in its decision T.H.

6

 The Board instructed OWCP to develop a consistent method for 

calculating permanent impairment for upper extremities to be applied uniformly. After this and 

such other development deemed necessary, OWCP was to issue a de novo decision on appellant’s 

claim for an upper extremity schedule award.7

Following the Board’s January 17, 2017 decision, by letter dated May 17, 2017, OWCP 

asked appellant to furnish a medical report from his treating physician based upon recent 

examination findings. This was to include an impairment rating in accordance with the sixth 

edition on the A.M.A., Guides, including both the DBI and ROM methods, with an opinion as to 

whether appellant had reached MMI. 

In correspondence dated June 12, 2017, appellant maintained that the medical evidence of 

record was sufficient to issue a schedule award.

On July 5, 2017 OWCP referred the record to Dr. Michael M. Katz, an OWCP medical 

adviser, who is Board-certified in orthopedic surgery. It asked Dr. Katz to provide an impairment 

rating utilizing both the DBI and ROM methods, if the A.M.A., Guides allowed the use of both. 

In a July 6, 2017 report, Dr. Katz noted the accepted conditions and his review of the 

evidence. He advised that he agreed with Dr. Slutsky and Dr. Brooks that appellant had 13 percent 

permanent impairment as a result of the right elbow fracture and subsequent surgery/sequelae, by

utilizing the DBI method under Table 15-4, Elbow Regional Grid. Dr. Katz disagreed with

Dr. Slutsky regarding whether a peripheral nerve injury should be included, opining that a schedule 

award should include both an employment-related impairment and any impairment of the 

scheduled member present at the time of the impairment evaluation. As such, appellant would be 

entitled to an increased schedule award due to peripheral nerve injury. Dr. Katz advised that for 

Table 15-23 to be utilized, electrodiagnostic testing should be done, and that there was no such 

testing in this case. He found that, under Table 15-21, Peripheral Nerve Impairment, Upper 

Extremity, appellant had an additional 6 percent impairment for a peripheral nerve injury which, 

when combined with the 13 percent impairment, yielded a combined 18 percent right upper 

extremity permanent impairment. Dr. Katz further noted that the record did not support that the 

ROM method should be utilized as Dr. Brooks did not indicate that three independent 

measurements of each arc had been provided. He concluded that appellant had 18 percent right 

upper extremity permanent impairment which, following subtraction of the prior award of 13 

percent, yielded an increased impairment of 5 percent, with August 13, 2013 the date of MMI. 

In an August 28, 2017 treatment note, Dr. Hanel indicated that appellant was doing well 

with a slight increase in elbow stiffness. Right elbow ROM findings yielded flexion of 30, 

extension of 150, no supination, and no pronation. Dr. Hanel recommended a return in one year. 

By decision dated October 26, 2017, OWCP found that appellant had not met the 

requirements for an increased schedule award. 

 

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

7 Supra note 3.
6

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish that he or she sustained permanent 

impairment of a scheduled member or function as a result of any employment injury.8 

The schedule award provisions of FECA,9and its implementing federal regulations,

10 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.11 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.12

The sixth edition requires identifying the impairment class for the class of diagnosis 

(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS).13 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).14 

Regarding the application of the ROM or DBI methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides:

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guidesidentify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

 

8

J.B., Docket No. 17-1907 (issued March 8, 2018).

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.

11 Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

13 A.M.A., Guides, supra note 4 at 383-492.

14 Id. at 411.
7

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)15

The Bulletin further advises: 

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,] 

Guides, that ROM is not permitted as an alternative rating method for the diagnosis 

in question.

“If the rating physician provided an assessment using the DBI method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.

“If the medical evidence of record is [in]sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available evidence.

“Upon receipt of such a report, and if the impairment evaluation was provided from 

the claimant’s physician, the CE should write to the claimant advising of the 

medical evidence necessary to complete the impairment assessment and provide 30 

days for submission. Any evidence received in response should then be routed back 

to the DMA for a final determination. Should no evidence be received within 30 

days of the date of the CE’s letter, the CE should proceed with a referral for a second 

opinion medical evaluation to obtain the medical evidence necessary to complete 

the rating. After receipt of the second opinion physician’s evaluation, the CE 

should route that report to the DMA for a final determination.”

ANALYSIS

The Board finds this case not in posture for decision.

 

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

By decision dated January 17, 2017, the Board remanded the case for OWCP to reevaluate 

the extent of appellant’s right upper extremity permanent impairment after it determined a 

consistent method for rating upper extremity impairments under the A.M.A., Guides.

16

 

Following the Board’s remand, OWCP advised appellant on May 17, 2017 that he should 

submit a new report from his treating physician in accordance with the sixth edition of the A.M.A., 

Guides, using both the DBI and ROM methods. The most recent medical report of record is that 

of Dr. Hanel dated August 28, 2017. However, he did not provide an impairment rating. 

As noted, FECA Bulletin No. 17-06 provides that if OWCP does not receive medical 

evidence as requested within 30 days, then the CE should proceed with a referral for a second

opinion evaluation to assess a claimant’s impairment.17 Thus, in this case OWCP should have 

referred appellant for a second opinion evaluation in June 2017, but it did not do so. Instead it 

asked its medical adviser Dr. Katz to provide an impairment rating utilizing both the DBI and 

ROM methods, if the A.M.A., Guides allowed the use of both. Following its receipt of the medical 

adviser’s report, OWCP issued its October 26, 2017 decision.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden of proof to establish the claim, OWCP also has a 

responsibility in the development of the evidence.18 Once OWCP undertakes development of the 

record, it has the responsibility to do so in a proper manner.19 

The Board finds that, as OWCP did not follow the procedures outlined in FECA Bulletin

No. 17-06, the case must be remanded for it to refer appellant for a second opinion evaluation and 

impairment rating, pursuant to the guidelines presented in FECA Bulletin No. 17-06. 

The Board also notes that the A.M.A., Guides indicate in Figure 15-31 that a claimant can 

receive an impairment rating under both the DBI method and for a peripheral nerve impairment.20 

However, it has not been determined whether appellant’s peripheral nerve injury was preexisting, 

therefore it is unclear whether the condition should be included in the impairment evaluation. 

Dr. Slutsky, an OWCP medical adviser, noted in a January 14, 2014 report that appellant was not 

entitled to an additional impairment rating for the right ulnar nerve peripheral neuropathy because 

it was first diagnosed on June 1, 2011, after the February 9, 2011 employment injury, and had not

been accepted as employment related. On remand OWCP should also determine whether appellant 

is entitled to an additional impairment rating for the right ulnar nerve neuropathy.

The case will therefore be remanded to OWCP to refer appellant for a second opinion 

evaluation regarding appellant’s right upper extremity impairment. After this and such additional 

 

16 Supra note 3.

17 Supra note 16.

18 R.B., Docket No. 08-1662 (issued December 18, 2008).

19 P.K., Docket No. 08-2551 (issued June 2, 2009).

20 A.M.A., Guides, supra note 4 at 480.
9

development deemed necessary, OWCP shall issue a de novo decision regarding appellant’s claim 

for an increased right upper extremity schedule award.21

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for proceedings 

consistent with this opinion of the Board.

Issued: November 9, 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

 

21 See J.F., Docket No. 17-1726 (issued March 12, 2018).