United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Orangeburg, SC, Employer 

__________________________________________ 

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Docket No. 16-0424 

Issued: February 17, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On January 4, 2016 appellant, through counsel, filed a timely appeal from an August 5, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (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 seven percent permanent impairment 

of her right upper extremity, for which she previously received a schedule award. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 2, 2008 appellant, then a 49-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome due to years of 

repetitive motions with unnatural sitting and body positions. She became aware of her condition 

and its relationship to her employment on September 1, 2007. In an accompanying statement, 

appellant also asserted that her job duties aggravated her arm and shoulder conditions. She 

stopped work on September 10, 2008. 

This case has previously been before the Board. By decision dated August 5, 2011, the 

Board affirmed OWCP’s August 23, 2010 decision that appellant had not met her burden of 

proof to establish an occupational disease in the performance of duty.3

 The facts and 

circumstances of the case as set forth in the Board’s prior decision and order are incorporated 

herein by reference. Following additional case development, on May 30, 2013, OWCP accepted 

appellant’s claim for the conditions of: cervical strain, right shoulder strain, thoracic strain, right 

shoulder rotator cuff tear, medial and lateral epicondylitis of the right elbow, right cubital tunnel 

syndrome and radial tunnel syndrome, right wrist tendinitis and carpal tunnel syndrome, and 

lumbosacral strain, and paid appropriate benefits. 

On August 20, 2013 appellant filed a claim for compensation Form CA-7 requesting 

schedule award compensation benefits. 

In a July 25, 2013 evaluation, Dr. John W. Ellis, a family practitioner, indicated that he 

was familiar with the job duties of a rural carrier and listed appellant’s job duties as well as her 

medical course since the early 2000s. He noted that she had undergone arthroscopic surgery on 

January 28, 2008 for right shoulder rotator cuff repair and impingement and right carpal tunnel 

release March 16, 2009. Dr. Ellis provided examination findings and his review of the medical 

record. He diagnosed the following conditions as due to appellant’s employment: muscle 

tendon unit strains of the neck, right shoulder and thoracic spine; right brachial plexus 

impingement; internal derangement, traumatic arthritis, and rotator cuff tear of the right 

shoulder; medial and lateral epicondylitis of the right elbow with cubital tunnel syndrome and 

ulnar nerve impingement; medial and lateral epicondylitis of the right elbow with radial tunnel 

syndrome, asymptomatic; tendinitis of the right wrist with carpal tunnel syndrome; muscle 

tendon unit strains of the back and right iliolumbar sacroiliac ligaments; and right lumbosacral 

plexus impingement. 

Dr. Ellis opined that appellant had reached maximum medical improvement (MMI) on 

July 25, 2013, but advised that future surgery might be needed. Utilizing the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment4

 (hereinafter 

A.M.A., Guides), and citing to tables and figures, he calculated 19 percent permanent 

impairment of the right upper extremity and 2 percent permanent impairment of the right lower 

extremity. The 19 percent permanent impairment of the right upper extremity consisted of 10 

percent diagnosis-based impairment (DBI) and 10 percent peripheral nerve impairments. The 

 3

 Docket No. 10-2342 (issued August 5, 2011). 

4

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

two percent total impairment of the right lower extremity was due to sciatic nerve impairment. 

Dr. Ellis also attached his worksheet forms explaining his rating. 

In an August 23, 2013 report, an OWCP medical adviser reviewed Dr. Ellis’ July 25, 

2013 report and indicated that many of the items Dr. Ellis considered for impairment were either 

conditions not accepted by OWCP or not substantiated by objective findings. Utilizing Dr. Ellis’ 

examination findings and the sixth edition of the A.M.A., Guides, the medical adviser opined 

that appellant had a total right upper extremity impairment of six percent and provided his 

calculation of permanent impairment for the right shoulder and right carpal tunnel syndrome. 

Based on the deficiencies noted by OWCP’s medical adviser, OWCP referred appellant 

to Dr. James Bethea, a Board-certified orthopedic surgeon, for a second opinion impairment 

rating. In an October 10, 2013 report, Dr. Bethea reviewed the statement of accepted facts, the 

evidence of record, and presented examination findings. An impression of January 28, 2008 

right shoulder arthroscopy with open rotator cuff repair and open subacromial depression and 

status post March 16, 2009 right carpal tunnel release was provided. Dr. Bethea opined that 

appellant had reached MMI, on July 25, 2013. Under the sixth edition of the A.M.A., Guides, he 

opined that she had a seven percent permanent impairment of the right upper extremity. Under 

Table 15-5, page 403, Dr. Bethea opined that appellant had class 1 full thickness tear rotator cuff 

or three percent default impairment. Under Table 15-7 through Table 15-9, he assigned the 

following grade modifiers: Clinical Studies (GMCS) were nonapplicable, grade modifier 2 for 

Functional History (GMFH), and grade 2 for Physical Examination (GMPH) and provided an 

explanation for the assignment of the grade modifiers. A net adjustment of 2 was found under 

the net adjustment formula, (GMFH - Class of Diagnosis (CDX)) (2-1) + (GMPE - CDX) (2-1) + 

(GMCS - CDX) (N/A), which moved the final grade from C to E or five percent permanent 

impairment. 

For appellant’s carpal tunnel condition, Dr. Bethea found two percent permanent 

impairment. Under Table 15-23, page 449, he assigned test findings for grade modifier 1, 

history for grade modifier 2, and physical findings for grade modifier 1. The grade modifiers 

totaled 4, with an average of 1.33. Therefore, the grade 1 was selected, which had a default 

upper extremity impairment value of two percent. The QuickDASH score was 64, which 

indicated a moderate functional scale. Dr. Bethea indicated that he selected grade modifier 1 

with a default value of two percent. Under the Combined Values Chart on page 604, he found 

five percent right shoulder impairment and two percent right carpal tunnel impairment equaled a 

total of seven percent permanent impairment. 

On October 25, 2013 an OWCP medical adviser reviewed Dr. Bethea’s October 10, 2013 

report and found it through and objective. He further opined that Dr. Bethea correctly utilized 

the sixth edition of the A.M.A., Guides and agreed with his impairment calculations for a seven 

percent total permanent impairment of right upper extremity. 

By decision dated October 23, 2013, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right arm. The award ran 21.84 weeks from July 25 

to December 24, 2013. 
4

On November 7, 2013 OWCP received counsel’s November 6, 2013 request for a 

telephonic hearing before an OWCP hearing representative. The hearing was held on 

May 8, 2014. No additional evidence was received. 

By decision dated July 23, 2014, an OWCP hearing representative affirmed OWCP’s 

October 28, 2013 decision finding no evidence that OWCP’s medical adviser had erred in his 

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

On January 20, 2015 OWCP received counsel’s January 8, 2015 request for 

reconsideration based on a new report from Dr. Ellis. 

In an updated December 18, 2014 report, Dr. Ellis provided a history of the injury, a 

review of the medical records, and his examination findings. He opined that appellant’s 

diagnosed conditions of neck sprain, sprain of acromioclavicular (AC), sprain of rotator cuff, 

carpal tunnel syndrome, sprain of back, thoracic region, other tenosynovitis of hand and wrist, 

lesion of ulnar nerve, lesion of radial nerve, sprain of lumbar joint ligament, right elbow lateral 

and medial epicondylitis, right lumbosacral plexus and sciatic nerve impingement, left shoulder 

tendinitis and left wrist tendinitis were causally related to appellant’s work. Dr. Ellis opined that 

she reached MMI as of October 10, 2013 the date of Dr. Bethea’s examination. He opined that 

appellant had 13 percent combined permanent impairment of the right upper extremity based on 

the DBI rating method of surgical repair rotator cuff tear, subacromial decompression with AC 

joint impingement in the shoulder and right peripheral nerve impairments of carpal tunnel 

syndrome and cubital tunnel syndrome. Dr. Ellis’ impairment calculations and impairment 

worksheets were provided. 

In an August 4, 2015 report, an OWCP medical adviser reviewed Dr. Ellis’ December 18, 

2014 report and found that there was no new or pertinent evidence to support additional 

impairment to the right arm. He noted that the only applicable diagnoses for impairment were 

right carpal tunnel syndrome and right rotator cuff tear, and Dr. Ellis provided no new evidence 

to support an additional right arm schedule award greater than seven percent previously awarded. 

By decision dated August 5, 2015, OWCP denied modification of its July 23, 2014 

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 FECA program with the Director of the Office of Workers’ 

Compensation Programs.5 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.6

 FECA, however, does not specify the manner by which the percentage loss 

 5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 
5

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.7

 

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).8

 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.9

ANALYSIS 

The issue on appeal is whether appellant sustained more than seven percent permanent 

impairment of her right upper extremity, 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 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.10 

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

justice under the law to all claimants.11 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 

 7

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

8

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

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

9 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

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.12 

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 August 5, 2015 

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 August 5, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: February 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 12 Supra note 10.