United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.H., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

CANANDAIGUA VETERANS MEDICAL 

CENTER, Canandaigua, NY, Employer 

__________________________________________ 

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Docket No. 14-1559 

Issued: March 13, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On July 1, 2014 appellant filed a timely appeal from a March 31, 2014 merit decision of 

the Office of Workers’ Compensation Programs (OWCP) pertaining to his schedule award. 

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 has established that he sustained more than four percent 

permanent impairment of his right arm, for which he received a schedule award. 

FACTUAL HISTORY 

On August 2, 2010 appellant, then a 64-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he was moving a patient in a shower chair, when 

 1

 5 U.S.C. § 8101 et seq. 
2

the patient grabbed his right arm and flung it aside. He alleged injury to his right upper arm and 

shoulder. OWCP accepted the claim for right shoulder sprain and right rotator cuff syndrome 

and paid benefits, including a December 1, 2010 right shoulder surgery. Appellant returned to 

regular duty on April 11, 2011 and retired from the employing establishment on July 2011. 

On November 18, 2011 appellant filed a Form CA-7 claim for a schedule award. In a 

September 29, 2011 report, Dr. Bradley K. Peck, a Board-certified orthopedic surgeon, noted the 

history of injury and set forth examination findings. He stated that appellant’s right shoulder 

chronic complete rotator cuff tear, which was repaired on December 1, 2010, was secure and 

functional. Dr. Peck opined, however, that appellant has 25 percent loss of use of his right arm 

due to his rotator cuff problems with his residual decreased motion and strength. No reference 

was made to the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment2

 (hereinafter A.M.A., Guides) or any calculations for the impairment 

provided. 

In a July 13, 2012 letter, OWCP advised appellant that the medical evidence received was 

insufficient to support his claim. It advised him of the medical evidence necessary to establish 

his entitlement to a schedule award and afforded him 30 days to provide additional 

documentation. 

In a July 27, 2012 report, Dr. Amanda Hagen, Board-certified in preventative medicine, 

provided a history of the work injury and appellant’s course of treatment. She noted examination 

findings and opined that maximum medical improvement had been reached as it had been over 

two years since his original injury. Under the sixth edition of the A.M.A., Guides, Dr. Hagen 

opined that appellant had five percent right upper extremity impairment. Under Table 15-34 for 

shoulder range of motion, she assigned three percent impairment for flexion to 120 degrees; 

extension zero percent; internal rotation zero percent; one percent for external rotation to 70 

degrees; abduction zero percent and adduction zero percent, for a total four percent. Under 

Table 15-35, range of motion grade modifiers, Dr. Hagen found a grade modifier 1. Under Table 

15-7, she found grade modifier functional history of 2. Dr. Hagen stated that this was a net 

modifier of 1. Under Table 15-36, this amounted to a total of 4.5 percent, which rounds to 5 

percent total permanent impairment. 

On February 12, 2013 an OWCP medical adviser reviewed the statement of accepted 

facts and Dr. Hagen’s report. He opined that maximum medical improvement was reached 

July 27, 2012, the date of Dr. Hagen’s examination. The medical adviser stated that Dr. Hagen 

incorrectly calculated five percent permanent impairment under the Table 15-34, range of motion 

method. He noted that Dr. Hagen correctly calculated four percent under Table 15-34 for three 

percent flexion and one percent external rotation. The medical adviser advised that four percent 

is the net modifier under Table 15-36, functional history grade adjustment for range of motion. 

Dr. Hagen got a value of 2 for grade modifier functional history under Table 15-7. Therefore 

adjustment was made of +1. The grade adjustment under Table 15-36, page 477 for net modifier 

of one was five percent of total range of motion impairment. The medical adviser multiplied 

four percent by five percent to equal four percent. He noted that somehow Dr. Hagen got 4.5 

 2

 A.M.A., Guides (6th ed. 2009). 
3

percent and rounded it off to 5 percent, which was incorrect. The medical adviser noted that 

even if the grade modifier functional history was +2, it would only increase the 4 percent by 10 

percent or .4, which still would not equal 5 percent. Accordingly, he provided a final rating of 

four percent permanent impairment of the right upper extremity. 

By decision dated May 20, 2013, OWCP granted appellant a schedule award for four 

percent right arm permanent impairment. The award ran for 12.48 weeks from July 27 to 

October 22, 2012. 

On May 30, 2013 appellant requested an oral hearing, which was held telephonically on 

February 11, 2014. He advised that he had residual symptoms as a result of his torn rotator cuff 

and surgery. Appellant also asserted that OWCP should have relied on Dr. Peck’s assessment. 

No additional evidence was received. 

By decision dated March 31, 2014, OWCP’s hearing representative affirmed OWCP’s 

May 20, 2013 decision. 

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.3

 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.4

 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.5 

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. 

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

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

§ 8107(c)(1). 

5

 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).6 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.7

ANALYSIS 

The issue on appeal is whether appellant has established that he sustained more than four 

percent permanent impairment of his right arm, for which he 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 has been followed regarding the proper use of the diagnosis-based 

impairment (DBI) or the range of motion methodology when assessing the extent of permanent 

impairment for schedule award purposes.8

 The purpose of the use of uniform standards is to 

ensure consistent results and to ensure equal justice under the law to all claimants.9 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 range of motion 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 range of motion 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.10 

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 March 31, 2014 

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 

 6 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 (February 2013). 

7

 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

10 Supra note 8. 
5

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 March 31, 2014 decision of the Office of 

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

consistent with this decision.11

Issued: March 13, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.