United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.Q., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Atlanta, GA, Employer 

__________________________________________ 

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Docket No. 16-1709 

Issued: May 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 August 24, 2016 appellant filed a timely appeal from a March 29, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has established permanent impairment of a scheduled 

member sufficient to warrant a schedule award. 

FACTUAL HISTORY 

On October 30, 2012 appellant, then a 45-year-old factory manager, filed a traumatic 

injury claim (Form CA-1) alleging that on that same date she sustained lacerations on both 

ankles and a strained shoulder when a wooden pallet came loose and struck her on both ankles, 

 1

 5 U.S.C. § 8101 et seq.
2

causing her to lose her balance. She grabbed a metal beam with her right arm and hand to 

prevent her fall. Appellant sought treatment with Dr. Rajiv D. Pandya, a Board-certified 

orthopedic surgeon. 

By decision dated January 11, 2013, OWCP accepted the claim for left tenosynovitis of 

the foot and ankle, as well as sprain of the right shoulder and upper arm rotator cuff. 

On May 21, 2013 appellant underwent right shoulder arthroscopy with arthroscopic 

rotator cuff repair, subacromial bursectomy, and decompression and debridement of labral tear. 

She stopped work on May 21, 2013 and returned to modified duty on August 29, 2013. 

A statement of accepted facts (SOAF) dated October 23, 2013 relates that the accepted 

conditions are sprain of the right shoulder and upper arm, rotator cuff, and tenosynovitis of left 

foot and ankle. 

On November 14, 2013 OWCP referred appellant, the case file, a series of questions, and 

a SOAF to Dr. Alexander Doman, a Board-certified orthopedic surgeon, for a second opinion 

evaluation regarding her disability and residual injury status. In his November 19, 2013 report, 

Dr. Doman opined that her tenosynovitis of left foot and ankle, as well as sprain of right shoulder 

and upper arm rotator cuff had resolved with no further need for medical treatment. He reported 

that appellant did not require work limitations and could perform the physical demands of a 

factory manager. 

On February 9, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated February 12, 2016, OWCP requested that appellant submit an impairment 

evaluation from her attending physician in accordance with the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) (6th ed. 2009).2

 

Appellant was afforded 30 days to submit the requested impairment evaluation. 

In a February 24, 2016 medical report, Dr. Pandya related that appellant’s tenosynovitis 

of the foot and ankle had reached maximum medical improvement (MMI) on January 29, 2013. 

He reported that these conditions did not result in permanent impairment. 

In a February 29, 2016 report, Dr. Pandya reported that appellant’s right shoulder 

conditions had reached MMI on April 22, 2014. He noted a diagnosis of full-thickness rotator 

cuff tear for which she had undergone surgery on May 21, 2013. Dr. Pandya noted objective 

findings of muscle weakness and arthroscopic incision scars and subjective complaints of 

weakness and occasional pain. Using the diagnosis-based impairment (DBI) method and the 

sixth edition of the A.M.A., Guides, he opined that appellant had a seven percent permanent 

impairment of the right upper extremity. According to Table 15-5 Shoulder Regional Grid, 

section for rotator cuff injury full thickness tear, Dr. Pandya identified the diagnosis as class 1 

 2

 A.M.A., Guides (2009). 
3

with a net adjustment of 2 for grade E, yielding seven percent permanent impairment of the right 

shoulder.3 

OWCP properly routed Dr. Pandya’s report and the case file to Dr. Herbert White Jr., an 

OWCP medical adviser Board-certified in occupational medicine, for review and a determination 

on whether appellant sustained a permanent partial impairment to a member or function of the 

body and for the proper date of MMI. 

In a March 9, 2016 report, Dr. White summarized appellant’s medical records and 

reported that her left ankle/foot injury had reached MMI on January 21, 2013. He reported that 

her symptoms had been stable since that date and there had been no more recent evaluation of 

the foot. Using Table 16-2 of the A.M.A., Guides, Foot and Ankle Regional Grid, Dr. White 

determined that appellant’s sprain of the left ankle revealed no significant abnormalities resulting 

in zero percent permanent impairment of the left lower extremity.4

With respect to the right shoulder, Dr. White determined, also using the DBI method, that 

the date of MMI was April 22, 2014 as determined by examination of appellant’s treating 

physician. He noted that a SOAF was not available. Dr. White concurred that, according to 

Table 15-5, the diagnosis was identified as rotator cuff injury full-thickness tear.5

 He assigned 

class 2 due to slightly decreased range of motion (ROM). Functional history was assigned grade 

1 due to occasional pain/permanent lifting restrictions,6 clinical studies were assigned grade 3 

due to the severe problem and diagnosis,7 and physical evaluation was excluded from the net 

adjustment formula as it was used to determine the class. Dr. White applied the net adjustment 

formula which moved the rating to grade E with an adjusted impairment rating of seven percent 

for the right upper extremity.8 He concluded that he agreed with Dr. Pandya’s findings that 

appellant was entitled to zero percent permanent impairment of the left lower extremity and 

seven percent permanent impairment of the right upper extremity. 

By decision dated March 29, 2016, OWCP denied appellant’s claim for a schedule award 

as the evidence of record was insufficient to establish permanent impairment to a scheduled 

member or function of the body. 

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 

 3 Id. at 403, Table 15-5. 

4 Id. at 501. 

5

 Right rotator cuff tear is not an accepted condition. The SOAF dated October 23, 2013 relates that the accepted 

conditions are sprain of the right shoulder and upper arm, rotator cuff, and tenosynovitis of left foot and ankle. 

6

 A.M.A., Guides 406, Table 15-7 

7 Id. at 410, Table 15-9 

8 Id. at 411. 
4

vested the authority to implement the FECA program with the Director of OWCP.9

 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.10 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.11 

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).12 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.13

ANALYSIS 

OWCP accepted appellant’s claim for left tenosynovitis of foot and ankle and sprain of 

right shoulder and upper arm rotator cuff. The issue is whether appellant sustained permanent 

impairment of the left lower extremity and right upper extremity entitling her to a schedule 

award. 

Both Dr. White and Dr. Pandya concurred that appellant’s tenosynovitis of the left ankle 

and foot had resolved with no permanent impairment.14 No other physician has provided a 

medical opinion finding a permanent impairment of her lower extremity. Thus, the Board finds 

 9 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

11 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

12 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 2.808.5(a) (February 2013). 

13 Isidoro Rivera, 12 ECAB 348 (1961). 

14 E.D., Docket No. 10-0967 (issued January 7, 2011). 
5

that appellant has not established permanent impairment of the left lower extremity warranting a 

schedule award.15

Regarding permanent impairment of the right upper extremity, the Board finds that the 

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.16 

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

justice under the law to all claimants.17 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.18 

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 July 12, 2016 decision 

as it relates to upper extremity permanent impairment. 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. 

 15 Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further 

decision regarding the issue on appeal until after the Board relinquishes jurisdiction. See 20 C.F.R. § 501.2(c)(3). 

The Board notes that, following the March 29, 2016 decision, appellant also requested reconsideration before 

OWCP. During the pendency of this appeal before the Board, by decision dated August 30, 2016, OWCP vacated 

the March 29, 2016 decision and awarded appellant a schedule award for seven percent impairment of the right arm 

with an April 22, 2014 date of MMI. It further found that appellant was entitled to zero percent impairment of the 

left leg. The Board and OWCP may not exercise simultaneous jurisdiction over the same issue in the same case at 

the same time. Jacqueline S. Harris, 54 ECAB 139 (2002); Douglas E. Billings, 41 ECAB 880 (1990). Thus, 

OWCP’s August 30, 2016 decision is declared null and void. S.O., Docket No. 13-1083 (issued April 15, 2014). 

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

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

18 Supra note 16. 
6

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed inpart and set aside inpart. The case is remanded 

to OWCP for further proceedings consistent with this opinion. 

Issued: May 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