United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.T., Appellant 

and 

DEPARTMENT OF THE INTERIOR, 

NATIONAL PARK SERVICE, Moab, UT 

Employer 

__________________________________________ 

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Docket No. 17-0774 

Issued: September 26, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 February 24, 2017 appellant, through counsel, filed a timely appeal from a 

January 23, 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

ISSUES 

The issues are: (1) whether OWCP properly found an overpayment in the amount of 

$6,121.53 as his permanent impairment was no more than six percent of his left upper extremity; 

and (2) whether appellant’s overpayment is subject to waiver. 

FACTUAL HISTORY 

On December 4, 2001 appellant, then a 44-year-old telecommunications specialist, filed a 

traumatic injury claim (Form CA-1) alleging that he developed bruising and soreness in his 

middle back, and extreme internal pain in his left shoulder. He alleged that the injury occurred 

while carrying a 45-pound battery in a backpack and a 30-pound repeater with his left arm for 

approximately two miles, up 500 to 750 feet of elevation, and over loose rocks on 

November 27, 2001. 

A left shoulder magnetic resonance imaging (MRI) scan on January 18, 2003 showed a 

full thickness tear of the supraspinatus tendon on the rotator cuff. 

OWCP accepted appellant’s claim on March 7, 2003 for left rotator cuff tear. On April 7, 

2003 appellant underwent a diagnostic arthroscopy of the left shoulder with anterior Neer 

acromioplasty, distal clavicle Mumford excision, and open complex rotator cuff repair. OWCP 

placed appellant on the periodic rolls on April 28, 2003 effective April 7, 2003. Appellant 

returned to light-duty work on June 3, 2003. 

Appellant underwent a left shoulder MRI scan on October 25, 2003 which demonstrated 

tendinosis of the supraspinatus and infraspinatus tendons with no full-thickness tear, but a 

possible small partial thickness tear of the supraspinatus. 

The employing establishment terminated appellant’s employment on January 25, 2004. 

OWCP placed appellant on the periodic rolls effective January 25, 2004. 

OWCP referred appellant for vocational rehabilitation on January 30, 2004. Appellant 

returned to work at the employing establishment on March 5, 2005 as a purchasing agent with a 

loss of wage-earning capacity. By decision dated May 11, 2005, OWCP found that the position 

of purchasing fairly and reasonably represented appellant’s wage-earning capacity and reduced 

his compensation benefits based on his actual earnings.3

 Appellant returned to his date-of-injury 

position with modifications on April 15, 2007. OWCP proposed to modify the formal loss of 

wage-earning capacity decision dated May 11, 2005 on June 21, 2007 based on appellant’s 

increased earnings. By decision dated June 23, 2007, OWCP reduced appellant’s wage-loss 

compensation benefits to zero based on his actual earnings. 

On September 17, 2012 appellant underwent an additional left shoulder MRI scan which 

demonstrated postoperative changes, a defect in the supraspinatus tendon, intrasubstance 

 3

 Appellant alleged that he sustained a back injury at the time of his initial injury on November 27, 2001. OWCP 

denied his requests for diagnostic back treatments by decisions dated January 12, 2006 and January 19, 2006. 

Appellant requested reconsideration of the January 19, 2006 decision. OWCP denied modification of the 

January 19, 2006 decision on January 10, 2007. 
3

delamination involving the infraspinatus tendon, and mild thickening of the biceps tendon with 

no definitive full-thickness rotator cuff tear. 

Appellant filed a claim for a schedule award (Form CA-7) on March 4, 2013. Dr. Lionel 

Edwards Weeks, a Board-certified orthopedic surgeon, examined appellant on December 18, 

2012 and found that he had reached maximum medical improvement (MMI) in regard to his left 

shoulder. Dr. Weeks diagnosed full-thickness rotator cuff tears of subscapularis and 

supraspinatus tendons. He recommended surgery, but appellant declined. Dr. Weeks calculated 

appellant’s left shoulder permanent impairment using the range of motion (ROM) method of 

impairment rating under the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).4

 He found that appellant had 24 percent permanent 

impairment of his left upper extremity due to loss of ROM.5

Appellant filed an additional claim for a schedule award on May 24, 2013 which also 

noted that he had a service connected low back condition. 

OWCP referred appellant’s schedule award claim to Dr. Morley Slutsky, an OWCP 

medical adviser Board-certified in occupational medicine, on November 14, 2013. Dr. Slutsky 

determined that appellant had nine percent permanent impairment of his left upper extremity 

using the diagnosis-based impairment (DBI) of the A.M.A., Guides.

6

 He diagnosed 

acromioclavicular joint disease status post distal clavicle resection and determined that the DBI 

method was the appropriate method for determining appellant’s percentage of permanent 

impairment. 

By decision dated November 25, 2013, OWCP granted a schedule award for nine percent 

permanent impairment of his left arm. On December 3, 2013 counsel requested an oral hearing 

from OWCP’s Branch of Hearings and Review. 

Appellant had previously filed a traumatic injury claim on October 16, 2007 alleging that 

on October 12, 2007 he injured his neck and middle back with tingling and numbness in both 

arms. He attributed his condition to transporting solar radio equipment using a wheelbarrow and 

dollies over 60 degree inclines, hills, and gullies with loose rocks, sand, and small brush. On 

June 6, 2014 the employing establishment requested authorization for medical treatment for 

appellant’s diagnosed conditions of cervical disc degeneration, cervical spinal stenosis, 

cervicalgia, and radiculitis. 

On June 4, 2014 Dr. Weeks asserted that under the A.M.A., Guides the ROM approach 

was most appropriate to evaluate appellant’s permanent impairment for schedule award 

purposes. Counsel appeared at the oral hearing on June 17, 2014. He argued that OWCP’s 

medical adviser was biased. 

 4

 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. 

A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5a (February 2013). 

5

 A.M.A., Guides 475, Table 15-34; 477, Table 15-35, Table 15-36. 

6 Id. at 403, Table 15-5. 
4

Appellant underwent C5-6 and C6-7 anterior cervical decompression and fusion with 

interbody implants on June 12, 2014. 

On September 11, 2014 OWCP’s hearing representative vacated the November 25, 2014 

schedule award decision, found a conflict between Dr. Weeks and Dr. Slutsky and remanded 

appellant’s referral to an impartial medical examiner to determine the extent of his left shoulder 

condition for schedule award purposes. 

In a letter dated February 18, 2015, counsel requested that OWCP accept the additional 

conditions of aggravation of preexisting degenerative process and cervical disc herniation. 

By decision dated March 9, 2015, OWCP denied appellant’s claim for an increased 

schedule award as the evidence was insufficient to establish additional permanent impairment 

due to his accepted work injury. It found that appellant had not yet reached MMI. Counsel 

requested an oral hearing on March 16, 2015. 

In a decision dated March 25, 2015, OWCP accepted appellant’s claim for degeneration 

of cervical intervertebral disc.7

Dr. Weeks examined appellant on May 13, 2015 and reviewed the September 17, 2012 

MRI scan finding. He indicated that appellant had reached MMI on December 18, 2012. 

Dr. Weeks noted that appellant did not wish any further treatment for his left shoulder, but that it 

was possible in the future appellant might need a new MRI scan and surgery. 

On October 5, 2015 appellant testified at the oral hearing regarding the March 9, 2015 

schedule award denial. He stated that he had returned to full-time work and was not receiving 

wage-loss compensation from OWCP. Appellant noted his current medical treatment and 

advised that he had declined further left shoulder surgery. 

By decision dated December 18, 2015, OWCP’s hearing representative vacated the 

March 9, 2015 schedule award decision of OWCP and remanded the case for referral to an 

impartial medical examiner. 

On February 25, 2016 OWCP referred appellant to Dr. Richard Knoebel, a Boardcertified orthopedic surgeon, to resolve the conflict of medical opinion between Dr. Weeks and 

OWCP’s medical adviser regarding the extent of appellant’s permanent impairment for schedule 

award purposes. 

Dr. Knoebel completed a report on April 5, 2016 and reported his findings of permanent 

impairment. He examined both upper extremities and found that appellant had 12 percent loss of 

ROM of his unaffected right arm and 13 percent loss of ROM of his left arm. Dr. Knoebel noted 

that appellant had only an additional one percent loss of ROM of the left upper extremity8

 and 

concluded that appellant’s impairment was better addressed using the shoulder regional grid 

 7

 In a July 21, 2015 letter, OWCP noted that the cervical spine surgery of June 12, 2014 was authorized. 

8

 A.M.A., Guides 386 (if the opposite extremity is uninvolved and not previously injured, it should be used to 

define normal for that individual). 
5

model and found that appellant had six percent permanent impairment of his left upper extremity 

due to the DBI of rotator cuff injury, full thickness tear.9

OWCP’s medical adviser, Dr. Michael M. Katz, a Board-certified orthopedic surgeon, 

reviewed Dr. Knoebel’s report on April 18, 2016. He opined that Dr. Knoebel properly applied 

the A.M.A., Guides and concurred with Dr. Knoebel that appellant had no more than six percent 

permanent impairment of his left upper extremity warranting a schedule award. 

In a June 14, 2016 decision, OWCP found that appellant had not established an increased 

impairment of his left arm. It noted that he had previously received a schedule award for nine 

percent permanent impairment of his left arm and that the medical evidence currently established 

no more than six percent left arm impairment. By decision dated June 15, 2016, OWCP issued 

appellant a schedule award for six percent permanent impairment of his left arm, noting that 

there was no further entitlement to compensation. 

On June 15, 2016 OWCP made a preliminary finding that appellant received a $6,121.53 

overpayment because new medical evidence established that he was overpaid schedule award 

benefits. It found that he was without fault in the creation of the overpayment. OWCP noted 

that appellant had received compensation for a nine percent schedule award or $25,506.09, but 

was entitled to only six percent impairment or $19,384.56. It afforded him 30 days to request a 

prerecoupment hearing and requested that he complete an overpayment recovery questionnaire 

(OWCP-20) in order to consider the issue of waiver of recovery or to determine a reasonable 

method for collection. 

Counsel requested an oral hearing. He submitted a report dated November 17, 2016 from 

Dr. Steven Rouzer, a family practitioner. Dr. Rouzer provided his findings on physical 

examination and diagnosed spondylosis an spondylolisthesis of L4-5 and S1 causing sciatica in 

appellant’s right leg. 

Appellant testified at the oral hearing on November 30, 2016. OWCP’s hearing 

representative noted that the issues were both the percentage of impairment of the left upper 

extremity and overpayment. Appellant noted that he had retired. 

In a January 23, 2017 decision, OWCP’s hearing representative found that the weight of 

the medical evidence established that appellant had no more than six percent permanent 

impairment of his left upper extremity based on the DBI rather than the ROM figures provided 

by appellant’s physician.10 He further found that appellant had received an overpayment of 

compensation in the amount of $6,121.53 for which he was without fault. The hearing 

representative concluded that, as appellant failed to submit the requested financial information, 

there was no basis for the waiver of the overpayment. 

 9 Id. at 403, Table 15-5. 

10 On June 27, 2016 appellant filed a claim for compensation (Form CA-7) requesting leave without pay 

compensation from March 3 through 30, 2016. OWCP issued a decision on January 19, 2017 denying appellant’s 

claimed period of disability from March 3 through 30, 2016. Counsel did not appeal this decision to the Board, and 

therefore the Board will not address this issue in this appeal. 20 C.F.R. § 501.3(c). 
6

LEGAL PRECEDENT -- ISSUE 1 

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.11 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.12 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.13 

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).14 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.15

ANALYSIS -- ISSUE 1 

The issue on appeal is whether OWCP properly found an overpayment in the amount of 

$6,121.53 as his permanent impairment was no more than six percent of his left upper extremity. 

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.16 

 11 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

13 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

14 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). 

15 Isidoro Rivera, 12 ECAB 348 (1961). 

16 T.H., Docket No. 14-0943 (issued November 25, 2016). 
7

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

justice under the law to all claimants.17 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 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 found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.18

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 23, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly, 

and after 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. In view of the Board’s decision, the 

issues of whether there is an overpayment and eligibility for waiver are premature. 

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

18 Supra note 16.
8

ORDER 

IT IS HEREBY ORDERED THAT the January 23, 2017 decision of the Office of 

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

consistent with this decision. 

Issued: September 26, 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