United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Ashland, KY, Employer 

__________________________________________ 

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Docket No. 17-0898 

Issued: August 15, 2017 

Appearances: Case Submitted on the Record

Michael Welsh, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 17, 2017 appellant, through his representative, filed a timely appeal from a 

January 27, 2017 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 to consider the merits of the case. 

 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

ISSUE 

The issue is whether appellant has met his burden of proof to establish more than one 

percent permanent impairment of his right upper extremity for which he previously received a 

schedule award. 

FACTUAL HISTORY 

On April 2, 2014 appellant, then a 38-year-old lieutenant, filed a traumatic injury claim 

(Form CA-1) alleging that on March 25, 2014 he injured both shoulders, his back, and neck 

while participating in required annual firearms training. 

On May 22, 2014 OWCP accepted appellant’s claim for biceps tendinitis in the left 

shoulder and impingement with bursitis-tendinitis in the right shoulder. 

Appellant filed a schedule award claim (Form CA-7) on February 3, 2015. By decision 

dated April 24, 2015, OWCP granted him a schedule award for 12 percent permanent 

impairment of his left upper extremity. 

On August 4, 2015 appellant filed a claim for an additional schedule award (Form CA-7). 

In support of that claim, he submitted a May 8, 2015 disability impairment rating for his right 

arm from Robert J. Hammond, an occupational therapist. 

In a letter dated August 17, 2015, OWCP requested a report from appellant’s attending 

physician, Dr. Joseph Leith, a Board certified orthopedic surgeon, addressing appellant’s right 

shoulder permanent impairment. Dr. Leith completed a form report on September 2, 2015 and 

opined that appellant had reached maximum medical improvement. He found that he had 10 

percent permanent impairment of the right arm based on right shoulder range of motion (ROM). 

OWCP referred the record to an OWCP district medical adviser (DMA). In a report 

dated December 19, 2015, the DMA determined that Dr. Leith had utilized the ROM 

methodology to determine appellant’s permanent impairment. He disagreed with the application 

of the ROM methodology and concluded that appellant’s right shoulder permanent impairment 

should be evaluated based on the diagnosis-based impairment (DBI) methodology for an 

impingement syndrome, which warranted one percent permanent impairment of the right upper 

extremity for schedule award purposes. 

By decision dated March 25, 2016, OWCP granted appellant a schedule award for one 

percent permanent impairment of his right upper extremity. 

On April 18, 2016 appellant requested an oral hearing from OWCP’s Branch of Hearings 

and Review regarding the March 25, 2016 decision. Following his request, he authorized a 

representative before OWCP. 

During the oral hearing held on December 5, 2016, appellant’s representative contended 

that Dr. Leith had properly used the ROM methodology for calculating appellant’s permanent 

impairment of the right upper extremity. He further argued that OWCP improperly relied on the 

DMA’s application of the DBI methodology to reach appellant’s impairment rating for schedule 
3

award purposes as the ROM method resulted in a higher impairment rating and should, therefore, 

have been used. 

In a January 27, 2017 decision, OWCP’s hearing representative affirmed the March 25, 

2016 decision finding that the DMA properly used the DBI methodology to rate permanent 

impairment rather than the ROM methodology used by Dr. Leith. 

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 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

 However, it 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 (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., Guides issued a 52-page document entitled “Clarifications and 

Corrections, [s]ixth [e]dition, [A.M.A.,] 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 met his burden of proof to establish more 

than one percent permanent impairment of his right upper extremity. 

 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). 
4

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 had been followed regarding the proper use of the DBI or the ROM 

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 were 

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 observed that physicians interchangeably 

cited to language in the first printing or the second printing when justifying use of either ROM or 

DBI methodology. Because OWCP’s own physicians were inconsistent in the application of the 

A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal 

justice under the law for all claimants.10 

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the January 27, 2017 decision. Utilizing 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 January 17, 2017 decision of the Office of 

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

consistent with this decision. 

Issued: August 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board