United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

V.K., Appellant

and

U.S. POSTAL SERVICE, WEST CALDWELL 

POST OFFICE, West Caldwell, NJ, Employer

__________________________________________

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Docket No. 21-1006

Issued: September 25, 2023

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 22, 2021 appellant, through counsel, filed a timely appeal from a January 6, 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 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 her burden of proof to establish greater than six 

percent permanent impairment of her left upper extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

3

 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On May 26, 2015 appellant, then a 62-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on May 22, 2015 she injured her left wrist when she slipped and fell on a 

waxed floor while in the performance of duty. On July 10, 2015 OWCP accepted the claim for 

left distal radial fracture. On November 29, 2016 it expanded the acceptance of the claim to 

include left carpal tunnel syndrome (CTS).

4

In a September 10, 2018 report, Dr. Albert Johnson, a Board-certified orthopedic surgeon, 

noted appellant’s history of injury and medical treatment. He utilized the sixth edition of the 

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

Guides).5 Dr. Johnson diagnosed acute displacement fracture to the distal left radius; primary 

closed reduction internal fixation of the distal left radius with specialized distal radius plate; posttraumatic CTS, left wrist. For the left wrist, he noted that range of motion (ROM) was tested three 

times. He related appellant’s physical examination findings, but did not offer a rating based on 

ROM methodology. Dr. Johnson opined that appellant’s class of diagnosis (CDX) of left wrist 

fracture, was a Class 1 impairment for a default ofthree percent permanentimpairment. He applied 

grade modifiers based upon Table 15-3, page 396; Table 15-7, page 406; Table 15-8, page 408;

and Table 15-9, page 410 of the A.M.A., Guides. Dr. Johnson found a grade modifier for 

functional history (GMFH) of 2 and a grade modifier for physical examination (GMPE) of 2. He 

noted that a grade modifier for clinical studies (GMCS) was not applicable. After applying the 

adjustment formula, Dr. Johnson calculated that appellant had five percent left upper extremity 

permanent impairment due to the left wrist distal fracture.

For appellant’s left CTS, Dr. Johnson found entrapment neuropathy left median nerve at 

the wrist with a GMCS of 1, a GMFH of 3, and a GMPE of 3. He applied the adjustment formula 

and, utilizing Table 15-23, page 449, and Table 15-7, page 406, concluded that appellant had five

3 Docket No. 18-1005 (issued February 1, 2019).

4By decision dated April7, 2016, OWCP denied expansion of appellant’s claim to include a left shoulder condition. 

It thereafter continued to deny modification of that decision. On April18, 2018 appellant, through counsel, filed a 

timely appeal to the Board. By decision dated February1, 2019, the Board affirmed a December 20, 2017 OWCP 

decision denying modification, finding that appellant had not met her burden of proof to establish that the acceptance 

of her claim should be expanded to include a left shoulder condition causally related to the accepted May 22, 2015 

employment injury. Docket No. 18-1005 (issued February 1, 2019).

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

percent permanent impairment for the left CTS. Dr. Johnson also rated appellant’s left shoulder 

partial rotator cuff thickness tear and opined that appellant had 10 percent permanent impairment

for the left shoulder. He combined the 5 percent rating for the left distal radial fracture, the 5 

percent rating for the left CTS, and the 10 percent rating for the left shoulder, and opined that 

appellant had a total of 19 percent permanent impairment of her left upper extremity. Dr. Johnson

found that appellant reached maximum medical improvement (MMI) on September 10, 2018.

On October 30, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

On November 6, 2018 OWCP referred Dr. Johnson’s report to Dr. Morley Slutsky, Boardcertified in occupational medicine and the district medical adviser (DMA), for review and 

calculation of appellant’s permanent impairment.

In a December 11, 2018 report, Dr. Slutsky, the DMA, reviewed Dr. Johnson’s report. 

Dr. Slutsky opined that appellant had 3 percent permanent impairment for the left wrist distal 

fracture and 2 percent permanent impairment for the left CTS. He noted that for the left wrist, the 

diagnosis-based impairment (DBI) methodology was used for the diagnosis of left wrist fracture.

Dr. Slutsky explained that he also used a Class 1 for the CDX; however, he found net adjustment 

factors of 0; therefore, the impairment remained at the default value of 3 percent. He also noted 

that the ROM methodology resulted in 0 percent permanent impairment, therefore , the final 

impairment was based on the DBI methodology. Regarding the left CTS, the DMA noted that the

QuickDASH score was not performed and advised that “this should have been done as it is a 

mandatory part of rating compression neuropathies.” Dr. Slutsky explained that the GMFH was 1 

as appellant had mild findings, GMPE was 1 as appellant had atrophy of the median nerve and 

some thenar weakness, and the GMCS was 1 based on electromyography (EMG) studies. He 

found that the average adjustment factor was 1, which resulted in 2 percent permanent impairment 

for the left CTS. The DMA also provided an impairment rating for the left shoulder of 11 percent. 

He utilized the Combined Values Chart on page 604 of the A.M.A., Guides and opined that his 

ratings of 3 percent for the left wrist, 2 percent for the left CTS, and 11 percent for the left shoulder

resulted in a total of 16 percent left upper extremity permanent impairment. 

By letter dated January 4, 2019, OWCP requested that Dr. Johnson review and comment 

on the DMA’s report.

In a February 20, 2019 report, Dr. Johnson noted that he and Dr. Slutsky rated appellant 

for a left wrist fracture, entrapment neuropathy of the left median nerve, and ROM deficit for the 

left shoulder. He amended his rating for the left shoulder impairment to 11 percent and noted that 

he was in agreement with the DMA regarding the left shoulder rating.

Regarding the left wrist fracture, Dr. Johnson concurred with the DMA regarding a CDX 

of Class1; however, he disagreed with the applicable grade modifiers. He explained that the 

GMFH and GMCS were not applicable. Dr. Johnson concurred that the GMPE in Table 15-8, 

page 408 of the A.M.A., Guides, based on minimal findings without observed abnormalities, was 

equal to 1. However, he explained that appellant had undergone surgery to the left wrist and had 

a six-centimeter scar over the distal radius, which was in addition to the ROM deficit in palmar 

flexion and marked grip deficit, and that appellant’s GMPE would therefore be consistent with a 
4

grade modifier of 2. Dr. Johnson concluded that after net adjustment, due to a Class 1 left wrist 

fracture, the permanent impairment would equal four percent,rather than the three percent found

by the DMA.

Regarding the left CTS, Dr. Johnson concurred with the Dr. Slutsky regarding the CDX of 

Class 1; however, he disagreed with the GMFH and GMPE. He explained appellant’s complaints 

regarding the left wrist and hand which included pain and stiffness on a constant basis, swelling, 

numbness, and tingling in the left wrist, pins and needles sensation, awakening with the hand 

feeling asleep, and difficulty with self-care, such as bathing, dressing, styling her hair, household 

chores, lifting, grasping, gripping. Dr. Johnson referred to Table 15-23, page 449, and explained 

that her constant and daily symptoms would correlate to a GMFH of 3. In terms of the GMPE, he

noted that appellant had a decreased pinch strength, which would also qualify for a GMPE of 3 

according to Table 15-23, page 449, rather than a GMPE of 1, as noted by the DMA, which would 

correlate to normal physical examination findings. Dr. Johnson calculated appellant’s permanent 

impairment due to left CTS to be 5 percent and determined that the final combined left upper 

extremity permanent impairment rating was 18 percent, including his rating for appellant’s left 

shoulder. 

On March 18, 2019 OWCP referred Dr. Johnson’s February 20, 2019 report to Dr. Slutsky,

the DMA, for further review and calculation of appellant’s permanent impairment.

In April 8 and 21, 2019 reports, Dr. Slutsky, the DMA, disagreed with Dr. Johnson’s 

opinion. Regarding the left CTS, he noted that, according to page 433 of the A.M.A., Guides, a 

GMFH of 3 for constant symptoms meant that the pain or numbness was consistently present and 

at least a conduction block, if not axon loss, would be present on electrodiagnostic testing to 

substantiate the symptom severity. The DMA explained that there was no documentation that 

appellant was unable to perform at least one of the activities of daily living, or that someone else 

consistently performed the activity for the individual. He noted that appellant did not have axonal 

loss of conduction block and therefore opined that there was no basis for a GMFH of 3 for 

appellant’s symptoms. Regarding the GMPE, the DMA noted that appellant was assigned a GMPE

of 3 by Dr. Johnson; however, pinch strength was controlled by more than one nerve and was nonspecific, therefore, it was not used to rate CTS. He referred to page 446, of the A.M.A., Guides

and noted that appellant had normal two-point discrimination and monofilament testing and

atrophy was not found on the median nerve, which was equal to a GMPEof 0. The DMA explained 

that to qualify for GMPE of 3 by physical findings, there should be constant numbness and no 

protective sensation, two-point discrimination of 16 millimeters or greater for the median or ulnar 

nerve, and grade 3 or less motor function or a history of a surgical tendon transfer to restore 

function. He opined, “This is almost never seen in peripheral nerve entrapment. [Appellant] 

obviously does not meet this criteria and does not qualify for a GMPE of 3 for physical findings.” 

The DMA assigned a GMPE of 1 and explained that pinch strength deficits may be partially caused 

by the median nerve, which is 90 percent sensory, and without sensory findings, appellant did not 

have a higher score.

Regarding the left wrist fracture, the DMA explained that their opinions differed due to the 

GMPE. He explained that a 6-centimeter scar was consistent with a CDX of Class 1 and was 

assigned a GMPE of 1. The DMA noted that weakness was not used to assign a GMPE, per Table 

15-8, page 408. He noted no other objective deficits were documented and that appellant’s GMPE
5

was 1, therefore the final permanent impairment was 3 percent, as opposed to the 4 percent 

assigned by Dr. Johnson. The DMA combined the left wrist, left CTS, and left shoulder values 

pursuant to the Combined Values Chart, page 604 of the A.M.A., Guides, and concluded that 

appellant had a total of 16 percent left upper extremity permanent impairment (11 percent for the 

shoulder, combined with 3 percent for the wrist, and 2 percent for the CTS). 

On May 9, 2019 OWCP determined that a conflict existed in the medical opinion evidence 

between the treating physician, Dr. Johnson, and the DMA, Dr. Slutsky, regarding the extent of 

appellant’s permanent impairment. It referred appellant for an impartial medical examination with

Dr. Howard Pecker, a Board-certified orthopedic surgeon, to resolve the conflict.

In a June 24, 2019 report, Dr. Pecker, the impartial medical examiner (IME), opined that 

appellant had 3 percent permanent impairment for the left wrist fracture, 2 percent permanent 

impairment for the left CTS, and 1 percent permanent impairment for the left shoulder. Regarding 

the left wrist fracture, he noted that appellant had radial deviation of 20 degrees bilaterally, ulnar 

deviation of 30 degrees bilaterally, dorsiflexion of 80 degrees bilaterally, palmar flexion of 90 

degrees bilaterally, supination of 80 degrees bilaterally, pronation of 75 degrees bilaterally, and a 

well-healed longitudinal scar on the volar radial aspect of the left distal forearm and wrist. 

Dr. Pecker found discrete tenderness with palpation of the thumb and trapeziometacarpal joint, 

negative Tinel’s; negative Phalen’s, normal interosseous strength with intermittent effort, and 5/5 

endpoint with distraction. He noted variable effort with grip testing with 5/5 endpoint and right 

left confusion during distraction and coaching, full strength in the thumb to small finger 

opposition, no wasting of the thenar eminence, no crepitance, full fist, and no locking or triggering.

Dr. Pecker also noted that appellant’s complaints of pain did not match the diagnosis, and her 

history could not be relied upon and should not be used as a determining factor. He indicated that 

measured ROM was equal to the opposite side and reports of pain in the thumb were not consistent 

with the sequela of open reduction internal fixation surgery, which invalidated the ROM method 

and favored the DMA’s DBI evaluation.

Regarding the left CTS, Dr. Pecker agreed with the DMA that the DBI method should be 

used as he found that appellant was unreliable and gave a variable history that did not coincide 

with her physical findings. He also noted that the findings on an EMG scan were “just barely in 

favor of [CTS] and are within the measurement error for a normal median nerve.” Dr. Pecker 

found no evidence of loss of grip strength as appellant had right/left confusion during testing, 5/5 

endpoint with distractions, and intermittent effort with interosseous motion, not related to the 

median nerve.

Regarding the left shoulder, Dr. Pecker indicated that during his physical examination, 

appellant’s left shoulder movement measurement was variable in four separate attempts. He noted 

that appellant would only allow her shoulder to be brought to 45 degrees forward elevation, but on 

distraction and examination of other parts of the body, she would elevate her shoulder to 125 

degrees. Dr. Pecker utilized the DBI methodology and found that GMFH was unreliable, GMPE 

was 0, and GMCS was 1 for mild pathology. He applied the net adjustment formula and concluded 

that appellant had one percent permanent impairment of the left shoulder. 

In a letter dated November 14, 2019, OWCP requested that Dr. Pecker clarify his

permanent impairment rating for the left upper extremity and the date of MMI. 
6

OWCP received a copy of Dr. Pecker’s June 24, 2019 report, which was amended to 

include June 24, 2019 as appellant’s date of MMI.

By decision dated December 3, 2019, OWCP granted appellant a schedule award for six 

percent impairment of the left upper extremity and explained that the opinion of the IME was given 

special weight. The period of the award ran from June 24 to November 2, 2019.

On December 9, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on April 6, 2020.

In a May 8, 2020 report, Dr. Johnson noted that he had reviewed the reports from the DMA 

and the IME. He advised that his opinion had not changed, and that appellant sustained a left 

upper extremity permanent impairment of 18 percent. Dr. Johnson also noted that the IME’srating 

of 2 percent for the left CTS did not document how the impairment was rated pursuant to Table

15-23.

By decision dated June 16, 2020, OWCP’s hearing representative vacated the December 3, 

2019 decision. She specifically noted that Dr. Pecker did not indicate that ROM was measured 

more than once and that his ROM rating did not meet the criteria set forth in the A.M.A., Guides

for an ROM rating. The hearing representative noted that OWCP should seek further medical 

review by the DMA, any needed clarification from the IME regarding his impairment evaluation,

and a reexamination, if necessary.

In a June 26, 2020, report, Dr. Slutsky, the DMA, noted that the IME, Dr. Pecker,reviewed 

and documented the pertinent history and diagnostic reports and performed a focused physical 

examination addressing the accepted conditions of the claim. The DMA related that as the IME,

Dr. Pecker was entitled to his opinion that the shoulder examination for ROM was unreliable as 

well as appellant’s functional history, and that he had provided adequate justification for his 

opinion. He noted that Dr. Pecker did not provide a detailed calculation of his impairments for the 

wrist fracture, using Table 15-3, or his calculation of impairment for the left CTS using Table 

15-23. The DMA advised that the Dr. Pecker should be contacted and offered the opportunity to 

submit a corrective supplemental report to justify his determination of three percent for the left 

wrist fracture and two percent for the left CTS.

In a letter dated July 2, 2020, OWCP requested that Dr. Pecker clarify his report. 

In a July 7, 2020 supplemental report, Dr. Pecker reiterated his opinion that appellant had 

three percent permanent impairment due to the left wrist fracture diagnosis, and two percent

permanent impairment due to the left CTS diagnosis. He referred to Table 15-3, page 396 for the 

CDX of left wrist fracture and provided a Class 1. The IME explained that a GMFH could not be 

used because appellant was an unreliable historian, the GMPE was 0 as there were no consistent 

findings, and a GMCS of 2 was based on a confirmed diagnosis with moderate pathology. He 

used the net adjustment formula and found 3 percent left wrist permanent impairment due to left 

wrist fracture. For the left CTS, Dr. Pecker referred to Table 15-23, page 449, for entrapment 

neuropathy impairment, noted a GMCS of 1 for conduction delay sensory/motor delay and a 

GMPE of 0 for physical findings. He noted that a GMFH could not be rated due to unreliable 
7

history. Dr. Pecker used the net adjustment formula and found two percent permanent impairment 

due to appellant’s left CTS.

On July 9, 2020 OWCP referred Dr. Pecker’s report to Dr. Slutsky, the DMA, for review. 

In a July 22, 2020 report, Dr. Slutsky advised that he concurred with the IME that the total 

permanent impairment of appellant’s left upper extremity was six percent, including the 

impairment rating for the left shoulder. He indicated that the date of MMI was June 24, 2019, the 

date of Dr. Pecker’s examination. 

By de novo decision dated August 3, 2020, OWCP determined that appellant did not 

sustain greater than the six percent permanent impairment of the left upper extremity previously 

awarded. 

On August 11, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

November 12, 2020. 

By decision dated January 6, 2021, OWCP’s hearing representative affirmed the August 3, 

2020 decision, according the special weight of the medical evidence to the opinion of Dr. Pecker, 

the IME. 

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. 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

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.; see V.O., Docket No. 20-0287 (issued June 1, 2021); 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); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017).

10 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
8

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 (ICF): A Contemporary Model of Disablement.

11

 Under the sixth edition, the 

evaluator identifies the impairment CDX, which is then adjusted by a GMFH, GMPE, and/or

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

FECA Bulletin No. 17-06 provides guidance in applying ROM or DBI impairment 

methodologies in rating permanent impairment of the upper extremities. 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

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

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

appoint a third physician (known as a referee physician or IME) who shall make an examination.17 

This is called an impartial medical examination and OWCP will select a physician who is qualified 

in the appropriate specialty and who has no prior connection with the case. 18 When there exist 

opposing medical reports of virtually equal weight and rationale and the case is referred to an IME

11 A.M.A., Guides (6th ed. 2009), p.3, section 1.3.

12 Id. at 383-492.

13 Id. at 411.

14 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

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

16 Id.

17 5 U.S.C. § 8123(a); see C.S., Docket No. 20-1149 (issued September 8, 2021); R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009).

18 20 C.F.R. § 10.321.
9

for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well 

rationalized and based upon a proper factual background, must be given special weight.19

OWCP’s procedures provide that, if a case has been referred for a referee evaluation to 

resolve the issue of permanent impairment, it is appropriate for OWCP’s medical adviser to review 

the calculations to ensure the referee physician appropriately used the A.M.A., Guides. The 

procedures further note that the Board has held that, while an OWCP medical adviser may review 

the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the 

specialist’s responsibility. OWCP’s medical adviser cannot resolve a conflict in medical opinion.

If necessary, clarification by the referee examiner may be needed. 20

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than six 

percent permanent impairment of her left upper extremity, for which she has received schedule 

award compensation. 

OWCP found a conflict in the medical opinion evidence between Dr. Johnson, appellant’s 

treating physician, and Dr. Slutsky, the DMA, regarding the extent of her permanent impairment. 

It properly referred the case to an IME, Dr. Pecker, for resolution of the conflict between the ratings

of the treating physician and the DMA, pursuant to 5 U.S.C. § 8123(a).

In a June 24, 2019 report, Dr. Pecker concluded that appellant had three percent permanent 

impairment for the left wrist fracture, two percent permanent impairment for the left CTS, and one

percent permanent impairment for the left shoulder. Regarding the left wrist fracture, he noted

appellant’s physical examination findings, including her ROM of left wrist. Dr. Pecker noted 

variable effort with grip testing with 5/5 endpoint and right left confusion during distraction and 

coaching. He also noted that appellant’s complaints of pain did not match the diagnosis, and her 

history could not be relied upon and should not be used as a determining factor. Dr. Pecker 

indicated that measured ROM was equal to the opposite side and reports of pain in the thumb were 

not consistent with the sequela of open reduction internal fixation surgery, which invalidated the 

ROM method and favored the DMA’s evaluation under the DBI methodology. Regarding the left 

CTS, he agreed with the DMA that the DBI method should be used as he found that appellant was 

unreliable and gave a variable history that did not coincide with her physical findings. Dr. Pecker 

found no evidence of loss of grip strength as appellant had right/left confusion during testing, 5/5 

endpoint with distractions, and intermittent effort with interosseous motion, not related to the 

median nerve. Likewise, regarding the left shoulder, he indicated that during his physical 

examination, appellant’s left shoulder movement measurement was variable in four separate 

attempts. Dr. Pecker noted that appellant would only allow her shoulder to be brought to 45 

19 D.C., Docket No. 23-0455 (issued August 28, 2023); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001); James P. Roberts, 31 ECAB 1010 (1980).

20 See supra note 9 at Chapter 2.810.8g (September 2010); see S.P., Docket No. 20-0418 (issued February 19, 

2021); Richard R. LeMay, 56 ECAB 341 (2005); K.D., Docket No. 19-0281 (issued June 30, 2020).
10

degrees forward elevation, but on distraction and examination of other parts of the body, she would 

elevate her shoulder to 125 degrees.

In a June 26, 2020, report, Dr. Slutsky, the DMA, advised that Dr. Pecker should be asked 

to provide a supplemental report to justify his rating under the DBI methodology of three percent 

for the left wrist fracture and two percent for the left CTS. He advised that Dr. Pecker should 

provide his rating under Table 15-3 for the left wrist fracture and Table 15-23 for appellant’s left 

CTS. The DMA also related that Dr. Pecker had provided adequate justification for his opinion

regarding appellant’s left shoulder permanent impairment. 

In a July 7, 2020 supplemental report, Dr. Pecker reiterated his opinion that appellant had 

three percent permanent impairment due to the left wrist fracture diagnosis, and two percent 

permanent impairment due to the left CTS diagnosis. He properly referred to Table 15-3, page 

396 for the CDX of left wrist fracture and provided a Class 1. Dr. Pecker explained that a GMFH 

could not be used because appellant was an unreliable historian, the GMPE was 0 as there were no 

consistent findings, and a GMCS of 2 was based on a confirmed diagnosis with moderate 

pathology. He used the net adjustment formula and found three percent left wrist permanent 

impairment due to left wrist fracture. For the left CTS, Dr. Pecker properly referred to Table 15-

23, page 449, for entrapment neuropathy impairment, noted a GMCS of 1 for conduction delay 

sensory/ motor delay and a GMPE of 0 for physical findings. He noted that a GMFH could not be 

rated due to unreliable history. Dr. Pecker used the net adjustment formula and found 2 percent 

permanent impairment due to appellant’s left CTS. 

The Board finds that the special weight of the evidence is represented by the wellrationalized opinion of Dr. Pecker, the IME selected to resolve the conflict in medical opinion.21

 

In his reports he provided rationale for his opinion that appellant’s permanent impairment of the 

left upper extremity could not be rated using the ROM methodology due to appellant’s inconsistent 

examination measurements. The Board finds that Dr. Pecker properly utilized the A.M.A., Guides

to rate appellant’s permanent impairment based on the DBI methodology. His opinion thus 

represents the special weight of the evidence and establishes that appellant had no greater than six 

percent permanent impairment of the left upper extremity.

22

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established that she has greater than six percent 

permanent impairment of the left upper extremity, for which she previously received a schedule 

award.

21 R.P., Docket No. 19-0057 (issued May 16, 2019).

22 A.M., Docket No. 18-1243 (issued October 7, 2019).
11

ORDER

IT IS HEREBY ORDERED THAT the January 6, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 25, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board