United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.W., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 15-1819 

Issued: April 5, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 2, 2015 appellant filed a timely appeal from the June 15, 2015 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 review the merits of this case. 

ISSUE 

The issue is whether appellant is entitled to an additional schedule award for his right 

upper extremity. 

FACTUAL HISTORY 

On January 26, 2011 appellant, a 49-year-old production shop planner (general), 

sustained a traumatic injury in the performance of duty while lifting a valve from a pallet to a 

cart. OWCP accepted his claim for right shoulder sprain and late effect of right tendon injury. 

 1

 5 U.S.C. § 8101 et seq.
2

On June 29, 2011 appellant underwent arthroscopic surgery for right rotator cuff repair, 

subacromial decompression, and glenohumeral joint debridement of superior labral tearing. On 

November 26, 2012 he underwent a revision right rotator cuff repair and lysis of adhesions. 

Appellant filed a claim for a schedule award (Form CA-7). Dr. Michael S. McManus, the 

attending physician Board-certified in occupational medicine, evaluated appellant’s impairment. 

He found an eight percent impairment of the right upper extremity, using the diagnosis-based 

impairment (DBI) method due to a full-thickness rotator cuff tear (seven percent) and ruptured 

proximal biceps tendon with residual loss of elbow function (one percent). 

An OWCP medical adviser found that appellant had 12 percent right upper extremity 

permanent impairment under the range of motion (ROM) method of evaluating the shoulder. 

OWCP notified appellant that his physician should prepare an impairment rating for the 

entire right arm, including the conditions accepted under a prior claim.2

After discussing the matter with Dr. McManus, appellant declined to have a new rating. 

In a decision dated August 8, 2014, OWCP denied any additional schedule award due to 

the accepted right shoulder injury. OWCP found that a complete and accurate impairment 

assessment, including an impairment rating for the right shoulder and right wrist conditions 

accepted under appellant’s two claims, had not been provided. 

During a hearing before an OWCP hearing representative, appellant’s then-counsel 

argued that a reexamination of the wrist was unnecessary. He argued that OWCP should 

combine the current 12 percent permanent impairment with the previous 14 percent, using the 

Combined Values Chart, and then subtract the 14 percent previously paid. 

In a decision dated June 15, 2015, OWCP’s hearing representative affirmed the denial of 

an additional schedule award. The hearing representative found no basis for OWCP to use 

evidence from 2001 to determine appellant’s current impairment, “as we have no evidence that 

that impairment continues or is at the same level as previously awarded.” 

On appeal appellant argues that OWCP did not explain why it could not use the 

Combined Values Chart to determine the total impairment. 

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 

 2

 Under OWCP File No. xxxxxx038, appellant had previously received a schedule award on May 25, 2001 for 14 

percent permanent impairment of his right upper extremity due to carpal tunnel syndrome. This rating was 

determined under the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent 

Impairment (1993), OWCP found an 11 percent permanent impairment of the right upper extremity due to median 

nerve sensory deficit and 3 percent impairment due to median nerve motor deficit. 

3 See 20 C.F.R. §§ 1.1-1.4. 
3

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 American Medical Association, Guides to the Evaluation of 

Permanent Impairment 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).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 is entitled to an additional schedule award for 

his right 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 

methodologies 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 

 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 and Permanent Disability 

Claims, Chapter 2.808.5a (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). 
4

observed that physicians interchangeably cite to language in the first printing or the second 

printing when justifying use of either ROM or DBI methodologies. 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.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 June 15, 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.

ORDER 

IT IS HEREBY ORDERED THAT the June 15, 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 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 

 10 Supra note 8.