United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.O., Appellant 

and 

U.S. POSTAL SERVCIE, POST OFFICE, 

Saint Charles, IL, Employer 

__________________________________________ 

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Docket No. 16-0805 

Issued: February 13, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On March 10, 2016 appellant, through counsel, filed a timely appeal from a February 3, 

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 the case. 

ISSUE 

The issue is whether appellant has more than five percent permanent impairment of the 

left upper extremity. 

 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 August 29, 2011 appellant, then a 44-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date she sprained her left arm in the performance of 

duty. OWCP accepted the claim for a sprain of the shoulder and upper arm at the left rotator 

cuff, other specified disorders of the bursae and tendons of the left shoulder region, and a 

complete left rotator cuff rupture. 

On May 2, 2012 Dr. Arif Saleem, a Board-certified orthopedic surgeon, performed a left 

rotator cuff repair, subacromial decompression, distal clavicle excision, and biceps tendon 

tenotomy. On December 10, 2012 he performed a capsular release of the left shoulder to treat 

adhesive capsulitis. Appellant was returned to work in a modified letter carrier position.3

Dr. Saleem on October 18, 2013 noted that appellant had undergone a left shoulder 

rotator cuff repair on May 2, 2012 and a capsular release on December 10, 2012. He opined that 

she had reached maximum medical improvement (MMI) on April 3, 2013 and released her from 

care. 

On December 6, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In an impairment evaluation dated December 30, 2013, Dr. Neil Allen, a Board-certified 

internist and neurologist, discussed appellant’s complaints of pain and loss of motion in her left 

shoulder. He found that she had reached MMI. On examination Dr. Allen measured muscle 

strength of 4/5 of the left internal rotators. Referencing Table 15-34 on page 475 of the sixth 

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

Impairment (A.M.A., Guides), he utilized the range of motion (ROM) methodology to find left 

shoulder impairment. Dr. Allen found that 125 degrees flexion equaled three percent 

impairment, 30 degrees extension equaled one percent impairment, 80 degrees abduction equaled 

six percent impairment, 30 degrees internal rotation equaled four percent impairment, and 45 

degrees adduction and 80 degrees external rotation equaled no impairment. He combined the 

impairments in loss of shoulder motion to find 14 percent permanent impairment of the left 

upper extremity. Dr. Allen applied a grade modifier of 2 for loss of motion and a grade modifier 

of 3 for functional history to find a total left upper extremity permanent impairment of 15 

percent. He noted that the A.M.A., Guides allowed the use of the ROM method as an alternative 

calculation for a rotator cuff tear and advised that for appellant it “reflected a more accurate 

impairment than the DBI [diagnosis-based impairment] method.” 

Dr. Saleem evaluated appellant on March 26, 2014 for left arm, neck, hand, and shoulder 

blade numbness and tingling. He diagnosed cervical radiculitis and a history of prior shoulder 

surgeries. Dr. Saleem related, “In terms of [appellant’s] shoulder, rating her recovery, I think I 

can[not] really do that until her neck is resolved.” 

On July 3, 2014 Dr. Saleem recommended a cervical magnetic resonance imaging (MRI) 

scan. He measured ROM for the left shoulder as 170 degrees forward elevation, 100 degrees 

 3

 By decision dated October 17, 2013, OWCP reduced appellant’s wage-loss compensation to zero based on its 

finding that her actual earnings as a modified city carrier effective July 13, 2013 fairly and reasonably represented 

her wage-earning capacity. 
3

abduction, and 40 degrees external rotation. Dr. Saleem found radiculopathy through the left 

arm and diagnosed cervical radiculitis. 

The MRI scan study of the cervical spine, obtained on July 30, 2014, revealed a small 

disc herniation at C4-5 without stenosis and a disc protrusion at C5-6 with mild foraminal 

stenosis on the right, both more prominent than on a prior study, and a small central protrusion at 

C3-4. 

An OWCP medical adviser reviewed the record on September 15, 2014 and found that 

the ROM findings obtained by Dr. Saleem on July 3, 2014 exceeded those obtained by Dr. Allen. 

Using Table 15-5 on page 403 of the A.M.A., Guides, he identified the diagnosis as a rotator cuff 

tear with residual loss which yielded a default value of five percent under the DBI method of 

calculating permanent impairment. The medical adviser indicated that applying grade modifiers 

would not alter the award. He found that appellant reached MMI on April 3, 2013 “when the 

treatment for the shoulder was concluded and attention was shifted to the neck as the pain 

generator.” 

By decision dated April 1, 2015, OWCP granted appellant a schedule award for five 

percent permanent impairment of the left upper extremity. The period of the award ran for 15.6 

weeks from August 10 to November 27, 2013. 

On April 9, 2015 appellant, through counsel, requested a telephone hearing. 

On October 28, 2015 Dr. Eugene P. Lopez, a Board-certified orthopedic surgeon, 

requested that OWCP expand acceptance of appellant’s claim to include a cervical disc 

herniation with radiculopathy. 

At the telephone hearing, held on November 19, 2015, counsel contended that OWCP’s 

medical adviser should have found seven percent impairment under the A.M.A., Guides given 

his use of the DBI method. He also contended that OWCP medical adviser should have 

determined whether Dr. Allen properly provided an impairment rating rather using his own 

findings. 

By decision dated February 3, 2016, the hearing representative affirmed the April 1, 2015 

decision. 

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.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 

 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

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 American 

Medical Association, Guides to the Evaluation of Permanent Impairment 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.” 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 more than five percent permanent 

impairment of the left upper extremity. 

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.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 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 

 6

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

7

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); 

Federal (FECA) Procedure Manual,. 

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

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 February 3, 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 February 3, 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: February 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 11 Supra note 9.