United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

U.S. POSTAL SERVICE, MAIN POST OFFICE, 

Punta Gorda, FL, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 15-1424 

Issued: February 4, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On June 17, 2015 appellant filed a timely appeal of a February 18, 2015 merit decision 

and an April 29, 2015 nonmerit 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)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.2

ISSUES 

The issues are: (1) whether OWCP’s Branch of Hearings and Review properly denied 

appellant’s request for an oral hearing as untimely filed; and (2) whether OWCP properly found 

four percent impairment of appellant’s right upper extremity for which he received a schedule 

award. 

 1

 5 U.S.C. § 8101 et seq.

2

 Following OWCP’s February 18, 2015 merit decision appellant submitted new evidence. As OWCP did not 

consider this evidence in reaching a final decision, the Board may not consider it for the first time on appeal. 20 

C.F.R. § 501.2(c)(1). 
2

FACTUAL HISTORY 

On December 11, 2013 appellant, then a 51-year-old city letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder rotator 

cuff tears due to repetitive motions in the performance of his job duties. In a narrative statement, 

he attributed his shoulder conditions to repetitive motions of reaching, grasping, separating, 

fingering, pushing, pulling, twisting, turning, and lifting tubs with mail as well as trays, bundles 

of mail, and parcels. Appellant stated that opening and closing the rear door of his truck placed 

great stress on his shoulders. He noted that the rear door required frequent lubrication and 

service requests as it had to be jerked upward to open. Appellant also noted that he delivered to 

multiple unit boxes which required him to extend his arm to place the mail. He stated that he 

was required to push hampers which put great pressure on his shoulders due to the weight of the 

double doors. 

Appellant underwent a magnetic resonance imaging (MRI) scan of his left shoulder on 

July 12, 2011 which demonstrated a diffuse near full-thickness tear, intrasubstance tearing of the 

supraspinatus tendon with a full-thickness tear anteriorly, 50 percent thickness diffuse tearing of 

the infraspinatus tendon, and superior labrum tear from anterior to posterior (SLAP lesion). A 

right shoulder MRI scan dated March 26, 2013 demonstrated a partial thickness tear of the 

supraspinatus tendon, findings associated with extrinsic impingement, and a small tear of the 

posterosuperior labrum. On September 3, 2013 appellant underwent an additional right shoulder 

MRI scan which demonstrated full-thickness tears of the supraspinatus, and anterior 

infraspinatus tendons, a partial thickness tear of the subscapularis and mild degenerative changes 

at the acromioclavicular (AC) joint. 

In a letter dated January 8, 2014, OWCP requested additional factual and medical 

evidence in support of appellant’s claim. By decision dated February 25, 2014, it accepted 

appellant’s claim for chronic bilateral rotator cuff tear. On April 21, 2014 appellant’s attending 

physician, Dr. David Kaler, a Board-certified orthopedic surgeon, performed an arthroscopic 

rotator cuff repair with opus system. 

In a note dated August 5, 2014, Dr. Kaler noted that appellant was having difficulty 

sleeping due to chronic pain in the left shoulder. He also noted trouble with internal rotation and 

adduction in the right upper extremity. Appellant returned to full duty on September 10, 2014. 

In a note dated September 9, 2014, Dr. Kaler stated that appellant was returning to full 

duty and had reached maximum medical improvement. He noted that appellant had forward 

flexion to a relatively normal position, but limited external rotation, adduction, and internal 

rotation. On October 8, 2014 Dr. Kaler noted that appellant had 90 percent range of motion of 

his shoulder and lacked a little strength. He opined that appellant’s shoulder was quite 

functional. 

Appellant requested a schedule award on December 17, 2014. In a letter dated 

December 29, 2014, OWCP requested that Dr. Kaler provide appellant’s permanent impairment 

rating for schedule award purposes. Dr. Kaler completed a form report on January 6, 2015 and 

found that appellant had reached maximum medical improvement on September 9, 2014. He 
3

noted that appellant had decreased range of motion and strength. Dr. Kaler found that appellant 

had two percent impairment of the whole person. 

OWCP’s medical adviser reviewed appellant’s medical records on February 10, 2015 and 

noted that appellant had a massive rotator cuff tear in the right shoulder with an arthroscopic 

repair. He noted that appellant experienced decreased range of motion and strength. The 

medical adviser found that based on Table 15-5 of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment3 appellant had four percent impairment of the upper 

extremity based on Dr. Kaler’s finding of two percent impairment of the whole person utilizing 

Table 15-11.4

In a decision dated February 18, 2015, OWCP granted appellant a schedule award for 

four percent impairment of his right upper extremity. Appellant requested an oral hearing 

through a form dated April 4, 2015, but postmarked April 3, 2015. 

By decision dated April 29, 2015, OWCP’s Branch of Hearings and Review denied 

appellant’s request for an oral hearing as the request was untimely. The Branch of Hearings and 

Review noted that OWCP had issued its merit decision on February 18, 2015 and that appellant’s 

request for an oral hearing was postmarked on April 3, 2015 outside the 30-day time period. The 

Branch of Hearings and Review considered appellant’s request and in its discretion determined 

that the issue in this case could equally well be addressed by requesting reconsideration from 

OWCP and submitting evidence not previously considered to establish that appellant had greater 

than four percent impairment of his right upper extremity. 

LEGAL PRECEDENT -- ISSUE 1 

A claimant, injured on or after July 4, 1966, who has received a final adverse decision by 

OWCP, may obtain a hearing by writing to the address specified in the decision.5 The hearing 

request must be sent within 30 days (as determined by postmark or other carrier’s date marking) 

of the date of the decision for which a hearing is sought. The claimant must not have previously 

submitted a reconsideration request (whether or not it was granted) on the same decision. If the 

request is not made within 30 days, a claimant is not entitled to a hearing as a matter of right. 

However, the Branch of Hearings and Review may exercise its discretion to either grant or deny 

a hearing.6

ANALYSIS -- ISSUE 1 

In the instant case, OWCP properly determined that appellant’s April 4, 2015 request for 

an oral hearing was untimely filed as it was made more than 30 days after the issuance of the 

 3

 A.M.A., Guides 403, Table 15-5 (6th ed. 2009). 

4 Id. at 420, Table 15-11. 

5

 20 C.F.R. § 10.616(a). 

6 Supra note 1 at §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 

33 ECAB 140 (1981). 
4

OWCP’s February 18, 2015 decision. It, therefore, properly denied appellant’s hearing as a 

matter of right. 

 OWCP then proceeded to exercise its discretion, in accordance with Board precedent, to 

determine whether to grant a hearing in this case. It determined that a hearing was unnecessary 

as the issue could be resolved through the submission of evidence in the reconsideration process. 

Therefore, OWCP properly denied appellant’s request for a hearing as untimely and properly 

exercised its discretion to deny appellant’s request for a hearing. 

LEGAL PRECEDENT -- ISSUE 2 

The schedule award provision of FECA7 and its implementing regulations8 set forth the 

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

loss of 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.

9

 

In addressing upper extremity impairments, the sixth edition requires identification of 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). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10

ANALYSIS -- ISSUE 2 

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

Appellant developed bilateral rotator cuff tears due to his federal job duties. He 

underwent an arthroscopic repair of his right shoulder on April 21, 2014. Dr. Kaler found that 

appellant had reached maximum medical improvement in regard to his right shoulder on 

September 9, 2014. In his September 9, 2014 report, he noted that appellant had forward flexion 

to a relatively normal position, but limited external rotation, adduction, and internal rotation. 

Dr. Kaler did not provide any range of motion figures. On October 8, 2014 he noted that 

appellant had 90 percent range of motion of his shoulder and lacked a little strength. Again, 

 7 Supra note 1 at 8107. 

8 Supra note 5 at § 10.404. 

9

 For 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). 

10 A.M.A., Guides 411. 
5

Dr. Kaler failed to provide specific findings on range of motion or specific loss of strength. He 

completed a form report on January 6, 2015 and noted that appellant had reached maximum 

medical improvement on September 9, 2014. Dr. Kaler noted that appellant had decreased range 

of motion and strength. He found that appellant had two percent impairment of the whole 

person. FECA and the implementing regulations do not allow for a schedule award due to 

impairments of the whole person. No schedule award is payable for a member, organ or function 

of the body that is not specified in FECA or the implementing regulations.11 Therefore, 

appellant is not entitled to schedule award based on an impairment rating to the whole person. 

OWCP referred Dr. Kaler’s reports to OWCP’s medical adviser to determine appellant’s 

upper extremity impairment rating. The medical adviser completed a report on February 10, 

2015 listing Dr. Kaler’s general findings that appellant experienced decreased range of motion 

and strength as well as his rating of two percent of the whole person. He found that based on 

Table 15-5 of the A.M.A., Guides, which correlates whole person impairments to the extremities, 

that appellant had four percent impairment of the right upper extremity. However, the medical 

adviser did not apply the appropriate standards of the A.M.A., Guides in reaching this 

impairment rating. He did not calculate appellant’s grade modifiers and then apply the 

appropriate formula as noted above. Instead, the medical adviser determined appellant’s 

permanent impairment for schedule award based solely on Dr. Kaler’s finding of two percent 

impairment of the whole person, utilizing Table 15-1112 to convert this impairment rating to one 

of the upper extremity. As neither appellant’s attending physician nor the medical adviser 

appropriately applied the A.M.A., Guides to reach appellant’s permanent impairment for 

schedule award purposes, this case must be remanded for further development and an appropriate 

impairment rating under the A.M.A., Guides.

13

Following this and any necessary further development, it should issue a de novo decision 

regarding any permanent impairment of the right upper extremity. 

CONCLUSION 

The Board finds OWCP’s Branch of Hearings and Review properly denied appellant’s 

request for an oral hearing. The Board further finds that this case is not in posture for a decision 

on the extent of permanent impairment to appellant’s right upper extremity. 

 11 Tania R. Keka, 55 ECAB 354 (2004). 

12 A.M.A., Guides 420, Table 15-11. 

13 See C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser does not 

provide sufficient explanation for his rating, his report is not entitled to the weight of the medical evidence). 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. The February 18, 2015 decision of OWCP is set 

aside and remanded for further proceedings consistent with this decision. 

Issued: February 4, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board