United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.D., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cleveland, OH, 

Employer 

__________________________________________ 

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Docket No. 15-1311 

Issued: July 21, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 26, 2015 appellant, through counsel, filed a timely appeal from a March 19, 

2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of this case.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 The record provided to the Board includes medical evidence received after OWCP issued its March 19, 2015 

decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1). 
2

ISSUE 

The issue is whether appellant has established more than five percent permanent 

impairment of her right upper extremity for which she previously received a schedule award. 

FACTUAL HISTORY 

On January 18, 2012 appellant, then a 49-year-old mail processing clerk, injured her right 

upper extremity in the performance of duty.4

 OWCP accepted her traumatic injury claim for right 

shoulder sprain and right shoulder impingement syndrome.5

 On September 27, 2012 appellant 

underwent right shoulder acromioplasty, which OWCP authorized. She received wage-loss 

compensation for temporary total disability. In June 2013, appellant returned to work in a fulltime, limited-duty capacity. She continued to work limited duty until October 2013 when she 

stopped due to a left shoulder condition.6

On November 6, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a report dated November 18, 2013, Dr. Jeffrey C. Kirschman, Board-certified in 

occupational medicine, found that appellant had 15 percent right upper extremity impairment 

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

Permanent Impairment (A.M.A., Guides 2009). Dr. Kirschman, using the range of motion 

(ROM) impairment rating method, rated appellant under Table 15-34, A.M.A., Guides 475.7

In a May 6, 2014 report, Dr. Morley Slutsky, OWCP’s district medical adviser (DMA), 

found that, using the diagnosis-based impairment (DBI) methodology, appellant had five percent 

right upper extremity permanent impairment.8 The DMA rated appellant under Table 15-5, 

Shoulder Regional Grid, A.M.A., Guides 402. He based his impairment rating on a diagnosis of 

partial thickness rotator cuff tear. The DMA explained that the DBI method was the “preferred” 

method under the sixth edition, rather than the ROM method utilized by appellant’s physician. 

He also questioned the reliability of Dr. Kirschman’s shoulder ROM measurements. 

Consequently, the DMA found 5 percent right upper extremity permanent impairment in 

comparison to Dr. Kirschman’s 15 percent permanent impairment rating. 

 4

 Appellant reported having “felt a pop” while casing mail. 

5

 Since the May 2015 filing of the current appeal, OWCP has expanded appellant’s claim to include right shoulder 

algoneurodystrophy as an accepted condition. 

6

 Appellant ultimately retired on disability effective August 8, 2014. 

7

 Dr. Kirschman found 3 percent upper extremity permanent impairment for loss of flexion (120°), 2 percent for 

loss of extension (10°), 6 percent for loss of abduction (80°), 1 percent for loss of adduction (10°), 4 percent for loss 

of internal rotation (10°), and 0 percent for loss of external rotation (80°), for a total of 15 percent right upper 

extremity impairment. 

8

 Dr. Slutsky authored a similar report on January 18, 2014. 
3

By decision dated May 23, 2014, OWCP granted appellant a schedule award for five 

percent permanent impairment of the right upper extremity. The award covered a period of 15.6 

weeks from November 18, 2013 through March 7, 2014. 

Counsel timely requested a hearing, which was held on January 14, 2015. 

In a March 19, 2015 decision, the hearing representative affirmed OWCP’s May 23, 2014 

schedule award. He found that the DMA’s five percent right upper extremity impairment rating 

represented the weight of the medical evidence of record. 

LEGAL PRECEDENT 

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.9

 Section 8107 

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

use of specified members, functions, and organs of the body.10 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.11 

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).12 The Board has approved OWCP’s use 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.13

 9 See 20 C.F.R. §§ 1.1-1.4. 

10 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

11 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 

12 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). 

13 Isidoro Rivera, 12 ECAB 348 (1961). 
4

ANALYSIS 

The issue on appeal is whether appellant has established more than five percent 

permanent impairment of her right upper extremity, for which she previously received a schedule 

award. 

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

The Board has found that OWCP has 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.14 

The purpose of the use of uniform standards is to ensure consistent results and to ensure equal 

justice under the law to all claimants.15 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 cite to language in the first printing or the second printing when justifying use of 

either ROM or DBI methodology. Because OWCP’s own physicians are 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.16

 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 March 19, 2015 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied uniformly, 

and after 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. 

CONCLUSION 

The Board finds this case not in posture for decision. 

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

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

16 Supra note 15.
5

ORDER 

IT IS HEREBY ORDERED THAT the March 19, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: July 21, 2017 

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