United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

JESSE BROWN VETERANS 

ADMINISTRATION MEDICAL CENTER, 

Chicago, IL, Employer

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Docket No. 17-1439

Issued: February 15, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant filed a timely appeal from a January 12, 2017 merit decision 

and a March 2, 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 to consider the merits of this case

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish greater than 

eight percent right upper extremity permanent impairment, for which she previously received a 

schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On September 24, 2014 appellant, then a 35-year-old medical instrument technician, filed 

a traumatic injury claim (Form CA-1) alleging that, on that date, she aggravated or pulled 

muscles/tendons from her right hand up to her neck while she was repositioning and resetting a 

hemodialysis unit. She stopped work on the date of injury. OWCP assigned this claim File No. 

xxxxxx471. The employing establishment controverted the claim, noting that the circumstances 

surrounding the claim were suspicious since appellant had just returned to work that day after 

being off work due to a prior work injury.

OWCP initially denied appellant’s claim by decision dated November 13, 2014 finding 

that she had not established causal relationship between the employment incident and her 

diagnosed medical conditions.2 By decision dated November 18, 2015, it accepted her claim for 

unspecified right shoulder joint sprain.3

The record reflects that appellant had a prior accepted occupational disease claim which 

had been accepted for bilateral carpal tunnel syndrome and right wrist sprain. OWCP assigned 

the claim File No. xxxxxx866. Appellant received compensation benefits on the supplemental 

rolls under this claim from November 19, 2012 until April 6, 2013, and on the periodic rolls from 

April 7, 2013 until September 20, 2014. 

Appellant received a schedule award under OWCP File No. xxxxxx866 for bilateral 

carpal tunnel syndrome on September 21, 2014. OWCP found that she had eight percent 

permanent impairment of the right upper extremity, and eight percent permanent impairment of 

the left upper extremity due to the accepted bilateral carpal tunnel syndrome. 

On September 29, 2015 OWCP referred appellant’s claim to a district medical adviser 

(DMA). The DMA was instructed to review the medical file to determine whether appellant was 

entitled to a schedule award for more than eight percent right upper extremity and eight percent 

left upper extremity schedule award for her right upper extremity.

In an October 1, 2015 report, Dr. David H. Garelick, a Board-certified orthopedic 

surgeon serving as a DMA, reviewed the evidence OWCP provided and noted that appellant’s 

claim had been accepted for bilateral carpal tunnel syndrome and right wrist sprain under OWCP 

File No xxxxxx866. He opined that appellant was not entitled to a schedule award greater than 

the eight percent right upper extremity and eight percent left upper extremity, she had previously 

been granted.

In a report dated November 5, 2016, Dr. Anatoly M. Rozman, an examining Boardcertified physiatrist, advised that appellant had been under his care since sustaining the right 

shoulder sprain on September 24, 2014. He indicated that she reached maximum medical 

 

2 On December 2, 2014 appellant filed an appeal with the Board. By order dated May 13, 2015, the Board 

granted her request to dismiss her appeal from a November 13, 2014 decision which denied her traumatic injury 

claim. Order Dismissing Appeal, Docket No. 15-0326 (issued May 13, 2015).

3

In an internal memorandum dated January 28, 2016, OWCP combined OWCP File Nos. xxxxxx866, and 

xxxxxx471 with OWCP File No. xxxxxx866 listed as the master File No.
3

improvement (MMI) on November 5, 2016. Dr. Rozman advised that appellant had right 

shoulder residual pain as well as weakness and pain on movement and overhead work residuals. 

He reported no significant right shoulder range of movement changes; weakness on forward 

flexion and internal rotation; negative Adson’s maneuver, Hawkins’ test, drop arm test, and 

empty can test; and right shoulder pain on palpation with no swelling. Dr. Rozman provided an 

impairment rating using the sixth edition of the American Medical Association, Guides to the 

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

4

 Based on a diagnosis of right shoulder 

tendinitis, Dr. Rozman found that, under Table 15-5, p. 402, Shoulder Regional Grid, appellant 

had a class 1 impairment with a default value of three percent. He assigned a grade modifier of 1 

for functional history due to mild problems using Table 15-7, p. 406. Using Table 15-8, p. 408,

Dr. Rozman assigned a grade modifier of 2 for physical examination findings due to moderate 

palpatory findings. No grade modifier was assigned for clinical studies. Dr. Rozman then 

applied the net adjustment formula, concluding that appellant had four percent permanent 

impairment due to right shoulder tendinitis.

On November 26, 2016 appellant filed a claim for a schedule award (Form CA-7) in the 

present claim.

On December 5, 2016 OWCP provided a statement of accepted facts (SOAF) and a copy 

of the medical record to the DMA for review. The DMA was instructed to determine whether 

appellant was at MMI, and if so, to provide a rating of permanent functional impairment of her

right upper extremity due to the accepted right shoulder joint sprain pursuant to the A.M.A. 

Guides.

The SOAF indicated that, under OWCP File No. xxxxxx866, OWCP had accepted 

appellant’s claim for bilateral carpal tunnel syndrome and right wrist sprain. It was also noted 

that under OWCP File No. xxxxxx471 appellant’s claim was accepted for right shoulder joint 

sprain.

In a report dated December 6, 2016, Dr. Arthur S. Harris, Board-certified in orthopedic 

surgery, acting as OWCP’s DMA, reviewed the SOAF and medical evidence and noted that 

appellant’s claim had been accepted for right shoulder sprain. He noted that appellant had a 

permanent impairment due to a right partial rotator cuff tear, rotator cuff tendinitis, and 

impingement syndrome. Dr. Harris used the diagnosis-based impairment (DBI) method and for 

the diagnosis of partial rotator cuff tear and impingement syndrome assigned a class 1 with a 

default position C as per Table 15-5, p. 402 of the A.M.A., Guides. He concurred with

Dr. Rozman’s finding of four percent permanent impairment right upper extremity. 

By decision dated January 12, 2017, OWCP denied appellant’s schedule award claim as 

it found that the medical evidence of record did not warrant an increase beyond the prior 

schedule award. It noted that she had four percent right upper extremity impairment according to 

the December 5, 2016 report by Dr. Harris and November 5, 2016 report by Dr. Rozman due to 

her accepted right shoulder sprain. OWCP noted that appellant had previously been paid a 

schedule award for eight percent right upper extremity permanent impairment and eight percent 

left upper extremity permanent impairment under OWCP File No. xxxxxx866. It found the 

 

4 A.M.A., Guides (6th ed. 2009).
4

medical evidence submitted did not support entitlement to an additional schedule award under 

the sixth edition of the A.M.A., Guides as the impairment rating for her right-sided carpal tunnel 

syndrome was higher than the current impairment rating for her right shoulder condition.5

On February 19, 2017 appellant requested reconsideration of the January 12, 2017 

decision denying her request for a schedule award. She stated that she had been granted a 

schedule award for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx866. Under 

the current claim, appellant contended that she was entitled to a schedule award for her accepted 

right shoulder condition.

By decision dated March 2, 2017, OWCP denied appellant’s request for reconsideration.6 

It found that she had failed to submit relevant and pertinent new evidence or raise a substantive 

legal argument warranting further merit review.

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 the FECA program with the Director of OWCP.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 A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.9

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., 

 

5

In the decision denying appellant’s request for an additional schedule award, OWCP did not explain how 

appellant’s previous award for permanent impairment of her bilateral carpal tunnel syndrome and right wrist sprain 

would be duplicated by an award for unspecified right shoulder sprain. See M.P., Docket No. 17-0150 (issued 

June 21, 2017).

6

In a letter dated June 12, 2017, OWCP advised appellant that it had combined OWCP File Nos. xxxxxx866, 

xxxxxx471, and xxxxxx895, with OWCP File No. xxxxxx866 listed as the master File No. 

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 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 2.808.5(a) (February 2013). 
5

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.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. In addressing impairment for the upper extremities, the 

sixth edition of the A.M.A., Guides requires identifying the impairment class for the diagnosed 

condition, which is then adjusted by grade modifiers based on Functional History, Physical 

Examination, and Clinical Studies.12 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).13

 Evaluators are directed to provide reasons for their impairment rating 

choices, including the choices of diagnosis from regional grid and calculations of modifier 

scores.14

ANALYSIS -- ISSUE 1

The issue on appeal is whether appellant met her burden of proof to establish greater than 

eight percent right upper extremity permanent impairment, for which she 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 range of motion (ROM) methodology when assessing the extent of 

permanent impairment for schedule award purposes.15 The purpose of the use of uniform 

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

claimants.16 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 application of the A.M.A., Guides, the 

 

11 Isidoro Rivera, 12 ECAB 348 (1961).

12 A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014). 

13 Id. at 411.

14 See R.V., Docket No. 10-1827 (issued April 1, 2011).

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

16 Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
6

Board found that OWCP could no longer ensure consistent results and equal justice under the 

law for all claimants.17

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 March 2, 201718 and January 12, 2017 

decisions. 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.19

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’

Compensation Programs dated March 2 and January 12, 2017 are set aside and the case is 

remanded for further proceedings consistent with this decision of the Board.

Issued: February 15, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 Supra note 12.

18 In light of the Board’s findings, the second issue is moot and will not be addressed on this appeal.

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