United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Bryan, TX, Employer 

__________________________________________ 

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Docket No. 15-1757 

Issued: March 17, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 19, 2015 appellant filed a timely appeal from a July 14, 2015 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 review the merits of this case. 

ISSUE 

The issue is whether appellant has more than 11 percent permanent impairment of his 

right upper extremity. 

FACTUAL HISTORY 

On September 8, 2014 appellant, a 42-year-old teacher, sustained a traumatic injury in the 

performance of duty while putting a box on a shelf that was slightly above his head. He heard a 

popping noise from his right shoulder. Appellant dropped the box and grabbed his shoulder, 

 1

 5 U.S.C. § 8101 et seq.
2

which had a stabbing pain. OWCP accepted his claim for right rotator cuff sprain and authorized 

surgery. 

On January 7, 2015 appellant underwent an arthroscopic subacromial decompression and 

assisted biceps tenodesis of the right shoulder. The postoperative diagnosis was right superior 

labral tear and right partial thickness rotator cuff tear. On March 5, 2015 Dr. Brian R. Seabolt, a 

Board-certified orthopedic surgeon, referred appellant for a maximum medical improvement 

(MMI) and impairment rating evaluation. On March 16, 2015 he indicated that appellant had not 

reached MMI. 

Dr. Steve Opersteny, a Board-certified physiatrist, evaluated appellant on April 23, 2015. 

He related the history of injury and made the following findings on physical examination of the 

upper extremities: 140 degrees flexion right, 180 degrees left; 40 degrees extension right, 70 

degrees left; 85 degrees abduction right, 180 degrees left; 25 degrees adduction right, 40 degrees 

left; 60 degrees internal rotation right, 90 left; and 55 degrees external rotation right; 90 degrees 

left. Dr. Opersteny also found 65 degrees right elbow pronation, 80 degrees left. He diagnosed 

status post right shoulder tendon repair, biceps tenodesis, and rotator cuff repair. 

Based on the fourth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment, Dr. Opersteny calculated 13 percent impairment of the 

right upper extremity due to loss of shoulder motion and 1 percent impairment due to loss of 

elbow motion. He concluded that appellant had a total impairment of 14 percent. 

Appellant filed a claim for a schedule award (Form CA-7). 

An OWCP medical adviser reviewed Dr. Opersteny’s evaluation and, applying the sixth 

edition of the A.M.A., Guides (2009), found that appellant had reached MMI on April 23, 2015 

and had 10 percent right upper extremity impairment due to loss of shoulder motion and 1 

percent impairment due to loss of elbow motion, for a total, combined impairment of 11 percent. 

He noted that Dr. Opersteny had not recommended further modification to the rating for any 

grade modifiers. 

In a decision dated July 14, 2015, OWCP issued a schedule award for 11 percent 

impairment of appellant’s right upper extremity. 

LEGAL PRECEDENT 

If there is permanent disability involving the loss or loss of use of a member or function 

of the body, the claimant is entitled to a schedule award for the permanent impairment of the 

scheduled member or function.2

 The schedule award provision of FECA3 and the implementing 

regulations4

 sets forth the number of weeks of compensation payable for permanent impairment 

 2

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

3 Id. at § 8107. 

4

 20 C.F.R. § 10.404. 
3

from loss or loss of use of scheduled members or functions of the body. FECA, however, does 

not specify the manner in which the percentage of loss shall be determined. The method used in 

making such a determination is a matter that rests within the sound discretion of OWCP.5

For consistent results and to ensure equal justice under the law to all claimants, good 

administrative practice necessitates the use of a single set of tables so that there may be uniform 

standards applicable to all claimants.6

 OWCP has adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7

 For schedule awards after May 1, 2009, the sixth 

edition of the A.M.A., Guides is used to calculate schedule awards.8

An employee seeking compensation for a permanent impairment under FECA has the 

burden to establish the essential elements of the claim, including that an employment injury 

contributed to a permanent impairment of a scheduled member of function of the body.9

 The 

medical evidence necessary to support a schedule award includes a physician’s detailed report 

that provides a sufficient description of the impairment.10 Pursuant to OWCP procedures, a 

medical report should show that the impairment has reached MMI, describe the impairment in 

sufficient detail for the evaluator to visualize the character and degree of disability, and give a 

percentage of impairment.11 In addition, the report should include a history of clinical 

presentation, physical findings, functional history, clinical studies or objective tests, analysis of 

findings, and the appropriate impairment based on the most significant diagnosis, as well as a 

discussion of how the impairment rating was calculated under the A.M.A., Guides.12

ANALYSIS 

Appellant has claimed a schedule award based on his accepted right upper extremity 

injury. The accepted condition on which impairment is at issue is a right rotator cuff sprain. The 

Board has reviewed the medical evidence of record and finds it is insufficient to establish that 

appellant has more than 11 percent impairment of his right upper extremity. 

Dr. Opersteny, the physiatrist, evaluated appellant’s impairment of his right upper 

extremity. However, he based his impairment calculation on the long-outdated fourth edition of 

 5 Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986). 

6 A. George Lampo, 45 ECAB 441 (1994). 

7

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

8

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

Chapter 2.808.6.a (January 2010). 

9 See A.B., Docket No. 12-1392 (issued January 24, 2013). 

10 See James E. Jenkins, 39 ECAB 860 (1988). 

11 Supra note 8 at Chapter 2.808.5(b) (February 2013). 

12 Id. at Chapter 2.808.6. If the claimant does provide an appropriate report, the case is referred to an OWCP 

medical adviser. 
4

the A.M.A., Guides. A rating of impairment not based on the proper edition of the A.M.A., 

Guides has little probative value.13 

An OWCP medical adviser’s report and impairment calculation dated June 8, 2015 is the 

only additional medical evidence currently of record as to the nature and extent of appellant’s 

permanent impairment. Reviewing Dr. Opersteny’s examination findings and applying the 

appropriate sixth edition of the A.M.A., Guides (2009), the medical adviser found that appellant 

had a combined, total impairment of 11 percent. The 11 percent rating of the medical adviser 

was the basis for the schedule award in the July 14, 2015 OWCP decision. 

The Board finds that appellant has failed to establish more than 11 percent impairment 

previously awarded. Appellant maintains the burden of proof to establish impairment greater 

than the 11 percent previously awarded. The only medical evidence that properly applied the 

A.M.A. Guides is that of the office medical adviser and OWCP based its schedule award 

decision on that report. 

On appeal, appellant asserts that he should be entitled to the 14 percent permanent 

impairment rating assigned by Dr. Opersteny, not the reduced rating of the medical adviser. He 

further indicates that his arm is no longer the way that it was and a low schedule award is 

disappointing. As noted above, there is no medical opinion of record using the appropriate 

edition of the A.M.A., Guides supporting an award greater than 11 percent. 

The Board notes that appellant may request a schedule award or increased schedule 

award at any time based on evidence of a new exposure or medical evidence showing 

progression on an employment-related condition resulting in permanent impairment or increased 

impairment.14

CONCLUSION 

The Board finds that appellant has failed to establish more than 11 percent permanent 

impairment of his right upper extremity. 

 13 James Kennedy, Jr., 40 ECAB 620, 627 (1989) (an opinion that is not based upon standards adopted by OWCP 

and approved by the Board as appropriate for evaluating schedule losses is of little probative value in determining 

the extent of permanent impairment). 

14 Paul R. Reedy, 45 ECAB 488, 490 (1994); A.A., 51 ECAB 115, 116 (1999). 
5

ORDER 

IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: March 17, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board