United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

A.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cincinnati, OH, Employer 

__________________________________________ 

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Docket No. 15-0621 

Issued: March 29, 2017 

Appearances: Case Submitted on the Record

Kevin Card, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 26, 2015 appellant, through her representative, filed a timely appeal from a 

July 30, 2014 merit decision of the Office of Workers’ Compensation Programs. 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.3

 

 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. 

3

 Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules 

of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated February 9, 2016, the Board 

denied appellant’s request for oral argument as the issue on appeal could be fully addressed on the record. Order 

Denying Request for Oral Argument, Docket No. 15-061 (issued February 9, 2016). 
2

ISSUE 

The issue is whether appellant has more than a four percent permanent impairment of her 

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

FACTUAL HISTORY 

On October 7, 2011 appellant, then a 48-year-old letter carrier, alleged that she sustained 

a left shoulder injury as a result of lifting mail while performing a delivery on October 3, 2011. 

By decision dated January 27, 2012, OWCP accepted the claim for adhesive capsulitis of the 

shoulder. Appellant sought treatment with Dr. Joel Sorger, a Board-certified orthopedic surgeon, 

and underwent a left shoulder arthroscopic subacromial decompression and an acromioclavicular 

(AC) joint resection/decompression on April 16, 2012. Dr. Sorger released appellant to return to 

work with restrictions on July 16, 2012 and she returned to work the following day. 

On October 23, 2012 appellant filed a claim for a schedule award (Form CA-7). 

In a report dated December 8, 2012, Dr. Martin Fritzhand, Board-certified in urology, 

noted that forward flexion of appellant’s left shoulder was diminished to 110 degrees, with 

extension diminished to 10 degrees. He further observed that abduction of her left shoulder was 

diminished to 95 degrees with adduction diminished to 20 degrees, and that internal rotation was 

diminished to 60 degrees with external rotation also diminished to 60 degrees. Citing the sixth 

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

Impairment (A.M.A., Guides), Dr. Fritzhand stated, “Maximum medical improvement [MMI] 

was met by November 2012. I used Table 15-5 impingement syndrome to assess impairment. 

However, if motion loss is present, this impairment may alternatively be assessed using Section 

15-7, Range of Motion Impairment.” He noted that range of motion (ROM) impairment stands 

alone and is not combined with diagnosis-based impairment (DBI). He reported that he had used 

Table 15-34 to assess impairment, with a QuickDASH score of 41.... Dr. Fritzhand provided an 

opinion that appellant has sustained a permanent partial impairment to the left upper extremity of 

11 percent. 

In an undated report received on January 4, 2013, Dr. Sorger released appellant to work 

with no restrictions. 

By letter dated April 1, 2013, OWCP requested that Dr. Fritzhand explain why he used 

the ROM method of calculating appellant’s permanent impairment and address her specific 

diagnosis. The letter noted that DBI is the preferred method of calculating permanent partial 

impairment under the A.M.A., Guides. OWCP also attached a statement of accepted facts to its 

letter for Dr. Fritzhand to review. 

 
3

On April 8, 2013 Dr. Fritzhand responded to OWCP’s April 1, 2013 letter. He noted that 

his specific diagnosis used for appellant’s impairment rating was adhesive capsulitis of the left 

shoulder. Dr. Fritzhand explained his use of the ROM methodology to calculate appellant’s 

permanent impairment rating: 

“All shoulder grids [...] allow ‘if motion loss is present this impairment may 

alternatively be assessed using Section 15.7, Range of Motion Impairment....’ 

Section 15.7 specifically notes ‘some of the [DBI] grids refer to the [ROM] 

section when that is the most appropriate mechanism for grading the impairment 

... other conditions not addressed in the regional grids, but having significant 

functional loss.’ The depressed [ROM] secondary to [appellant’s] allowed 

condition is more accurately reflected by the [ROM] rating rather than by the 

[DBI] rating. The A.M.A., Guides certainly allow an examiner to use the [ROM] 

rating system as a way to reflect an accurate impairment rating in the face of 

substantial [ROM] loss. I should add that the [ROM] impairment rating is the 

preferred method of evaluation in this specific case.” 

OWCP routed the case file and reports of Dr. Fritzhand to a district medical adviser 

(DMA) on June 11, 2013. On the same date the DMA rendered a report, finding that appellant’s 

final left upper extremity impairment was four percent. He noted that appellant’s most impairing 

diagnosis was tendinitis in the left shoulder region. The DMA explained: 

“On 11/23/2011 [appellant] underwent a left shoulder MRI [magnetic resonance 

imaging] scan [that] demonstrated mild capsulitis with effusion, moderate 

tendinopathy of the supraspinatus with no tear, moderate tendinopathy at the 

distal arcuate segment of the biceps long head tendon, no macrotear and Mild AC 

arthropathy. Based upon the most applicable diagnosis found in the [A.M.A., 

Guides], shoulder grid (Table 15-5) is tendinitis. This produced the mild-tomoderate tendinopathy observed on the left shoulder MRI scan. Therefore, the 

most impairing diagnosis in the LEFT shoulder is tendinitis and this will be used 

for final impairment calculations.” 

The DMA noted that Dr. Fritzhand had only documented one motion per joint movement in 

order to measure ROM, which rendered his ROM measurements invalid according to section 

15.7, page 464 of the A.M.A., Guides. He also noted that the final net adjustment was 1, with a 

grade of D, and a date of MMI of April 8, 2013. The DMA explained that Dr. Fritzhand’s date 

of MMI was incorrect, as the date of MMI is the date of the attending physician’s evaluation 

without evidence to the contrary. He advised: 

“[L]oss of motion may be used as an alternative to the DBI ratings only when 

there are no DBI ratings available and when the DBI is available, the ROM 

measurements may be used as an adjustment factor for physical exam[ination].” 

The DMA noted that the A.M.A., Guides “[s]ection 15.2, page 387 indicates, 

‘[ROM] is used primarily as a physical examination adjustment factor and only to 

determine actual impairment values in the rare case when it is not possible to 

otherwise define impairment; this is a significant change from prior editions. ... 
4

Page 481 #12 indicates Only if no other approach is available to rating, calculate 

impairment based on [ROM], as explained in [s]ection 15.7.” 

The DMA noted that the diagnosis class for appellant was 1, her functional history adjustment 

was 2, her physical examination adjustment was 1, and her clinical studies adjustment was not 

applicable. 

By decision dated February 3, 2014, OWCP granted appellant four percent permanent 

impairment of the left upper extremity. The date of MMI was determined to be April 8, 2013. 

The award covered a period of 12.48 weeks from April 8, 2013 through July 4, 2013. 

On May 16, 2014 appellant, through a union representative, requested reconsideration of 

OWCP’s February 3, 2014 schedule award decision. In the letter accompanying her request for 

reconsideration, the representative argued that Dr. Fritzhand’s original permanent impairment 

rating of 11 percent should be used as the basis for appellant’s schedule award. 

By decision dated July 30, 2014, OWCP evaluated the merits of appellant’s case and 

affirmed its prior decision of February 3, 2014. It found that the weight of the medical evidence 

remained with the DMA, as Dr. Fritzhand had used the “less-preferred” ROM method and that 

his ROM measurements were invalid in any event, as he did not follow proper procedures for 

measuring ROM according to the A.M.A., Guides. 

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 

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into 

the second printing of the sixth edition. 

 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

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 sustained more than a four percent permanent 

impairment of the upper left extremity for which she 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 June 30, 2014 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. 

 7 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a 

(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

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of 

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

consistent with this decision. 

Issued: March 29, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board