United States Department of Labor

Employees’ Compensation Appeals Board

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R.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Duncan, OK, Employer

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Docket No. 17-1783

Issued: January 12, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 15, 2017 appellant filed a timely appeal from a March 10, 2017 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.

ISSUE

The issue is whether appellant has more than four percent permanent impairment of the 

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

FACTUAL HISTORY

On February 2, 2016 appellant, then a 41-year-old rural carrier, filed a traumatic injury 

claim (Form CA-1), alleging that she injured her left shoulder when picking up a package on 

January 28, 2016. She began modified duty. On March 7, 2016 Dr. M. Brandon Johnson, an 

 

1 5 U.S.C. § 8101 et seq.
2

attending Board-certified orthopedic surgeon, advised that appellant was totally disabled from 

work. On March 10, 2016 OWCP accepted the claim for left shoulder rotator cuff tear or rupture

and left shoulder stiffness. Appellant thereafter filed a claim for compensation (Form CA-7) 

beginning March 14, 2016. OWCP paid her appropriate compensation on the periodic 

compensation rolls as of April 12, 2016.

On May 18, 2016 Dr. Johnson performed left shoulder arthroscopy with rotator cuff 

repair, subacromial decompression, and labral debridement. Appellant returned to two hours 

daily of light-duty work on August 25, 2016, and received appropriate intermittent 

compensation. She returned to full-duty work on September 27, 2017.

On October 4, 2016 appellant filed a claim for a schedule award (Form CA-7). In a 

November 8, 2016 report, Dr. Johnson indicated that he had last examined her on 

September 22, 2016. He advised that appellant had a good surgical result with resolution of the 

majority of her pain, but had remaining limitations in active external rotation to 30 degrees and 

active forward flexion to 120 degrees. Dr. Johnson opined that, in accordance with the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter A.M.A., Guides),2this yielded eight percent permanent left upper 

extremity impairment.

OWCP forwarded the medical record to its medical adviser for review. In a January 27,

2017 report, Dr. Herbert White, Jr., Board-certified in occupational medicine and an OWCP 

medical adviser, noted his review of the record including Dr. Johnson’s reports. He indicated 

that appellant had achieved maximum medical improvement on September 22, 2016, the date of 

the evaluation Dr. Johnson used for his impairment rating. The medical adviser utilized Table 

15-5, Shoulder Regional Grid, of the sixth edition of the A.M.A., Guides, which identifies 

diagnosis-based impairments (DBI) of the shoulder. He determined that appellant had a class 1 

impairment due to the rotator cuff tear diagnosis. Dr. White assigned grade modifiers of 1 for 

functional history and physical examination, and a modifier of 2 for clinical studies. After 

applying the net adjustment formula, he concluded that appellant had four percent permanent 

impairment of the left upper extremity due to rotator cuff tear. The medical adviser also 

provided an impairment evaluation for labral tear, finding a class 1 impairment under Table 15-5. 

He again found grade modifiers of 1 for functional history and physical examination, and a 

modifier of 2 for clinical studies. After applying the net adjustment formula, Dr. White 

concluded that appellant had four percent permanent impairment of the left arm due to labral 

tear. He indicated that he could not tell what method Dr. Johnson used in rating her impairment 

and, after noting that the A.M.A., Guides direct that, if more than one diagnosis can be used, the 

highest impairment rating should be used. Dr. White concluded that, in this case, each diagnosis 

yielded four percent permanent impairment of the left upper extremity.

By decision dated March 10, 2017, OWCP granted appellant a schedule award for four 

percent permanent impairment of the left upper extremity, to run for 12.48 weeks, from 

September 27 to December 23, 2016.

 

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

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 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.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, 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).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 more than four 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 range of 

motion (ROM) methodology when assessing the extent of permanent impairment for schedule 

 

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 & Permanent Disability 

Claims, Chapter 2.808.5a (February 2013).

7

Isidoro Rivera, 12 ECAB 348 (1961).
4

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 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 have been 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 consistent results and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the March 10, 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.11

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.

11 FECA Bulletin No. 17-0006 (issued May 8, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the March 10, 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: January 12, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board