United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Arlington, VA, Employer

__________________________________________

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Docket No. 18-0519

Issued: March 8, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 17, 2018 appellant, through counsel, filed a timely appeal from an August 15, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

 

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

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of the case.

3

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish more than 

20 percent permanent impairment of her right lower extremity, for which she previously received 

a schedule award; and (2) whether she has met her burden of proof to establish more than 3 percent 

permanent impairment of her right upper extremity, for which she previously received a schedule 

award.

FACTUAL HISTORY

On February 13, 2013 appellant, then a 42-year-old transportation security specialist, filed 

a traumatic injury claim (Form CA-1) alleging several injuries that she attributed to a February 8, 

2013 slip and fall on a wet floor in the lobby while in the performance of duty. She stopped work 

on February 11, 2013. OWCP initially accepted the claim for right hip contusion, right medial 

meniscus tear, right knee effusion, and right wrist intersection syndrome. It later expanded 

acceptance of the claim to include right hip bursitis and right knee iliotibial band syndrome.4 

Appellant underwent OWCP-authorized right knee arthroscopic partial medial menisectomy on 

April 18, 2013 and release of second extensor compartment of right forearm/wrist on June 6, 2013. 

She eventually returned to work.

In a July 25, 2014 report, Dr. David P. Sokolow, a Board-certified orthopedic surgeon, 

opined, in pertinent part, that appellant’s right wrist carpal tunnel syndrome was a direct result of 

the February 8, 2013 employment injury. In an August 8, 2014 report, Dr. Ali R. Hashemi, a 

Board-certified orthopedic surgeon, also opined that appellant’s fall and her injury caused 

tenosynovitis of her right wrist, and hand, and carpal tunnel syndrome secondary to swelling and 

pain and compensation. He explained that the carpal tunnel syndrome was a result of the 

inflammation from the fall and the stiffness that she developed from her tendinitis. 

In a September 9, 2014 report, Dr. Chester DiLallo, a Board-certified orthopedic surgeon 

and second opinion physician, reported appellant’s history of injury, reviewed the medical record 

and statement of accepted facts (SOAF), and presented examination findings. In pertinent part, he 

 

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the August 15, 2017 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to evidence 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 additional evidence for the first 

time on appeal. Id.

4 OWCP assigned the present claim File No. xxxxxx302. Under OWCP File No. xxxxxx307, OWCP accepted right 

knee contusion and right knee medial meniscus tear for a June 10, 2006 employment injury. By decision dated 

January 14, 2010, it granted appellant a schedule award for 20 percent permanent impairment of the right lower 

extremity under OWCP File No. xxxxxx307. OWCP File Nos. xxxxxx302 and xxxxxx307 have been administratively 

combined, with the latter serving as the master file. 
3

indicated that in addition to the accepted condition of the right wrist, complex regional pain 

syndrome (CRPS) should be added as an accepted diagnosis, but he related that there was no 

evidence of carpal tunnel syndrome.5 Dr. DiLallo reported that he could not confirm the diagnosis 

of carpal tunnel syndrome as the nerve conduction study had not been provided to him.

In a February 18, 2015 report, Dr. Sokolow related that appellant had class 2 CRPS which 

resulted in 25 percent right upper extremity impairment under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6

On February 26, 2015 appellant underwent right carpal tunnel release surgery.

7

 She filed 

a claim for a schedule award (Form CA-7) on April 7, 2016.

In an April 16, 2016 report, Dr. Joshua B. Macht, an internist, noted the history of the 

February 8, 2013 employment injury and her medical history. He also noted appellant’s symptoms 

and provided physical examination findings, including range of motion (ROM) findings for the 

right hip, right knee, and right wrist. Dr. Macht noted that all of the ROM findings were repeated 

at least three times for accuracy and to meet the validity criteria according to the sixth edition of 

the A.M.A., Guides. He diagnosed traumatic injury to right hip with chronic bursitis, postoperative 

state of right knee, status post partial medial meniscectomy; and traumatic injury to right wrist and 

hand with intersection syndrome of the wrist and carpal tunnel syndrome. Dr. Macht opined that 

appellant had reached maximum medical improvement (MMI) and that all the impairments 

calculated were causally related to the February 8, 2013 employment injury. 

For the right lower extremity impairment, Dr. Macht used the diagnosed-based impairment 

(DBI) rating method. He calculated two percent impairment for the right knee meniscal injury 

under Table 16-3 and two percent impairment for the right hip bursitis under Table 16-4, for a total 

right lower extremity impairment of four percent. 

For the diagnosis of intersection syndrome of the right wrist, Dr. Macht used the ROM 

method to calculate permanent impairment. He determined that appellant had a total combined 

right upper extremity impairment of nine percent. Under Table 15-32, Dr. Macht calculated three

percent impairment for 50 degrees of wrist flexion. Under Table 15-23, he also calculated six

percent impairment for right carpal tunnel syndrome. Dr. Macht noted that appellant could not be 

assigned impairment for CRPS as she did not meet the diagnostic criteria under Table 15-25. 

On August 9, 2016 OWCP prepared an August 9, 2016 SOAF8and forwarded the case 

record, including Dr. Macht’s impairment rating report, to its district medical adviser (DMA),

 

5 Dr. DiLallo noted that his examination of appellant revealed no positive Tinel’s sign at the wrist or over the 

superficial branch of the radial nerve.

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

7 OWCP appeared to have authorized and paid for the right carpal tunnel syndrome surgery. However, there is no 

evidence that OWCP accepted that right carpal tunnel syndrome was work related. 

8 The SOAF did not indicate that appellant underwent a right carpal tunnel release on February 26, 2015. 
4

Dr. Herbert White, Jr., an occupational and environmental specialist, to determine appellant’s 

permanent impairment of the right lower and upper extremities.

In an August 14, 2016 report, Dr. White reviewed the SOAF and the medical record.9 He 

found that appellant reached MMI on April 16, 2016, the date of Dr. Macht’s impairment rating. 

Dr. White also used Dr. Macht’s examination findings to rate appellant’s permanent impairment 

under the A.M.A., Guides. For the right lower extremity, he concurred with Dr. Macht’s total 

impairment of four percent. For the right hip, Dr. White found a class 1 for contusion under 

Table 16-4, page 512. He found grade modifier functional history (GMFH) 2 under Table 16-6; 

grade modifier physical examination (GMPE) 1 under Table 16-7. A grade modifier clinical 

studies (GMCS) was excluded under Table 16-8. Applying the net adjustment formula, Dr. White 

found a net adjustment of 1, which moved the default impairment at class 1 grade C to grade D, 

which resulted in an impairment rating of two percent. For the right knee, he found a partial medial 

meniscectomy repair was class 1 diagnosis under Table 16-3. Dr. White excluded GMFH, citing 

to page 516 A.M.A., Guides as it was already used for the highest rated impairment in the 

extremity. He also excluded GMCS, citing to page 519 A.M.A., Guides as there was none at MMI. 

He found GMPE grade 1 under Table 16-7, page 517. A net adjustment of zero resulted from the 

net adjustment formula calculation. Accordingly, Dr. White found that appellant had class 1 grade 

C impairment of two percent under Table 16-3. Using the Combined Values Chart, he combined 

the impairment ratings for right hip and right knee and found four percent total right lower 

extremity permanent impairment. Dr. White stated that since appellant had previously been 

awarded a right lower extremity impairment rating of 20 percent, she was not entitled to a schedule 

award for an additional impairment as the current right lower extremity rating of 4 percent was 

less than that previously awarded.

For the right wrist, Dr. White reported that the DBI under Table 15-3, page 395, was class 

1 which included intersection syndrome.10 No calculations or impairment rating was provided. 

Utilizing the ROM method, Dr. White concurred with Dr. Macht’s impairment rating of three

percent. Under Table 15-32, page 473, he found a total of three percent upper extremity permanent 

impairment. Dr. White found that flexion 50 degrees equaled three percent upper extremity 

impairment; extension 60 degrees equaled zero percent upper extremity impairment; radial 

deviation 20 degrees equaled zero percent upper extremity impairment; and ulnar deviation 30 

degrees equaled zero percent upper extremity impairment. He noted that under Table 15-35, page 

477, the ROM grade modifier was grade 1 as it was equivalent to a GMPE score of 1. The GMFH 

was grade 4 due to QuickDASH score of 86. However, it was excluded as it was 2 or greater than 

the GMPE and determined to be unreliable. Dr. White opined that appellant’s final impairment 

rating for the right upper extremity was three percent for right intersection syndrome, the only 

accepted condition.

Dr. White noted that Dr. Macht had rated the right carpal tunnel syndrome, but indicated 

that OWCP had not accepted this condition. He found five percent right upper extremity 

impairment for the carpal tunnel syndrome, in case it became an accepted condition. Dr. White 

 

9 Dr. White noted that appellant had a right carpal tunnel release on February 26, 2015. He also reported his 

interpretation of the objective testing of the right wrist. 

10 The maximum impairment for class 1 sprain/strain is two percent with a default impairment of one percent.
5

also indicated reasons why his rating for right carpal tunnel syndrome differed from Dr. Macht’s 

rating of six percent. He indicated that, if the right carpal tunnel condition became an accepted 

condition, then appellant’s combined right upper extremity rating would be eight percent. 

By decision dated November 7, 2016, OWCP granted appellant a schedule award for three

percent permanent impairment of the right upper extremity. No additional award was provided 

for the right lower extremity. The award covered a period of 9.36 weeks from April 16 to 

June 20, 2016. The weight of the medical evidence was accorded to the DMA’s report of 

August 14, 2016. 

On November 11, 2016 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review.

OWCP received a November 16, 2016 electromyography (EMG) report.

A telephonic hearing was held on June 8, 2017.

By decision dated August 15, 2017, an OWCP hearing representative affirmed OWCP’s 

November 7, 2016 decision. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,11 and its implementing federal regulations,12 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.13 For decisions issued 

after May 1, 2009, the sixth edition is used to calculate schedule awards.14

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

impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based 

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

(GMCS-CDX).15 Under Chapter 2.3, evaluators are directed to provide reasons for their 

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

 

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.

13 Id. at § 10.404(a).

14 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).

15 A.M.A., Guides 521.
6

modifier scores.16 Section 16.2a of the A.M.A., Guides, provides that, if the class selected is 

defined by physical examination findings or clinical studies results, these same findings may not 

be used as grade modifiers to adjust the rating.17

It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the 

period of compensation paid under the schedule for an earlier injury if: (1) compensation in both 

cases is for impairment of the same member or function or different parts of the same member or 

function; and (2) the latter impairment in whole or in part would duplicate the compensation 

payable for the preexisting impairment.18

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.19

ANALYSIS -- ISSUE 1

The Board finds that the case is not in posture for decision as to whether appellant has more 

than 20 percent permanent impairment of the right lower extremity, for which she previously 

received a schedule award.

To determine the permanent impairment of appellant’s right knee, both Dr. Macht and the 

DMA identified the diagnosis as CDX one partial medial meniscectomy repair under Table 16-3 

on page 509 of the A.M.A., Guides, which yielded a default (C) value of two percent. Both 

physicians assigned grade modifier 1 for physical examination and excluded grade modifiers for 

functional history and clinical studies. The net adjustment (0) resulted in no change from the 

default value of two percent (grade C).20 As appellant had previously received a schedule award 

for 20 percent right lower extremity permanent impairment under OWCP File No. xxxxxx307, she 

would not be entitled to an additional schedule award as this claim only yielded two percent right 

lower extremity permanent impairment.21

For the right hip condition, however, both Dr. Macht and the DMA identified the diagnosis 

as CDX one bursitis contusion under Table 16-4 on page 512 of the A.M.A., Guides, which yielded 

a default (C) value of one percent. Both physicians assigned grade modifiers for functional history 

 

16 Id. at 4, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement; W.S., Docket No. 16-1111 (issued March 14, 2017).

17 Id. at 500.

18 See J.K., Docket No. 16-1361 (issued April 18, 2017); T.S., Docket No. 09-1308 (issued December 22, 2009); 

20 C.F.R. § 10.404(d).

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

Chapter 2.808.6(f) (March 2017).

20 Net Adjustment (0) (GMPE 1-CDX 1). See Section 16.3d, A.M.A., Guides 518-21 (6th ed. 2009).

21 See supra note 19. 
7

(GMFH 2) and physical examination (GMPE 1), and the net adjustment (1) resulted in a change 

from the default value of one percent (grade C) to two percent (grade D).22

The medical evidence of record therefore supports that appellant has permanent 

impairment of the right lower extremity due to the accepted hip conditions. The Board finds that 

OWCP did not explain why appellant’s current impairment rating for the right hip duplicated his 

previous schedule award compensation, in particular the rating issued for his right knee. The 

Board has explained that simply comparing the prior percentage of impairment awarded to the 

current impairment for the same member is not always sufficient.23 The issue is not whether the 

current impairment rating is greater than the prior impairment ratings, but whether it duplicates in 

whole or in part the prior impairment rating.24 Accordingly, the case will be remanded to OWCP 

to determine whether the impairment rating duplicates, in whole or in part, appellant’s prior award.

After this and any other further development as deemed necessary, it shall issue a de novo decision.

LEGAL PRECEDENT -- ISSUE 2

Under the sixth edition, for upper extremity impairments the evaluator identifies the 

impairment for the class of diagnosis condition, which is then adjusted by grade modifiers based 

on functional history, physical examination, and clinical studies. The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). The grade modifiers are used on the net 

adjustment formula described above to calculate a net adjustment. The final impairment grade is 

determined by adjusting the grade up or down the default value C, by the calculated net 

adjustment.25

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: 

“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.)26

The Bulletin further advises: 

 

22 Net Adjustment (1) (GMFH 2-CDX 1) + (GMPE 1-CDX 1). See Section 16.3d, A.M.A., Guides 518-21 

(6th ed. 2009).

23 See T.S., Docket No. 16-1406 (issued August 9, 2017).

24 Id.

25 Supra note 22 at 387.

26 FECA Bulletin 17-06 (issued May 8, 2017). See also D.F., Docket No. 17-1474 (issued January 23, 2018); D.B., 

Docket No. 17-1526 (issued April 6, 2018).
8

“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.”

27

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in 

Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text. 

In Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories 

of test findings, history, and physical findings. The grade modifier levels are averaged to arrive at 

the appropriate overall grade modifier level and to identify a default rating value. The default 

rating value may be modified up or down based on functional scale, an assessment of impact on 

daily living activities (QuickDASH).28

ANALYSIS -- ISSUE 2

The Board also finds that the case is not in posture for decision as to whether appellant has 

more than three percent permanent impairment of the right upper extremity, for which she 

previously received a schedule award. 

The Board finds that OWCP has not properly developed the issue of whether appellant 

sustained a right wrist carpal tunnel syndrome or CRPS causally related to the accepted 

employment injury. While appellant’s treating physicians, Dr. Sokolow and Dr. Hashemi related 

that appellant developed right wrist carpal tunnel syndrome causally related to her February 8, 

2013 employment injury, OWCP’s second opinion physician Dr. DiLallo related that he could not 

confirm the diagnosis as appellant’s nerve conduction velocity study had not been forwarded to 

him. Dr. Sokolow also related that complex regional pain syndrome should be added as an 

accepted condition. 

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.29 While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

justice is done.30 Accordingly, once OWCP undertakes to develop the medical evidence further, 

it has the responsibility to do so in a manner that will resolve the relevant issues in the case.31

The complete case record, including diagnostic test results, shall be forwarded, along with 

an updated SOAF, to Dr. DiLallo for a supplemental report in which he addresses whether 

appellant’s right carpal tunnel condition and complex regional pain syndrome are causally related 

 

27 Id.

28 See B.W., Docket No. 18-0901 (issued January 24, 2019). 

29 See T.C., Docket No. 17-1906 (issued May 25, 2018); see also B.A., Docket No. 17-1360 (issued January 10, 

2018); R.M., Docket No. 16-0147 (issued June 17, 2016); Melvin James, 55 ECAB 406 (2004).

30 See B.A., id.; Richard E. Simpson, 55 ECAB 490 (2004).

31 See B.A., supra note 29; R.M., supra note 29; Melvin James, supra note 29.
9

to the February 8, 2013 employment injury. Dr. DiLallo should thereafter also address whether 

appellant has additional permanent impairment in accordance with the sixth edition of the A.M.A., 

Guides due to her accepted right wrist employment injury. Following this and any other such 

further development as deemed necessary, OWCP shall issue a de novo decision regarding

appellant’s schedule award claim for right upper extremity impairment in accordance with the 

A.M.A., Guides and FECA Bulletin No. 17-06.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 15, 2017 decision of Office of Workers’

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

with this decision of the Board.

Issued: March 8, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board