United States Department of Labor

Employees’ Compensation Appeals Board

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P.B., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

RANDOLPH AIR FORCE, TX, Employer

__________________________________________

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Docket No. 15-0344

Issued: December 20, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 15, 2014 appellant filed a timely appeal from an October 30, 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 established more than five percent permanent 

impairment of his right upper extremity, for which he previously received a schedule award. 

FACTUAL HISTORY

On September 3, 2013 appellant, a 56-year-old welder, filed an occupational disease claim 

(Form CA-2) alleging a right shoulder condition causally related to factors of his federal 

employment. On November 25, 2013 OWCP accepted the claim for right rotator cuff sprain, right 

 

1

5 U.S.C. § 8101 et seq.
2

bicep tendon strain, and partial tear of right rotator cuff tendon. The claim was subsequently

expanded to include sprain of the shoulder and upper arm, subscapularis right.

On October 25, 2013 appellant underwent a magnetic resonance imaging (MRI) scan of his 

right shoulder. The results of the scan indicated that he had a partial thickness tearing of the 

anterior supraspinatus attachment along the articular surface, longitudinal splitting and tendinosis 

in the distal subscapularis attachment and a degenerative superior labral tear from anterior to 

posterior (SLAP) tear.

On January 30, 2014 appellant underwent right shoulder surgery for diagnostic 

arthroscopy and subscapular tear repair. Dr. Bruce E. Thomas, Board-certified in orthopedic 

surgery, performed the procedure, which had been authorized by OWCP.

On June 11, 2014 appellant filed a claim for a schedule award (Form CA-7).

In a June 12, 2014 report, Dr. William Brandt, Board-certified in orthopedic surgery, 

found that, under the sixth edition of the American Medical Association, Guides to Evaluation of 

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

2

appellant had 12 percent permanent 

impairment of his right upper extremity using the range of motion (ROM) methodology to rate 

loss of ROM in the right shoulder. He relied on Table 15-34 (Shoulder ROM) on page 475 of 

the A.M.A., Guides to find that appellant had 3 percent upper extremity impairment for loss of 

right shoulder flexion; 3 percent upper extremity impairment for loss of right shoulder abduction; 

4 percent upper extremity impairment for loss of right shoulder internal rotation; and 2 percent 

upper extremity impairment for loss of right shoulder external rotation, which amounted to a 

total of 12 percent right upper extremity permanent impairment.

In an October 24, 2014 report, an OWCP medical adviser reviewed Dr. Brandt’s June 12, 

2014 report and found that appellant’s right shoulder impairment rating should be based on the 

diagnosis-based impairment (DBI) methodology, as opposed to the ROM methodology. He 

claimed that the A.M.A., Guides indicates that the DBI method is the “preferred” rating method 

for the upper extremities and that the ROM method should be used only as a physical adjustment 

factor. The medical adviser noted that the A.M.A., Guides further provides that an impairment 

rating based upon the ROM methodology is to be used “only when no other approach is 

available.” Based upon his understanding of the A.M.A., Guides, the medical adviser utilized 

the DBI method and relied on Table 15-5, page 402 (Shoulder Regional Grid), to find that 

appellant had a class 1 impairment for the diagnosis which yielded the highest impairment rating, 

partial thickness tear, based upon the right thickness shoulder region rotator cuff tear with 

residual dysfunction. Applying the net adjustment formula at section 15.3, pages 406-11 of the 

A.M.A., Guides, he found that the grade modifier at Table 15-7, page 406 for functional history 

was 1, for a mild problem, as appellant’s QuickDASH score of 21 did not document that he had 

to perform functional modifications in order to achieve self-care activities. The medical adviser

noted that the grade modifier for physical examination at Table 15-8, page 408 was 2, based on 

mild tenderness to palpation. He further noted that the grade modifier for clinical studies at 

Table 15-9, page 407-11 was 2, as the October 28, 2013 MRI scan showed a partial thickness 

tear in the anterior supraspinatus attachment along the articular surface, with longitudinal 

 

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

splitting and tendinosis in the distal subscapularis attachment and degenerative SLAP tear in the 

superior labrum. 

Pursuant to the net adjustment formula set forth at Table 15-21, pages 409-11, OWCP’s 

medical adviser determined that appellant had an adjusted, default grade E impairment, which 

yielded a rating of five percent permanent impairment of the right upper extremity at Table 15-5, 

page 402 of the A.M.A., Guides. 

By decision dated October 30, 2014, OWCP granted appellant a schedule award for five 

percent permanent impairment of his right upper extremity. The date of maximum medical 

improvement was noted as June 12, 2014 and the award ran from June 12 to September 29, 2014, 

for a total of 15.6 weeks of compensation.

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 

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).6The 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.

 

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).

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 2.808.5a (February 2013).
4

ANALYSIS

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

permanent impairment of his right upper extremity, for which he previously received a schedule 

award.

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

OWCP accepted the conditions of right rotator cuff sprain, right bicep tendon strain, 

partial tear of right rotator cuff tendon, and right subscapularis tear. Following surgery to repair 

the tears in appellant’s right shoulder, his treating physician, Dr. Brandt, found that appellant had 

12 percent permanent impairment of his right upper extremity based on the ROM methodology 

for rating upper extremity permanent impairment. OWCP’s medical adviser, however, found 

that appellant had five percent right upper extremity impairment, noting that the DBI method is 

the preferred rating method under the A.M.A., Guides.

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 had been followed regarding the proper use of the DBI or ROM

methodology when assessing the extent of permanent impairment for schedule award purposes.7 

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

justice under the law to all claimants.8 In T.H., the Board concluded that OWCP physicians were 

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 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 found that OWCP could no longer ensure consistent results and equal 

justice under the law for all claimants.9

In order to ensure a consistent results and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the October 30, 2014 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly, 

and after 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.10

CONCLUSION

The Board finds this case not in posture for decision. 

 

7

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

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

9

Supra note 7.

10 See FECA Bulletin No. 17-0006 (issued May 8, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2014 decision of the Office of 

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

consistent with this decision.

Issued: December 20, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board