United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.B., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, OGDEN 

UTAH -- OAMA, RANDOLPH AIR FORCE 

BASE, TX, Employer 

__________________________________________ 

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Docket No. 17-0446 

Issued: June 27, 2017 

Appearances: Case Submitted on the Record

Michael Welsh, 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 December 21, 2016 appellant, through his representative, filed a timely appeal from a 

November 2, 2016 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 established more than seven percent permanent 

impairment of the right upper extremity and seven percent permanent impairment of the left 

upper extremity for which he previously received schedule awards. 

FACTUAL HISTORY 

On February 7, 2013 appellant, then a 60-year-old-old sheet metal mechanic, filed a 

traumatic injury claim (Form CA-1) alleging that on February 6, 2013 he sustained a right 

shoulder injury when moving a horizontal stabilizer, causing sharp pain in his right shoulder. 

OWCP accepted the claim for right rotator cuff tendinitis, disorder of bursae and tendons in right 

shoulder region, rotator cuff sprain of left shoulder and upper arm, and bilateral rotator cuff tear. 

Appellant stopped work intermittently and received wage-loss compensation. Following an 

accepted September 26, 2013 left shoulder surgery, he stopped work. Appellant received 

compensation benefits on the supplemental rolls through January 11, 2014. He began receiving 

social security disability benefits as of December 2013. 

On June 22, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated June 28, 2016, OWCP requested that appellant submit an impairment 

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

Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).3 It 

provided him 30 days to submit the requested impairment evaluation. 

In support of his claim, appellant submitted an April 5, 2016 report from Dr. John W. 

Ellis, Board-certified in family medicine. Dr. Ellis detailed appellant’s history of injury. He 

noted review of appellant’s medical history, discussed diagnostic testing, and provided findings 

on physical examination. Dr. Ellis provided diagnoses of right rotator cuff syndrome, left sprain 

of rotator cuff, and bilateral partial rotator cuff tear which he opined were caused by appellant’s 

employment duties. He noted that maximum medical improvement (MMI) was reached on 

April 5, 2016 and opined that appellant was temporarily totally disabled as a result of each 

shoulder surgery. Using the diagnosis-based impairment (DBI) method for the right upper 

extremity, Dr. Ellis found seven percent impairment for irreparable rotator cuff4

 and five percent 

impairment for biceps tendon tear.5 As the A.M.A., Guides provide that rotator cuff and biceps 

tendon should not be combined in the same impairment, Dr. Ellis determined that the DBI 

impairment rating was seven percent. He then utilized the range of motion (ROM) method to 

calculate impairment of the right upper extremity. Due to right shoulder decreased ROM 

Dr. Ellis opined that appellant sustained 21 percent permanent impairment of the right upper 

extremity. He noted that in accordance with the A.M.A., Guides, if more than one method to 

rate a particular impairment or condition exists, the method producing the higher rating must be 

 3

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

4 Id. at 403, Table 15-5. 

5 Id. at 404. 
3

used.6

 As such, Dr. Ellis determined that appellant sustained 21 percent permanent impairment 

of the right upper extremity based on the ROM method. Using the DBI method for the left upper 

extremity, he also found seven percent impairment for irreparable rotator cuff and five percent 

impairment for biceps tendon tear. However, when utilizing the ROM method, Dr. Ellis 

determined that appellant sustained 18 percent permanent impairment of the left upper extremity 

due to decreased ROM. As the ROM method provided the higher rating, he concluded that 

appellant sustained 18 percent permanent impairment of the left upper extremity. 

On July 5, 2016 OWCP routed Dr. Ellis’ report, a statement of accepted facts (SOAF), 

and the case file to Dr. David H. Garelick, a Board-certified orthopedic surgeon serving as an 

OWCP district medical adviser (DMA), for review and determination regarding whether 

appellant sustained a permanent impairment of the bilateral upper extremities and date of MMI. 

In a July 7, 2016 report, Dr. Garelick opined that Dr. Ellis’ recommendation for 21 

percent permanent impairment of the right upper extremity and 18 percent permanent 

impairment of the left upper extremity based on ROM loss in the shoulder should be disregarded. 

He explained that the A.M.A., Guides provide that ROM is used primarily as a physical 

examination adjustment factor and only to determine actual impairment values in the rare case 

when it is not possible to otherwise define impairment.7

 Dr. Garelick noted that both the right 

and left shoulders should be rated as five percent permanent impairment for the default value of 

full-thickness rotator cuff tear with residual findings.8 He explained that given appellant’s 

residual weakness, diminished ROM, and QuickDASH score of 70, the award should be allowed 

2 grade modifiers resulting in a final total of seven percent permanent impairment for each left 

and right upper extremity. He concluded that the date of MMI was April 5, 2016, the date of 

Dr. Ellis’ examination. 

By letter dated October 21, 2015, OWCP provided Dr. Ellis a copy of Dr. Garelick’s 

July 7, 2016 report for review and requested that he respond to the concerns presented by the 

DMA within 30 days. 

In a July 18, 2016 supplemental report, Dr. Ellis disagreed with Dr. Garelick regarding 

use of the ROM method. He argued that the DBI method for the rotator cuff tear would warrant 

Grade E seven percent permanent impairment of each left and right upper extremity. However, 

Dr. Ellis again cited to Table 2-1 of the A.M.A., Guides which provided that the method 

producing the higher rating must be used.9

 He reiterated that appellant sustained 21 percent 

permanent impairment of the right shoulder and 18 percent permanent impairment of the left 

shoulder in accordance with the ROM method as it provided the higher rating. 

On July 29, 2016 OWCP routed Dr. Ellis’ July 18, 2016 supplemental report to 

Dr. Garelick for review and comment. 

 6 Id. at 20, Table 2-1. 

7 Id. at 387. 

8 Supra note 5. 

9 Supra note 7. 
4

In an August 2, 2016 report, Dr. Garelick disagreed with Dr. Ellis’ assessment that the 

higher impairment rating should be used. He explained that while this may be true if appellant 

had two separate diagnoses, OWCP did not accept ROM and DBI as two separate methods to 

award permanent impairment. He again referenced the A.M.A., Guides which provide that ROM 

is used primarily as a physical examination adjustment factor and only to determine actual 

impairment values in the rare case when it is not possible to otherwise define impairment.10 

Dr. Garelick explained that given the existence of a DBI for full-thickness rotator cuff tear, it 

was clear that this method was the appropriate manner in which to award permanent impairment. 

He concluded that appellant was only entitled to seven percent permanent impairment of the 

right upper extremity and seven percent permanent impairment of the left upper extremity. 

By decision dated November 2, 2016, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right upper extremity and seven percent permanent 

impairment of the left upper extremity. The date of MMI was noted as April 5, 2016. The award 

covered a period of 43.68 weeks from April 5, 2016 through February 7, 2017. OWCP noted 

that the weight of the medical evidence rested with Dr. Garelick, serving as an OWCP DMA, 

who correctly applied the A.M.A., Guides to the examination findings. 

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.11 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.12 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.13 

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. 

 10 Supra note 8. 

11 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

13 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).14 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.15

ANALYSIS 

OWCP accepted appellant’s claim right rotator cuff tendinitis, disorder of bursae and 

tendons in right shoulder region, rotator cuff sprain of left shoulder and upper arm, and bilateral 

rotator cuff tear. The issue is whether appellant sustained more than seven percent permanent 

impairment of the right upper extremity and seven percent permanent impairment of the left 

upper extremity for which he received schedule awards. The Board finds this case is not in 

posture for decision. 

In support of his claim, appellant submitted an April 5 and July 18, 2016 impairment 

evaluation from Dr. Ellis who opined that he sustained 21 percent permanent impairment of the 

right upper extremity and 18 percent permanent impairment of the left upper extremity. Dr. Ellis 

argued that appellant’s impairment rating was based on the ROM method which provided the 

greater impairment. 

In medical reports dated July 11 and August 2, 2016, Dr. Garelick, serving as an OWCP 

DMA, disagreed with Dr. Ellis’ impairment rating, finding that appellant only sustained seven 

percent permanent impairment of the right upper extremity and seven percent permanent 

impairment of the left upper extremity based on the DBI for rotator cuff tear. Dr. Garelick 

argued that Dr. Ellis incorrectly used the ROM method which should primarily be used as a 

physical examination adjustment factor because an appropriate DBI method exists to define 

impairment, that of full thickness rotator cuff tear. 

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 

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. Furthermore, the Board has observed that 

 14 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (February 2013). 

15 Isidoro Rivera, 12 ECAB 348 (1961). 

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

17 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
6

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.18 

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 November 2, 2016 decision. Utilizing 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 that this case is not in posture for a decision. 

ORDER 

IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: June 27, 2017 

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 

 18 Supra note 16.