United States Department of Labor

Employees’ Compensation Appeals Board

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C.C., Appellant

and

DEPARTMENT OF HOMELAND SECURITY,

U.S. SECRET SERVICE, Washington, DC, 

Employer

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Docket No. 19-0467

Issued: August 7, 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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 30, 2018 appellant filed a timely appeal from a November 21, 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 his burden of proof to establish more than six 

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

schedule award. 

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 13, 2015 appellant, then a 31-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that on April 12, 2015 he sustained lacerations to his small finger and 

palm and multiple puncture wounds at the top of his hand when his assigned canine bit his right 

hand while in the performance of duty. He did not work from April 13 to May 13, 2015. OWCP 

accepted appellant’s claim for open dog bite of the right hand/fingers, right hand traumatic 

compartment syndrome, right thumb felon, and right hand cellulitis.

In April and May 2015, appellant underwent several surgeries to his right hand, including 

right carpal tunnel release, decompression of the right hand and thumb with debridement of 

necrotic tissue, and fasciotomy and debridement of the right dorsal and volar hand, right thumb, 

and right small finger. He was released to full duty on July 31, 2015.

On June 9, 2016 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated June 14, 2016, OWCP advised appellant of the type of 

evidence needed to establish his schedule award claim, including a statement from his attending 

physician that the accepted condition(s) had reached maximum medical improvement (MMI) and 

an impairment rating utilizing the appropriate portions of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides).2 It afforded 

him 30 days to submit the necessary evidence. No additional evidence was received.

On July 20, 2016 OWCP referred appellant, along with a statement of accepted facts and 

the medical record, to Dr. David Allen Smith, for a second opinion examination. In an August 12, 

2016 report, Dr. Smith reviewed appellant’s history of injury and provided examination findings. 

He indicated that appellant had reached MMI. Dr. Smith referenced Table 15-2, Digital Regional 

Grid, and Table 15-12, Impairment Values Calculated from Digit Impairment, of the A.M.A., 

Guides and determined that appellant had two percent right upper extremity permanent impairment 

due to his right thumb and little finger. He also utilized Table 15-3,

3 Wrist Regional Grid, and 

determined that appellant had six percent permanent impairment for the diagnosis of right 

wrist/hand laceration for a total of eight percent right upper extremity impairment.

In a September 14, 2016 report, Dr. David I. Krohn, a Board-certified internist serving as 

a district medical adviser (DMA), reviewed Dr. Smith’s August 12, 2016 report and disagreed with 

his impairment rating. He determined that appellant had one percent right upper extremity 

permanent impairment for his right thumb and fifth finger. Dr. Krohn noted a date of MMI of 

August 12, 2016, the date of Dr. Smith’s second-opinion report.

OWCP determined that a conflict in medical opinion existed Dr. Smith and Dr. Krohn 

regarding the degree of appellant’s right upper extremity permanent impairment. It referred 

appellant to Dr. Kristin Nesbitt, a Board-certified orthopedic hand surgeon, for an impartial 

medical examination in order to resolve the conflict. In a July 31, 2017 report, Dr. Nesbitt related 

 

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

3 Dr. Smith incorrectly labeled this Grid as Table 16-3.
3

appellant’s current complaints of some residual discomfort in his right hand, difficulty with 

gripping and twisting, and some weakness compared to his left hand. Upon physical examination 

of appellant’s right hand, she observed well-healed surgical incisions and initial dog bite wound 

with some subjective numbness. Dr. Nesbitt reported that appellant had full flexion at 

metacarpophalangeal (MP), proximal interphalangeal (PIP), and distal interphalangeal (DIP) joints 

of his digits and full flexion of the MP and IP joint of the right thumb. Wrist compression, Tinel’s 

sign, and Phalen’s tests were negative at the wrist. Dr. Nesbitt indicated that she was in agreement 

with Dr. Smith’s finding of eight percent permanent impairment. However, she further reported 

that she preferred to use the fourth edition of the A.M.A., Guides4and calculated that appellant 

had an overall permanent impairment of 10 percent right upper extremity impairment based on 

loss of range of motion (ROM) of the small finger and loss of strength.

In a letter dated November 30, 2017, OWCP sought clarification from Dr. Nesbitt 

regarding her impairment rating for appellant and requested that she provide an addendum report 

which provided an opinion regarding permanent impairment in accordance with the sixth edition 

of the A.M.A., Guides.

In a December 12, 2017 letter, Dr. Nesbitt noted that she had received OWCP’s 

November 30, 2017 letter and reported that she was not redoing the impairment rating. She again 

noted that she was in agreement with Dr. Smith’s finding of eight percent right upper extremity 

impairment.

In a letter dated January 18, 2018, OWCP requested that Dr. Smith provide an impairment 

rating that utilized both the diagnosis-based impairment (DBI) and ROM methodologies.

After several unsuccessful attempts to retrieve an addendum report from Dr. Smith, OWCP 

referred appellant to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon, for a secondopinion examination. In an August 15, 2018 report, Dr. Gordon related appellant’s current 

complaints of significant pain in the right hand and difficulty with working in a full-duty capacity. 

He discussed appellant’s history of injury and reviewed his medical records. Upon examination 

of appellant’s right hand, Dr. Gordon observed limited dorsiflexion to 70 degrees. Examination 

of his right wrist demonstrated atrophy of his thenar eminence and half-grade of grip strength 

weakness. Dr. Gordon noted full ROM, but pain on stress testing. He reported a QuickDASH 

score of 14.

Dr. Gordon provided examination findings for all of appellant’s digits of the right hand. 

With respect to appellant’s right thumb, he noted pain to palpation along the thumb flexor and no 

triggering, Finkelstein abnormality, or CMC irritability. Examination of appellant’s right index 

finger demonstrated no irritability to the MP, PIP, or DIP joints. With respect to his right long ray,

Dr. Gordon reported irritability and pain to palpation at the MP joint and sensitivity and pain along 

the volar aspect of the PIP joint. No triggering or irritability was noted. Examination of appellant’s 

right small finger demonstrated sensitivity and discomfort to palpation over the proximal 

phalangeal segment. Dr. Gordon diagnosed severe injury of the right hand, post-traumatic deep 

space abscess; and right thumb felon status post debridement, post-traumatic injury of the right 

 

4 A.M.A., Guides (4th ed. 1993).
4

long finger, MP and PIP joints, residuals; and post-traumatic injury of the right small finger, MP 

and PIP joints, residuals.

Utilizing Table 15-2, Digit Regional Grid, Dr. Gordon determined that appellant had a

class 1 diagnosis (CDX) for his right small finger under the of a healed minor soft tissue injury. 

He assigned grade modifiers of 3 for clinical studies (GMCS) and 1 for physical examination 

(GMPE) and functional history (GMFH), which resulted in six percent permanent digit 

impairment. Regarding appellant’s right long finger, Dr. Gordon assigned a CDX of 1 (healed 

minor soft tissue injury) and grade modifiers of 2 GMCS, 1 GMPE, and 1 GMCS, which resulted 

in five percent permanent digit impairment. With regard to appellant’s right thumb, he assigned a 

CDX of 1 (healed minor soft tissue injury) and grade modifiers of 3 GMCS, 1 GMPE, and 1 

GMFH, which resulted in six percent digit impairment. Dr. Gordon converted each digit 

impairment to an upper extremity impairment of one percent (right small finger), one percent (right 

long finger), and two percent (right thumb) for a combined of four percent right upper extremity

pursuant to the Combined Values Chart of the A.M.A., Guides. For appellant’s right wrist 

condition, he referenced Table 15-3, Wrist Regional Grid, and determined that the closest 

diagnosis would be for wrist laceration. Dr. Gordon assigned a CDX of 1 and grade modifiers of 

2 GMCS, 1 GMPE, and 1 GMFH for a net adjustment to six percent right upper extremity 

permanent impairment. He concluded that appellant had a combined 10 percent permanent 

impairment of his right upper extremity.

In a November 5, 2018 report, Dr. James W. Butler, Board-certified in preventive and 

occupational medicine serving as the DMA, reviewed Dr. Gordon’s August 15, 2018 secondopinion report. He indicated that while the ROM methodology may be used to rate impairment, 

there was no significant ROM deficit noted by Dr. Gordon. The DMA referenced Table 15-3 and 

assigned a CDX of 1 for right wrist laceration (minor soft tissue injury). He assigned grade 

modifiers of 0 GMFH (QuickDASH score of 14), 0 GMCS (no available clinical studies or relevant 

findings), and 2 GMPE (moderate palpatory findings), which resulted in a net adjustment of -1 for 

a total of four percent right upper extremity permanent impairment due to the right wrist condition. 

Dr. Butler also determined impairment rating for the thumb and index finger. He assigned a CDX 

of 1 for each digit (residual symptoms and consistent objective findings) and grade modifiers of 0 

GMFH and 0 GMCS (no available clinical studies or relevant findings) and 2 GMPE (moderate 

palpatory findings) for a net adjustment of -1, resulting in a total of three percent permanent digit 

impairment for the thumb and long finger and converted those findings to two percent of the right 

upper extremity. Dr. Butler concluded that appellant had a combined right upper extremity 

impairment of six percent. He reported that appellant was at MMI as of August 15, 2018, the date 

of Dr. Gordon’s second opinion report.

By decision dated November 21, 2018, OWCP granted appellant a schedule award for six

percent permanent impairment of the right upper extremity, based on the DMA’s November 5, 

2018 report. The period of the award ran for 14.64 weeks from August 15 to November 25, 2018.
5

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing regulations6set 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 of loss of a member 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 and the Board has concurred in such 

adoption.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.8

In addressing impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated.9 With respect to the wrist, reference is made to Table 15-3 (Wrist Regional Grid)

10

and Table 15-2 (Digit Regional Grid).

11 After a class of diagnosis (CDX) is determined (including 

identification of a default grade value), the impairment class is then adjusted by grade modifiers 

based on GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH – CDX) + (GMPE 

– CDX) + (GMCS – CDX).13

The A.M.A., Guides also provide that ROM impairment method is to be used as a standalone rating for upper extremity impairments when other grids direct its use or when no other 

diagnosis-based sections are applicable.14 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.15 Adjustments for functional history may be made if the evaluator 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404 (1999).

7

Id. at 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

9 T.T., Docket No. 18-1622 (issued May 14, 2019).

10 A.M.A., Guides 395-97.

11 Id. at 391-94.

12 Id. at 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13 Id. at 411.

14 Id. at 461.

15 Id. at 473.
6

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

reports are determined to be reliable.16

OWCP procedures provide: “if there was a second opinion examination, and the DMA 

provides a detailed and rationalized opinion in accordance with the A.M.A., Guides, but does not 

concur with the second opinion physician’s impairment rating the [claims examiner] CE should 

seek clarification or a supplemental report from the second opinion examiner. After receiving 

clarification, the CE should refer the case back to the DMA for review.17

ANALYSIS

The Board finds that this case is not in posture for decision as OWCP did not follow proper 

procedures.

The Board initially notes that OWCP found a conflict in medical opinion between

Dr. Smith, OWCP’s second-opinion examiner, and Dr. Krohn, the initial DMA, and referred 

appellant to Dr. Nesbitt for an impartial medical examination in order to resolve the conflict in 

medical opinion evidence remains regarding the degree of appellant’s right upper extremity 

impairment. Section 8123(a) of FECA, however, provides that referral for an impartial or referee 

examination is necessary if there is a disagreement between the physician making the examination 

for the United States and the physician of an employee.18 As both Dr. Smith and Dr. Krohn were 

OWCP referral physicians, there was no conflict pursuant to 5 U.S.C. § 8123(a) and the referral to

Dr. Nesbitt was for a second opinion examination.19

In a July 31, 2017 report, Dr. Nesbitt reviewed appellant’s history and provided 

examination findings. She related that she preferred to use the fourth edition of the A.M.A., Guides 

and calculated that he had a combined 10 percent right upper extremity permanent impairment 

based on loss of ROM of the right small finger and loss of strength. In a December 12, 2017 

supplemental report, Dr. Nesbitt indicated that she would not provide an impairment rating in 

accordance with the sixth edition of the A.M.A., Guides. As she did not provide an impairment 

rating which conformed to the proper edition of the A.M.A., Guides, her report lacked probative 

value.20

 

16 Id. at 473-74.

17 Supra note 6 at Chapter 2.808.6(e) (March 2017).

18 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

19 See B.T., Docket No. 16-1319 (issued April 25, 2017) (the Board found that at the time of the referral for a 

permanent impairment rating there was no conflict in medical opinion evidence; therefore, the referral was for a second 

opinion examination); see also Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (the Board found that, as there 

was no conflict in medical opinion evidence, the report of the physician designated as the impartial medical examiner 

was not afforded the special weight of the evidence, but was considered for its own intrinsic value as he was a second 

opinion specialist).

20 See P.B., Docket No. 17-1046 (issued January 2, 2018).
7

OWCP subsequently referred appellant to Dr. Gordon for another second-opinion 

examination. In an August 15, 2018 report, Dr. Gordon reviewed appellant’s medical records and 

conducted an examination of his right wrist and hand. He referenced specific tables in the A.M.A., 

Guides and provided grade modifiers and calculated that appellant had 4 percent right upper 

extremity impairment due to his right small finger, right long finger, and right thumb, and 6 percent 

permanent impairment due to his right wrist laceration for a combined 10 percent right upper 

extremity permanent impairment. 

In a November 5, 2018 report, Dr. Butler, serving as a DMA, noted his disagreement with

Dr. Gordon’s impairment rating and determined that appellant had four percent permanent 

impairment due to his right wrist and two percent permanent impairment due to his right thumb 

and index finger for a combined six percent right upper extremity permanent impairment. 

By decision dated November 21, 2018, OWCP granted appellant a schedule award for six

percent permanent impairment based on the November 5, 2018 DMA report.

As noted above, OWCP procedures provide: “if there was a second opinion examination, 

and the DMA provides a detailed and rationalized opinion in accordance with the A.M.A., Guides,

but does not concur with the second opinion [physician’s] impairment rating the [claims examiner] 

CE should seek clarification or a supplemental report from the second opinion examiner. After 

receiving clarification, the CE should refer the case back to the DMA for review.21 Furthermore, 

the Board notes FECA Bulletin No. 17-0622 requires application of the sixth edition of the A.M.A., 

Guides when they allow for use of the ROM methodology to determine permanent impairment for 

a specific diagnosis.

In this case, Dr. Gordon, the second opinion examiner, determined in an August 15, 2018 

report, that appellant had 10 percent right upper extremity impairment. Dr. Butler, serving as the 

DMA, disagreed with Dr. Gordon’s impairment rating and calculated that appellant had six percent 

right upper extremity permanent impairment. Both Dr. Gordon and the DMA referenced 

appropriate tables in the A.M.A., Guides and explained how they applied the provisions of the 

A.M.A., Guides when making calculating permanent impairment. OWCP, however, failed to seek 

clarification from Dr. Gordon after the DMA disagreed with his impairment rating. The need for 

additional medical development and clarification regarding the degree of appellant’s right upper 

extremity permanent impairment is especially needed in this case since Dr. Smith also determined 

in his August 12, 2016 second opinion report that appellant had 10 percent right upper extremity 

permanent impairment. Here, the A.M.A., Guides provides that the right wrist impairment can 

alternatively be rated using the ROM methodology, as allowed under FECA Bulletin No. 17-06. 

Neither Dr. Gordon nor Dr. Butler, however, provided a rating of impairment based on the ROM 

methodology for the wrist.

As OWCP failed to follow proper procedure, the case must, therefore, be remanded to 

OWCP so that it may seek clarification and obtain a supplemental report from Dr. Gordon

regarding the degree of appellant’s right upper extremity impairment. On remand OWCP should 

 

21 Supra note 15.

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

request that Dr. Gordon provide an impairment rating that utilizes both the DBI and ROM 

methodology as required by FECA Bulletin No. 17-06 and other procedures as set forth herein. 

After such further development as OWCP deems necessary, it 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 November 21, 2018 merit 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: August 7, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board