United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.W., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Richmond, VA, 

Employer

__________________________________________

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Docket No. 19-1281

Issued: December 4, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 21, 2019 appellant, through counsel, filed a timely appeal from a March 25, 2019 

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 her burden of proof to establish greater than one 

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

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 September 26, 2000 appellant, then a 42-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that she sustained tendinitis causally related to factors of her 

federal employment. OWCP accepted the claim for bilateral tendinitis of the elbows. Appellant 

worked in a modified position as of September 28, 2000.

By decision dated September 15, 2014, OWCP denied appellant’s request to expand 

acceptance of her claim to include carpal tunnel syndrome.4 It found that the medical evidence of 

record was insufficient to establish carpal tunnel syndrome as a consequential injury.

On March 1, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated March 2, 2016, OWCP requested that appellant submit an 

impairment evaluation from her attending physician addressing the extent of any permanent 

impairment due to her employment injury in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It 

advised that it had accepted appellant’s claim for bilateral other synovitis and tenosynovitis.

By decision dated April 13, 2016, OWCP denied appellant’s schedule award claim. It 

found that she had not responded to its March 2, 2016 development letter.

On April 22, 2016 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A telephonic hearing was held on December 7, 2016. Counsel maintained that he was 

submitting additional evidence in support of appellant’s schedule award claim.

In a December 6, 2016 impairment evaluation, Dr. Robert W. Macht, a surgeon, reviewed 

appellant’s complaints of bilateral pain and weakness of the hands and wrists and triggering of the 

thumbs. He diagnosed bilateral synovitis and tenosynovitis, bilateral thumb triggering, and 

 

3 Docket No. 18-0224 (issued May 9, 2018).

4 Appellant subsequently requested reconsideration. By decision dated May 24, 2016, OWCP denied modification 

of its September 15, 2014 decision. 

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

bilateral carpal tunnel syndrome. Citing the A.M.A., Guides, Dr. Macht found two percent 

impairment of each upper extremity due to triggering of the thumbs according to Table 15-2 on 

page 392. He further found one percent impairment of each upper extremity as a result of bilateral 

wrist tendinitis using Table 15-3 on page 395. Dr. Macht additionally determined that appellant 

had six percent impairment of each upper extremity due to mild carpal tunnel syndrome using 

Table 15-23 on page 449. He combined the impairment ratings to find nine percent permanent 

impairment of each upper extremity.

By decision dated January 25, 2017, OWCP’s hearing representative affirmed the April 13, 

2016 decision. She found that Dr. Macht had provided a rating for the conditions of trigger finger 

and carpal tunnel syndrome, which OWCP had not accepted as employment related.

On February 24, 2017 Dr. Macht attributed the diagnosed conditions of bilateral carpal 

tunnel syndrome and triggering of the thumbs to factors of appellant’s federal employment. He 

indicated that the conditions were “part of the normal progression of tenosynovitis.” Dr. Macht 

found one percent permanent impairment of each upper extremity for wrist tenosynovitis using 

Table 15-3 on page 395 and one percent impairment of each upper extremity due to elbow 

tenosynovitis using Table 15-4 on page 398. He combined the impairment ratings to find two 

percent permanent impairment of each upper extremity.

On April 6, 2017 appellant, through counsel, requested reconsideration. 

In a report dated July 7, 2017, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon

serving as a district medical adviser (DMA), found that the evidence was currently insufficient to 

determine the extent of any permanent impairment of the upper extremities as Dr. Macht had failed 

to provide range of motion (ROM) measurements of the elbows. He opined that appellant had one 

percent permanent impairment of each upper extremity due to elbow tendinitis using Table 15-4 

of the A.M.A., Guides.

On July 27, 2017 OWCP requested that appellant submit a supplemental report from

Dr. Macht providing three independent ROM measurements of the elbows so that it could evaluate 

the extent of any permanent impairment due to her bilateral elbow tendinitis. It afforded her 30 

days to submit the requested evidence. No additional evidence was received.

By decision dated August 28, 2017, OWCP denied modification of its January 25, 2017 

decision. It found that appellant had not submitted a report from her physician containing ROM 

measurements for the bilateral elbows. OWCP thus determined that she had not submitted 

evidence sufficient to establish a permanent impairment of the upper extremities.

Appellant appealed to the Board. By decision dated May 9, 2018, the Board set aside the 

August 28, 2017 decision after finding that the case was not in posture for decision.

6

 The Board

remanded the case for OWCP to refer appellant for a second opinion examination to obtain ROM 

measurements in accordance with FECA Bulletin No. 17-06.7 The Board further noted that OWCP 

 

6 Supra note 3.

7 FECA Bulletin No. 17-06 (May 8, 2017).
4

had initially accepted the claim for bilateral elbow tendinitis, but had advised in its March 2, 2016 

development letter that it had accepted other bilateral synovitis and tenosynovitis. The Board

instructed OWCP, on remand, to clarify the accepted conditions. 

On June 18, 2018 OWCP referred appellant to Dr. D. Burke Haskins, a Board-certified 

orthopedic surgeon, for a second opinion examination. It advised him that the accepted condition 

was bilateral elbow tendinitis. 

In a July 10, 2018 impairment evaluation, Dr. Haskins discussed appellant’s symptoms of 

pain in the mediolateral aspect of the elbow, burning throughout her arm, stiffness, and bilateral 

hand numbness affecting the digits. He obtained multiple ROM measurements of the elbows 

showing zero degrees extension, 150 degrees flexion, and full pronation and supination. On 

examination of the bilateral elbows, Dr. Haskins found no specific tenderness over the medial or 

lateral epicondyle and a negative Tinel’s sign. He diagnosed nonspecific elbow pain. Dr. Haskins 

identified the class of diagnosis (CDX) as class 1 elbow pain using Table 15-4 on page 398 of the 

A.M.A., Guides, which yielded a default impairment rating of one percent. He found a 

QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 112.5, for a grade modifier 

for functional history (GMFH) of four. Dr. Haskin noted that appellant also had complaints of 

bilateral carpal tunnel syndrome and trigger finger. He concluded that a GMFH of four was 

unreliable as it varied by two or more grades from the score for physical examination and clinical 

studies. Dr. Haskin found a grade modifier for physical examination (GMPE) of one and that a 

grade modifier for clinical studies (GMCS) was used to identify the diagnosis and thus not 

applicable. He applied the net adjustment formula and found no change from the default value of 

one percent. Dr. Haskin further advised that appellant had no impairment due to loss of ROM. He

opined that she had reached maximum medical improvement (MMI) on July 10, 2018.

On July 17, 2018 Dr. Harris concurred with Dr. Haskins’ finding of one percent permanent 

impairment of each upper extremity using the diagnosis-based impairment (DBI) method and no 

impairment of either upper extremity using the ROM method. 

By decision dated July 31, 2018, OWCP granted appellant a schedule award for one 

percent permanent impairment of each upper extremity. The period of the award ran for 6.24 

weeks from July 10 to August 22, 2018.

On August 8, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on January 10, 2019. Appellant described the pain in her 

elbows and the stiffness and tingling of her hands and fingers. She asserted that Dr. Macht’s 

impairment rating better reflected the damage to her upper extremities.

By decision dated March 25, 2019, OWCP’s hearing representative affirmed the July 31, 

2018 decision.8

 

8 OWCP’s hearing representative additionally found that OWCP should update its diagnosis code to reflect that the 

accepted condition was bilateral elbow tendinitis. 
5

LEGAL PRECEDENT

The schedule award provision of FECA,9and its implementing federal regulation,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. 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, published in 2009.11 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.12

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF).13 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).14 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15 Evaluators are directed to provide reasons 

for their impairment choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.16

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

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

“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 

 

9 Supra note 2.

10 20 C.F.R. § 10.404.

11 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 Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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

13 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

14 Id. at 494-531.

15 Id. at 411.

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

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.” (Emphasis in the original.)17

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.”

18

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than one 

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

In the prior appeal, the Board found that the evidence from Dr. Macht was insufficient to 

establish the extent of appellant’s permanent impairment of the upper extremities. Findings made 

in prior Board decisions are res judicata absent further review by OWCP under section 8128 of 

FECA and therefore the prior evidence need not be addressed again in this decision.19

OWCP referred appellant to Dr. Haskins for an impairment evaluation. On July 10, 2018

Dr. Haskins measured ROM of the bilateral elbows as 150 degrees flexion, 0 degrees extension, 

and full pronation and extension, which yielded no ratable impairment for ROM.20 Using the DBI 

method, he identified the CDX as elbow pain using Table 15-4 on page 398, which yielded a 

default value of one percent. Dr. Haskins found a GMPE of one and that a GMCS was inapplicable 

as it was used to identify the CDX. He further found that appellant’s GMFH score of four was 

unreliable. Using the net adjustment formula yielded no change from the default value of one 

percent.21 Dr. Haskins found that appellant had one permanent impairment of each upper 

 

17 FECA Bulletin No. 17-06 (May 8, 2017); see also W.H., Docket No. 19-0102 (issued June 21, 2019).

18 Id.

19 See 20 C.F.R. § 501.6(d); S.C., Docket No. 19-0920 (issued September 25, 2019).

20 A.M.A., Guides 474, Table 15-33.

21 Utilizing the net adjustment formula discussed above, (GMPE-CDX), or (1-1) = 0, yielded a zero adjustment.
7

extremity using the DBI method and no impairment using the ROM method. He determined that 

she had obtained MMI.

On July 17, 2018 Dr. Harris, the DMA, reviewed Dr. Haskins’ report and concurred with 

his impairment rating. He properly found that it was appropriate to rate appellant’s impairment 

using the DBI method as she had no loss of ROM.22

The record contains no current medical evidence conforming to the sixth edition of the 

A.M.A., Guides demonstrating greater than one percent permanent impairment of each upper 

extremity due to the accepted employment injury. Consequently, the Board finds that appellant 

has not met her burden of proof to establish entitlement to a greater schedule award.23

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish greater than one 

percent permanent impairment of each upper extremity, for which she previously received 

schedule award compensation.

 

22 See W.H., Docket No. 19-0102 (issued June 21, 2019).

23 L.L., Docket No. 19-0855 (issued September 24, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 4, 2019

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