United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, El Paso, TX, 

Employer 

__________________________________________ 

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Docket No. 17-0320 

Issued: July 10, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 28, 2016 appellant filed a timely appeal from an August 17, 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish more than five 

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

schedule award. 

On appeal appellant disagrees with his impairment rating as he feels that his right arm is 

significantly weaker than his left. He notes that he was required to pass a yearly physical fitness 

 1

 5 U.S.C. § 8101 et seq.
2

test in his position which necessitated daily exercise. Appellant contends that his strength and 

endurance has been significantly reduced due to his employment injury. 

FACTUAL HISTORY 

On November 27, 2013 appellant, then a 34-year-old BORSTAR operator, filed a 

traumatic injury claim (Form CA-1) alleging that on November 5, 2013, while loading a plastic 

case containing equipment into the back of his service vehicle, he felt and heard a loud pop and 

experienced severe pain in his right elbow. He alleged that he sustained pain and sensitivity to 

touch in his right elbow as well as pain and weakness during flexion and extension. Appellant 

also alleged right shoulder pain and weakness. He returned to full duty with no restrictions on 

December 9, 2013. 

On February 21, 2014 OWCP accepted appellant’s claim for sprain of the right elbow 

and forearm. 

Appellant underwent a magnetic resonance imaging (MRI) scan of his right elbow on 

February 26, 2014. This scan demonstrated olecranon bone contusion or stress reaction and 

partial thickness tear of the triceps tendon without full-thickness tear or tendon retraction. A 

second MRI scan on November 26, 2014 showed intact common flexor and extensor tendons, 

normal biceps and triceps tendon attachments, and a normal marrow signal. 

Dr. Andrew J. Palafox, a Board-certified orthopedic surgeon, examined appellant on 

December 22, 2014 and reviewed the November 26, 2014 MRI scan. He disagreed with the 

findings of the MRI scan noting that appellant had “a very significant palpable defect in the 

triceps tendon.” Dr. Palafox noted appellant’s continued difficulty with push-ups overhead 

activities, and bench press. He diagnosed triceps tendon tear and recommended that appellant’s 

MRI scan be reread. On March 2, 2015 Dr. Palafox reported that appellant’s November 26, 2014 

MRI scan was reread to reveal a partial thickness tear of the triceps tendon. He recommended an 

open surgical repair with debridement of the osteophyte on the olecranon and augmented repair 

of the tendon. 

In a report dated February 24, 2016, Dr. Palafox opined that appellant injured his 

dominant right elbow at work resulting in a partial triceps tendon rupture that did not require 

surgery. He reported that appellant returned to regular full-duty work with residual symptoms 

including stiffness, pain, and swelling in his elbow as well as weakness compared to his left arm. 

Dr. Palafox performed a physical examination and found full range of motion (ROM) with 

crepitus and point tenderness. He applied the American Medical Association, Guides to the 

Evaluation of Permanent Impairment,

2 (A.M.A., Guides) and noted that there was no diagnosisbased impairment (DBI) for triceps tendon. Dr. Palafox opined that a triceps tendon rupture 

would be similar to a biceps tendon rupture and applied Table 15-4.3

 He utilized the net 

 2

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

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

3

 A.M.A., Guides 399, Table 15-4. 
3

adjustment formula of the A.M.A., Guides4 and determined that appellant had a class 1 injury, 

with grade modifier Functional History (GMFH) of 1, grade modifier Physical Examination 

(GMPE) of 1, and grade modifier Clinical Studies (GMCS) of 1 based on partial tear of the 

triceps tendon as seen on MRI scan. Dr. Palafox determined that appellant had default grade C 

or five percent permanent arm impairment. He advised that appellant had reached maximum 

medical improvement. 

Appellant filed a schedule award claim (Form CA-7) on June 15, 2016. 

OWCP’s medical adviser reviewed Dr. Palafox’s report on June 27, 2016. Dr. Palafox 

noted appellant’s diagnosed condition of triceps tendon tear and agreed to the method of using 

the DBI method for biceps tendon rupture as appropriate for determining appellant’s impairment 

rating. He determined that appellant had GMFH of 15 as his elbow was still symptomatic, that 

he had a GMPE of 16

 as there was tenderness to palpation, and that the GMCS7 was not 

applicable as it was used to place appellant in the correct diagnostic category. The medical 

adviser applied the net adjustment formula and determined that appellant’s grade of impairment 

was the default C with five percent permanent impairment of the right upper extremity.8

By decision dated August 17, 2016, OWCP granted appellant a schedule award for five 

percent permanent impairment of his right upper extremity. 

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.9 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.10 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 

 4 Id. at 411. 

5 Id. at 406, Table 15-7. 

6 Id. at 408, Table 15-8. 

7 Id. at 411. “If a particular criterion, ... was used to determine the impairment class, it may not be used again to 

determine the grade and is disregarded in the impairment calculation.” 

8 Id. at 399, Table 15-4. 

9 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 
4

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.11 

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).12 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.13

ANALYSIS 

The issue is whether appellant has met his burden of proof to establish more than five 

percent permanent impairment of his right upper extremity 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 had been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.14 

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

justice under the law to all claimants.15 In T.H., the Board concluded that OWCP physicians 

were 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 observed that physicians 

interchangeably cited to language in the first printing or the second printing when justifying use 

of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the 

 11 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

12 Federal (FECA) Procedure Manual, supra note 2. 

13 Isidoro Rivera, 12 ECAB 348 (1961). 

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

15 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
5

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.16 

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the August 17, 2016 decision. Utilizing 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 the case not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the August 17, 2016 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: July 10, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 16 Supra note 14.