United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.C., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cleveland, OH, 

Employer 

__________________________________________ 

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Docket No. 16-1430 

Issued: April 6, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On June 29, 2016 appellant, through counsel, filed a timely appeal from a May 20, 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.3

 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. 

3

 The record provided to the Board includes medical evidence received after OWCP issued its May 20, 2016 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1). 
2

ISSUE 

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

greater than one percent impairment of the right upper extremity, for which she previously 

received a schedule award. 

FACTUAL HISTORY 

Appellant, a 52-year-old former mail handler, has an accepted occupational disease claim 

(Form CA-2) for lumbar radiculopathy, cervical sprain, and right medial and lateral 

epicondylitis, which arose on or about October 30, 2004.4

 

In May 2007, appellant filed a claim for a schedule award (Form CA-7). However, she 

did not submit any medical evidence of permanent impairment in support of his claim. 

Consequently, OWCP denied the schedule award claim by decision dated February 5, 2009. 

In February 2012 appellant filed another claim for a schedule award (Form CA-7). 

In a report dated February 17, 2012, Dr. William N. Grant, a Board-certified orthopedic 

surgeon, found that appellant had 17 percent permanent impairment of the right upper extremity 

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

Permanent Impairment (2009) (A.M.A., Guides). His right upper extremity rating included 13 

percent brachial plexus impairment, and two percent each for lateral and medial epicondylitis.5

On April 19, 2012 OWCP’s district medical adviser (DMA) opined that the report from 

Dr. Grant contained inaccurate impairment ratings and that appellant should be referred to 

another physician for an impairment rating examination.6

In a report dated June 14, 2012, Dr. Manhal A. Ghanma, a Board-certified orthopedic 

surgeon and OWCP-referral physician, opined that appellant’s accepted work injuries had 

completely resolved and that there were no objective findings to support residual permanent 

impairment from these injuries. 

OWCP found that there was a conflict in medical opinion evidence between Dr. Grant 

and Dr. Ghanma regarding the extent of appellant’s permanent impairment. In April 2014 it 

referred appellant to Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, for an impartial 

medical examination and an opinion regarding permanent impairment. 

In a May 21, 2014 report, Dr. Kaffen determined that appellant’s accepted work injuries 

had resolved and that there was no objective evidence of permanent impairment of her 

extremities. 

 4

 Appellant voluntarily retired effective March 30, 2007. 

5

 A.M.A., Guides 399, 434 (6th ed. 2009) Table 15-4 and Table 15-20. Dr. Grant also found 14 percent bilateral 

lower extremity impairment under Proposed Table 2, The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009). 

6

 The DMA mistakenly believed that Dr. Grant rated appellant’s left upper extremity instead of her right. 
3

By decision dated July 22, 2014, OWCP denied appellant’s schedule award claim finding 

that she had failed to establish permanent impairment to a scheduled member due to her accepted 

work injuries. 

Appellant requested a review of the written record by an OWCP hearing representative. 

In a January 2, 2015 decision, the hearing representative determined that the referral to 

Dr. Kaffen was improper because he had previously been associated with appellant’s claim.7

 

Accordingly, she remanded the case to OWCP for referral to a new impartial medical examiner. 

In a report dated April 10, 2015, Dr. James H. Rutherford, a Board-certified orthopedic 

surgeon and impartial medical examiner, determined that appellant had one percent permanent 

impairment of her right upper extremity under the sixth edition of the A.M.A., Guides. He found 

that, under the diagnosis-based impairment (DBI) rating method found on Table 15-4, Elbow 

Regional Grid, A.M.A., Guides 399 (6th ed. 2009), appellant’s right upper extremity condition of 

lateral epicondylitis fell under the class 1 default value of one percent. Dr. Rutherford 

determined that appellant had a grade modifier for functional history of 1 and grade modifier for 

physical examination of 1, and that a grade modifier for clinical studies was not applicable. He 

indicated that application of the net adjustment formula meant that there was no movement from 

the default value of one percent and he concluded that appellant had a total right upper extremity 

permanent impairment of one percent.8

On June 21, 2015 Dr. Daniel D. Zimmerman, an internist and the DMA, indicated that he 

agreed with Dr. Rutherford’s assessment that appellant had one percent permanent impairment of 

her right upper extremity under the sixth edition of the A.M.A., Guides.

9

 In a decision dated August 7, 2015, OWCP granted appellant a schedule award for one 

percent permanent impairment of her right upper extremity. The award ran for 3.12 weeks and 

was based on the opinion of Dr. Rutherford, the impartial medical examiner. 

Appellant requested a telephone hearing with an OWCP hearing representative and a 

hearing was held on April 13, 2016. By decision dated May 20, 2016, the hearing representative 

affirmed OWCP’s August 7, 2015 decision finding one percent permanent impairment of 

appellant’s right upper extremity. 

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.10 Section 

 7

 Dr. Kaffen had previously examined appellant in January 2007. 

8

 OWCP requested that Dr. Rutherford provide a supplemental report regarding permanent impairment of the 

lower extremities and Dr. Rutherford responded by submitting a May 22, 2015 report. The record does not contain a 

final decision of OWCP regarding permanent impairment of appellant’s lower extremities. As such, the matter of 

lower extremity impairment is not currently before the Board. See 20 C.F.R. § 501.2(c). 

9

 Dr. Zimmerman is a Board-certified orthopedic surgeon. 

10 See 20 C.F.R. §§ 1.1-1.4. 
4

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.11 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.12 

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).13 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.14

ANALYSIS 

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

greater than one percent permanent impairment of the right upper extremity, for which she 

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 range of 

motion (ROM) methodologies when assessing the extent of permanent impairment for schedule 

award purposes.15 The purpose of the use of uniform standards is to ensure consistent results and 

to ensure equal justice under the law to all claimants.16 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 

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

§ 8107(c)(1). 

12 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 

13 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). 

14 Isidoro Rivera, 12 ECAB 348 (1961). 

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

16 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
5

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 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.17 

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 May 20, 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.

ORDER 

IT IS HEREBY ORDERED THAT the May 20, 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 6, 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 

 17 Supra note 15.