United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Detroit, MI, Employer 

__________________________________________ 

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Docket No. 16-0043 

Issued: April 11, 2017 

Appearances: 

Appellant, pro se

Office of Solicitor, for the Director Case Submitted on the Record

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 13, 2015 appellant filed a timely appeal from a September 8, 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 over the merits of the case. 

ISSUE 

The issue is whether appellant has more than seven percent permanent impairment of the 

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

FACTUAL HISTORY 

On January 8, 2014 appellant, then a 51-year-old mail processing transfer clerk filed a 

traumatic injury claim (Form CA-1) alleging that on January 7, 2014 he fell on an icy workroom 

floor and injured his right shoulder. OWCP accepted his claim for sprain of the right upper arm; 

 1

 5 U.S.C. § 8101 et seq. 
2

sprain of the right shoulder, rotator cuff; and complete rotator cuff rupture. It authorized 

arthroscopic surgery on the right shoulder which was performed on February 25, 2014. 

Appellant returned to a light-duty position. 

A January 16, 2014 magnetic resonance imaging (MRI) scan of the right shoulder 

showed full-thickness supraspinatus and infraspinatus tendon tears, partial tear extension into the 

infraspinatus muscle, rotator cuff tendinosis, partial tear of the biceps long head tendon, surface 

fraying of the glenoid labrum most pronounced superiorly, glenohumeral joint effusion, 

contusion/strain of the deltoid muscle, acromioclavicular joint arthropathy, and subacromial 

spurring. 

Appellant was seen by Dr. Homer Linard, an osteopath, on January 27, 2014, for a right 

shoulder injury. Dr. Linard related the history of appellant’s work injury and noted marked 

tenderness to palpation over the anterior and lateral aspects of the right shoulder, and marked 

weakness of the rotator cuff when tested against resistance. He noted that an MRI scan revealed 

a large rotator cuff tear with retraction. Dr. Linard diagnosed torn rotator cuff and adhesive 

capsulitis of the right shoulder. On February 25, 2014 he performed a right shoulder 

arthroscopic subacromial decompression and repair of rotator cuff with manipulation under 

anesthesia. In reports dated June 13 to August 18, 2014, Dr. Linard diagnosed complete rupture 

of rotator cuff and adhesive capsulitis of the shoulder. He noted that appellant was progressing 

slowly with physical therapy and was totally disabled from work. 

On August 23, 2014 appellant requested a schedule award (Form CA-7). 

In a September 3, 2014 letter, OWCP requested that appellant obtain a medical report 

from his treating physician evaluating the extent of his permanent impairment under the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment, (hereinafter A.M.A., Guides).

2

 

Appellant submitted additional reports from Dr. Linard dated September 15 and 

October 13, 2014. Dr. Linard found that the old right shoulder arthroscopy portals were wellhealed, no swelling or tenderness of the right shoulder, some weakness of the rotator cuff, 

neurovascular status was intact, and negative impingement testing. He again diagnosed complete 

rupture of rotator cuff, adhesive capsulitis of shoulder. Dr. Linard noted that appellant was 

working unrestricted and had reached maximum medical improvement (MMI). On 

December 19, 2014 he noted that appellant was at MMI and was discharged from his care, but 

explained that he did not perform impairment ratings. 

On June 10, 2015 OWCP referred appellant for a second opinion to Dr. Emanuel

Obianwu, a Board-certified orthopedist, for an impairment rating for appellant’s right shoulder in 

accordance with the A.M.A., Guides. In a June 26, 2015 report, Dr. Obianwu noted a history of 

appellant’s work injury and surgery. Upon examination he found tenderness over the anterior 

and posterior aspect of the right shoulder, but no instability. Dr. Obianwu noted range of motion 

(ROM), measured three times, for forward flexion was 30 degrees, 30 degrees, and 40 degrees, 

abduction was 40 degrees, 40 degrees, and 40 degrees, external rotation 20 degrees, 20 degrees, 

 2

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

and 20 degrees, internal rotation was 15 degrees, 14 degrees, and 20 degrees, extension was 30 

degrees, 30 degrees, and 40 degrees, adduction was 20 degrees, 30 degrees, and 20 degrees. He 

advised that he did not average these measurements as they were unreliable based on overt 

symptom magnification. 

Dr. Obianwu noted throughout the examination appellant was grimacing, moaning, and 

bending to avoid right shoulder motion. He noted that such severe impairment in shoulder 

mobility did not make anatomic sense especially since the treating physician, at the end of 2014, 

documented passive motion of 140 degrees with active motion of 110 degrees. There was no 

atrophy of the shoulder muscle groups and severe restriction in right shoulder mobility was 

inconsistent with the prior findings by the treating physician. X-rays of the right shoulder 

showed the head of the humerus was well located within the glenoid. Dr. Obianwu diagnosed 

large right rotator cuff tear and adhesive capsulitis. He opined that MMI had occurred on the one 

year after the surgery. Dr. Obianwu noted that he would not rate impairment using ROM as 

there was no obvious pathoanatomic correlation and the measurements were flawed due to 

symptom magnification. Using the diagnosis-based impairment (DBI) method Dr. Obianwu 

diagnosed a rotator cuff tear and a superior labrum anterior and posterior tear. He noted, 

pursuant to Table 15-9, A.M.A., Guides, the grade modifier for functional history, physical 

examination, and clinical studies would each be 2. Dr. Obianwu calculated a net adjustment of 

+3 for a grade E and an impairment rating of seven percent of the right upper extremity. 

In an August 16, 2015 report, an OWCP medical adviser reviewed the medical record and 

Dr. Obianwu’s June 26, 2015 findings. He indicated that the most impairing right shoulder 

diagnosis was full thickness rotator cuff tear with residual dysfunction. The medical adviser 

noted that the DBI method was the preferred rating method. Using this method, appellant placed 

in class 1 for the most impairing diagnosis in the shoulder region of full thickness rotator cuff 

tear with residual dysfunction. The medical adviser determined appellant’s grade modifier for 

functional history was 1. He noted appellant’s shoulder was still symptomatic, but appellant was 

able to perform self-care activities independently. The medical adviser noted that pursuant to 

Table 15-7, page 406, A.M.A., Guides the evidence was insufficient to support a grade modifier 

2 chosen by Dr. Obianwu. Additionally, Dr. Obianwu determined a grade modifier 2 for 

physical examination; however, appellant had clear evidence of symptom magnification on 

examination and therefore the grade modifier for physical examination was not applicable, 

pursuant to Table 15-8, page 408, A.M.A., Guides. The medical adviser noted that prior to 

surgery appellant had a right shoulder MRI scan which demonstrated a complete tear of the 

rotator cuff and the operative report noted biceps pathology was found. He noted that, based on 

these findings, the grade modifier for clinical studies was 4 not 2 as noted by Dr. Obianwu, 

pursuant to Table 15-9, page 410, A.M.A., Guides. The medical adviser found a net adjustment 

of 2 for a final grade E for seven percent permanent impairment of the right upper extremity. 

In a decision dated September 8, 2015, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right upper extremity. The period of the award was 

from June 26 to November 25, 2015. 
4

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. 

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 more than seven percent permanent 

impairment of the right upper extremity for which he 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 

 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). 

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). 
5

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 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.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 September 8, 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.

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

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

10 Supra note 8. 
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ORDER 

IT IS HEREBY ORDERED THAT the September 8, 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: April 11, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board