United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.A., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-1255 

Issued: March 14, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 15, 2015 appellant, through counsel, filed a timely appeal from a February 25, 

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 met his burden of proof to establish that he has more than 

five percent permanent impairment of his right arm, for which he received a schedule award. 

FACTUAL HISTORY 

OWCP accepted that on August 15, 2012 appellant, then a 41-year-old police officer, 

sustained a rotator cuff tear of his right shoulder due to falling off a bicycle while on patrol at 

work. Appellant stopped work after his injury and, on October 8, 2012, he underwent an 

OWCP-authorized right rotator cuff repair for a full-thickness tear. He returned to limited duty 

on March 1, 2013 and full duty on May 8, 2013. On June 15, 2013 appellant filed a claim for a 

schedule award due to his accepted work injury. 

In a report dated July 2, 2013, Dr. John L. Dunne, an attending osteopath, discussed 

appellant’s medical history and reported the findings of his examination on July 2, 2013.3

 Using 

Table 15-34 on page 475 of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),4 he determined that 

appellant had loss of right shoulder motion equal to 12 percent permanent impairment of his 

right upper extremity.5 

Dr. Dunne’s July 2, 2013 report was sent for review by Dr. Morley Slutsky, a Boardcertified occupational medicine physician serving as an OWCP medical adviser. In a 

November 3, 2013 report, Dr. Slutsky indicated that the diagnosis-based impairment (DBI) 

rating method was the preferred rating method, with range of motion (ROM) as an adjusting 

factor. He stated that Dr. Dunne’s use of the ROM rating method was not valid. Dr. Slutsky 

indicated that Dr. Dunne only documented one motion per joint movement and that this 

circumstance was not consistent with the criteria in section 15.7 on page 464 of the sixth edition 

of the A.M.A., Guides.6 Using Table 15-5 (Shoulder Regional Grid) on page 403, he placed 

appellant under the diagnosis of rotator cuff injury, full-thickness tear, with a default value of 

five (due to residual loss, functional with normal motion). Dr. Slutsky indicated that there was 

no movement from this value due to grade modifiers and concluded that appellant had five 

percent permanent impairment of his right upper extremity. 

In a February 25, 2014 report, Dr. Dunne repeated his prior opinion that it was 

appropriate to use the ROM method to rate appellant at 12 percent permanent impairment of his 

 3

 Dr. Dunne noted range of right shoulder motion, determined via goniometer, with 130 degrees of flexion, 40 

degrees of extension, 120 degrees of abduction, 40 degrees of adduction, 60 degrees of external rotation, and 45 

degrees of internal rotation. He only listed single findings for each ROM. 

4

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

5

 Dr. Dunne indicated that this impairment rating was not adjusted by grade modifiers. He stated that Table 15-5 

did not account for the residual loss of function with loss of normal ROM. 

6

 Dr. Slutsky also stated, “Additionally the active [ROM] obtained while performing therapy was almost normal 

in flexion and abduction. Therefore Dr. Dunne’s [ROM] measurements are not valid for impairment calculations 

and do not reflect the claimant’s maximum effort.” 
3

right upper extremity. On March 26, 2015 Dr. Slutsky again indicated that appellant had five 

percent permanent impairment of his right upper extremity under the “preferred” DBI rating 

method. 

By decision dated June 6, 2014, OWCP granted appellant a schedule award for five 

percent permanent impairment of his right arm. The award ran for 15.6 weeks from July 2 to 

October 19, 2013 and was based on Dr. Slutsky’s impairment evaluation of the findings of 

Dr. Dunne. The date of maximum medical improvement was July 2, 2013, the date of 

Dr. Dunne’s examination. 

Appellant requested a hearing before an OWCP hearing representative. During the 

hearing held on January 13, 2015, counsel argued that appellant’s right upper extremity 

impairment was best represented by the opinion of Dr. Dunne. 

In a February 25, 2015 decision, the hearing representative affirmed the June 6, 2014 

schedule award decision, noting that appellant did not meet his burden of proof to establish that 

he has more than five percent permanent impairment of his right upper extremity, for which he 

received a 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.7 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.8 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 American Medical Association, Guides to the Evaluation of 

Permanent Impairment as the appropriate standard for evaluating schedule losses.9 

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. 

 7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 

9

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).10 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.11

ANALYSIS 

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

more than five percent permanent impairment of his right arm, for which he 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.12 

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

justice under the law to all claimants.13 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.14 

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 25, 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 

 10 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). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

14 Supra note 12. 
5

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 February 25, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.15

Issued: March 14, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 15 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.