United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.Y., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Youngstown, OH, Employer 

__________________________________________ 

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Docket No. 16-1879 

Issued: March 27, 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 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 22, 2016 appellant, through counsel, filed a timely appeal from an 

August 1, 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 more than one percent permanent impairment of each 

upper extremity for which he 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 May 23, 2013 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on that date he experienced bilateral shoulder pain after lifting a package. 

OWCP accepted the claim for bilateral shoulder sprains and bilateral shoulder impingement and 

paid compensation for disability beginning July 27, 2013. Appellant returned to his usual 

employment on January 13, 2014. 

On December 22, 2014 appellant filed a claim for a schedule award (Form CA-7). By 

letter dated January 12, 2015, OWCP requested that he submit an impairment evaluation from 

his attending physician in accordance with the sixth edition of the American Medical 

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

In an impairment evaluation dated March 4, 2015, Dr. Catherine Watkins-Campbell, 

Board-certified in family practice, discussed appellant’s history of an injury to his shoulders at 

work on May 23, 2013. She diagnosed a shoulder and upper arm sprain and affections of the 

shoulder region, not otherwise classified. Dr. Watkins-Campbell measured range of motion 

(ROM) for the shoulders bilaterally three times. For the right shoulder, she measured 155, 160, 

and 155 degrees flexion, 66, 67, and 68 degrees extension, 60, 65, and 67 degrees internal 

rotation, 84, 78, and 80 degrees external rotation, 150, 145, and 140 degrees abduction, and 37, 

36, and 36 degrees adduction. For the left shoulder, Dr. Watkins-Campbell measured 150, 150, 

and 157 degrees flexion, 78, 72, and 74 degrees extension, 60, 62, and 68 degrees internal 

rotation, 70, 76, and 76 degrees external rotation, 145, 140, and 140 degrees abduction, and 25, 

28, and 30 degrees adduction. On examination of the shoulders, she found normal sensation, no 

tenderness, negative signs of impingement, no instability, a negative Yergason’s test, and normal 

reflexes. Dr. Watkins-Campbell identified the ratable diagnosis as class 1 impingement 

syndrome using Table 15-5 on page 402 of the A.M.A., Guides. She found that the ROM 

methodology should be used to rate appellant’s impairment instead of the diagnosis-based 

impairment (DBI) method. 

Dr. Watkins-Campbell averaged the ROM measurements and found that, for the right 

shoulder, 157 degrees flexion yielded 3 percent impairment, 66 degrees extension, 36 degrees 

adduction, and 81 degrees external rotation yielded no impairment, 145 degrees abduction 

yielded 3 percent impairment, and 64 degrees internal rotation yielded 2 percent impairment, for 

a total permanent impairment due to reduced right upper extremity motion of 8 percent. She 

averaged ROM measurements for the left shoulder and found 152 degrees of flexion yielded 3 

percent impairment, 75 degrees extension and 74 degrees external rotation yielded no 

impairment, 142 degrees abduction yielded 3 percent impairment, 28 degrees adduction yielded 

1 percent impairment, and 63 degrees internal rotation yielded 2 percent impairment, for a total 

left upper extremity permanent impairment due to motion loss of 9 percent. Dr. WatkinsCampbell advised that appellant had a QuickDASH (Disabilities of the Arm, Shoulder, and 

Hand) score of 14, which yielded a grade modifier of zero for functional history. She applied a 

grade modifier of one for physical examination for mild motion loss of the shoulders. 

Dr. Watkins-Campbell concluded that appellant had eight percent permanent impairment of the 

right upper extremity and nine percent permanent impairment of the left upper extremity. 
3

Dr. Morley Slutsky, a physician Board-certified in occupational medicine and an OWCP 

medical adviser, reviewed the evidence on May 17, 2015. He noted that appellant had no current 

symptoms of impingement syndrome. Dr. Slutsky advised that Dr. Watkins-Campbell did not 

use the DBI impairment rating methodology, the preferred method under the A.M.A., Guides. 

He also noted that she averaged the ROM measurements to determine the impairment rather than 

using the maximum observed measurements as required by the A.M.A., Guides. Dr. Slutsky 

identified the diagnosis as a class 1 shoulder strain under Table 15-5 on page 401 of the A.M.A., 

Guides. He applied a grade modifier of zero for functional history as appellant could perform 

self-care activities, a grade modifier of zero for clinical studies, and a grade modifier of one for 

physical examination for some motion loss. Utilizing the net adjustment formula, Dr. Slutsky 

found a net adjustment of negative one and one percent permanent impairment of each upper 

extremity. 

OWCP, in a letter dated June 3, 2015, requested that Dr. Watkins-Campbell review the 

opinion of Dr. Slutsky and opine whether she concurred or disagreed with his permanent 

impairment rating. It advised that the ROM methodology should only be used if there was no 

other way to rate the impairment. 

Dr. Watkins-Campbell, in an addendum dated June 11, 2015, indicated that she used the 

diagnosis of other affections of the shoulder not otherwise classified in rating appellant’s 

permanent impairment. She related: 

“In this case, the other affections of the shoulder as noted in the medical records 

reviewed involved bilateral impingement from hypertrophy of the subacromial 

bursa and tendinosis. The injections administered significantly resolved the 

symptoms but not completely. With impingement that has not been treated with 

surgery, the symptoms are likely to reoccur again at some point. [Appellant’s] 

QuickDASH score was low at 14. Functionally, as long as he is not raising his 

arm repeatedly which would aggravate impingement or perpetuate impingement 

symptoms, he functions without a lot of problems.” 

Dr. Watkins-Campbell disagreed with OWCP’s medical adviser’s finding that appellant’s 

sprain was his “most impairing diagnosis.” She noted that the A.M.A., Guides allowed use of 

ROM methodology and advised that he did not “fit well into the classes assigned for 

impingement syndrome.” 

On July 3, 2015 Dr. Slutsky again opined that appellant had one percent permanent 

impairment of each upper extremity. He explained that his rating differed from that of 

Dr. Watkins-Campbell as he used the DBI impairment rating methodology. Dr. Slutsky noted 

that appellant had no impingement syndrome symptoms at the time of Dr. Watkins-Campbell’s 

evaluation. Dr. Slutsky reiterated that Dr. Watkins-Campbell’s ROM measurements were not 

valid as she used the average measurements rather than the maximum value obtained. He 

asserted that the A.M.A., Guides indicated that ROM was used primarily as an adjustment factor 

and should only be used as a stand-alone rating method there was no other method available. 

Dr. Slutsky again identified the diagnosis as a bilateral strain and, after applying the same grade 

modifiers, found one percent permanent impairment of each arm. 
4

By decision dated September 17, 2015, OWCP granted appellant a schedule award for 

one percent permanent impairment of each upper extremity.3 The period of the award ran for 

6.24 weeks from January 15 to February 27, 2015. 

Counsel on September 25, 2015 requested a telephone hearing. At the telephone hearing 

held on May 17, 2016 he maintained that OWCP sent schedule awards to Dr. Slutsky, an out of 

district physician, because he always found a lower percentage of permanent impairment. 

Counsel asserted that Dr. Watkins-Campbell rebutted OWCP’s medical adviser’s opinion and 

questioned why the medical adviser who created the dispute resolved it in his favor. He 

maintained that a conflict existed between Dr. Watkins-Campbell and the medical adviser. 

In a decision dated August 1, 2016, OWCP’s hearing representative affirmed the 

September 17, 2015 decision. She found that the opinion of the medical adviser was reasoned 

and consistent with the A.M.A., Guides. The hearing representative further noted that 

Dr. Watkins-Campbell found no objective evidence of impingement syndrome and failed to 

explain how appellant’s current symptoms differed from symptoms of a strain. 

On appeal counsel contends that Dr. Slutsky is not an impartial physician. 

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 

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 

 3

 OWCP determined that a conflict existed between Dr. Watkins-Campbell and the medical adviser regarding the 

extent of appellant’s permanent impairment of the upper extremities. It referred him for an impartial medical 

examination. On August 27, 2015 OWCP advised appellant that it had cancelled his appointment with the referral 

physician. 

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). 

6

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
5

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 one percent permanent 

impairment of each 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.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 

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 August 1, 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 

 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). 

11 Supra note 9. 
6

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 August 1, 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: March 27, 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