United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.S., Appellant 

and 

DEPARTMENT OF THE ARMY, TANK 

AUTOMOTIVE & ARMAMENTS COMMAND, 

Rock Island, IL, Employer 

__________________________________________ 

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Docket No. 16-0377 

Issued: April 12, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 28, 2015 appellant, through counsel, filed a timely appeal from a 

September 4, 2015 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 over the merits of this case.3

 

 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. 

3

 The Board notes that appellant submitted additional evidence to OWCP after it rendered its September 4, 2015 

decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time 

of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. 

§ 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant established more than seven percent permanent 

impairment of the left upper extremity, for which he previously received a schedule award. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

FACTUAL HISTORY 

On October 19, 2012 appellant, a 52-year-old machinist, filed a claim for a traumatic 

injury (Form CA-1) alleging injuries to his neck and left shoulder on October 5, 2012 as a result 

of moving a beam. Appellant returned to work on October 6, 2012. 

In a December 7, 2012 letter, OWCP accepted the claim for left rotator cuff sprain, 

partial tear of left rotator cuff, left bicipital tenosynovitis, and left biceps tendon rupture. It 

authorized left shoulder surgery which was performed by Dr. Anthony D’Angelo, Jr., an 

orthopedic surgeon, on January 21, 2013.4 

On April 18, 2014 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7) and submitted medical evidence, including an April 15, 2014 report from Dr. D’Angelo 

who provided the following work restrictions: reaching and reaching above the shoulder one to 

two times per hour; pushing and pulling with the left upper extremity one to two times per hour; 

lifting no more than 10 pounds floor to waist, one to two times per hour; and overhead lifting no 

more than five pounds, one to two times per hour.5

 

In an April 28, 2014 letter, OWCP advised appellant of the deficiencies of his schedule 

award claim. It afforded him 30 days to submit additional evidence, including a medical report 

containing a detailed description of his permanent impairment based on the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (2009) 

(hereinafter A.M.A., Guides). 

Subsequently, appellant submitted a June 24, 2014 report from Dr. D’Angelo who opined 

that appellant had reached maximum medical improvement as of April 8, 2014. He determined 

that appellant had 20 percent permanent impairment of the left upper extremity based on a 

diagnosis of recurrent or nonhealed rotator cuff tear of the left shoulder and an additional 

diagnosis of rupture of long head of left biceps tendon. Dr. D’Angelo asserted that Chapters 1, 

2, and 15 of the sixth edition of the A.M.A., Guides were utilized to determine this impairment 

rating. Appellant was assigned to class 2 with modification based on a history of continued pain, 

decreased functional activity, range of motion, strength testing, and an arthrogram showing 

rotator cuff tear. 

 4

 In his January 21, 2013 operative report, Dr. D’Angelo noted that appellant had a partial 70 percent tear of the 

left rotator cuff. He performed a left shoulder rotator cuff repair. 

5

 On May 7, 2014 OWCP referred appellant to vocational rehabilitation services to assist him in returning to 

work. Appellant returned to work at the employing establishment in a light-duty temporary assignment on 

June 2, 2014. 
3

On August 8, 2014 an OWCP medical adviser reviewed Dr. D’Angelo’s June 24, 2014 

report and found that his 20 percent permanent impairment rating was unacceptable because it 

did not properly follow the A.M.A., Guides. The medical adviser explained that Dr. D’Angelo 

did not reference any specific grid diagnoses and failed to discuss appellant’s history or physical 

examination findings in terms of how they would allow class 2 modifications. 

OWCP referred appellant to Dr. Farid Manshadi, a Board-certified physiatrist, for a 

second opinion evaluation to determine the nature and extent of any permanent impairment due 

to his accepted conditions. In an October 20, 2014 report, Dr. Manshadi reviewed a statement of 

accepted facts, appellant’s medical history, and reported findings from his physical examination. 

He found that appellant’s left shoulder range of motion was limited and using a goniometer 

found that forward flexion was 94 degrees, extension was 33 degrees, abduction was 92 degrees, 

external rotation was 25 degrees, internal rotation was 30 degrees, and adduction was 20 degrees. 

On manual muscle testing, left shoulder flexion and abduction were at 4/5, external rotation was 

4+/5, internal rotation was 4+/5, and extension was 5-/5. Dr. Manshadi asserted that appellant 

sustained a work injury on October 5, 2012 which required left shoulder surgery but, 

postoperatively, he sustained further tear which was a full-thickness, nonretracted rotator cuff 

tear. He opined that appellant reached maximum medical improvement at the time of his 

assessment on October 1, 2014 and remained with reduced range of motion of the left shoulder, 

weakness of the rotator cuff, and weakness of the left elbow flexors, namely the biceps tendon. 

Dr. Manshadi concluded that appellant had seven percent permanent impairment of the left upper 

extremity based on use of the diagnosis-based impairment (DBI) method in Table 15-5,6

 page 

403, of the sixth edition of the A.M.A., Guides. He assigned appellant to class 1 for rotator cuff 

injury with a full-thickness tear equating a default impairment rating of five percent. 

Dr. Manshadi assigned a grade modifier of 3 for Functional History (GMFH), grade modifier of 

2 for Physical Examination (GMPE), and grade modifier of 2 for Clinical Studies (GMCS), 

equaling a net adjustment of 4 for a total impairment rating of seven percent. He found that 

appellant had five percent permanent impairment for his distal biceps tendon rupture, but 

because this was lower than his rating for his rotator cuff injury, appellant had seven percent 

permanent impairment of the left arm. 

On October 29, 2014 an OWCP medical adviser concurred with Dr. Manshadi’s seven 

percent impairment rating of the left upper extremity and maximum medical improvement date 

of October 1, 2014. 

By decision dated November 25, 2014, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the left upper extremity for 21.84 weeks for the period 

October 1, 2014 to March 2, 2015. 

On December 8, 2014 counsel requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. Appellant submitted a January 12, 2015 report from 

Dr. Maruti Kari, an anesthesiologist who diagnosed left shoulder pain, rotator cuff tear, and 

possible subacromial bursitis. He also submitted a March 27, 2015 report from a registered 

nurse who provided the following permanent restrictions: 10-pound weight restriction with no 

 6

 A.M.A., Guides 401-05, Table 15-5 of the sixth edition is entitled Shoulder Regional Grid. 
4

work or lifting below waist; no climbing, working above shoulder-height, or operating hazardous 

machinery; and may drive company buggy. 

In an April 16, 2015 report, Dr. D’Angelo explained that his impairment rating was 

determined using the Table 15-1, page 385, of the sixth edition of the A.M.A., Guides, which 

placed appellant in impairment class 2, default grade C. He based his functional history 

adjustment grade modifier of 3 on Table 15-7, page 406, for continued left shoulder pain that had 

increased over time and nighttime pain consistent with a rotator cuff tear. The grade modifier for 

physical examination was 1 based on Table 15-6, page 406, for consistent pain to palpation of 

the rotator cuff and pain against resistance with muscle strength testing. The grade modifier for 

clinical studies was 2 based on Table 15-6, page 406, and Table 15-9, page 410, for a magnetic 

resonance imaging (MRI) scan which revealed a rotator cuff tear. Dr. D’Angelo calculated that 

the net adjustment totaled zero, equaling 21 percent permanent impairment of the left arm. He 

indicated that his previous impairment rating of 20 percent was a typographical error. 

A May 12, 2015 MRI scan of the left shoulder demonstrated moderate left 

acromioclavicular joint degenerative changes and irregular osteophytes. 

A telephonic oral hearing was held before an OWCP hearing representative on 

June 24, 2015. The hearing representative held the case record open for 30 days for the 

submission of additional evidence. 

In response, appellant submitted a June 23, 2015 report from Dr. Kari who reiterated his 

diagnoses and asserted that on February 18, 2015 a door slammed on appellant’s left shoulder 

and injured it. 

On August 19, 2015 a registered nurse provided the following work restrictions for the 

period August 19 through September 16, 2015: no climbing; no work above shoulder height; no 

operating hazardous machinery or company vehicles; no lifting with left arm; and no driving. 

Appellant also submitted a September 1, 2015 report from an unidentifiable healthcare provider 

who advised that appellant was unable to perform his job functions due to an exacerbation of his 

chronic injury and reinjury to the left shoulder based on a left shoulder MRI scan that showed a 

full-thickness rotator cuff tear. 

By decision dated September 4, 2015, an OWCP hearing representative affirmed the 

November 25, 2014 schedule award decision. 

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.7

 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.8

 FECA, however, does not specify 

 7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 
5

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.9

 

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).10 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.11

ANALYSIS 

The issue on appeal is whether appellant established more than seven percent permanent 

impairment of the left upper extremity, for which he 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 methodology when assessing the extent of permanent impairment for schedule award 

purposes.

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

ensure equal justice under the law to all claimants.13 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 range of motion 

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 range of motion or DBI methodology. Because OWCP’s 

 9

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

10 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). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

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.14 

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 September 4, 2015 

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 September 4, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: April 12, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 Supra note 12.