United States Department of Labor 

Employees Compensation Appeals Board 

__________________________________________ 

T.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Trenton, NJ, Employer 

__________________________________________ 

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Docket Nos. 14-845 & 14-846 

Issued: October 8, 2014 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 5, 2014 appellant, through counsel, filed timely appeals from October 28 and 

December 18, 2013 merit decisions 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. 

ISSUES 

The issues are: (1) whether appellant has more than a 6 percent right arm and 17 percent 

left arm impairment; and (2) whether OWCP properly determined appellant’s pay rate with 

respect to the January 30, 2012 schedule award decision. 

FACTUAL HISTORY 

The case has been before the Board on prior appeals. There are two OWCP case files 

that have been administratively combined. The initial claim filed was a traumatic injury claim 

 1

 5 U.S.C. § 8101 et seq. 
2

on October 12, 1995 for a left shoulder injury while lifting a tray of mail. The second claim was 

an occupational disease claim filed on December 10, 2002 alleging that appellant’s modified 

duties aggravated her right arm and left shoulder conditions. The Board will discuss the 

traumatic injury claim first. 

OWCP, under the claim for traumatic injury on October 12, 1995 accepted a left shoulder 

sprain and aggravation of cervical degenerative disc disease (File No. xxxxxx464). In a decision 

dated December 23, 1999, OWCP issued a schedule award for a five percent left arm permanent 

impairment. The period of the award was 15.60 weeks from September 8, 1999 and the pay rate 

for compensation purposes was $654.44 per week. 

The record indicates that appellant retired from federal employment in January 2005. 

With respect to the traumatic injury file, on December 7, 2005 OWCP received a September 1, 

2005 report from Dr. David Weiss, an osteopath. The history provided by Dr. Weiss referred to 

a work-related injury on October 12, 1995. Dr. Weiss provided results on examination and an 

opinion as to the degree of permanent impairment under the fifth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment. 

In a report dated July 18, 2011, Dr. Weiss provided an “updated” opinion as to permanent 

impairment under the sixth edition of the A.M.A., Guides based on the September 1, 2005 

examination. He opined that appellant had a six percent right arm impairment for entrapment 

neuropathy of the right ulnar elbow nerve and sensory deficit of the C6 nerve root. For the left 

arm, Dr. Weiss found 18 percent impairment, based on sensory deficit of the C5 nerve root, and 

motor strength deficit of the left supraspinatus and left deltoid. 

The case was referred to an OWCP medical adviser for review. In a report dated 

January 25, 2012, the medical adviser opined that appellant had 6 percent right arm impairment, 

and a 17 percent left arm impairment. The medical adviser used the Combined Values Chart to 

combine the left arm impairments, while Dr. Weiss had added the sensory and motor deficit 

impairments. 

By decision dated January 30, 2012, OWCP issued a schedule award for a 6 percent right 

arm impairment and an additional 17 percent for the left arm. The period of the award was 71.76 

weeks from September 1, 2005, with a pay rate of $654.44 per week. 

With respect to the second claim, appellant had worked in a modified letter carrier 

position following the traumatic injury and on December 10, 2002 appellant filed an 

occupational disease claim (Form CA-2) alleging that her duties in the modified position had 

exacerbated her arm and shoulder conditions (File No. xxxxxx288). OWCP accepted this claim 

for aggravation of cervical degenerative disc disease. 

By decision dated March 10, 2004, OWCP denied any additional conditions with respect 

to the occupational claim, including progressive neuropathies in the median, ulnar and radial 

nerves, proximal brachial plexopathies or any permanent nerve damage. In an order dated 

September 25, 2005, the Board remanded the case, finding the case record transmitted to the 

Board was incomplete.2

 OWCP issued a March 17, 2006 decision again finding no additional 

 2

 Docket No. 05-898 (issued September 25, 2005). 
3

employment-related conditions. By decision dated August 2, 2006, the Board set aside the 

March 17, 2006 decision, finding the evidence was sufficient to warrant further development.3 

On April 12, 2010 OWCP accepted the claim for the additional conditions of bilateral lesion of 

the ulnar nerve, and nerve root and plexus disorder. 

Pursuant to the occupational claim, appellant resubmitted the July 18, 2011 report from 

Dr. Weiss. OWCP prepared a statement of accepted facts (SOAF) with respect to the 

occupational claim, with no mention of the October 12, 1995 injury. By report dated April 20, 

2012, the medical adviser indicated that appellant’s permanent impairment was 6 percent for the 

right arm and 17 percent for the left arm. The medical adviser noted “both case numbers have 

impairments based on the same evaluation.” 

In a letter dated March 1, 2012, appellant, through her representative, requested 

reconsideration of the January 30, 2012 schedule award. Appellant stated that she was not 

contesting the percentage of impairment awarded, but the pay rate used by OWCP. By decision 

dated April 9, 2012, OWCP denied modification of the January 30, 2012 schedule award pay rate 

issue. 

By decision dated April 25, 2012, issued pursuant to the occupational claim, OWCP 

found appellant was not entitled to an additional schedule award. 

The Board reviewed the January 30 and April 9 and 25, 2012 OWCP decisions. In a 

decision dated January 2, 2013, the Board found that OWCP had not explained how they 

determined the pay rate for the January 30, 2012 schedule award.4 It was unclear what date 

OWCP had used to determine the pay rate or any explanation as to how 5 U.S.C. § 8101(4) was 

applied. 

By decision dated April 9, 2013, issued pursuant to the occupational claim, OWCP found 

appellant was not entitled to an additional schedule award. Appellant requested a hearing before 

an OWCP hearing representative, which was held on August 22, 2013. By decision dated 

October 28, 2013, the hearing representative found appellant was not entitled to more than a 6 

percent right arm or 17 percent left arm permanent impairment. 

With respect to the April 9, 2013 decision, appellant requested a hearing before an 

OWCP hearing representative, which was held on August 29, 2013. By decision dated 

December 18, 2013, the hearing representative affirmed the April 9, 2013 decision. The hearing 

representative concluded, “The claimant did not receive compensation under the 2002 injury 

claim and there were no claims for wage loss due to related disability under the subsidiary case 

as a basis for compensation entitlement of a schedule award. I find that [OWCP] properly 

determined that the claimant was entitled to the schedule award based on the date[-]of[-]injury 

weekly pay rate under the master claim, $654.44, effective the date of injury, October 12, 1995.” 

 3

 Docket No. 06-1070 (issued August 2, 2006). 

4

 Docket No. 12-1516 (issued January 2, 2013). 
4

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

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

as the uniform standard applicable to all claimants.6

 For schedule awards after May 1, 2009, the 

impairment is evaluated under the sixth edition.7

 

ANALYSIS -- ISSUE 1 

The Board notes that, with respect to the schedule award issued January 30, 2012, 

appellant has not offered any arguments contesting the determination as to a 6 percent right arm 

and 17 percent left arm permanent impairment. She indicated in a March 1, 2012 

reconsideration request that she was not contesting the percentage of impairment determination. 

Appellant has argued the pay rate was incorrect and this issue will be discussed below. 

Since appellant did appeal the October 28, 2013 decision, the Board will note that the 

impairment determinations were based on the sixth edition of the A.M.A., Guides. While the 

attending physician, Dr. Weiss had found an 18 percent left arm impairment, OWCP’s medical 

adviser had properly combined the motor and sensory impairments,8 resulting in a 17 percent left 

arm impairment. There is also no dispute about the six percent right arm impairment. The 

Board finds no evidence of a greater impairment in this case. 

LEGAL PRECEDENT -- ISSUE 2 

Under 5 U.S.C. § 8101(4), “‘monthly pay’ means the monthly pay at the time of injury, 

or the monthly pay at the time disability begins, or the monthly pay at the time compensable 

disability recurs, if the recurrence begins more than 6 months after the injured employee resumes 

regular full-time employment with the United States, whichever is greater....” 

In applying section 8101(4), the statute requires OWCP to determine monthly pay by 

determining the date of the greater pay rate, based on the date of injury, date of disability, or the 

date of recurrent disability. The Board has held that rate of pay for schedule award purposes is 

 5

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

6 A. George Lampo, 45 ECAB 441 (1994). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 

8 See A.M.A., Guides 430. Sensory and motor impairments are combined, using the Combined Values Chart, to 

determine the upper extremity impairment. 
5

the highest rate which satisfies the terms of section 8101(4).9

 Where an injury is sustained over a 

period of time, the date of injury is the date of last exposure to the employment factors causing 

the injury.10

ANALYSIS -- ISSUE 2 

The Board previously remanded the case to OWCP to properly determine the pay rate for 

compensation purposes with respect to the January 30, 2012 schedule award. OWCP has not, 

however, properly resolved the issue. The hearing representative made a finding that the pay 

rate should be based on the pay as of October 12, 1995, the date of the original traumatic injury 

claim. A review of the evidence of record does not support such a finding. The hearing 

representative appears to base her finding on the conclusion that appellant did not receive wageloss compensation from the 2002 injury. The Board notes that the record indicates that appellant 

received wage-loss compensation for only two days: October 28, 2003 and December 15, 2004. 

Both of these dates occur after the filing of the 2002 claim, and OWCP’s administrative decision 

to associate the compensation with the 1995 injury is of little relevance to the issue. 

There are two claims for injury in this case. If the later injury contributed to the schedule 

award, then that is properly considered the date of injury.11 The question in this case is whether 

the January 30, 2012 schedule award was solely based on the traumatic injury, or whether it 

included the accepted occupational injuries. In this regard Dr. Weiss does not clarify the issue, 

as he referred in his history only to the October 12, 1995 injury. OWCP’s medical adviser, 

however, did review the occupational injuries. The April 20, 2012 report appears to consider 

both the claims in determining the degree of permanent impairment, although he was not 

specifically asked to address the issue. 

The issue is a medical issue and therefore the case will be remanded to OWCP. The 

medical adviser should be asked to address the question of whether the occupational injuries 

contributed to the determination of permanent impairment established in the January 30, 2012 

schedule award. If there was a contribution, then the date of injury becomes the date of injury 

for the occupational claim, and must be determined in accord with established principles. The 

case will be remanded for a proper determination as to the pay rate applicable for the January 30, 

2012 schedule award. After such development as is deemed necessary, OWCP should issue an 

appropriate decision. 

CONCLUSION 

The Board finds the record does not establish more than a 17 percent left arm and 6 

percent right arm permanent impairment. With respect to the pay rate, the case will be remanded 

for additional development. 

 9 Robert A. Flint, 57 ECAB 369, 374 (2006). 

10 See Barbara A. Dunnavant, 48 ECAB 517 (1997). 

11 See Garnet Kelsoe, Docket No. 99-2239 (issued September 27, 2000) (OWCP improperly used a prior right 

shoulder injury as the date of injury for a schedule award, when there was a later left shoulder injury). 
6

ORDER 

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

Compensation Programs dated October 28, 2013 is affirmed. The December 18, 2013 decision 

is set aside and the case remanded for further action consistent with this decision of the Board. 

Issued: October 8, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board