United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Denver, CO, 

Employer 

__________________________________________ 

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Docket No. 15-1925 

Issued: February 10, 2017 

Appearances: Case Submitted on the Record

Gregory Hall, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On September 24, 2015 appellant, through counsel, filed a timely appeal from an April 8, 

2015 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. 

 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 more than two percent permanent impairment of his 

right arm. 

FACTUAL HISTORY 

On May 13, 2010 appellant, then a 62-year-old tractor/trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a neck injury while backing into the loading 

dock on May 7, 2010. He reported a pop in his neck when he turned his head. Appellant 

stopped work on May 7, 2010 and was to return on May 15, 2010. On July 15, 2010 he filed a 

claim for occupational disease (Form CA-2), noting that on May 7, 2010 he felt a pop in his neck 

while backing into a dock. Appellant also alleged that his physician had reported degenerative 

disc disease as a result of 25 years of federal employment. The claims have been combined 

under OWCP File No. xxxxxx773. 

On August 3, 2010 OWCP accepted neck sprain and right shoulder impingement as a 

result of the May 7, 2010 incident. Appellant submitted a claim for a schedule award (Form 

CA-7) on September 12, 2013. 

In a report dated November 14, 2013, Dr. Bennett Machanic, a neurologist, provided a 

history of a work injury on May 7, 2010 when appellant struck a loading dock while operating a 

tractor-trailer. He utilized the range of motion (ROM) method to find 12 percent permanent 

impairment of the right shoulder under the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (sixth edition). Dr. Bennett also reported that appellant 

had an ulnar nerve problem and found an additional right arm permanent impairment of four 

percent based on sensory and motor deficit. 

OWCP referred the case to OWCP medical adviser Dr. Morley Slutsky, Board-certified 

in occupational medicine. In a report dated April 15, 2014, Dr. Slutsky recommended that 

appellant be referred for a second opinion examination. 

Appellant was referred to Dr. John Douthit, a Board-certified orthopedic surgeon for a 

second opinion. In a report dated May 19, 2014, Dr. Douthit provided a history and results on 

examination. With respect to the right shoulder, using the ROM method, he reported 20 degrees 

external rotation, 70 degrees internal rotation, 160 degrees flexion and abduction, 20 degrees 

adduction, and 50 degrees extension. Dr. Douthit indicated that three measurements were taken 

in accord with the A.M.A., Guides. He opined that appellant had a right shoulder permanent 

impairment of 12 percent due to loss of range of motion under the A.M.A., Guides at Table 

15-34. 

Dr. Douthit’s report was referred to Dr. Slutsky for review. In a report dated May 29, 

2014, he opined that, under the preferred diagnosis-based impairment (DBI) method, appellant 

had two percent right arm permanent impairment. Dr. Douthit applied Table 15-5 for the 

diagnosis of shoulder tendinitis, and a class 1, grade B impairment. He also found no diagnostic 

studies provided support for the significant loss of shoulder motion which Dr. Douthit had found. 
3

On May 29, 2014 OWCP advised appellant that the accepted conditions had been 

updated and now included: neck sprain, right shoulder impingement, cervical intervertebral disc 

degeneration, and right shoulder calcifying tendinitis. 

OWCP requested an additional report from Dr. Douthit based on the preferred DBI 

method. 

In a report dated June 5, 2014, Dr. Douthit noted that the A.M.A., Guides provides that 

some diagnosis-based grids refer to the ROM section, and indicate that this section is to be used 

as a stand-alone rating when other grids refer to the ROM section or when no other diagnosisbased sections are applicable. He opined that this was confusing. Using the DBI method, under 

Table 15-5, Dr. Douthit opined that appellant had five percent right arm permanent impairment. 

OWCP’s medical adviser, Dr. Slutsky, reviewed Dr. Douthit’s updated report and, by 

report dated June 13, 2014, found two percent permanent impairment of the right arm under 

Table 15-5. 

By decision dated July 8, 2014, OWCP issued a schedule award for two percent right arm 

permanent impairment. The period of the award was 6.24 weeks commencing from 

May 19, 2014. 

On July 23, 2014 appellant requested a hearing before an OWCP hearing representative, 

which was held on February 11, 2015. By decision dated April 8, 2015, the hearing 

representative affirmed the July 8, 2014 decision, finding that the weight of the medical evidence 

was represented by OWCP’s medical adviser. 

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 

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 A.M.A., Guides 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 American Medical Association issued a 52-page document entitled 

 3 See 20 C.F.R. §§ 1.1-1.4. 

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). 
4

“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 has more than two percent permanent 

impairment of his right arm. 

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.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 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.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 April 8, 2015 decision. 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

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). 

10 Supra note 8.
5

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 April 8, 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: February 10, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board