United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Washington, DC, Employer 

__________________________________________ 

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Docket No. 14-2056 

Issued: February 2, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 29, 2014 appellant filed a timely appeal from a September 10, 2014 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 15 percent permanent impairment of the 

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

FACTUAL HISTORY 

On October 14, 2009 appellant, then a 52-year-old nursing assistant, injured her right 

shoulder when she was changing a patient and pulling him up in the bed. OWCP accepted her 

 1

 5 U.S.C. § 8101 et seq. 
2

claim for sprain of the right shoulder and upper arm, right rotator cuff, and other affections of the 

right shoulder region. Appellant did not stop work at that time. 

Appellant was treated by Dr. Stephen D. Webber, a Board-certified orthopedic surgeon, 

from September 29, 2009 to July 20, 2010 for a previous right shoulder injury which occurred on 

September 14, 2009 when she was lifting a patient. Dr. Webber diagnosed adhesive capsulitis 

and frozen shoulder. He recommended surgery. Appellant declined surgery due to her diabetes 

and anesthesia side effects. A magnetic resonance imaging (MRI) scan of the right shoulder 

dated December 23, 2009 revealed an intact rotator cuff with no definite labral abnormalities. 

Appellant came under the treatment of Dr. M.E. Rankin, a Board-certified orthopedic 

surgeon, on February 3, 2011, who diagnosed disorder of the bursae of the right shoulder and 

contusion of the right shoulder region. Dr. Rankin noted that she had reached maximum medical 

improvement (MMI) with nonoperative measures. 

On February 25, 2011 appellant filed a claim for a schedule award (Form CA-7). On 

March 9, 2011 OWCP requested that she have her physician evaluate the extent of the permanent 

impairment of her right arm under the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment, (A.M.A., Guides).2

In an April 3, 2011 report, Dr. M.E. Rankin noted treating appellant since February 2011 

for right shoulder pain that began after she strained her shoulder while lifting a patient. He noted 

she had a rotator cuff tear as evinced by history, physical examination, and MRI scan. 

Dr. Rankin recommended a right shoulder arthroscopy but appellant again declined due to a 

history of sleep apnea and fear of anesthesia. He opined that she had reached MMI. Dr. Rankin 

noted appellant’s complaints of right shoulder pain, weakness, and limited range of motion. He 

noted range of motion figures for the right shoulder for elevation was 90 degrees, abduction was 

80 degrees, external rotation was 60 degrees, and internal rotation was 20 degrees. Dr. Rankin 

noted 4/5 rotator cuff muscle strength and intact sensation in the dermatomal distribution of C4-

T1. He noted increased signal in the anterior 25 percent of the supraspinatus tendon and 

acromioclavicular joint arthrosis. Dr. Rankin diagnosed chronic right shoulder impingement and 

supraspinatus tendon tear. He opined, using the range of motion method, that under Table 15-35, 

A.M.A., Guides 475, and after applying applicable modifiers, appellant had 18 percent right arm 

permanent impairment due to loss of shoulder range of motion. 

In a report dated April 15, 2011, Dr. E.A. Rankin, a Board-certified orthopedic surgeon 

and an associate of Dr. M.E. Rankin, treated appellant for continued right shoulder pain. He 

noted right shoulder examination findings that included right shoulder flexion of 170 degrees, 

abduction of 160 degrees, external rotation of 70 degrees, and internal rotation of 20 degrees. 

In a May 12, 2011 report, Dr. Christopher R. Brigham, Board-certified in occupational 

medicine and OWCP’s medical adviser, reviewed the medical record and evaluated the medical 

evidence under the range of motion method and disagreed with Dr. M.E. Rankin’s impairment 

determination based on the motion measurements recorded. He noted that more recent motion 

 2

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

measurements recorded on April 15, 2011 demonstrated greater capabilities and that those newer 

measurements of range of motion should be used. The medical adviser explained under the 

range of motion method that the motion measurements recorded by Dr. E.A. Rankin on April 15, 

2011 resulted in 10 percent permanent impairment of the right arm which increased to 11 percent 

after applying applicable modifiers. He noted that appellant had reached MMI on April 3, 2011. 

In a decision dated May 26, 2011, OWCP granted appellant a schedule award for 11 

percent permanent impairment of the right upper extremity. The award ran from April 3 to 

November 29, 2011. 

Appellant requested an oral hearing which was held on October 21, 2011. She submitted 

a report from Dr. E.A. Rankin dated December 8, 2011. Dr. E.A. Rankin noted findings of the 

right shoulder of no deformity, swelling, erythema, atrophy, or crepitus with range of motion and 

no tenderness to palpation of the supraspinatus or biceps tendons. He noted range of motion 

findings for both shoulders: flexion was 70 degrees, abduction was 50 degrees, external rotation 

was 30 degrees, and internal rotation was 0 degrees. Dr. E.A. Rankin diagnosed disorder of the 

bursae of the shoulder region bilaterally and rotator cuff sprain, bilaterally complicated by 

adhesive capsulitis (frozen shoulder). He noted that appellant had not reached MMI as she had 

declined surgery. Dr. E.A. Rankin found that appellant had 20 percent permanent impairment of 

both the right shoulder and the left shoulder.3

 He noted that appellant was diabetic and a frozen 

shoulder could occur spontaneously with patients with diabetes mellitus. Dr. E.A. Rankin noted 

that appellant had a class 2 diagnoses, with a grade modifier of 2 for functional history, a grade 

modifier of 3 for physical examination, and a grade modifier of 2 for clinical studies. He applied 

the net adjustment formula for 20 percent impairment of the bilateral upper extremities. 

In a decision dated January 25, 2012, an OWCP hearing representative affirmed the 

decision dated May 26, 2011. The hearing representative noted that Dr. E.A. Rankin’s 

December 8, 2011 report noted that appellant had not reached MMI. The hearing representative 

noted that a schedule award could not be determined or paid until a claimant had reached MMI. 

Appellant disagreed with the hearing representative’s decision. She submitted a 

February 27, 2012 report from Dr. M.E. Rankin, who noted that his colleague, Dr. E.A. Rankin, 

provided an impairment rating of 20 percent upper extremity permanent impairment. Dr. M.E. 

Rankin copied the impairment rating provided by Dr. E.A. Rankin in his December 8, 2011 

report and indicated that appellant had reached MMI. On May 2, 2012 appellant filed a claim for 

an additional schedule award (Form CA-7). 

In a May 19, 2012 report, Dr. Lawrence A. Manning, a Board-certified orthopedic 

surgeon and a medical adviser, noted that, while Dr. M.E. Rankin’s February 27, 2012 report 

found 20 percent arm impairment, he failed to provide measurements for all the planes of 

motion. He recommended that Dr. Rankin assess shoulder range of motion for internal rotation, 

external rotation, flexion, extension, abduction, and adduction. He also noted that Dr. E.A. 

Rankin’s rating did not correlate with the accepted conditions. Dr. Manning believed that the 

RANGE OF MOTIONmethod would provide a greater impairment rating than the DBI method. 

 3

 The only schedule award claim currently before the Board is for appellant’s right shoulder. 
4

In a December 7, 2012 letter, OWCP requested that appellant have her physician evaluate 

her permanent impairment of her right arm under the A.M.A., Guides.4 It specifically requested 

her physician to note if MMI had been reached and to provide a description of any restriction of 

movement in terms of degrees of retained active motion. 

On December 18, 2012 Dr. E.A. Rankin provided a supplemental impairment rating 

report. He noted findings for range of motion for the right and left shoulder of abduction of 120 

degrees, flexion of 120 degrees, external rotation of 50 degrees, internal rotation of 30 degrees, 

extension of 10 degrees, adduction of 10 degrees, and strength testing of 4/5. Dr. Rankin 

diagnosed disorder of the bursae of the shoulder region, adhesive capsulitis of the shoulder, and 

sprain and strain of other specified sites of the shoulder and upper arm. He noted MMI occurred 

in December 2011. Dr. Rankin noted that appellant had a class 2 diagnosis, a grade modifier of 

2 for functional history, a grade modifier of 3 for physical examination, and a grade modifier of 

2 for clinical studies. He applied the net adjustment formula for 20 percent permanent 

impairment of the bilateral upper extremities.5

In a March 14, 2013 report, Dr. Manning reviewed the medical record and disagreed with 

Dr. E.A. Rankin’s impairment determination. He noted that Dr. E.A. Rankin failed to correctly 

calculate impairment based on the motion measurements recorded. The medical adviser noted 

that based on the motion measurements recorded by Dr. Rankin on December 18, 2012, 

appellant sustained 15 percent permanent impairment of the right upper extremity. The 

following impairment was calculated pursuant to Table 15-34 of the A.M.A., Guides: flexion of 

120 degrees would equal three percent impairment, extension of 10 degrees would equal two 

percent impairment, abduction of 120 degrees would equal three percent impairment, adduction 

of 10 degrees would equal one percent impairment, external rotation of 50 degrees would equal 

two percent impairment, and internal rotation of 30 degrees would equal four percent 

impairment.6

 The medical adviser added the range of motion values to equal 15 percent 

permanent impairment of the right arm in accordance with the A.M.A., Guides. He noted that, 

based on the diagnoses given for the accepted condition, appellant would fit in a class 1 category. 

The medical adviser noted that Dr. Rankin had provided a rating of 20 percent impairment of the 

right upper extremity based on a class 2, grade C impairment. However, this finding did not 

correlate with the accepted conditions in the statement of accepted facts. He noted that, as 

appellant previously had a schedule award for 11 percent permanent impairment of the right arm, 

she had four percent additional impairment in that arm. The medical adviser noted the date of 

MMI was April 3, 2011. 

In a decision dated March 27, 2013, OWCP granted appellant a schedule award for an 

additional four percent permanent impairment of the right arm. It noted that, while the medical 

adviser found a total of 15 percent right arm impairment, this included the 11 percent permanent 

impairment for which she had previously received a schedule award. The period of the award 

was from November 30, 2011 to February 25, 2012. 

 4 Id. 

5

 Dr. E.A. Rankin essentially restated the prior impairment rating provided in his December 8, 2011 report. 

6

 A.M.A., Guides 475. 
5

Appellant requested an oral hearing which was held on June 26, 2014. She submitted 

reports from Dr. Ayasha Williams-Sharron, Board-certified in physical medicine, dated May 12 

to July 23, 2014, who treated her for bilateral shoulder pain. Dr. Williams-Sharron diagnosed 

bilateral shoulder pain, bilateral shoulder osteoarthritis, and chronic pain. She noted treating 

appellant for chronic pain management. 

In a decision dated September 10, 2014, the hearing representative affirmed the decision 

dated March 27, 2013. 

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.7

 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.8 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.9 

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).10 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.11

 7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 

9

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

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 
6

ANALYSIS 

The issue on appeal is whether appellant has more than 15 percent permanent impairment 

of the 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 range of 

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

purposes.

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

ensure equal justice under the law to all claimants.13 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.14 

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 10, 2014 

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.

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

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

14 Supra note 9. 
7

ORDER 

IT IS HEREBY ORDERED THAT the September 10, 2014 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 2, 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