United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.D., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

Honolulu, HI, Employer 

__________________________________________ 

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Docket No. 16-1643 

Issued: March 27, 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 August 9, 2016 appellant filed a timely appeal from a July 19, 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 to 

consider the merits of the case. 

ISSUE 

The issue is whether appellant has more than three percent permanent impairment of his 

left upper extremity, for which he previously received a schedule award. 

On appeal appellant challenges the amount of the schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On January 13, 2015 appellant, then a 43-year-old customs and border protection officer, 

filed a traumatic injury claim (Form CA-1) alleging that, on that date, he was pulling a bag up 

the incline in the baggage area when he felt a tear in his left deltoid area. He stopped work on 

January 14, 2015 and returned to work on July 20, 2015. OWCP accepted appellant’s claim for 

sprain of the left shoulder and upper arm and adhesive capsulitis of the left shoulder. Appellant 

underwent a left shoulder arthroscopy on April 24, 2015. 

In a January 14, 2016 report, Dr. Terry A Vernoy, appellant’s treating Board-certified 

orthopedic surgeon, related that appellant had improved left shoulder pain. He noted that 

appellant had left shoulder range of motion (ROM) that was full and equal to the right with pain 

on extremes and especially to the acromioclavicular joint region. Dr. Vernoy noted that 

appellant had satisfactory status post left shoulder arthroscopy with debridement, decompression, 

release of coracoacromial ligament and manipulation with return of full ROM, but he also related 

that appellant now had aggravation of acromioclavicular joint with resultant capsulitis. He 

concluded that appellant could continue his regular work duties, but that maximum medical 

improvement (MMI) could not be determined due to his new complaint. 

On January 20, 2016 appellant filed a claim for a schedule award (Form CA-7). By letter 

received by OWCP on February 10, 2016, he requested that OWCP provide an independent 

specialist to evaluate his left shoulder permanent impairment because his current physician was 

unable to do so. 

On February 25, 2016 OWCP referred appellant to Dr. Neelesh B. Fernandes, a Boardcertified physiatrist, for a second opinion evaluation. In an April 5, 2016 report, Dr. Fernandes 

found 12 percent permanent impairment of appellant’s left upper extremity. He utilized the 

ROM methodology found in Table 15-34 of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment,

2

 and noted 130 degrees of 

flexion equaled 3 percent upper extremity impairment, 50 degrees of extension equaled 0 percent 

impairment, abduction of 90 degrees equaled 3percent upper extremity impairment, adduction of 

60 degrees equaled 0 percent upper extremity impairment, internal rotation of 10 degrees equaled 

4 percent upper extremity impairment, and external rotation of 45 degrees equaled 2 percent 

impairment. Dr. Fernandes then utilized Table 15-7 for a functional history adjustment.3

 He 

noted a QuickDASH score of 46 was equivalent to grade modifier 2. Dr. Fernandes noted that 

since the functional history grade modifier was the same as ROM grade modifier, there was no 

change to the total ROM impairment. 

On May 31, 2016 OWCP referred appellant’s case to an OWCP medical adviser and 

asked him to review the report of Dr. Fernandes and indicate whether he agreed with his 

assessment. In a June 2, 2016 response, the medical adviser indicated that he had reviewed the 

medical evidence. He noted that on April 24, 2015 appellant underwent a left shoulder 

arthroscopy, debridement, and acromioplasty. The medical adviser noted that appellant had done 

 2

 A.M.A., Guides 475. 

3 Id. at 406. 
3

relatively well following his left shoulder surgery, but had continued subjective complaints of 

weakness in the left shoulder. He noted that whereas Dr. Fernandes found 12 percent left upper 

extremity impairment based on the ROM methodology of calculating permanent impairment, his 

attending physician had previously noted that appellant’s ROM was normal. The medical 

adviser also noted that “more importantly,” pursuant to the A.M.A., Guides, ROM was used 

primarily as a physical examination adjustment factor and only to determine actual impairment 

values in the rare case where it is not possible to otherwise define impairment.4

 Accordingly, he 

recommended discarding the impairment rating of Dr. Fernandes and used the diagnosis-based 

impairment (DBI) methodology to provide an alternate rating of permanent impairment. The 

medical adviser provided that claimant be awarded the default value for residual impingement 

syndrome of three percent upper extremity impairment as noted in Table 15-5 of the A.M.A., 

Guides.

5

 He noted that there would be no change to this award with use of the net adjustment 

formula. 

In a July 19, 2016 decision, OWCP issued a schedule award for three percent permanent 

impairment of the left upper extremity. 

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.6 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.7 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.8 

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. 

 4 Id. at 387. 

5 Id. at 402. 

6 See 20 C.F.R. §§ 1.1-1.4. 

7

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

§ 8107(c)(1). 

8

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).9 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.10

ANALYSIS 

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

impairment of his left upper extremity, for which he previously received a schedule award. 

Dr. Fernandes, OWCP’s second opinion physician, reported on February 25, 2016 that 

appellant had 12 percent permanent impairment of the left upper extremity pursuant to the ROM 

methodology for rating upper extremity permanent impairment. OWCP’s medical adviser, in a 

report dated May 31, 2016, disagreed that appellant’s impairment should be rated for his loss of 

ROM. He concluded that appellant had 3 percent permanent impairment of the left upper 

extremity due to residual impingement syndrome under the DBI methodology for rating upper 

extremity permanent impairment. 

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 ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.11 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.12 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 ROM 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 ROM 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.13 

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 

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

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

(February 2013). 

10 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

13 Supra note 11. 
5

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 19, 2016 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.

ORDER 

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

Compensation Programs dated July 19, 2016 is set aside, and the case is remanded for further 

action consistent with this decision. 

Issued: March 27, 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