United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.R., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, METROPOLITAN 

DETENTION CENTER, Brooklyn, NY, 

Employer

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Docket No. 21-1265

Issued: March 23, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021 

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 to consider the merits of this case.

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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than eight 

percent permanent impairment of his left small finger for which he previously received a schedule 

award.

FACTUAL HISTORY

On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of 

his body and broke his left small finger when attempting to move a loaded laundry cart which 

tipped over causing him to fall while in the performance of duty. He stopped work on February 26, 

2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for 

nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the 

left little finger.

On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In support of his claim, appellant provided an August 3, 2017 report from Dr. John C. 

L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on 

February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony 

mallet component. On physical examination he found prominence over the dorsal aspect of the 

distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full 

extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and 

motor examination.

Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to 

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

3 and utilized the diagnosis-based 

impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392, 

the class of diagnosis (CDX) for mallet injury including avulsion fracturewas a class 1 impairment, 

grade C, with a default value of six percent for the digit. He assigned a grade modifier for 

functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page 

406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild 

decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned 

a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal 

phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 15-

9, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) + 

(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent 

impairment of the left small finger, which he converted to one percent permanent impairment of 

the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page 

421.

On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a 

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

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

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s 

findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack 

of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was 

August 3, 2017, the evaluation date by Dr. L’Insalata.

On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating 

should be for the digit itself or extend into the adjoining area of the member, the hand or upper 

extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight 

percent permanent impairment of his left small finger. He noted that consistent with OWCP 

procedures the general loss of less than one digit should be computed in terms of impairments to 

the digit itself and that the loss of two or more digits should be computed in terms of impairment 

to the whole hand.4 The DMA found as only one finger was involved the impairment was best 

expressed as eight percent impairment of the left small finger.

By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight 

percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the 

period August 3 to 11, 2017.

On January 4, 2021 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.

By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11, 

2020 decision. She found that the weight of the medical evidence established that appellant had 

no greater than eight percent permanent impairment of his left finger for which he previously 

received a schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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.7 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides(2009).8 The Board has approved the use 

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

2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. 

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

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

(January2010); id. at Chapter 2.808.5a.(March2017).
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.9

In addressing upper extremity impairments, the sixth edition requires that the evaluator 

identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS.10 The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11

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.12 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.13 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.14

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.15 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.,] 

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.)16

9 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

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

11 Id. at 411.

12 Id. at 461.

13 Id. at 473.

14 Id. at 474.

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

16 A.M.A., Guides 477.
5

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 [clams examiner].”

17

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.18

ANALYSIS

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

In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM 

measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its 

DMA, who found that appellant had eight percent permanent impairment of the left small finger 

under the DBI methodology. Dr. Hammel advised thatDr. L’Insalata’s report did not contain three 

complete ROM measurements for the left small finger.

Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment 

is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should 

advise as to the medical evidence necessary to complete the ROM method of rating if the medical 

evidence of record is insufficient to rate appellant’s impairment using ROM.19

Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after 

the DMA advised that the measurements for the left finger were incomplete and there was no 

documentation to rate appellant’s permanent impairment utilizing the ROM methodology.20 

On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin 

No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as 

described above, the case shall be referred to a DMA to independently calculate impairment to the 

left small finger using both ROM and DBI methods and identify the higher rating. 22 If

Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a 

17 FECA Bulletin No. 17-06 (issued May8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,

Docket No. 18-0329 (issued July 26, 2018).

18 See supra note 8 at Chapter 2.808.6f.(March2017); see D.J.,Docket No. 19-0352 (issued July 24, 2020).

19 J.L., Docket No. 19-1684 (issued November 20, 2020); R.L.,Docket No. 19-1793 (issued August 7, 2020); E.P.,

Docket No. 19-1708 (issued April15, 2020).

20 C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued 

May 16, 2019).

21 J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

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

September 11, 2018).
6

specialist in the appropriate field of medicine for a second opinion evaluation. Following 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 July 2, 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: March 23, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board