United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

DEPARTMENT OF THE ARMY, U.S. ARMY 

CORPS OF ENGINEERS, Fort Riley, KS, 

Employer

__________________________________________

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Docket No. 22-0320

Issued: July 28 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On December 1, 2021 appellant filed a timely appeal from an October 12, 2021 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the October 12, 2021 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 his burden of proof to establish greater than 50 

percent permanent impairment of his left middle finger, for which he previously received a 

schedule award.

FACTUAL HISTORY

On April 15, 2019 appellant, then a 50-year-old winchman, filed a traumatic injury claim 

(Form CA-1) alleging that on April 1, 2019 he severed and broke his left middle finger when a 

pipe wrench broke, in the performance of duty. He stopped work on April 22, 2019. OWCP 

accepted the claim for left distal phalanx middle finger displaced fracture and left middle finger 

crushing injury. It authorized left middle finger amputation, which appellant underwent on 

October 2, 2019 and left middle finger revision amputation with neurectomies, which he

underwent on October 28, 2020. OWCP paid him wage-loss compensation on the supplemental 

rolls commencing May 17, 2019 and on the periodic rolls commencing June 23, 2019. On 

March 11, 2021 appellant accepted a modified job offer and returned to work. The modified job 

was withdrawn on June 20, 2021 and OWCP again paid him on the periodic rolls. 

In a January 20, 2021 report, Dr. W. Jake Weller, a Board-certified orthopedic surgeon,

related appellant’s physical examination findings including nontender proximal phalanx neck level 

amputation stump, metacarpophalangeal (MCP) range of motion (ROM) of 0 to 40, left grip 

strength of 25 pounds, and right grip strength of 100 pounds. 

On March 9, 2021 appellant filed a claim for a schedule award (Form CA-7). 

On May 3, 2021 Dr. Morley Slutsky, a physician Board-certified in occupational medicine

serving as a district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and 

appellant’s medical record, including Dr. Weller’s January 20, 2021 report. He advised that 

additional information was needed. Dr. Slutsky related that the surgical note was unclear 

regarding the percentage of appellant’s digit amputation. He also noted that Dr. Weller had not 

provided three measurements of appellant’s left finger MCP flexion and extension, and he had not 

provided findings from two-point discrimination testing. Dr. Slutsky requested that OWCP obtain 

further examination findings from Dr. Weller. 

On July 28, 2021 OWCP referred appellant, along with a SOAF and a series of questions,

to Dr. James T. Galyon, a Board-certified orthopedic surgeon, for a second opinion evaluation. In 

an August 23, 2021 report, Dr. Galyon described appellant’s April 1, 2019 employment injury. He 

discussed appellant’s medical history and provided findings on physical examination. Findings 

on examination of appellant’sleft middle finger included flexion contracture at the metaphalangeal

and posterior interphalangeal joints and normal sensation in the left middle finger stump. He also 

reported left hand hypersensitivity, tenderness in the left palm, and diminished left hand grip. 

Dr. Galyon opined that appellant had a permanent disability. Referencing Table 15-28, 

Impairment of Upper Limb Amputation at Various Levels, sixth edition of the American Medical 

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

3 page 457 he 

found that appellant had 50 percent permanent impairment of the left middle finger for left middle 

3 A.M.A., Guides(6th ed. 2009).
3

finger amputation of the distal phalanx. Dr. Galyon also found 45 percent permanent impairment 

of the middle finger of the left hand due to middle finger distal interphalangeal (DIP) joint 

amputation. 

On September 25, 2021 Dr. Slutsky reviewed Dr. Gaylon’s report and requested that

OWCP obtain a supplemental report as Dr. Galyon had not provided proper examination findings

or an impairment rating for appellant’s left third finger amputation. He related that Dr. Gaylon

should provide proper sensory testing as a finding of hypersensitivity was not ratable, two-point 

discrimination testing results, and valid finger ROM measurements. Dr. Slutsky then applied 

Table 15-17 for any potential finger sensory deficits. He noted that Figure 15-2, page 458 should 

be used to rate amputation through the DIP joint level. Utilizing the diagnosis-based impairment 

(DBI) method under Table 15-2 (Digit Regional Grid), pages 391-94 of the A.M.A., Guides,

Dr. Slutsky determined that the class of diagnosis (CDX) for left third finger DIP joint amputation

was CDX 1, grade C. He assigned a grade modifier functional history (GMFH) of 1 per Table 15-

7, page 406. Dr. Slutsky assigned a grade modifier physical examination (GMPE) of 1 pursuant 

to Table 15 -8, page 408. He assigned a grade modifier clinical study (GMCS) of 2 pursuant to 

Table 15-9, page 410. Dr. Slutsky utilized the net adjustment formula (1 - 1) + (1 - 1) + (2-1) = 1, 

which resulted in a grade D or nine percent permanent impairment of the left upper extremity. 

Applying Table 15-12, page 421, he found that a 9 percent permanent impairment of the upper 

extremity converted to a 50 percent permanent impairment of the left middle finger. 

By decision dated October 12, 2021, OWCP granted appellant a schedule award for 50

percent permanent impairment of the left middle finger. The award covered a 12.5 week period 

from October 10, 2021 to January 5, 2022. 

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations

5 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 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.

6

 As of May 1, 2009, schedule awards are determined in 

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

7

 The Board has approved the use 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See also,Ronald R. Kraynak, 53 ECAB 130 (2001).

7

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

(January2010); id. at Chapter 2.808.5(a) (March 2017).
4

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.

8

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

impairment CDX condition, which is then adjusted by a GMFH, GMPE, and GMCS.

9

 The net 

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

10

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.

11

 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.

12

 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.

13

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.

14

 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:

“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.,] 

Guidesidentify 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.)”

15

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 

8 K.R., Docket No. 21-0247 (issued February25, 2022); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

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

10 Id. at 411.

11 Id. at 461.

12 Id. at 473.

13 Id. at 474.

14 FECA Bulletin No. 17-006 (issued May8, 2017).

15 A.M.A., Guides 477.
5

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the [claims examiner] CE.”

16

The Board has held that where the residuals of an injury to a member of the body specified 

in the schedule award provisions of FECA17 extend into an adjoining area of a member also 

enumerated in the schedule, such as an injury of a finger into the hand, or a hand into the arm, or 

of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use 

of the larger member.

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

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

OWCP referred appellant to Dr. Galyon for a second opinion examination to determine 

whether appellant had a permanent impairment due to his accepted left distal phalanx middle finger 

displaced fracture and left middle finger crushing injury. In a report dated August 23, 2021,

Dr. Gaylon found 50 percent permanent impairment of the left middle finger for left middle finger 

amputation of the distal phalanx, and 45 percent permanent impairment of the middle finger of the 

left hand due to middle finger DIP joint amputation. However, as he did not provide proper 

sensory testing results or valid finger ROM measurements in accordance with the sixth edition of 

the A.M.A., Guides, the Board finds that the case must be remanded for a supplemental opinion 

regarding the nature and extent of appellant’s permanent impairment.

20

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

arbiter.

21

 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 

16 FECA Bulletin No. 17-06 (issued May 8, 2017); K.R., supra note 8; V.L., Docket No. 18-0760 (issued 

November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018).

17 Supra note 4.

18 K.R., supra note 8; C.W., Docket No. 17-0791 (issued December 14, 2018); Asline Johnson, 42 ECAB 619 

(1991); Manuel Gonzales, 34 ECAB 1022 (1983). See supra note 7 at Chapter 2.808.5(e) (March 2017).

19 See supra note 7 at Chapter 2.808.6(f) (March 2017); see K.R., supra note 8; D.J., Docket No. 19-0352 (issued 

July 24, 2020).

20 See N.G., Docket No. 20-0557 (issued January 5, 2021).

21 K.R., supra note 8; N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued 

August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).
6

justice is done.

22

 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.

23

 

On remand, OWCP shall request a supplemental opinion from Dr. Gaylon which provides 

ROM findings based upon three ROM trials in accordance with the A.M.A., Guides, provides 

proper sensory testing, and includes two-point discrimination testing in order to determine the 

extent of any impairment appellant has from his accepted left distal phalanx middle finger 

displaced fracture and left middle finger crushing injury. If Dr. Gaylon is unavailable or unwilling 

to provide a supplemental opinion, OWCP shall refer appellant, a SOAF, and a list of questions to 

a new second opinion physician in the appropriate field of medicine. After this, and other such 

further development 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 October 12, 2021 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: July 28, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

22 K.R., id.; S.S., Docket No. 18-0397 (issued January 15, 2019); DonaldR. Gervasi, 57 ECAB 281, 286 (2005); 

WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

23 K.R., id.; T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).