United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF INTERIOR, NATIONAL 

PARK SERVICE, Arlington, VA, Employer

__________________________________________

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Docket No. 17-1397

Issued: October 26, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On June 12, 2017 appellant filed a timely appeal from an April 21, 2017 merit decision 

and a June 6, 2017 nonmerit 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.

ISSUES

The issues are: (1) whether appellant has more than seven percent permanent impairment 

of his right upper extremity, for which he previously received a schedule award; and (2) whether 

OWCP properly denied his request for a review of the written record under 5 U.S.C. § 8124(b) as 

untimely.

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On October 2, 2001 appellant, then a 44-year-old laborer, filed a traumatic injury claim 

(Form CA-1) alleging that on September 24, 2001 he sustained cervical strain and carpal tunnel 

syndrome in the performance of duty. OWCP accepted the claim for cervical strain, right 

shoulder strain, and right carpal tunnel syndrome. Appellant stopped work on July 27, 2002 and 

did not return. On August 22, 2002 he underwent a right anterior acromioplasty, lateral 

resection, and decompression of impingement syndrome of the right shoulder. 

In an impairment evaluation form dated November 30, 2015, Dr. Rida N. Azer, a Boardcertified orthopedic surgeon, found on examination objective evidence of right carpal tunnel 

syndrome, no impingement, and tenderness at the “right levator, scapula and trapezius, over C5, 

C6 and C7.” He opined that appellant had 45 percent permanent impairment of the right upper 

extremity.

Appellant, on April 19, 2016, filed a schedule award claim (Form CA-7). By letter dated 

August 19, 2016, OWCP requested that he submit an impairment evaluation from his attending 

physician addressing the extent of any permanent employment-related impairment in accordance 

with the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides). 

OWCP, on November 18, 2016, referred appellant to Dr. D. Burke Haskins, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated December 15, 

2016, Dr. Haskins discussed appellant’s continued symptoms of pain in his neck, shoulder, and 

right hand. On examination, he found a negative Tinel’s sign of the right wrist with no atrophy 

and intact sensation. Dr. Haskins diagnosed carpal tunnel syndrome, resolved, nonemploymentrelated cervical disc disease with radiculopathy, status post-surgery for a torn rotator cuff, and 

resolved cervical sprain. He opined that appellant had reached maximum medical improvement. 

Dr. Haskins identified the ratable diagnosis as a class 1 full-thickness rotator cuff tear using 

Table 15-5 on page 403 of the A.M.A., Guides, which yielded a default value of five percent. He 

applied a grade modifier of two for functional history due to pain with activities and a grade 

modifier of two for physical examination findings of a moderate decrease in range of motion to 

find an adjusted impairment rating of seven percent. Dr. Haskins opined that appellant had no 

ratable impairment due to carpal tunnel syndrome.

An OWCP medical adviser reviewed the evidence on February 9, 2017 and concurred 

with Dr. Haskins’ impairment rating. 

By decision dated April 21, 2017, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the right upper extremity. The period of the award ran for 

21.84 weeks from April 2 to September 1, 2017.

In a letter dated May 13, 2017 and postmarked June 1, 2017, appellant requested a review 

of the written record. By decision dated June 6, 2017, OWCP denied his request for a review of 

the written record as it was untimely. It considered the request within its discretion and found 

that the matter could be equally well addressed by appellant requesting reconsideration and 

submitting evidence showing more than seven percent permanent impairment. 
3

On appeal appellant describes his injury and the medical treatment he received. He 

asserts that he continues to have pain with certain movements and at night. Appellant maintains 

that he should be awarded the 45 percent permanent impairment found by Dr. Azer in his

November 30, 2015 report. He contends that he injured his right knee participating in a 2015 

functional capacity evaluation.

LEGAL PRECEDENT -- ISSUE 1

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 FECA program with the Director of the Office of Workers’

Compensation Programs.2 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.3 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.4 

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A., Guides 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).5 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.6

ANALYSIS -- ISSUE 1

The issue on appeal is whether appellant has more than seven percent permanent 

impairment of the right upper extremity. 

 

2

See 20 C.F.R. §§ 1.1-1.4.

3

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

§ 8107(c)(1).

4

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

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); id. Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

6

Isidoro Rivera, 12 ECAB 348 (1961).
4

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 range of motion (ROM) methodology when assessing the extent of 

permanent impairment for schedule award purposes.7 The purpose of the use of uniform 

standards is to ensure consistent results and to ensure equal justice under the law to all 

claimants.8 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 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 found that OWCP could no longer ensure consistent results and equal justice under the 

law for all claimants.9

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 April 21, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly, 

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.10

On appeal appellant asserts that he injured his right knee undergoing a functional 

capacity evaluation.11 The Board’s jurisdiction is limited to reviewing final decisions of 

OWCP.12 OWCP has not issued a final decision on this issue and thus it is not before the Board 

at this time. 

CONCLUSION

The Board finds that this case is not in posture for decision.

 

7

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

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

9

Supra note 7.

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

11 In view of the Board’s disposition of the merits, it is premature to address the issue of whether OWCP properly 

denied appellant’s request for an oral hearing as untimely. 

12 20 C.F.R. § 501.2(c).
5

ORDER

IT IS HEREBY ORDERED THAT the June 6 and April 21, 2017 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this opinion of the Board.

Issued: October 26, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board