United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Hines, IL, Employer 

__________________________________________ 

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Docket No. 14-1683 

Issued: February 13, 2017 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 30, 2014 appellant, through counsel, filed a timely appeal from a July 11, 2014 

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 has established more than three percent permanent 

impairment of the left upper extremity, for which she received a schedule award. 

FACTUAL HISTORY 

OWCP accepted that on February 8, 2012 appellant, then a 56-year-old recreational 

assistant, sustained a contusion of the left shoulder and upper arm when she was struck by a 

combative patient. Dr. Stephen Kalmar, an attending Board-certified family practitioner, 

diagnosed on February 13, 2012 a left biceps tear and left humeral injury. Beginning on 

March 5, 2012 appellant was followed by Dr. Erling Ho, an attending Board-certified orthopedic 

surgeon. In reports through June 27, 2012, Dr. Ho diagnosed left rotator cuff tendinopathy and a 

partial thickness supraspinatus tear, confirmed by a May 11, 2012 magnetic resonance imaging 

(MRI) scan. 

On July 12, 2012 Dr. Ho performed an arthroscopic subacromial decompression of the 

left shoulder, arthroscopic debridement of the glenohumeral joint, and a mini-open biceps 

tenodesis with the incision in the axillary fold. OWCP authorized the surgical procedures. 

Dr. Ho submitted progress notes through March 13, 2013, when he found that appellant had 

attained maximum medical improvement. He noted active abduction and forward flexion to 160 

degrees and external rotation at 70 degrees. Dr. Ho observed 4+/5 strength with resisted 

abduction. He provided permanent work restrictions and discharged appellant from care. 

On April 15, 2013 appellant filed a claim for a schedule award (Form CA-7). In a 

May 13, 2013 letter, OWCP advised appellant of the evidence needed to establish her schedule 

award claim, including a report from her attending physician evaluating the extent of her 

permanent impairment of her left upper extremity under the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter, “A.M.A., 

Guides”).3

In support of her schedule award claim, appellant submitted a July 1, 2013 impairment 

rating from Dr. James P. Elmes, a Board-certified orthopedic surgeon, who reviewed medical 

records and provided a history of injury and treatment. Dr. Elmes concurred that appellant had 

attained maximum medical improvement. On examination of the left upper extremity, he noted 

diminished grip strength, 4/5 weakness, no measurable atrophy, and a normal neurologic 

examination. Dr. Elmes obtained ranges of motion “based on average of three measurements 

with the goniometer.” Referring to the A.M.A., Guides, he explained that according to pages 

298 and 299 of the A.M.A., Guides regarding transition to the sixth edition, appellant’s 

impairment could be rated either using the diagnosis-based impairment (DBI) method under 

Table 15-5,4

 the Shoulder Regional Grid, or the range of motion method according to Table 

15-34.5

 Dr. Elmes selected the range of motion method as it provided “the higher possible 

 3

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

4

 Table 15-5, page 401 is entitled “Shoulder Regional Grid: Upper Extremity Impairments.” 

5

 Table 15-34, page 475 is entitled “Shoulder Range of Motion.” 
3

rating.” He opined that appellant’s left shoulder pain was caused by left rotator cuff 

tendinopathy, bicipital tenosynovitis, and moderate degenerative joint disease of the left 

acromioclavicular joint. Dr. Elmes selected degenerative joint disease as the diagnosis causing 

the greatest impairment, which could be rated using the range of motion method. Referring to 

Table 15-34, he assessed the following percentages of impairment: three percent for flexion at 

150 degrees; one percent for extension at 40 degrees; three percent for abduction at 160 degrees; 

and two percent for internal rotation at 70 degrees. Dr. Elmes combined these impairments to 

equal eight percent permanent impairment due to loss of range of motion. Referring to Table 

15-35,6

 he found a grade modifier of 1, raising the Class of Diagnosis (CDX) to 12 percent. 

Dr. Elmes noted a grade modifier for Functional History (GMFH) of 3 for severe problems, 

demonstrated by a QuickDASH score of 67.5 due to less than normal vocational, social, and 

recreational activities. He explained that because the QuickDASH score above 60 was 

inconsistent with a mild impairment, it raised “questions about the reliability and accuracy of the 

diagnosis and whether symptom magnification [was] present.” Dr. Elmes therefore declined to 

include the GMFH, leaving the left upper extremity permanent impairment rating at eight 

percent. 

On March 14, 2014 OWCP referred Dr. Elmes’ opinion to Dr. David H. Garelick, Boardcertified in orthopedic surgery and sports medicine and serving as an OWCP medical adviser, for 

review and calculation of an impairment rating. Dr. Garelick provided a March 17, 2014 report 

finding that appellant had reached maximum medical improvement as of Dr. Ho’s March 13, 

2013 examination. He disagreed with Dr. Elmes’ use of the range of motion rating method 

which, according to page 387 of the A.M.A., Guides, was used “primarily as a physical 

examination adjustment factor and only to determine actual impairment values in the rare case 

when it is not possible to otherwise define impairment; this is a significant change from prior 

editions.” The medical adviser opined that Dr. Elmes’ opinion should be disregarded due to his 

misinterpretation of the A.M.A., Guides. He recommended three percent impairment of the left 

upper extremity “for a biceps tendon lesion as noted in Table 15-5, page 404 of the A.M.A., 

Guides,” with no applicable grade modifiers. 

By decision dated April 3, 2014, OWCP granted appellant a schedule award for three 

percent permanent impairment of the left upper extremity, based on Dr. Elmes’ clinical findings 

as interpreted by OWCP medical adviser. 

In an April 11, 2014 letter, counsel requested reconsideration. He asserted that, 

according to the A.M.A., Guides, if there were two possible methods for rating a permanent 

impairment OWCP was obligated to select the method that resulted in a higher percentage of 

impairment. 

By decision dated July 11, 2014, OWCP affirmed the April 3, 2014 schedule award. It 

found that Dr. Elmes misapplied the A.M.A., Guides as he included degenerative joint disease of 

the left acromioclavicular joint, a condition not accepted by OWCP. 

 6

 Table 15-35, page 477 is entitled “Range of Motion Grade Modifiers.” 
4

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 the Office of Workers’ 

Compensation Programs.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. 

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 has established more than three percent 

permanent impairment of the left upper extremity, for which she 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 range of 

motion methodology when assessing the extent of permanent impairment for schedule award 

 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). 

10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 
5

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 range of motion 

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 range of motion 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 July 11, 2014 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. 

CONCLUSION 

The Board finds this case not in posture for decision.

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

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

14 Supra note 12.
6

ORDER 

IT IS HEREBY ORDERED THAT the July 11, 2014 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: February 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, 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.