United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.J., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Miami, FL, Employer 

__________________________________________ 

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Docket No. 16-1140 

Issued: April 5, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 9, 2016 appellant, through counsel, filed a timely appeal from a March 30, 2016 

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 to consider the merits of the case. 

 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.
2

ISSUE 

The issue is whether appellant has met her burden of proof to establish that she has a 

ratable permanent impairment of the bilateral upper extremities, thereby warranting a schedule 

award. 

FACTUAL HISTORY 

Appellant, a 59-year-old nursing assistant, has an accepted occupational disease claim 

(Form CA-2) for bilateral (shoulder) bursitis, which arose on or about April 7, 2010.3

 OWCP paid 

her wage-loss compensation for temporary total disability for the period May 17 through June 2, 

2011, and resumed work in a light-duty capacity beginning June 3, 2011. In November 2014, 

appellant’s treating physician released her to resume full duty.4

 

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

her treating physician, Dr. Thesselon Monderson, a Board-certified orthopedic surgeon 

specializing in hand surgery, advised on March 16, 2015 that she had reached maximum medical 

improvement, he did not provide an upper extremity impairment rating. 

On April 9, 2015 OWCP advised both appellant and her counsel of the need to submit an 

impairment rating in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides). It afforded her at 

least 30 days to submit the requested medical evidence. On May 11, 2015 OWCP contacted 

appellant’s treating physician directly regarding the existence and extent of any ongoing 

residuals due to her accepted bilateral shoulder bursitis. No response was received within the 

time allotted. 

By decision dated June 10, 2015, OWCP denied appellant’s claim for a schedule award. 

It explained that it had not received the previously requested impairment rating under the 

A.M.A., Guides (2009). 

Counsel timely requested an oral hearing before an OWCP hearing representative, which 

was held on February 8, 2016. 

Subsequent to the hearing, OWCP received a September 30, 2015 impairment rating from 

Dr. Samy F. Bishai, a Board-certified orthopedic surgeon. Dr. Bishai’s diagnoses included 

cervical degenerative disc disease, bilateral shoulder impingement syndrome, bilateral shoulder 

internal derangement, and bilateral shoulder joint rotator cuff syndrome.5 He found 24 percent 

 3

 Although the May 23, 2011 acceptance letter does not specifically identify the shoulder region as the site of 

appellant’s accepted bilateral bursitis, her April 8, 2011 Form CA-2 identified an injury involving “[bilateral 

shoulder].” 

4

 Appellant subsequently applied for disability retirement, which was approved in December 2015. 

5

 Dr. Bishai noted that appellant was approved for her shoulder joint injury only, and was not approved for the 

neck condition although she insisted the latter was definitely work related as both the bilateral shoulder and neck 

conditions occurred at the same time on April 7, 2010. 
3

bilateral upper extremity using the range of motion (ROM) impairment ratings based on the 

residual problems she was having with her right and left shoulder joints. Dr. Bishai rated 

appellant under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (2009).6 He 

explained that ROM was the only accurate method of assessing appellant’s impairment for 

schedule award purposes. 

In a March 30, 2016 decision, the hearing representative affirmed OWCP’s June 10, 2015 

decision denying a schedule award. Although Dr. Bishai found 24 percent permanent bilateral 

upper extremity impairment, the hearing representative found the evidence insufficient to 

warrant a schedule award because the diagnosed conditions had not been accepted by OWCP, 

and appellant’s physician was apparently unaware of the actual accepted employment-related 

condition(s). 

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.7

 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.8 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.9 

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. 

 6

 With respect to appellant’s right shoulder, Dr. Bishai found 9 percent permanent upper extremity impairment for 

loss of flexion (80 degrees), 2 percent for loss of extension (15 degrees), 6 percent for loss of abduction (80 

degrees), 1 percent for loss of adduction (20 degrees), 4 percent for loss of internal rotation (20 degrees), and 2 

percent for loss of external rotation (45 degrees), for a total 24 percent permanent right upper extremity impairment. 

Regarding the left shoulder, he found 9 percent permanent upper extremity impairment for loss of flexion (75 

degrees), 2 percent for loss of extension (10 degrees), 6 percent for loss of abduction (75 degrees), 1 percent for loss 

of adduction (15 degrees), 4 percent for loss of internal rotation (15 degrees), and 2 percent for loss of external 

rotation (40 degrees), which also totaled 24 percent permanent impairment of the left upper extremity. 

7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 

9

 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

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

of the A.M.A., Guides (2009).10 The Board has approved OWCP’s use 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.11

ANALYSIS 

The issue is whether appellant has met her burden of proof to establish that she has a 

ratable impairment of the bilateral upper extremities. 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 diagnosis-based 

impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment 

for schedule award purposes.12 The purpose of the use of uniform standards is to ensure 

consistent results and to ensure equal justice under the law to all claimants.13 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 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.14 

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 March 30, 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. 

 10 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);. 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

14 Supra note 12. 
5

CONCLUSION 

The Board finds this case not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the March 30, 2016 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 5, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board