United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-0523 

Issued: February 15, 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 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 27, 2016 appellant, through counsel, filed a timely appeal from an 

October 29, 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. 

 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

ISSUE 

The issue is whether appellant met his burden of proof to establish more than five percent 

permanent impairment of his right upper extremity and three percent permanent impairment of 

his left upper extremity, for which he previously received a schedule award. 

FACTUAL HISTORY 

This case has previously been before the Board. OWCP accepted that on August 7, 2007 

appellant, then a 47-year-old clerk, sustained a right shoulder sprain and a right rotator cuff tear 

due to moving a heavy mail container. It also accepted the condition of temporary aggravation 

of left shoulder tendinitis, resolved, which was sustained as a consequence of his accepted right 

shoulder conditions.3 On March 17, 2008 appellant underwent OWCP-authorized surgery of his 

right shoulder, which included repair of his right rotator cuff tear. 

In an October 27, 2009 report, Dr. David Weiss, an attending osteopath, concluded that 

appellant had five percent permanent impairment of his right upper extremity and five percent 

permanent impairment of his left upper extremity under the standards of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides) (6th ed., 2009). 

In August 2010, OWCP referred appellant for examination to Dr. Stuart L. Gordon, a 

Board-certified orthopedic surgeon.4

 In September 9 and December 10, 2010 reports, 

Dr. Gordon reported findings of his physical examination of appellant. His reports formed the 

basis for OWCP’s acceptance of appellant’s claim for temporary aggravation of left shoulder 

tendinitis, resolved. 

On July 2, 2012 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an 

OWCP medical adviser, provided an opinion on the extent of permanent impairment of 

appellant’s upper extremities. He reviewed the medical evidence of record, including the 

examination findings of Dr. Weiss and Dr. Gordon, and concluded that appellant had five 

percent permanent impairment of his right arm and three percent permanent impairment of his 

left arm under the sixth edition of the A.M.A., Guides. 

In a January 4, 2013 decision, OWCP granted appellant a schedule award for five percent 

permanent impairment of his right upper extremity and three percent permanent impairment of 

his left upper extremity. The award ran for 24.96 weeks and was based on the impairment rating 

of Dr. Berman. Appellant claimed additional permanent impairment. In an October 18, 2013 

decision, OWCP found that he did not meet his burden of proof to establish additional 

impairment. 

 3

 Appellant previously underwent left shoulder surgery in 1995. 

4

 Dr. Gordon performed his examination as an impartial medical specialist who was asked to resolve a conflict in 

the medical opinion evidence regarding whether appellant had developed a left shoulder condition consequential to 

his August 7, 2007 right shoulder injury. See 5 U.S.C. § 8123(a). 
3

By decision dated October 2, 2014,5

 the Board set aside OWCP’s October 18, 2013 

decision and remanded the case to OWCP for further development. The Board found that there 

was a conflict in the medical opinion evidence regarding the extent of appellant’s upper 

extremity permanent impairment between Dr. Berman and Dr. Weiss. The Board remanded the 

case to OWCP for referral of appellant to an impartial medical specialist for examination and an 

opinion on this matter, to be followed by the issuance of a de novo decision. 

On remand, OWCP referred appellant for an impartial medical examination to Dr. Zohar 

Stark, a Board-certified orthopedic surgeon. In a March 19, 2015 report, Dr. Stark opined that 

the five percent impairment rating that appellant received for his right upper extremity was 

appropriate. Regarding the left upper extremity, Dr. Stark noted that, under Table 15-5 on page 

402 of the sixth edition the A.M.A., Guides, appellant’s diagnosis-based impairment (DBI) of 

tendinitis (residual loss, functional with normal motion) fell under class 1, grade C and equaled 

three percent impairment of the left upper extremity. Dr. Stark noted that appellant’s functional 

history grade modifier was 1, his physical examination grade modifier was 1, and his clinical 

studies grade modifier was 1. He noted that appellant had a net adjustment of zero and indicated 

that therefore his permanent impairment remained at the default value of three percent for the left 

upper extremity. 

By decision dated March 31, 2015, OWCP found that appellant failed to establish more 

than five percent permanent impairment of the right upper extremity and three percent for the left 

upper extremity. Appellant requested a review of the written record with an OWCP hearing 

representative and, in a decision dated August 18, 2015, the hearing representative affirmed 

OWCP’s March 31, 2015 decision. 

Appellant submitted an August 4, 2015 report of Dr. Michael E. Cohen, an attending 

osteopath and Board-certified orthopedic surgeon. Dr. Cohen discussed appellant’s factual and 

medical history and reported findings of his physical examination on August 4, 2015. He noted 

that appellant’s claim was accepted for several conditions including rotator cuff tear of the right 

shoulder and temporary aggravation of left shoulder tendinitis. Dr. Cohen listed findings for 

range of bilateral shoulder motion upon flexion, extension, abduction, adduction, internal 

rotation, and external rotation. He applied the range of motion (ROM) method of impairment 

rating under Table 15-34 (Shoulder Range of Motion) on page 475 of the sixth edition of the 

A.M.A., Guides, noting that the ROM findings established six percent permanent impairment of 

each upper extremity.6

OWCP referred the case record to Dr. Berman, in his role as an OWCP medical adviser, 

for evaluation of Dr. Cohen’s impairment rating report. In a report dated October 12, 2015, 

Dr. Berman discussed Dr. Stark’s March 19, 2015 impairment rating, noting that he used the 

 5

 Docket No. 14-1113 (issued October 2, 2014). 

6

 Dr. Cohen indicated that application of Table 15-35 (Range of Motion Grade Modifiers) and Table 15-36 

(Functional History Grade Adjustments: Range of Motion) on page 477 did not change appellant’s final permanent 

impairment from six percent permanent impairment of each upper extremity. 
4

DBI rating method, and Dr. Cohen’s August 4, 2015 impairment rating, noting that he used the 

ROM rating method. Dr. Berman noted: 

“According to the [A.M.A., Guides], the calculation for [s]chedule [a]ward should 

be based upon diagnostic[-]related groupings wherever possible and not based 

upon [ROM] calculation. [ROM] calculation should only be utilized if and when 

the diagnostic[-]related groupings cannot be utilized or are otherwise 

inappropriate. Therefore, the calculation of the [s]chedule [a]ward as submitted 

by Dr. Cohen is incorrect and should not be accepted. 

“Dr. Stark was in agreement with the previously submitted [s]chedule [a]ward 

that I recommended in my letter of July 2, 2012 of [five percent] impairment right 

upper extremity and [three percent] for left upper extremity and therefore there is 

no change from my previously submitted recommendation. 

“In summary, this claimant has a [five percent] impairment right upper extremity 

and [three percent] impairment left upper extremity....” 

In a decision dated October 29, 2015, OWCP determined that appellant failed to meet his 

burden of proof to establish more than five percent permanent impairment of his right upper 

extremity and three percent permanent impairment of his left upper extremity, for which he 

previously received a schedule award. It found that the weight of the medical evidence with 

respect to his upper extremity impairment rested with the October 12, 2015 opinion of 

Dr. Berman. OWCP noted that Dr. Berman found that it was inappropriate for Dr. Cohen to use 

the ROM method for rating 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 the Office of Workers’ 

Compensation Programs.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, 

 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). 
5

[s]ixth [e]dition, 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 

The issue on appeal is whether appellant met his burden of proof to establish more than 

five percent permanent impairment of his right upper extremity and three percent permanent 

impairment of his left upper extremity, for which he 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 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.12 

The purpose of the use of uniform standards is to ensure 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 

 10 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

14 Supra note 12. 
6

cases involving upper extremity impairment, the Board will set aside the October 29, 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 this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the October 29, 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: February 15, 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