United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.S., Appellant

and

U.S. POSTAL SERVICE, MORGAN NEW 

YORK PROCESSING & DISTRIBUTION 

CENTER, New York, NY, Employer

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Docket No. 19-0178

Issued: July 23, 2019

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 5, 2018 appellant filed a timely appeal from an August 23, 2018 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 this case.

ISSUE

The issue is whether appellant has met her burden of proof to establish greater than eight

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

schedule awards.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 18, 2015 appellant, then a 63-year-old mail hander, filed a traumatic injury 

claim (Form CA-1) alleging, that on February 17, 2015, she fractured her left wrist when operating 

a power jack while in the performance of duty.2 She was holding onto the safety bar of the machine 

with her left hand when her wrist struck a pillar. X-rays performed on February 17, 2015 

demonstrated distal radial comminuted fracture which extended into the radiocarpal joint space as 

well as avulsion fracture of the ulnar styloid process. 

On April 2, 2015 OWCP accepted appellant’s claim for a closed fracture of the lower end 

of the left radius and ulna. It authorized wage-loss compensation beginning April 6, 2015. On 

July 21, 2015 OWCP entered appellant on the periodic rolls for wage-loss compensation.

On December 21, 2015 Dr. Steven J. Lee, a Board-certified internist, found that appellant

had reached maximum medical improvement (MMI) and released her to return to light-duty work 

lifting no more than five pounds.

On February 9, 2016 OWCP referred appellant, a statement of accepted facts (SOAF), and 

a list of questions for a second opinion evaluation with Dr. Thomas Nipper, a Board-certified 

orthopedic surgeon. In his February 17, 2016 report, Dr. Nipper reviewed the SOAF and 

performed a physical examination. He found tenderness over the distal ulna, limited range of 

motion (ROM) of the left wrist, and a 30 degree fixed flexion contracture of the proximal 

interphalangeal (PIP) joints of the left ring and small fingers. Dr. Nipper agreed that appellant had 

reached MMI. He found that she could work with restrictions of no lifting over 10 pounds with 

her left hand.

In a note dated March 23, 2016, Dr. Eial Faierman, appellant’s attending physician and a

Board-certified orthopedic surgeon, noted her history of left wrist fracture on February 17, 2015 

and found that she had developed arthritis with joint space narrowing in the radial scapholunate 

joint. He found loss of ROM including 20 degrees of left wrist extension, 20 degrees of 

dorsiflexion, and 50 degrees of supination. Dr. Faierman also reported moderate-to-severe 

tenderness over the distal radius of the radial aspect of appellant’s left wrist, mild snuffbox 

tenderness, and moderate swelling. He diagnosed left post-traumatic osteoarthritis with healed 

intra-articular displaced distal radius fracture. On June 29, 2016 Dr. Faierman provided additional 

findings of contractures on the left small finger of 50 to 100 degrees of the PIP joint and 0 to 40 

degrees of the distal interphalangeal (DIP) joint. He also reported contractures of the left ring 

finger of 30 to 100 degrees of the PIP joint and 0 to 30 degrees of the DIP joint. Dr. Faierman 

diagnosed left wrist fracture with post-traumatic osteoarthritis and provided additional diagnoses

including tear of the triangular fibrocartilage, partial thickness tear of the membranous portion of 

the scapholunate ligament, and fluid within the synovial sheath of the flexor tendons within the 

carpal tunnel. He noted that appellant had developed left shoulder contracture and received trigger 

finger injections. 

On July 7, 2017 appellant filed a claim for a schedule award (Form CA-7). 

 

2 Appellant is left-hand dominant. 
3

In a July 10, 2017 development letter, OWCP requested that appellant provide a narrative 

medical report addressing whether she had attained MMI and a finding as to permanent impairment 

of the left upper extremity in keeping with the sixth edition of the American Medical Association,

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

3

In a report dated July 19, 2017, Dr. Faierman described appellant’s accepted employment 

incident and medical treatment. He indicated that her left wrist ROM demonstrated 20 degrees of 

extension, 30 degrees of flexion, 80 degrees of supination, and pronation, as well as 10 degrees of 

ulnar deviation and 20 degrees of radial deviation. Dr. Faierman noted contractures of the left 

small finger of 50 to 100 degrees of the PIP joint and 0 to 40 degrees of the DIP joint. He also 

listed left ring finger contractions of 30 to 100 degrees of the PIP joint and 0 to 30 degrees of the 

DIP joint. Dr. Faierman found tenderness over the radial aspect of appellant’s left wrist. He

diagnosed intra-articular left distal radius fracture with post-traumatic osteoarthritis of the radialscapholunate joint. Dr. Faierman determined that appellant had reached MMI on 

November 19, 2015. He provided an impairment rating consistent with New York state standards.

On October 10, 2017 Dr. Herbert White, Jr., Board-certified in occupational medicine and 

district medical adviser (DMA) for OWCP reviewed Dr. Faierman’s reports and found that they 

were insufficient for an impairment rating under the sixth edition of the A.M.A., Guides as he had 

not provided three ROM measurements or a recording of all of appellant’s finger ROM

measurements. The DMA recommended a second opinion evaluation.

On January 29, 2018 OWCP scheduled a second opinion evaluation with Dr. Jonathan 

Gross, a Board-certified orthopedic surgeon. In his February 23, 2018 report, Dr. Gross described 

appellant’s accepted employment injury. He reviewed her medical treatment record and applied 

the fifth edition of the A.M.A., Guides4to his findings on physical examination. Dr. Gross 

determined that appellant had 80 degrees of pronation, 70 degrees of supination, 45 degrees of 

dorsiflexion, 50 degrees of volar flexion, 15 degrees of ulnar deviation, and 20 degrees of radial 

deviation. He also reported 30 percent flexion contractures in the PIP joints of the ring and small 

finger which resulted in 84 percent impairment of each of those digits. Dr. Gross diagnosed 

unresolved left wrist and hand sprain/strain. He also found that appellant had reached MMI.

In a March 31, 2018 report, the DMA applied the sixth edition of the A.M.A., Guides to

Dr. Gross’ physical examination findings. He found that appellant had reached MMI on 

July 19, 2017. The DMA determined that, based on Table 15-3, page 396, of the A.M.A., Guides, 

her diagnosis was a fracture, class 1, with residual symptoms, consistent objective findings and/or 

functional loss, with normal motion. He applied a grade modifier functional history (GMFH) of 

two based on pain with normal activities.5 Dr. White assigned a grade modifier for physical 

examination (GMPE) of one due to mild ROM deficits. He further assigned a grade modifier for 

clinical studies (GMCS) of two due to a torn triangular fibrocartilage ligament. The DMA applied 

 

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

4 A.M.A., Guides, (5th ed. 2000).

5 A.M.A., Guides, 406, Table 15-3.
4

the net adjustment formula to reach five percent permanent impairment of the left upper extremity 

based on the diagnosis-based impairment (DBI) of calculating permanent functional impairment.

The DMA found that he was unable to provide a final ROM impairment, as he could not 

verify that three measurements were taken in accordance with page 464 of the A.M.A., Guides. 

He noted that based on the information provided by Dr. Gross, 45 degrees of flexion was three

percent impairment of the left wrist, 50 degrees of extension was three percent impairment of the 

left wrist, and ulnar deviation of 15 degrees was two percent impairment of the left wrist in 

accordance with Table 15-32, page 473, of the A.M.A., Guides. The DMA found that grade 

modifier for ROM was one, that the GMFH was two, and that applying the net adjustment formula 

resulted in eight percent left upper extremity impairment due to loss of ROM. He requested that

Dr. Gross provide additional information regarding his ROM measurements to ensure that these 

figures followed the A.M.A., Guides protocols. 

With regard to appellant’s left fourth and fifth finger impairments, the DMA found that he 

was unable to provide final ROM impairments based on Dr. Gross’ findings. He could not verify 

that three measurements were taken and noted that all finger motions should have been provided 

by Dr. Gross. The DMA concurred with Dr. Gross’ finding of 84 percent impairment of the left 

fourth digit and 84 percent impairment of the left fifth digit.

On April 18, 2018 OWCP requested a supplemental report from Dr. Gross. On July 3, 

2018 Dr. Gross did not provide additional findings, but indicated that he agreed with the DMA’s

impairment rating of eight percent of the left wrist.

By decision dated August 23, 2018, OWCP granted appellant a schedule award for eight 

percent permanent impairment of her left upper extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA,6and its implementing federal regulations,7set 

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.8 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.9

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6 (March 2017).
5

In addressing upper extremity impairments, the sixth edition requires identification of the 

impairment class of diagnosis (CDX) condition, which is then adjusted by GMFH, GMPE, and 

GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 

OWCP procedures provide that, after obtaining all necessary medical evidence, that file should be 

routed to a DMA for an opinion concerning the nature and percentage of permanent impairment 

in accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

the permanent impairment specified.12

The A.M.A., Guides also provide that the ROM impairment method of calculating 

permanent functional impairment is to be used as a stand-alone rating for upper extremity 

impairments when other grids direct its use or when no other diagnosis-based sections are 

applicable. If ROM is used as a stand-alone approach, the total of motion impairment for all units 

of function must be calculated. All values for the joint are measured and combined.13 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.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.,]

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.”

15 (Emphasis in the original.) 

 

10 L.T., Docket No. 18-1031 (issued March 5, 2019); A.M.A., Guides, 383-492.

11 A.M.A., Guides 411.

12 R.B., Docket No. 18-1308 (issued January 10, 2019); P.R., Docket No. 18-0022 (issued April 9, 2018); supra

note 9 at Chapter 2.808.6f (March 2017).

13 A.M.A., Guides 473.

14 Id. at 473-74.

15 FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket 

No. 18-0329 (issued July 26, 2018). 
6

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 medical evidence of record is not 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.”

16

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.17

ANALYSIS

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

OWCP accepted that appellant sustained closed fracture of the lower end of radius and ulna 

on the left. It granted her a schedule award for eight percent permanent impairment of her left 

upper extremity. 

The Board finds that OWCP did not follow the procedures outlined in FECA Bulletin No. 

17-06. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining 

sufficient evidence to conduct a complete impairment evaluation.18 It indicates that, if the rating 

physician provides an assessment using the ROM method, the DMA should independently 

calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA 

Bulletin No. 17-06 further provides that the evaluator should obtain three independent 

measurements for ROM of each affected body part and that the greatest measurement should be 

used to determine the extent of impairment.19 FECA Bulletin No. 17-06 indicates that OWCP 

should instruct the physician to obtain three independent measurements.20

OWCP referred appellant for a second opinion evaluation with Dr. Gross and requested an 

impairment evaluation in keeping with the A.M.A., Guides. In his February 23, 2018 report,

Dr. Gross applied an incorrect edition of the A.M.A., Guides; he used the fifth edition rather than 

 

16 Id.

17 L.T., supra note 10; B.R., Docket No. 17-0294 (issued May 11, 2018).

18 Id.

19 Id.

20 Id.
7

the sixth. Furthermore, he did not respond to OWCP’s April 18, 2018 request for a supplemental

report addressing appellant’s ROM of the left wrist, left ring finger, and left small fingers.

Dr. Gross also did not provide three independent measurements of the ROM of each impacted 

member. As OWCP did not obtain a supplemental report from the second opinion physician 

containing three independent measurements of each ROM in accordance with the procedures set 

forth in the A.M.A., Guides and FECA Bulletin No. 17-06, the Board will remand the case for 

OWCP to obtain the evidence necessary to complete the rating as described above.21 Following 

this and such further development as deemed necessary, OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 23, 2018 decision of the Office of 

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

consistent with this decision of the Board.

Issued: July 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

21 R.B., supra note 12; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued 

September 11, 2018).