United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.M., Appellant 

and 

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-0219 

Issued: February 9, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On October 27, 2014 appellant filed a timely appeal from an April 30, 2014 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. 

 1

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

 The issue is whether appellant has established more than five percent permanent 

impairment of the right upper extremity and three percent permanent impairment of the left 

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

FACTUAL HISTORY 

OWCP accepted that on or before February 2, 2012 appellant, then a 55-year-old claims 

examiner, sustained bilateral carpal tunnel syndrome, calcifying tendinitis of both shoulders, and 

a neck sprain due to repetitive upper extremity motions in the performance of duty.2

Appellant was followed by Dr. Marvin Van Hal, a Board-certified orthopedic surgeon. 

She submitted reports from December 28, 2011 through November 7, 2013 diagnosing bilateral 

carpal tunnel syndrome, bilateral shoulder impingement, a right rotator cuff tear, bilateral elbow 

conditions, a cervical spine syndrome, and C5 radiculopathy. Dr. Van Hal attributed these 

conditions to repetitive upper extremity motions and overuse in appellant’s duties as a claims 

examiner. He obtained imaging and electrodiagnostic studies demonstrating cervical 

degenerative disc disease, C5 radiculopathy, bilateral acromial impingement, a right 

supraspinatus tendon tear, and a left subscapularis tendon tear.3

 

On December 17, 2013 appellant filed a claim for a schedule award (Form CA-7). In a 

January 2, 2014 letter, OWCP advised her of the additional evidence needed to establish her 

claim, including an impairment rating from her attending physician utilizing the tables and 

grading schemes of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).4 

In response, appellant submitted a November 7, 2013 impairment rating from Dr. Van 

Hal, reviewing the history of injury and treatment. On examination, Dr. Van Hal found an 

equivocally positive Phalen’s sign at both wrists and a positive Tinel’s sign at the right elbow. 

He diagnosed bilateral carpal tunnel syndrome and shoulder impingement, greater on the right, 

and C5 radiculopathy by electrodiagnostic studies. Dr. Van Hal found that appellant had reached 

maximum medical improvement. Regarding the right arm, he noted a grade 1 Class of Diagnosis 

 2

 OWCP initially denied the claim by July 18, 2012 decision as causal relationship was not established. 

Following a review of the written record, an OWCP hearing representative reversed the July 18, 2012 decision on 

October 10, 2012. 

3

 December 28, 2011 x-rays of appellant’s cervical spine showed degenerative disc disease from C4 to C7. 

March 1, 2012 x-rays of the right shoulder showed significant impingement with Type II to III acromion. A 

January 25, 2012 magnetic resonance imaging (MRI) scan of the cervical spine showed stenosis and spondylosis at 

multiple levels. January 25, 2012 electromyography (EMG) and nerve conduction velocity (NCV) studies showed 

bilateral carpal tunnel syndrome and right C5 radiculopathy. A June 16, 2012 MRI scan of the right shoulder 

showed a Type II acromion, supraspinatus and infraspinatus tendinopathy with a tiny full thickness tear of the 

anterior supraspinatus tendon, and a partial subscapularis tear. A March 20, 2013 MRI scan of the left shoulder 

showed a Type II to III acromion, mild rotator cuff tendinopathy, and a partial subscapularis tendon tear. 

4

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

(CDX) impairment due to carpal tunnel syndrome. Referring to Table 15-23,5

 Dr. Van Hal 

assessed a grade 1 modifier for Clinical Studies (GMCS), a grade 2 modifier for Functional 

History (GMFH) due to pain into the hand requiring a brace and activity modifications, and a 

grade 2 modifier for findings on Physical Examination (GMPE) due to decreased two-point 

discrimination. Applying the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + 

(GMCS-CDX), Dr. Van Hal found an average modifier of 1.66, rounded up to 2. He opined that 

this equaled five percent impairment of the right arm. Regarding the right shoulder, Dr. Van Hal 

opined that the range of motion (ROM) methodology under section 15.7 was the appropriate 

means of evaluating appellant’s permanent impairment. He found 160 degrees forward flexion, 

160 degrees abduction, 40 degrees extension, 20 degrees adduction, 70 degrees external rotation, 

and 60 degrees internal rotation. Dr. Van Hal found that these ranges of motion equaled 10 percent 

impairment of the right upper extremity according to Table 15-34.6

 He combined the 5 percent 

impairment due to carpal tunnel syndrome with the 10 percent impairment due to right shoulder 

impingement to equal 15 percent permanent impairment of the right arm. 

Regarding the left arm, Dr. Van Hal found 10 percent impairment due to shoulder 

impingement, based on the same ranges of motion observed in the right arm, and using the 

identical rating methods. He assessed two percent impairment due to carpal tunnel syndrome, 

based on a CDX of 1, a GMPE of 1 for positive Tinel’s and Phalen’s signs, and a GMFH of 1 for 

intermittent symptoms. Dr. Van Hal combined the 10 and 2 percent impairments to equal 12 

percent permanent impairment of the left arm. He found no impairment of the upper extremities 

due to appellant’s cervical spine conditions. In a January 12, 2014 addendum, Dr. Van Hal noted 

that he included an elbow impairment in his calculation, but this would not have altered the 

percentages of impairment given in his November 7, 2013 report. 

On March 11, 2014 OWCP obtained a second opinion from Dr. Sofia M. Weigel, a 

Board-certified physiatrist, who reviewed the medical record and a statement of accepted facts. 

Dr. Weigel noted appellant’s account of chronic bilateral wrist, elbow, and shoulder pain. On 

examination, she found no neurologic abnormality of either arm, normal strength and a mildly 

positive impingement sign in the left shoulder. Dr. Weigel opined that appellant reached 

maximum medical improvement as of November 7, 2013. Regarding the right arm, utilizing the 

diagnosis-based impairment (DBI) methodology for rating permanent impairment, she noted a 

CDX of 1 for a partial rotator cuff tear according to Table 15.5.7

 Dr. Weigel assessed a grade 2 

functional history using appellant’s responses to a QuickDASH questionnaire, a grade 1 physical 

examination for minimal palpatory findings, and a grade of 2 for clinical studies confirming a 

partial rotator cuff tear. Applying the net adjustment formula, Dr. Weigel found a net adjustment 

of 2, resulting in a grade E CDX or two percent impairment of the right upper extremity for a 

partial rotator cuff tear. Dr. Weigel found three percent impairment of the right arm due to 

carpal tunnel syndrome, based on clinical studies of a grade 1 for delayed sensory conduction, a 

 5

 Table 15-23, page 449 of the A.M.A., Guides is entitled “Entrapment/Compression Neuropathy Impairment.” 

6

 Table 15-34, page 475 of the A.M.A., Guides is entitled “Shoulder Range of Motion.” 

7

 Table 15-5, page 401 of the A.M.A., Guides is entitled “Shoulder Regional Grid: Upper Extremity 

Impairments.” 
4

grade 2 for functional history for significant intermittent symptoms, and a grade 1 of physical 

examination for normal two-point discrimination testing. 

Regarding the left arm, Dr. Weigel found a grade 1 CDX for partial rotator cuff tear 

according to Table 15-5. She assessed a GMFH of 2 based on appellant’s QuickDASH 

responses, a GMPE of 1 for minimal palpatory findings, and a GMCS of 2 for studies confirming 

the presence of a partial rotator cuff tear. Applying the net adjustment formula, Dr. Weigel 

found a grade modifier of 2, resulting in two percent impairment of the left arm due to the rotator 

cuff tear. Regarding the left wrist, she found a CDX of 1 according to Table 15.3.8

 Dr. Weigel 

found a GMFH of 2, a GMPE of 1, and no applicable modifier for clinical studies. Applying the 

net adjustment formula produced a zero net modifier, leaving the default grade of C undisturbed, 

equaling one percent impairment of the left upper extremity. Dr. Weigel found a total five 

percent permanent impairment of the right arm and three percent permanent impairment of the 

left arm. An OWCP medical adviser concurred with Dr. Weigel’s assessment and methods of 

calculation. 

By decision dated April 30, 2014, OWCP granted appellant a schedule for five percent 

permanent impairment of the right upper extremity and three percent permanent impairment of 

the left upper extremity. 

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.9 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.10 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.11 

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 

 8

 Table 15-3, page 395 of the A.M.A., Guides is entitled “Wrist Regional Grid: Upper Extremity Impairments.” 

9 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

11 20 C.F.R. § 10.404. See also, Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

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).12 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.13

ANALYSIS 

The issue on appeal is whether appellant has established greater than five percent 

permanent impairment of the right upper extremity and three percent permanent impairment of 

the left 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 ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.14 

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

justice under the law to all claimants.15 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.16 

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 April 30, 2014 decision. 

Following OWCP’s development of a consistent method for calculating permanent impairment 

 12 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). 

13 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

16 Supra note 14. 
6

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.

ORDER 

IT IS HEREBY ORDERED THAT the April 30, 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 9, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board