United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.M., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Southeastern, PA, 

Employer 

__________________________________________ 

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Docket No. 15-1304 

Issued: March 22, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 22, 2015 appellant, through counsel, filed a timely appeal from a March 17, 

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 her burden of proof to establish that she has greater 

than four percent permanent impairment of the left upper extremity, for which she previously 

received a scheduled award. 

FACTUAL HISTORY 

On February 13, 2012 appellant, then a 45-year-old data collection technician, was 

involved in an employment-related motor vehicle accident.3 She filed a traumatic injury claim 

(Form CA-1). OWCP accepted appellant’s traumatic injury claim for left shoulder 

acromioclavicular sprain, left rotator cuff sprain, left shoulder adhesive capsulitis, neck sprain, 

and lumbosacral sprain. On November 29, 2012 appellant underwent OWCP-approved left 

shoulder surgery.4

 She received wage-loss compensation for temporary total disability through 

April 3, 2013, at which point appellant returned to work in a full-time, light limited-duty 

capacity. 

On September 9, 2014 appellant filed a claim for a schedule award (Form CA-7). In 

support of her claim, she submitted a June 3, 2014 impairment rating from Dr. Nicholas P. 

Diamond, a pain management specialist. Dr. Diamond found six percent left upper extremity 

permanent impairment due to loss of shoulder range of motion (ROM) under the sixth edition of 

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

Guides).5

OWCP’s district medical adviser (DMA), Dr. Morley Slutsky, Board-certified in 

occupational medicine, reviewed the claim on September 12, 2014, and found only four 

(4) percent left upper extremity impairment under the A.M.A., Guides (6th ed. 2008). The DMA 

took issue with Dr. Diamond’s left shoulder ROM impairment, and instead relied on the 

“preferred” diagnosis-based impairment (DBI) methodology.6 His four percent left upper 

extremity impairment rating was based on residuals of a partial thickness rotator cuff tear under 

Table 15-5, Shoulder Regional Grid, A.M.A., Guides 402 (6th ed. 2008).7

By decision dated October 20, 2014, OWCP granted appellant a schedule award for four 

percent permanent impairment of the left upper extremity. The award covered a period of 12.48 

weeks, from July 19 through October 14, 2013. OWCP based the award on the DMA’s 

 3

 A deer struck the passenger side of the postal service vehicle appellant was operating. 

4

 Dr. John A. Pasquella, an orthopedic surgeon, performed an arthroscopic subacromial decompression, 

acromioplasty, and synovectomy. 

5

 Table 15-34, A.M.A., Guides 475 (6th ed. 2009). 

6

 The DMA also questioned the reliability of Dr. Diamond’s June 3, 2014 measurements, and relied instead on 

measurements obtained during an April 26, 2013 OWCP-directed second opinion examination. 

7

 At page 3 of his September 12, 2014 report, Dr. Slutsky quoted language from section 15.2, page 387 regarding 

ROM usage. However, the quoted passage is not entirely consistent with the language contained in the latest 

version of the A.M.A., Guides (6th ed., 2nd prtg. 2009). 
3

September 12, 2014 impairment rating, noting that he determined that appellant’s physician had 

“incorrectly applied the [A.M.A., Guides]....” 

On December 17, 2014 counsel requested reconsideration. He argued that there was an 

unresolved conflict in medical opinion between Dr. Diamond and the DMA, thereby warranting 

referral of the case to an impartial medical examiner. 

 By decision dated March 17, 2015, OWCP denied modification of its prior schedule 

award 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 OWCP.8

 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.9

 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.10 

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).11 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.12

 8 See 20 C.F.R. §§ 1.1-1.4. 

9

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

§ 8107(c)(1). 

10 20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001). 

11 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). 

12 Isidoro Rivera, 12 ECAB 348 (1961). 
4

ANALYSIS 

The issue on appeal is whether appellant has met her burden of proof to establish that she 

has greater than four percent permanent impairment of the left 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 ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.13 

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

justice under the law to all claimants.14 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.15 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.16 

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 17, 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 that the case is not in posture for decision. 

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

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

15 See supra note 7. 

16 Supra note 13. 
5

ORDER 

IT IS HEREBY ORDERED THAT the March 17, 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: March 22, 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