United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Lorain, OH, Employer 

__________________________________________ 

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Docket No. 17-0365 

Issued: April 26, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 7, 2016 appellant, through counsel, filed a timely appeal from an 

October 24, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has more than seven percent permanent impairment of the 

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

 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

FACTUAL HISTORY 

On January 9, 2012 appellant, then a 54-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his right shoulder when he tripped on a 

curb and fell to the ground. He stopped work on January 9, 2012. OWCP accepted the claim for 

a sprain of the right shoulder and upper arm and a right rotator cuff tear. It paid appellant 

compensation for total disability beginning February 24, 2012. 

On March 27, 2012 appellant underwent a right rotator cuff repair with subacromial 

decompression and debridement at the glenohumeral joint, labrum, biceps, and rotator cuff. He 

returned to work full time with restrictions on December 12, 2013. 

Appellant, on November 18, 2014, filed a claim for a schedule award (Form CA-7). By 

letter dated December 5, 2014, OWCP requested that he submit a report from his attending 

physician addressing the extent of any employment-related permanent impairment in accordance 

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

Permanent Impairment, (hereinafter A.M.A., Guides).3 

By decision dated March 23, 2015, OWCP denied appellant’s schedule award claim. It 

noted that he had not submitted an impairment evaluation as requested. 

On March 30, 2015 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative. 

In a March 31, 2015 impairment evaluation, Dr. Catherine Watkins Campbell, Boardcertified in family practice, discussed appellant’s history of injury and reviewed his functional 

status questionnaire. On examination, she found tenderness at the acromioclavicular joint and 

anterior glenohumeral and 4/5 muscle strength of the shoulder possibly related to pain. 

Dr. Watkins Campbell measured range of motion (ROM) of the right shoulder three times. 

Referencing the sixth edition of the A.M.A., Guides, and utilizing the ROM methodology, she 

opined that appellant had 20 percent permanent impairment of the right upper extremity. 

An OWCP medical adviser reviewed the report from Dr. Watkins Campbell on June 25, 

2015 and disagreed with her use of the ROM method as it was a “less preferred” method of 

rating impairment under the A.M.A., Guides. He further determined that, under Table 15-34 on 

page 475, appellant had 10 percent rather than 20 percent permanent impairment of the right 

upper extremity due to loss of motion. Utilizing the diagnosis-based impairment (DBI) method, 

the medical adviser identified the diagnosis as a class 1 full-thickness rotator cuff tear with 

residual dysfunction using Table 15-5 on page 403, which yielded a default value of five percent. 

He applied grade modifiers and concluded that appellant had seven percent permanent 

impairment of the right upper extremity. 

By decision dated December 2, 2015, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right upper extremity. The period of the award ran 

for 21.84 weeks from January 22 to June 23, 2015. 

 3

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

Appellant, through counsel, on December 8, 2015 requested a telephone hearing. At the 

telephone hearing, held on August 9, 2016, he argued that ROM was a valid basis for a schedule 

award rating. 

In a decision dated October 24, 2016, OWCP’s hearing representative affirmed the 

December 2, 2015 decision. She found that the opinion of OWCP’s medical adviser constituted 

the weight of the evidence and established that appellant had no more than seven percent 

permanent impairment of the right upper extremity. 

On appeal counsel argues that the A.M.A., Guides provide that the evaluator should use 

the method that provides the maximum impairment rating. He cites T.H.

4

 in support of his 

request to remand the case. 

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.5

 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.6 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.7 

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).8

 The Board has approved the use by OWCP of the A.M.A., 

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

5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 

7

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

8 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). 
4

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.9

ANALYSIS 

The issue on appeal is whether appellant has more than seven percent permanent 

impairment of 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.10 

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

justice under the law to all claimants.11 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.12 

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 October 24, 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 this case not in posture for decision.

 9

 Isidoro Rivera, 12 ECAB 348 (1961). 

10 Supra note 4. 

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

12 Supra note 4. 
5

ORDER 

IT IS HEREBY ORDERED THAT the October 24, 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 26, 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