United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

Philadelphia, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1591 

Issued: February 17, 2017 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 21, 2015 appellant, through counsel, filed a timely appeal of a June 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)(1) and 501.3, the Board has 

jurisdiction to consider the merits of the case. 

ISSUE 

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

left upper extremity for which he 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

On appeal, counsel argues that the attending physician’s assessment of permanent 

impairment should be used rather than that of OWCP’s medical adviser. 

FACTUAL HISTORY 

On November 22, 2010 appellant, then a 33-year-old federal air marshal, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a possible sprain, strain, or tear in his left 

shoulder while throwing a punch on November 5, 2010. Dr. Glenn M. Zuck, an osteopath, 

examined appellant on December 6, 2010 and diagnosed a possible rotator cuff tear in the left 

shoulder due to appellant’s performance of defensive tactics in his training program as a federal 

air marshal. On December 8, 2010 he reviewed appellant’s magnetic resonance imaging (MRI) 

scan and found a superior labral tear in the left shoulder. OWCP accepted appellant’s claim for 

sprain of the shoulder and upper arm on November 15, 2010. 

Appellant filed a recurrence of disability claim (Form CA-2a) on June 20, 2012 alleging 

that on June 14, 2012 he sought medical treatment for his November 15, 2010 employment 

injury. He stated that he had performed full duty since his injury and had developed increasing 

soreness and discomfort in his shoulder and elbow. 

On June 14, 2012 Dr. Marc I. Harwood, a physician of professorial rank Board-certified 

in sports medicine, noted appellant’s history of injury in October 2010 and reviewed his MRI 

scan findings. He noted that appellant had pain with all activities of the shoulder particularly 

with overhead activities and working out. Dr. Harwood further noted that appellant’s shoulder 

pain occasionally radiated down the medial aspect of his upper arm to his elbow. Appellant’s 

left shoulder demonstrated 170 degrees of forward flexion with pain, 90 degrees of external 

rotation, and 90 degrees of internal rotation. Dr. Harwood found positive Hawkins, O’Brien, and 

Neer signs. He reported pain with no appreciable weakness to supraspinatus, infraspinatus, and 

subscapularis testing. Dr. Harwood recommended an MRI scan arthrogram. 

By decision dated July 17, 2012, OWCP accepted appellant’s claim for left shoulder 

superior labral tear. It also accepted appellant’s recurrence of disability on June 14, 2012 

through a separate decision dated July 17, 2012. 

Appellant underwent a left shoulder MRI scan on July 27, 2012 which demonstrated tear 

and detachment of the glenoid labrum with a partial thickness tear of the supraspinatus tendon. 

Dr. Harwood reviewed this test on August 6, 2012 and diagnosed left shoulder labral tear. He 

recommended surgery. Dr. Michael G. Ciccotti, a Board-certified orthopedic surgeon, 

performed a left shoulder arthroscopy with antero-inferior labral repair, superior labral repair, 

posterior labral repair, and inferior labral debridement on September 12, 2012. 

On February 27, 2013 Dr. Ciccotti determined that appellant sustained a retear of the 

superior and posterior labrum during physical therapy in January 2013 based on a February 19, 

2013 MRI scan arthrogram. On March 29, 2013 he performed a left shoulder arthroscopy with 

revision posterior labral repair and labral debridement. 
3

On March 6, 2013 OWCP requested that appellant provide information regarding his 

benefits by completing a Form CA-1032. By decision dated May 3, 2013, it suspended 

appellant’s compensation benefits due to his failure to submit a completed Form CA-1032. 

In a report dated December 19, 2013, Dr. Ciccotti found that appellant had achieved a full 

outcome with minimal soreness in his left shoulder. He reported forward flexion of 170 degrees, 

abduction of 170 degrees, internal rotation of 35 degrees, and external rotation of 115 degrees. 

Dr. Ciccotti stated that appellant demonstrated mild tenderness over his deltoid laterally and his 

triceps with no periscapular tenderness, no acromiclavicular (AC) joint tenderness and no 

posterior joint line tenderness. 

Appellant requested a schedule award through a claim for compensation (Form CA-7) 

dated July 24, 2014. OWCP requested additional medical opinion in support of appellant’s claim 

on August 12, 2014. 

Dr. David Weiss, an osteopath, examined appellant on June 5, 2014 and noted appellant’s 

history of injury on November 15, 2010 as well as his medical treatment. He found that 

appellant’s QuickDASH score was 34 percent involving the left upper extremity. Dr. Weiss 

examined appellant’s left shoulder and found focal AC point tenderness as well as tenderness 

along the anterior cuff. He reported appellant’s range of motion varying between flexion of 160 

to 170 degrees, abduction 160 to 180 degrees, external rotation of 80 to 90 degrees and internal 

rotation of 75 degrees. Dr. Weiss found crepitus with circumduction, but that appellant’s manual 

muscle strength testing was normal. Dr. Weiss applied the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3

 and found that in 

accordance with Table 15-34, using the range of motion method,4 appellant had three percent 

impairment due to flexion of 160 degrees, three percent impairment due to abduction of 160 

degrees and one percent impairment due to internal rotation of 75 degrees. He concluded that 

appellant had seven percent impairment of his left upper extremity. 

OWCP’s medical adviser reviewed Dr. Weiss’ report and the remainder of the medical 

record on August 28, 2014. He found that the date of maximum medical improvement was 

June 5, 2014. The medical adviser used the diagnosis-based impairment (DBI) rating method of 

the A.M.A., Guides and found a grade modifier of 1 for functional history5

 as appellant’s left 

shoulder was still symptomatic, a grade modifier of 1 for physical examination due to loss of 

shoulder range of motion,6

 and a grade modifier of 2 for clinical studies based on the arthrogram 

 3

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

4 Id. at 475, Table 15-34. 

5 Id. at 406, Table 15-7. 

6 Id. at 408, Table 15-8. 
4

and MRI scans.7

 He applied the appropriate formula and determined that appellant had grade D, 

four percent impairment of his left upper extremity due to a labrum lesion.8

OWCP’s medical adviser also provided an impairment rating based on the range of 

motion method. He found 170 degrees of flexion or three percent impairment of the upper 

extremity,9

 zero percent impairment due to 170 degrees of abduction, zero percent impairment 

due to 80 degrees of adduction, zero percent impairment due to 80 degrees of internal rotation, 

and zero percent impairment due to 80 degrees of external rotation. The medical adviser noted 

that appellant’s loss of range of motion equated to three percent impairment of the upper 

extremity or grade modifier 1.10

By decision dated December 18, 2014, OWCP granted appellant a schedule award for 

four percent permanent impairment of the left upper extremity. 

Counsel requested reconsideration on March 5, 2015 and submitted an additional report 

from Dr. Weiss. On February 25, 2015 Dr. Weiss disagreed with the grade modifier 1 for 

physical examination, finding that appellant should have received a grade modifier of 2 based on 

moderate palpatory findings consistently documented. He further found that based on 

appellant’s diagnostic testing, the clinical studies grade modifier should be 4 as appellant’s 

arthrogram demonstrated a tear and detachment of the glenoid labrum and moderate 

delamination-type partial thickness tear of the supraspinatus tendon.11 Dr. Weiss concluded that 

appellant was entitled five percent permanent impairment based on the DBI method. 

Dr. Weiss also asserted that an impairment rating using the range of motion method was 

appropriate based on the A.M.A., Guides for a labral lesion.12 He explained, “Since this 

claimant had undergone two arthroscopic surgical procedures and not significant left shoulder 

pain and weakness it was my opinion that the range of motion would more accurately reflect his 

impairment rating.” 

 OWCP’s medical adviser reviewed Dr. Weiss’ February 25, 2015 report on June 4, 2015. 

He opined that Dr. Weiss had appropriately applied the A.M.A., Guides to reach his calculations 

of appellant’s impairment due to loss of range of motion, but had not utilized range of motion 

figures demonstrating appellant’s maximum effort in his calculations and so had reached a 

greater impairment rating than that to which appellant was entitled. The medical adviser stated, 

“When the maximum effort is applied the final left [upper extremity impairment] is three 

percent. This is less than the [DBI] method for labral injury, so the [DBI] method is used for 

final calculations.” 

 7 Id. at 410, Table 15-9. 

8 Id. at 404, Table 15-5. 

9 Id. at 475, Table 15-34. 

10 Id. at 477, Table 15-35. 

11 Id. at 410, Table 15-9. 

12 Id. at 404, Table 15-5. 
5

OWCP’s medical adviser also disagreed with Dr. Weiss’ assessment of the appropriate 

grade modifiers. He opined that a physical examination grade modifier of 2 was not appropriate 

as appellant’s condition was mild following surgery and his range of motion figures were mild. 

The medical adviser noted, “Other physicians found better [range of motion] than Dr. Weiss near 

[maximum medical improvement] as well as only mild tenderness on exam[ination] (see 

Dr. Ciccotti’s report dated December 19, 2013). As such the observed pathology and clinical 

findings are consistent with mild underlying pathology of [physical examination grade modifier] 

of 1, versus a [physical examination grade modifier] of 2 which is what Dr. Weiss assigned.” 

In regard to Dr. Weiss’ assessment of the clinical studies grade modifier, the medical 

adviser noted that appellant’s rotator cuff was found to be normal in both surgeries. He 

concluded that as appellant had only labrum tears he was entitled to a grade modifier 2 for 

clinical studies as opposed to grade modifier 4 as proposed by Dr. Weiss. 

By decision dated June 5, 2014, OWCP denied modification of its December 18, 2014 

schedule award decision, finding that appellant had no more than four percent permanent 

impairment of his left upper extremity in accordance with the reports of OWCP’s medical 

adviser. 

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.13 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.14 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.15 

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. 

 13 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

15 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
6

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

of the A.M.A., Guides (2009).16 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.17

ANALYSIS 

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

impairment of his left upper extremity 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 DBI or the range of 

motion methodology when assessing the extent of permanent impairment for schedule award 

purposes.18 The purpose of the use of uniform standards is to ensure consistent results and to 

ensure equal justice under the law to all claimants.19 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.20 

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 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. 

 16 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). 

17 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

20 Supra note 18. 
7

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the June 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 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board