United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Pittsburgh, PA, 

Employer

__________________________________________

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Docket No. 21-0306

Issued: August 21, 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

JANICE B. ASKIN, Judge

JURISDICTION

On December 29, 2020 appellant, through counsel, filed a timely appeal from a 

November 30, 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. 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.
2

ISSUE

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

percent permanent impairment of the right upper extremity (RUE), for which he previously 

received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision and order are incorporated herein by reference. The relevant facts 

are as follows.

On December 14, 2015 appellant, then a 32-year-old casual mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his right index finger that same day while in the 

performance of duty. He was assembling a two-shelf all-purpose container when one of the shelves 

dislodged and slammed down on his right index finger. On the reverse side of the claim form, the 

employing establishment indicated that appellant stopped work on December 14, 2015. On 

February 18, 2016 OWCP accepted his claim for traumatic rupture of the right ulnar collateral 

ligament. Effective January 9, 2016, it paid appellant wage-loss compensation for temporary total 

disability on the supplemental rolls. 

On June 16, 2017 OWCP referred appellant to Dr. MichaelJ. Rytel, a Board-certified 

orthopedic surgeon. In a report dated July 13, 2017, Dr. Rytel examined appellant’s right upper 

extremity and observed tenderness over the second and third digits from the tips of appellant’s

fingers to the palm, exclusively on the palmar side of the fingers and hand. Appellant’s active 

range of motion (ROM) of the second and third fingers was diminished approximately 50 percent 

due to pain, with 20 percent of passive flexion diminished due to pain. The right upper extremity 

was otherwise normal. Dr. Rytel noted that, while the accepted condition under this claim was a 

traumatic rupture of the right-hand index finger ulnar collateral ligament, appellant had not 

ruptured the ligament nor any tendons as indicated on the initial examination, as that diagnosis 

was based on tenderness to palpation and reported pain to stress of the ulnar collateral ligament, 

initial x-ray evaluation showed no fracture or dislocation. He noted that nonetheless, traumatic 

rupture of the right-hand index finger ulnar collateral ligament was the only diagnosis falling 

within the statement of accepted facts (SOAF). In answering the questions posed by OWCP,

Dr. Rytel found that there were no objective residuals of appellant’s accepted condition and no 

objective findings supporting a diagnosis of type 1 complex regional pain syndrome. He noted 

that as appellant’s physical limitations were related to subjective complaints, appellantwas capable 

of performing the position he had held at the time of injury. Dr. Rytel listed current diagnoses 

related to the work injury as finger contusion, ulnar collateral ligament sprain, and chronic pain.

On May 2, 2018 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated June 12, 2018, OWCP informed appellant that he had not 

submitted sufficient medical evidence in support of his schedule award claim. It requested that he 

3 Order Remanding Case, Docket No. 19-1737 (issued April 7, 2020); Docket No. 19-1091 (issued 

December 3, 2019).
3

submit a detailed narrative report from his treating physician, including the physician’s opinion as 

to the date of maximum medical improvement (MMI), the diagnosis upon which the impairment 

rating was based, a detailed description of any preexisting permanent impairment of the same 

member or function, and a final rating of the permanent impairment and a discussion of the 

rationale for calculation of the impairment, with reference to the applicable criteria and tables in 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).

4

 OWCP afforded appellant 30 days to submit the requested 

medical evidence. 

In a report dated June 16, 2018, Dr. Robert W. Macht, a general surgeon, reviewed 

appellant’s history of injury and the medical record, noting that x-rays of his right hand were 

unremarkable for fracture or subluxation. On physical examination, he observed pain with motion 

of the right index finger and middle fingers. ROM of appellant’s hand and wrist were intact, with 

tenderness to palpation about the proximal interphalangeal joint. He had pain with resistance 

against active motion of the right index finger with mild weakness of that finger and his right-hand

grip, along with pain on squeezing, and no laxity of the joints of his index or middle fingers. 

Dr. Macht diagnosed a traumatic injury of the right ulnar collateral ligament. He reported that 

appellant’s QuickDASH score was 66. Referring to Table 15-7, page 406, of the sixth edition of 

the A.M.A., Guides, Dr. Macht advised that this score would constitute a grade modifier for 

functional history (GMFH) of 3. Referring to Table 15-8, page 408, he found that appellant’s 

minimal palpatory findings consistently documented without observed abnormalities would 

constitute a grade modifier for physical examination (GMPE) of 1. Referring to Table 15-2, page 

393, Dr. Macht noted that there was an ulnar collateral ligament injury of the proximal 

interphalangeal (PIP) joint of the index finger, Class 1. He noted that as the (GMFH was 2 higher, 

the default position was selected. Dr. Macht stated that, as the physical examination was the same 

Class as the impairment, a rating of 10 percent impairment of the right index finger was assigned 

per Table 15-2. Referring to Table 15-12, page 421, he observed that 10 percent impairment of 

the index finger translated to 2 percent permanent impairment of the RUE. Dr. Macht stated that 

appellant reached MMI by September 25, 2017. 

On July 10, 2018 OWCP requested additional information from Dr. Rytel. In an addendum 

report dated August 22, 2018, Dr. Rytel observed that appellant’s chronic pain condition was 

subjective in nature and did not present objective symptoms, and that as such, it could not be 

attributed to the December 14, 2015 incident. 

On September 10, 2018 OWCP referred appellant’s case to Dr. Jovito Estaris, a physician 

Board-certified in occupational medicine serving as a district medical adviser (DMA). It requested 

that Dr. Estaris evaluate appellant’s RUE permanent impairment under the sixth edition A.M.A. 

Guides. In a report dated September 16, 2018, the DMA reviewed the medical record, including 

the evaluation of Dr. Macht. He assessed appellant’s impairment using the diagnosis-based 

impairment (DBI) and ROM methods and identified the higher rating as DBI, because appellant 

had full ROM of the index finger according to Dr. Macht’s examination. Referring to Table 15-2, 

page 392, of the sixth edition A.M.A., Guides, the DMA noted a diagnosis of ulnar collateral

ligament injury of the right index finger, utilizing a DBI of sprain/strain, which was Class 1

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

impairment with a default value of 6 due to residual pain with normal motion. Referring to Table 

15-7, page 406, he assigned a GMFH of 3 due to appellant’s QuickDASH score of 66, along with 

right hand and index finger pain. Referring to Table 15-8, page 408, the DMA assigned a GMPE 

of 1 due to tenderness over the PIP joint of the right index finger with normal ROM and no atrophy. 

A grade modifier for clinical studies (GMCS) was not used, as there was no clinical study of record 

to support ulnar collateral ligament injury or strain. The DMA noted that the GMFH was 2 grades 

more than the GMPE and that the report was deemed unreliable, and so it was not used in the 

grading process. Referring to page 406 of the sixth edition of the A.M.A., Guides, he calculated 

that there was no net adjustment due to grade modifiers, resulting in a six percent digit impairment 

rating. Using Table 15-12, page 421, the DMA converted this six percent digit impairment of the 

index finger to a one percent permanent impairment rating of the RUE. He explained that the 

discrepancy between his and Dr. Macht’s impairment ratings were due to the use of different DBI

diagnoses. Dr. Macht chose the DBI of joint dislocation or sprain, but the criteria for a Class 1 

finger PIP joint dislocation or sprain was less than 10 degrees of instability. His examination of 

the index finger demonstrated no laxity of the index or middle fingers, and thus, his use of the DBI 

of joint dislocation or sprain was incorrect. The DMA explained that the proper DBI is 

sprain/strain of the finger with residual pain and normal motion. He noted that the date of MMI 

was June 11, 2018, the date of examination and impairment rating of Dr. Macht. 

By decision dated November 9, 2018, OWCP granted appellant a schedule award for one

percent permanent impairment of the RUE. The award covered a period of 3.12 weeks from 

June 11 through July 2, 2018. 

By letter dated November 15, 2018, appellant, through counsel, requested a telephonic 

hearing before a representative of OWCP’s Branch of Hearings and Review. 

The hearing was held on March 20, 2019. The hearing representative held the record open 

for 30 days for the submission of additional evidence. 

By letter dated March 28, 2019, received by OWCP on April 1, 2019 and enclosed with a 

letter from counsel, Dr. Macht responded to the DMA’s report of September 10, 2018. He 

explained that, under the sixth edition of the A.M.A., Guides, there was no reason to use the 

generalized sprain/strain DBI found on page 392 when an accurate diagnosis for DBI was on the 

next page. Dr. Macht noted that in the sixth edition of the A.M.A., Guides, there was a Class 1 

impairment with less than 10 degrees instability and residual findings, and that appellant had a 

grade 1C impairment, yielding two percent RUE permanent impairment for the specific diagnosis 

of right proximal interphalangeal index joint sprain. 

By decision dated May 3, 2019, OWCP’s hearing representative affirmed the November 9, 

2018 decision, finding that the weight of medical evidence rested with the DMA. 

On August 16, 2019 appellant, through counsel, filed a timely appeal from OWCP’s 

May 3, 2019 decision regarding appellant’s entitlement to additional schedule award 

compensation. 

By order dated April 7, 2020, the Board found that the case was not in posture for decision, 

as in its May 3, 2019 decision regarding appellant’s entitlement to increased schedule award 
5

compensation, as OWCP did not note receipt or consideration of Dr. Macht’s March 28, 2019 

response to the DMA’s September 16, 2018 report. The Board set aside the decision of May 3, 

2019 and remanded the case to OWCP to properly consider all of the evidence of record and to 

conduct other such further development as deemed necessary.

5

On May 8, 2020 OWCP requested that Dr. Estaris review Dr. Macht’s letter of March 28, 

2019 and respond as to whether the letter modified his previous opinion as to appellant’s 

permanent impairment of the RUE, and to explain as to any points of disagreement. 

In an addendum report dated May 20, 2020, Dr. Estaris responded to Dr. Macht’s 

March 28, 2019 letter. He noted that in his report of September 16, 2018, he rendered an 

impairment rating for six percent digit impairment of the right index finger. Dr. Estaris also 

reviewed the reports of Dr. Rytel dated July 13, 2017 and August 22, 2018, as well as Dr. Macht’s 

June 16, 2018 report. He indicated that in Dr. Rytel’s July 13, 2017 examination, he noted that 

the PIP joints of the index and middle fingers were stable to varus and valgus stress, and that

Dr. Rytel diagnosed contusion and ulnar collateral ligament sprain. Dr. Estaris further indicated 

that in Dr. Rytel’s August 22, 2018 report, he noted that a typical sprain of the ulnar collateral 

ligament of the finger would have been approximately six weeks to return to appellant’s preinjury 

position at full duty. He stated that Dr. Rytel did not have a diagnosis of joint dislocation or sprain, 

as the index finger was stable to varus and valgus deformity, which supported a finding of no 

instability of the PIP joint of the index finger. Dr. Estaris further noted that Dr. Macht’s 

impairment report demonstrated no laxity of the joints of the index or middle fingers, which would 

mean no instability. He noted that the letter of March 27, 2019 stated that no examining physician 

would be able to detect 1 degree of laxity, but that a threshold of at least 5 degrees of laxity would 

be required for a positive text.

Dr. Estaris stated thatDr. Macht did not provide any degree of instability measurement and 

that if, as Dr. Macht stated, at least 5 degrees of laxity would be required for a positive test, then

Dr. Macht should have documented 5 degrees or less than 10 degrees of laxity at the PIP joint of 

the right index finger. Instead, he noted, neither Dr. Macht nor other examining physicians found 

laxity of the joints of the index or middle fingers. Dr. Estaris explained that, in order to use the 

diagnosis of joint dislocation or sprain, Class 1, under the DBI method, there had to be a recorded 

measurement of the degree of instability, but that, per Dr. Macht, there was no laxity. As such, he 

opined that the use of the diagnosis of joint dislocation or sprain under the DBI method was not 

supported by physical findings and that the most appropriate diagnosis to use was sprain/strain of 

the index finger. Dr. Estaris opined that the impairment rating of six percent digit impairment of 

the right index finger was not modified. 

By decision dated June 1, 2020, OWCP issued a de novo decision denying appellant’s 

additional schedule award claim for more than one percent impairment of the RUE. In rendering 

its decision, it considered Dr. Macht’s letter of March 28, 2019 as well as Dr. Estaris’ report of 

May 20, 2020. 

On June 8, 2020 appellant, through counsel, requested a telephonic hearing before a 

hearing representative regarding the June 1, 2020 schedule award decision. The hearing was held 

5

Supra note 3 Docket No. 19-1737.
6

on September 16, 2020. During the hearing, counsel requested that the hearing representative 

compare Dr. Macht’s reports to the DMA’s reports. 

By decision dated November 30, 2020, the representative of OWCP’s Branch of Hearings 

and Review affirmed the June 1, 2020 schedule award decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,6 and its implementing federal regulations,7 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 loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.8 

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.

9

 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by GMFH, GMPE, and 

GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 

The standards for evaluation of permanent impairment of an extremity under the A.M.A., Guides

are based on all factors that prevent a limb from functioning normally, such as pain, sensory deficit, 

and loss of strength.12

The Board has held that, where the residuals of an injury to a member of the body specified 

in the schedule award provisions of FECA13 extend into an adjoining area of a member also 

enumerated in the schedule, such as an injury of a finger into the hand, of a hand into the arm or 

6

Supra note 2.

7

20 C.F.R. § 10.404.

8 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides(6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).

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

10 Id. at 383-492.

11 Id. at 411.

12 P.W., Docket No. 19-1493 (issued August12, 2020); C.H., Docket No. 17-1065 (issued December 14, 2017); 

E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 

53 ECAB 229 (2001).

13 5 U.S.C. § 8107.
7

of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use 

of the larger member.

14

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

should be routed to a DMA for an opinion concerning the percentage of permanent impairment 

using the A.M.A., Guides.

15

Section 8123(a) of FECA which 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 known as an IME who shall make an examination.16 This 

is called a referee examination and OWCP will select a physician who is qualified in the 

appropriate specialty and who has no prior connection with the case. 17 When there exists opposing 

reports of virtually equal weight and rationale and the case is referred to an IME 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. 18

ANALYSIS

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

OWCP initially received the June 16, 2018 report from Dr. Macht. Dr. Macht noted that 

on physical examination appellant had pain with resistance against active motion of the right index 

finger with mild weakness of that finger and his right-hand grip, along with pain on squeezing, 

and no laxity of the joints of his index or middle fingers. He diagnosed a traumatic injury of the 

right ulnar collateral ligament. Using the DBI method with a diagnosis of traumatic injury of the 

right ulnar collateral ligament, Dr. Macht calculated a 10 percent impairment of the right index 

finger was assigned per Table 15-2, at page 393. Referring to Table 15-12, page 421, he observed 

that a 10 percent impairment of the index finger translated to a 2 percent permanent impairment 

of the RUE.

In accordance with its procedures, OWCP referred appellant’s case to Dr. Estaris and 

serving as a DMA and requested that Dr. Estaris evaluate appellant’s RUE permanent impairment 

under the sixth edition of the A.M.A. Guides. In a report dated September 16, 2018, Dr. Estaris 

noted that appellant had full ROM of the index finger according to Dr. Macht’s examination. 

Referring to Table 15-2, page 392, of the sixth edition of the A.M.A., Guides, he noted a diagnosis 

14 D.C., Docket No. 20-1655 (issued August 9, 2021); C.W., Docket No. 17-0791 (issued December 14, 2018);

Asline Johnson, 42 ECAB 619 (1991); Manuel Gonzales, 34 ECAB 1022 (1983). See supra note 8 at Chapter 

2.808.5(e) (March 2017).

15 A.C., Docket No. 19-1333 (issued January 8, 2020); B.B., Docket No. 18-0782 (issued January 11, 2019);supra

note 8 at Chapter 2.808.6(f) (March 2017).

16 5 U.S.C. § 8123(a); J.K., Docket No. 20-0907 (issued February 12, 2021);R.S., Docket No. 10-1704 (issued 

May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

17 20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

18 See J.K., supra note 16;DarleneR. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).
8

of ulnar collateral ligament injury of the right index finger, utilizing a diagnosis of sprain/strain, 

which was a Class 1 impairment with a default value of 6 due to residual pain with normal motion. 

Referring to page 406 of the sixth edition of the A.M.A., Guides, Dr. Estaris calculated that there 

was no net adjustment due to grade modifiers, resulting in a six percent digit impairment rating. 

Using Table 15-12, page 421, the DMA converted this six percent digit impairment of the index 

finger to a one percent permanent impairment rating of the RUE. He explained that the 

discrepancy between his and Dr. Macht’s impairment ratings was due to the use of different DBI

diagnoses. Dr. Macht chose the DBI of joint dislocation or sprain, but the criteria for a Class 1 

finger PIP joint dislocation or sprain was less than 10 degrees of instability. His examination of 

the index finger demonstrated no laxity of the index or middle fingers, and thus, his use of the DBI 

of joint dislocation or sprain was incorrect. The DMA explained that the proper DBI was 

sprain/strain of the finger with residual pain and normal motion.

Subsequent to its November 9, 2018 decision granting appellant a schedule award for one

percent permanent impairment of the RUE, OWCP received the letter dated March 28, 2019 from

Dr. Macht. Dr. Macht explained that under the sixth edition of the A.M.A., Guides, there was no 

reason to use the generalized sprain/strain DBI found on page 392 when an accurate diagnosis for 

DBI was on the next page. He noted that, in the sixth edition of the A.M.A., Guides, a joint 

dislocation or sprain of a distal proximal digit of a finger was a Class 1 impairment if the claimant 

had less than 10 degrees instability and residual findings. Dr. Macht explained that appellant had 

a CDX 1 grade C impairment, yielding two percent RUE permanent impairment for the specific 

diagnosis of right proximal interphalangeal index joint dislocation or sprain, on page 393 of the

A.M.A., Guides.

OWCP forwarded Dr. Macht’s March 28, 2019 letter to Dr. Estaris for review and 

response. On May 20, 2020 Dr. Estaris responded to Dr. Macht’s March 28, 2019 letter. He stated 

that Dr. Macht did not provide any degree of instability measurement and that neither Dr. Macht 

nor other examining physicians found laxity of the joints of the index or middle fingers. Dr. Estaris 

explained that, in order to use the diagnosis of joint dislocation or sprain, Class 1, under the DBI 

method, there had to be a recorded measurement of the degree of instability, but that per Dr. Macht, 

there was no laxity. As such, he opined that the use of the diagnosis of joint dislocation or sprain 

under the DBI method was not supported by physical findings and that the most appropriate 

diagnosis to use was sprain/strain of the index finger. 

The Board finds that there is a conflict of medical opinion between Dr. Macht, appellant’s

treating physician, and Dr. Estaris, the DMA, regarding the diagnosis to be used to rate appellant’s 

permanent impairment. Consequently, the case must be referred to an IME to resolve the abovedescribed conflict in the medical opinion evidence regarding appellant’s permanent impairment 

due to her accepted conditions. On remand, OWCP shall refer appellant, along with the case file 

and an undated SOAF, to a specialist in the appropriate field of medicine for an impartial medical 

evaluation and report including a rationalized opinion regarding the proper diagnosis to use for 

rating appellant’s permanent impairment. After this and other such further development as deemed 

necessary, OWCP shall issue a de novo decision regarding his schedule award claim.

CONCLUSION

The Board finds that the case is not in posture for decision. 
9

ORDER

IT IS HEREBY ORDERED THAT the November 30, 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: August 21, 2023

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