United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.G., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

Chula Vista, CA, Employer

__________________________________________

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Docket No. 18-1314

Issued: January 11, 2019

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 20, 2018 appellant, through counsel, filed a timely appeal from a May 3, 2018 

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.

 

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 more than six 

percent permanent impairment of his left upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On January 26, 2012 appellant, then a 50-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that, on January 18, 2012, he injured his left thumb while 

engaging in firearm qualification activities. OWCP assigned the claim File No. xxxxxx781. It

accepted appellant’s claim for left hand sprain/strain and open wound of left hand (except fingers)

without complications. Appellant did not stop work for this injury. 

The case record reveals that, under a separate claim, OWCP accepted that appellant 

sustained left shoulder impingement syndrome, left shoulder/upper arm contusion, and left 

shoulder tenosynovitis. OWCP assigned the claim File No. xxxxxx966. Under that claim, it

granted appellant a schedule award on May 29, 2008 for six percent permanent impairment under 

the standards of the fifth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).3 The award ran for 18.72 weeks from March 13 to 

July 22, 2008 and was based on a May 15, 2008 assessment of Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon who served as a district medical adviser (DMA) for OWCP.4

 OWCP 

administratively combined File Nos. xxxxxx781 and File No. xxxxxx966, with case File No. 

xxxxxx966 designated as the master file.

On March 23, 2012 Dr. Lindy O’Leary, an attending occupational medicine physician, 

indicated that appellant’s left thumb condition was permanent and stationary and she advised that 

appellant could perform his regular work.

On December 10, 2012 appellant filed a claim for compensation (Form CA-7) seeking an 

increased schedule award due to his accepted employment injuries.

In January 2013 OWCP referred appellant for a second opinion examination to

Dr. William P. Curran, a Board-certified orthopedic surgeon. It requested that Dr. Curran evaluate 

the nature and extent of the permanent impairment of appellant’s left upper extremity under the 

standards of the sixth edition of the A.M.A., Guides.

5

In a January 23, 2013 report, Dr. Curran determined that appellant had zero percent 

permanent impairment of his left upper extremity under the sixth edition of the A.M.A., Guides 

due to residuals of his left thumb injury. He applied the diagnosis-based impairment (DBI) method 

 

3 A.M.A., Guides (5th ed. 2001).

4 Dr. Harris evaluated the permanent impairment of appellant’s left upper extremity that was related to his accepted 

left shoulder conditions.

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

of rating appellant’s permanent impairment. On August 1, 2013 Dr. Ellen Pichey, a Boardcertified occupational medicine physician serving as a DMA, agreed with Dr. Curran’s assessment. 

By decision dated August 8, 2013, OWCP denied appellant’s claim for an increased 

schedule award, finding that appellant had not established more than six percent permanent 

impairment of his left upper extremity, for which he previously received a schedule award.

On September 26, 2016 appellant filed a claim for compensation (Form CA-7) seeking an

increased schedule award due to his accepted employment injuries.

Appellant submitted a January 6, 2017 report from Dr. Julie Ohayon, a Board-certified 

orthopedic surgeon, who found that appellant had one percent permanent impairment of his left 

upper extremity under the standards of the sixth edition of the A.M.A., Guides. Dr. Ohayon used 

the DBI method of rating permanent impairment. 

By decision dated March 27, 2017, OWCP denied appellant’s claim for an increased 

schedule award, finding that appellant had not established more than six percent permanent 

impairment of his left upper extremity, for which he previously received a schedule award.

On April 10, 2017 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. Prior to a hearing being held, OWCP’s 

hearing representative issued an August 9, 2017 decision remanding the case to OWCP for further 

development, including referral to a DMA for a permanent impairment evaluation which 

considered all of appellant’s accepted left upper extremity conditions. 

On remand, OWCP referred appellant’s case to Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving in his capacity as a DMA.

In an August 24, 2017 report, Dr. Katz indicated that he had reviewed the relevant medical 

evidence of record, including the examination findings of Dr. Ohayon. He noted that he was 

applying the DBI method of evaluating permanent impairment under the sixth edition of the 

A.M.A., Guides. Per Table 15-2 (Digit Regional Grid) on page 391, appellant’s diagnosed left 

thumb condition (healed minor soft tissue injury) fell under the class 1 default value of four percent 

permanent impairment of the left thumb. Dr. Katz determined that appellant had a functional 

history grade modifier of 0, physical examination grade modifier of 1, and clinical studies grade 

modifier of 0. Application of the net adjustment formula on page 411 required movement two 

spaces to the left of the default value on Table 15-2, thus yielding a value of two percent permanent 

impairment of the left thumb. Under Table 15-12 on page 421, the two percent permanent 

impairment of the left thumb converted to one percent permanent impairment of the left upper 

extremity. Dr. Katz indicated that he could not perform a permanent impairment evaluation of 

appellant’s permanent impairment under the range of motion (ROM) method because the record 

did not currently contain range of motion findings for the left thumb which had been obtained in 

accordance with the strictures of the sixth edition of the A.M.A., Guides. He concluded that 

appellant had one percent permanent impairment of his left upper extremity under the DBI method 

of evaluating permanent impairment. Therefore, appellant did not have more than six percent 

permanent impairment of his left upper extremity, as had been granted by schedule award dated 

May 29, 2008.
4

By decision dated August 30, 2017, OWCP denied appellant’s claim for an increased 

schedule award. It based this determination on the opinion of Dr. Katz, noting that he had found 

that appellant did not have more than six percent permanent impairment of the left upper extremity, 

as had been granted by schedule award dated May 29, 2008.

On September 8, 2017 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review. During the hearing held on 

February 16, 2018, counsel expressed his disagreement with OWCP’s August 30, 2017 decision 

and noted that appellant’s prior schedule award was for permanent impairment of the left upper 

extremity related to his left shoulder conditions, rather than those related to the left thumb.

By decision dated May 3, 2018, OWCP’s hearing representative affirmed OWCP’s 

August 30, 2017 decision, noting that appellant had not established more than six percent 

permanent impairment of his left upper extremity, for which he previously received a schedule 

award.

LEGAL PRECEDENT

The schedule award provisions of FECA,6and its implementing federal regulation,7set 

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.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

The sixth edition requires identifying the impairment class for the class of diagnosis 

(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS).10 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).11

Section 15.2e of the sixth edition of the A.M.A., Guides indicates that it is not uncommon 

for several diagnosed conditions to be present simultaneously in the upper extremity, and provides 

that the evaluator is expected to choose the most significant diagnosis and to rate only that 

diagnosis using the DBI rating method.12

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

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

11 Id. at 521.

12 See A.M.A., Guides 390, section 15.2e.
5

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.,] 

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.)13

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.

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,] 

Guides, that ROM is not permitted as an alternative rating method for the diagnosis 

in question.

“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.”

14

FECA Bulletin No. 17-06 further provides that, 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 

 

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

14 Id.
6

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. Upon receipt 

of such a report, and if the impairment evaluation was provided from the claimant’s physician, the 

CE should write to the claimant advising of the medical evidence necessary to complete the 

impairment assessment and provide 30 days for submission. Any evidence received in response 

should then be routed back to the DMA for a final determination. Should no evidence be received 

within 30 days of the date of the CE’s letter, the CE should proceed with a referral for a second 

opinion medical evaluation to obtain the medical evidence necessary to complete the rating. After 

receipt of the second opinion physician’s evaluation, the CE should route that report to the DMA 

for a final determination.15

ANALYSIS

The Board finds that this 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.16 

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

justice under the law to all claimants.17 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 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 claims examiner.

18

In August 2017, Dr. Katz, the DMA, indicated that he had reviewed the reports of

Dr. Ohayon, the attending physician, and determined that appellant had one percent permanent 

impairment of his left upper extremity due to his left thumb condition, as calculated under the DBI 

rating method. Since he provided a rating using the DBI rating method, Dr. Katz was required to 

independently calculate appellant’s permanent impairment using both the DBI and ROM methods 

and identify the higher rating for the claims examiner.19 He indicated that the record did not 

 

15 Id.

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

17 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

18 See supra note 16.

19 See supra note 13.
7

contain adequate range of motion findings to conduct a permanent impairment rating under the 

ROM method. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for 

obtaining sufficient evidence to conduct a complete permanent impairment evaluation, including 

referral for a second opinion evaluation in some cases. However, such instructions were not 

carried out in the present case. Therefore, this case requires further development of the medical 

evidence in accordance with FECA Bulletin No. 17-06.20

This case will therefore be remanded for application of FECA Bulletin No. 17-06, to

include consideration of all of appellant’s accepted conditions relating to the left upper extremity, 

i.e., all of the accepted conditions of the left thumb and left shoulder/upper arm. After such further 

development of the medical evidence 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 May 3, 2018 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further action consistent with 

this decision.

Issued: January 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 Id.