United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.T., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 15-33 

Issued: March 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 6, 2014 appellant filed a timely appeal from an August 5, 2014 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 more than a 15 percent left upper extremity permanent 

impairment. 

FACTUAL HISTORY 

This matter has previously been before the Board. 

 1

 5 U.S.C. § 8101 et seq. 
2

On June 29, 2009 appellant, then 53-year-old special agent, filed a traumatic injury claim 

alleging that he sustained injuries in the performance of duty on June 12, 2009 when a ladder he 

was climbing collapsed. OWCP initially accepted a closed left radial neck fracture of the elbow 

on August 6, 2009. In addition, it subsequently accepted cervical strain, left shoulder 

impingement, and left carpal tunnel syndrome. Appellant underwent a left carpal tunnel release 

on January 21, 2010 and left shoulder arthroscopic surgery with excision of the distal clavicle on 

September 13, 2010. 

In a report dated March 30, 2011, Dr. Tiffany Shay Alexander, Board-certified in 

occupational medicine, provided results upon examination. She opined that appellant had a 20 

percent left upper extremity impairment under the fifth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). In a report 

dated October 24, 2011, Dr. Arthur Harris, an OWCP medical adviser, reviewed Dr. Alexander’s 

findings and opined that, under the sixth edition of the A.M.A., Guides, appellant had a 10 

percent left upper extremity permanent impairment. He indicated that the impairment was based 

on impairments to the shoulder, elbow, and wrist. 

By decision dated September 26, 2012, OWCP issued a schedule award for a 10 percent 

permanent impairment to the left upper extremity. The period of the award was 31.2 weeks from 

March 30, 2011. 

On November 26, 2012 appellant requested reconsideration and submitted an October 9, 

2012 report from Dr. Jacob Tauber, a Board-certified orthopedic surgeon, who provided results 

on examination, indicating that appellant had some intermittent left hand and wrist pain, and the 

pain was associated with numbness and tingling. Dr. Tauber also noted occasional left elbow 

pain. He opined that appellant had a 21 percent left upper extremity impairment under the 

A.M.A., Guides (sixth edition). Dr. Tauber opined that appellant had a 10 percent impairment 

under Table 15-5 for the distal clavicle resection. In addition, he found an additional three 

percent impairment under Table 15-5 for left shoulder impingement syndrome. As to the elbow, 

Dr. Tauber stated that there was a three percent impairment under Table 15-4 for the radial neck 

fracture. 

In a report dated April 1, 2013, Dr. Harris reviewed the report from Dr. Tauber. He 

opined that appellant had a 15 percent left arm permanent impairment. Dr. Harris stated that, 

under Table 15-5, appellant would have an 11 percent impairment for distal clavicle resection, 

adjusting for a grade modifier for clinical studies. He found no additional impairment under 

Table 15-5 was warranted, as the A.M.A., Guides indicated only one diagnosis should be used 

for the diagnosis-based regional grids. In addition, Dr. Harris found Dr. Tauber’s findings were 

not consistent with a five percent impairment under Table 15-23, noting examination results and 

the absence of abnormalities on diagnostic studies. He opined that a two percent impairment was 

appropriate under Table 15-23. The date of maximum medical improvement was reported as the 

date of Dr. Tauber’s report.2

 2

 The date of the report was October 9, 2012, although Dr. Harris reported the date as October 19, 2012. 
3

By decision dated April 25, 2013, OWCP denied appellant’s request for reconsideration. 

The Board reviewed this decision, and issued an order remanding case.3

 The Board noted that 

appellant had submitted new medical evidence and OWCP should issue an appropriate decision 

on a claim for an increased schedule award. 

In a decision dated January 22, 2014, OWCP issued a schedule award for an additional 5 

percent for a total of 15 percent permanent impairment to the left upper extremity. The period of 

the award was 15.60 weeks commencing October 19, 2012. 

Appellant requested a review of the written record by an OWCP hearing representative. 

In a decision dated August 5, 2014, the hearing representative found that appellant had not 

established more than a 15 percent left upper extremity impairment. 

LEGAL PRECEDENT 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.4

 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants, OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.6 

With respect to a shoulder impairment, the A.M.A., Guides provide a regional grid at 

Table 15-4. The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then 

the default value for the identified CDX is determined. The default value (grade C) may be 

adjusted by using grade modifiers for Functional History (GMFH, Table 15-7), Physical 

Examination (GMPE, Table 15-8), and Clinical Studies (GMCS, Table 15-9). The adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7 

Impairment due to carpal tunnel syndrome is evaluated under the scheme found in 

Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant 

text.8 In Table 15-23, grade modifiers levels (ranging from zero to four) are described for the 

categories test findings, history, and physical findings. The grade modifier levels are averaged to 

arrive at the appropriate overall grade modifier level and to identify a default rating value. The 

 3

 Docket No. 13-1781 (issued February 4, 2014). 

4

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

5 A. George Lampo, 45 ECAB 441 (1994). 

6

 FECA Bulletin No. 09-03 (March 15, 2009). 

7

 The net adjustment is up to +2 (grade E) or -2 (grade A). 

8

 A.M.A., Guides 448-50. 
4

default rating value may be modified up or down by one percent based on functional scale, an 

assessment of impact on daily living activities.9

 

ANALYSIS 

In the present case, OWCP has issued schedule awards for permanent impairment to the 

left arm resulting from a June 12, 2009 employment incident. It issued a schedule award for a 10 

percent left upper extremity impairment on September 26, 2012 and an additional five percent 

impairment was awarded by decision dated January 22, 2014. 

Appellant submitted a March 30, 2011 report from Dr. Alexander, with an opinion as to 

the impairment under the fifth edition of the A.M.A., Guides. As noted above, schedule awards 

after May 1, 2009 must be based on the sixth edition. The report from Dr. Alexander is therefore 

of little probative value in determining the percentage of permanent impairment. In an 

October 9, 2012 report, Dr. Tauber opined that appellant had a 21 percent left upper extremity 

impairment under the sixth edition. OWCP received an April 1, 2013 report from Dr. Harris 

opining that appellant had a 15 percent left arm impairment. In reviewing these reports, the 

Board finds that the weight of the evidence rests with Dr. Harris. 

As to an impairment to the left shoulder, both Dr. Tauber and Dr. Harris identified 

Table 15-5. For status post distal clavicle resection, the default (grade C) impairment for Class 

of Diagnosis 1 is 10 percent.10 Dr. Tauber opined that appellant had a 10 percent impairment. In 

this case, Dr. Harris adjusted the impairment to a grade D impairment of 11 percent, using a 

grade modifier 2 for clinical studies.11 As noted above, the default impairment may be adjusted 

based on grade modifiers and application of the formula noted. 

Dr. Tauber found an additional impairment of three percent under Table 15-5 for left 

shoulder impingement syndrome. As noted by Dr. Harris, this is contrary to specific instructions 

in the A.M.A., Guides regarding diagnosis-based impairments. When there are two diagnoses 

evaluated under the same table, “the examiner should use the diagnosis with the highest causally 

related impairment rating for the impairment calculation.”12 Therefore, Dr. Harris properly used 

only the diagnosis for the distal clavicle resection under Table 15-5. 

As to the left elbow, both Dr. Tauber and Dr. Harris found a three percent impairment 

based on Table 15-4. This table is also a diagnosis-based regional grid. For an elbow fracture 

with residual symptoms, the grade C impairment is three percent.13 Neither Dr. Tauber or 

Dr. Harris indicated that an adjustment to the default value was warranted. 

 9 Id. 

10 Id. at 403, Table 15-5. 

11 Id. at 410, Table 15-9. A grade modifier 2 is for a moderate problem with clinical studies confirming the 

diagnosis. 

12 Id. at 387; see also C.P., Docket No. 11-117 (issued August 10, 2011). 

13 Id. at 399, Table 15-4. 
5

For the impairment due to carpal tunnel, the Board again finds that it is Dr. Harris who 

represents the weight of the evidence. Dr. Tauber reported a five percent impairment under 

Table 15-23, without further explanation. A five percent impairment represents a grade modifier 

2 under this table, but such a finding requires test findings and “significant intermittent 

symptoms.”14 Dr. Tauber provided only brief findings as to the left wrist without discussing 

significant symptoms or test findings. In addition, a grade modifier 2 is proper for decreased 

sensation. Although he briefly refers to numbness, the A.M.A., Guides state that decreased 

sensation “means decreased two-point discrimination (greater than six millimeter) for 

compression involving the median or ulnar nerve....”15 Dr. Tauber did not provide detailed 

findings that would establish decreased sensation. Dr. Harris explained that grade modifier 1 

was appropriate based on the lack of test findings and the examination of Dr. Tauber. A grade 

modifier 1 results in a default impairment of two percent under Table 15-23. 

The Board accordingly finds that Dr. Harris properly applied the A.M.A., Guides in this 

case and his opinion represents the weight of the evidence. The number of weeks of 

compensation for a schedule award is determined by the compensation schedule at 5 U.S.C. 

§ 8107(c). For complete loss of use of the arm, the maximum number of weeks of compensation is 

312 weeks. Since appellant’s impairment was 15 percent, he was entitled to 15 percent of 312 

weeks, or 46.80 weeks of compensation. He properly received a combined 46.80 weeks of 

compensation from the September 26, 2012 and January 22, 2014 schedule award decisions. The 

period covered by a schedule award commences on the date that the employee reaches maximum 

medical improvement from residuals of the employment injury.16 

On appeal, appellant states that OWCP misinterpreted Dr. Tauber’s report. For the 

reasons discussed above, the Board finds that Dr. Tauber’s report did not establish more than a 

15 percent permanent impairment of the left upper extremity. Appellant may request at any time 

an increased schedule award based on new medical evidence showing progression of an 

employment-related condition resulting in an increased impairment. 

CONCLUSION 

The Board finds that the evidence does not establish more than a 15 percent left upper 

extremity permanent impairment. 

 14 Id. at 449, Table 15-23. 

15 Id. at 446. 

16 Albert Valverde, 36 ECAB 233, 237 (1984). 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated August 5, 2014 is affirmed. 

Issued: March 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board