United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Westville, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0987

Issued: March 30, 2020

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, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 16, 2018 appellant, through counsel, filed a timely appeal from a December 15, 

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.

ISSUE

The issue is whether appellant has met his burden of proof to establish permanent 

impairment of a scheduled member or function of the body for schedule award purposes.

 

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.
2

FACTUAL HISTORY

On October 12, 2006 OWCP accepted that appellant, then a 51-year-old letter carrier, 

developed right lateral epicondylitis due to factors of his federal employment, including engaging 

in repetitive motions such as casing, holding, and pulling down mail. Appellant had stopped work 

on August 25, 2006 and returned to modified work on November 6, 2006. OWCP paid him wageloss compensation on the supplemental rolls and he retired from federal service on March 1, 2014.

Appellant received treatment for his upper extremity problems from Dr. Bruce A. 

Monaghan, a Board-certified orthopedic surgeon. In numerous reports dated between 2006 and 

2016, Dr. Monaghan diagnosed such conditions as right lateral epicondylitis and degenerative 

arthritis of the right thumb.3 He regularly provided lifting restrictions for the right upper extremity. 

In a January 4, 2016 report, Dr. Fredric D. Levin, a Board-certified orthopedic surgeon, 

reviewed appellant’s medical history and reported physical examination findings.

4

 Examination 

of the upper extremities revealed full range of motion (ROM) of the shoulders, elbows, wrists, and 

hands. Appellant had no atrophy or deformity of either upper extremity. He had negative Tinel’s

and Phalen’s signs bilaterally, and sensory examination failed to reveal any perceived sensory 

deficit involving either upper extremity. Appellant exhibited marked tenderness at the 

metacarpophalangeal (MCP) joint of the right thumb with positive grind, shake, and pinch testing. 

Dr. Levin applied the diagnosis-based impairment (DBI) rating method, utilizing Table 15-2 of the 

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

Impairment (A.M.A., Guides),5to find that appellant’s carpometacarpal (CMC) degenerative joint 

disease of the right thumb caused two percent permanent impairment of the right upper extremity. 

He also opined that, under Table 15-23, appellant’s entrapment neuropathy of the right median 

nerve at the wrist caused four percent permanent impairment of that member. Dr. Levin combined 

these impairment rating values and concluded that the total permanent impairment of appellant’s

right upper extremity was six percent.

6

Prior to reaching his conclusion regarding the extent of permanent impairment of 

appellant’s right upper extremity, Dr. Levin also conducted an impairment calculation under the 

DBI rating method for appellant’s accepted condition of right lateral epicondylitis. He indicated 

that, under Table 15-4, this condition fell under class 1 for the class of diagnosis (CDX), a 

designation which warranted a default value of one percent permanent impairment of the right 

 

3 A March 1, 2007 magnetic resonance imaging (MRI) scan of appellant’s right elbow contained an impression of 

sprain of the radial collateral ligament, mild-to-moderate proximal common extensor tendinopathy, and small joint 

effusion most prominent within the lateral compartment.

4 Dr. Levin noted that in this report appellant walked without a noticeable limp, but had difficulty with heel and toe 

walking secondary to pain. 

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

6 Dr. Levin found that appellant reached maximum medical improvement (MMI) on January 4, 2016, the date of 

his physical examination.
3

upper extremity.7 Dr. Levin found that appellant had a grade modifier for functional history 

(GMFH) of 1, a grade modifier for physical examination (GMPE) of 0, and a grade modifier for 

clinical studies (GMCS) of 0. Application of the net adjustment formula resulted in movement 

two spaces to the left of the default value on Table 15-4 to the value of zero percent permanent 

impairment. Therefore, Dr. Levin concluded that appellant had zero percent permanent 

impairment of the right upper extremity due to the accepted condition of right lateral epicondylitis.

On November 16, 2016 appellant filed a claim for a schedule award (Form CA-7).

Appellant subsequently submitted a November 15, 2016 report from Dr. Monaghan who 

indicated that he had reviewed Dr. Levin’s January 4, 2016 report and expressed his concurrence 

with Dr. Levin that appellant had six percent permanent impairment of the right upper extremity.

On December 14, 2016 OWCP referred appellant’s case to Dr. Herbert White, Jr., a Boardcertified occupational medicine physician serving as a district medical adviser (DMA), and 

requested that he review the medical evidence of record, including Dr. Levin’s January 4, 2016 

report, and provide an opinion as to the extent of appellant’s permanent impairment.

On December 20, 2016 the DMA reviewed the medical evidence of record and concluded 

that appellant had zero percent permanent impairment of the right upper extremity. He indicated 

that, under Table 15-4, appellant’s right epicondylitis fell under class 1 for the CDX with a default 

value of one percent permanent impairment of the right upper extremity.8 The DMA determined 

that appellant had a GMFH of 1 (due to a QuickDASH score of 40), a GMPE of 0 (due to a 

“normal” examination), and a GMCS of 0 (due to no studies at the time of MMI). Application of 

the net adjustment formula resulted in movement two spaces to the left of the default value on 

Table 15-4 to the value of zero percent permanent impairment. The DMA therefore found that 

appellant had zero percent permanent impairment of the right upper extremity due to the accepted 

condition of right lateral epicondylitis.9 He also indicated that he was unsure of how Dr. Levin 

obtained his rating of six percent permanent impairment of the right upper extremity, and he 

reiterated his conclusion that appellant had no permanent impairment of the right upper extremity.

By decision dated July 13, 2017, OWCP denied appellant’s schedule award claim, finding 

that the weight of the medical evidence, as represented by the DMA’s December 20, 2016 report, 

showed that appellant did not have permanent impairment of a scheduled member or function of 

the body, warranting a schedule award.

On July 19, 2017 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. Counsel later requested that OWCP’s 

hearing representative conduct a review of the written record in lieu of an oral hearing. He argued 

 

7 This class 1 designation (with associated default value) is intended for conditions with a history of painful injury 

and residual symptoms without consistent objective findings. A.M.A., Guides 399, Table 15-4. 

8 The DMA found that appellant reached MMI on January 4, 2016, the date of Dr. Levin’s physical examination.

9 The DMA advised that he did not use the “surgical release grid” of Table 15-4 because appellant did not undergo 

right elbow surgery. He determined that appellant reached MMI on January 4, 2016, the date of Dr. Levin’s physical 

examination.
4

that there was a conflict in the medical opinion evidence between Dr. Levin and the DMA 

regarding permanent impairment.

By decision dated December 15, 2017, OWCP’s hearing representative affirmed the 

July 13, 2017 decision finding no conflict between the calculations of permanent impairment by

Dr. Levin and the DMA with respect to appellant’s accepted condition of right lateral 

epicondylitis.

LEGAL PRECEDENT

The schedule award provisions of FECA,

10 and its implementing regulations,11 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.12 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.13 The sixth edition requires identifying the 

class for the CDX, which is then adjusted by grade modifiers GMFH, GMPE, and GMCS.14 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15

Regarding the application of 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 

 

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404.

12 Id.

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

2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and

Exhibit 1 (January 2010).

14 A.M.A., Guides 494-531.

15 Id. at 521.
5

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)

* * *

“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 

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

ANALYSIS

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

The Board has previously found 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 ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.17 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.18 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 the 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 rating method, the DMA should independently calculate impairment 

using both the ROM and DBI methods and identify the higher rating for the CE.19

The Board finds that this case requires further development of the medical evidence. On 

December 20, 2016 the DMA indicated that he had reviewed the January 4, 2016 report of

 

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

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

18 K.J., Docket No. 19-0901 (issued December 6, 2019); Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

19 See supra note 17.
6

Dr. Levin, an attending physician, and determined that appellant had zero percent permanent 

impairment of his right upper extremity as calculated under the DBI rating method. Since

Dr. Levin provided a rating using the DBI rating method, and appellant’s condition provided for 

application of the ROM rating method,20 the DMA was required to independently calculate his 

impairment using both the DBI and ROM methods and identify the higher rating for the claims 

examiner.21 

The Board notes that, the DMA did not conduct an impairment rating calculation under the 

ROM method and the case record does not contain recent ROM findings for properly conducting 

a right upper extremity permanent impairment rating under the ROM method. As noted above, 

FECA Bulletin No. 17-06 provides instructions for obtaining sufficient evidence to conduct a 

complete permanent impairment evaluation. However, such instructions were not carried out in 

this case and therefore further development of the medical evidence is required in accordance with 

FECA Bulletin No. 17-06.22 Dr. Levin indicated in his January 4, 2016 report, that appellant had 

full ROM of his right elbow, but he did not provide specific ROM measurements for that elbow. 

The DMA, who reviewed Dr. Levin’s report, did not conduct any evaluation under the ROM 

method. 

Section 15.7 of the sixth edition of the A.M.A., Guides provides that ROM should be 

measured after a “warm up,” in which the individual moves the joint through its maximum ROM 

at least three times. The ROM examination is then performed by recording the active 

measurements from three separate ROM efforts and all measurements should fall within 10 

degrees of the mean of these three measurements. The maximum observed measurement is used 

to determine the ROM impairment.23 There currently is no evidence in the case record that these 

requirements for evaluating permanent impairment due to ROM deficits have been met.

In order to conduct a full evaluation of appellant’s right upper extremity permanent 

impairment, the Board finds that the case shall be remanded to OWCP in order for it to obtain the 

raw data from Dr. Levin’s ROM testing for the right upper extremity. Once the data is obtained, 

it should be evaluated and considered under the relevant standards of the A.M.A., Guides, 

including referral to a DMA, as a possible basis for an impairment rating. If no such data is 

available, OWCP shall take appropriate action for further examination to obtain the necessary 

ROM measurements.

This case shall therefore be remanded for full application of OWCP’s procedures found in 

FECA Bulletin No. 17-06 and the standards of the sixth edition of the A.M.A., Guides. After 

conducting this and other such further development of the medical evidence as deemed necessary, 

OWCP shall issue a de novo decision regarding appellant’s schedule award claim.

 

20 See A.M.A., Guides 399, Table 15-4.

21 See supra note 17.

22 Id.

23 A.M.A., Guides 464.
7

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the December 15, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action with this 

decision of the Board.

Issued: March 30, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board