United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, CHAUTAUQUA 

STATION, Chautauqua, NY, Employer 

__________________________________________ 

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Docket No. 17-1222 

Issued: August 22, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 15, 2017 appellant filed a timely appeal from a December 7, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish permanent impairment 

of his right upper extremity, warranting a schedule award. 

On appeal appellant contends that he sustained a work-related arm injury for which he is 

entitled to a schedule award. He asserts that his surgeon quoted from the sixth edition of the 

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

Guides).2 

 1

 5 U.S.C. § 8101 et seq.

2

 A.M.A., Guides (6th ed. 2009). 
2

FACTUAL HISTORY 

On January 6, 2014 appellant, then a 55-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his right arm when he fell on ice at work that 

same date within the performance of duty. He stopped work on the date of injury. OWCP 

accepted the claim for closed dislocation of the right elbow. The record does not reflect that 

appellant received wage-loss compensation for the accepted injury. 

On January 29, 2014 Dr. Robert H. Ablove, an attending Board-certified orthopedic 

surgeon, performed an authorized open repair of the right elbow capsule, reattachment by 

brachialis, and repair of the medial ulnar collateral ligament. He diagnosed right elbow 

dislocation with tear of the medial ulnar collateral, brachialis, and capsule. 

On July 22, 2014 appellant returned to full-time, full-duty work. 

In a January 20, 2015 medical report, Dr. Ablove noted that appellant was seen for a 

follow-up evaluation of his right elbow. He indicated that appellant had not gained any 

additional motion, but was able to use his arm and had no complaints. On physical examination 

of the right elbow, Dr. Ablove reported a well-healed incision and range of motion (ROM) 

measurements. Appellant had 20 degrees to 100 degrees of flexion with minimal supination and 

approximately 10 degrees of pronation. He had no focal sensibility or motor deficits distally. 

Appellant had right elbow and forearm stiffness following a right elbow fracture dislocation. 

Dr. Ablove assessed closed dislocation of the elbow, unspecified, and closed fracture of the ulna 

coronoid process. He advised that appellant was doing well. Dr. Ablove checked a box marked 

“yes” indicating that appellant was working. He also checked boxes marked “yes” indicating 

that the incident described by appellant was the competent medical cause of his injury/illness, 

that his complaints were consistent with his history of injury/illness, and that his history of injury 

was consistent with objective findings. Dr. Ablove concluded that he had no temporary 

impairment. 

On March 24, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated March 27, 2015, OWCP requested that appellant submit a detailed report 

from his treating physician which provided an impairment evaluation pursuant to the sixth 

edition of the A.M.A., Guides. It specifically requested an opinion as to whether he had reached 

maximum medical improvement (MMI) and detailed descriptions of any restriction of motion in 

terms of degrees of retained active motion, objective findings including decreased strength, 

atrophy, ankyloses, and sensory changes, subjective complaints such as pain or discomfort, and 

permanent impairment under the applicable criteria and tables in the A.M.A., Guides. 

OWCP received a permanent impairment worksheet completed by Dr. Ablove on 

April 24, 2015. He indicated that appellant was examined on January 20, 2015. Dr. Ablove 

assigned class 2 impairment due to decreased ROM of the right elbow. He found 10 percent 

impairment for supination, 3 percent impairment for pronation, 5 percent impairment for 

extension, and 8 percent impairment for flexion, totaling 26 percent permanent impairment of the 

right upper extremity. 
3

In a May 1, 2015 decision, OWCP denied appellant’s claim for a schedule award. It 

found that the medical evidence of record failed to establish permanent impairment of his right 

arm based on the A.M.A., Guides. 

OWCP received an August 5, 2014 ancillary medical report and an October 31, 2014 

right elbow x-ray report from Dr. Charles S. Tirone, a Board-certified radiologist, who addressed 

appellant’s right elbow conditions. 

In an appeal request form and letter dated April 3, 2016, and received on April 13, 2016 

by OWCP, appellant requested reconsideration of the May 1, 2015 decision. He resubmitted 

Dr. Ablove’s January 20, 2015 report. This report was identical to his prior report but, added a 

new paragraph regarding appellant’s impairment. Dr. Ablove opined that, based on appellant’s 

overall elbow and forearm mobility loss, his findings were compatible with 40 percent loss of 

use of the right arm according to New York State Workers’ Compensation Board guidelines. 

Utilizing the sixth edition of the A.M.A., Guides, Table 15-33 (elbow/forearm ROM),3

 he 

reiterated his prior finding that appellant had 8 percent impairment for loss of elbow flexion, 5 

percent impairment for loss of elbow extension, 3 percent impairment for loss of forearm 

pronation, and 10 percent impairment for loss of forearm supination, which resulted in 26 

percent permanent impairment of the right upper extremity. 

Appellant submitted a June 6, 2014 letter and a June 12, 2014 duty status report (Form 

CA-17) from Dr. Ablove in which he released appellant to return to work on June 16, 2016 with 

restrictions. He also submitted QuickDASH questionnaires dated April 3, 2016, an undated 

Activities of Daily Living questionnaire, and photographs illustrating his limited right arm 

motion while performing certain activities and general deformity of his right arm. 

In a December 7, 2016 decision, OWCP denied modification of its May 1, 2015 schedule 

award decision. It found that Dr. Ablove’s January 20, 2015 addendum report failed to provide a 

date of MMI and an explanation, supported by objective findings, for the selection of that date. 

OWCP further found that his report did not provide rationale explaining the calculation of his 26 

percent right upper extremity impairment rating based on the applicable criteria and/or tables of 

the sixth edition of the A.M.A., Guides. 

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.4 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.5

 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 

 3 Id. at 474. 

4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 
4

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.6

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).7 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.8

ANALYSIS 

The issue on appeal is whether appellant has established ratable permanent impairment of 

his right upper extremity, warranting 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 ROM methodology when assessing the extent of permanent impairment for 

schedule award purposes.9 The purpose of the use of uniform standards is to ensure consistent 

results and to ensure equal justice under the law to all claimants.10 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 have 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 

 6

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

7 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 (March 2017). 

8 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

inconsistent in the application of the A.M.A., Guides, the Board has found that OWCP could no 

longer ensure consistent results and equal justice under the law for all claimants.11

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

upper extremity impairment, the Board will set aside the December 7, 2016 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. 

On appeal appellant contends that he sustained a work-related arm injury for which he is 

entitled to a schedule award. He asserts that his surgeon quoted from the sixth edition of the 

A.M.A., Guides. As set forth above, the case is not in posture for decision and will be remanded 

for further action consistent with this decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: August 22, 2017 

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 

 11 Supra note 9.