United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.G., Appellant

and

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, THE NATIONAL INSTITUTES OF 

HEALTH, Bethesda, MD, Employer

__________________________________________

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Docket No. 22-1394

Issued: May 10, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On September 12, 2022 appellant filed a timely appeal from a May 23, 2022 merit decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

ISSUE

The issue is whether appellant has established greater than 45 percent permanent 

impairment of the right upper extremity for which she previously received a schedule award.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board on a different issue. 2 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 15, 2014 appellant, then a 63-year-old program assistant, filed an occupational 

disease claim (Form CA-2) alleging that she injured her right hand due to factors of her federal 

employment including excessive typing following left thumb tendon surgery.

On May 8, 2014 Dr. Sean T. Johnson, an orthopedic surgeon, performed right ring finger 

A1 pulley release. He diagnosed right ring finger trigger finger. 

Appellant resigned from the employing establishment on November 29, 2014.

By decision dated January 20, 2015, OWCP accepted the claim for right trigger fourth 

finger. 

Dr. Johnson performed right cubital tunnel release on April 27, 2015.

By decision dated December 31, 2015, OWCP expanded the acceptance of appellant’s 

claim to include lesion of the ulnar nerve, right upper limb. 

Appellant submitted a March 20, 2018 report from Dr. Johnson advising that she had 

reached maximum medical improvement (MMI). Dr. Johnson noted that she had unremitting hand 

pain and persistent refractory pain radiating from her medial elbow related to the ulnar nerve for 

which he had been unable to find effective treatment. He opined that appellant had a chronic 

condition and related that he had attempted multiple modalities of treatment, including therapy 

and medication, in addition to the May 8, 2014 trigger finger A1 pulley release of right ring finger 

and April 27, 2015 cubital tunnel release.

On February 1, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

By decision dated May 17, 2019, OWCP granted appellant a schedule award for 45 percent 

permanent impairment of the right upper extremity in accordance with the sixth edition of the 

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

Guides).3 The award ran for 140.4 weeks from September 5, 2018 through May 14, 2021.

Appellant subsequently submitted a January 11, 2022 impairment rating from

Dr. Joshua B. Macht, a Board-certified internist, who related her history of injury and medical 

treatment. Dr. Macht reported that her right-hand condition had significantly worsened since her 

last impairment rating, with significantly worse range of motion (ROM) and a fixed claw deformity 

of the right hand, rendering her hand essentially useless for daily activities. He diagnosed right 

2 Docket No. 18-0099 (issued April 26, 2018).

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

trigger finger and lesion of ulnar nerve, right upper limb. Dr. Macht utilized Table 15-32 (Wrist 

Range of Motion), page 473, of the sixth edition of the A.M.A., Guides, to find that appellant had

three percent permanent impairment of the right upper extremity due to limited flexion of the right 

wrist. He also utilized the ROM rating method under Table 15-30 (Thumb Range of Motion), 

page 468, for the right thumb to find 63 percent permanent impairment of the right thumb.

Referencing Table 15-31 (Finger Range of Motion), page 470, Dr. Macht calculated 97 percent 

permanent impairment of the right index finger, 87 percent permanent impairment of the right 

middle finger, 87 percent permanent impairment of the right ring finger, and 97 percent permanent

impairment of the right little finger. He then utilized Table 15-12, pages 422 and 423, to convert 

the percent permanent impairment of each digit to the percentage of permanent impairment of the 

right hand, yielding 25 percent permanent impairment of the right hand for the thumb, 19 percent 

permanent impairment of the right hand for the index finger, 17 percent permanent impairment of 

the right hand for the middle finger, 9 percent permanent impairment of the right hand for the ring 

finger, and 10 percent permanent impairment of the right hand for the little finger. Dr. Macht then

referenced Table 15-11, page 420 and calculated 80 percent permanent impairment for the right 

hand, converted to 72 percent permanent impairment of the right upper extremity.

Dr. Macht combined this impairment figure with 3 percent permanent impairment of the 

right upper extremity due to ROM loss of the right wrist, pursuant to the Combined Values Chart 

on page 605, to equal 73 percent permanent impairment of the right upper extremity. He then 

assigned a grade modifier of 4 for decreased ROM, pursuant to Table 15-35 on page 477, and a 

grade modifier for functional history (GMFH) of 4 based on a QuickDASH score of 95, pursuant 

to Table 15-7 on page 406, which resulted in no change in the overall rating. Thus, Dr. Macht 

found that appellant had 73 percent permanent impairment of the right upper extremity as a result 

of ROM loss of the wrist, thumb, and fingers.

Dr. Macht also noted that appellant had an ongoing impairment as a result of her accepted 

diagnosis of right ulnar neuropathy at the elbow. He referenced Table 15-23, page 449, and 

assigned a grade modifier for clinical studies (GMCS) of 1, a GMFH of 3, and grade modifier for 

physical examination (GMPE) of 3. Dr. Macht averaged the grade modifiers for a grade 2 or six 

percent permanent impairment of the right upper extremity. He combined appellant’s 73 percent 

permanent impairment of the right upper extremity due to decreased ROM of the wrist and hand 

with the 6 percent permanent impairment of the right upper extremity due to ulnar neuropathy at 

the elbow, pursuant to the Combined Values Chart on page 605, to equal 75 percent permanent 

impairment of the right upper extremity. Dr. Macht noted that her total impairment pursuant to 

the sixth edition of the A.M.A., Guides, had increased from 45 percent to 75 percent permanent 

impairment of the right upper extremity. He found that appellant had reached MMI prior to his

evaluation on January 11, 2022.

On March 21, 2022 appellant filed a Form CA-7 for a schedule award.

On March 24, 2022 OWCP referred appellant, together with a statement of accepted facts 

(SOAF), the medical record, and a series of questions to Dr. Rafael A. Lopez, a Board-certified 

orthopedic surgeon, for a second opinion permanent impairment evaluation, due to the accepted 

work-related conditions. It specifically noted that she had previously been granted a schedule 

award for 45 percent permanent impairment of the right upper extremity.
4

In a report dated April 30, 2022, Dr. Lopez reviewed the SOAF and appellant’s medical 

record. He set forth her physical examination findings, stated that her subjective complaints were 

not corroborated by objective findings, and opined that she had reached MMI on November 17, 

2016 the date of an electromyogram/nerve conduction velocity (EMG/NCV) study. Dr. Lopez 

diagnosed status post release of trigger finger and ulnar nerve, as well as a functional, but 

nonorganic inability to use the right hand. He concluded that appellant had zero percent permanent 

impairment of the right upper extremity, stating that the ROM method could not be used due to

her inability to cooperate with the examination. 

By decision dated May 23, 2022, OWCP denied appellant’s claim for an additional 

schedule award. 

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations5 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.6 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides(2009).7 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.8

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.9 After a class of diagnosis (CDX) is determined (including identification of a default 

grade value), the impairment class is then adjusted by grade modifiers based on GMFH, GMPE, 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.; see also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

7

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

(January 2010); id. at Chapter 2.808.5a (March 2017).

8 B.B., supra note 6; M.D., Docket No. 20-0007 (issued May 13, 2020); P.R., Docket No. 19-0022 (issued April9, 

2018); Isidoro Rivera, 12 ECAB 348 (1961).

9 B.B., id.; M.D., id.; T.T., Docket No. 18-1622 (issued May 14, 2019).
5

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

CDX).11

Regarding the application of ROM or diagnosis-based impairment (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).”

12

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.,] 

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 also 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.”

14

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.15

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

11 Id.

12 FECA Bulletin No. 17-06 (issued May 8, 2017); B.B., supra note 6; V.L., Docket No. 18-0760 (issued 

November 13, 2018).

13 Id.

14 Id.

15 See supra note 7 at Chapter 2.808.6f (February 2013). See also D.S., Docket No. 20-0670 (issued November 2, 

2021); J.T., Docket No. 17-1465 (issued September 25, 2019); C.K., Docket No. 09-2371 (issued August18, 2010); 

Frantz Ghassan, 57 ECAB 349 (2006).
6

ANALYSIS

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

Dr. Lopez’ opinion contradicts the SOAF, which makes clear that OWCP had accepted as 

employment-related right trigger finger and lesion of ulnar nerve, right upper limb, and that it had 

previously granted her schedule award for 45 percent permanent impairment of the right upper 

extremity. In his report dated April 30, 2022, he related that appellant had zero percent permanent 

impairment of the right upper extremity, stating that the ROM method could not be used due to 

her inability to cooperate with the examination. However, Dr. Lopez did not acknowledge her 

previously granted schedule award. OWCP procedures provide that, when a second opinion or 

referee physician selected by OWCP renders a medical opinion based on a SOAF which is 

incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, 

the probative value of the opinion is seriously diminished or negated altogether.16 As Dr. Lopez

disregarded the findings made in the SOAF, the Board finds that his opinion regarding the rating 

of appellant’s permanent impairment was of no probative value.

Once OWCP undertook development of the record, it was required to complete 

development of the record by procuring medical evidence that would resolve the relevant issue in 

the case.17

On remand, OWCP shall refer appellant and a SOAF to a new physician in the appropriate 

field of medicine for a second opinion evaluation as to the extent of her permanent impairment 

due to the accepted conditions of right trigger finger and lesion of ulnar nerve, right upper limb. 

After this and such other development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

16 Supra note7 atChapter 2.810.11 (September 2010);see T.M., Docket No. 20-1143 (issued December 14, 2020);

R.T., Docket No. 20-0081 (issued June 24, 2020); Roger W. Griffith, 51 ECAB 491 (2000).

17 See L.B., Docket No. 21-0319 (issued August 9, 2021).
7

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2022 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: May 10, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board