United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Manchester, CT, Employer

__________________________________________

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Docket No. 19-0217

Issued: July 25, 2019

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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 7, 2018 appellant, through counsel, filed a timely appeal from an August 17, 

2018 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 seven 

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

schedule awards.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On November 3, 2011 appellant, then a 46-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on October 28, 2011 he injured his right hand while in the 

performance of duty. OWCP accepted the claim for a right wrist sprain and a loose body in the 

right wrist. 

OWCP previously had accepted that in 2003 appellant sustained a left shoulder strain. It 

assigned OWCP File No. xxxxxx425 to his left shoulder claim. OWCP granted appellant a 

schedule award for 10 percent permanent impairment of the left upper extremity under OWCP File 

No. xxxxxx425.

On November 8, 2012 appellant underwent an authorized excision of a nonunion hook of 

the hamate, reconstruction of a right flexor digitorum profundus tendon rupture, a palmaris longus 

ipsilateral graft of the right fifth digit, and a repair of a partial rupture of right flexor digitorum 

profundus tendon fourth digit. On January 2, 2014 he underwent an authorized right ulnar 

shortening osteotomy and right palm fasciotomy. Appellant resumed his usual employment on 

July 2, 2014. 

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

In a May 20, 2015 impairment evaluation, Dr. Stephen F. Scarangella, a Board-certified 

orthopedic surgeon, determined that appellant had 20 percent permanent impairment of the right 

hand due to loss of grip strength and reduced range of motion (ROM) of the small finger. 

On January 5, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as 

a district medical adviser (DMA), opined that appellant had three percent permanent impairment 

of the right upper extremity due to loss of ROM of the digits in accordance with the sixth edition 

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

(A.M.A., Guides).

4

 

On February 25, 2016 OWCP referred appellant to Dr. John R. Corsetti, a Board-certified 

orthopedic surgeon, for a second opinion examination.

 

3 Docket No. 16-1904 (issued September 14, 2017).

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

In an April 4, 2016 report, Dr. Corsetti opined that appellant had three percent permanent 

impairment of the right upper extremity due to an impairment of the right fifth digit and the right 

wrist using the diagnosis-based impairment (DBI) method as set forth in the A.M.A., Guides. 

Dr. Harris reviewed the medical record on August 18, 2016 and found that appellant had 

five percent permanent impairment of the right upper extremity following an excision of a 

nonunion of the hook of the hamate pursuant to Table 15-3 on page 396 of the A.M.A., Guides. 

He further determined that appellant had five percent impairment of the right fifth digit due to loss 

of ROM, which constituted no impairment of the upper extremity. 

By decision dated August 30, 2016, OWCP granted appellant a schedule award for five 

percent permanent impairment of the right upper extremity. 

Appellant appealed to the Board. By decision dated September 14, 2017, the Board set 

aside the August 30, 2016 decision.5 The Board noted that OWCP had inconsistently applied 

Chapter 15 of the sixth edition of the A.M.A, Guides regarding the proper use of either the ROM 

or DBI method in assessing the extent of upper extremity permanent impairment. The Board 

remanded the case for OWCP to issue a de novo decision after development of a consistent method 

for calculating permanent impairment of the upper extremities.

Following remand, on November 22, 2017, OWCP referred appellant, together with a 

statement of accepted facts (SOAF) and the medical record to Dr. Robert I. Moskowitz, a Boardcertified orthopedic surgeon, for a second opinion examination. 

In a December 26, 2017 impairment evaluation, Dr. Moskowitz found full ROM and good 

muscle strength of the wrist. He measured full flexion in all digits, a loss of 20 degrees extension 

of the proximal interphalangeal (PIP) joint and distal interphalangeal (DIP) joint of appellant’s 

right fifth finger, and a loss of a degree or two of extension of the PIP joint of the right fourth 

finger. Dr. Moskowitz indicated that OWCP had only accepted a right wrist sprain and a loose 

body in the right wrist. He advised that appellant was a “rigorous upper body exerciser” who 

regularly lifted weights, golfed, and bowled using his left hand. Dr. Moskowitz found that 

appellant’s loose body in his right wrist probably preexisted his injury as imaging studies had 

failed to demonstrate a new wrist injury. He related:

“Therefore, it follows that it is my opinion that [appellant’s] alleged unwitnessed 

job[-]related injury was only a sprain with a preexisting loose body (which was 

what was approved by SOAF) and does not have any significant relationship to the 

subsequent development of a hook of the hamate fracture, ruptures of his FDP 

[flexor digitorum profundus] tendons, the development of a palmar fasciitis 

subsequent to the operative repair of a FDP tendon, a dorsal ganglion or extensor 

tendinitis, or an ulnar abutment syndrome.”

Dr. Moskowitz rated appellant’s wrist impairment using the DBI method, noting that he 

had normal ROM of the wrist. He attributed the additional conditions of the wrist and hand to 

preexisting ulnar abutment syndrome and nonemployment-related stressors. Dr. Moskowitz

 

5

Id.
4

identified the diagnosis as a wrist sprain using Table 15-3 on page 395, which yielded a default 

value of one. He applied a grade modifier for function history of zero and a grade modifier for 

findings on physical examination of two, no grade modifier for clinical studies, to find no 

adjustment from the default value of one percent. Dr. Moskowitz related, “As far as [appellant’s]

other diagnoses, especially FDP ruptures, since it is my opinion that they were not caused by his 

alleged unwitnessed work[-]related injury they would not be entitled to a rating.”

On March 16, 2018 Dr. Harris reviewed the evidence and noted that Dr. Moskowtiz had 

not provided an impairment rating for the digits as he did not feel the digit conditions were 

employment related. He advised, however, that OWCP had “accepted the injury to the digits as 

being work related and, in addition, the claimant is entitled to impairment for his digits even if it 

is not considered to be a work-related condition.” Dr. Harris identified the diagnosis as residuals 

problems after surgery including an FDP repair using Table 15-2 on page 392, which yielded six 

percent impairment of the right ring finger using the DBI method. He further found three percent 

impairment of the right ring finger for reduced ROM in extension of the PIP joint. Using the DBI 

method, as it provided a higher impairment rating, Dr. Harris found six percent impairment of the 

right ring finger, or one percent impairment of the right upper extremity. For the right fifth digit, 

he found six percent impairment for continued problems after an FDP repair, or one percent 

impairment of the upper extremity. Using the ROM method, Dr. Harris found two percent 

impairment due to reduced motion at the DIP joint and three percent impairment for reduced 

motion of the PIP joint, for five percent impairment of the fifth digit, a one percent impairment of 

the hand, and no impairment of the upper extremity. 

For the right wrist, Dr. Harris found that appellant had no permanent impairment using the 

ROM method. Using the DBI method, he found five percent impairment of the wrist using CDX 

for problems after surgeries including an excision of a nonunion of the hook of the hamate and no 

impairment using the ROM method. Dr. Harris combined the five percent impairment of the wrist, 

one percent impairment of the ring finger, and one percent impairment of the fifth digit to find a 

combined seven percent permanent impairment of the right upper extremity. 

By decision dated April 2, 2018, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of the right upper extremity, for a combined right 

upper extremity impairment of seven percent. The period of the award ran for 6.24 weeks for the 

period December 26, 2017 to February 7, 2018.

On May 11, 2018 appellant requested reconsideration. He asserted that Dr. Moskowitz had 

questioned causation. Appellant challenged his assertion that he was a body builder and described 

his limitations from his employment injury and his work duties. He maintained that

Dr. Scarangella was the physician most familiar with his injury.

By decision dated August 17, 2018, OWCP denied modification of its April 2, 2018 

decision. 

On appeal counsel asserts that Dr. Moskowitz questioned the occurrence of the 

employment injury and found that the loose body in his right wrist should not have been accepted 

as resulting from the October 28, 2011 employment injury. He notes that he failed to provide an 

impairment rating for the digits, even though the DMA found that the digit impairment was 
5

employment related. Counsel contends that Dr. Moskowitz focused on causal relationship rather 

than the extent of impairment. He questions why OWCP failed to refer appellant for an impartial 

medical examination, asserting that a conflict had arisen between Dr. Scarangella and Dr. Harris.

LEGAL PRECEDENT

The schedule award provision of FECA,6and its implementing federal regulations,

7

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

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. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

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

8

 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.9

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

(ICF).10 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX), 

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

examination (GMPE), and clinical studies (GMCS).11 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).12 Evaluators are directed to provide reasons for their 

impairment choices, including the choices of diagnoses from regional grids and calculations of 

modifier scores.13

The A.M.A., Guides also provide that the ROM impairment method is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

 

6 Supra note 2.

7 20 C.F.R. § 10.404.

8 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

11 Id. at 494-531.

12 Id. at 411.

13 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 
6

diagnosis-based sections are applicable.14 If ROM is used as a stand-alone impairment rating 

method, the total of ROM impairment for all units of function must be calculated. All values for 

the joint are measured and combined.

15

 Adjustments for functional history may be made if the 

evaluator determines that the resulting impairment does not adequately reflect functional loss and 

functional reports are determined to be reliable.16

Regarding the application of 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.,] 

Guides identify 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 

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

rating should be used.”

17 (Emphasis in the original).

ANALYSIS

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

On prior appeal, the Board remanded the case for OWCP to reevaluate the extent of 

appellant’s permanent impairment of his right upper extremity after it had determined a consistent 

method for rating upper extremity impairments under the sixth edition of the A.M.A., Guides. On 

remand, OWCP indicated that, FECA Bulletin No. 17-06 provides that, if the A.M.A., Guides

allowed both the DBI and ROM methods for calculating an identified diagnosis, the method that 

yielded the higher impairment rating should be used.18 It referred appellant to Dr. Moskowitz for 

a second opinion examination.

In a December 26, 2017 impairment evaluation, Dr. Moskowitz advised that appellant had 

full ROM of the wrist, full flexion of the digits of the right hand, and a loss of 20 degrees extension 

of the PIP and DIP joints of his right fifth finger. The Board finds that Dr. Moskowitz did not 

 

14 A.M.A., Guides 461.

15 Id. at 473.

16 Id. at 474.

17 V.L., Docket No. 18-0760 (issued November 13, 2018); FECA Bulletin No. 17-06 (May 8, 2018). 

18 Id.; see also D.F., Docket No. 17-1474 (issued January 23, 2018).
7

provide a second opinion report in compliance with the accepted conditions of the SOAF presented 

to him by OWCP. OWCP’s procedures provide, “[w]hen the DMA [district medical adviser], 

second opinion specialist or referee physician renders a medical opinion based on a SOAF which 

is incomplete or inaccurate or does not use the SOAF as the framework in forming his or her 

opinion, the probative value of the opinion is seriously diminished or negated altogether.”

19

 

Therefore, Dr. Moskowitz’ report is insufficient to establish the extent of appellant’s permanent 

impairment.

The Board further finds that Dr. Moskowitz did not provide his ROM measurements for 

the wrist or complete ROM measurements for the digits. Dr. Moskowitz further failed to indicate 

that appellant had obtained three independent ROM measurements, as required by the A.M.A., 

Guides.

20

 He found one percent permanent impairment of the right upper extremity due to wrist 

sprain using the DBI method pursuant to Table 15-3. Dr. Moskowitz found that appellant had no 

permanent impairment of the digits as OWCP had not accepted a digit condition as employment 

related. 

The Board finds that the report of Dr. Moskowitz lacks probative value as he failed to 

render an opinion in compliance with the accepted conditions of the SOAF. Further, as OWCP 

did not follow the procedures outlined in FECA Bulletin No. 17-06, the case must be remanded.21 

On remand, it should send appellant to a new second opinion physician and further develop the 

claim to obtain three independent ROM measurements as required under FECA Bulletin 

No. 17-06. Following this and other such development as deemed necessary, it shall issue a de 

novo decision.22

CONCLUSION

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

 

19 See J.B., Docket No. 17-2021 (issued August 8, 2018); supra note 8 at Part 3 -- Medical, Requirements for 

Medical Reports, Chapter 3.600(3) (October 1990).

20 A.M.A., Guides 464.

21 R.A., Docket No. 18-1331 (issued April 24, 2019); F.V., Docket No. 18-0427 (issued November 9, 2018).

22 J.F., Docket No. 17-1726 (issued March 12, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: July 25, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board