United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Birmingham, AL, Employer 

__________________________________________ 

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Docket No. 16-0196 

Issued: February 15, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 10, 2015 appellant filed a timely appeal from a September 15, 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 established more than 10 percent permanent 

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

FACTUAL HISTORY 

This case has previously been before the Board.2

 In a decision dated April 4, 2016, the 

Board denied appellant’s claim for leave buyback for the period June 22, 2013 to May 28, 2014 

 1

 5 U.S.C. § 8101 et seq.

2

 Docket No. 15-1508 (issued April 4, 2016). 
2

for intermittent periods of disability as the medical evidence was insufficient to establish that he 

was unable to work during this period as a result of his left shoulder condition. It also found that 

the record established that appellant received medical treatment on June 22 and July 9, 2013 and 

remanded the claim for OWCP to determine whether he was entitled to up to four hours of wageloss compensation for these medical appointments and travel time. The facts and circumstances 

of the case as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are set forth below. 

On June 28, 2013 appellant, then a 59-year-old a postal clerk, filed a recurrence claim 

alleging that on June 19, 2013 he sustained a recurrence of a January 28, 2003 employment 

injury. He stopped work on June 22, 2013. OWCP converted appellant’s claim to a new 

occupational disease claim as he attributed his injury to new employment factors. It accepted his 

claim for left shoulder rotator cuff tear. OWCP paid wage-loss and medical compensation 

benefits. 

Appellant underwent authorized left shoulder surgery for arthrotomy rotator cuff repair, 

acromioplasty, and distal clavicle resection on August 13, 2014. He continued to receive 

medical treatment and was paid wage-loss and medical compensation benefits. 

On October 25, 2014 appellant returned to full-time limited duty. 

Appellant underwent a functional capacity evaluation (FCE) on February 20, 2015. In a 

March 24, 2015 work capacity evaluation form, Dr. William Garth, a Board-certified orthopedic 

surgeon, who specializes in orthopedic sports medicine, modified appellant’s work duties based 

on the FCE. He noted that appellant was limited in his left shoulder. Dr. Garth indicated that 

appellant could work full time with restrictions of reaching, reaching above the shoulder, and 

pushing for one hour and pulling up to 10 pounds for eight hours. 

On June 4, 2015 OWCP offered appellant a modified-job assignment as a mail processing 

clerk. Appellant accepted the full-time limited-duty position on June 11, 2015. 

Appellant filed a Form CA-7 claim for schedule award on August 14, 2015. 

By letter dated August 19, 2015, OWCP requested that appellant submit a medical report 

from his treating physician with a detailed description of the permanent impairment, including 

any permanent impairment of the same member or function which preexisted the injury, a date 

of maximum medical improvement, and a discussion of the rationale for calculation of the 

impairment according to the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides). It included a Form CA-1053 to be 

completed by appellant’s physician. 

The Form CA-1053 was completed on September 2, 2015 by Dr. Garth and reflected that 

appellant had reached maximum medical improvement on June 9, 2015. He related appellant’s 

complaints of left shoulder pain with overhead activities and repetitive reaching. Dr. Garth noted 

a diagnosis of partial tear of the left rotator cuff and indicated that appellant had undergone left 

shoulder surgery on August 13, 2014 as a result of his work injury. He reported examination 

findings of partial tear of the rotator cuff and superior labral. Dr. Garth indicated that according 

to the A.M.A., Guides, appellant had eight percent impairment of the left shoulder due to left 
3

shoulder rotator cuff tear, which translated to five percent left upper extremity impairment and 

three percent whole body impairment. He also reported that appellant had 18 percent 

impairment of the left shoulder due to total impingement, which translated to 11 percent left 

upper extremity impairment and 6 percent whole body impairment. Dr. Garth concluded that 

appellant had 11 percent left upper extremity impairment and 6 percent whole body impairment. 

In a September 8, 2015 report, Dr. Howard P. Hogshead, a Board-certified orthopedic 

surgeon, acting as OWCP’s district medical adviser (DMA) reviewed Dr. Garth’s September 2, 

2015 impairment rating evaluation and agreed that appellant had reached maximum medical 

improvement on June 9, 2015. He noted, however, that although Dr. Garth recommended 11 

percent impairment of the left upper extremity, Dr. Garth did not explain or document his 

calculations. Dr. Hogshead referred to Table 15-5, page 403, of the A.M.A., Guides and 

assigned class 1 diagnosis, default 10 percent impairment, for acromioclavicular (AC) joint 

injury, distal clavicle resection. He pointed out that under OWCP File No. xxxxxx137 appellant 

had received a schedule award for eight percent impairment for the left shoulder for basically the 

same problem. Accordingly, Dr. Hogshead subtracted the previous 8 percent award from his 

current 10 percent impairment rating and concluded that appellant should be awarded an 

additional 2 percent impairment for the left upper extremity. 

By decision dated September 15, 2015, OWCP granted a schedule award for two 

additional percent permanent impairment of the left upper extremity. The award ran for 6.24 

weeks from June 9 to July 22, 2015. 

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 the Office of Workers’ 

Compensation Programs.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 American 

Medical Association, Guides to the Evaluation of Permanent Impairment 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 

 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). 
4

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

ANALYSIS 

The issue on appeal is whether appellant has established that he sustained more than 10 

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

schedule awards. 

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 range of motion 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 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 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 

 6

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

7 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

10 Supra note 8. 
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cases involving upper extremity impairment, the Board will set aside the September 15, 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 15, 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: February 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board