United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.P., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 15-0022 

Issued: February 14, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 7, 2014 appellant filed a timely appeal from a September 8, 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 this case.2

ISSUE 

The issue is whether appellant met her burden of proof to establish more than 28 percent 

permanent impairment of her right arm, for which she previously received a schedule award. 

 1

 5 U.S.C. § 8101 et seq. 

2

 On appeal, appellant stated that she was not contesting the schedule award she received for 12 percent 

permanent impairment of her left arm and the matter of her entitlement to left arm schedule award compensation is 

not currently before the Board. 
2

FACTUAL HISTORY 

On November 16, 2004 appellant, then a 48-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging injury to her arms due to performing work activities such as 

handling and casing mail. OWCP initially accepted that she sustained right carpal tunnel 

syndrome, but her case was later amended to reflect the accepted conditions of bilateral carpal 

tunnel syndrome, aggravation of Kienbock’s disease of the right wrist, right cubital tunnel 

syndrome, bilateral medial and lateral epicondylitis, right osteochondropathies, acquired 

deformity of bone/cartilage, left aseptic necrosis, and temporary aggravation of major depression 

and anxiety.3 Appellant stopped work on November 15, 2004 and received compensation on the 

periodic rolls beginning January 23, 2005. 

In a June 2, 2006 report, Dr. Huey Y. Tien, an attending Board-certified hand surgeon, 

indicated that, under the fifth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), appellant had 46 percent 

permanent impairment of the right arm and 21 percent permanent impairment of the left arm 

based on restricted range of motion. In a follow-up report dated July 6, 2006, he indicated that, 

although a functional capacity evaluation was performed on June 2, 2006,4

 he felt that the 

problems with appellant’s wrists needed to be further addressed and that maximum medical 

improvement had not been reached. 

On October 8, 2012 Dr. Tien performed OWCP-authorized proximal carpectomy and 

radial styloidectomy on appellant’s left wrist. 

In a December 12, 2013 report, Dr. Tien determined that, under the standards of the sixth 

edition of the A.M.A, Guides (6th ed. 2009),5

 appellant had 12 percent permanent impairment of 

her left arm. He used a diagnosis-based impairment (DBI) rating methodology under Table 15-3 

(Wrist Regional Grid) on page 397 and chose the diagnosis of proximal row carpectomy as the 

basis for his rating. 

On April 24, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On May 6, 2014 Dr. Howard Hogshead, a Board-certified orthopedic surgeon serving as 

an OWCP medical adviser, noted that appellant underwent a surgical fusion of her right wrist in 

2005 and noted that the record did not include a “continued impairment rating, schedule award, 

or [maximum medical improvement] date for the right wrist.” He noted that, for the right arm, 

the findings of a functional capacity evaluation from June 2006 showed that appellant had 21 

percent permanent impairment for flexion of -10 percent and extension of 10 percent as well as 9 

percent permanent impairment for ulnar deviation of 5 percent and radial deviation of -5 percent. 

Dr. Hogshead referenced Table 15-32 (Wrist Range of Motion) on page 473 of the sixth edition 

of the A.M.A., Guides and indicated that combining the 21 percent and 9 percent impairment 

 3

 Appellant underwent OWCP-authorized surgical procedures, including a left carpal tunnel release on June 23, 

2005 and a right carpal tunnel release and total fusion surgery on October 3, 2005. 

4

 A copy of the June 2, 2006 functional capacity evaluation is of record. 

5

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

ratings (using the Combined Values Chart on page 604) totaled a right arm permanent 

impairment of 28 percent. He indicated that “other sources of impairment [of the right upper 

extremity] are of much less importance. See A.M.A., Guides, 387, 389, 419, 499. The fusion of 

the wrist is of greatest value as it concerns [activities of daily living].” Dr. Hogshead then 

explained that appellant had 12 percent permanent impairment of her left arm based on the DBI 

rating methodology. 

In a July 9, 2014 decision, OWCP granted appellant a schedule award for 12 percent 

permanent impairment of her left arm and 28 percent permanent impairment of her right arm. 

The award ran for 124.8 weeks from June 29, 2014 to November 18, 2016 and was based on the 

opinion of Dr. Hogshead.6

In a July 30, 2014 report, Dr. Tien noted that appellant had reached maximum medical 

improvement of the right arm in 2006. He indicated that a right arm impairment rating of 46 

percent was calculated on June 2, 2006 based on the fifth edition of the A.M.A., Guides, which 

was applicable at that time. This 46 percent impairment of the right arm yielded 28 percent 

impairment of the whole body and the 21 percent impairment of the left arm yielded 13 percent 

impairment of the whole body. Dr. Tien indicated that when these figures were combined it 

yielded 37 percent impairment of the whole body. He noted that appellant underwent an 

additional surgery on the left side on October 8, 2012 which involved a left wrist proximal 

carpectomy and radial styloidectomy. Maximum medical improvement of the left arm was 

reached in 2013 and an impairment rating was determined on December 13, 2013 based on the 

sixth edition the A.M.A., Guides, which was applicable at that time, for 12 percent permanent 

impairment of the left arm or 7 percent permanent impairment of the whole body. 

On August 20, 2014 Dr. Hogshead, serving as an OWCP medical adviser, noted that he 

had reviewed the July 30, 2014 report of Dr. Tien and that reference should be made to his 

May 6, 2014 report with respect to his calculation that appellant had 28 percent impairment of 

her right arm. For appellant’s left arm, he indicated that the DBI methodology was 

recommended and that she had 12 percent left arm permanent impairment. Dr. Hogshead noted 

that appellant was compensated on July 9, 2014 for her 28 percent right arm permanent 

impairment and her 12 percent left arm permanent impairment. 

In a September 8, 2014 decision, OWCP affirmed its July 9, 2014 schedule award 

determination which found that appellant had 12 percent permanent impairment of her left arm 

and 28 percent permanent impairment of her right arm. It found that the new evidence of 

Dr. Tien did not establish additional schedule award compensation for her left arm because 

Dr. Tien posited that she had 12 percent permanent impairment of her left arm and she had 

already been compensated for this level of permanent impairment. The new evidence of 

Dr. Tien also did not establish that appellant was entitled to additional schedule award 

compensation for her right arm. OWCP indicated that Dr. Tien’s right arm impairment rating of 

 6

 Appellant was advised that, although the commencement date of a schedule award is normally the date of 

maximum medical improvement, a schedule award is payable consecutively but not concurrently with an award for 

wage loss. The starting date of appellant’s schedule award was adjusted to June 29, 2014 as she had received 

compensation for wage loss through June 29, 2014. 
4

46 percent was of limited probative value because it was calculated under the fifth edition of the 

A.M.A., Guides. 

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 the Office of Workers’ 

Compensation Programs.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 A.M.A., 

Guides 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

ANALYSIS 

The issue on appeal is whether appellant met her burden of proof to establish more than 

28 percent permanent impairment of her right arm, for which she 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 

 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 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 
5

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 8, 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 12. 
6

ORDER 

IT IS HEREBY ORDERED THAT the September 8, 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 14, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board