United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.L., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Plantation, FL, Employer 

__________________________________________ 

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Docket No. 15-0657 

Issued: April 3, 2017 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 30, 2015 appellant, through his representative, filed a timely appeal from a 

January 2, 2015 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.3

 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.

3

 Following the issuance of the January 2, 2015 OWCP decision, appellant submitted new evidence. The Board is 

precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20 

C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant established more than 32 percent permanent impairment to 

the right upper extremity, for which he previously received a schedule award. 

On appeal, appellant’s representative contends that OWCP incorrectly calculated the 

schedule award. 

FACTUAL HISTORY 

OWCP accepted that appellant, a 47-year-old special agent, sustained a thoracic herniated 

nucleus pulposus (HNP) at T6-7, a right shoulder rotator cuff tear, and a right wrist triangular 

fibrocartilage complex (TFCC) tear as a result of climbing over an iron fence while executing a 

federal arrest warrant on January 6, 2010.4 It authorized right shoulder surgery, which he 

underwent on March 29, 2011. 

In a November 7, 2011 letter, OWCP advised appellant that he might be eligible for 

schedule award compensation and requested additional evidence in support of an award, 

including a medical report containing a detailed description of his permanent impairment based 

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

Permanent Impairment (hereinafter A.M.A., Guides).5 

On December 27, 2011 appellant, through his representative, filed a claim for a schedule 

award (Form CA-7).6

 

In a December 1, 2011 report, Dr. Samy Bishai, an orthopedic surgeon, determined that 

appellant had reached maximum medical improvement on October 25, 2011 the date of his last 

examination. Regarding appellant’s shoulder injury, he found that appellant suffered reduction 

in his range of motion (ROM) in all movements of the right shoulder joint. According to his 

physical examination, appellant had flexion of 110 degrees, backward extension of 30 degrees, 

abduction of 110 degrees, adduction of 20 degrees, external rotation of 60 degrees, and internal 

rotation of 30 degrees. Dr. Bishai concluded that appellant had 12 percent permanent 

impairment of the right upper extremity, under Table 15-34,7 on page 475, of the sixth edition of 

the A.M.A., Guides. Regarding appellant’s right wrist injury, he assigned appellant to class 1 

 4

 OWCP previously accepted claims under File No. xxxxxx787 (where appellant sustained cervical and thoracic 

strains while lifting and moving boxes on April 23, 2004) and File No. xxxxxx097 (where appellant sustained a 

chest contusion, right shoulder tendinitis, and cervical and thoracic strains as a result of falling from a forklift while 

working undercover). 

5

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

6

 Appellant, through his representative, filed claims for wage-loss compensation (Form CA-7) for the periods 

July 1 to 23, 2013 and February 23 to March 8, 2014. By decisions dated August 22, 2013 and April 25, 2014, 

OWCP denied the claims as the medical evidence was insufficient to establish that he was disabled during the 

periods claimed. 

7

 Table 15-34, page 475, of the sixth edition of the A.M.A., Guides is entitled Shoulder Range of Motion. 
3

and grade E for his TFCC tear. Utilizing Table 15-3,8

 on page 396, of the A.M.A., Guides, 

Dr. Bishai concluded that appellant had 10 percent permanent impairment of the right upper 

extremity. He also provided three percent impairment rating for ulnar nerve entrapment. 

Dr. Bishai found that appellant had a combined total of 25 percent permanent impairment of the 

right upper extremity (12 percent + 10 percent + 3 percent). 

By decision dated February 7, 2012, OWCP granted appellant a schedule award for 15 

percent permanent impairment to the right upper extremity for 46.8 weeks for the period 

December 13, 2011 through November 4, 2012. In a decision dated May 7, 2012, an OWCP 

hearing representative vacated the prior decision and remanded the case for further development. 

In a May 16, 2012 report, Dr. James Dyer, an OWCP medical adviser, opined that 

Dr. Bishai properly used the ROM method of rating appellant’s right shoulder impairment and 

concurred with the 12 percent permanent impairment rating. He further found that Dr. Bishai 

correctly used the diagnosis-based impairment (DBI) method of rating appellant’s right wrist 

impairment and concurred with the 10 percent permanent impairment rating. Dr. Dyer found 

that the ulnar nerve neuropathy for either elbow was not an accepted condition and therefore 

could not be included in the schedule award computation. Utilizing Appendix A,9

 on page 604, 

of the A.M.A., Guides, he concluded that appellant had a combined 21 percent permanent 

impairment of the right upper extremity. 

By decision dated October 16, 2012, OWCP granted appellant a schedule award for an 

additional six percent permanent impairment of the right upper extremity. It found that he was 

entitled to a total of 21 percent permanent impairment of the right upper extremity. As appellant 

had previously received a schedule award for 15 percent permanent impairment, he was entitled 

to an additional 6 percent (21 percent – 15 percent) permanent impairment. 

On January 23, 2014 appellant, through his representative, filed a claim for an additional 

schedule award (Form CA-7) and submitted physical therapy notes dated January 24 through 

February 21, 2014. He also submitted a February 12, 2014 report from Dr. Ramon Berenguer, 

an internal and family medicine specialist, who diagnosed carpal tunnel syndrome of the right 

hand, cervical and lumbar disc syndrome, right rotator cuff tear, chronic lumbar strain, and 

radiculopathy of the lower extremities. 

In a report dated July 30, 2013, Dr. Bishai indicated that appellant’s condition had 

worsened. On September 26, 2013 he opined that appellant had 34 percent permanent 

impairment to the right upper extremity. Dr. Bishai rated appellant’s right shoulder condition 

using “the stand alone [ROM] [. . .] because the limitation in the [ROM] [was] the most 

significant disability” appellant had and caused him a great deal of difficulty in activities of daily 

living. He concluded that appellant had 24 percent permanent impairment of the right upper 

extremity, under Table 15-34, on page 475, of the A.M.A., Guides. Dr. Bishai also reiterated his 

opinion that appellant had 10 percent impairment rating for his right wrist condition under Table 

15-3, on page 396, of the A.M.A., Guides. He indicated that a TFCC tear was a class 1 

 8

 Table 15-3, pages 395-97, of the sixth edition of the A.M.A., Guides is entitled Wrist Regional Grid. 

9

 Appendix A, pages 604-06, of the sixth edition of the A.M.A., Guides is entitled Combined Values Chart. 
4

diagnosis. Dr. Bishai assigned a grade modifier 2 for Functional History (GMFE), a grade 

modifier 2 for Physical Examination (GMPE), and found that a grade modifier for Clinical 

Studies (GMCS) was not applicable. Using the net adjustment formula of (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX), he found that (2-1) + (2-1) + (n/a) resulted in a net grade 

modifier 2, resulting in an impairment class 1, grade E, equaling 10 percent permanent 

impairment of the right upper extremity. Dr. Bishai determined that appellant had a combined 

34 percent permanent impairment of the right upper extremity (24 percent + 10 percent). 

On January 27, 2014 Dr. Howard Hogshead, a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed the evidence of record. He concurred with Dr. Bishai’s 24 

percent impairment rating for the right shoulder injury and the 10 percent impairment rating for 

the right wrist injury, but found that the total impairment rating of 34 percent was incorrectly 

calculated. Dr. Hogshead explained that Dr. Bishai improperly added the two percentages 

together instead of properly relying on the Combined Values Chart of Appendix A, on page 604, 

of the A.M.A., Guides. He concluded that using the chart correctly resulted in a combined 32 

percent permanent impairment of the right upper extremity. On February 19, 2014 Dr. Hogshead 

indicated that appellant was therefore entitled to an additional schedule award for 11 percent of 

the right upper extremity. 

By decision dated March 11, 2014, OWCP granted appellant a schedule award for an 

additional 11 percent permanent impairment of the right upper extremity. It found that he was 

entitled to a total of 32 percent permanent impairment of the right upper extremity and had 

previously received schedule awards for 15 percent permanent impairment and 6 percent 

permanent impairment, which entitled him to an additional 11 percent (32 percent – 15 percent – 

6 percent) permanent impairment. 

On April 3, 2014 appellant, through his representative, requested an oral hearing before 

an OWCP hearing representative and submitted an April 16, 2014 report from Dr. Berenguer 

who reiterated his diagnoses. 

A telephone hearing was held before an OWCP hearing representative on 

October 16, 2014. Subsequently, appellant’s representative submitted a brief arguing that 

OWCP incorrectly calculated appellant’s schedule award compensation. 

By decision dated January 2, 2015, the hearing representative affirmed the March 11, 

2014 schedule award decision. 

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.10 Section 

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

 10 See 20 C.F.R. §§ 1.1-1.4. 
5

of use of specified members, functions, and organs of the body.11 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.12 

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 

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).13 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.14

ANALYSIS 

The issue on appeal is whether appellant established that he sustained more than 32 

percent permanent impairment to the right upper extremity, for which he previously received a 

schedule award. 

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.15 

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

justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians are 

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

 11 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

12 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

13 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 2.808.5a (February 2013). 

14 Isidoro Rivera, 12 ECAB 348 (1961). 

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

16 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
6

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 

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.17 

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 January 2, 2015 

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.

 17 Supra note 15. 
7

ORDER 

IT IS HEREBY ORDERED THAT the January 2, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: April 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board