United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.R., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Newington, CT, Employer 

__________________________________________ 

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Docket No. 15-1379 

Issued: March 23, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 10, 2015 appellant filed a timely appeal from an April 2, 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 more than five percent impairment of his right upper 

extremity. 

FACTUAL HISTORY 

On November 9, 2012 appellant, a 56-year-old claims examiner, sustained a traumatic 

injury in the performance of duty while exiting a bathroom door. He had his right arm extended 

 1

 5 U.S.C. § 8101 et seq.
2

to push the door open, but another employee pushed the door from the other side, jamming 

appellant’s right shoulder. OWCP accepted appellant’s claim for a complete rupture of the right 

rotator cuff and right rotator cuff strain. Appellant underwent surgery on February 20, 2013 

including a mini-open partial rotator cuff repair. 

Appellant filed a claim for a schedule award (Form CA-7). Dr. John D. Kelley, the 

Board-certified orthopedic surgeon who performed the operation, evaluated appellant on 

February 10, 2014, about one year after surgery. Based on the average of three undisclosed 

goniometric measurements, active range of motion (ROM) was 150 degrees of flexion, 30 

degrees of extension, 150 degrees of abduction, 30 degrees of adduction, 50 degrees of internal 

rotation, and 70 degrees of external rotation. 

X-rays showed satisfactory glenohumeral and acromioclavicular joint alignment, good 

glenohumeral joint space, a reasonable space between the superior articular surface and the 

undersurface of the acromion, and a mild type 2 acromion. 

Referencing Table 15-34, page 475, of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides), Dr. Kelley 

found 10 percent impairment of the right upper extremity utilizing the ROM methodology. 

An OWCP medical adviser reviewed Dr. Kelley’s evaluation. He noted that Dr. Kelley 

did not document his calculations and failed to follow the protocols for rating impairment using 

the ROM method. Noting that the diagnosis-based impairment (DBI) methodology was the 

preferred rating method for the upper extremity, the medical adviser used Table 15-5, page 403, 

of the A.M.A., Guides to find a default impairment value of five percent for a full-thickness 

rotator cuff tear with residual loss. This rating was unaffected by mild functional history, 

decreased for the unusable ROM findings, and increased for moderate clinical studies, resulting 

in no modification of the default rating. The medical adviser concluded that appellant had five 

percent permanent impairment of the right upper extremity. 

Dr. Kelley reviewed the medical adviser’s opinion and explained that it was his own 

opinion that the ROM methodology better denoted appellant’s permanent impairment and was in 

the realm of allowed uses. 

On April 2, 2015 OWCP issued appellant a schedule award for five percent permanent 

impairment of his right upper extremity. It found that the weight of the medical evidence rested 

with the medical adviser, who correctly applied the A.M.A., Guides. 

On appeal, appellant argues that the ROM methodology can be used as a stand-alone 

method for evaluating impairment. He adds that he believes the method that gives the employee 

the higher evaluation should be used. 

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

vested the authority to implement the FECA program with the Director of OWCP.2

 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.3

 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.4 

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).5

 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.6

ANALYSIS 

The issue on appeal is whether appellant has more than five percent permanent 

impairment of his 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.7

 

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

 2 See 20 C.F.R. §§ 1.1-1.4. 

3

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

§ 8107(c)(1). 

4

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

5 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). 

6 Isidoro Rivera, 12 ECAB 348 (1961). 

7 T.H., Docket No. 14-0943 (issued November 25, 2016). 
4

justice under the law to all claimants.8

 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.9

 

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 April 2, 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 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

9 Supra note 7. 
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ORDER 

IT IS HEREBY ORDERED THAT the April 2, 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: March 23, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board