United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

U.S. POSTAL SERVICE, PRINCETON POST 

OFFICE, Princeton, NJ, Employer 

__________________________________________ 

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Docket No. 14-1326 

Issued: April 26, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On May 19, 2014 appellant, through counsel, filed a timely appeal from January 29 and 

March 13, 2014 merit decisions 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. 

ISSUES 

The issues are: (1) whether appellant has more than 3 percent permanent impairment of 

the right upper extremity and 24 percent permanent impairment of the left upper extremity, for 

 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.
2

which she received schedule awards; and (2) whether she established a recurrence of disability 

causally related to her accepted aggravation of bilateral traumatic thoracic outlet syndrome. 

On appeal, counsel contends that appellant submitted sufficient evidence to establish that 

she was disabled from work due to her accepted employment injuries and that her limited-duty 

work was withdrawn by the employing establishment. He further contends that the medical 

report of an impartial medical specialist regarding the extent of appellant’s permanent 

impairment is not entitled to the weight of medical opinion evidence as it was not rationalized 

and he did not adequately explain how he arrived at the date of appellant’s maximum medical 

improvement (MMI). 

FACTUAL HISTORY 

This case has previously been before the Board. In a May 4, 2007 decision3

 under the 

instant claim assigned File No. xxxxxx163, the Board affirmed an OWCP hearing 

representative’s February 14, 2006 decision, finding that OWCP properly terminated appellant’s 

wage-loss compensation and medical benefits, effective January 25, 2005, as she no longer had 

any residuals or disability causally related to her accepted January 10, 2001 employment-related 

injuries and that she failed to establish any continuing employment-related residuals or disability 

after January 25, 2005. In a February 7, 2013 decision,4 the Board affirmed a May 1, 2012 

OWCP decision denying modification of the prior termination decision. The facts and 

circumstances outlined in the prior Board decisions are incorporated herein by reference. The 

relevant facts are set forth below. 

On April 15, 2000 appellant, then a 33-year-old part-time flexible carrier, filed a 

traumatic injury claim (Form CA-1), assigned File No. xxxxxx523, alleging that she injured her 

knees in a motor vehicle accident on that day. On May 10, 2000 OWCP accepted the claim for 

neck and lumbar strains. 

On January 16, 2001 appellant filed a traumatic injury claim (Form CA-1), assigned File 

No. xxxxxx163, alleging that she sustained injuries to her cervical spine, back, upper extremities, 

right eye, and both hips and legs as a result of a car accident on January 10, 2001. She stopped 

work on January 11, 2001 and returned to limited-duty work on January 22, 2001. On 

February 28, 2001 OWCP accepted her claim for contusions of the left hip and bilateral knees, 

cervical and lumbar sprains, and a right knee meniscus tear. It authorized a right knee 

arthroscopic partial medial meniscectomy performed on December 27, 2001. On July 7, 2003 

and April 6, 2006 OWCP accepted that appellant sustained a recurrence of disability on May 24 

and 29, 2001 due to her January 10, 2001 employment-related injuries. Appellant’s April 2000 

and January 2011 claims have been administratively combined, with File No. xxxxxx523 serving 

as the master file. 

Dr. Leon N. Costa, an attending Board-certified orthopedic surgeon, advised that 

appellant had continuing residuals of her accepted employment-related injuries. 

 3

 Docket No. 06-1640 (issued May 4, 2007). 

4

 Docket No. 12-153 (issued February 7, 2013). 
3

In a February 12, 2004 medical report and a February 9, 2004 work capacity evaluation, 

Dr. David I. Rubinfeld, a Board-certified orthopedic surgeon and OWCP referral physician, 

opined that appellant’s January 10, 2001 employment-related conditions had resolved and while 

she could not perform her usual job, she could work eight hours a day with restrictions. 

OWCP found a conflict in medical opinion between Dr. Costa and Dr. Rubinfeld 

regarding whether appellant had any continuing employment-related residuals or disability 

necessitating referral to an impartial medical examiner, pursuant to 5 U.S.C. § 8123(a). In a 

May 27, 2004 report, Dr. Robert Dennis, a Board-certified orthopedic surgeon, selected as the 

impartial medical examiner, opined that appellant no longer had any residuals of her accepted 

January 10, 2001 employment injuries and that she could return to full-duty work with no 

restrictions. 

On March 5, 2009 appellant filed a claim for a schedule award (Form CA-7). In a 

November 18, 2008 report, Dr. David Weiss, an attending osteopath Board-certified in 

orthopedic surgery, advised that appellant had 28 percent permanent impairment of the left upper 

extremity, 20 percent permanent impairment of the right upper extremity, 9 percent permanent 

impairment of the right lower extremity, and 3 percent permanent impairment of the left lower 

extremity based on the fifth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides). He concluded that she reached MMI on 

the date of his examination. 

By letter dated September 24, 2009, OWCP requested an impairment rating from 

Dr. Weiss based on the sixth edition of the A.M.A., Guides. 

In a November 11, 2008 report, Dr. Weiss advised that appellant had 20 percent 

permanent impairment of the left upper extremity, 16 percent permanent impairment of the right 

upper extremity, and 3 percent permanent impairment of the right lower extremity under the 

sixth edition of the A.M.A., Guides. 

On January 22, 2010 an OWCP medical adviser reviewed the medical record, including 

Dr. Weiss’ report. He determined that Dr. Weiss’ findings in his November 12, 2009 report were 

in conflict with the 2004 reports of Dr. Rubinfeld and Dr. Dennis as they found that appellant’s 

January 10, 2001 employment injuries had resolved and that she had no disability. The medical 

adviser questioned how her extremities could have worsened by the date of Dr. Weiss’ 

November 2008 examination since he had not mentioned any further treatment for these 

conditions or any new injuries after 2004. He advised that if Dr. Weiss’ findings were truly 

normal and the sixth edition of the A.M.A., Guides was applied to these findings, then appellant 

would have no permanent impairment to her extremities. The medical adviser recommended a 

new impartial medical examination to resolve this conflict and to rate impairment of all involved 

extremities under the sixth edition of the A.M.A., Guides. 

By letter dated March 31, 2010, OWCP referred appellant, together with a statement of 

accepted facts and the medical record, to Dr. Andrew M. Hutter, a Board-certified orthopedic 

surgeon, for an impartial medical examination and impairment rating. In an April 17, 2010 

report, Dr. Hutter advised that appellant had reached MMI, but he could not provide the date she 

reached this status. He opined that she had no permanent impairment to the neck or lower back. 
4

Dr. Hutter provided an impairment rating for the right knee and concluded that her shoulder pain 

was probably related to thoracic outlet syndrome as there was no evidence of a rotator cuff tear. 

On May 9, 2010 an OWCP medical adviser reviewed the medical record and Dr. Hutter’s 

findings. The medical adviser noted that Dr. Hutter did not apply the sixth edition of the 

A.M.A., Guides, did not provide any objective data upon which to base an impairment rating, 

and reported no physical abnormalities. 

By letter dated August 11, 2010, OWCP referred appellant to Dr. Dean L. Carlson, a 

Board-certified orthopedic surgeon, for another impartial medical examination because 

Dr. Hutter failed to respond to its requests for a supplemental report. In a September 9, 2010 

report, Dr. Carlson reviewed a history of the accepted April 15, 2000 and January 10, 2001 

employment injuries and appellant’s medical treatment, family, and social background. On 

physical and neurological examination, he provided, among other findings, range of motion 

(ROM) measurements for the cervical spine, and shoulders, elbows, forearms, hips, and knees. 

On x-ray examination of the shoulders, Dr. Carlson reported normal glenohumeral and 

acromioclavicular joints. There was no glenohumeral or acromioclavicular osteoarthritis. 

Dr. Carlson diagnosed a motion deficit of the left shoulder, right and left brachial plexus 

impairment of the lower trunk at C8-T1, chronic cervical and lumbar strain, and left intercostal 

brachial sensory nerve postoperative anesthesia. He reported that appellant was, as of 

March 2002, status post resection of the left axillary mass, status post release of the right first 

and second dorsal wrist compartments for intersection syndrome and de Quervain’s disease, and 

had chronic cervical and lumbar strain. Dr. Carlson further advised that there was no patellar 

chondromalacia, right or left elbow humeral epicondylitis, or acromioclavicular arthropathy of 

the left shoulder. The de Quervain’s disease and intersection syndrome of the right wrist and 

forearm were cured with surgery.

Dr. Carlson utilized the sixth edition of the A.M.A., Guides, and applied the ROM 

method for evaluating impairment of appellant’s left shoulder which is found in Chapter 15.7. 

He utilized Table 15-34 on page 475 to determine that she had 21 percent impairment of the left 

shoulder for loss of ROM. Using Table 15-35 and Table 15-7 on pages 477 and 406, he assigned 

grade modifiers 2 each for functional history with a QuickDASH score of 60 and 21 percent loss 

of ROM impairment. Dr. Carlson found that no adjustment to the 21 percent impairment rating 

was required since the grade modifier 2 for functional history corresponded to the grade modifier 

2 for loss of ROM. Regarding impairment of appellant’s left brachial plexus of the lower trunk 

at C8-T1, Dr. Carlson applied Table 15-20, Table 15-14, Table 15-7, and Table 15-23, on pages 

434, 425, 406, and 449, and assigned a class 1 grade modifier each for physical examination 

findings and clinical studies for electromyogram (EMG) and nerve conduction velocity (NCV) 

and a class 2 grade modifier for functional history. He applied the net adjustment formula and 

moved one space to the left of the default value of C to the value four percent. Dr. Carlson used 

the combined values chart to determine that 21 percent impairment for loss of ROM and 4 

percent impairment due to a left brachial plexus injury when combined was equal to 24 percent 

permanent impairment to the left upper extremity. Regarding impairment of appellant’s right 

brachial plexus of the lower trunk at C8-T1, Dr. Carlson again applied Table 15-20, Table 15-14, 

Table 15-7, and Table 15-23, on pages 434, 425, 406, and 449, and assigned a class 1 grade 

modifier each for physical examination findings, functional history (QuickDASH score of 34), 

and clinical studies. He applied the net adjustment formula and found the default value of C was 
5

unchanged which resulted in three percent impairment for the right brachial plexus of the lower 

trunk at C8-T1. Dr. Carlson explained why thoracic outlet syndrome should be included as 

related to the accepted employment-related motor vehicle accidents. He concluded that appellant 

reached MMI on September 9, 2010. 

On September 29, 2010 Dr. Robert Y. Pick, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, reviewed the statement of accepted facts and the medical record. 

He found that appellant’s case did not merit any permanent impairment for the left and right 

upper extremities. Dr. Pick noted, among other things, that a January 14, 2005 cervical spine 

magnetic resonance imaging (MRI) scan was normal, a November 18, 2005 left shoulder MRI 

scan was unremarkable, and a November 19, 2001 EMG/NCV study report was inconclusive for 

any particular entrapment neuropathy or thoracic outlet syndrome. He opined that appellant had 

undergone extensive treatment and consequently, findings concerning permanent impairment 

from various evaluating physicians were skewed and as such their provision of permanency was 

completely unrelated to any of the accepted occupational conditions. 

On October 18, 2010 OWCP requested that Dr. Pick determine the extent of appellant’s 

permanent impairment under the sixth edition of the A.M.A., Guides as he may not have 

reviewed Dr. Carlson’s September 9, 2010 report. In an October 29, 2010 report, Dr. Pick 

reviewed Dr. Carlson’s report and noted that the report focused on anatomic regions and 

conditions beyond those clearly described as accepted. Thus, he advised that Dr. Carlson’s 

impairment calculations related to appellant’s right and left upper extremities were not within the 

scope of the accepted conditions listed in the statement of accepted facts. Dr. Pick determined 

that she had reached MMI on September 9, 2010, the date of Dr. Carlson’s examination. 

In a June 28, 2011 decision, an OWCP hearing representative set aside a November 10, 

2010 schedule award decision regarding appellant’s right lower extremity impairment5

 and 

remanded the case for OWCP to, among other things, obtain further rationale from Dr. Carlson 

explaining how the accepted April 15, 2000 work-related motor vehicle accident caused 

appellant’s thoracic outlet syndrome. She found that Dr. Carlson’s opinion on this issue was 

deemed a second opinion. 

In an October 18, 2011 report, Dr. Carlson advised that appellant’s case should be 

expanded to include bilateral traumatic thoracic outlet syndrome due to her April 15, 2000 workrelated injuries and aggravated by her January 10, 2001 employment-related injuries. He 

explained that she had the appropriate neurologic symptoms of upper extremity numbness, 

 5

 In his September 9, 2010 report, Dr. Carlson determined that appellant had one percent permanent impairment 

of the right lower extremity based on the sixth edition of the A.M.A., Guides. Dr. Pick agreed with Dr. Carlson’s 

one percent impairment rating. In a November 10, 2010 decision, OWCP granted appellant a schedule award for 

one percent impairment of the right lower extremity and found zero percent impairment to the upper extremities. 

Following OWCP’s hearing representative’s remand on June 28, 2011, OWCP issued a January 18, 2012 decision 

which granted appellant a schedule award for an additional four percent impairment of the right lower extremity, 

totaling five percent. The record indicates that OWCP previously paid compensation for appellant’s schedule award 

for one percent impairment to the right lower extremity for the period which ended on September 29, 2010. By 

decision dated March 30, 2012, an OWCP hearing representative set aside the January 18, 2012 decision and 

remanded the case for further medical development regarding permanent impairment of appellant’s right knee and 

bilateral upper extremities. 
6

paresthesias, fatigue, and weakness with overhead tasks. Appellant also had an objective 

vascular finding of obliteration of her brachial artery pulse with overhead maneuvers. An 

EMG/NCV study showed right C8-T1 involvement which involved the lower roots of the 

brachial plexus. Dr. Carlson concluded that, based on these signs and symptoms, appellant 

developed post-traumatic thoracic outlet syndrome due to her work-related motor vehicle 

accidents. 

In a January 18, 2012 decision, OWCP accepted appellant’s claim for aggravation of 

bilateral traumatic thoracic outlet syndrome. It authorized the left first rib resection performed 

on March 12, 2004. 

On March 8, 2012 appellant filed a recurrence of disability claim (Form CA-2a) 

commencing March 29, 2011 due to the withdrawal of her limited-duty work. She claimed that 

she was sent home on March 29, 2011 after being told that there was no work available within 

her restrictions. The employing establishment indicated that appellant performed limited-duty 

work eight hours a day following her January 10, 2001 employment injuries. 

On May 3, 2012 OWCP updated its statement of accepted facts to include the newly 

accepted thoracic outlet syndrome condition. On June 18, 2012 it referred the case record to an 

OWCP medical adviser for review of Dr. Carlson’s bilateral upper extremity impairment ratings 

due to this work-related condition. 

In a June 22, 2012 report, Dr. Harvey L. Seigel, a Board-certified-orthopedic surgeon 

serving as an OWCP medical adviser, reviewed the medical record and Dr. Carlson’s findings. 

He found that Dr. Carlson had correctly applied the criteria and tables in the sixth edition of the 

A.M.A., Guides. Dr. Seigel determined that appellant reached MMI between August 2004, three 

months following physical therapy for her first rib resection, and the date she returned to work in 

2005. In a September 24, 2012 addendum report, he clarified his date of MMI finding by stating 

that appellant reached this status on September 9, 2010, the date of Dr. Carlson’s report. 

In a decision dated September 28, 2012, OWCP granted appellant a schedule award for 

24 percent permanent impairment of the left upper extremity and 3 percent permanent 

impairment of the right upper extremity based on the opinions of Dr. Carlson and Dr. Seigel. 

On October 5, 2012 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In an October 12, 2012 decision, OWCP denied appellant’s recurrence claim. It found 

that the evidence of record was insufficient to establish a change in the nature and extent of her 

light-duty job requirements or a withdrawal of her light-duty assignment by the employing 

establishment. 

On November 9, 2012 counsel requested reconsideration. 

In a February 11, 2013 report, Dr. Weiss explained the differences between his and 

Dr. Carlson’s right upper extremity permanent impairment. He noted that he used SemmesWeinstein Monofilament testing to determine the extent of appellant’s permanent impairment 

due to her brachial plexus neuropathy and noted that such testing was required under the A.M.A., 
7

Guides to determine sensory deficits in the C5 through C8 distribution on the right. Dr. Weiss 

utilized Table 15-20 on page 434 of the A.M.A., Guides to determine a three percent sensory 

impairment. He related that Dr. Carlson did not indicate whether he used the Semmes-Weinstein 

Monofilament method to ascertain appellant’s sensory deficits in rating impairment due to her 

brachial plexus neuropathy. Dr. Weiss rated appellant’s impairment for right elbow 

de Quervain’s tenosynovitis and lateral epicondylitis, and concluded that her combined right 

upper extremity permanent impairment was 16 percent. 

In a February 21, 2013 report, Dr. Stuart M. Hochron, a Board-certified internist, listed 

appellant’s complaints and advised that her medical condition and work limitations had not 

improved. He noted that they had somewhat worsened since January 2009. Dr. Hochron also 

noted that appellant was severely limited in her ability to perform functions that were normally 

required in workplaces, but she could work with certain restrictions. 

By letter dated February 4, 2013, the employing establishment noted that it concurred 

with appellant’s statements regarding her alleged recurrence of disability. It related that her 

light-duty job was withdrawn because there was no longer any work available for her. This 

change did not occur due to misconduct, performance, or reduction-in-force. 

In a March 28, 2013 decision, an OWCP hearing representative affirmed the October 12, 

2012 denial of appellant’s recurrence claim. She found that the medical evidence of record was 

insufficient to establish that appellant sustained a recurrence of disability due to her accepted 

employment-related injuries. 

In a May 30, 2013 decision, an OWCP hearing representative set aside the September 28, 

2012 schedule award decision. He found an unresolved conflict in medical opinion regarding the 

extent of appellant’s right upper extremity impairment. The hearing representative remanded the 

case for OWCP to obtain a supplemental report from Dr. Carlson to explain how he determined 

appellant’s sensory impairment related to her accepted right thoracic outlet syndrome under the 

sixth edition of the A.M.A., Guides, and chose the date of MMI. 

In a June 21, 2013 report, Dr. Carlson noted that he used a Semmes-Weinstein 

Monofilament test to perform his sensory examination. He chose September 9, 2010 as the date 

of MMI because it was the date he examined appellant, who was six years postsurgical therapy 

of the first left rib resection which allowed more than enough time to pass for maximum healing 

and rehabilitation. 

On July 19, 2013 Dr. Spyros Panos, a Board-certified orthopedic surgeon serving as an 

OWCP medical adviser, reviewed the medical record, including Dr. Carlson’s findings. He 

advised that Dr. Carlson had correctly applied the criteria and tables from the sixth edition of the 

A.M.A., Guides based on, appellant’s accepted employment-related conditions. Dr. Panos noted 

that Dr. Carlson appropriately did not apply impairment ratings for appellant’s right elbow and 

right wrist conditions, which were not accepted conditions and had normal findings on 

examination on September 9, 2010. He advised that appellant did not have more than three 

percent permanent impairment of the right upper extremity. Dr. Panos determined that she 

reached MMI on September 9, 2010. 
8

In a July 29, 2013 decision, OWCP found that appellant had no more than three percent 

permanent impairment of the right upper extremity for which she had received a schedule award. 

It found that the weight of the evidence was represented by the opinions of Dr. Carlson and 

Dr. Panos. 

By letter dated August 5, 2013, counsel requested an oral hearing before an OWCP 

hearing representative. 

In a December 23, 2013 letter, counsel requested dismissal of appellant’s appeal of the 

March 28, 2013 recurrence decision to the Board6

 and requested reconsideration of this decision 

before OWCP. 

Appellant submitted Dr. Hochron’s January 7 and June 11, 2009, and February 9, 2013 

reports. Dr. Hochron advised that the accepted employment-related motor vehicle accidents 

significantly contributed to appellant’s wrist tenosynovitis, chronic wrist pain, right knee 

meniscal tear, exacerbation of her thoracic outlet syndrome, symptoms of fibromyalgia, and 

ongoing neck pain which resulted in significant physical impairment. He concluded that her 

chronic conditions rendered her only able to perform part-time work with restrictions. 

In a January 27, 2014 report, Dr. Richard J. Schaller, Board-certified in emergency 

medicine, assessed appellant as having permanent chronic ongoing subjective and objective 

problems, and physical limitations as a direct result of her April 15, 2000 and January 10, 2001 

employment-related injuries. He reviewed a description of her letter carrier job and concluded 

that she would never be able to fully perform the duties outlined in the job description. 

Dr. Schaller noted that appellant was forced to retire because the employing establishment 

declined her request for reasonable accommodation. 

In a decision dated January 29, 2014, an OWCP hearing representative affirmed the 

July 29, 2013 schedule award decision. He found that Dr. Carlson’s opinion represented the 

special weight of the medical evidence and established that appellant had no more than 24 

percent impairment of the left upper extremity and 3 percent impairment of the right upper 

extremity. 

By decision dated March 13, 2014, OWCP denied modification of the March 28, 2013 

recurrence decision. It found that the reports of Dr. Hochron and Dr. Schaller did not provide a 

sufficiently rationalized medical opinion based on objective findings to support their 

conclusions. 

LEGAL PRECEDENT -- ISSUE 1 

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 

 6

 In a February 24, 2014 order, under the instant claim assigned File No. xxxxxx163, the Board dismissed 

appellant’s appeal of OWCP’s hearing representative’s March 28, 2013 decision. Order Dismissing Appeal, Docket 

No. 13-1664 (issued February 24, 2014). 
9

vested the authority to implement the FECA program with the Director of OWCP.7

 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.8

 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.9 

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).10 The Board has approved the use by OWCP 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.11

ANALYSIS -- ISSUE 1 

The first issue for consideration on appeal is whether appellant has more than 3 percent 

permanent impairment of the right upper extremity and 24 percent permanent impairment of the 

left upper extremity, for which she received schedule awards. 

The Board finds that this issue 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 has been followed regarding the proper use of the diagnosis-based 

impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment 

for schedule award purposes.12 The purpose of the use of uniform standards is to ensure 

 7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 

9

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

10 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). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

12 T.H., Docket No. 14-0943 (issued November 25, 2016). 
10

consistent results and to ensure equal justice under the law to all claimants.13 In T.H., the Board 

concluded that OWCP physicians are 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 has 

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 finds that OWCP 

can no longer ensure consistent results and equal justice under the law for all claimants.14 

In light of the conflicting interpretation by OWCP of the sixth edition with respect to 

upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing 

regulations and/or internal procedures, to establish a consistent method for rating upper 

extremity impairment. In order to ensure consistent results and equal justice under the law for 

cases involving upper extremity impairment, the Board will set aside the January 29, 2014 

schedule award decision. Following OWCP’s development of a consistent method for 

calculating permanent impairment for upper extremities to be applied uniformly, and 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. 

LEGAL PRECEDENT -- ISSUE 2 

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.15 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his 

or her work-related injury or illness is withdrawn (except when such withdrawal occurs for 

reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the 

physical requirements of such an assignment are altered so that they exceed his or her established 

physical limitations.16

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the 

burden to establish by the weight of the reliable, probative and substantial evidence a recurrence 

of total disability and to show that he or she cannot perform such limited-duty work. As part of 

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

14 Supra note 12. 

15 20 C.F.R. § 10.5(x). 

16 Id. 
11

this burden, the employee must show a change in the nature and extent of the injury-related 

condition or a change in the nature and extent of the limited-duty job requirements.17

To show a change in the degree of the work-related injury or condition, the claimant must 

submit rationalized medical evidence documenting such change and explaining how and why the 

accepted injury or condition disabled the claimant for work on and after the date of the alleged 

recurrence of disability.18

ANALYSIS -- ISSUE 2 

The second issue for consideration on appeal is whether appellant has established a 

recurrence of disability causally related to her accepted aggravation of bilateral thoracic outlet 

syndrome. OWCP accepted appellant’s claims for neck and lumbar strains, contusions of the left 

hip and bilateral knees, and bilateral thoracic outlet syndrome. Appellant stopped work on 

January 11, 2001 and returned to limited-duty work on January 22, 2001. On March 29, 2011 

she stopped work again and claimed a recurrence of disability due to the withdrawal of her 

limited-duty position by the employing establishment on that same day. 

The Board has held that withdrawal of a light-duty job formulated to comply with an 

employee’s work-related medical limitations can constitute a recurrence of disability.19 In the 

present case, the employing establishment acknowledged that appellant’s light-duty job was 

withdrawn because there was no work available. The position was not withdrawn due to 

misconduct, performance, or reduction-in-force. The Board, therefore, finds that appellant 

sustained an employment-related recurrence of total disability when her work was withdrawn by 

the employing establishment on March 29, 2011.20

CONCLUSION 

The Board finds that this case is not in posture for a decision on the extent of permanent 

impairment to appellant’s right and left upper extremities. The Board further finds that appellant 

has met her burden of proof to establish that she sustained a recurrence of disability commencing 

March 29, 2011 due to her accepted employment injuries. 

 17 Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 

222 (1986). 

18 James H. Botts, 50 ECAB 265 (1999). 

19 J.F., 58 ECAB 124 (2006). 

20 Jackie D. West, supra note 17; K.S., Docket No. 08-2105 (2009). 
12

ORDER 

IT IS HEREBY ORDERED THAT the March 13, 2014 decision of the Office of 

Workers’ Compensation Programs regarding appellant’s recurrence of disability is reversed. The 

January 29, 2014 decision of the Office of Workers’ Compensation Programs regarding 

appellant’s schedule award claim is set aside and the case is remanded for further action 

consistent with this decision of the Board.21

Issued: April 26, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 21 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.