United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 16-0294 

Issued: April 7, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 4, 2015 appellant filed a timely appeal from a June 29, 2015 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 met his burden of proof to establish more than 12 

percent permanent impairment of the left upper extremity for which he previously received a 

schedule award. 

On appeal appellant asserts that he should receive the impairment rating found by his 

attending orthopedic surgeon. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 16, 2013 appellant, then a 57-year-old K9 officer, filed a traumatic injury claim 

(Form CA-1) alleging that he injured his left knee and shoulder when he tripped and fell 

performing a work-related inspection. He did not stop work. 

Dr. Christopher T. Behr, a Board-certified orthopedic surgeon, began treating appellant 

on May 24, 2013. A June 20, 2013 magnetic resonance imaging (MRI) scan of the left shoulder 

demonstrated a large rotator cuff tear with compromise of the coracoacromial arch and moderate 

glenohumeral joint effusion. On June 25, 2013 Dr. Behr reviewed the MRI scan findings and 

recommended arthroscopic rotator cuff repair. 

On July 17, 2013 OWCP accepted left shoulder sprain and expanded the claim to include 

left acromioclavicular sprain and partial left rotator cuff tear. 

Dr. Behr performed authorized rotator cuff repair on September 11, 2013. He submitted 

reports beginning October 22, 2013 describing appellant’s follow-up care. On December 10, 

2013 Dr. Behr advised that appellant could return to limited duty on January 1, 2014. 

Appellant filed claims for compensation (Form CA-7) beginning September 11, 2013 and 

received wage-loss compensation. He returned to modified duty on January 1, 2014 and 

received intermittent compensation thereafter for physical therapy appointments. On 

February 18, 2014 Dr. Behr advised that appellant could return to full duty. 

On November 20, 2014 appellant filed a schedule award claim (Form CA-7). He 

submitted an April 1, 2014 report in which Dr. Behr advised that appellant had reached 

maximum medical improvement (MMI) and had continued occasional shoulder pain and limited 

shoulder motion. Dr. Behr described left shoulder physical examination findings. Range of 

motion (ROM) demonstrated 110 degrees of abduction, 110 degrees of forward 

elevation/flexion, 40 degrees of external rotation, 60 degrees of internal rotation, 30 degrees of 

extension, and 30 degrees of adduction. Dr. Behr diagnosed large left shoulder rotator cuff tear, 

treated with arthroscopic repair. He advised that, in accordance with page 403 (Table 15-5, 

Shoulder Regional Grid) of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2

 appellant had a class 1 

impairment for a diagnosis of full-thickness tear with residual loss of function and abnormal 

motion, which yielded 13 percent upper extremity permanent impairment. 

In a June 8, 2015 report, Dr. Arthur S. Harris, an OWCP medical adviser and a Boardcertified orthopedic surgeon, noted his review of the record, including Dr. Behr’s impairment 

evaluation. He noted that, under Table 15-5, for a diagnosed full-thickness rotator cuff tear, the 

maximum impairment value allowed is seven percent. Dr. Harris then calculated appellant’s 

impairment using Dr. Behr’s ROM. He advised that, under the ROM method, under Table 15-34 

Shoulder Range of Motion appellant had 3 percent upper extremity impairment for loss of left 

shoulder flexion, 1 percent impairment for loss of shoulder extension, 3 percent impairment for 

loss of shoulder abduction, 1 percent impairment for loss of adduction, 2 percent impairment for 

 2

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

loss of internal rotation, and 2 percent impairment for loss of shoulder external rotation, which 

resulted in 12 percent left arm impairment. Dr. Harris found that MMI was reached on April 1, 

2014, the date of Dr. Behr’s evaluation. 

On June 29, 2015 OWCP granted appellant a schedule award for 12 percent permanent 

impairment of the left arm, for 37.44 weeks of compensation, to run from April 1 to 

December 19, 2014. 

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.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., 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. 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

 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 and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

7 Isidoro Rivera, 12 ECAB 348 (1961). 
4

ANALYSIS 

The issue on appeal is whether appellant has met his burden of proof to establish more 

than 12 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 diagnosis-based 

impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment 

for schedule 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 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.10 

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 June 29, 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.

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

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

10 Supra note 8. 
5

ORDER 

IT IS HEREBY ORDERED THAT the June 29, 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 7, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board