United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 16-0865 

Issued: April 4, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 22, 2016 appellant filed a timely appeal from a February 29, 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 an additional nine percent 

permanent impairment of his right upper extremity, for which he previously received a schedule 

award. 

FACTUAL HISTORY 

On November 5, 2012 appellant, then a 69-year-old tractor trailer operator, filed an 

occupational disease claim (Form CA-2) alleging injuries as a result of repetitive motion in his 

 1

 5 U.S.C. § 8101 et seq. 
2

federal employment. He described the repetitive motion as pushing, pulling, and turning while 

loading and unloading trucks. The conditions attributed to this activity included left carpal and 

cubital tunnel syndromes, and right shoulder rotator cuff tear with impingement syndrome. On 

July 26, 2013 appellant had right shoulder surgery performed by Dr. Olayinka Ogunro, a Boardcertified orthopedic surgeon, described as arthroscopic partial acromioplasty, arthroscopic 

excision of the distal clavicle, and bursectomy. He began receiving wage-loss compensation as 

of July 17, 2013. 

With respect to permanent impairment, appellant has two other claims that are relevant to 

the current decision on appeal. He filed a claim for a traumatic injury on November 8, 2002, 

assigned File No. xxxxxx843, which was accepted for right wrist strain, sprain of third digit right 

hand, right hand traumatic arthropathy, and right hand chondrolcalcinosis. OWCP issued a 

schedule award for 12 percent permanent impairment of the right upper extremity on 

September 20, 2011. The period of the award was 37.44 weeks from August 5, 2011. Appellant 

appealed to the Board. By decision dated May 23, 2012, the Board affirmed the September 20, 

2011 schedule award determination.2

Appellant also filed a claim on February 2, 2006 for right cubital tunnel and carpal tunnel 

syndrome causally related to factors of his federal employment, assigned File No. xxxxxx980. 

The claim was accepted for right carpal tunnel syndrome. By decision dated March 1, 2007, 

OWCP issued a schedule award for 12 percent permanent impairment of the right upper 

extremity. The period of the award was 37.44 weeks from July 7, 2006. 

In the present claim, appellant submitted a December 8, 2014 report from Dr. Jerry Franz, 

a Board-certified surgeon. Dr. Franz provided a history and noted results from examination. He 

opined, utilizing the diagnosis-based impairment (DBI) methodology, that under the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition) 

appellant had 11 percent right arm permanent impairment under Table 15-5, the shoulder 

regional grid. Dr. Franz identified the diagnosis as acromioclavicular (AC) joint injury or 

disease, with grade modifiers of two for functional history, one for clinical studies, and one for 

physical examination. Dr. Franz concluded that under Table 15-5 appellant had a grade D, or 11 

percent right arm permanent impairment. 

The report of Dr. Franz was sent to an OWCP medical adviser for review. In a report 

dated February 25, 2015, the medical adviser concurred with Dr. Franz that appellant had 11 

percent right arm permanent impairment based on the right shoulder condition. He then 

indicated that to determine appellant’s additional impairment, the prior impairment of 24 percent 

should be combined with the current impairment, and then the prior impairment subtracted. In 

performing the calculation, the medical adviser combined 24 and 12, resulting in 33 percent, and 

then subtracted 24 percent to find that appellant was entitled to an additional nine percent 

permanent impairment of the right arm. 

 2

 Docket No. 12-0059 (issued May 23, 2012). 
3

By decision dated February 29, 2016, OWCP issued a schedule award for an additional 

nine percent right upper extremity permanent impairment. The period of the award was 28.08 

weeks from January 19, 2016.3

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.4 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.5 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.6 

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).7 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.8

 3

 Appellant received wage-loss compensation through January 19, 2016, when he returned to work. A claimant is 

not entitled to both wage loss and a schedule award concurrently, and OWCP waited until wage-loss compensation 

ceased to begin the schedule award payments. James A. Earle, 51 ECAB 567 (2000). 

4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 

6

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

7 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). 

8 Isidoro Rivera, 12 ECAB 348 (1961). 
4

ANALYSIS 

The issue on appeal is whether appellant had more than an additional nine percent 

permanent impairment to his 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 range of 

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

award purposes.9

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

to ensure equal justice under the law to all claimants.10 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.11 

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 February 29, 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 T.H., Docket No. 14-0943 (issued November 25, 2016). 

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

11 Supra note 9. 
5

ORDER 

IT IS HEREBY ORDERED THAT the February 29, 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 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board