United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Cleveland, OH, Employer

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Docket No. 17-0777

Issued: July 6, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 24, 2017 appellant, through counsel, filed a timely appeal from a January 6, 

2017 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 appellant has met her burden of proof to establish greater than six 

percent permanent impairment of the right upper extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On January 8, 2014 appellant, then a 36-year-old medical instrument technician

(hemodialysis), filed a traumatic injury claim (Form CA-1), alleging that she sustained injuries on 

December 16, 2013 when she slipped and fell on ice when entering her work building. OWCP 

accepted the claim for neck sprain, right shoulder sprain, right elbow sprain, and right wrist sprain. 

Appellant continued working light duty with restrictions of no overhead work, no lifting over 20 

pounds, no lifting overhead, and limited use of her right upper extremity.3

On September 10, 2015 appellant filed a claim for a schedule award (Form CA-7).

In an October 22, 2015 letter, OWCP advised appellant that she needed to have her 

physician submit a permanent impairment rating in accordance with the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter 

A.M.A., Guides).4 OWCP afforded her 30 days to submit the requested medical evidence and 

respond to its inquiries.

In response, appellant submitted a November 22, 2015 report from Dr. Joshua Macht, a 

Board-certified internist, who found that appellant had 13 percent permanent impairment of the 

right upper extremity under the A.M.A., Guides (6th ed. 2009). Dr. Macht rated appellant for loss 

of shoulder range of motion (ROM). He found mild tenderness upon palpation about the later right 

shoulder, slight weakness of the right shoulder and elbow, and mild elbow pain with resisted 

motion. Right shoulder flexion was 165 degrees, extension was 55 degrees, abduction was 155 

degrees, adduction was 45 degrees, external rotation was 85 degrees, and internal rotation was 

normal. Right elbow flexion was 140 degrees, extension was 0 degrees, pronation was 90 degrees, 

and supination was 90 degrees. Right wrist flexion was 65 degrees, extension was 45 degrees, 

radial deviation was 30 degrees, and ulnar deviation was 20 degrees. Dr. Macht indicated that 

there were no other findings upon examination relative to the allowed conditions of the claim. He 

concluded that appellant had reached maximum medical improvement (MMI) for her accepted 

employment-related conditions on April 26, 2014.

OWCP referred the case to its district medical adviser (DMA), Dr. Morley Slutsky, who is 

Board-certified in occupational medicine. In a December 19, 2015 report, Dr. Slutsky explained 

 

3 Appellant filed claims for 22.5 hours of intermittent wage-loss compensation (Form CA-7) for the periods March 3 

to 12, and March 10 to May 31, 2014. By decision dated September 17, 2014, OWCP denied the claim because the 

medical evidence of record was insufficient to establish disability for the periods claimed. On September 22, 2014 

counsel requested an oral hearing by a representative of the Branch of Hearings and Review. A telephonic hearing 

was held on April 9, 2015. By decision dated June 25, 2015, an OWCP hearing representative affirmed the prior 

decision, in part, finding that appellant was disabled for four hours on March 3, 2014 due to a doctor’s appointment.

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

that he rated appellant’s impairment using the preferred diagnosis-based impairment (DBI) 

method, whereas Dr. Macht used the ROM method. He rated appellant based on right shoulder 

tendinitis with residual dysfunction, which was a Class of Diagnosis 1 (CDX 1) with a net 

adjustment of 1, equaling a rating (grade D) of four percent under Table 15-5, Shoulder Regional 

Grid, A.M.A., Guides 402 (6th ed. 2009). Dr. Slutsky assigned a grade modifier of 2 for Functional 

History (GMFH) based on appellant’s QuickDASH score of 52. He assigned a grade modifier of 

1 for Physical Examination (GMPE) based on appellant’s tenderness to palpation and ROM 

limitations. Dr. Slutsky calculated a net adjustment of +1, and found four percent (grade D) right 

upper extremity permanent impairment under Table 15-5, A.M.A., Guides 402 (6th ed. 2009).5 He

rated appellant based on right elbow sprain, which was a CDX 1 with a net adjustment of zero, 

equaling a default rating (grade C) of one percent under Table 15-4, Elbow Regional Grid, A.M.A., 

Guides 398-400 (6th ed. 2009). Dr. Slutsky assigned a grade modifier of 1 for physical examination 

based on appellant’s tenderness with resisted motion. He calculated a net adjustment of +0, and 

found one percent (grade C) right upper extremity permanent impairment under Table 15-4, 

A.M.A., Guides 398-400 (6th ed. 2009).6 Dr. Slutsky rated appellant based on right wrist sprain, 

which was a CDX 1 with a net adjustment of zero, equaling a default rating (grade C) of one

percent under Table 15-3, Wrist Regional Grid, A.M.A., Guides 395-97 (6th ed. 2009). He

assigned a grade modifier of 1 for physical examination based on appellant’s tenderness with 

resisted motion. Dr. Slutsky calculated a net adjustment of +0, and found 1 percent (grade C) right 

upper extremity permanent impairment under Table 15-3, A.M.A., Guides 395-97 (6th ed. 2009).7 

He combined appellant’s impairments using the values chart on page 604 and concluded that she 

had six percent permanent impairment of the right upper extremity. Dr. Slutsky indicated that 

appellant reached MMI as of November 18, 2015, the date of “Dr. Macht’s rating examinations.”

In a January 5, 2016 report, Dr. Macht noted that he reviewed the DMA’s December 19, 

2015 report. He explained that the primary point of discrepancy between their evaluations was the 

use of DBI and ROM methods. Dr. Macht asserted that he properly performed three ROM 

measurements per joint motion and recorded the highest active motion in his impairment 

evaluation. He explained that there was “no class of impairment for the diagnosis of shoulder 

tendinitis that include[d] abnormal motion” and, for that reason, ROM was the preferred 

methodology in appellant’s case.

On January 23, 2016 Dr. Slutsky reviewed Dr. Macht’s January 5, 2016 report and 

explained that he failed to first average the three ROM measurements for each joint motion before 

determining whether each of the three measurements were within 10 degrees of the average, which 

was a key part of the criteria validating the use of the ROM method. He further opined that the 

ROM method was only to be used as a last resort when other impairment methods were unavailable 

and in appellant’s case the DBI method was available. 

 

5 Net Adjustment ꞊ (GMFH 2 – CDX 1) + (GMPE 2 – CDX 1) + (GMCS 1 – CDX 1). See Section 15.3d, A.M.A, 

Guides 411 (6th ed. 2009).

6

Id.

7

Id.
4

By decision dated March 10, 2016, OWCP granted appellant a schedule award for six 

percent permanent impairment of the right upper extremity. The award covered an 18.72-week 

period, November 18, 2015 to March 28, 2016. 

Counsel timely requested a hearing before a representative of OWCP’s Branch of Hearings 

and Review, which was held on November 8, 2016. He challenged OWCP’s reliance on

Dr. Slutsky’s report(s), and specifically his opinion regarding usage of the ROM-based impairment 

methodology. OWCP did not receive any additional medical evidence regarding the extent of 

appellant’s right upper extremity permanent impairment.

In a decision dated January 6, 2017, the hearing representative accepted the DMA’s 

opinion and found that appellant had not established greater than the six percent permanent 

impairment of the right upper extremity previously awarded. Consequently, the hearing 

representative affirmed OWCP’s March 10, 2016 schedule award decision.

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.8 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.9 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.10

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).11 The Board has approved OWCP’s use of the A.M.A., Guides for 

 

8 See 20 C.F.R. §§ 1.1-1.4.

9 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

10 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

11 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).
5

the purpose of determining the percentage loss of use of a member of the body for schedule award 

purposes.12

ANALYSIS

The issue is whether appellant has met her burden of proof to establish greater than six 

percent permanent impairment of her right upper extremity, for which she 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 had been followed regarding the proper use of the DBI or the ROM methodology 

when assessing the extent of permanent impairment for schedule award purposes.13 The purpose 

of the use of uniform standards is to ensure consistent results and to ensure equal justice under the 

law to all claimants.14 In T.H., the Board concluded that OWCP physicians were 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.15 Furthermore, the Board has observed that physicians interchangeably cited to language in 

the first printing or the second printing when justifying use of either ROM or DBI methodology. 

Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the 

Board found that OWCP could no longer ensure consistent results and equal justice under the law 

for all claimants.16

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the January 6, 2017 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities to be applied 

uniformly,17 and following 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 that this case is not in posture for decision.

 

12 Isidoro Rivera, 12 ECAB 348 (1961).

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

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

15 Supra note 13.

16 Id.

17 See FECA Bulletin No. 17-06 (issued May 8, 2017).
6

ORDER

IT IS HEREBY ORDERED THAT the January 6, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.

Issued: July 6, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board