United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Belleville, IL, Employer 

__________________________________________ 

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Docket No. 16-1817 

Issued: April 14, 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 September 12, 2016 appellant filed a timely appeal from an August 18, 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 over the merits of this case. 

ISSUE 

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

impairment of her right upper extremity, for which she has previously received a schedule award. 

FACTUAL HISTORY 

On February 21, 2014 appellant, then a 58-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1) alleging that she sustained an injury to her right shoulder as a result of 

slipping and falling on ice while loading mail into her vehicle. By decision dated June 5, 2014, 

 1

 5 U.S.C. § 8101 et seq. 
2

OWCP accepted the claim for scapulohumeral fibrositis/impingement of the right shoulder and a 

right rotator cuff tear. 

Appellant sought treatment with Dr. Peter J. Anderson, a Board-certified orthopedic 

surgeon, and underwent an arthroscopic acromioplasty, open distal clavicle excision, and rotator 

cuff debridement and repair on October 10, 2014. Dr. Anderson noted that he minimally 

debrided the bursa as most of the rotator cuff was intact. On December 15, 2014 he released 

appellant to return to work with restrictions of sedentary work and no use of the right arm. 

In a letter dated February 3, 2015, addressed to the employing establishment, 

Dr. Anderson noted that appellant had reached maximum medical improvement (MMI) from her 

conditions of a rotator cuff tear and acromioclavicular joint arthrosis. He noted that her final 

impairment rating was 20 percent. 

On August 24, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated September 14, 2015, OWCP informed appellant of the evidence required 

to support her claim for a schedule award. 

In a report dated October 19, 2015, Dr. Anderson noted that appellant had reached MMI 

and related that she had 15 percent permanent impairment of the upper extremity based on her 

rotator cuff surgery complicated by stiffness and pain. 

By decision dated November 13, 2015, OWCP denied appellant’s claim for a schedule 

award, noting that she failed to submit sufficient medical evidence to establish a permanent 

impairment. It noted that the report of Dr. Anderson dated October 19, 2015 failed to explain 

how he arrived at the figure of 15 percent with reference to the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides 

2009). 

On January 19, 2016 appellant requested reconsideration of OWCP’s November 13, 2015 

decision. With her request, she attached a letter from Dr. Anderson, dated December 15, 2015. 

Dr. Anderson wrote that he had rated appellant’s impairment pursuant to the A.M.A., Guides

sixth edition. He opined that she had 13 percent upper extremity impairment due to a class 1 

injury for a rotator cuff repair with residual symptoms and some loss of motion. Dr. Anderson 

noted that appellant had some modifiers, including her loss of motion and residual functional 

loss. He related that he had rated her impairment pursuant to the A.M.A., Guides at page 405 for 

the upper extremity, 403 for the upper extremity, as well as page 417. 

OWCP routed the case file, a statement of accepted facts, and medical reports of 

Dr. Anderson to a district medical adviser (DMA) on April 6, 2016. On May 8, 2016 the DMA 

rendered a report, finding that appellant’s final right upper extremity impairment was five 

percent. The DMA explained that he rated her right upper extremity impairment using the 

diagnosis-based impairment (DBI) method as the physical examinations did not denote range of 

motion (ROM) measurements. He noted that both diagnoses for appellant’s shoulder impairment 

yielded the same impairment rating, so he chose to rate the partial rotator cuff tear. The DMA 

then explained that partial rotator cuff tear with residual loss was a class 1 impairment. A default 

grade C corresponded to three percent impairment rating (Table 15-5, page 402). The Functional 
3

History (GMFH) was grade modifier 1 for a mild problem (Table 15-7, page 406). The Physical 

Examination (GMPE) was a grade modifier 1 for a mild problem (Table 15-8). The Clinical 

Studies (GMCS) was a grade modifier 4 as it showed rotator cuff tear and biceps tendon 

pathology (Table 15-9, page 410). The net modifier was +3 (0+0+3). This moved the grade 2 

spaces to the right to a grade E which corresponded to five percent permanent impairment of the 

right upper extremity. 

The DMA further noted that he had reviewed Dr. Anderson’s report and was unclear as to 

how he arrived at a rating of 13 percent for a rotator cuff tear, as the pages referenced by 

Dr. Anderson did not correspond to the evaluation of impairment for that condition. He 

observed that the date of MMI was February 3, 2015. 

By decision dated May 16, 2016, OWCP concluded that the new evidence warranted 

modification of its November 13, 2015 decision. Consequently, it vacated its prior schedule 

award decision, and granted a schedule award of five percent permanent impairment of the right 

upper extremity. The date of MMI was noted as February 3, 2015. The award covered a period 

of 15.6 weeks from July 4 through October 21, 2015. 

On August 2, 2016 appellant requested reconsideration of OWCP’s May 16, 2016 

decision. With her request, she attached notes from a physical therapist regarding a work 

conditioning reevaluation. Appellant also submitted a letter dated July 18, 2016 from 

Dr. Anderson, in which he noted that he agreed with the “evaluation regarding the percentage of 

job demands she is able to do, her ROM, and her pain level.” 

By decision dated August 18, 2016, OWCP reviewed the merits of appellant’s case and 

denied modification of its prior decision of May 16, 2016. It noted that Dr. Anderson’s letter of 

July 18, 2016 did not clarify how he arrived at his earlier impairment rating. 

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.2 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.3

 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.4 

 2 See 20 C.F.R. §§ 1.1-1.4. 

3

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

§ 8107(c)(1). 

4

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

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).5

 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.6

ANALYSIS 

OWCP accepted appellant’s claim for scapulohumeral fibrositis/impingement of the right 

shoulder and a right rotator cuff tear. The issue is whether appellant sustained more than five 

percent permanent impairment of the upper right extremity, for which she had previously 

received a schedule award. The Board finds that the 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.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 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.9

 

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 

 5 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). 

6

 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

9 Supra note 7. 
5

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 August 18, 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 that this case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the August 18, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and this case is remanded for further proceedings 

consistent with this opinion. 

Issued: April 14, 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