United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.O., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

ALCOHOL, TOBACCO, FIREARMS & 

EXPLOSIVES, Buffalo, NY, Employer 

__________________________________________ 

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Docket No. 13-1973 

Issued: March 11, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 5, 2013 appellant timely appealed the July 23, 2013 merit decision of the 

Office of Workers’ Compensation Programs (OWCP) which affirmed a schedule award. 

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 the schedule award claim. 

ISSUE 

The issue is whether appellant has greater than 12 percent impairment of the right arm. 

FACTUAL HISTORY 

Appellant, a 50-year-old criminal investigator, has an accepted claim for right rotator cuff 

tear which occurred on June 1, 2010. He injured his right shoulder using a bolt cutter on a 

padlock. On July 26, 2010 appellant underwent right shoulder surgery by Dr. Paul J. Mason, a 

 1

 5 U.S.C. §§ 8101-8193 (2006). 
2

Board-certified orthopedic surgeon. His postoperative diagnosis was right large rotator cuff tear. 

Appellant resumed his regular employment duties within four months of surgery.2 On May 5, 

2011 Dr. Mason advised him to return on an as needed basis. Appellant subsequently filed a 

claim for a schedule award (Form CA-7). 

Dr. Mason provided a September 18, 2012 impairment rating under the sixth edition of 

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

Guides) (2008). He found 25 percent right upper extremity impairment due to a full-thickness 

rotator cuff tear (13 percent) and loss of shoulder motion (12 percent). Dr. Mason generally 

referenced Table 15-5, Shoulder Regional Grid, A.M.A., Guides 401, 403 (6th ed. 2008) as 

support for the diagnosis-based rotator cuff impairment. With respect to the range of motion 

(ROM) impairment, he cited Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th

ed. 2008). Dr. Mason’s physical examination revealed forward elevation/flexion to 160 degrees 

(three percent), extension to 30 degrees (one percent), abduction to 150 degrees (three percent), 

external rotation to 45 degrees (two percent), and internal rotation to L2 (two percent). He also 

found impairment for loss of adduction (one percent). When added together, the shoulder ROM 

impairments totaled 12 percent of the right upper extremity. 

In a December 13, 2012 report, Dr. Henry H. Magliato, the district medical adviser 

disagreed with Dr. Mason’s rating under Table 15-5, A.M.A., Guides 403 (6th ed. 2008).3

 He 

explained that the highest rating available for a rotator cuff injury with full-thickness tear was 

seven percent impairment of the upper extremity. Thus, Dr. Mason’s rating of 13 percent 

impairment for a class 1 rotator cuff injury was not supported by Table 15-5, A.M.A., Guides

403 (6th ed. 2008). Further, the A.M.A., Guides did not permit combining a diagnosis-based 

rotator cuff impairment rating with ROM impairment, which was a stand-alone impairment 

rating. Dr. Magliato concurred with Dr. Mason’s 12 percent rating for loss of shoulder ROM, 

and found that appellant reached maximum medical improvement as of September 18, 2012. 

On April 1, 2013 OWCP granted appellant a schedule award for 12 percent impairment 

of the right upper extremity. The award covered a period of 37.44 weeks beginning 

September 18, 2012. 

Appellant requested an oral hearing which was held on June 17, 2013. 

In a May 14, 2013 report, Dr. Mason noted that he reviewed Dr. Magliato’s report. He 

disagreed with the ROM methodology because it did not account for loss of strength or 

permanent disfigurement due to surgical scarring. As such, ROM did not fairly represent the full 

extent of appellant’s right upper extremity impairment. Dr. Mason reexamined appellant on 

June 25, 2013 and reiterated his concerns about the ROM methodology. 

 2

 During a December 2, 2010 follow-up examination, appellant advised Dr. Mason that he was performing full 

duty. 

3

 The DMA, Dr. Henry H. Magliato, is a Board-certified orthopedic surgeon. 
3

By decision dated July 23, 2013, the Branch of Hearings and Review affirmed the 

April 1, 2013 schedule award. The hearing representative noted that, under the sixth edition, the 

diagnosed based for rating impairment could not be combined with ROM. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.4

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2008).6

ANALYSIS 

On appeal appellant contends that OWCP should have based his schedule award on 

Dr. Mason’s September 18, 2012 impairment rating of 25 percent to the right arm due to the 

rotator cuff injury with full-thickness tear (13 percent) and loss of shoulder ROM (12 percent). 

The Board finds, however, that Dr. Mason’s impairment rating was only partially correct. 

Dr. Mason improperly combined a diagnosis-based impairment method with impairment for loss 

of shoulder range of motion. He identified Table 15-5, Shoulder Regional Grid, A.M.A., Guides

403 (6th ed. 2008) as the basis for 13 percent upper extremity impairment rating for full-thickness 

rotator cuff tear. Table 15-5 provides in relevant part: “If motion loss is present, this impairment 

may alternatively be assessed using Section 15.7, Range of Motion impairment. A ROM 

impairment stands alone and is not combined with diagnosis impairment.”7 (Emphasis added.) 

Dr. Magliato properly noted the diagnosis-based rotator cuff impairment and the shoulder ROM 

impairment are mutually exclusive. Notwithstanding Dr. Mason’s belief that the ROM 

methodology does not fully reflect the extent of appellant’s right upper extremity impairment, his 

combination of the two impairment methods is contrary to the text of the A.M.A., Guides (6th ed. 

2008). Dr. Mason’s 13 percent impairment rating for rotator cuff tear is also inconsistent with 

Table 15-5, A.M.A., Guides 403 (6th ed. 2008). The maximum rating for a full-thickness rotator 

cuff tear is seven percent. Dr. Mason provided no explanation for his rating of 13 percent upper 

extremity impairment under Table 15-5. As the ROM impairment value of 12 percent is greater 

than the diagnosis-based rating of 7 percent, Dr. Magliato agreed with Dr. Mason’s finding of 12 

percent impairment under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th ed. 

 4

 For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

5

 20 C.F.R. § 10.404 (2012). 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

7

 A.M.A., Guides 405 (6th ed. 2008). 
4

2008). There is no credible medical evidence demonstrating a greater impairment than the 12 

percent previously awarded. 

CONCLUSION 

Appellant has not established that he has greater than 12 percent impairment of the right 

arm. 

ORDER 

IT IS HEREBY ORDERED THAT the July 23, 2013 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 11, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board