United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bend, OR, Employer

__________________________________________

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Docket No. 19-1284

Issued: January 14, 2020

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

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 21, 2019 appellant, through counsel, filed a timely appeal from a March 22, 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.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 March 22, 2019 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 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 two

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

schedule award.

FACTUAL HISTORY

On March 1, 2013 appellant, then a 47-year-old distribution clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed bilateral wrist tendinitis as a result of 

factors of her federal employment including pulling and loading mail on machines. She first 

became aware of her condition and of its relationship to factors of her federal employment on 

December 17, 2012. By decision dated April 1, 2013, OWCP accepted the claim for bilateral 

de Quervain’s tenosynovitis. On May 30, 2013 appellant underwent OWCP-approved right wrist 

release of the first dorsal compartment surgery. She stopped work intermittently and OWCP paid 

her wage-loss compensation on the supplemental rolls. Appellant was released to full-duty work 

on September 24, 2014. 

On March 30, 2015 appellant filed a claim for a schedule award (Form CA-7). 

Following initial development and denial of the schedule award claim4 on November 11, 

2016 OWCP referred appellant to Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon, 

for a second opinion evaluation regarding permanent impairment in accordance with the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides).5

In his November 11, 2016 report, Dr. Gritzka utilized the range of motion (ROM) 

methodology to calculate eight percent permanent impairment of the right upper extremity due to 

residuals of appellant’s de Quervain’s disease and surgery.

On February 11, 2017 Dr. Herbert White, Board-certified in occupational medicine serving 

as an OWCP district medical adviser (DMA), reviewed the medical evidence of record and 

determined that maximum medical improvement (MMI) was reached on November 11, 2016, the 

date of Dr. Gritzka’s examination. He reported that under the diagnosis-based impairment (DBI) 

method for de Quervain’s sprain/strain, appellant sustained two percent permanent impairment of 

the right upper extremity.6 Dr. White further reported that due to inconsistencies between

Dr. Gritzka’s examination findings and prior physical examination findings, the ROM 

methodology was excluded and impairment was rated only using the DBI method. 

By decisions dated May 23, 2017, OWCP vacated the December 27, 2016 decision and 

accepted appellant’s claim for a schedule award. It granted two percent permanent impairment of 

 

4 By decisions dated February 16 and December 27, 2016, OWCP denied appellant’s schedule award claim. On 

January 27, 2017 appellant, through counsel, requested reconsideration. 

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

6

Id. at 395, Table 15-3.
3

the right upper extremity. The date of MMI was noted as November 11, 2016 and the period of 

award ran for 6.24 weeks from November 11 to December 24, 2016.

On June 7, 2017 appellant, through counsel, requested review of the written record before 

an OWCP hearing representative.

By decision dated October 6, 2017, OWCP’s hearing representative set aside the May 23, 

2017 decision and remanded the claim for further medical development and application of FECA 

Bulletin No. 17-06.

7

 The hearing representative instructed OWCP to refer appellant for a second 

opinion examination and to instruct the specialist to provide an assessment of permanent 

impairment using both the DBI and ROM rating methods in accordance with FECA Bulletin 

No. 17-06.

Upon return of the case record, OWCP referred appellant to Dr. James Schwartz, a Boardcertified orthopedic surgeon, for a second opinion evaluation and opinion regarding permanent 

impairment in accordance with FECA Bulletin No. 17-06 and the sixth edition of the A.M.A, 

Guides. 

In his February 3, 2018 report, Dr. Schwartz provided his ROM findings pertaining to 

appellant’s right wrist, reporting the average amounts based on “two to three tries” each. He

calculated three percent permanent impairment utilizing the ROM methodology, but noted that he 

believed this impairment should be less than three percent per his evaluation and per appropriate 

rounding. Utilizing the DBI methodology for de Quervain’s wrist sprain, Dr. Schwartz opined 

that appellant sustained two percent permanent impairment of the right upper extremity. He opined 

that the DBI methodology should be used.8 Dr. Schwartz noted that, if appellant’s ROM findings 

were rounded appropriately, she would have zero percent permanent impairment. He concluded 

that appellant sustained two percent permanent impairment of the right upper extremity and that 

she reached MMI on February 3, 2018. 

By decision dated February 15, 2018, OWCP denied appellant’s claim for an increased 

schedule award.

On February 23, 2018 appellant, through counsel, requested review of the written record 

before an OWCP hearing representative. 

By decision dated June 5, 2018, OWCP’s hearing representative set aside the February 15, 

2018 decision and remanded the case for further development. She found that Dr. Schwartz’s 

opinion was not well rationalized and could not carry the weight of the medical evidence. The 

hearing representative noted that the A.M.A., Guides indicate that three independent ROM 

measurements should be documented, whereas Dr. Schwartz reported the average of two to three 

tries each. She further reported that there was no indication that the second opinion report had 

been reviewed by a DMA to determine whether the schedule award was correctly calculated. The 

hearing representative remanded the case for clarification from Dr. Schwartz and further review 

by a DMA. 

 

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

8 Supra note 5.
4

On remand OWCP requested Dr. Schwartz provide clarification concerning whether three 

independent ROM measurements were completed as required by the A.M.A., Guides. It further 

requested he provide a well-rationalized explanation as to whether the claimant had a right upper 

extremity permanent impairment greater than the two percent previously awarded. 

In a July 16, 2018 addendum report, Dr. Schwartz reported that during the physical 

examination, several tries, “essentially greater than three range of motion measurements,” were 

done for each wrist. He reported that the noted examination findings were the “averages of these 

measurements.” Dr. Schwartz indicated that, according to the A.M.A., Guides, wrist extension of 

55 degrees should be rounded and he would round this upwards to 60 degrees. He reported that 

ROM was an appropriate alternative impairment rating. Dr. Schwartz determined that pursuant to 

Table 15-32, appellant’s findings fell into the range between grade modifier 0 and 1, and rounding 

upwards resulted in a zero percent impairment rating of the right upper extremity.9 Thus, he found 

that the DBI method provided the higher impairment rating at two percent permanent impairment

and should be used as the method of evaluation. 

On July 29, 2018 Dr. White, serving as a DMA, reviewed the medical evidence of record 

including the reports from Dr. Schwartz. He agreed with Dr. Schwartz’s impairment rating and 

utilized the DBI methodology to calculate two percent permanent impairment of the right upper 

extremity. With regard to the ROM methodology, the DMA reported that he was “unable to rate 

the impairment with the information provided.” He explained that in Dr. Schwartz’s report, the 

three motions were averaged when the greatest of the three motions should have been used. The 

DMA explained that the A.M.A., Guides provide that, “The maximum observed measurement is 

used to determine the range of motion impairment.”

10

 He went on to calculate impairment utilizing 

the ROM averages which amounted to zero percent permanent impairment of the right upper 

extremity. The DMA concluded that appellant was not entitled to a schedule award for more than 

the two percent permanent impairment previously awarded.

By decision dated August 3, 2018, OWCP denied appellant’s request for an additional 

schedule award finding that the requirements had not been met to establish a permanent 

impairment greater than the two percent previously awarded. 

Appellant, through counsel, requested a telephonic hearing before an OWCP hearing 

representative on August 8, 2018. The hearing was held on January 8, 2019.

By decision dated March 22, 2019, OWCP’s hearing representative affirmed the August 3, 

2018 decision. 

LEGAL PRECEDENT

The schedule award provision of FECA and its implementing regulations 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.11 However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results and 

 

9

Id. at 473.

10 Id. at 464.

11 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
5

to ensure equal justice under the law to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.12 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).13 

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

impairment class of diagnosis (CDX) condition, 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

The A.M.A., Guides also provide that ROM impairment methodology is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

DBI sections are applicable.16 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 

added.17 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.18

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus

the ROM methodology for rating of upper extremity impairments.19 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent 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 

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.,] 

 

12 20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB 

130 (2001).

13 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

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

Chapter 2.808.5 (March 2017). 

14 A.M.A., Guides 383-492.

15 Id. at 411.

16 Id. at 461.

17 Id. at 473.

18 Id. at 474.

19 FECA Bulletin No. 17-06 (May 8, 2017).
6

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.)20

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.”

21

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

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

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

impairment specified.22

ANALYSIS

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

Upon development of the claim, OWCP referred appellant to Dr. Schwartz for a second 

opinion examination and opinion regarding permanent impairment of appellant’s right wrist. In 

his February 3, 2018 report, Dr. Schwartz utilized the DBI method and calculated two percent 

permanent impairment of the right upper extremity.23 Regarding the ROM methodology, he 

provided averages based on two to three tries. Dr. Schwartz calculated three percent permanent 

impairment based on the ROM methodology, but also opined that, if appellant’s range of motion 

was rounded appropriately, she would have zero percent permanent impairment of the right wrist. 

Following receipt of the report, OWCP requested Dr. Schwartz provide clarification 

concerning whether three independent ROM measurements were completed as required by the 

A.M.A., Guides. Rather than providing three independent ROM measurements as required by the 

A.M.A., Guides, Dr. Schwartz only noted the averages of these measurements which he 

improperly used when determining that appellant had zero percent permanent impairment under 

the ROM methodology.24

Consistent with its procedures,25 OWCP referred the matter to a DMA for an opinion 

regarding appellant’s permanent impairment in accordance with the A.M.A., Guides. Dr. White, 

 

20 A.M.A., Guides 477.

21 Supra note 18; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued 

July 26, 2018).

22 See Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.808.6(f) (March 2017).

23 Supra note 5.

24 A.M.A., Guides 464.

25 Id.
7

serving as the DMA, reviewed the reports of Dr. Schwartz and also determined that appellant 

sustained two percent permanent impairment based on the DBI methodology. With regard to the 

ROM methodology, the DMA reported that he was unable to rate the impairment with the 

information provided. The DMA correctly explained that in Dr. Schwartz’s report, the three 

motions were averaged when the greatest of the three motions should have been used.26 

The Board finds that as Dr. Schwartz failed to render a proper examination and impairment 

evaluation as requested, his report, as well as that of the DMA, is insufficient to resolve the issue 

in this claim.

On remand OWCP should send appellant to a new second opinion physician and further 

develop the claim to obtain three independent ROM measurements as required under FECA 

Bulletin No. 17-06.27 After it obtains the evidence necessary to complete the rating as described 

above, the case should be referred to a DMA to independently calculate impairment to the right 

upper extremity using both ROM and DBI methods and identify the higher rating.28 Following 

this and such further development as deemed necessary, OWCP shall issue a de novo decision.29

CONCLUSION

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

 

26 Id. 

27 J.S., Docket No. 19-0483 (issued October 10, 2019).

28 See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued 

September 11, 2018).

29 J.F., Docket No. 17-1726 (issued March 12, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the March 22, 2019 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: January 14, 2020

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