United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.F., Appellant 

and 

U.S. POSTAL SERVICE, FLOWERY BRANCH 

POST OFFICE, Flowery Branch, GA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-1462 

Issued: April 11, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 1, 2016 appellant filed a timely appeal from a March 2, 2016 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (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 greater than 18 percent permanent 

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

FACTUAL HISTORY 

OWCP accepted that on May 23, 2013 appellant, then a 56-year-old lead customer 

service clerk, sustained an acromioclavicular sprain of the right shoulder and upper arm, and 

 1

 5 U.S.C. § 8101 et seq. 
2

reflex sympathetic dystrophy (RSD) syndrome of the right upper extremity while pushing a wire 

mail cage. Appellant did not stop work at the time of injury. 

In a June 13, 2013 report, Dr. Jesse E. Seidman, an attending Board-certified orthopedic 

surgeon, diagnosed an acromioclavicular sprain of the right shoulder with rotator cuff and biceps 

tendinitis.2

 He provided progress notes through November 4, 2013, recommending arthroscopic 

surgery as conservative measures had failed to improve appellant’s symptoms and functioning. 

Dr. Seidman held appellant off work as of November 10, 2013. Appellant received wage-loss 

compensation benefits beginning on November 19, 2013. 

On December 18, 2013 Dr. Seidman performed arthroscopic debridement of the 

subscapularis, arthroscopic subacromial decompression, biceps tenotomy, arthroscopic Mumford 

procedure, and arthroscopic double row rotator cuff repair, as approved by OWCP. Appellant 

remained off work and received compensation on the daily and periodic rolls. She underwent a 

series of stellate ganglion blocks in 2014. Dr. Seidman released appellant to light duty as of 

August 14, 2014. She returned to work on August 18, 2014. 

On August 26, 2014 OWCP obtained a second opinion from Dr. Eric S. Furie, a Boardcertified orthopedic surgeon. He reviewed the medical record and a statement of accepted facts. 

Dr. Furie found active residuals of accepted RSD syndrome, with limited motion of the right 

wrist and hand, as well as right shoulder weakness. He restricted appellant to lifting no more 

than 20 pounds with her right arm and limited reaching above shoulder level with the right upper 

extremity. Dr. Furie noted that appellant would reach maximum medical improvement as of 

December 18, 2014, one year after surgery. 

On January 21, 2015 appellant filed a claim for a schedule award (Form CA-7). In 

support of her claim, she provided a January 12, 2015 report from Dr. Seidman, noting active 

abduction and forward flexion of the right shoulder at 140 degrees, external rotation at 40 

degrees, internal rotation at 30 degrees, and extension at 50 degrees. He found good motion of 

the right wrist, slight atrophy in the right hand, and range of motion of the proximal 

interphalangeal and metacarpophalangeal joints limited to 90 degrees. 

An OWCP medical adviser reviewed Dr. Seidman’s report on February 4, 2015. He 

found that appellant had attained maximum medical improvement as of December 18, 2014, one 

year after arthroscopic right shoulder surgery. Referring to Table 15-34 of the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment 

(hereinafter, A.M.A., Guides),3

 he found, utilizing the range of motion methodology, three 

percent impairment of the right upper extremity due to forward elevation limited to 140 degrees, 

three percent impairment due to shoulder abduction limited to 140 degrees, four percent 

impairment due to internal rotation limited to 30 degrees, and two percent impairment for 

 2

 An October 31, 2013 magnetic resonance imaging (MRI) scan of the right shoulder demonstrated 

acromioclavicular impingement, full thickness anterior supraspinatus tendon tear, full thickness superior 

subscapularis tear, infraspinatus tendinosis, a partial tear and dislocation of the biceps tendon, a superior labrum 

anterior and posterior tear of the glenoid labrum, and subacromial bursitis. 

3

 A.M.A., Guides 475, Table 15-34 (sixth edition) is entitled “Shoulder Range of Motion.” 
3

external rotation limited to 40 degrees. The medical adviser combined these percentages to 

equal 12 percent permanent impairment of the right upper extremity. 

In a March 2, 2015 letter, Dr. Seidman found that appellant had attained maximum 

medical improvement as of January 12, 2015. He opined that appellant had 18 percent 

permanent impairment of the right upper extremity according to unspecified portions of the 

A.M.A., Guides. 

An OWCP medical adviser reviewed Dr. Seidman’s report on April 10, 2015 and 

concurred that appellant had 18 percent permanent impairment of the right upper extremity due 

to limited right shoulder and finger motion. She found that it was appropriate to use the range of 

motion rating method as opposed to a diagnosis-based impairment (DBI) methodology, because 

appellant’s RSD syndrome manifested itself primarily through limited shoulder and hand motion. 

By decision dated May 5, 2015, OWCP granted appellant a schedule award for 18 

percent permanent impairment of the right upper extremity. The period of the award ran from 

January 12, 2015 to February 9, 2016. 

In a May 18, 2015 letter, appellant requested a telephonic oral hearing, held before an 

OWCP hearing representative on December 15, 2015. At the hearing, she described continued 

limited motion in her right hand and shoulder. Appellant’s husband presented information and 

quoted newspaper articles about RSD syndrome. Appellant submitted photographs illustrating 

her limited hand motion, including the inability to make a fist with her right hand. Following the 

hearing, she submitted a January 12, 2015 report from Dr. Seidman, releasing her to full duty, 

and physical therapy notes. 

By decision dated March 2, 2016, OWCP’s hearing representative affirmed OWCP’s 

May 5, 2015 schedule award determination, finding that the additional evidence submitted did 

not establish that appellant sustained greater than 18 percent permanent impairment of the right 

upper extremity. 

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.4

 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.5

 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 

 4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 
4

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.6 

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).7

 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.8

ANALYSIS 

The issue on appeal is whether appellant has established greater than 18 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. 

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 range of 

motion methodology when assessing the extent of permanent impairment for schedule award 

purposes.9

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

ensure equal justice under the law to all claimants.10 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 range of motion 

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 range of motion or DBI methodology. Because OWCP’s 

 6

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

7 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). 

8 Isidoro Rivera, 12 ECAB 348 (1961). 

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

10 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 
5

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.11 

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 March 2, 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 this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the March 2, 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 11, 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 

 11 Supra note 9.