United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Newtown, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0918

Issued: December 30, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase. 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 28, 2018 appellant, through counsel, filed a timely appeal from a November 17, 

2017 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.3

 

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.

3 The Board notes that following the November 17, 2017 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

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.
2

ISSUE

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

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

schedule award.

FACTUAL HISTORY

This case has previously been before the Board.4 The facts and circumstances as set forth 

in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On August 20, 1996 appellant, then a 45-year-old postal clerk, filed an occupational 

disease claim alleging that she injured her right shoulder and left wrist due to factors of her federal 

employment. She retired from federal service as of July 11, 1998 and has not returned to work. 

By decision dated September 26, 2001, OWCP accepted appellant’s claim for cervical 

radiculopathy, mild ulnar neuropathy, and aggravation of hypermobility of the left first 

metacarpophalangeal joint. 

On April 10, 2008 appellant filed a claim for a schedule award (Form CA-7).

On September 25, 2008 OWCP forwarded a copy of the medical record, including prior 

medical reports regarding permanent impairment to Dr. Arnold T. Berman, a Board-certified 

orthopedic surgeon serving as a district medical adviser (DMA). In a report dated October 15, 

2008, Dr. Berman concluded that based upon the sixth edition of the American Medical 

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

5

appellant had 

eight percent permanent impairment of the left upper extremity and one percent permanent 

impairment of the right upper extremity utilizing Table 15-17 on page 424. He determined that 

appellant had reached maximum medical improvement (MMI) on August 16, 2007.

In a letter dated December 28, 2009, OWCP notified appellant that an appointment had 

been made to determine whether she sustained permanent impairment due to her accepted 

employment injury.6 In a report dated January 13, 2010,

7 Dr. Noubar Didizian, a Board-certified

orthopedic surgeon, noted appellant’s history of injury and his review of the medical record, and 

provided findings on physical examination. He found that there was no objective orthopedic or 

neurologic deficit of the cervical spine or the extremities as to the accepted employment injury and 

thus there were no residuals. Due to the fact that his physical examination noted that appellant 

 

4 Docket No. 13-2082 (issued May 15, 2014); Docket No. 07-0483 (issued June 12, 2007); Docket No. 99-0300 

(issued May 17, 2000).

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

6 The second opinion physician was provided a copy of the medical record, a statement of accepted facts (SOAF), 

and a series of questions.

7 On this same date it was determined by OWCP that the SOAF required updating and thus appellant would be 

referred back to Dr. Didizian.
3

had no residuals from the employment injury, Dr. Didizian would not proceed with an impairment 

rating.

By decision dated February 28, 2012, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record failed to demonstrate a measureable permanent 

impairment.

On March 2, 2012 appellant, through counsel, requested an oral hearing.

By decision dated May 11, 2012, a hearing representative set aside and remanded the case 

finding that OWCP had not properly developed the medical evidence due to an inaccurate SOAF. 

She ordered OWCP to update the SOAF and obtain a supplemental report from Dr. Didizian. 

In a supplemental report dated October 5, 2012, Dr. Didizian noted his review of the 

updated SOAF and the medical record and also provided findings upon physical examination. He

noted that appellant had no objective physical findings, but she had symptoms which were a basis 

for consideration of a permanent impairment rating. Utilizing the A.M.A., Guides, Table 15-18 

on page 429, Dr. Didizian concluded that under the diagnosis-based impairment (DBI) 

methodology for peripheral nerve injuries, appellant had two percent left upper extremity 

permanent impairment and two percent right upper extremity permanent impairment.

The report of Dr. Didizian provided to Dr. Morley Slutsky, Board-certified in occupational 

medicine serving as a DMA, concluded that there was no basis for an upper extremity impairment 

rating for either extremity. 

By decision dated January 7, 2013, OWCP denied appellant’s schedule award claim. 

On January 11, 2013 appellant, through counsel, requested an oral hearing. The hearing 

was held on April 11, 2013.

By decision dated June 12, 2013, the hearing representative affirmed the January 7, 2013 

decision.

On September 11, 2013 appellant, through counsel, filed an appeal with the Board.

By decision dated May 15, 2014, the Board set aside OWCP’s June 12, 2013 schedule 

award decision and remanded the case to OWCP for an updated SOAF and further medical 

development on the issue of permanent impairment for schedule award purposes.

8

 

On December 1, 2014 OWCP referred appellant to Dr. Robert A. Smith, a Board-certified 

orthopedist, for a determination of whether she has residuals of her accepted conditions including 

permanent impairment of the bilateral upper extremities. In a January 16, 2015 report, Dr. Smith

noted the history of appellant’s employment injury and reviewed the medical record. He noted 

essentially normal examination findings except subluxation and hyperextension of the left thumb 

MP joint by 30 degrees when compared to the right side with hypermobility. Dr. Smith noted that 

the only condition for which there were objective findings was hypermobility of the left thumb 

 

8 Docket No. 13-2082 (issued May 15, 2014).
4

MP joint. He specifically found no objective evidence of ongoing or residual cervical 

radiculopathy, brachial plexopathy, or ulnar neuropathy. Dr. Smith opined that appellant reached 

MMI with respect to the accepted conditions on October 5, 2012. He indicated that the ratable 

disabling condition was the left thump MP joint dislocation or sprain as outlined in Table 15-2, 

Digital Regional Grid, page 392 of the A.M.A., Guides. Dr. Smith applied the DBI method noting 

that appellant’s left thumb MP joint dislocation or sprain fell under a class of diagnosis (CDX) of

1 with a default value of 3 to 10 percent depending on the amount of instability present. He 

calculated the grade modifier for physical examination (GMPE) of 3, the grade modifier for 

functional history (GMFH) of 2, and no grade modifier for clinical studies (GMCS) was warranted. 

Applying the net adjustment formula resulted in +3, but Dr. Smith noted that the A.M.A., Guides

provides that a grade modifier cannot result in a higher class, therefore the appropriate net 

adjustment was +2. He noted that, pursuant to Table 15-2, page 392, the appropriate rating for 

joint instability greater than 20 degrees with a net adjustment of +2 was 12 percent impairment. 

Dr. Smith opined that there was zero percent impairment for cervical radiculopathy, brachial 

plexopathy, and ulnar neuropathy. On February 5, 2015 he submitted a supplemental report 

converting his prior digital impairment to four percent of the upper extremity pursuant to the 

A.M.A., Guides.

Appellant was treated by Dr. Scott Fried, an osteopath Board-certified in orthopedic 

surgery. In reports dated February 26 and June 4, 2015, Dr. Fried diagnosed: MP Volar plate 

capsular injury with chronic laxity of the left thumb; disc space narrowing at C4-5, C5-6 with 

radiculopathy; right rotator cuff tendinitis and subacromial impingement; posterior occipital 

neuralgia; bilateral radial tunnel; left ulnar neuropathy; brachial plexopathy; cervical 

radiculopathy; thoracic neuritis;scapular winging; and carpal tunnel neuropathy secondary to work 

activities.

In a June 4, 2015, report, Dr. Berman serving as a DMA concurred with Dr. Smith’s 

finding of four percent permanent impairment of the left upper extremity. With regard to cervical 

radiculopathy, brachial plexopathy and ulnar neuropathy, he noted Dr. Smith’s examination’s lack 

of objective findings which supported zero percent permanent impairment. 

By decision dated August 3, 2015, OWCP granted appellant a schedule award for four

percent permanent impairment of the left upper extremity. The period of the award ran from 

January 6 to April 13, 2015.

On August 13, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. The hearing was held on November 20, 2015. In an undated statement, appellant 

indicated that her examination with Dr. Smith was 10 to 12 minutes in duration and he only 

performed a brief physical examination.

By decision dated February 23, 2016, an OWCP hearing representative affirmed the 

August 3, 2015 decision.

On July 19, 2016 appellant, through counsel, requested reconsideration. 

In a report dated January 5, 2016, Dr. Weiss described appellant’s symptoms of pain, 

numbness, tingling, and swelling in the cervical spine, shoulders, and elbows. He found that 

appellant’s QuickDASH score for the left upper extremity was 81 and the right upper extremity 

was 75. Dr. Weiss diagnosed cumulative and repetitive trauma disorder, occupational cervical 
5

spine syndrome, discogenic disease of the cervical spine C4-5 and C5-6, bilateral cervical 

radiculopathy, left ulnar nerve neuropathy at the cubital tunnel, chronic subluxation of the MP 

joint of the left hand, chronic rotator cuff tendinopathy, chronic acromioclavicular joint 

arthropathy to the right shoulder, and bilateral ulnar nerve neuropathy at the cubital tunnel of the 

elbows. Findings on examination of the cervical spine and left elbow revealed two-point 

discrimination of 10 millimeters in the left hand over the ulnar nerve and diminished light touch 

sensibility over the C8 dermatome and ulnar nerve distribution of the left and right upper 

extremities. Dr. Weiss opined that the accepted employment injury was the competent producing 

factor for her subjective and objective symptoms and his findings. He applied the A.M.A., Guides

to his findings and the diagnosis of entrapment neuropathy.9 Examination of the left elbow 

revealed GMCS of 3, GMFH of 3, and GMPE of 1 for a total of 7. Dr. Weiss explained that the 

GMFH was based on appellant’s QuickDASH score which was 81 or a grade modifier 4, increasing 

her impairment rating to six percent.10 He determined the left thumb MP joint subluxation was a 

CDX of 2 or 20 percent permanent impairment of the digit.11 The GMFH was 2, the GMPE was 

1, and the GMCS was zero. Applying the net adjustment formula he found a combined left upper 

extremity impairment of 12 percent. Dr. Weiss further noted right upper extremity impairment of 

three percent for right shoulder acromioclavicular joint arthropathy with residual loss.12 Dr. Weiss 

noted that appellant reached MMI on January 5, 2016.

An electromyogram (EMG) revealed bilateral brachial plexus involving the upper and 

lower plexus components significantly on the right and mildly on the left, bilateral and very 

significant ulnar nerve impairment involving the medial across the elbow and into the right 

forearm, moderate bilateral posterior interosseous nerve impairment at the radial tunnel levels, 

mild bilateral median nerve impairments at wrist, and no evidence of cervical nerve root 

impairment.

On October 30, 2016 Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as 

a DMA, reviewed Dr. Weiss’ report and disagreed with his impairment rating. The DMA 

indicated that there was no electrodiagnostic data included in the medical records. Pursuant to 

Table 15-23, page 449, A.M.A., Guides he found no documented ulnar motor nerve conduction 

delay, a history of intermittent tingling of the third, fourth, and fifth digits for GMCS of 1, GMFH

3 for the QuickDASH score of 81, and GMPE of 2 for two-point discrimination of 10 millimeters. 

The DMA noted that according to the A.M.A., Guides, page 406, if the GMFH differs by two or 

more grades from that described by the physical examination or clinical studies, the functional 

history is assumed unreliable and is excluded from the grading process. He combined the grade 

modifiers at 3 with an average of 1. The DMA noted that a grade modifier of 1 was selected with 

a default of 2 percent upper extremity permanent impairment. He noted that Dr. Weiss incorrectly 

assigned a GMCS of 3 for test findings noting that the electrodiagnostic data was not included in 

the records. The DMA further noted that Dr. Weiss had improperly used a GMFH of 3, but this 

was deemed unreliable. He further noted that Dr. Weiss found a GMPE of 1; however, the medical 

 

9 A.M.A., Guides 449, Table 15-23.

10 Id. at 406, Table 15-7.

11 Id. at 393, Table 15-2.

12 Id. at 403 to 410, Table 15-5 to Table 15-9.
6

adviser explained that this was a grade modifier 2 based on the abnormal two-point discrimination 

testing. 

With regard to the left thumb MP joint subluxation, the DMA noted that appellant was a 

class 1, greater than 20 degrees of MP joint hyperextension13 pursuant to Dr. Smith’s January 16, 

2015 report, for a mid-range default of 10 percent impairment of the digit. Applying the net 

adjustment formula, he determined a net adjustment of zero for a 10 percent digit impairment or 4 

percent hand impairment pursuant to Table 15-12, page 421 of the A.M.A., Guides. 

By decision dated November 17, 2017, OWCP expanded the accepted conditions to 

include dislocation of the metacarpophalangeal joint of the left thumb, brachial neuritis or 

radiculitis not otherwise specified, sprain of the metacarpophalangeal of the hand, and neck sprain.

By separate decision dated November 17, 2017, OWCP modified the February 23, 2016 

hearing decision finding an additional permanent impairment rating of one percent of the left upper 

extremity for a combined left upper extremity permanent impairment of five percent.

LEGAL PRECEDENT

The schedule award provisions of FECA14 and its implementing federal regulations,15 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.16 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.

17

In determining 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. With respect to the digits of the hand, the relevant portion of the upper extremity for 

a diagnosis for the present case, reference is made to Table 15-2 (Digit Regional Grid) beginning 

on page 391. After the CDX is determined from the appropriate Grid (including identification of 

 

13 Id. at 393, Table 15-2.

14 5 U.S.C. § 8107.

15 20 C.F.R. § 10.404. 

16 Id. at § 10.404(a).

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

2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

a default grade value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).18

Regarding the application of range of motion (ROM) or DBI impairment 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.” (Emphasis in the original).19

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 rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,] 

Guides, that ROM is not permitted as an alternative rating method for the diagnosis 

in question.

“If the rating physician provided an assessment using the DBI 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 

 

18 See A.M.A., Guides 398-411 (6th ed. 2009). Table 15-4 also provides that, if motion loss is present for a claimant 

who has lateral or medial epicondylitis, impairment may alternatively be assessed using section 15.7 (ROM 

impairment). Such a range of motion impairment stands alone and is not combined with a DBI impairment. Id. at 

399, 475-78; see also J.F., Docket No. 18-0598 (issued July 16, 2018) (the case was remanded for further development 

to apply both the ROM and DBI methodologies).

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

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

20

ANALYSIS

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

The Board has previously held that OWCP had inconsistently applied Chapter 15 of the 

sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. 

No consistent interpretation had been followed regarding the proper use of the DBI or the range of 

motion (ROM) methodologies when assessing the extent of permanent impairment for schedule 

award purposes.21 The purpose of the use of uniform standards is to ensure consistent results and 

to ensure equal justice under the law to all claimants.22 In T.H., the Board concluded that OWCP 

physicians were at odds over the proper methodology for rating upper extremity impairment, 

having observed attending physicians, evaluating physicians, second opinion physicians, impartial 

medical examiners, and DMAs use both DBI and ROM methodologies interchangeably without a 

consistent basis. Furthermore, the Board observed that physicians interchangeably cited to 

language in the first printing or the second printing when justifying use of either ROM or DBI 

methodology. The Board therefore found that OWCP should develop a consistent method for 

calculating permanent impairment for upper extremities, which could be applied uniformly.

As noted above, FECA Bulletin No. 17-06 provides that, if the rating physician provided 

an assessment using the DBI method and the A.M.A., Guides allows 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.23 The record of evidence establishes 

that appellant has received a rating for permanent impairment pursuant to Table 15-2 for a 

diagnosis that is followed by an asterisk, which thus requires development providing consideration 

of appellant’s loss of ROM, if any, of the scheduled member. None of the impairment ratings of 

record are found to have properly followed the guidance found in FECA Bulletin No. 17-06 and 

therefore the schedule award opinions of record are insufficient for purposes of granting a schedule 

award. 

Proceedings before OWCP are not adversarial in nature and OWCP is not a disinterested 

arbiter. In a case where OWCP proceeds to develop the evidence and to procure medical evidence, 

it must do so in a fair and impartial manner.24 The Board therefore finds that this case must be 

remanded for application of OWCP procedures found in FECA Bulletin No. 17-06. On remand, 

if the medical evidence of record is insufficient to render a rating using the ROM and DBI methods

for all presently accepted conditions, appellant should be referred for a physical examination to 

 

20 Id.

21 T.H., Docket No. 14-0943 (issued November 25, 2016).

22 Id.; see also Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

23 Supra note 12.

24 L.W., Docket No. 19-1208 (issued July 19, 2019); J.G., Docket No. 14-1987 (issued January 21, 2015); Walter A. 

Fundinger, Jr., 37 ECAB 200, 204 (1985). 
9

obtain the medical evidence necessary to complete the ratings.25 Further, the Board finds that the 

medical record should be reassembled to include all diagnostic testing reports which are necessary 

for proper consideration of the grade modifiers in assessing permanent impairment. After such 

further development of the medical evidence 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 November 17, 2017 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: December 30, 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

 

25 Id.