United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.B., Appellant 

and 

DEPARTMENT OF THE NAVY, MARINE 

CORPS STATIONS, LOGISTICS BASE, 

Barstow, CA, Employer 

__________________________________________ 

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Docket No. 17-0395 

Issued: August 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On December 12, 2016 appellant filed a timely appeal from a November 18, 2016 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 to consider the merits of the case. 

ISSUES 

The issues are: (1) whether appellant has more than seven percent permanent impairment 

of his left upper extremity, for which he previously received a schedule award; and (2) whether 

appellant has established right upper extremity impairment for purposes of a schedule award. 

On appeal, appellant contends that he has 15 percent permanent impairment to his left 

upper extremity, for schedule award purposes. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On August 16, 2013 appellant, then a 49-year-old heavy mobile equipment mechanic, 

filed a traumatic injury claim (Form CA-1) alleging that on August 13, 2013 he injured both of 

his shoulders while using an eight-pound hammer to remove road arms and torsion bars from an 

air admittance valve. He did not stop work on the date of injury. OWCP accepted appellant’s 

claim for sprain of the right shoulder and upper arm and other affections of the left shoulder 

region. 

On December 5, 2013 appellant underwent a repair of a chronic rotator cuff tear to the 

left shoulder and release of the coracoacromial ligament to the left shoulder. He stopped work 

on the date of the surgery and returned to full-duty work on April 21, 2014. 

In an October 2, 2014 report, Dr. Jacob E. Tauber, appellant’s treating Board-certified 

orthopedic surgeon, prepared an impairment rating report in which he listed appellant’s diagnosis 

as status post left rotator cuff repair and subacromial decompression. Using the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009), 

(A.M.A., Guides), Table 15-5, Dr. Tauber opined that appellant had seven percent permanent 

impairment of the left shoulder due to residuals from his surgery.2

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

OWCP referred appellant’s case to a district medical adviser (DMA), and in a response 

dated December 23, 2014, Dr. Ellen Pichey, a Board-certified occupational medicine specialist, 

and the DMA noted that appellant had a permanent impairment due to a left rotator cuff tear or 

tendon rupture, class 1 default position C as per Table 15-5 of the A.M.A., Guides.

3

 Dr. Pichey 

made an adjustment for a grade modifier of 2 for physical examination and a functional history 

modifier of 2. She determined that using the net adjustment formula, appellant’s default position 

was modified by 1, and that appellant therefore had seven percent permanent impairment of his 

left upper extremity. Dr. Pichey noted that there was no evidence of impairment to appellant’s 

right upper extremity. 

In a December 11, 2014 report, Dr. Tauber noted that he had previously provided an 

impairment rating based on appellant’s condition which resulted in a rating of seven percent. He 

noted that his prior rating needed to be amended, as appellant had acromioclavicular pathology 

as well, which according to Table 15-5 of the A.M.A., Guides, affords an additional eight 

percent permanent impairment of his left upper extremity. Using the Combined Values Chart, 

Dr. Tauber noted a combined 14 percent left upper extremity permanent impairment rating. 

On March 10, 2015 OWCP issued a schedule award for seven percent permanent 

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

extremity. 

 2

 A.M.A., Guides 404, Table 15-5. 

3 Id. 
3

On March 18, 2015 appellant’s, then counsel, requested a telephonic hearing before an 

OWCP hearing representative. At the hearing, held on October 7, 2015, he contended that 

OWCP should review the new medical evidence, that the evidence now established an 

impairment to the right extremity, and that OWCP should further develop the record, as needed. 

On August 21, 2015 appellant submitted a July 8, 2015 report by Dr. Mesfin Seyoum, a 

family practitioner. Dr. Seyoum reviewed appellant’s medical history and conducted a physical 

examination which included measurements for range of motion (ROM). He listed appellant’s 

diagnoses as: (1) status post left shoulder rotator cuff repair and subacromial decompression; 

(2) left shoulder other affections of the shoulder region; (3) right shoulder sprain/strain; and 

(4) right shoulder tendinitis. Dr. Seyoum agreed with Dr. Tauber that appellant was entitled to a 

schedule award for 14 percent permanent impairment of the left shoulder. He further concluded 

that appellant had five percent permanent impairment of the upper right extremity. Dr. Seyoum 

based his conclusion on Table 15-5 of the A.M.A., Guides4

, with a finding of class 1 grade 3 

with three percent upper extremity impairment due to right shoulder tendinitis with residual 

functional loss. He modified this with a functional history grade modifier of 3 and a physical 

examination grade modifier of 1, and determined that the net adjustment was +2. Therefore, 

Dr. Seyoum determined that appellant’s right shoulder impairment would be two grades higher, 

or five percent right upper extremity permanent impairment. 

On November 9, 2015 appellant filed a new claim for a schedule award (Form CA-7). 

In a November 13, 2015 decision, the hearing representative set aside, in part, the 

March 10, 2015 decision. She affirmed the finding that appellant was not entitled to a schedule 

award for right upper extremity impairment as this was not an accepted condition. However, the 

hearing representative determined that Dr. Tauber’s report of December 11, 2014 should be 

referred to an OWCP medical adviser and that, after such further development as necessary, a 

new decision should be issued. 

On April 12, 2016 OWCP asked its medical adviser to review Dr. Tauber’s December 11, 

2014 report and comment on his findings. 

In an April 13, 2016 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon 

serving as OWCP’s medical adviser, reviewed the medical evidence, including Dr. Tauber’s 

December 11, 2014 report. He noted that it had been established that appellant had seven 

percent impairment of the left upper extremity. Although Dr. Tauber believed that appellant was 

entitled to an additional eight percent impairment for acromioclavicular joint pathology, 

Dr. Harris opined that pursuant to the A.M.A., Guides, an evaluator is expected to choose the 

most significant diagnosis and to rate only that diagnosis under the diagnosis-based impairment 

(DBI) method. He noted that, if clinical studies documented additional symptomatic diagnoses, 

the grade could be modified according to the clinical studies adjustment table. Dr. Harris 

contended that Dr. Tauber’s methodology was inconsistent with the A.M.A., Guides as he 

provided an impairment rating for both his right rotator cuff tear as well as right 

acromioclavicular joint pathology. He also noted that appellant did not have any 

acromioclavicular joint pathology other than magnetic resonance imaging (MRI) scan evidence 

of degenerative changes in the acromioclavicular joint. Dr. Harris noted that appellant had not 

 4

 A.M.A., Guides 402, Table 15-5. 
4

required any surgical treatment for the degenerative changes in his acromioclavicular joint and 

Dr. Tauber did not demonstrate any tenderness, instability, or irritability at the acromioclavicular 

joint. 

In a May 2, 2016 decision, OWCP denied appellant’s claim for a greater schedule award. 

On October 4, 2016 appellant requested reconsideration. In support thereof, he submitted 

a September 8, 2016 report wherein Dr. Tauber contended that it was grossly unfair to appellant 

to not include diagnoses that contribute to his complaints of pain which have been objectively 

confirmed. He noted that in this case appellant had undergone a rotator cuff surgery and a 

subacromial decompression. Dr. Tauber noted that appellant was now confirmed to have 

acromioclavicular arthritis, a superior labral anterior posterior (SLAP) lesion, and a frozen 

shoulder. He noted that appellant had residual symptoms of a SLAP lesion, which would merit 

four percent upper extremity impairment pursuant to Table 15-5. Dr. Tauber also noted that 

appellant had acromioclavicular arthritis, which would merit an additional four percent 

impairment pursuant to Table 15-5. Accordingly, he opined that the rotator cuff surgery and 

adhesive capsulitis would merit a combined, additional 8 percent impairment a total of 15 

percent permanent impairment of the left upper extremity. 

Appellant stopped work again on October 7, 2016, due to right shoulder surgery. He has 

not returned to work. 

On November 8, 2016 OWCP again referred the case to an OWCP DMA. In a 

November 9, 2016 response, the DMA found that appellant had five percent permanent 

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

upper extremity resulting from the August 16, 2013 injury. He noted that the A.M.A., Guides

provide that the evaluator is expected to choose the most significant diagnosis and rate only that 

diagnosis using the DBI method. The DMA noted that he calculated appellant’s left upper 

extremity by using a diagnosis based on residuals from the rotator cuff repair, and used a grade 

modifier to take into account appellant’s problem with acromioclavicular joint osteoarthritis. He 

also noted that the most recent MRI scan failed to document any SLAP or labral pathology. The 

DMA recommended no increase in appellant’s left upper extremity impairment. 

By decision dated November 18, 2016, OWCP denied modification of the May 2, 2016 

decision, finding that its prior finding of seven percent permanent impairment of his left upper 

extremity was correct. It noted that, although Dr. Harris found five percent permanent 

impairment of the right upper extremity, a schedule award for the right upper extremity was not 

payable at present as appellant had not yet reached maximum medical improvement, noting that 

appellant had recently undergone right shoulder surgery on October 7, 2016. 

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.5

 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of 

 5 See 20 C.F.R. §§ 1.1-1.4. 
5

use of specified members, functions, and organs of the body.6

 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.7 

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).8

 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.9 

ANALYSIS 

The issue is whether appellant has more than seven percent permanent impairment of his 

left upper extremity, for which he previously received a schedule award. A secondary issue is 

whether appellant is entitled to a schedule award for impairment to his right 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 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.10 The purpose 

of the use of uniform standards is to ensure consistent results and to ensure equal justice under 

the law to all claimants.11 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 

 6

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

§ 8107(c)(1). 

7

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

8 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). 

9

 Isidoro Rivera, 12 ECAB 348 (1961). 

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

11 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
6

DMAs 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 have been 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.12 

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 November 18, 2016 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.

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 18, 2016 is set aside, and the case is remanded for 

further action consistent with this decision. 

Issued: August 2, 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 

 12 Supra note 10.