United States Department of Labor 

Employees’ Compensation Appeals Board 

____________________________________________ 

R.C., Appellant 

and 

DEPARTMENT OF JUSTICE, U.S. MARSHALS 

SERVICE, Philadelphia, PA, Employer 

____________________________________________ 

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Docket No. 17-0393 

Issued: April 7, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 12, 2016 appellant filed a timely appeal from a July 12, 2016 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 to consider the merits of this case. 

ISSUE 

The issue is whether appellant has established more than three percent permanent 

impairment of the left upper extremity, for which he previously received a schedule award. 

On appeal appellant contends that he is entitled to a greater than three percent left upper 

extremity permanent impairment based on the reports of his treating physicians. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 31, 2014 appellant, then a 38-year-old deputy U.S. Marshal, filed a traumatic 

injury claim (Form CA-1) alleging that on January 30, 2014 he injured his left shoulder while 

exercising during authorized fitness time. He did not stop work following the injury. OWCP 

accepted the claim for left shoulder partial rotator cuff tear. 

In a February 11, 2015 report, Dr. Dennis W. Ivill, an examining Board-certified 

physiatrist, found 16 percent left upper extremity permanent impairment, which he attributed to 

left shoulder loss of range of motion (ROM) and partial intrasubstance distal subscapularis tear, 

tendinitis and/or distal anterior supraspinatus tendon tear with no labral tear. He reported ROM 

figures of 100 degrees flexion and abduction; 30 degrees adduction, internal rotation, and 

extension; and 40 degrees external rotation. Dr. Ivill referenced various tables using the sixth 

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

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

On February 27, 2015 appellant filed a claim for a schedule award (Form CA-7). 

On July 28, 2015 OWCP referred Dr. Ivill’s February 11, 2015 impairment rating to a 

district medical adviser (DMA) for review. In a report dated August 28, 2015, Dr. Morley 

Slutsky, Board-certified in occupational medicine, disagreed with Dr. Ivill’s left shoulder ROM 

impairment rating. He noted that Dr. Ivill used the “less preferred” ROM method of calculating 

permanent impairment with invalid measurements. Dr. Slutsky explained that diagnosis-based 

impairment (DBI) was the “preferred” methodology. He quoted section 15.2, page 461 in the 

second printing of the A.M.A., Guides noting that ROM was used primarily as a physical 

examination adjustment factor and only to determine actual impairment values when no other 

approach to impairment rating was available. Dr. Slutsky also questioned the validity of 

Dr. Ivill’s ROM measurements, noting he documented only one measurement per joint, which 

was considered inconsistent with the criteria for assessing motion under section 15.7, A.M.A., 

Guides 464. 

Dr. Slutsky applied the DBI method and found three percent permanent impairment of 

the left upper extremity for left shoulder partial thickness rotator cuff tear with residual 

dysfunction under Table 15-5, A.M.A., Guides 402.2

 He determined that appellant had reached 

maximum medical improvement (MMI) as of February 11, 2015, the date of Dr. Ivill’s 

examination. 

In a letter dated March 10, 2016, OWCP informed appellant that the DMA disagreed with 

Dr. Ivill’s impairment rating and provided a copy of the DMA’s August 28, 2015 report for 

review by his treating physician. 

 2

 The DMA noted that appellant’s left shoulder partial thickness rotator cuff tear with residual dysfunction 

represented class 1, Class of Diagnosis (CDX) impairment, with a default upper extremity rating of three percent. 

Additionally, the DMA calculated a net adjustment of 0, which resulted in a final right upper extremity rating of 

three percent. The net adjustment formula uses was (GMFH 1 - CDX 1) + (GMPE 1 - CDX 1). The DMA noted 

Clinical Studies (GMCS) were not applicable. See section 15.3d, A.M.A., Guides 409-12 (6th ed.). 
3

In a report dated May 4, 2015, Dr. Stanley R. Askin, an examining Board-certified 

orthopedic surgeon, determined that appellant had 13 percent left upper extremity permanent 

impairment using the sixth edition of the A.M.A., Guides. Dr. Askin noted that appellant’s left 

shoulder partial thickness rotator cuff tear represented class 1, CDX impairment. He assigned 

grade modifiers of 2 for Functional History (GMFH), Physical Examination (GMPE) findings, 

and clinical studies. Dr. Askin calculated a net adjustment of 2 or grade E, resulting in a final 

right upper extremity permanent impairment rating of 13 percent. 

On May 18, 2016 OWCP referred Dr. Askin’s May 4, 2016 impairment rating to a DMA 

for review. In a May 19, 2016 report, Dr. David H. Garelick, a Board-certified orthopedic 

surgeon, reviewed Dr. Askin’s report and disagreed with his impairment rating of 13 percent. 

Dr. Garelick noted the highest impairment rating for a partial thickness rotator cuff tear was five 

percent using Table 15-5, page 402 of the A.M.A., Guides. Thus, he recommended that 

Dr. Askin’s report be disregarded and that appellant be granted a schedule award for three 

percent permanent impairment. He found that appellant had reached MMI as of 

February 11, 2015. 

In a July 12, 2016 decision, OWCP granted a schedule award for three percent permanent 

impairment of the left upper extremity. The award covered a period of 9.36 weeks beginning 

February 11, 2015. OWCP based the schedule award on Dr. Garelick’s May 19, 2016 

impairment rating. The claims examiner stated that Dr. Garelick determined appellant’s treating 

physician had provided an incorrect application of the A.M.A., Guides to the physical 

examination findings. Thus, OWCP found the Dr. Garelick’s May 16, 2016 report constituted 

the weight of the evidence and established that appellant had three percent permanent 

impairment of the left upper extremity. 

LEGAL PRECEDENT 

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.3 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. Through its implementing 

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.5

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

 For a complete 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. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

various changes to the original text, intended to serve as an erratum/supplement to the first 

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into 

the second printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).6 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.7

ANALYSIS 

The issue on appeal is whether appellant has established more than three percent 

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

award. 

Appellant’s treating physician, Dr. Ivill initially found that appellant had 16 percent 

permanent impairment of the left upper extremity due to loss of ROM of his left shoulder. 

Dr. Askin, appellant’s other treating physician, determined appellant’s permanent impairment of 

the left upper extremity was 13 percent permanent impairment using the ROM method. 

Dr. Slutsky, OWCP’s DMA rated appellant’s permanent impairment pursuant to the DBI rating 

methodology and found that appellant had three percent permanent impairment of the left upper 

extremity. Dr. Garelick, another OWCP DMA concurred with Dr. Slutsky’s DBI rating of three 

percent permanent impairment of the left upper extremity. 

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

The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth 

edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No 

consistent interpretation has been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.8

 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.9

 In T.H., the Board concluded that OWCP physicians are 

at odds over the proper methodology for rating upper extremity impairment, having observed 

attending physicians, evaluating physicians, second opinion physicians, impartial medical 

examiners, and district medical advisers use both DBI and ROM methodologies interchangeably 

without any consistent basis. Furthermore, the Board has observed that physicians 

interchangeably cite to language in the first printing or the second printing when justifying use of 

either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the 

 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 and Permanent Disability 

Claims, Chapter 2.808.5(a) (February 2013). 

7

 Isidoro Rivera, 12 ECAB 348 (1961). 

8 T.H., Docket No. 14-0943 (issued November 25, 2016). 

9 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
5

application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent 

results and equal justice under the law for all claimants.10 

In light of the conflicting interpretation by OWCP of the sixth edition with respect to 

upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing 

regulations and/or internal procedures, to establish a consistent method for rating upper 

extremity impairment. In order to ensure consistent results and equal justice under the law for 

cases involving upper extremity impairment, the Board will set aside the July 12, 2016 decision. 

Following OWCP’s development of a consistent method for calculating permanent impairment 

for upper extremities to be applied uniformly, and such other development as may be deemed 

necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity 

schedule award. 

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the decision of the July 12, 2016 Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: April 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 Supra note 8.