United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.H., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Cleveland, OH, 

Employer 

__________________________________________ 

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Docket No. 16-1234 

Issued: March 16, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On May 26, 2016 appellant, through counsel, filed a timely appeal from a December 9, 

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. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish permanent 

impairment of a scheduled member, warranting a schedule award. 

 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

FACTUAL HISTORY 

On February 14, 2013 appellant, then a 60-year-old distribution clerk, filed a traumatic 

injury claim (Form CA-1) alleging that she sustained injuries to her right shoulder and right knee 

on January 29, 2013. She alleged that she was attempting to lower her chair while trying to sit 

on it, the chair rolled backwards and she fell. OWCP accepted the claim on April 14, 2013 for 

right shoulder and upper arm sprain, and right knee and leg sprain. According to the employing 

establishment, appellant worked intermittently through April 19, 2013, and then stopped work. 

Appellant filed claims for compensation CA-7 forms for disability commencing from 

March 19, 2013. 

By decision dated September 11, 2013, OWCP denied a claim for a recurrence of 

disability commencing March 19, 2013. It found that the evidence of record was insufficient to 

establish the claim. 

Appellant, through counsel, requested a hearing on October 9, 2013. A hearing was held 

on April 15, 2013. By decision dated June 27, 2014, the hearing representative affirmed the 

September 11, 2013 decision. He found that the evidence of record did not establish that 

appellant was totally disabled as of March 19, 2013 causally related to the January 29, 2013 

employment injury. 

On November 3, 2014 appellant filed a claim for a schedule award (Form CA-7). She 

submitted an October 8, 2014 note from Dr. Kamal Khalafi, a Board-certified internist. 

Dr. Khalafi wrote that appellant had reached maximum medical improvement. 

By decision dated February 23, 2015, OWCP found that appellant was not entitled to a 

schedule award as the medical evidence of record did not establish permanent impairment of a 

scheduled member under 5 U.S.C. § 8107. 

On March 31, 2015 appellant submitted a March 12, 2015 report from Dr. Catherine 

Campbell, Board-certified in occupational medicine.3

 Dr. Campbell provided a history and 

results on examination, including right shoulder range of motion (ROM) measurements. With 

respect to the right knee, she indicated that appellant had degenerative joint disease that required 

use of a walker. Based on loss of flexion and adduction in the right shoulder, Dr. Campbell 

opined that appellant had four percent right upper extremity permanent impairment under the 

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

Impairment (hereinafter A.M.A., Guides).4

 She found there was no employment-related lower 

extremity permanent impairment. Dr. Campbell wrote that there was insufficient historical data 

or objective evidence of a permanent impairment beyond the preexisting degenerative condition. 

The case was referred to an OWCP medical adviser, Dr. Morley Slutsky. In a report 

dated April 10, 2015, Dr. Slutsky concurred that there was no lower extremity permanent 

impairment. With respect to the upper extremity, he opined that the diagnosis-based impairment 

(DBI) method was the preferred method of evaluating permanent impairments under the A.M.A., 

 3

 The date of the evaluation was reported as November 18, 2014. The date on the front page of the report was 

March 12, 2014, which appears to have been a typographical error. The intended date was March 12, 2015. 

4

 A.M.A., Guides (6th ed. 2009). 
3

Guides. Dr. Slutsky opined that appellant had no ratable impairment under Table 15-5, the 

shoulder regional grid. He reported the only diagnosis was nonspecific shoulder pain, and after a 

grade modifier adjustment there was zero percent permanent impairment under Table 15-5. 

By decision dated April 14, 2015, OWCP again found that appellant was not entitled to a 

schedule award as the weight of the evidence was represented by Dr. Slutsky. 

Appellant, through counsel, requested a hearing on April 20, 2015. A hearing was held 

on September 16, 2015. Counsel argued that Dr. Slutsky improperly applied the A.M.A., Guides

and the weight of the evidence rested with Dr. Campbell. 

By decision dated December 9, 2015, the hearing representative affirmed the April 14, 

2015 decision, finding that Dr. Campbell did not provide a reasoned medical opinion with 

respect to an employment-related permanent impairment. 

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.5

 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.6

 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.7 

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).8

 The Board has approved the use by OWCP of the A.M.A., 

 5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 

7

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

8 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 2.808.6a (February 2013). 
4

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.9

ANALYSIS 

In the present case, OWCP accepted appellant sustained right shoulder and upper arm 

sprain, and right knee and leg sprain in the performance of duty on January 29, 2013. As to a 

permanent impairment in the right lower extremity, both attending physician Dr. Campbell and 

OWCP medical adviser Dr. Slutsky concurred there was no ratable employment-related 

permanent impairment. Dr. Campbell wrote in her November 18, 2014 report that there was 

insufficient historical data or objective evidence of a permanent impairment beyond the 

preexisting degenerative condition. There was no probative medical evidence of record 

establishing a right lower extremity permanent impairment in this case. The Board finds that 

OWCP properly determined that appellant had not established an employment-related permanent 

impairment to the right lower extremity. 

As to the upper extremity, Dr. Campbell found four percent right upper extremity 

impairment based on loss of ROM in the shoulder. Dr. Slutsky opined that the DBI was the 

preferred method of rating upper extremity impairment under the A.M.A., Guides, and under the 

DBI method, there was no ratable permanent impairment.10

The Board finds that this case is not in posture for decision as to right upper extremity 

permanent impairment. 

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 DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.11 

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

justice under the law to all claimants.12 In T.H., the Board concluded that OWCP’s 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.13 

 9 Isidoro Rivera, 12 ECAB 348 (1961). 

10 The hearing representative incorrectly wrote that an impairment rating based on pain is not acceptable. Table 

15-5 specifically provides “nonspecific shoulder pain” as a diagnosis, with a default impairment of one percent to 

the upper extremity. Dr. Slutsky found zero percent permanent impairment after applying a net adjustment formula. 

See A.M.A., Guides 401-11. 

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

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

13 Supra note 11. 
5

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 December 9, 2015 

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. 

CONCLUSION 

The Board finds that appellant has not established right lower extremity permanent 

impairment. The Board further finds that the case is not in posture for decision as to right upper 

extremity permanent impairment, and the case is remanded for further development. 

ORDER 

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

Compensation Programs dated December 9, 2015 is affirmed with respect to lower extremity 

permanent impairment. The December 9, 2015 decision is set aside with respect to right upper 

extremity permanent impairment and the case is remanded to OWCP for further action consistent 

with this decision of the Board. 

Issued: March 16, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board