United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

Q.N., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS AND BORDER PROTECTION, 

U.S. BORDER PATROL, Yuma, AZ, Employer

__________________________________________

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Docket No. 23-0636

Issued: October 31, 2023

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 27, 2023 appellant, through counsel, filed a timely appeal from a March 8, 2023

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 permanent 

impairment of a scheduled member or function of the body, warranting a schedule award .

FACTUAL HISTORY

On July 21, 2020 appellant, then a 43-year-old criminal investigator, filed a traumatic 

injury claim (Form CA-1) alleging that on July 17, 2020 he injured his right elbow and left thumb 

when he fell during an investigation while in the performance of duty.

3

 He did not stop work.

OWCP accepted the claim for right elbow strain and traumatic rupture of the left thumb ligament.

In a medical report dated October 4, 2021, Dr. Leber, a Board-certified orthopedic and 

hand surgeon, noted that appellant had reached maximum medical improvement (MMI) and had 

returned to work without restrictions. On physical examination of the left thumb, he documented 

flexion and extension at the metacarpophalangeal (MCP) joint from 0 to 75 degrees with no gross 

instability. Dr. Leber reviewed x-rays, which revealed no arthritic changes or joint subluxation. 

His impression was status-post left thumb MCP radial collateral ligament repair. Dr. Leber

utilized Table 15-2 (Digit Regional Grid: Digit Impairments), page 392, of the sixth edition of the 

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

Guides)

4 and noted an impairment rating of four percent of the left upper extremity. 

On October 8, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a November 1, 2021 development letter, OWCP requested that appellantsubmit a report 

from his treating physician in accordance with the sixth edition of the A.M.A., Guides and provide 

the date that he reached MMI. It afforded him 30 days to submit additional medical evidence in 

support of his schedule award claim. 

In a letter dated November 2, 2021, Dr. Leber indicated that appellant had reached MMI 

as of October 4, 2021. He explained that the final rating of four percent of the left thumb was due 

to impairment from appellant’s left thumb MCP joint sprain/ligament tear with surgical repair. 

Dr. Leber reiterated that he relied upon Table 15-2, page 392, of the sixth edition of the A.M.A., 

Guides and that the rating was based upon appellant’s diagnosis and functional impairment relative 

to the injury, with no instability.

On January 27, 2022 OWCP routed Dr. Leber’s October 4 and November 2, 2021 reports, 

a statement of accepted facts (SOAF), and the case record, to Dr. Nathan Hammel, a Boardcertified orthopedic surgeon, serving as OWCP’s district medical adviser (DMA), for review and 

3 OWCP assigned the present claim OWCP File No. xxxxxx345. Appellant has previously accepted traumatic 

injury claims for a March11, 2011 right rotatorsyndrome and allied disorders and a November 12, 2019 right elbow 

injury, under OWCP File Nos. xxxxxx061 and xxxxxx070, respectively. OWCP has administratively combined

OWCP File Nos. xxxxxx061, xxxxxx070, and xxxxxx345 on August 2, 2022, with the latter serving as the master 

file.

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

evaluation of appellant’s permanent impairment of his “upper left thumb” pursuant to the A.M.A., 

Guides.

5

In a February 8, 2022 report, Dr. Hammel indicated his review of the SOAF and

Dr. Leber’s reports and that appellant had reached MMI on October 15, 2021. He noted that the 

most recent clinical examination documented tenderness and intermittent thumb pain after surgical 

repair and mild restriction in ROM. Utilizing the A.M.A., Guides, diagnosis-based impairment 

(DBI) rating method, Dr. Hammel referred to Table 15-2, page 392, and indicated the class of 

diagnosis (CDX) for thumb MCP sprain, with no instability, was a class zero impairment. He also 

utilized the ROM rating method and referenced Table 15-30, page 468, and determined that 

appellant had zero percent permanent impairment. Dr. Hammel reported that since the ROM and 

DBI rating methods provided an identical impairment rating, either model was appropriate for 

assigning impairment for the left thumb.

By decision dated March 10, 2022, OWCP denied appellant’s claim for a schedule award, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body due to his accepted employment injury. It found that 

the weight of the medical evidence regarding the percentage of permanent impairment rested with 

the DMA, Dr. Hammel.

On April 3, 2022 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 

By decision dated July 14, 2022, OWCP’s hearing representative affirmed the March 10, 

2022 decision. 

OWCP thereafter received an October 29, 2022 letter by Dr. Leber, who again indicated 

that appellant reached MMI on October 4, 2021.

On February 16, 2023 appellant, through counsel, requested reconsideration of OWCP’s 

July 14, 2022 decision. In support of his request, he submitted a February 2, 2023 impairment 

rating evaluation report from Dr. George T. Ricks, a family physician, who described the July 17, 

2020 employment injury and appellant’s subsequent surgery. Dr. Ricks noted appellant’s

complaints of mild pain in the left wrist/thumb and right elbow, which increased with activity. On 

physical examination of the right elbow, he observed no tenderness and full ROM. On physical 

examination of the left wrist and thumb, Dr. Ricks noted palpable tenderness, full range of motion 

with discomfortin the extreme ranges, reduced sensation in the left thumb, and weak left handgrip. 

He also reviewed diagnostic studies and noted that appellant’s QuickDASH score was 14.

Dr. Ricks diagnosed left radial collateral ligament rupture, status-post left thumb surgery, and right 

elbow sprain. He applied the sixth edition of the A.M.A., Guides and, regarding the right elbow,

found no permanent impairment. Regarding the “left wrist/thumb,” Dr. Ricks utilized the DBI 

rating method to find that, under Table 15-3 (Wrist Regional Grid), page 395, the CDX forruptured 

muscle/tendon, was a Class 1 impairment, grade C, with a default value of five percent. He

assigned a grade modifier for functional history (GMFH) of 0 based on a QuickDASH score of 14

and a grade modifier for physical examination (GMPE) of 1 for palpatory findings. Dr. Ricks

5

Id.
4

found a grade modifier for clinical studies (GMCS) of 1 for positive findings on the MRI scan of 

the left hand. He utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (0 - 1) 

+ (1 - 1) = -1, which resulted in a final permanent impairment rating of four percent of the left 

upper extremity. Dr. Ricks noted that the ROM method was not applicable, as appellant had no

ROM limitations of the left wrist and thumb other than discomfort reported at extreme ranges.

By decision dated March 8, 2023, OWCP denied modification of its July 14, 2022 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 

a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and 

the Board has concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment 

is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.9

It is the claimant’s burden of proof to establish permanent impairment of the scheduled 

member or function of the body as a result of an employment injury.10 OWCP procedures provide 

that, to support a schedule award, the file must contain competent medical evidence which shows 

that the impairment has reached a permanent and fixed state and indicates the date on which this 

occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized 

on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.

11

 

In addressing impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated.12 After a CDX is determined (including identification of a default grade value), the 

6

Supra note 2.

7

20 C.F.R. § 10.404.

8

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

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

2.808.5a (February 2022); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 

and Exhibit 1 (January 2010).

10 E.D., Docket No. 19-1562 (issued March 3, 2020); Edward Spohr, 54 ECAB 806, 810 (2003); TammyL. Meehan, 

53 ECAB 229 (2001).

11 Supra note 9 at Chapter 2.808.5 (February 2022).

12 M.D., Docket No. 20-0007 (issued May 13, 2020); T.T., Docket No. 18-1622 (issued May 14, 2019).
5

impairment class is then adjusted by grade modifiers based on a GMFH, GMPE, and/or GMCS.13 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

Regarding the application of ROM or DBI 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).”

15

The FECA Bulletin further advises:

“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.”

16

“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 impairment 

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

be used.” (Emphasis in the original.)17

The Bulletin further advises:

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

[A.M.A.,] Guides allows 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.”

18

Before the A.M.A., Guides can be utilized, a description of the impairment must be 

obtained from his or her physician. In obtaining medical evidence required for a schedule award, 

the evaluation made by the attending physician must include a description of the impairment 

13 A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

14 Id. at 411.

15 FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018).

16 Id.

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

18 Id.
6

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decrease in strength or disturbance 

of sensation, or other pertinent descriptions of the impairment. This description must be in 

sufficient detail so that the claims examiner and others reviewing the file will be able to clearly 

visualize the impairment with its resulting restrictions and limitations. 19

A claimant may seek increased schedule award compensation if the evidence establishes 

that he or she sustained an increased impairment causally related to an employment injury. 20

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

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.21

ANALYSIS

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

OWCP accepted appellant’s July 17, 2020 traumatic injury claim for a right elbow sprain 

and traumatic rupture of the left thumb ligament (traumatic rupture of left radial collateral 

ligament). By decisions dated March 10 and July 14, 2022, it denied his claim for schedule award 

compensation based upon the February 8, 2022 opinions of its DMA, Dr. Hammel. In support of 

his February 16, 2023 request for reconsideration of OWCP’s July 14, 2022 decision, appellant, 

through counsel, submitted a February 2, 2023 impairment rating report by Dr. Ricks. Utilizing 

Table 15-3, page 395, Dr. Ricks determined that under the DBI method, appellant had a four

percent permanent impairment of the left upper extremity for the “left wrist/thumb.” 

By decision dated March 8, 2023, OWCP denied modification of its July 14, 2022 decision. 

However, it did not refer appellant’s file, including Dr. Ricks’ February 2, 2023 report, back to its 

DMA for review and comment prior to issuing the March 8, 2023 decision. As noted above, 

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

be routed to OWCP’s DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.22

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

arbiter.23 While the claimant has the responsibility to establish entitlement to compensation, 

19 A.T., Docket No. 18-0864 (issued October 9, 2018).

20 R.A., Docket No. 19-1798 (issued November 4, 2020); Rose V. Ford, 55 ECAB 449 (2004).

21 See supra note 9 at Chapter 2.808.6f)(February2013). See alsoJ.T., Docket No. 17-1465 (issued September 25, 

2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).

22 Id.

23 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).
7

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

justice is done.24 As OWCP undertook development of the evidence by referring appellant to an 

DMA, it had an obligation to do a complete job and obtain a proper evaluation and report that 

would resolve the issue in this case.25

The Board will, therefore, remand this case for OWCP to route the file, including

Dr. Ricks’ February 2, 2023 report, to a DMA for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides and FECA Bulletin No. 17-06. 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.

ORDER

IT IS HEREBY ORDERED THAT the March 8, 2023 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: October 31, 2023

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

24 S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ. 

Cantrell, 34 ECAB 1233, 1237 (1983).

25 G.M., Docket No. 19-1931 (issued May 28, 2020); W.W., Docket No. 18-0093 (issued October 9, 2018).