United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.Y., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pasadena, CA, Employer 

__________________________________________ 

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Docket No. 16-1708 

Issued: April 6, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 24, 2016 appellant filed a timely appeal from an April 18, 2016 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.2

ISSUE 

The issue is whether appellant established more than 28 percent permanent impairment of 

the right upper extremity, for which he previously received a schedule award. 

On appeal appellant asserts that OWCP used a March 18, 2008 medical report for 

establishing permanent impairment when his treating physician submitted reports dated 

 1

 5 U.S.C. § 8101 et seq. 

2

 The Board notes that appellant submitted evidence with his appeal to the Board. The Board’s jurisdiction is 

limited to the review of evidence which was before OWCP at the time it issued its final decision. Thus, the Board 

cannot consider this evidence. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012). 
2

October 26 and December 8, 2015 and April 8, 2016 which should have been considered. He 

further asserts that he was not examined by Dr. Mesfin Seyoum, a family practitioner, who 

provided an impairment evaluation. 

FACTUAL HISTORY 

On January 3, 2000 appellant, then a 39-year-old letter carrier, filed an occupational 

disease claim (Form CA-2), alleging that employment duties as a letter carrier caused left 

shoulder pain. OWCP adjudicated this claim under File No. xxxxxx117, and on July 14, 2000 

accepted aggravation of left shoulder impingement syndrome. Appellant had left shoulder 

surgery on September 5, 2000. On August 22, 2002 he was granted a schedule award for 11 

percent permanent impairment of the left upper extremity. 

On December 5, 2006 appellant filed a second occupational disease claim alleging that 

job duties caused right elbow lateral epicondylitis. He had stopped work on October 26, 2006. 

OWCP adjudicated the claim under File No. xxxxxx965, and on January 25, 2007 accepted the 

condition of right lateral epicondylitis. Under this claim appellant received intermittent wageloss compensation from October 17, 2006 to August 2, 2008 and was placed on the periodic 

compensation rolls for total disability effective August 3, 2008. He continued to receive total 

disability compensation on the periodic rolls until he elected Office of Personnel Management 

retirement benefits effective January 10, 2016. 

On January 3, 2008 appellant filed a third occupational disease claim alleging that 

bilateral carpal tunnel syndrome and a cervical disc protrusion were caused by work duties. 

OWCP adjudicated the claim under File No. xxxxxx005, and on April 7, 2008 accepted bilateral 

carpal tunnel syndrome, displacement of cervical intervertebral disc without myelopathy, and 

spinal stenosis in the cervical region. 

By report dated March 18, 2008, Dr. Gil Tepper, an attending Board-certified orthopedic 

surgeon, advised that, under the fifth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3

 appellant had 24 percent 

permanent right upper extremity impairment due to loss of elbow range of motion (ROM) and 

decreased strength, with an additional two percent whole person permanent impairment due to 

pain. 

Following an inquiry by appellant, on May 5, 2008 OWCP informed him that a schedule 

award on File No. xxxxxx965 could not be paid until such time as he was no longer receiving 

wage-loss compensation under that claim. 

On May 7, 2008 Dr. Ellen Pichey, an OWCP medical adviser who is Board-certified in 

family and occupational medicine, reviewed the record, including Dr. Tepper’s March 18, 2008 

report. She advised that Dr. Tepper had not properly utilized the fifth edition of the A.M.A., 

Guides. Dr. Pichey concluded that appellant had 12 percent right upper extremity permanent 

impairment due to loss of elbow motion and 18 percent permanent impairment due to loss of 

strength and sensory deficit. She combined these, finding that he had a total 28 percent 

 3

 A.M.A., Guides (5th ed. 2001). 
3

permanent right upper extremity impairment with March 18, 2008 as the date of maximum 

medical improvement.4 On December 27, 2009 Dr. Pichey noted that schedule awards were now 

evaluated under the sixth edition of the A.M.A., Guides.

5

 She reiterated that appellant had 28 

percent permanent right arm impairment. 

By decision dated March 5, 2010, OWCP denied appellant’s claim for a right upper 

extremity schedule award. It noted that he had previously received an award for 28 percent 

permanent right upper extremity impairment. 

On May 2, 2010 Dr. Pichey utilized the sixth edition of the A.M.A., Guides and 

determined that appellant had 28 percent right arm permanent impairment due to loss of right 

elbow motion. 

In correspondence and telephone calls dated May 5 to September 20, 2015, appellant 

informed OWCP that he had not received a schedule award for 28 percent permanent impairment 

of the right upper extremity. 

The record includes an August 19, 2015 impairment evaluation for File No. xxxxxx965, 

from Dr. Seyoum. Dr. Seyoum noted appellant’s workers’ compensation claims, his review of 

records including Dr. Tepper’s March 18, 2008 report, and appellant’s complaint of severe right 

elbow pain and difficulty with activities of daily living. After examination, he diagnosed right 

elbow lateral epicondylitis, right elbow enthesopathy, and right ulnar neuropathy across the 

elbow, per electrodiagnostic testing and nerve conduction study. Dr. Seyoum advised that, under 

the sixth edition of the A.M.A., Guides, appellant had 8 percent right arm impairment for loss of 

elbow motion and 5 percent impairment for ulnar neuropathy, for a total 13 percent right arm 

permanent impairment. 

On January 9, 2016 appellant filed three schedule award claims, (Form CA-7) under File 

Nos. xxxxxx965, xxxxxx117, and xxxxxx005. The claims under File Nos. xxxxxx117 and 

xxxxxx005 remain under development and are not before the Board in this appeal, which solely 

addresses the schedule award claim for File No. xxxxxx965.6

 4

 OWCP continued to develop the claim regarding appellant’s work capability. In May 2007, it referred him to 

Dr. Bunsri T. Sophon, a Board-certified orthopedic surgeon. In a June 11, 2007 report, Dr. Sophon advised that 

appellant could work modified duty. OWCP then found a conflict in medical evidence between Dr. Sophon and 

Dr. Tepper. In May 2008, it referred appellant to Dr. Steven A. Mora, also Board-certified in orthopedic surgery, 

for an impartial evaluation. In a June 3, 2008 report, Dr. Mora diagnosed right elbow lateral epicondylitis, right 

elbow C5-6 radiculopathy, and chronic pain. He advised that appellant could return to restricted duty and agreed 

with Dr. Tepper’s impairment evaluation. 

5 Supra note 3 at (6th ed. 2009). 

6

 The record includes an August 12, 2015 report in which Dr. Seyoum evaluated appellant’s left shoulder and 

advised that, with regard to File No. xxxxxx117, appellant had 25 percent left upper extremity impairment. In an 

August 26, 2015 report, he advised that, with regard to File No. xxxxxx005, appellant had bilateral 6 percent 

impairments due to carpal tunnel syndrome, and 25 percent cervical impairment. The Board notes that OWCP has 

administratively combined all three claims, with File No. xxxxxx965 serving as the Master File. 
4

In support of his schedule award claims, appellant submitted an October 26, 2015 report 

in which Dr. Tepper described appellant’s treatment and current complaints involving the 

cervical spine, both shoulders, both elbows, and both hands and wrists. These symptoms led to 

difficulties in activities of daily living. Dr. Tepper provided physical and neurological 

examination findings including cervical spine, shoulder, elbow, and wrist ROM. He diagnosed 

status post September 2000 left shoulder arthroscopy with residuals; cervical spine disc 

protrusions, severe central canal stenosis, and bilateral neural foraminal narrowing at C3-4, C4-5, 

C5-6 and C6-7; right-sided C5-6 radiculopathy; left upper extremity radicular pain; bilateral 

carpal tunnel syndrome; bilateral arm weakness; bilateral lateral epicondylitis; right ulnar 

neuropathy at the elbow; and bilateral shoulder impingement. Dr. Tepper advised that, in 

accordance with the fifth edition of the A.M.A., Guides, appellant had 10 percent bilateral upper 

extremity permanent impairment due to peripheral sensory deficit, 4 percent left upper extremity 

and 6 percent right upper extremity permanent impairment due to loss of elbow ROM, 22 percent 

left upper extremity and 21 percent right upper extremity permanent impairment due to loss of 

shoulder ROM, and bilateral 20 percent upper extremity permanent impairment due to brachial 

plexus motor deficits, for a total 48 percent whole person permanent impairment. He opined that 

all conditions were caused wholly or in part to appellant’s federal employment. 

OWCP asked its medical adviser to review all records for evaluation of a right upper 

extremity schedule award. In a January 31, 2016 report, Dr. Morley Slutsky, Board-certified in 

occupational medicine, advised that he would only address the accepted spine conditions. He 

reviewed Dr. Seyoum’s August 19, 2015 report and advised that it did not demonstrate a basis 

for granting a schedule award pursuant to the use of the July and August 2009, The Guides 

Newsletter, to be used for evaluating extremity impairments that originate in the spine.7

By decision dated March 24, 2016, OWCP denied appellant’s claim for a schedule award 

under File No. xxxxxx965. It noted that he had previously received schedule awards for 28 

percent of the right arm and 11 percent of the left arm. 

In an April 18, 2016 decision, appellant was granted a schedule award for 28 percent 

permanent impairment of the right arm, to run for 87.36 weeks, from January 10, 2016 to 

September 12, 2017. 

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 

 7

 The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries 

as extremity impairment. The A.M.A., Guides for decades has offered an alternative approach to rating spinal nerve 

impairments. OWCP has adopted this approach for rating impairment of the upper or lower extremities caused by a 

spinal injury, as provided in section 3.700 of its procedures, which memorializes proposed tables outlined in the 

July and August 2009, The Guides Newsletter. FECA Transmittal No. 10-0004 (issued January 9, 2010); Federal 

(FECA) Procedure Manual, Part 3 -- Medical, Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides 

Newsletter is included as Exhibit 4. Specifically, OWCP will address lower extremity impairments originating in 

the spine through Table 16-11 and upper extremity impairment originating in the spine through Table 15-14. 

8 See 20 C.F.R. §§ 1.1-1.4. 
5

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 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.12

ANALYSIS 

The issue on appeal is whether appellant has established that he has more than 28 percent 

permanent impairment of the right upper extremity, for which he previously received a schedule 

award on April 18, 2016. The accepted right upper extremity conditions are right lateral 

epicondylitis and enthesopathy of the right elbow under File No. xxxxxx965, and carpal tunnel 

syndrome under File No. xxxxxx005. The accepted conditions under File No. xxxxxx005 also 

include displacement of cervical intervertebral disc without myelopathy and spinal stenosis in the 

cervical region. 

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 ROM methodologies when assessing the extent of permanent 

impairment for schedule award purposes.13 The purpose of the use of uniform standards is to 

 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). 

12 Isidoro Rivera, 12 ECAB 348 (1961). 

13 T.H., Docket No. 14-0943 (issued November 25, 2016). 
6

ensure consistent results and to ensure equal justice under the law to all claimants.14 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 of 

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.15 

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 18, 2016 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 additional right upper extremity 

schedule award.16

CONCLUSION 

The Board finds this case not in posture for decision. 

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

15 Supra note 13. 

16 Regarding appellant’s assertion that his impairment should be based on reports by Dr. Tepper dated 

October 26, 2015, December 8, 2015, and April 8, 2016, the Board finds that, the latter two impairment ratings in 

which Dr. Tepper utilized the sixth edition of the A.M.A., Guides, were not submitted to OWCP until after the 

issuance of the schedule award decision on April 18, 2016. Therefore, they were not before OWCP when it 

rendered that decision and cannot be considered by the Board on this appeal. Supra note 2. 
7

ORDER 

IT IS HEREBY ORDERED THAT the April 18, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: April 6, 2017 

Washington, DC 

 

 Christopher J. Godfrey, 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