United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pelham, AL, Employer 

__________________________________________ 

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Docket No. 14-1553 

Issued: March 1, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 30, 2014 appellant filed a timely appeal from a June 3, 2014 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. 

 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. 
2

ISSUE 

The issue is whether OWCP properly rescinded a June 1, 2011 schedule award as the 

percentage of permanent impairment of the left upper extremity had decreased from 11 to 8 

percent. 

FACTUAL HISTORY 

OWCP accepted that on November 16, 2009 appellant, then a 40-year-old rural letter 

carrier in modified duty status, sustained a left shoulder and upper arm sprain, left rotator cuff 

tear, and complete left rotator cuff rupture. On April 14, 2010 appellant underwent left shoulder 

arthroscopy with subacromial decompression, rotator cuff repair, and a Mumford revision. On 

October 5, 2010 appellant underwent an arthroscopic left biceps tenodesis. OWCP authorized 

both procedures. 

On March 17, 2011 appellant filed a claim for a schedule award (Form CA-7). OWCP 

obtained a second opinion medical examination of appellant on April 25, 2011 from Dr. Tai Q. 

Chung, a Board-certified orthopedic surgeon. Dr. Chung reviewed the medical record and 

statement of accepted facts. He opined that appellant had reached maximum medical 

improvement (MMI). Dr. Chung reviewed and adopted a February 2, 2011 functional capacity 

evaluation (FCE) performed by a physical therapist, who observed the following ranges of 

motion of the left shoulder: 130 degrees flexion; 130 degrees abduction; 45 degrees external 

rotation; 60 degrees internal rotation; and 30 degrees extension. He referred generally to the 

sixth edition of the American Medical Association’s, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides),3

 finding that appellant had five percent permanent impairment of 

the left upper extremity. 

An OWCP medical adviser reviewed Dr. Chung’s report on May 20, 2011. He found that 

according to Table 15-34,4 appellant had the following percentages of impairment due to lost 

ROM: 3 percent for flexion at 130 degrees; 3 percent for abduction at 130 degrees; 2 percent for 

external rotation at 45 degrees; 2 percent for internal rotation at 60 degrees and; 1 percent for 

extension at 30 degrees. OWCP’s medical adviser combined these impairments to find 11 

percent permanent impairment of the left upper extremity. He noted that the ROM method of 

rating permanent impairment produced a more favorable result than the diagnosis-based 

impairment (DBI) rating method, which would have assessed 10 percent impairment of the left 

upper extremity. The medical adviser noted a grade modifier for findings on physical 

examination (GMPE) of 1 according to Table 15-35,5

 and a grade modifier for functional history 

(GMFH) of 1, according to Table 15-7.6 Applying the net adjustment formula of (GMFH-CDX) 

+ (GMPE–CDX) + (GMCS-CDX), or (1-1) + (1-1), the medical adviser found no change in the 11 

percent impairment rating. 

 3

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

4

 Table 15-34, page 475 of the A.M.A., Guides is entitled, “Shoulder Range of Motion.” 

 5

 Table 15-35, page 477 of the A.M.A., Guides is entitled, “Range of Motion Grade Modifiers.” 

 6

 Table 15-7, page 406 of the A.M.A., Guides is entitled, “Functional History Adjustment: Upper Extremities.” 
3

By decision issued June 1, 2011, OWCP granted appellant a schedule award for 11 

percent permanent impairment of the left arm, based on Dr. Chung’s opinion, as interpreted by 

the OWCP medical adviser, as the weight of the evidence. The period of the award ran from 

May 26, 2011 to January 21, 2012. 

Beginning in May 2011, appellant performed modified light duty work. She remained 

under medical treatment.7

 

On November 5, 2012 appellant claimed an additional schedule award (Form CA-7). She 

submitted reports dated from November 1, 2012 to January 10, 2013 from Dr. Daryl Dykes, an 

attending Board-certified orthopedic surgeon, who recommended a left supraspinatus tendon 

repair.8

On March 20, 2013 Dr. Chad Mathis, Board-certified in sports medicine, performed an 

arthroscopic left supraspinatus tenodesis with extensive debridement, bursectomy, and lysis of 

adhesions as authorized by OWCP. In May 30 and 31, 2013 reports, Dr. Mathis found that 

according to a May 30, 2013 FCE, performed by a physical therapist, appellant had attained MMI 

as of that day. The physical therapist noted the following ranges of motion: “Flexion=130, 

Extension=50, Abduction=30, Adduction=40, I[nternal] R[otation]=50, E[xternal] R[otation]=80.” 

The physical therapist noted that according to Table 15-34, appellant had eight percent impairment 

of the left upper extremity. He did not provide an impairment calculation. Dr. Mathis released 

appellant from his care.9

On July 16, 2013, appellant claimed an additional schedule award (Form CA-7) for 

impairment of the left upper extremity. OWCP referred the medical record to an OWCP medical 

adviser for an impairment rating. In a July 23, 2013 report, an OWCP medical adviser found that 

according to Table 15-34, the May 30, 2013 ROM measurement percentages of impairment 

were: 3 percent for flexion at 130 degrees; 3 percent for abduction at 130 degrees; 2 percent for 

internal rotation at 50 degrees; 0 percent for extension at 50 degrees; adduction at 40 degrees; 

and external rotation at 80 degrees. The medical adviser combined these percentages to equal 

 

 7 On May 17, 2012 appellant claimed a recurrence of disability (Form CA-2) beginning December 6, 2011 due to 

pushing a heavy cart and repetitive lifting. By decision dated September 11, 2012, OWCP denied appellant’s claim for 

recurrence of disability as she identified intervening factors that broke the chain of causation from the accepted injury. 

Counsel requested a telephonic hearing, held January 15, 2013, at which appellant acknowledged that she sustained a 

new left arm injury on December 6, 2011. By decision dated April 23, 2013, an OWCP hearing representative set aside 

the September 11, 2012 decision as it was unclear whether there was a valid light-duty job offer in place at the time of 

the claimed recurrence of disability. 

8

 A July 25, 2012 arthrogram of the left shoulder showed an undersurface supraspinatus tendon tear with a cyst 

connecting to the subacromial bursa. 

9

 On April 30, 2013, the employing establishment offered appellant a modified duty position with no use of the left 

arm. OWCP advised appellant by May 7, 2013 letter that the position was suitable work and of the penalties under 

FECA for refusing the offer. Appellant accepted the offer on May 28, 2013 and resumed work on May 31, 2013. By 

decision dated May 31, 2013, OWCP terminated appellant’s compensation under 5 U.S.C. § 8115 as appellant returned 

to work with no loss of wages. By decision dated June 27, 2013, it terminated appellant’s compensation effective 

October 4, 2012 as she refused an offer of suitable work. Counsel requested a telephonic hearing. 
4

eight percent. He noted that there was no additional impairment beyond the 11 percent 

previously awarded. 

By notice dated September 13, 2013, OWCP advised appellant of its preliminary 

determination of a $5,783.70 overpayment of compensation from November 7, 2011 to 

January 21, 2012, as she had only eight percent left arm impairment, but she had already 

received compensation for 11 percent permanent impairment.10 Counsel requested a telephonic 

prerecoupment hearing. Appellant submitted financial information indicating that the schedule 

award should have been paid at the argumented compensation rate or 75 percent, for a claimant 

with one or more dependents, but was instead paid at the 66 and 2/3 percent rate. At the 

March 19, 2014 telephonic prerecoupment hearing, counsel asked that the record remain open 

for 30 days to allow submission of additional evidence. After the hearing, appellant submitted 

an April 2, 2014 chart note regarding pain management. 

By decision dated and finalized June 3, 2014, OWCP found an overpayment of 

compensation from November 7, 2011 to January 21, 2012. The hearing representative 

rescinded the June 1, 2011 schedule award, finding that the May 30, 2013 range of motion 

measurements obtained by a physical therapist, as reviewed and adopted by Dr. Mathis, and 

subsequently reviewed by an OWCP medical adviser, established an overpayment of 

compensation from November 7, 2011 to January 21, 2012. The hearing representative found, 

however, that the amount of the overpayment was not in posture for a decision, as additional 

development was needed regarding the appropriate compensation rate during the period of 

overpayment.11 The hearing representative remanded the case to OWCP for additional 

development regarding the correct amount of the overpayment. 

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.12 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.13 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 

 10 During development of the overpayment issue, OWCP issued a November 25, 2013 decision terminating her 

compensation effective that day for refusing a June 2013 offer of suitable work. OWCP affirmed the termination by 

decision dated February 19, 2014, referring to the October 4, 2012 termination. As counsel did not appeal the 

February 19, 2014 decision to the Board, the Board does not have jurisdiction over the termination issue on the 

present appeal. 

11 The issue of amount of overpayment of compensation, if any, and issues of recovery of overpayment under 5 

U.S.C. § 8129(a) are not before the Board on the current appeal. 

12 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 
5

implementing regulations, OWCP adopted the American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule 

losses.14

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).15 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.16

ANALYSIS 

The issue on appeal is whether OWCP properly rescinded a June 1, 2011 schedule award 

as the percentage of permanent impairment of the left upper extremity had decreased from 11 to 

8 percent. 

The Board finds that this case is not in posture for decision as the underlying 

overpayment finding has not been properly developed by OWCP. 

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.17 

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

justice under the law to all claimants.18 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 

 14 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

15 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 2.808.6a (February 2013). 

16 In the Matter of Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

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.19 

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 3, 2014 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, and thereafter determine the extent, if any, of an overpayment of disability 

benefits. 

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the June 3, 2014 decision of the Office of Workers’ 

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

this decision.20

Issued: March 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 Supra note 17. 

20 James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the 

Board effective November 16, 2015.