United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.P., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Dallas, TX, 

Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1558 

Issued: April 13, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 13, 2015 appellant filed a timely appeal from an April 6, 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 over 

the merits of the claim.2

ISSUE 

The issue is whether appellant has met his burden of proof to establish that he has more 

than 14 percent permanent impairment of each upper extremity for which he previously received 

schedule awards. 

 1

 5 U.S.C. § 8101 et seq. 

2

 The record provided to the Board includes evidence received after OWCP issued its April 6, 2015 decision. The 

Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

Appellant, a 57-year-old training technician, has an accepted occupational disease claim 

(Form CA-2) for bilateral carpal tunnel syndrome, which arose on or about January 11, 2010. 

He underwent OWCP-approved right and left carpal tunnel releases on January 18 and April 28, 

2011, respectively. Additional accepted conditions include brachial neuritis/radiculitis, 

cervicalgia, aggravation of cervical intervertebral disc displacement, bilateral shoulder/upper arm 

sprain, and bilateral shoulder region disorder of bursae and tendons. 

By decision dated July 11, 2012, OWCP granted a schedule award for four percent 

bilateral upper extremity permanent impairment under the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009). The 

award covered a period of 24.96 weeks, from February 23 to August 15, 2012. OWCP based the 

award on a report of a district medical adviser (DMA) who utilized the diagnosis-based 

impairment (DBI) method based for the diagnosis of bilateral compression neuropathy median 

nerve computerized tomography scan under Table 15-23, Entrapment/Compression Neuropathy 

Impairment, A.M.A., Guides 449 (6th ed., 2009). In a January 9, 2013 decision, it denied 

modification of its July 11, 2012 bilateral upper extremity schedule award. 

On February 28, 2013 appellant underwent left shoulder arthroscopic surgery, which 

OWCP had authorized. Additionally, OWCP further expanded the claim to include bilateral 

ulnar nerve lesion, bilateral medial epicondylitis, bilateral brachial plexus lesion, lumbar sprain, 

lumbar/lumbosacral intervertebral disc degeneration, and lumbar spinal stenosis. 

In October 2013, appellant returned to work in a part-time, limited-duty capacity.3

 

On February 11, 2014 appellant filed a claim for an increased schedule award (Form 

CA-7). 

In a January 16, 2014 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, 

provided examination findings and opined that appellant reached maximum medical 

improvement (MMI). He found 31 percent left upper extremity permanent impairment and 7 

percent right upper extremity permanent impairment. The left upper extremity impairment 

included 17 percent for spinal nerve (C6, C7) extremity impairment, 11 percent shoulder range 

of motion (ROM) impairment, 5 percent for carpal tunnel syndrome, and 2 percent elbow 

(medial epicondylitis) impairment. With respect to appellant’s right upper extremity, Dr. Shade 

similarly found five percent for carpal tunnel syndrome and two percent elbow (medial 

epicondylitis) impairment. 

On March 18, 2014 Dr. Ronald Blum, a Board-certified orthopedic surgeon and OWCP 

DMA, reviewed the medical record, including Dr. Shade’s January 16, 2014 report. The DMA 

identified what he perceived to be inconsistencies in the medical findings and consequently, 

recommended that OWCP refer appellant for a second opinion evaluation. 

 3

 By May 2014 appellant resumed his regular, full-time duties without restrictions. 
3

OWCP subsequently referred appellant to Dr. Marvin E. Van Hal, a Board-certified 

orthopedic surgeon, who examined appellant on May 22, 2014.4 In his June 2, 2014 report, 

Dr. Van Hal noted that he reviewed appellant’s medical records, a statement of accepted facts, 

and performed his own physical examination. He advised that appellant reached MMI as of 

January 16, 2014, when Dr. Shade last examined appellant. Dr. Van Hal noted that appellant’s 

elbow did not show any significant ROM deficits and there were no imaging studies of either 

elbow to confirm any abnormality. Dr. Van Hal further indicated that appellant already received 

a rating of four percent bilateral upper extremity permanent impairment due to carpal tunnel 

syndrome, which did not appear to require reassessment or further documentation. 

As for other conditions affecting appellant’s upper extremities, Dr. Van Hal noted that 

ROM methodology was the best technique to utilize for determining impairment of the shoulder. 

Under Table 15-34, shoulder ROM, A.M.A., Guides 475 (6th ed., 2009), he indicated that 

appellant had 10 percent left upper extremity permanent impairment. This was comprised of 

three percent impairment for forward flexion (130 degrees), one percent impairment for 

extension (30 degrees), three percent impairment for abduction (130 degrees), one percent 

impairment for adduction (20 degrees), zero percent impairment for external rotation 

(70 degrees), and two percent impairment for internal rotation (70 degrees). For the right 

shoulder, Dr. Van Hal found three percent impairment for flexion (150 degrees), one percent 

impairment for extension (30 degrees), three percent impairment for abduction (140 degrees), 

one percent impairment for adduction (20 degrees), zero percent impairment for external rotation 

(80 degrees), and two percent impairment for internal rotation (70 degrees). He indicated that no 

adjustment to the bilateral shoulder ROM impairments was indicated as appellant was 

functioning at regular duty. 

For the bilateral elbow, Dr. Van Hal found that no impairment was necessary or 

appropriate as the diagnosis was not confirmed symptomatically, there was no magnetic 

resonance imaging (MRI) scan of an epicondylitis condition, or any documentation of an 

ongoing ulnar neuritis. For the cervical spine he found no basis for permanent impairment as no 

objective neurological deficit was found on clinical examination. Dr. Van Hal indicated that 

appellant’s reflexes were symmetrical and his strength was normal except for the supraspinatus, 

which was related to his shoulder surgery and not due to his neck. Thus, he opined that appellant 

had zero percent permanent impairment of the C6 and C7 nerve roots. Dr. Van Hal concluded 

that the only impairment rating warranted was 10 percent each for the right and left upper 

extremities based on loss of shoulder ROM. 

On July 23, 2014 Dr. Blum, the DMA, reviewed the medical record, including Dr. Van 

Hal’s June 2, 2014 report. He indicated that MMI was achieved January 16, 2014. The DMA 

agreed with Dr. Van Hal that there was no need to reassess the previous four percent bilateral 

upper extremity permanent impairment rating for carpal tunnel syndrome. For loss of motion of 

the shoulders, Dr. Blum used Dr. Van Hal’s clinical findings and similarly found 10 percent 

bilateral upper extremity impairment under Table 15-34, A.M.A., Guides 475 (6th ed., 2009). 

 4

 As part of his second opinion evaluation, Dr. Van Hal obtained additional x-rays and referred appellant for a 

functional capacity evaluation, which was performed on May 23, 2014. 
4

By decision dated September 2, 2014, OWCP granted appellant a schedule award for an 

additional 10 percent permanent impairment of each upper extremity, for a total bilateral upper 

extremity impairment of 14 percent. The award covered a 62.4-week period from May 23, 2014 

to August 2, 2015. 

On December 16, 2014 appellant requested reconsideration. He submitted a 

September 29, 2014 report from Dr. Shade who indicated that contrary to Dr. Van Hal’s finding 

of no cervical-related or bilateral elbow impairment, there was diagnostic testing and medical 

reports of record that confirmed elbow diagnoses and found impairment. Dr. Shade 

recommended that appellant be referred for an impartial medical evaluation. 

OWCP also received additional progress reports from Dr. Shade, a March 29, 2014 

cervical MRI scan, and an August 5, 2014 report from Dr. Benjamin C. Dagley, an osteopath 

specializing in physiatry, who provided ROM measurements for appellant’s left shoulder. 

Additionally, it received a September 19, 2014 left elbow MRI scan. 

By decision dated April 6, 2015, OWCP denied modification of its September 2, 2014 

schedule award. 

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. 

 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). 
5

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., 

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 met his burden of proof to establish that he 

has greater than 14 percent permanent bilateral upper extremity impairment. 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 April 6, 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. 

 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). 

9 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

12 Supra note 10. 
6

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the April 6, 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 13, 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