United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mahwah, NJ, Employer

__________________________________________

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Docket No. 20-0905

Issued: December 9, 2022

Appearances: Case Submitted on the Record

Christopher Henwood, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 20, 2020 appellant, through his representative, filed a timely appeal from a 

January 24, 2020 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 January 24, 2020decision, appellant submitted additional evidence to OWCP. 

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 his burden of proof to establish any permanent 

impairment of the right lower extremity and/or greater than 13 percent permanent impairment of 

the right upper extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On December 8, 2016 appellant, then a 63-year-old retired letter carrier,4filed an 

occupational disease claim (Form CA-2) alleging that he sustained injuries to the right shoulder, 

right thumb, and right foot and ankle due to his work duties which included repetitive motions. 

In support of his claim, appellant submitted a December 8, 2016 report by Dr. Robert A. 

Kayal, a Board-certified orthopedic surgeon. On examination, Dr. Kayal noted positive Hawkins’

and Neer’s tests of the right shoulder, and exquisite tenderness to palpation of the left long head 

of the biceps tendon, basal joint of the right hand, and the first and second metatarsals of the right 

foot. X-rays of the right shoulder and foot were negative, while x-rays of the right hand 

demonstrated severe basal joint arthritis. Dr. Kayal recounted appellant’s history of treatment, 

noting in July and August 2015, appellant underwent a series of injections to the right second 

metatarsal by Dr. Chad Rappaport, a podiatrist, who also prescribed bilateral foot orthotics. 

On November 20, 2015 appellant underwent right shoulder arthroscopy with glenohumeral 

joint synovectomy, stabilization of labral tear, decompression of the axillary nerve, and 

debridement/repair of a partial thickness rotator cuff tear. Dr. Kayal administered additional right 

shoulder injections in May and June 2016. 

Appellant was subsequently treated with Dr. Edward A. Lin, a Board-certified orthopedic 

surgeon specializing in surgery of the hand, for right carpometacarpal (CMC) joint arthritis and 

diffuse arthritis of the distal interphalangeal (DIP) and proximal interphalangeal (PIP) joints. 

Dr. Kayal diagnosed a right shoulder labral tear, right glenoid labrum lesion, right shoulder 

tendinitis, unilateral primary osteoarthritis of the first right CMC joint, and tenosynovitis of the 

right foot and ankle. He opined that the diagnosed conditions were all causally related to repetitive 

motion while in the performance of duty.

On March 27, 2017 OWCP accepted appellant’s claim for right shoulder labral tear, right 

shoulder tendinitis, primary osteoarthritis of the first CMC joint of the right hand, and 

tenosynovitis of the right ankle and foot.

In an April 13, 2017 report, Dr. Lin noted appellant’s continued right shoulder and right 

CMC joint pain. He administered an injection to the right thumb CMC joint. 

On June 13, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. In support of his claim, he submitted an April 18, 2018 impairment rating by Dr. Peter 

Blumenthal, Board-certified in occupational medicine. Dr. Blumenthal noted a history of 

November 20, 2015 arthroscopic labral surgery of the right shoulder, reviewed a history of 

treatment, and noted findings on examination. He diagnosed status post arthroscopic labral surgery 

4 Appellant retired from the employing establishment in May2015.
3

of the right shoulder, adhesive capsulitis of the right shoulder, CMC arthritis of the right hand, and 

first metatarsophalangeal (MTP) joint arthritis of the right great toe. Referring to the sixth edition 

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

(A.M.A., Guides),

5 Dr. Blumenthal found 12 percent permanent impairment of the right upper 

extremity according to Table 15-5 (Shoulder Regional Grid: Upper Extremity Impairments), page 

403, 35 percent permanent impairment of the right thumb according to Table 15.2 (Digit Regional 

Grid: Digit Impairments), page 394, and 6 percent permanent impairment of the right foot 

according to Table 16.2 (Foot and Ankle Regional Grid -- Lower Extremity Impairments), page 

507.

On December 18, 2018 OWCP referred the case record, along with a statement of accepted 

facts (SOAF), and Dr. Blumenthal’s report to Dr. Arthur S. Harris, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), for a review and rating of appellant’s 

permanent impairment in accordance with the sixth edition of the A.M.A., Guides.

In a January 3, 2019 report, Dr. Harris reviewed the SOAF and the medical record, 

including the April 18, 2018 report of Dr. Blumenthal. Regarding the right shoulder, he utilized 

the diagnosis-based impairment (DBI) rating method to find a three percent permanent impairment 

of the right upper extremity for labral tear according to Table 15-5, a two percent permanent 

impairment of the right upper extremity due to digit impairment for degenerative joint disease 

according to Table 15-2, and a one percent permanent impairment of the right lower extremity for 

probable early arthritis of the first MTP joint according to Table 16-2. Dr. Harris noted that there 

was insufficient information to rate the right shoulder and right thumb impairments utilizing the 

range of motion (ROM) method, and that appellant did not meet the criteria necessary to rate the 

foot impairment utilizing the ROM method.

OWCP found a conflict of medical opinion evidence regarding the appropriate percentage 

of permanent impairment of the right upper and lower extremities. To resolve the conflict, it 

referred appellant, the medical record, and a SOAF to Dr. Ian B. Fries, a Board-certified 

orthopedic surgeon.

In a June 10, 2019 report, Dr. Fries reviewed the medical record and SOAF and noted 

findings of a May 20, 2019 examination. He noted that appellant exhibited cognitive impairment 

and could not complete intake forms or pain questionnaires. Regarding the right upper extremity,

Dr. Fries diagnosed adhesive capsulitis of the right shoulder, status post right shoulder arthroscopic 

synovectomy, and degenerative arthritis of the CMC joint of the right thumb. Referring to Figure 

15-30 (Shoulder External and Internal Rotation), page 476, of the A.M.A., Guides and Table 15-

35 (Range of Motion Grade Modifiers), page 477, he found three percent permanent impairment 

of the right upper extremity for flexion limited to 100 degrees, one percent permanent impairment 

for extension at 30 degrees, six percent permanent impairment for abduction at 35 degrees, and 

two percent permanent impairment for external rotation at 50 degrees. Dr. Fries calculated 13 

percent permanent impairment of the right upper extremity impairment utilizing the ROM method.

He used the DBI method to find that, under Table 15-5 (Shoulder Regional Grid: Upper Extremity 

Impairments), page 405, the class of diagnosis (CDX)for post-traumatic degenerative joint disease 

resulted in a class 1 impairment, with a grade modifier for functional history (GMFH) of 2, a grade 

5 A.M.A., Guides(6th ed. 2009). 
4

modifier for physical examination (GMPE) of 3, and a grade modifier for clinical studies 

adjustment (GMCS) of 2. Applying the net adjustment formula of (GMFH - CDX) + (GMPE -

CDX) + (GMCS - CDX), or (2-1) + (3-1) + (2-1), resulted in a net modifier of 5,raising the default 

CDX grade upward to equal nine percent permanent impairment of the right upper extremity. 

Regarding the right thumb, Dr. Fries found a Class 1 DBI impairment for post-traumatic 

degenerative joint disease of the right thumb according to Table 15-2, page 392. He calculated a 

GMFH of 2, GMPE of 2, and GMCS of 2. Application of the net adjustment formula, or (2-2) + 

(2-2) + (2-2), resulted in a net adjustment of zero, leaving the default CDX undisturbed, to equal 

six percent permanent impairment of the left upper extremity. Dr. Fries opined that appellant had 

a final right upper extremity permanent impairment rating of 13 percent as right shoulder 

permanent impairment using the ROM method is higher than using the DBI method, and higher 

than the right thumb impairment. He found no ratable permanent impairment of the right lower 

extremity. Dr. Fries opined that there were no objective findings on examination to support 

appellant’s complaints of right forefoot pain. He noted, however, that he had not been provided 

contemporary medical records of treatment for the right foot although the medical record indicated 

that appellant had been treated by a podiatrist on three occasions.

In a July 16, 2019 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as an OWCP DMA, found that the right thumb impairment should not be excluded from 

the right upper extremity impairment rating. He requested that OWCP obtain a supplemental 

report from Dr. Fries to allow him to correct the issue and include the right thumb impairment in 

the right upper extremity impairment rating. 

OWCP obtained an August 5, 2019 supplemental report from Dr. Fries, in which he 

affirmed his exclusion of the right thumb impairment from the right upper extremity rating as page 

387 of the A.M.A., Guides provided that the rating process should be repeated for “each separate 

diagnosis and each limb involved. In most cases, only one diagnosis would be appropriate.”

Dr. Fries also requested that OWCP advise him in writing if it had a different interpretation of the 

A.M.A., Guides. In that case, he would provide a calculation including permanent impairment of 

the right thumb. Using the Combined Values Chart at page 604 of the A.M.A., Guides, Dr. Fries 

determined that the combined 13 and 6 percent permanent impairment ratings of the right upper 

extremity would result in a total of 18 percent permanent impairment of the right upper extremity. 

He requested that, for any future ratings, OWCP provide an official methodology clarifying 

whether multiple impairments affecting one extremity should be combined. 

In a September 3, 2019 report, Dr. Katz opined that appellant had attained maximum 

medical improvement (MMI) as of May 20, 2019. He noted that Dr. Fries correctly excluded the 

right thumb impairment based on page 387 of the A.M.A., Guides. Dr. Katz found 13 percent 

permanent impairment of the right upper extremity and 0 percent permanent impairment of the 

right lower extremity.

By decision dated September 25, 2019, OWCP granted appellant a schedule award for 13 

percent permanent impairment of the right upper extremity. It found that he had not established 

permanent impairment of the right lower extremity. The period of the award ran for 40.56 weeks,

from May 20, 2019 through February 27, 2020.

On October 16, 2019 appellant, through his representative, requested an oral hearing before 

a representative of OWCP’s Branch of Hearings and Review. He later modified his request to a 
5

request for a review of the written record. Appellant’s representative asserted that neitherDr. Fries 

nor Dr. Katz provided adequate rationale for excluding right thumb impairment from the overall 

impairment rating of the right upper extremity. He noted thatDr. Katz recommended that Dr. Fries 

correct his opinion to include right thumb impairment as an element of the right upper extremity 

rating. Appellant’s representative contended that page 387 of the A.M.A., Guides pertained to two 

diagnoses in the shoulder and not to two diagnoses in different regions of the upper extremity as 

in appellant’s case. He asserted that according to Table 2-1 (Fundamental Principles of the 

Guides), page 20, of the A.M.A., Guides, “[a]ll regional impairments in the same organ or body 

system shall be combined as prescribed” by the rule. Appellant’s representative also asserted that 

rotator cuff and thumb impairments should be combined according to Example 15-26 (Multiple 

Upper Extremity Impairments), page 478, and Figure 15-31 (Upper Extremity Impairment 

Evaluation Example), page 480, of the A.M.A., Guides. Additionally, he contended that OWCP’s 

procedures at Chapter 3.0700.3.a.36 directed inclusion of multiple impairments of the same 

member or function of the body.

By decision dated January 24, 2020, OWCP’s hearing representative affirmed the 

September 25, 2019 schedule award determination, finding that Dr. Fries’ opinion represented the 

special weight of the medical evidence as he served as the impartial medical examiner in the case. 

The hearing representative further found that the arguments of appellant’s representative were 

irrelevant as they did not constitute medical evidence. 

LEGAL PRECEDENT

The schedule award provisions 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. 7 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.8 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides(2009).9 The Board has approved the use 

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.10

6 Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Determining Schedule Awards,Chapter 

3.700.3.a.3 (January 2010).

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

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

(January2010); see alsoat Chapter 2.808.5a (March 2017).

10 J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).
6

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health: A Contemporary Model of Disablement.

11

 In addressing upper extremity 

impairments, the sixth edition requires identification of the impairment CDX condition, which is 

then adjusted by grade modifiers or GMFH, GMPE, and GMCS.12 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 Evaluators are directed to provide reasons 

for their impairment choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.14

The A.M.A., Guides also provide that the 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.15 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.16 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.17

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.18 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:

“[A]s 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 

11 Supra note 6 at p.3, section 1.3.

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

13 Id. at 411.

14 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011).

15 Supra note 6 at 461.

16 Id. at 473.

17 Id. at 474.

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

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

rating should be used.”

19

 (Emphasis in the original.)

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.”

Section 8123(a) of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician who shall make an examination.20 When there are opposing reports 

of virtually equal weight and rationale, the case must be referred to an impartial medical examiner 

(IME), pursuant to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 21 

Where a case is referred to an IME for the purpose of resolving a conflict, the opinion of such 

specialist, if sufficiently well rationalized and based on a proper factual and medical background, 

must be given special weight.22

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.23

ANALYSIS

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

In an August 5, 2019 supplemental report, Dr. Fries indicated that he was uncertain as to 

how to apply the A.M.A., Guides methodology for combining multiple impairments affecting one 

extremity. He offered that, if OWCP allowed inclusion of right thumb impairment, appellant 

would have 18 percent permanent impairment of the right upper extremity, and if not, appellant 

had 13 percent permanent impairment of the right upper extremity. 

On September 3, 2019 Dr. Katz reviewed Dr. Fries’ supplemental report and opined that

Dr. Fries correctly excluded permanent impairment of the right thumb. The Board notes, however, 

that Dr. Fries offered two impairment rating calculations, one which included permanent 

impairment of the right thumb, and one that excluded permanent impairment of the right thumb. 

19 Id.

20 5 U.S.C. § 8123(a). See R.C.,Docket No. 18-0463 (issued February 7, 2020); see also G.B.,Docket No. 16- 0996 

(issued September 14, 2016).

21 See M.R.,Docket No. 19-0526 (issued July 24, 2019); C.R.,Docket No. 18-1285 (issued February 12, 2019).

22 V.H., Docket No. 20-0012 (issued November 5, 2020).

23 Supra note 11 at Chapter 2.808.6(f) (March 2017).
8

Additionally, Dr. Katz did not provide medical rationale to explain why he altered his July 16, 

2019 opinion that appellant’s right thumb permanent impairment must be included in rating 

permanent impairment of the right upper extremity.24 OWCP subsequently issued the 

September 25, 2019 schedule award, affirmed on January 24, 2020, which excluded permanent 

impairment of the right thumb from the right upper extremity impairment rating, based on

Dr. Fries’ opinion as the special weight of the medical evidence, as reviewed by Dr. Katz.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done. 25 Once 

it undertakes development of the record, it must do a complete job in procuring medical evidence 

that will resolve the relevant issues in the case.26

In a situation where OWCP secures an opinion from an IME for the purpose of resolving 

a conflict in the medical evidence and the opinion from such examiner requires clarification or 

elaboration, it has the responsibility to secure a supplemental report from the examiner for the 

purpose of correcting the defect in the original opinion.27

The Board finds that Dr. Fries’ opinion requires further clarification, supported by medical 

rationale, as to whether appellant’s right thumb condition should be included in rating permanent 

impairment of the right upper extremity, and whether appellant has any permanent impairment of 

the right lower extremity. As OWCP did not obtain a sufficiently rationalized medical opinion

resolving the conflict on these issues, this case must be remanded for further development of his 

opinion.

On remand OWCP shall refer appellant along with an updated SOAF and the medical 

record to a new IME for an opinion as to whether CMC arthritis of the right thumb should be 

included in determining the appropriate percentage of permanent impairment of the right upper 

extremity, and whether appellant has any permanent impairment of the right lower extremity.

Following this and other such further development as deemed necessary, it shall issue a de novo

decision.

CONCLUSION

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

24 Id.

25 See L.B., Docket No. 19-0432 (issued July 23, 2019); WilliamJ. Cantrell, 34 ECAB 1223 (1983).

26 Id.; see also C.F., Docket No. 21-0003 (issued January 21, 2022); S.A., Docket No. 18-1024 (issued 

March 12, 2020).

27 C.F., id.; S.R., Docket No. 17-1118 (issued April5, 2018); Nancy Lackner (JackD. Lackner), 40 ECAB 232, 

238 (1988).
9

ORDER

IT IS HEREBY ORDERED THAT the January 24, 2020 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: December 9, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board