United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer

__________________________________________

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Docket No. 17-1403

Issued: April 6, 2018

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 June 12, 2017 appellant filed a timely appeal from a May 4, 2017 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 to 

consider the merits of the case.

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish more than 

31 percent permanent impairment of the left leg, for which he previously received schedule 

awards; and (2) whether appellant has met his burden of proof to establish more than eight percent 

permanent impairment of the left arm, for which he previously received a schedule award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On December 18, 1990 appellant, then a 32-year-old tool and parts clerk, injured his left 

shoulder, left hip, and lower back when he was pinned between a cabinet and a desk. OWCP 

assigned File No. xxxxxx090 and accepted his claim for lumbar strain and left shoulder contusion 

on February 7, 1991. It later expanded the acceptance of appellant’s claim to include left shoulder 

capsulitis and permanent aggravation of degenerative disc disease at L4-5. By decision dated 

May 18, 1994, OWCP granted him a schedule award for eight percent permanent impairment of 

his left upper extremity. On January 22, 1998 OWCP granted appellant a schedule award for 29 

percent permanent impairment of his left lower extremity. Appellant was released to return to 

light-duty work on May 21, 2002.

3

On February 6, 2003 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

February 4, 2003 he sustained additional injuries to his back and left shoulder when his chair broke 

while he was sitting in it in the performance of his federal job duties. OWCP assigned File No. 

xxxxxx830 and accepted this claim for left shoulder contusion and lumbar strain on March 5, 2003. 

OWCP administratively combined both claims with File No. xxxxxx830 serving as the master file.

On November 26, 2012 appellant retired from the employing establishment through a 2013 

special incentive offer. He elected to receive retirement benefits from the Office of Personnel 

Management effective June 2, 2014, rather than wage-loss compensation benefits under FECA.

Appellant filed a claim for a schedule award (Form CA-7) on June 27, 2014. In an

August 14, 2014 report, Dr. Charlotte H. Mitchell, an internist, recounted appellant’s multiple 

work injuries. She diagnosed chronic low back pain due to spinal stenosis with left-sided

radiculopathy, severe claudication of the left leg and left shoulder pain due to posterior scapula. 

Dr. Mitchell found that appellant had reached maximum medical improvement (MMI). She

provided a whole person impairment of 33 percent permanent impairment. Dr. Mitchell reported 

that appellant’s left shoulder traumatic degenerative joint disease was 9 percent permanent 

impairment and that his multidirectional left shoulder was 13 percent permanent impairment. 

OWCP’s medical adviser reviewed this report on September 22, 2014 and found that

Dr. Mitchell’s report did not establish additional permanent impairment beyond the 8 percent 

 

2 Docket No. 03-2140 (issued March 25, 2004).

3 The employing establishment offered appellant a job which OWCP found suitable on August 29, 2002. In a 

November 29, 2002 decision, OWCP terminated appellant’s wage-loss compensation and schedule award benefits 

finding he refused suitable work under 5 U.S.C. § 8106(c)(3). After a reconsideration request, OWCP denied 

modification of the November 29, 2002 decision on July 2, 2003. Appellant appealed this decision to the Board. In 

a March 25, 2004 decision, the Board found that OWCP did not meet its burden of proof to terminate appellant’s 

compensation benefits effective November 25, 2002. Docket No. 03-2140 (issued March 25, 2004). Following the 

Board’s decision, OWCP paid further wage-loss compensation benefits. 
3

permanent impairment in the left arm and 29 percent permanent impairment in the left leg for 

which he had previously received schedule awards.

By decision dated October 7, 2014, OWCP denied appellant’s claim for additional 

schedule awards. Appellant requested an oral hearing before an OWCP hearing representative on 

October 31, 2014.

On January 13, 2015 Dr. David Fardon, a Board-certified orthopedic surgeon, evaluated 

appellant for schedule award purposes. He evaluated appellant’s permanent impairment under the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment.

4

 Specifically, Dr. Fardon provided appellant’s impairment to his lumbar spine due to 

intervertebral disc herniations at multiple levels with radiculopathy. He concluded that appellant 

had 19 percent permanent impairment of the whole person as a result of his low back disorder.

In a report dated April 16, 2015, Dr. Neil Allen, a Board-certified neurologist, examined 

appellant for the purpose of a schedule award. In applying the sixth edition of the A.M.A., Guides,

he determined that appellant had 24 percent permanent impairment of the left leg. In regard to 

appellant’s left shoulder, Dr. Allen determined that appellant had five percent permanent 

impairment of his left arm.

Appellant testified at the oral hearing before an OWCP hearing representative on 

June 18, 2015. Following the oral hearing, he submitted a report from Dr. Mitchell dated 

June 26, 2015. Dr. Mitchell diagnosed chronic low back pain due to spinal stenosis with 

radiculopathy and chronic paraspinal spasm, bilateral lumbosacral facet arthropathy, left-sided 

sciatica, as well as chronic left shoulder pain due to rotator cuff tendinopathy and pericapsulitis 

with resultant muscular atrophy and post-traumatic degenerative joint disability. She evaluated 

appellant’s left shoulder condition based on range of motion (ROM)5and reported 90 degree of 

flexion which is 3 percent permanent impairment; 30 degrees of extension which she found was 2 

percent permanent impairment;6 75 degrees of abduction which is 6 percent permanent 

impairment; and 50 degrees of adduction which 10 percent permanent impairment.

7

 Dr. Mitchell 

totaled appellant’s left upper extremity loss of ROM and found 25 percent permanent impairment 

under the A.M.A., Guides. She further found that appellant had 31 percent permanent impairment 

of his lumbar spine. Dr. Mitchell opined that appellant had reached MMI in August 2014.

By decision dated August 11, 2015, OWCP’s hearing representative affirmed the

October 7, 2014 decision.

On October 19, 2015 appellant requested reconsideration of the August 11, 2015 decision. 

He submitted additional medical evidence. Dr. Joseph R. Mejia, a specialist in occupational 

medicine and ophthalmology, completed a report on October 1, 2015 and performed an evaluation 

 

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

5

Id. at 475, Table 15-34.

6 The A.M.A., Guides list this as one percent permanent impairment. Id.

7

Id.
4

for schedule award purposes. He reported decreased motor strength on the left, and constant thigh 

to knee left leg paresthesia to light touch. Dr. Mejia determined that appellant had 12 percent 

permanent impairment of his left lower extremity.

In a report dated October 27, 2015, Dr. Mejia addressed the percentage of permanent 

impairment of appellant’s left upper extremity. He determined that appellant reached MMI on 

August 14, 2014. Dr. Mejia found that appellant’s left upper extremity had pain restricted rotator 

cuff motion, with 90 degrees of flexion, 75 degrees of abduction, 90 degrees of internal rotation, 

and 45 degrees of abduction. He also reported tenderness at the acromioclavicular joint and upper 

trapezius muscle in the left shoulder. Dr. Mejia applied the diagnosis-based impairment (DBI)

methodology and determined that appellant had four percent permanent impairment of his left 

upper extremity due to acromioclavicular joint injury.8

By decision dated January 7, 2016, OWCP denied modification of the August 11, 2015 

decision. It found that appellant had not submitted medical evidence which showed more than 29 

percent permanent impairment of the left lower extremity and 8 percent permanent impairment of 

the left upper extremity for which he previously received schedule award.9

Dr. Kern Sinh, a Board-certified orthopedic surgeon, examined appellant on April 27, 2016 

for schedule award purposes. He reviewed appellant’s history of injury and diagnosed lumbar 

muscular strain and L4 through S1 degenerative disc disease.

On November 15, 2016 appellant requested reconsideration and submitted additional 

medical evidence. Dr. Thomas Pontinen, Board-certified in pain management, examined appellant 

on July 26, 2016. He described appellant’s history of injury and noted that appellant’s back pain 

radiated to his left lower extremity in the L4-S1 distribution to the foot. Dr. Pontinen also found 

that appellant’s back pain radiated in the left upper arm to the forearm and hand with no associated 

neurological deficit. He found 42 percent permanent impairment in the left lower extremity due 

to moderate motor and sensory deficits in L4, L5, and S1 with impairments of 16 percent 

permanent impairment for L4, 16 percent permanent impairment for L5, and 10 percent permanent 

impairment for L1. In regard to appellant’s left upper extremity, Dr. Pontinen attributed 

appellant’s permanent impairment to moderate deficits in the C6 and C7 dermatomes and reached 

15 percent permanent impairment.

OWCP’s medical adviser reviewed Dr. Pontinen’s July 26, 2016 report on 

December 11, 2016. He found appellant had three percent permanent impairment of the left upper 

extremity based on the DBI method in accordance with Dr. Allen’s rating. OWCP’s medical 

adviser further noted that the major finding in appellant’s left shoulder was loss of shoulder motion, 

and utilized the diagnosis of tendinitis as the most impairing condition in the left shoulder region. 

He noted that Dr. Pontinen’s impairment rating of the left upper extremity was based on cervical 

 

8 A.M.A., Guides 403, Table 15-5.

9 On May 9, 2016 appellant appealed a January 7, 2016 OWCP decision. On September 22, 2016 he requested that 

the Board dismiss his appeal. In a December 1, 2016 Order Dismissing Appeal, the Board granted appellant’s request. 

Docket No. 16-1210 (issued December 1, 2016).
5

spine nerve conditions, which were not accepted in appellant’s claim and therefore could not be 

considered as a basis for a schedule award.

OWCP’s medical adviser applied The Guides Newsletter July/August 2009 to

Dr. Pontinen’s findings as Dr. Pontinen had failed to provide discussion of the tables, figures, and 

chapters from the A.M.A., Guides. He noted that appellant’s lower extremity impairment was 

based on combining the motor and sensory deficits in L4, L5, and S1, not merely adding these 

impairments.

10

 For sensory deficits of the left L4 nerve root, the medical adviser determined that 

appellant had decreased light touch and sharp/dull sensitivities or a moderate impairment.11 He 

applied The Guides Newsletter to this finding resulting in a class 1, grade C or three percent 

permanent impairment of the left lower extremity. The medical adviser then determined 

appellant’s motor deficit of the left L4 nerve root based on a decreased strength of grade 3/5 or 

moderate strength loss of two percent permanent impairment.12 Applying The Guides Newsletter

to this finding resulted in class 1, grade C or 13 percent permanent impairment of the left lower 

extremity. He then completed the net adjustment formula noting that appellant’s functional history 

grade modifier was 1 and that his clinical studies grade modifier was zero as there were no findings 

of left-sided L4 involvement on EMG resulting in a net adjustment of -1 or grade B, 11 percent 

permanent impairment. Appellant’s total L4 impairment based on the Combined Values Chart for 

his sensory impairment of three and his motor impairment of 11 was 14 percent permanent 

impairment.

For appellant’s L5 nerve root impairments to the left leg, OWCP’s medical adviser 

repeated a similar process and sensory impairment of three percent permanent impairment. For

L5 nerve root motor impairment, he found clinical studies supporting evidence of lumbar 

radiculopathy. The medical adviser found that the net adjustment was 0 and that appellant’s motor 

final grade was C or 13 percent impairment. He combined the motor and sensory deficits to reach 

16 percent permanent impairment due to the L5 nerve root. Regarding S1 nerve root impairment,13

the medical adviser found a moderate motor deficit with a grade C value of eight percent permanent 

impairment, and net adjustment of zero resulting in eight percent permanent impairment due to 

loss of strength. A moderate sensory deficit of the S1 nerve root was 2 percent impairment which 

he combined with appellant’s motor strength loss of 8 percent impairment to reach 16 percent 

permanent impairment.

14

 In combining appellant’s three nerve root impairments, OWCP’s 

medical adviser utilized the values of 16 percent permanent impairment for the L5 nerve root, 11 

 

10 A.M.A., Guides 604, Combined Values Chart.

11 Id. at 533, Table 16-11.

12 Id.

13 OWCP’s medical adviser’s report again mentions the left L4 nerve root, but the impairment ratings provided 

correspond to those for the S1 nerve root.

14 The medical adviser indicated that combining 8 and 2 yielded 10 percent permanent impairment.
6

percent permanent impairment for the L4 nerve root, and 8 percent permanent impairment for the 

S1 nerve root15 to reach 31 percent permanent impairment of the left lower extremity.

By decision dated January 9, 2017, OWCP modified the January 7, 2016 decision as 

appellant had established an additional two percent permanent impairment of the left lower 

extremity. However, it further found that he had not established increased impairment of his left 

upper extremity warranting an additional schedule award.

By decision dated January 19, 2017, OWCP granted appellant a schedule award for an 

additional 2 percent permanent impairment of his left lower extremity for a total permanent 

impairment rating of 31 percent.

On February 10, 2017 appellant requested reconsideration. He provided a January 24,

2017 note from Dr. Pontinen. Dr. Pontinen addressed appellant’s left arm and found mild 

subacromial crepitus, positive Neers test indicating shoulder impingement, positive Hawkins test, 

and two centimeters of atrophy in the left arm circumference relative to the right arm. He listed 

appellant’s left shoulder ROM as 80 degrees of flexion, 20 degrees of extension, 35 degrees of 

abduction, 50 degrees of adduction, 55 degrees of internal rotation, and 105 degrees of external 

rotation. Dr. Pontinen further found that appellant had moderate sensory deficits in the C6-7

dermatomes. He found that appellant’s left shoulder Disabilities of the Arm, Shoulder, and Hand 

(QuickDASH) score was 82 as he reported pain with normal activity and could perform self-care 

activities with modifications, and noted this was grade modifier 2 for functional history.16 

Dr. Pontinen noted that appellant’s DBE was tendinitis17 with a grade C impairment of one percent 

permanent impairment. He further noted that appellant’s physical examination grade modifier 

would be two considering appellant’s loss of ROM. Dr. Pontinen reported that appellant had 

moderate sensory deficits and mild motor deficits in both the C6 and C7 dermatomes. He 

concluded that appellant’s total left arm impairment was 15 percent. Dr. Pontinen opined that 

appellant’s left upper extremity motor and sensory deficits should be considered when evaluating 

his left upper extremity for schedule award purposes.

OWCP’s medical adviser resubmitted his December 11, 2016 report on April 11, 2017

without reviewing Dr. Pontinen’s January 24, 2017 report with the additional correlation of upper 

extremity findings to the A.M.A., Guides.

By decision dated May 4, 2017, OWCP denied modification of its prior decisions finding 

that the medical evidence of record did not establish more than 31 percent permanent impairment 

of the left lower extremity and 8 percent permanent impairment of the left upper extremity for 

which he received schedule awards.

 

15 The Board notes that these percentages do not correlate with the impairment ratings he reached of 16 percent 

permanent impairment of the L5 nerve root, 14 percent permanent impairment of the L4 nerve root, and 10 percent 

permanent impairment of the S1 nerve root.

16 A.M.A., Guides 406, Table 15-7.

17 Id. at 402, Table 15-5.
7

LEGAL PRECEDENT -- ISSUE 1

The schedule award provision of FECA18 and its implementing regulations19 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for loss 

of use of scheduled members or functions of the body. FECA, however, does not specify the 

manner in which the percentage loss of a member shall be determined. The method used in making 

such determination is a matter which rests in the discretion of OWCP. For consistent results and 

to ensure equal justice, the Board has authorized the use of a single set of tables so that there may 

be uniform standards applicable to all claimants. OWCP evaluates the degree of permanent 

impairment according to the standards set forth in the specified edition of the A.M.A., Guides.

20

No schedule award is payable for a member, function or organ of the body not specified in 

FECA or in the regulations.21 Because neither FECA nor the regulations provide for the payment 

of a schedule award for impairment of the whole person22 or the permanent loss of use of the back 

or spine,23 no claimant is entitled to such an award.24

Amendments to FECA, however, modified the schedule award provisions to provide for 

an award for permanent impairment to a member of the body covered by the schedule regardless 

of whether the cause of the impairment originated in a scheduled or nonscheduled member. As 

the schedule award provisions of FECA include the extremities, a claimant may be entitled to a 

schedule award for permanent impairment to a limb even though the cause of the impairment 

originated in the spine.25

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

spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as 

federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine, the 

A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with sixth 

edition methodology.26 OWCP has adopted this approach for rating impairment of the upper or 

 

18 5 U.S.C. §§ 8101-8193, 8107.

19 20 C.F.R. § 10.404.

20 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A., 

Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010).

21 W.D., Docket No. 10-0274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

22 Tania R. Keka, 55 ECAB 354 (2004); G.S., Docket No. 17-1318 (issued October 11, 2017).

23 FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

24 W.D., supra note 21. Timothy J. McGuire, 34 ECAB 189 (1982).

25 W.D., supra note 21. Rozella L. Skinner, 37 ECAB 398 (1986).

26 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 

2.808.5c(3) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 

Exhibit 4 (January 2010).
8

lower extremities caused by a spinal injury, as provided in section 3.700 of its procedures which 

memorializes proposed tables outlined in a July/August 2009, The Guides Newsletter.

27

A schedule award can be paid only for a condition related to an employment injury. The 

claimant has the burden of proving that the condition for which a schedule award is sought is 

causally related to his or her employment.28 However, the Board has long held that preexisting 

impairments to the scheduled member are to be included when determining entitlement to a 

schedule award.29 

ANALYSIS -- ISSUE 1

The issue is whether appellant has met his burden of proof to establish more than 31 percent 

permanent impairment of the left lower extremity for which he has previously received schedule 

awards.

The Board finds this case not in posture for a decision.

Appellant has submitted several reports from his physicians addressing his impairment for 

schedule award purposes. In her August 14, 2014 report, Dr. Mitchell did not find that appellant’s 

current lower extremity impairment exceeded his previous schedule award for 29 percent 

permanent impairment of the left lower extremity. She also expressed his impairment in terms of 

whole person impairment which is not allowed under FECA as noted above.30 On January 13, 

2015 Dr. Fardon also expressed his impairment rating in terms of the whole person, which again 

is not valid for schedule award purposes under FECA.31 On April 16, 2015 Dr. Allen determined 

that appellant had 24 percent permanent impairment of the left lower extremity, less than the 29 

percent permanent impairment for which he had previously received a schedule award, such that 

appellant was not entitled to an additional schedule award based on this report. In her June 26, 

2016 report, Dr. Mitchell provided a permanent impairment rating of appellant’s spine. As noted 

above, FECA does not provide schedule awards for permanent impairment of the spine, and this 

report cannot, therefore, establish a schedule award in this regard.32 In his October 1, 2015 report,

Dr. Mejia found 12 percent permanent impairment of the left lower extremity, less than the 29 

percent permanent impairment for which appellant had previously received a schedule award, such 

that this impairment did not warrant an additional schedule award. The Board finds that these 

reports lack probative value and as such were insufficient to establish appellant’s claim for an 

additional left lower extremity permanent impairment.

 

27 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) 

(Exhibits 1, 4).

28 Veronica Williams, 56 ECAB 367 (2005).

29 Carol A Smart, 57 ECAB 340 (2006).

30 G.S. supra note 22.

31 Id.

32 F.S., Docket No. 16-0783 (issued September 26, 2017).
9

In his July 26, 2016 report, Dr. Pontinen examined appellant for schedule award purposes 

and provided findings addressing impairments from his lower back at the L4-S1 nerve roots which 

impacted appellant’s left lower extremity. He reported moderate motor and sensory deficits in L4, 

L5, and S1 with impairments of 16 percent permanent impairment for L4, 16 percent permanent 

impairment for L5, and 10 percent permanent impairment for S1 totaling 42 percent permanent 

impairment in the left lower extremity. However, Dr. Pontinen did not provide citations to the 

A.M.A., Guides or fully explain how he reached his impairment ratings.

It is well established that, when the attending physician fails to provide an estimate of 

impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative value 

in establishing the degree of permanent impairment and OWCP may rely on the opinion of its 

medical adviser to apply the A.M.A., Guides to the findings of the attending physician.33

OWCP’s medical adviser reviewed Dr. Pontinen’s July 26, 2016 report and addressed 

impairments of the L4, L5, and S1 nerve roots under the A.M.A., Guides. He properly applied the 

A.M.A., Guides and The Guides Newsletter and properly calculated appellant’s impairment of the 

L4 nerve root due to sensory and motor impairments as 14 percent permanent impairment. 

OWCP’s medical adviser then found that appellant had 16 percent permanent impairment of the 

L5 nerve root due to sensory and motor impairments. However, with regard to appellant’s S1 

nerve root impairment, the report submitted by OWCP’s medical adviser contains what appears to 

be typographical errors attributing relisting the left L4 nerve root and reaching an impairment 

rating of 10. The Board further notes that OWCP’s medical adviser did not properly combine his 

findings of impairment of 16, 14, and 10 percent permanent impairment. OWCP’s medical adviser 

found a total impairment rating of 31 percent permanent impairment by substituting 8 rather than 

10 percent permanent impairment for a nerve root without explanation.34

Due to these errors in OWCP’s medical adviser’s report and calculations, the Board finds 

that the case is not in posture for decision regarding the extent of appellant’s left lower extremity 

permanent impairment for schedule award purposes. On remand OWCP should request a 

supplemental report correctly detailing the impairments reached and the combined values 

calculations in accordance with the Combined Values Chart of the A.M.A., Guides.

LEGAL PRECEDENT -- ISSUE 2

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.35 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use 

 

33 Linda Beale, 57 ECAB 429 (2006); L.T., Docket No. 13-1290 (issued December 18, 2013).

34 The Board notes that the combination of 16, 14, and 10 results in 35 percent permanent impairment of the left 

lower extremity rather than 31 percent permanent impairment found by the medical adviser. A.M.A., Guides 604, 

Combined Values Chart.

35 See 20 C.F.R. §§ 1.1-1.4.
10

of specified members, functions, and organs of the body.36 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.37 

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).38 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.39

ANALYSIS -- ISSUE 2

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

impairment of his left upper extremity for which he received a schedule award.

The Board finds that this case is not in posture for decision. 

Appellant’s physician, Dr. Mitchell provided an impairment rating of 25 percent of the left 

upper extremity based on appellant’s loss of ROM in his left shoulder. OWCP’s medical adviser 

did not review this impairment rating or otherwise address these findings. In his December 11, 

2016 report, he found that appellant had three percent impairment of his left upper extremity using

the DBI methodology and confirmed that this was the appropriate method of evaluation under the 

A.M.A., Guides. 

The Board has found that OWCP had 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.40 The purpose 

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

 

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

37 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

38 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). 

39 Isidoro Rivera, 12 ECAB 348 (1961).

40 T.H., Docket No. 14-0943 (issued November 25, 2016).
11

law to all claimants.41 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 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.42 

The Board further notes that Dr. Pontinen attributed a portion of appellant’s left upper 

extremity impairment to cervical radiculopathy. OWCP’s medical adviser discounted this 

diagnosis and resulting impairment without discussion or investigation of whether cervical 

radiculopathy was a preexisting condition predating appellant’s accepted employment injuries. 

OWCP’s procedures provide that the impairment rating of a given scheduled member should 

include any preexisting permanent impairment of the same member or function.43

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 May 4, 2017 decision as it relates to 

appellant’s left upper extremity impairment rating. 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.44

CONCLUSION

The Board finds that the case is not in posture for decision on the issues of the extent of 

appellant’s left upper and left lower extremity impairments for schedule award purposes and 

remands the case for further development consistent with this decision of the Board.

 

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

42 Supra note 40.

43 See Dale B. Larson, 41 ECAB 481, 490 (1990); J.S., Docket No. 17-0541 (issued October 17, 2017); Federal 

(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.a.3 (January 2010).

44 FECA Bulletin No. 17-06 (issued May 8, 2017).
12

ORDER

IT IS HEREBY ORDERED THAT the May 4, 2017 decision of the Office of Workers’

Compensation Programs is set aside and remanded for further development consistent with this 

decision of the Board.

Issued: April 6, 2018

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