United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Stone Mountain, GA, Employer

__________________________________________

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Docket No. 17-1218

Issued: December 10, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 15, 2017 appellant filed a timely appeal from a February 15, 2017 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 met his burden of proof to establish that he has greater 

than 10 percent permanent impairment of the right upper extremity, for which he previously 

received a schedule award.

FACTUAL HISTORY

On October 18, 2011 appellant, then a 41-year-old letter carrier, injured his right shoulder 

while lifting trays and carrying mail. OWCP accepted his claim for sprain of the shoulder and 

 

1 5 U.S.C. § 8101 et seq.
2

upper arm other specified sites on the right, rotator cuff syndrome of the shoulder and allied 

disorders on the right, and brachial neuritis or radiculitis.

Appellant reached maximum medical improvement (MMI) on September 10, 2013.

OWCP paid appellant wage-loss compensation for temporary total disability through

September 10, 2013. On January 24, 2014 OWCP granted appellant a schedule award for 10

percent permanent impairment of the right arm. The award covered a period of 31.2 weeks from 

September 11, 2013 to April 17, 2014, with a date of MMI of September 10, 2013. Appellant 

returned to work on December 8, 2015 full-time, full duty. However, he had a limitation under 

another claim and was working with limitations.2

On February 5, 2016 appellant filed a claim for an increased schedule award (Form CA-7). 

In support of his claim, he submitted a February 2, 2016 impairment rating from Dr. John Foster, 

III, a Board-certified orthopedic surgeon. In the February 2, 2016 report, Dr. Foster noted his 

examination of appellant, provided findings, and utilized the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 He provided 

findings for range of motion which included 100 degrees abduction, 130 degrees flexion, 60 

degrees external rotation, and 30 degrees internal rotation. Dr. Foster determined that there was 

no instability and motor and sensory examinations were normal. He diagnosed status post revision 

right shoulder arthroscopy, arthroscopic subacromial decompression, scope Mumford, and 

excision of scar tissue with mild arthrofibrosis of the right shoulder. Dr. Foster found 13 percent

right upper extremity permanent impairment. He explained that this meant, as he had a previous 

rating of 10 percent, appellant was due an additional 3 percent for permanent impairment to the 

right upper extremity. Dr. Foster advised that, if the prior rating had not been paid, then his 

payment should be based upon his 13 percent right upper extremity rating. He indicated that 

appellant was at full duty and should continue his current medication.

Dr. Jovito B. Estaris, a physician specializing in occupational medicine and preventive 

occupational medicine and serving as an OWCP district medical adviser (DMA), reviewed the 

report of Dr. Foster and utilized the sixth edition of the A.M.A., Guides. He explained that his 

impairment calculation was based on the diagnosis of tendinitis as there was no rotator cuff tear or 

impingement. Dr. Estaris referenced Table 15-5,

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the Shoulder Regional Grid and determined that 

appellant had three percent upper extremity impairment of the right arm. He explained that he was 

unable to find the diagnosis that Dr. Foster used for the impairment rating as there was no rotator 

cuff tear, no impingement syndrome, no acromioclavicular joint injury or disease, no shoulder 

instability, no labral lesions, or biceps tendon dislocation/subluxation. Dr. Estaris advised that 

tendinitis was therefore the most appropriate diagnosis.

 

2 The record reflects that, under OWCP File No. xxxxxx42, appellant received a schedule award of 11 percent due 

to permanent impairment to the left upper extremity. That case was previously on appeal before the Board. Docket 

No. 11-0614 (issued November 2, 2011). The Board found that appellant had not met his burden of proof to establish 

more than 11 percent permanent impairment of his left upper extremity, for which he previously received a schedule

award.

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

4

Id. at 402.
3

On July 5, 2016 OWCP requested clarification from Dr. Estaris. It noted that appellant 

had previously received a schedule award for 10 percent permanent impairment to the right 

shoulder. OWCP requested that Dr. Estaris clarify his opinion with regard to whether his rating 

for tendinitis was in addition to the prior award.

In a July 8, 2016 response, Dr. Estaris explained that appellant was previously awarded 

compensation for 10 percent permanent impairment of the right upper extremity and there was no 

additional impairment under the A.M.A., Guides. He also noted that MMI had been reached on 

February 2, 2016, the date of Dr. Foster’s report.

By letter dated September 9, 2016, OWCP advised appellant of the DMA’s findings. It

explained that he had previously received a schedule award for 10 percent permanent impairment 

of the right arm and Dr. Estaris had found that there was no additional impairment. OWCP advised 

appellant that a copy of the DMA’s report should be provided to his physician and he would be 

afforded 30 days for the physician to respond.

In response, Dr. Foster completed an attachment to the schedule award development letter. 

He provided range of motion findings, noted referencing the A.M.A., Guides, and opined that 

appellant had 11 percent permanent impairment of the right shoulder.

On October 23, 2016 Dr. Estaris reviewed the supplemental report of Dr. Foster. He 

explained that the impairment rating was based on the reports using the A.M.A., Guides to the 

evaluation of permanent impairment. Dr. Estaris explained that the diagnosis was rotator cuff 

tendinitis and referenced the shoulder regional grid at Table 15-5 for upper extremity impairment, 

page 402. He advised that this grid was the basis for his initial rating. Dr. Estaris explained that

Dr. Foster was now using the range of motion (ROM) method for evaluating permanent 

impairment which is located at page 475. He determined that appellant had abduction of 100 

degrees or 3 percent upper extremity impairment, flexion of 130 degrees or 3 percent upper 

extremity impairment, external rotation of 60 degrees or 0 percent upper extremity impairment, 

and internal rotation of 30 degrees, and 4 percent upper extremity impairment, for a total of 10 

percent right upper extremity impairment. Dr. Estaris referenced Table 15-35 for range of motion 

grade modifiers at page 477, and found less than 12 percent total range of motion impairments, 

which qualified for a grade modifier of one. He referenced Table 15-36, page 477 for functional 

history grade adjustment and range of motion. Dr. Estaris determined that appellant had a grade 

modifier of one due to shoulder discomfort. He referenced Table 15-7 for functional history 

adjustment of the upper extremity at page 406. Dr. Estaris explained that, since the modifiers were 

both one, they were equal and there was no change. He noted that, since there was a previous 

award of 10 percent to the right upper extremity, no additional impairment had been incurred. 

By decision dated February 15, 2017, OWCP denied appellant’s claim for a schedule award 

based on the opinion of the DMA, Dr. Estaris.

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 
4

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.

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 greater 

than 10 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 had been followed regarding the proper use of the diagnosis-based impairment (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 were at odds over the proper methodology for rating upper extremity impairment, 

 

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).

8 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).
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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 

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.12

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 February 15, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly13

and after 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 that the case is not in posture for decision.

 

12 Supra note 9.

13 See FECA Bulletin No. 17-06 (issued May 8, 2017).
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ORDER

IT IS HEREBY ORDERED THAT the February 15, 2017 decision of the Office of 

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

consistent with this decision.

Issued: December 10, 2018

Washington, DC

Christopher J. Godfrey, 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