United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.V., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Edison, NJ, Employer 

__________________________________________ 

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Docket No. 17-0129 

Issued: April 25, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On October 27, 2016 appellant, through counsel, filed a timely appeal from a June 30, 

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 12 percent permanent impairment of the 

right 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 November 24, 2008 appellant, then a 57-year-old mail handler, filed a traumatic 

injury claim (Form CA-1) alleging that, on the same, date he tripped over a manual pallet jack 

and fell on his right shoulder. OWCP accepted appellant’s claim for closed dislocation of the 

right shoulder. It authorized arthroscopic surgery which was performed on June 29, 2009. 

Appellant stopped work on November 2, 2008 and voluntarily retired on September 30, 2013. 

Appellant came under the treatment of Dr. Clifford Botwin, an osteopath, from 

December 1, 2008 to June 29, 2009, for a work-related right shoulder injury. Dr. Botwin 

diagnosed dislocated right shoulder, reduced. A March 15, 2009 magnetic resonance imaging 

(MRI) scan of the right shoulder revealed supraspinatus and infraspinatus tear, retraction of the 

supraspinatus tendon, atrophic changes of the supraspinatus muscle, infiltration of the 

infraspinatus muscle in association with atrophic changes, and an almost complete tear of the 

subscapularis tendinosis. On June 29, 2009 Dr. Botwin performed an authorized arthroscopic 

arthrotomy of the right shoulder with bursoscopy, bursectomy, acromioplasty, partial resection of 

distal clavicle with coplaning technique, and a partial debridement of the extensive torn rotator 

cuff. He diagnosed impingement syndrome of the right shoulder due to severe bursitis and 

prominent distal right clavicle and extensive irreparable tear of the right rotator cuff. Appellant 

underwent physical therapy from August 26 to October 28, 2009. 

On May 15, 2015 appellant filed a claim for a schedule award (Form CA-7). He 

submitted a June 18, 2014 report from Dr. Nicholas Diamond, an osteopath, who noted a history 

of appellant’s work condition and subsequent surgery. Dr. Diamond diagnosed post-traumatic 

right shoulder strain and sprain, right shoulder impingement syndrome, extensive rotator cuff 

tear, status post right shoulder arthroscopy with arthroscopic bursoscopy, bursectomy, 

acromioplasty, partial resection of distal clavicle with coplaning technique, partial debridement 

of the extensive torn rotator cuff, history of chronic cervical degenerative joint disease, and 

derivative left shoulder strain and sprain. Right shoulder examination revealed arthroscopic 

portal scars, acromioclavicular tenderness, anterior and posterior cuff tenderness, and positive 

Hawkin’s impingement sign. Range of motion (ROM) of the right shoulder revealed forward 

elevation of 40 degrees with pain, abduction of 30 degrees with pain, cross-over adduction of 40 

degrees with pain, external rotation of 90 degrees, and internal rotation of 60 degrees. 

Dr. Diamond noted the work-related injury of November 24, 2008 was the competent producing 

factor for the claimant’s subjective and objective findings. He calculated appellant’s impairment 

rating pursuant to the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment, (A.M.A., Guides).3 Utilizing the ROM method for rating 

permanent impairment in Table 15-34 of the A.M.A., Guides, flexion measured 40 degrees for 9 

percent impairment, abduction measured 30 degrees for 6 percent impairment, and internal 

rotation measured 60 degrees for 2 percent impairment. Dr. Diamond opined that appellant 

sustained 18 percent permanent impairment of the right arm. He also noted left shoulder ranges 

of motion and found six percent permanent impairment of the left arm. Dr. Diamond noted that 

appellant reached maximum medical improvement (MMI) on June 18, 2014. 

 3

 A.M.A., Guides (6th ed. 2009). 
3

In a November 25, 2015 report, OWCP’s medical adviser reviewed the medical record 

and noted that appellant’s accepted conditions were closed dislocation of the right shoulder and 

sprain of the right shoulder. He reviewed the report of Dr. Diamond dated June 18, 2014 and 

noted appellant’s June 29, 2009 surgery. The medical adviser noted that Dr. Diamond had 

mistakenly calculated 18 percent total impairment for the right upper extremity when it should 

have been 17 percent impairment using the ROM method. He noted that Dr. Diamond 

documented ROM deficits in the contralateral left shoulder of six percent pursuant to Table 15-

34 of the A.M.A., Guides. The medical adviser indicated that pursuant to the A.M.A., Guides, 

page 461, “If the opposite extremity is neither involved nor previously injured, it must be used to 

define normal for that individual; any losses should be made in comparison to the opposite 

normal extremity.” He noted that a review of the records provided no prior history of left 

shoulder injury. The medical adviser indicated that if the stand alone ROM method is utilized 

for determining impairment the 6 percent impairment for the left shoulder should be subtracted 

from the 17 percent impairment of the right shoulder, which yielded 11 percent right arm 

permanent impairment. He noted an alternative method for rating impairment, a diagnosis-based 

impairment (DBI), pursuant to Table 15-5 of the A.M.A., Guides for clavicle excision did not 

require normal motion. The medical adviser referenced the Shoulder Regional Grid, Table 15-5, 

p. 403, A/C joint injury or disease, status post distal clavicle resection was class 1, default value 

of 10 percent impairment. He noted a grade modifier for functional history of 2, a grade 

modifier for physical examination of 2, and a grade modifier for clinical studies of 2. Using the 

net adjustment formula, the medical adviser calculated a net adjustment of +2 which resulted in 

class 1 with an adjustment +2 from the default value C to E for 12 percent permanent impairment 

of the right upper extremity. He determined the date of MMI was June 18, 2014. 

In a decision dated January 11, 2016, OWCP granted appellant a schedule award for 12 

percent impairment of the right arm. The period of the award was from June 18, 2014 to 

March 7, 2015. 

On January 18, 2016 appellant requested an oral hearing which was held on 

April 11, 2016. He submitted a corrected report from Dr. Diamond dated April 27, 2016 in 

which he noted flexion of 40 degrees was nine percent impairment, abduction of 30 degrees was 

six percent impairment, and internal rotation of 60 degrees was two percent impairment. 

Dr. Diamond opined that appellant had 17 percent permanent impairment of the right arm after a 

net adjustment of zero. He disagreed with OWCP’s medical adviser and noted that it was not 

appropriate to deduct the left shoulder impairment rating from the right shoulder rating according 

to the A.M.A., Guides as the right shoulder impairment was rated separately. 

In a decision dated June 30, 2016, an OWCP hearing representative affirmed OWCP’s 

January 11, 2016 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.4

 Section 8107 

 4 See 20 C.F.R. §§ 1.1-1.4. 
4

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. 

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 12 percent permanent impairment 

of the right 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 

 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). 

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

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 methodologies. 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, 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.

 11 Supra note 9. 
6

ORDER 

IT IS HEREBY ORDERED THAT the June 30, 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 25, 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