United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.L., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 16-1558 

Issued: April 4, 2017 

Appearances: Case Submitted on the Record

Denise Prado, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 27, 2016 appellant, through her representative, filed a timely appeal of a May 26, 

2016 merit decision and a June 16, 2016 nonmerit 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. 

 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

ISSUES 

The issues are: (1) whether appellant has met her burden of proof to establish more than 

10 percent permanent impairment of her left upper extremity for which she previously received 

schedule awards; and (2) whether OWCP properly denied appellant’s request for reconsideration 

on the merits pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On April 4, 2006 appellant, then a 40-year-old mail carrier, filed a recurrence claim 

(Form CA-2a) alleging a recurrence of her medical condition on September 28, 2006 due to her 

March 1, 1999 employment injury.3

 OWCP developed this as a new occupational disease claim. 

Appellant alleged that she had received continued medical treatment for her March 1, 1999 

employment injury. The employing establishment noted that she had returned to full duty on 

April 19, 2000. Appellant accepted a light-duty assignment at the employing establishment on 

June 10, 2006. 

In a report dated February 19, 2007, Dr. Roanna Garner, a Board-certified neurologist, 

reviewed appellant’s diagnostic studies, including magnetic resonance imaging (MRI) scans 

dated January 13 and November 14, 2005, and found that appellant’s left rotator cuff was intact 

with mild tendinosis of the supraspinatus tendon. She diagnosed chronic cervical sprain, left 

shoulder injury, and left elbow tendinitis. Dr. Garner opined that appellant had 20 percent joint 

impairment, 5 percent upper extremity impairment of the left shoulder, and 5 percent cervical 

spine impairment. She issued a similar report on July 26, 2007. 

Appellant filed a schedule award claim (Form CA-7) on August 17, 2007. OWCP’s 

medical adviser reviewed Dr. Garner’s reports and determined that appellant had no ratable 

permanent impairment of her left arm pursuant to the American Medical Association, Guides to 

the Evaluation of Permanent Impairment4

 (A.M.A., Guides). 

In a decision dated December 11, 2007, OWCP denied appellant’s request for a schedule 

award finding that the medical evidence failed to establish a permanent measurable scheduled 

impairment. 

Appellant underwent an additional left shoulder MRI scan on March 5, 2012 which 

demonstrated impingement and heterogeneous signals in the supraspinatus and infraspinatus 

tendons. She underwent a cervical MRI scan on August 1, 2012 which indicated mild diffuse 

asymmetrical disc bulges and posterocentral disc protrusions at C3-4 through C6-7 levels with 

straightening of the cervical lordosis, suggestive of paraspinal muscle spasm. Appellant 

 3

 OWCP had accepted appellant’s claim for cervical sprain and aggravation of left shoulder tendinitis on 

June 21, 2006. 

4

 At the time of this report, OWCP relied on the fifth edition of the A.M.A., Guides to determine permanent 

impairment for schedule award purposes. A.M.A., Guides, (5th ed. 2001). For new 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); id. Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 
3

underwent a nerve conduction velocity study on April 3, 2013 which was read as abnormal and 

indicative of a right C6 upper truck entrapment. 

Appellant’s attending physician, Dr. Samy F. Bishai, an orthopedic surgeon, completed a 

report on February 11, 2014 and opined that appellant had reached maximum medical 

improvement. He noted that her left shoulder was tender overlying the anterior, lateral, and 

posterior aspects of the shoulder joint. Dr. Bishai used the range of motion (ROM) method of 

rating permanent impairment and found 80 degrees of flexion, 20 degrees of extension, 80 

degrees of abduction, 15 degrees of adduction, 50 degrees of external rotation, and 40 degrees of 

internal rotation. He found reduced sensation in the ulnar nerve distribution of the left hand with 

a positive Tinel’s sign and a positive Phalen’s test. Dr. Bishai diagnosed chronic cervical strain, 

cervical disc syndrome, internal derangement of the left shoulder, radiculopathy of the upper 

extremities bilaterally, carpal tunnel syndrome of the left hand, and left shoulder impingement 

syndrome. He opined that appellant’s left shoulder should be evaluated for permanent 

impairment purposes based on her loss of ROM. Dr. Bishai referenced Table 15-34 of the 

A.M.A., Guides5

 and found that 80 degrees of flexion was nine percent permanent impairment, 

that 20 degrees of extension was two percent permanent impairment, that 80 degrees of 

abduction was six percent permanent impairment, that 15 degrees of adduction was one percent 

permanent impairment, that 20 degrees of internal rotation was four percent permanent 

impairment, and that 50 degrees of external rotation was two percent permanent impairment. 

Dr. Bishai concluded that appellant had 24 percent permanent impairment of her left arm using 

the ROM method. 

Appellant again, on April 1, 2014, filed a claim for a schedule award (Form CA-7). 

In a decision dated April 8, 2014, OWCP accepted the additional conditions of sprain of 

the neck, calcifying tendinitis of the left shoulder, and aggravation of displacement of cervical 

disc without myelopathy. 

OWCP requested additional medical evidence on April 28, 2014 to support appellant’s 

permanent impairment claim for schedule award purposes. It afforded her 30 days to respond. 

Appellant underwent a cervical MRI scan on April 17, 2014 which demonstrated disc 

bulge at C4-5 which indented the anterior thecal sac, disc herniation at C5-6, as well as disc 

bulge, and herniation at C6-7. 

Dr. Harvey Bishow, a Board-certified orthopedic surgeon, examined appellant on 

May 19, 2014 also used the ROM method of rating permanent impairment. He found 160 

degrees of abduction, 130 degrees of flexion, 60 degrees of internal rotation, and normal external 

rotation. Dr. Bishow noted that appellant had requested a surgical evaluation of her left 

shoulder. He then provided an impairment rating based on both her loss of ROM in the left 

shoulder as well as a rating using the diagnosis-based impairment (DBI) method of impairment 

rating for a partial rotator cuff tear. Dr. Bishow combined these impairment ratings to reach 13 

percent permanent impairment of the left upper extremity. 

 5

 A.M.A., Guides 475, Table 15-34. 
4

OWCP’s medical adviser reviewed Dr. Bishow’s report and determined that appellant 

was not entitled to a permanent impairment rating based on both DBI and ROM. He reviewed 

her ROM examination findings and found that under Table 15-346 that she had eight percent 

permanent impairment of her left upper extremity. 

By decision dated June 26, 2014, OWCP granted appellant a schedule award for eight 

percent permanent impairment of her left upper extremity. Appellant disagreed with this 

decision and requested an oral hearing with a representative of OWCP’s Branch of Hearings and 

Review on July 3, 2014. 

On February 11, 2015 at the oral hearing before an OWCP hearing representative, 

appellant’s representative contended that OWCP’s medical adviser improperly discounted 

Dr. Bishai’s report and also improperly reduced Dr. Bishow’s impairment rating. 

By decision dated April 30, 2015, OWCP’s hearing representative set aside OWCP’s 

June 26, 2014 schedule award determination and remanded the case for referral to a second 

opinion physician to determine which of appellant’s left shoulder conditions were related to her 

employment and whether she had any permanent impairment of the left upper extremity 

warranting a schedule award. 

OWCP developed a statement of accepted facts on May 11, 2015 which listed the 

accepted conditions as neck sprain, aggravation of left shoulder tendinitis, and aggravation of 

displacement of cervical disc without myelopathy. It noted that appellant had three additional 

claims, File No. xxxxxx171 under which OWCP accepted neck and left trapezius injuries, 

File No. xxxxxx076 under which OWCP accepted lumbar and cervical strains, and File No. 

xxxxxx535 under which OWCP accepted adhesive capsulitis of the right shoulder. 

On May 18, 2015 OWCP referred appellant for a second opinion evaluation, with 

Dr. William Dinenberg, a Board-certified orthopedic surgeon, to determine the extent of her 

permanent impairment for schedule award purposes. Dr. Dinenberg completed a report on 

June 9, 2015. He described appellant’s history of injury and noted that she was currently 

working full-time light-duty. Dr. Dinenberg reviewed her medical history and diagnostic 

studies. He performed a physical examination and found left shoulder ROM at 120 degrees of 

flexion, 50 degrees of extension, 20 degrees of internal rotation, 70 degrees of external rotation, 

90 degrees of abduction, and 40 degrees of adduction. Dr. Dinenberg noted that appellant had a 

positive impingement sign with normal muscle strength and no acromioclavicular (AC) joint 

pain to palpation. He reported that she had positive Phalen’s test, positive Tinel’s sign, and 

positive carpal tunnel compression test at the left wrist. Dr. Dinenberg found decreased 

sensation to light touch in the left small finger, ring finger, and thumb. He diagnosed 

aggravation of left shoulder tendinitis, and sprain of the cervical spine with aggravation of 

cervical disc displacement without myelopathy. Dr. Dinenberg used the ROM method and 

correlated appellant’s left shoulder loss of ROM with the A.M.A., Guides7

 and found that she 

had 3 percent permanent impairment due to 120 degrees of flexion, 4 percent permanent 

 6 Id. 

7 Id. 
5

impairment due to 20 degrees of internal rotation, and 3 percent permanent impairment due to 

90 degrees of abduction for a total permanent impairment rating of 10 percent of the left upper 

extremity. 

OWCP’s medical adviser reviewed the medical evidence of record on July 24, 2015 and 

found that Dr. Dinenberg’s report established appellant’s permanent impairment for schedule 

award purposes at 10 percent of the left upper extremity due to loss of ROM. 

By decision dated July 28, 2015, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of her left upper extremity. On August 5, 2015 

appellant disagreed with this decision and requested an oral hearing. 

Appellant testified at the oral hearing on March 15, 2016 before an OWCP hearing 

representative. Appellant’s representative contended that Dr. Bishai’s impairment rating was the 

most appropriate. 

On April 7, 2016 appellant underwent a left shoulder MRI scan which demonstrated 

rotator cuff tendinosis with a partial thickness tear of the supraspinatus tendon and a partial 

thickness tear of the infraspinatus tendon. This MRI scan also demonstrated mild chronic AC 

joint osteoarthrosis and mild bursitis. 

Appellant submitted a report from Dr. Bishai completed on July 4, 2015. In his 

examination of her left shoulder, Dr. Bishai found loss of ROM including forward elevation of 

75 degrees, backward elevation of 15 degrees, abduction of 75 degrees, adduction of 15 degrees, 

external rotation of 40 degrees, and internal rotation of 20 degrees. He found electrodiagnostic 

evidence consistent with cervical radiculopathy affecting the upper extremities. Dr. Bishai 

diagnosed chronic cervical strain, cervical disc syndrome, internal derangement of the left 

shoulder, bilateral radiculopathy of the upper extremities, left carpal tunnel syndrome, and left 

shoulder impingement syndrome. He reviewed Dr. Dinenberg’s report and disagreed with his 

findings of appellant’s ROM. Dr. Bishai noted, “I have seen [appellant] numerous times and I 

conducted this examination many times and the [ROM] figures have remained very close every 

time I do the examination, so my impairment rating is based on multiple visits and many [ROM] 

examinations at different times.” He opined that Dr. Dinenberg’s examination was very brief 

and that he did not “do much” of a complete examination in every movement. 

By decision dated May 26, 2016, OWCP’s hearing representative found that appellant 

had not established more than 10 percent permanent impairment of her left upper extremity 

entitling her to a schedule award. She found that Dr. Dinenberg’s impairment rating based on his 

ROM figures was appropriate. 

Appellant’s representative again requested reconsideration of the May 26, 2016 decision 

and alleged an unresolved conflict of medical opinion evidence between appellant’s physician 

and OWCP’s medical adviser. 

In a decision dated June 16, 2016, OWCP declined to reopen appellant’s claim for 

consideration of the merits as no additional factual or medical evidence was submitted in support 

of her request for reconsideration. 
6

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 

vested the authority to implement the FECA program with the Director of OWCP.8 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.9

 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.10 

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).11 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.12

ANALYSIS -- ISSUE 1 

The issues on appeal are whether appellant has met her burden of proof to establish more 

than 10 percent permanent impairment of her left upper extremity for which she has previously 

received a schedule award and whether OWCP properly denied her request for reconsideration 

on the merits pursuant to 5 U.S.C. § 8128(a). 

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 

 8 See 20 C.F.R. §§ 1.1-1.4. 

9

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

§ 8107(c)(1). 

10 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

11 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). 

12 Isidoro Rivera, 12 ECAB 348 (1961). 
7

consistent interpretation has been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.13 

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

justice under the law to all claimants.14 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.15 

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 May 26 and June 16, 

2016 decisions.16 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. 

CONCLUSION 

The Board finds this case not in posture for decision.

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

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

15 Supra note 12. 

16 Due to the outcome of issue 1, the issue of whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim is moot. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 26 and June 16, 2016 decisions of the 

Office of Workers’ Compensation Programs are set aside, and the case is remanded for further 

action consistent with this decision. 

Issued: April 4, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board