United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.M., Appellant 

and 

U.S. POSTAL SERVICE, AIRPORT MAIL 

FACILITY, Philadelphia, PA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0429 

Issued: August 11, 2016 

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 January 4, 2016 appellant filed a timely appeal of a November 16, 2015 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. 

ISSUE 

The issue is whether appellant has established that she is entitled to a schedule award for 

more than six percent permanent impairment of the right upper extremity impairment. 

FACTUAL HISTORY 

On October 12, 2007 appellant, then a 35-year-old laborer custodian, filed a traumatic 

injury claim (Form CA-1) alleging that on that day she injured her right arm and shoulder in the 

performance of duty. OWCP accepted the claim for a right shoulder sprain and subsequently 

accepted right mild shoulder impingement. It accepted that appellant sustained recurrences of 

 1

 5 U.S.C. § 8101 et seq. 
2

disability on May 7, 2008, August 30 and October 4, 2010, and May 9, 2011. Appellant received 

supplemental and periodic rolls payments commencing November 28, 2007. 

On February 3, 2011 OWCP received appellant’s claim for a schedule award (Form 

CA-7). In an April 20, 2011 report, Dr. Damon Cary, a treating osteopath, using the sixth edition 

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

determined that appellant had six percent permanent impairment due to cervical spine strain and 

right C5 radiculopathy using Table 17-2, page 564, and three percent right shoulder impairment 

using Table 15-5, page 401. He noted that appellant had reached maximum medical 

improvement (MMI). 

An OWCP medical adviser reviewed Dr. Cary’s impairment rating on June 20, 2011 and 

concluded that appellant had six percent right upper extremity impairment due to loss of range of 

motion using Table 15-34, page 475. He further explained that appellant had reached MMI on 

April 20, 2011, the date of Dr. Cary’s examination. 

On May 11, 2012 OWCP referred appellant for a second opinion evaluation with 

Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, to determine whether she still had 

residuals of her accepted employment injury.2

 Dr. Smith, in a May 29, 2012 report, provided a 

history of illness, noted a right shoulder sprain as the accepted condition, and that mild right 

shoulder impingement was subsequently accepted. He related that physical examination of 

appellant’s right shoulder revealed no crepitation or instability, she had normal neurologic 

examination and normal motor strength. Dr. Smith opined that there was no diagnostic or 

clinical evidence supporting an ongoing right shoulder sprain or mild impingement. He related 

that, while appellant had a lot of symptoms, they could not be verified by diagnostic testing or 

clinical examination. Dr. Smith concluded that appellant was capable of returning to her usual 

work duties as her accepted right shoulder sprain and mild impingement had resolved without 

residuals. 

By decision dated January 23, 2013, OWCP advised appellant that she was entitled to a 

schedule award for six percent right upper extremity permanent impairment. It informed her that 

benefits for her schedule award could not be paid as she was currently in receipt of benefits for 

total disability on the periodic rolls. In an attached memorandum, OWCP noted that the 

schedule award determination was based upon a June 14, 2011 impairment rating calculated by 

the OWCP medical adviser. 

On June 19, 2013 OWCP referred appellant to an impartial medical examiner physician, 

Dr. Charles D. Hummer, III, a Board-certified orthopedic surgeon, to resolve the conflict in the 

medical opinion evidence between Dr. Cary, a treating osteopath, and Dr. Smith, a second 

opinion Board-certified orthopedic surgeon, regarding whether appellant continued to have any 

disability or residuals due to her accepted October 12, 2007 employment injury. OWCP also 

requested that Dr. Hummer provide an impairment rating for appellant’s right upper extremity, if 

MMI had been reached. 

 2

 The Board notes that the statement of accepted facts (SOAF) provided to Dr. Smith noted the only accepted 

condition was a shoulder sprain. However, on March 2, 2010 OWCP expanded the acceptance of appellant’s claim 

to include mild right shoulder impingement. 
3

In a letter dated August 21, 2013, Dr. Hummer informed OWCP that appellant did not 

appear for the appointment scheduled that day. 

In a September 13, 2013 report, Dr. Andrew Berkowitz, an examining physician 

specializing in internal medicine, noted appellant’s medical and employment history. He 

diagnosed acute post-traumatic cervical radiculopathy, acute post-traumatic right shoulder 

sprain/stain, and acute post-traumatic cervical strain/sprain. Dr. Berkowitz related that 

examination of appellant’s right shoulder revealed decreased abduction of 90 degrees with palms 

facing downwards; normal acromioclavicular joint; tenderness over the supraspinatus, 

infraspinatus, and teres minor. He also reported an inability to fully externally rotate and abduct 

the right side and an inability to fully adduct and rotate her shoulders with both hands placed 

behind the small of the back. Dr. Berkowitz opined that appellant was unable to return to work 

and had lifting restrictions. 

In a May 22, 2014 report, Dr. Berkowitz indicated that appellant had reached MMI in 

November 2010. He diagnosed cervical strain, cervical strain with C5 radiculopathy and right 

shoulder sprain which he attributed to the October 12, 2007 employment injury. A physical 

examination revealed right shoulder tenderness; trapezial muscle spasms; and right upper 

extremity weakness, numbness and tingling. Using the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), 

Dr. Berkowitz calculated that appellant sustained 12 percent permanent impairment of the 

cervical spine, and 6 percent permanent impairment of the right shoulder. 

In a June 20, 2014 report, Dr. Berkowitz diagnosed acute post-traumatic cervical 

radiculopathy, acute post-traumatic right shoulder sprain/stain, and acute post-traumatic cervical 

strain/sprain. An examination of the right shoulder revealed decreased abduction of 90 degrees 

with her palms facing downwards; decreased abduction of 90 to 150 degrees with her palms 

facing upwards; normal supraspinatus, acromioclavicular joint, subscapularis, infraspinatus, 

clavicle, and teres minor; and no tenderness. Dr. Berkowitz also reported an inability to fully 

externally rotate and abduct the right side and an inability to fully adduct and rotate her shoulders 

with both hands placed behind the small of the back. 

On September 16, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On January 21, 2015 OWCP requested that an OWCP medical adviser review the case 

record regarding appellant’s schedule award claim. The accepted conditions were noted as right 

shoulder and upper arm sprain and other right shoulder region affections not elsewhere 

classified. 

In a January 22, 2015 report, an OWCP medical adviser reviewed the medical evidence 

including Dr. Berkowitz’s May 22, 2014 impairment rating and reports and Dr. Smith’s May 29, 

2012 report. Using the examination findings by Dr. Smith and Table 15-5, pages 401-05, he 

determined that appellant was a class zero for her right shoulder sprain which resulted in zero 

percent permanent impairment of her right upper extremity. The medical adviser further 

determined that the grade modifiers were not applicable as a class zero. He noted that 

Dr. Berkowitz had not performed a physical examination on May 22, 2014, and he performed a 

limited examination on September 13, 2013. 
4

By decision dated February 12, 2015, OWCP denied appellant’s claim for a schedule 

award as it found she failed to establish any permanent impairment to a scheduled member. 

On February 17, 2015 appellant requested a hearing before the Branch of Hearings and 

Review. A telephonic hearing was held on August 31, 2015. 

By decision dated November 16, 2015, an OWCP hearing representative affirmed the 

February 12, 2015 decision. She found the medical evidence was insufficient to establish that 

appellant had more than six percent permanent impairment of right upper extremity. The hearing 

representative also noted that OWCP should consider payment of the previously determined 

schedule award. 

LEGAL PRECEDENT 

Under section 8107 of FECA3 and section 10.404 of the implementing federal 

regulations,4

 schedule awards are payable for permanent impairment of specified body members, 

functions or organs. FECA, however, does not specify the manner in which the percentage of 

impairment shall be determined. For consistent results and to ensure equal justice under the law 

for 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.5

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).6

 Under the sixth edition, the evaluator identifies the impairment Class of 

Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).7

 The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical 

adviser providing rationale for the percentage of impairment specified.9

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404 

5 D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

6

 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement. 

7

 A.M.A., Guides (6th ed. 2009), pp. 383-419. 

8 Id. at 411. 

9 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 

ECAB 349 (2006).
5

ANALYSIS 

OWCP accepted appellant’s claim for a right shoulder sprain and right mild shoulder 

impingement. In a January 23, 2013 decision, it advised her that she was entitled to a schedule 

award for six percent right upper extremity permanent impairment, but that no payment could be 

issued at that time as she was in receipt of compensation for total disability. 

On September 16, 2014 appellant filed a claim for a schedule award. By decision dated 

February 12, 2015, OWCP denied appellant’s claim for an additional schedule award, which was 

affirmed by an OWCP hearing representative in a November 16, 2015 decision. The denial of 

appellant’s claim was based on the January 22, 2015 report by an OWCP medical adviser. The 

Board notes that the OWCP medical adviser based the majority of his impairment rating on the 

physical examination findings provided by Dr. Smith in as May 29, 2012 report. The OWCP 

medical adviser, relied upon Dr. Berkowtiz’s May 22 and June 20, 2014 reports, which contained 

limited examination findings. The Board finds that the OWCP medical adviser’s impairment 

rating was based on stale medical evidence and is insufficient to form an impairment rating basis 

for appellant’s schedule award claim.10

The Board has held that an impairment rating that is not based on reasonably current 

examination findings is of little probative value.11 Thus, it was inappropriate for the OWCP 

medical adviser to base his impairment rating on the May 29, 2012 examination findings of 

Dr. Smith which were almost three years old at the time of the OWCP medical adviser’s 

impairment calculation. The May 29, 2012 finding constituted stale medical evidence which 

would not be considered to be current medical evidence for use in calculating a permanent

impairment.12 As OWCP undertook development of the medical by the case to an OWCP 

medical adviser on January 21, 2015, it had a responsibility to do so in the proper manner.13

The Board also notes that in support of her September 16, 2014 claim for a schedule 

award, appellant submitted a May 22, 2014 report by Dr. Berkowitz who determined that 

appellant had 12 percent permanent impairment for the cervical strain and C5 radiculopathy. 

However, Dr. Berkowitz’s impairment rating is insufficient for purposes of determining 

appellant’s entitlement to an additional schedule award. The May 22, 2012 SOAF related that 

only a right shoulder sprain had been accepted as causally related to appellant’s employment 

injury. This SOAF also noted that appellant sustained injuries to her cervical, thoracic and 

lumbar spine, as well as headaches following an April 7, 2007 nonwork-related motor vehicle 

accident. Upon return of the case record, OWCP shall prepare a new SOAF and clarify the 

 10 J.R., Docket No. 15-1487 (issued March 4, 2016); B.N., Docket No. 12-1394 (issued August 5, 2013); see also 

Keith Hanselman, 42 ECAB 680 (1991). 

11 See W.M., Docket No. 12-773 (issued March 29, 2013) (where a physician sought in June 2011 to update a 

prior impairment rating, but the Board found that the May 2004 findings which served as the basis for the updated 

rating constituted stale medical evidence); P.S., Docket No. 12-649 (issued February 14, 2013) (the Board found that 

a physician’s January 2010 impairment rating was of reduced probative value because the physician relied on 

October 2007 findings as the basis for this updated impairment rating). 

12 See id.

13 See B.C., Docket No. 15-1853 (issued January 19, 2016); Richard F. Williams, 55 ECAB 343 (2004). 
6

conditions that have been accepted as employment related and refer appellant for a second 

opinion examination in accordance with its procedures.14 After such further development, as it 

deems necessary, it should issue an appropriate de novo decision.15

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 16, 2015 is set aside and remanded for further 

development consistent with the above opinion. 

Issued: August 11, 2016 

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 

 14 OWCP’s procedures provide that, if a medical adviser provides an opinion which is not strong enough to 

constitute a conflict with the opinion of the treating physician, but is of sufficient value to warrant additional action, 

OWCP may refer the claim for a second opinion examination. See Federal (FECA) Procedure Manual, Part 2 -- 

Claims, Developing and Evaluation Medical Evidence, Chapter 2.810.8(h) (September 2010). 

15 The Board also notes that the record indicates that appellant did not receive payment of the six percent schedule 

award for permanent impairment of the right upper extremity as she was in receipt of periodic rolls compensation 

benefits for disability wage loss until April 15, 2014.