United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fairlawn, OH, Employer 

__________________________________________ 

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Docket No. 17-0087 

Issued: April 5, 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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On October 20, 2016 appellant, through counsel, filed a timely appeal from a 

September 14, 2016 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 established more than one percent permanent 

impairment of her right upper extremity, for which she previously received 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 December 17, 2013 appellant, then a 47-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 4, 2013, she sustained a neck injury when her 

vehicle was rear-ended at a traffic light by another vehicle. OWCP accepted her claim for neck 

sprain, back sprain of the thoracic region, and sprain of the right shoulder on January 27, 2014. 

On January 23, 2015 appellant requested a schedule award (Form CA-7). On January 27, 

2015 OWCP notified her that it had not received any medical evidence in support of her schedule 

award claim. It afforded appellant 30 days to submit additional evidence. Appellant did not 

respond within the time allotted. 

By decision dated March 18, 2015, OWCP denied appellant’s claim for a schedule award, 

finding that the medical evidence was not sufficient to establish permanent impairment to a 

scheduled member due to her accepted work injury. 

On March 23, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. With the request, appellant submitted a report dated April 21, 

2015 from Dr. Catherine Watkins Campbell, a Board-certified occupational medicine specialist. 

Dr. Watkins Campbell rendered an impairment rating of seven percent of the right shoulder 

based upon the Sixth Edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides). She stated that appellant reached maximum medical 

improvement on December 16, 2014 and used the range of motion (ROM) method of 

impairment. Based on a QuickDASH score of 57, Dr. Watkins Campbell assigned a functional 

history modifier of grade 2 and for physical examination a grade modifier of 1. For each 

modifier, she referenced Table 15-7 and Table 15-9, respectively, within the A.M.A., Guides to 

justify her grade modifiers. 

By decision dated September 10, 2015, an OWCP hearing representative vacated 

OWCP’s March 18, 2015 decision, noting that due to the submission of the April 21, 2015 report 

of Dr. Watkins Campbell, appellant had submitted sufficient evidence to warrant review by a 

district medical adviser (DMA). 

OWCP forwarded the case record and a statement of accepted facts to a DMA on 

September 21, 2015. On October 1, 2015 the DMA, Dr. Morley Slutsky, Board-certified in 

occupational medicine, rated appellant’s permanent impairment of the right upper extremity 

impairment for right shoulder sprain as one percent impairment. He stated that his percentage of 

permanent impairment differed from Dr. Watkins Campbell’s because he used the diagnosisbased impairment (DBI) rating method, while she used the ROM-based method of impairment 

rating. 

By decision dated December 16, 2015, OWCP granted appellant a schedule award for 

one percent permanent impairment of right upper extremity. It noted that the weight of medical 

evidence regarding appellant’s percentage of impairment was assigned to the DMA because he 

correctly applied the A.M.A., Guides. 
3

On December 30, 2015 appellant, through counsel, requested a telephonic hearing before 

an OWCP hearing representative. The hearing was held on August 1, 2016. At the hearing, 

counsel alleged that Dr. Watkins Campbell’s report was not fully and properly evaluated, and 

that Dr. Slutsky was biased and unfair, using stale evidence to lower appellant’s impairment 

rating. Counsel argued that Dr. Slutsky’s bias created an adversarial stance in a proceeding that 

was supposed to be nonadversarial. 

On September 14, 2016 the hearing representative affirmed OWCP’s December 16, 2015 

decision, finding that Dr. Slutsky’s opinion constituted the weight of the medical evidence. 

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 FECA program with the Director of OWCP.3 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.4

 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.5 

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).6

 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.7

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

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

§ 8107(c)(1). 

5

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

6 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 2.808.5(a) (February 2013). 

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

ANALYSIS 

The issue on appeal is whether appellant has more than one percent permanent 

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

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

In her April 21, 2015 report, Dr. Watkins Campbell found that appellant had seven 

percent permanent impairment of her right shoulder using the ROM method. On October 1, 

2015 Dr. Slutsky, acting as OWCP’s DMA, reviewed Dr. Watkins Campbell’s report and found 

that appellant had one percent permanent impairment of her right upper extremity, pursuant to 

the DBI protocol for rating 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.8 

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

justice under the law to all claimants.9 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.10 

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 September 14, 2016 

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 this case is not in posture for decision. 

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

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

10 Supra note 8. 
5

ORDER 

IT IS HEREBY ORDERED THAT the September 14, 2016 decision of the Office of 

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

consistent with this decision. 

Issued: April 5, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board