United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 14-1113 

Issued: October 2, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On April 14, 2014 appellant, through his attorney, filed a timely appeal from the 

October 18, 2013 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 met his burden of proof to establish that he has more than 

three percent permanent impairment of his left arm, for which he received a schedule award. 

FACTUAL HISTORY 

OWCP initially accepted that on August 7, 2007 appellant, then a 47-year-old clerk, 

sustained a right shoulder sprain and a right rotator cuff tear due to moving a heavy mail 

container. He received compensation on the daily rolls. On March 17, 2008 appellant 

 1

 5 U.S.C. §§ 8101-8193. 
2

underwent OWCP-authorized arthroscopic repair surgery of his right shoulder condition.2

 

OWCP later expanded his claim to accept a temporary aggravation of left shoulder tendinitis, 

resolved. 

In an October 27, 2009 report, Dr. David Weiss, an attending osteopath, provided a 

description of appellant’s medical history and detailed the results of his examination of appellant. 

On examination, the right shoulder revealed well-healed portal arthroscopy scars. There was 

anterior cuff tenderness and range of motion revealed restriction involving crossover adduction 

and external rotation. Examination of the left shoulder revealed a well-healed anterior surgical 

scar and there was anterior cuff tenderness. Dr. Weiss indicated that range of motion testing 

revealed restriction involving forward elevation, abduction, crossover adduction and internal 

rotation. Circumduction produced crepitus within the acromioclavicular joint and the Hawkins 

impingement sign and O’Brien test were positive. Dr. Weiss concluded that appellant had five 

percent permanent impairment of his right arm and five percent permanent impairment of his left 

arm under the standards of the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). For the left arm, 

appellant fell under a three percent default value for his grade 1 left shoulder impingement 

syndrome. He had a grade modifier 2 for functional history, grade modifier 2 for physical 

examination and grade modifier 2 for clinical studies and application of the Net Adjustment 

Formula meant that appellant moved from the three percent default value to the five percent 

rating on Table 15-5. 

On September 9, 2010 appellant was examined by Dr. Stuart L. Gordon, a Boardcertified orthopedic surgeon.3

 In a September 9, 2010 report, Dr. Gordon stated that appellant’s 

shoulders had full range of motion overhead and that there was good rotator cuff strength. He 

noted that there was mild trapezius soreness, more on the right than on the left and that the 

Spurling’s test was negative. Labral testing, O’Brien testing and apprehension testing were all 

noted to be negative. In an addendum report dated December 10, 2010, Dr. Gordon discussed 

why he felt that appellant’s left shoulder condition was consequential to his August 7, 2007 right 

shoulder injury. His opinion formed the basis for OWCP’s acceptance on January 4, 2011 of 

appellant’s claim for temporary aggravation of left shoulder tendinitis, resolved. 

On July 2, 2012 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an 

OWCP medical adviser, provided an opinion on the permanent impairment of appellant’s arms. 

He reviewed the medical evidence of record, including the examinations of Dr. Weiss and 

Dr. Gordon and concluded that appellant had five percent permanent impairment of his right arm 

and three percent permanent impairment of his left arm under the sixth edition of the A.M.A., 

Guides. Dr. Berman indicated that he derived grade modifiers from Dr. Gordon’s examination 

rather than from Dr. Weiss’ examination because Dr. Gordon was a Board-certified orthopedic 

surgeon and Dr. Weiss was not. For the left arm, appellant fell under a three percent default 

value for his grade 1 left shoulder impingement syndrome. He had a grade modifier 1 for 

functional history, grade modifier 1 for physical examination and grade modifier 1 for clinical 

 2

 Appellant previously underwent left shoulder surgery in 1995. 

3

 Dr. Gordon performed the examination as an impartial medical specialist who was asked to resolve a conflict in 

the medical opinion evidence regarding whether appellant had developed a left shoulder condition consequential to 

his August 7, 2007 right shoulder injury. 
3

studies and application of the Net Adjustment Formula meant that he did not move from the 

three percent default value on Table 15-5 on page 402. Dr. Berman indicated that the date of 

maximum medical improvement was October 27, 2009, the date of Dr. Weiss’ examination. 

In a January 4, 2013 decision, OWCP granted appellant schedule awards for five percent 

permanent impairment of his right arm and three percent permanent impairment of his left arm. 

The awards ran for 24.96 weeks based on the impairment rating of Dr. Berman.4

 

Appellant requested a hearing with an OWCP hearing representative. During the 

April 11, 2013 hearing, counsel argued that OWCP should have accepted Dr. Weiss’ assessment 

that appellant has five percent impairment of his left arm or at least found that there was a 

conflict in the medical evidence regarding his left arm impairment. 

In a June 20, 2013 decision, the hearing representative set aside OWCP’s January 4, 2013 

schedule award decision and remanded the case for further development. He indicated that 

additional explanation was required regarding Dr. Berman’s choice of October 27, 2009, the date 

of Dr. Weiss’ examination, as the date of maximum medical improvement for appellant’s left 

arm. 

In an October 16, 2013 report, Dr. Morley Slutsky, a Board-certified occupational 

medicine physician serving as an OWCP medical adviser, determined that it was appropriate to 

use October 27, 2009 as the date of maximum medical improvement for appellant’s left arm. 

Dr. Slutsky stated: 

“The date of [maximum medical improvement] is October 27, 2009 (date of 

examination by Dr. Weiss). The shoulder conditions had stabilized on this date, 

there was no further treatment planned and the shoulder conditions did not change 

significantly (clinically) between the period of time between Dr. Weiss’ 

exam[ination] on October 27, 2009 and the exam[ination] performed by 

Dr. Gordon (September 9, 2010).” 

In an October 18, 2013 decision, OWCP found that appellant did not meet his burden of 

proof to establish that he has more than three percent permanent impairment of his left arm. It 

found that Dr. Berman’s impairment rating together with the report of Dr. Slutsky regarding the 

date of maximum medical improvement, established that appellant had three percent permanent 

impairment of his left arm. 

LEGAL PRECEDENT 

The schedule award provision of FECA5

 and its implementing regulations6 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

 4

 The award indicated that appellant had a total arm impairment of eight percent, but the basis of the award makes 

it clear that the award was for a five percent permanent impairment of the right arm and a three percent permanent 

impairment of the left arm. The Board notes that he is not currently contesting the amount of the schedule award 

compensation for his right arm and the matter of his right arm impairment is not presently before the Board. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404 (1999). 
4

loss or loss of use, of scheduled members or functions of the body. However, it does not specify 

the manner in which the percentage of loss shall be determined. For consistent results and to 

ensure equal justice under the law to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 

The A.M.A., Guides has been adopted by the implementing regulations as the appropriate 

standard for evaluating schedule losses.7

 For OWCP decisions issued on or after May 1, 2009, 

the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating permanent 

impairment.8

In determining impairment for the upper extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper 

extremity to be rated. With respect to the shoulder and the elbow, the relevant portions of the 

arm for the present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on 

page 401. After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid 

(including identification of a default grade value), the Net Adjustment Formula is applied using 

the grade modifier for Functional History (GMFH), grade modifier for Physical Examination 

(GMPE) and grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

the Secretary shall appoint a third physician who shall make an examination.”10 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.11

ANALYSIS 

OWCP accepted that on August 7, 2007 appellant sustained a right shoulder sprain and a 

right rotator cuff tear due to moving a heavy mail container and a temporary aggravation of left 

shoulder tendinitis, resolved, which was sustained as a consequence of his accepted right 

shoulder conditions.12 

 7 Id. 

8 See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the 

fifth edition of the A.M.A., Guides (5th ed. 2001) is used. 

9 See A.M.A., Guides (6th ed. 2009) 401-11. Table 15-5 also provides that, if motion loss is present for a claimant 

who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of 

motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis 

impairment. Id. at 405, 475-78. 

10 5 U.S.C. § 8123(a). 

11 William C. Bush, 40 ECAB 1064, 1975 (1989). 

12 Appellant previously underwent left shoulder surgery in 1995. 
5

In a January 4, 2013 decision, OWCP granted appellant schedule awards for five percent 

permanent impairment of his right arm and three percent permanent impairment of his left arm. 

Appellant did not contest the schedule award for his right arm and it is not before the Board. In 

an October 18, 2013 decision, OWCP found that he did not meet his burden of proof to establish 

that he has more than three percent permanent impairment of his left arm. It based its decision 

on a July 2, 2012 impairment rating of Dr. Berman, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, together with the October 16, 2013 report of Dr. Slutsky, a Boardcertified occupational disease physician serving as an OWCP medical adviser, who determined 

that Dr. Berman appropriately used October 27, 2009 as the date of maximum medical 

improvement. 

The Board finds that there is a conflict in the medical opinion evidence regarding 

appellant’s left arm impairment which requires that the case be further developed.13 

On July 2, 2012 Dr. Berman found that appellant had three percent permanent 

impairment of his left arm under the sixth edition of the A.M.A., Guides. He indicated that 

appellant fell under a three percent default value for his grade 1 left shoulder impingement 

syndrome. Dr. Berman had a grade modifier 1 for functional history, grade modifier 1 for 

physical examination and grade modifier 1 for clinical studies and application of the Net 

Adjustment Formula meant that appellant did not move from the three percent default value on 

Table 15-5 on page 402. He indicated that the date of maximum medical improvement was 

October 27, 2009, the date of Dr. Weiss’ examination.14 

In contrast, Dr. Weiss determined on October 27, 2009 that appellant had five percent 

permanent impairment of his left arm under the sixth edition of the A.M.A., Guides. Appellant 

fell under a three percent default value for his grade 1 left shoulder impingement syndrome. He 

had a grade modifier 2 for functional history, grade modifier 2 for physical examination and 

grade modifier 2 for clinical studies and application of the Net Adjustment Formula meant that 

he moved from the three percent default value to the five percent rating on Table 15-5.15 

In order to resolve the outstanding conflict regarding appellant’s left arm impairment, the 

case shall be remanded to OWCP for referral of him to an impartial medical specialist for an 

examination and opinion on this matter. After such further development, OWCP shall issue an 

appropriate decision regarding his left arm impairment. 

 13 See supra notes 10 and 11. 

14 The Board notes that Dr. Slutsky correctly indicated that it was appropriate for Dr. Berman to use this date of 

maximum medical improvement as appellant’s left arm condition did not change greatly thereafter. 

15 The Board notes that Dr. Berman chose to base his grade modifiers on the September 9, 2010 evaluation of 

Dr. Gordon, a Board-certified orthopedic surgeon who served as an impartial medical specialist with respect to a 

nonschedule award matter. The Board notes that the findings of Dr. Weiss could also be referenced in evaluating 

schedule award impairment. 
6

CONCLUSION 

The Board finds that, due to a conflict in the medical opinion evidence, the case is not in 

posture for decision regarding whether appellant has more than three percent permanent 

impairment of his left arm, for which he received a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the October 18, 2013 decision of the Office of 

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

proceedings consistent with this decision of the Board. 

Issued: October 2, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board