United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 16-1530 

Issued: March 1, 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 July 26, 2016 appellant filed a timely appeal from a June 22, 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 sustained more than three percent permanent impairment 

of the right upper extremity for which he previously received a schedule award. 

FACTUAL HISTORY 

On August 1, 2013 appellant, then a 55-year-old mail handler, filed an occupational 

disease claim (Form CA-2) alleging that he developed bicipital tenosynovitis as a result of 

loading his mail truck. OWCP accepted the claim for bilateral bicipital tenosynovitis and right 

 1

 5 U.S.C. § 8101 et seq.
2

complete rotator cuff rupture. Appellant stopped work intermittently and received medical and 

wage-loss compensation. He sought treatment with Dr. R. Sean Churchill, a Board-certified 

orthopedic surgeon, and underwent right shoulder rotator cuff repair on April 16, 2015. 

Appellant was released to work with restrictions on November 16, 2015 and released to work 

without restrictions on December 7, 2015. 

In an October 30, 2015 narrative report, Dr. Churchill reported that appellant had not 

reached maximum medical improvement (MMI) and thus, no final impairment rating could be 

obtained. 

On December 15, 2015 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated December 21, 2015, OWCP requested that Dr. Churchill submit a report 

addressing appellant’s work-related conditions, the date of MMI, objective findings, subjective 

complaints, and an impairment rating rendered according to the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides).2

 

In a January 1, 2016 report, Dr. Churchill responded to OWCP’s development letter 

stating that appellant had reached MMI on December 14, 2015. He explained that this was the 

date of his last examination, he was eight months out from surgery, and he had returned to work 

with no restrictions. Dr. Churchill reported that eight months prior appellant had a diagnostic 

arthroscopy of his right shoulder with acromioplasty and one centimeter supraspinatus rotator 

cuff repair. At the time of his last evaluation, he showed forward elevation to 140 degrees, 

external rotation to the side 40 degrees, and internal rotation up the back to the level of L5 

compared with T10 on the contralateral side. Dr. Churchill noted motor examination as 5-/5 for 

deltoid, external rotator, and subscapularis, as well as abduction at 4+/5. He reported that 

appellant’s examination revealed loss of motion, continued discomfort, and loss of maximal 

power and endurance. Dr. Churchill opined that appellant sustained 15 percent permanent 

impairment. He explained that five percent was due to loss of motion, five percent for continued 

discomfort, and five percent for loss of maximal power and endurance. 

On March 30, 2016 OWCP routed Dr. Churchill’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. Nelson Saldua, Board-certified in orthopedic surgery serving as 

an OWCP district medical adviser (DMA), for review and determination regarding whether 

appellant sustained any permanent impairment of the right upper extremity and date of MMI. 

In an April 8, 2016 report, Dr. Saldua reported that appellant reached MMI on 

December 14, 2015 when his symptoms and physical examination had nearly normalized. 

Utilizing the sixth edition of the A.M.A., Guides, he provided a diagnosis of a rotator cuff injury, 

partial thickness class 1 diagnosis, noting that review of the operative note showed this was a 

partial thickness tear.3

 Dr. Saldua noted that per the most recent notes, appellant had a “residual 

loss,” which has a midrange default of three percent upper extremity impairment. He assigned a 

grade modifier of 1 for functional history due to ongoing discomfort and a grade modifier of 1 

 2

 A.M.A., Guides (2009). 

3 Id. 
3

for physical examination due to loss of range of motion (ROM), continued discomfort, and loss 

of power/endurance. Dr. Saldua reported that a clinical studies grade modifier was not 

applicable. The DMA utilized the net adjustment formula and determined that class 1 grade C 

yielded a total of three percent upper extremity permanent impairment. 

Dr. Saldua noted that Dr. Churchill’s examination was significant for forward flexion of 

140, external rotation of 40, and internal rotation to L5, as well as abduction strength of 4+/5. 

With respect to Dr. Churchill’s impairment rating, Dr. Saldua explained that it did not appear 

that the physician had properly utilized the A.M.A., Guides as all of the impairment calculations 

were based on loss of ROM, subjective complaints, and loss of power/endurance. 

By decision dated June 22, 2016, OWCP granted appellant a schedule award for three 

percent permanent impairment of the right upper extremity. The date of MMI was noted as 

February 14, 2015. The award covered a period of 9.36 weeks from December 14, 2015 through 

February 17, 2016. 

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 

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.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., 

 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’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

6

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

7

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 
4

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

schedule award purposes.8

ANALYSIS 

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 diagnosis-based 

impairment (DBI) or the 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 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.11 

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 June 22, 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 that this case is not in posture for a decision. 

 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). 

11 Supra note 9. 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 22, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: March 1, 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