United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.S., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Dayton, OH, Employer 

__________________________________________ 

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Docket No. 17-0126 

Issued: June 2, 2017 

Appearances: Case Submitted on the Record

Brad Harris, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 27, 2016 appellant, through counsel, filed a timely appeal from a May 2, 

2016 decision of the Office of Workers’ Compensation Programs (OWCP).2

 Pursuant to the 

Federal Employees’ Compensation Act3

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this 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

 Appellant timely requested oral argument before the Board. By order dated March 2, 2017, the Board exercised 

its discretion and denied the request, finding the issue could be addressed based on a review of the case record. 

Order Denying Oral Argument, Docket No. 17-0126 (issued March 2, 2017). 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has established more than 13 percent permanent 

impairment of the right upper extremity for which she previously received a schedule award. 

FACTUAL HISTORY 

On July 23, 2010 appellant, then a 58-year-old nurse, filed a traumatic injury claim (Form 

CA-1) alleging that on July 22, 2010 she tripped and fell fracturing her right arm in the 

performance of duty. OWCP accepted the claim for a fracture of the right humerus and lumbar 

sprain. Appellant stopped work on July 22, 2010. OWCP paid her compensation for total 

disability from September 6 to October 15, 2010. 

Appellant underwent an open reduction and internal fixation of the right proximal 

humerus fracture on August 3, 2010.4

 

Appellant filed a claim for schedule award (Form CA-7). 

By decision dated February 23, 2012, OWCP granted appellant a schedule award for 13 

percent permanent impairment of the right upper extremity. The period of the award ran for 

40.56 weeks from January 3 to October 13, 2011. 

Appellant, on June 17, 2012, filed a claim for an increased schedule award (Form CA-7). 

In an impairment evaluation received on June 22, 2012, Dr. Frank A. Burke, a Boardcertified orthopedic surgeon, diagnosed a comminuted displaced right proximal humerus fracture 

requiring an open reduction and internal fixation and a back sprain. Applying Table 15-34 on 

page 475 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides), he found 26 percent permanent impairment using the 

range of motion (ROM) method. Dr. Burke opined that appellant had reached maximum medical 

improvement (MMI). 

 Dr. Nabil F. Angley, a Board-certified orthopedic surgeon and OWCP medical adviser, 

concurred with Dr. Burke’s finding of 26 percent permanent right upper extremity impairment 

due to loss of motion. He indicated that the date of MMI was October 18, 2010, the date 

appellant resumed limited-duty work. 

 On October 7, 2013 appellant, through counsel, questioned why OWCP had not 

processed her schedule award claim. On November 15, 2013 OWCP referred the case record to 

an OWCP medical adviser for review, noting that it was unclear why Dr. Angley used 

October 18, 2010 as the date of MMI. 

 4

 By decision dated December 13, 2011, OWCP reduced appellant’s compensation to zero after finding that her 

actual earnings as a gastroenterology staff nurse effective August 29, 2011 fairly and reasonably represented her 

wage-earning capacity. 
3

 Dr. Morley Slutsky, an OWCP medical adviser and Board-certified occupational 

medicine specialist, reviewed the evidence on December 14, 2013. He noted that the diagnosisbased impairment (DBI) estimate method was preferred over the ROM method for rating 

impairments of the upper extremities. Dr. Slutsky identified the diagnosis as a humerus fracture 

and found, using Table 15-5 on page 405, that appellant had three percent permanent impairment 

of the right upper extremity. He advised that she had reached MMI on June 1, 2011. 

 In an addendum dated March 28, 2014, Dr. Burke reviewed Dr. Slutsky’s report at the 

request of OWCP. He asserted that it was appropriate to use the ROM method to rate appellant’s 

impairment using motion loss as it was pronounced. Dr. Burke noted that such a rating was 

allowed under the A.M.A., Guides. 

 Dr. Slutsky, on April 13, 2014, again advised that appellant had three percent permanent 

impairment of the right upper extremity using the DBI method. 

 On July 29, 2014 OWCP referred appellant to Dr. Alan Kohlhaas, a Board-certified 

orthopedic surgeon, for an impartial medical examination. In an August 25, 2014 impairment 

evaluation, Dr. Kohlhaas diagnosed a comminuted proximal fracture of the humerus with 

surgical repair August 3, 2010. Using the ROM method he found that appellant had eight 

percent permanent impairment due to reduced motion under Table 15-34 on page 475 of the 

A.M.A., Guides. Dr. Kohlhaas opined that appellant reached MMI on June 1, 2011. 

 Dr. Daniel Zimmerman, a Board-certified internist and OWCP medical adviser, 

determined that appellant had three percent permanent impairment of the right arm using a DBI 

estimate. 

 By decision dated October 17, 2014, OWCP denied appellant’s claim for an increased 

schedule award. 

 Appellant, through counsel, on November 13, 2014 requested an oral hearing before an 

OWCP hearing representative. Following a preliminary review, by decision dated April 27, 

2015, an OWCP hearing representative vacated the October 17, 2014 decision. Counsel found 

that an OWCP medical adviser could not resolve a conflict in medical opinion and instructed 

OWCP to refer the case to the impartial medical examiner to review the medical adviser’s report. 

 Dr. Kohlhaas, in a supplemental report dated May 13, 2015, reviewed Dr. Zimmerman’s 

report and noted that he used a diagnosis of fracture set forth at Table 15-5 on page 405 in rating 

appellant’s impairment. He again found eight percent permanent impairment of the right upper 

extremity using the ROM method. 

 In a decision dated May 29, 2015, OWCP denied appellant’s claim for an increased 

schedule award. 

Appellant, on June 3, 2015, requested a telephone hearing, which was held on 

February 16, 2016. In a March 9, 2016 statement, counsel contended that OWCP erred by 

procedurally referring the case to a second OWCP medical adviser after Dr. Angley had 

concurred with Dr. Burke’s May 23, 2012 impairment rating. He asserted that Dr. Angley 

should have addressed any questions regarding the date of MMI and questioned why Dr. Slutsky 
4

provided a new finding regarding the percentage of impairment. Counsel argued that everything 

after Dr. Angley’s report was based on a procedural error and should not be considered. He 

asserted that OWCP procedures provide that if the OWCP medical adviser and attending 

physician agree the award should be processed. 

By decision dated May 2, 2016, OWCP’s hearing representative affirmed the May 29, 

2015 decision. She found that OWCP properly obtained an additional opinion from another 

medical adviser as Dr. Angley had not provided a detailed evaluation of Dr. Burke’s findings and 

had not explained the date he chose for MMI. The hearing representative determined that the 

opinion of Dr. Kohlhaas as the impartial medical examiner represented the special weight of the 

medical evidence and established that appellant had no more than 13 percent permanent 

impairment. 

On appeal counsel contends that OWCP committed a procedural error in referring the 

case to a new OWCP medical adviser after obtaining an opinion from Dr. Angley agreeing with 

the extent of permanent impairment found by Dr. Burke. He asserts that she is entitled to a 

schedule award for an additional 13 percent permanent impairment plus interest and 

reimbursement of attorney’s fees. 

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 

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 American Medical Association, Guides to the Evaluation of 

Permanent Impairment 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. 

 5 See 20 C.F.R. §§ 1.1-1.4. 

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). 
5

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 on appeal is whether appellant has more than the previously awarded 13 

percent permanent impairment of the 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 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.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 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.12 

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 May 2, 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. 

 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). 

12 Supra note 10. 
6

CONCLUSION 

The Board finds that the case is not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the May 2, 2016 decision of the Office of Workers’ 

Compensation Programs is set aside, and the case is remanded for further action consistent with 

this decision. 

Issued: June 2, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board