United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.S., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD & 

INTERMEDIATE MAINTENANCE FACILITY, 

Bremerton, WA, Employer 

__________________________________________ 

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Docket No. 15-1503 

Issued: March 29, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 6, 2015 appellant filed a timely appeal from an April 17, 2015 merit decision of 

the Office of Workers’ Compensation Programs (OWCP).1

 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

 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). After exercising its discretion, the Board, by order dated December 18, 2015, denied the request, as 

appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case record. 

Order Denying Request for Oral Argument, Docket No. 15-1503 (issued December 18, 2015). 

2

 5 U.S.C. § 8101 et seq. 

3

 The record provided to the Board includes medical evidence received after OWCP issued its April 17, 2015 

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. § 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant established that he has more than 12 percent permanent 

impairment of the right upper extremity, for which he previously received a schedule award. 

FACTUAL HISTORY 

On May 11, 2006 appellant, then a 50-year-old welder, injured his right shoulder in the 

performance of duty. OWCP accepted his traumatic injury claim (Form CA-1) for right rotator 

cuff sprain/strain, right rotator cuff tendinitis, and right frozen shoulder. On December 20, 2006 

appellant underwent OWCP-approved right shoulder arthroscopic surgery. He received wageloss compensation for temporary total disability, and ultimately resumed his regular welder 

duties in June 2007.4

 

On August 9, 2007 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated July 17, 2008, OWCP granted appellant a schedule award for six 

percent permanent impairment of the right upper extremity. The award was based on loss of 

shoulder range of motion (ROM) under the fifth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).5

 On an 

appeal request form, dated and postmarked July 30, 2008, appellant requested an oral hearing 

before an OWCP hearing representative. Following a preliminary review, by decision dated 

September 29, 2008, OWCP’s hearing representative set aside the July 17, 2008 schedule award 

and remanded the case to OWCP for further medical development. 

In a March 19, 2009 decision, OWCP determined that appellant had five percent 

permanent impairment of the right upper extremity under the A.M.A., Guides (5th ed. 2001). 

This award was also based on right shoulder ROM deficits. Appellant appealed to the Board on 

April 19, 2009. By order dated February 12, 2010, the Board found that OWCP neglected to 

fully advise appellant of his appeal rights, including a right to a hearing. Consequently, the 

Board set aside the March 19, 2009 schedule award and remanded the case to OWCP for 

issuance of a decision which included all available appeal rights.6

 

On February 25, 2010 OWCP reissued the schedule award for five percent right upper 

extremity permanent impairment that it had previously calculated under the fifth edition of the 

A.M.A., Guides (2001). By that time, it had already adopted the sixth edition of the A.M.A., 

Guides (2009), which applied to all schedule awards issued on or after May 1, 2009. 

On an appeal request form dated September 8, 2010, appellant’s then-counsel requested 

an oral hearing before an OWCP hearing representative. He challenged OWCP’s post-May 1, 

2009 reliance on the fifth edition of the A.M.A., Guides (2001). A hearing was held on 

 4

 Appellant retired in March 2014. 

5

 Section 16.4i, Shoulder Motion Impairment, A.M.A., Guides 474-79 (5th ed. 2001). 

6

 Docket No. 09-1264 (issued February 12, 2010). 
3

June 24, 2010. By decision dated September 8, 2010, the hearing representative disagreed and 

affirmed the February 25, 2010 schedule award. 

Appellant appealed to the Board on January 10, 2011. On September 28, 2011 the Board 

issued an Order Remanding Case, finding that OWCP should have applied the sixth edition of 

the A.M.A., Guides (2nd prtg. 2009) in determining appellant’s entitlement to a schedule award.7

 

Consequently, the Board set aside the hearing representative’s September 8, 2010 decision. 

On remand, OWCP referred appellant for a second opinion examination to determine the 

extent and degree of any employment-related impairment. In a report dated December 29, 2011, 

Dr. Thomas G. Griffith, a Board-certified orthopedic surgeon and OWCP referral physician, 

determined that appellant had 9 percent right upper extremity permanent impairment due to 

shoulder ROM deficits under the A.M.A., Guides (6th ed., 2nd prtg. 2009).8 On February 1, 2012 

OWCP’s district medical adviser (DMA) also found nine percent right upper extremity 

permanent impairment due to shoulder ROM deficits. 

By decision dated February 24, 2012, OWCP granted a schedule award for an additional 

three percent permanent impairment of the right upper extremity for a total of nine percent 

permanent impairment of the right upper extremity.9

Appellant requested a hearing, which was held on June 22, 2012. In a September 12, 

2012 decision, the hearing representative affirmed the February 24, 2012 additional schedule 

award. 

In January 2013, appellant filed a claim (Form CA-7) for an additional schedule award. 

He later submitted a February 19, 2013 impairment rating from Dr. Michael S. McManus, 

Board-certified in occupational medicine. Dr. McManus found five percent right upper 

extremity permanent impairment based on a diagnosis of torn glenoid labrum. He utilized the 

diagnosis-based impairment (DBI) methodology, citing Table 15-5, Shoulder Regional Grid, 

A.M.A., Guides 404 (6th ed., 2nd prtg. 2009). In a March 11, 2013 report, the DMA similarly 

found five percent right upper extremity permanent impairment under Table 15-5. 

In an April 24, 2013 decision, OWCP explained that the current right upper extremity 

impairment rating (five percent) was less than the combined nine percent impairment previously 

awarded, and therefore, appellant was not entitled to an additional schedule award. 

Appellant filed another Form CA-7 on March 3, 2014, but failed to respond to OWCP’s 

request for additional medical evidence of permanent impairment. Consequently, OWCP denied 

his claim for an additional schedule award by decision dated April 16, 2014. 

 7

 Docket No. 11-0584 (issued September 28, 2011). 

8

 Table 15-34, A.M.A., Guides 475 (6th ed. 2009). 

9

 OWCP reduced the current nine percent impairment rating by the six percent award appellant received in 

July 2008. 
4

OWCP subsequently received a May 14, 2014 impairment rating from Dr. John W. Ellis, 

a Board-certified family practitioner and Board-certified in environmental medicine. Dr. Ellis 

found 35 percent right upper extremity permanent impairment based on a combination of ROM 

deficits in the right elbow (12 percent) and right shoulder (26 percent).10 He also provided an 

alternative five percent right shoulder upper extremity rating under the DBI methodology (labral 

tear).11 

On July 29, 2014 appellant requested reconsideration of OWCP’s April 16, 2014 decision 

based on Dr. Ellis’ recent impairment rating. 

In an October 17, 2014 report, the DMA advised that he was unable to affirm Dr. Ellis’ 

May 14, 2014 impairment rating due to multiple issues. His concerns primarily focused on 

Dr. Ellis’ shoulder ROM measurements. 

In an October 22, 2014 decision, OWCP denied an additional schedule award, citing the 

DMA’s finding of “multiple errors” with respect to Dr. Ellis’ May 14, 2014 impairment rating. 

However, on October 30, 2014 it vacated its latest decision, and provided Dr. Ellis an 

opportunity to respond to the DMA’s October 17, 2014 report. 

In a November 5, 2014 report, Dr. Ellis specifically addressed the DMA’s concerns 

regarding his May 14, 2014 ROM measurements. He also explained that because of appellant’s 

frozen right shoulder, the ROM method provided a more accurate assessment of appellant’s 

impairment in comparison to the preferred DBI methodology.12 Dr. Ellis found 25 percent 

impairment of the right upper extremity due to decreased shoulder ROM. He also revised his 

previous right elbow ROM impairment from 12 percent down to 6 percent, having noted a prior 

error with respect to impairment attributed to loss of elbow flexion. 

OWCP again referred the case to its DMA, and in a report dated December 8, 2014, he 

continued to express disagreement with Dr. Ellis’ findings based on his application of the ROM 

impairment rating methodology. The DMA also questioned Dr. Ellis’ remarks regarding 

appellant’s development of a frozen shoulder following surgery. In contrast, he believed that the 

DBI rating for labral tear (five percent), as previously noted by Dr. McManus, was the “most 

accurate” representation of appellant’s upper extremity impairment due to shoulder pathology.13 

OWCP determined that there was a conflict in medical opinion based on the differing 

impairment ratings provided by Dr. Ellis and the DMA. Accordingly, it referred appellant for an 

impartial medical evaluation. 

 10 Table 15-33 and Table 15-34, A.M.A., Guides 474-75 (6th ed., 2nd prtg. 2009). 

11 Table 15-5, A.M.A., Guides 404 (6th ed., 2nd prtg. 2009). 

12 Dr. Ellis noted that appellant’s right shoulder ROM limitations were mechanical rather than pain related. 

13 The DMA excluded the six percent rating for right elbow loss of ROM, but did not otherwise explain why he 

omitted this aspect of Dr. Ellis’ overall upper extremity impairment rating. 
5

In a report dated January 15, 2015, Dr. H. Richard Johnson, a Board-certified orthopedic 

surgeon and impartial medical examiner (IME), found 12 percent right upper extremity 

impairment based on loss of shoulder ROM.14 Dr. Johnson noted, among other things, that there 

was no evidence of suboptimal effort or symptom magnification and that appellant’s loss of 

active ROM was “consistent with a frozen shoulder.” 

In a February 6, 2015 report, the DMA concurred with Dr. Johnson’s 12 percent right 

upper extremity rating based on loss of shoulder ROM. He recommended that the date of 

maximum medical improvement (MMI) be based on Dr. Johnson’s date of examination; 

January 15, 2015. The DMA also advised that appellant’s previous right upper extremity 

schedule awards (9 percent) should be deducted from the current 12 percent rating. 

By decision dated April 17, 2015, OWCP granted appellant a schedule award for an 

additional 3 percent permanent impairment of the right upper extremity, for a total of 12 percent. 

The award was based on the latest reports from Dr. Johnson and the DMA. 

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.15 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.16 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.17 

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. 

 14 Table 15-34, A.M.A., Guides 475 (6th ed. 2009). 

15 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

17 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 
6

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

of the A.M.A., Guides (2009).18 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.19

ANALYSIS 

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

than 12 percent permanent impairment of the 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 ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.20 

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

justice under the law to all claimants.21 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.22 

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 17, 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. 

 18 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). 

19 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

22 Supra note 20. 
7

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the April 17, 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: March 29, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board