United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.R., Appellant 

and 

U.S. POSTAL SERVICE, SHAKER HEIGHTS 

POST OFFICE, Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 15-0819 

Issued: February 22, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On February 26, 2015 appellant, through counsel, filed a timely appeal from a 

January 29, 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 to review the merits of this case. 

ISSUE 

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

left upper extremity, for which she 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 July 28, 2005 appellant, a 47-year-old mail carrier, sustained an injury in the 

performance of duty when her ankle gave way, causing her to fall. She tried to catch herself with 

her hands and injured her left arm. OWCP accepted appellant’s claim for a left shoulder 

sprain/strain. 

Appellant filed a claim for a schedule award (Form CA-7). Dr. Jessica Glazer Volsky, 

the attending osteopath, evaluated appellant and found that she had six percent permanent 

impairment of the left upper extremity due to loss of shoulder flexion and abduction. She 

explained that she was using the range of motion method of rating permanent impairment as a 

permissible alternative to the diagnosis-based impairment (DBI) method under Table 15-5 of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (hereinafter A.M.A., Guides). Dr. Volsky noted that appellant had a QuickDASH score of 

48 and had to perform functional modification to achieve self-care activities. She also noted 

tenderness to palpation on physical examination. 

An OWCP medical adviser noted that range of motion is used primarily as a physical 

examination adjustment factor under the DBI method and only to determine actual impairment 

values “in the rare case when it is not possible to otherwise define impairment.” He observed 

that appellant’s impairment could be evaluated using the preferred DBI method using the 

diagnosis of tendinitis on page 402. The medical adviser determined that appellant had four 

percent permanent impairment of the left upper extremity based on this method with an upward 

adjustment of the default impairment value for functional history. Further, he noted that 

Dr. Volsky had documented only one motion per joint movement, whereas the A.M.A., Guides

required three separate measurements for each joint movement and a comparison with the 

opposite unaffected extremity. 

Dr. Volsky responded that, while she agreed with an OWCP medical adviser that range of 

motion should be used when no other approach is available, Table 15-3 allowed impairment to 

be alternately assessed using range of motion. As appellant had motion loss on the day of her 

examination, she qualified for an evaluation based on range of motion. Dr. Volsky advised that 

she had taken a course on the sixth edition of the A.M.A., Guides given by one of the book’s 

authors, and she was comfortable with her understanding and interpretation of the A.M.A., 

Guides. 

OWCP expanded its acceptance of appellant’s claim to include impingement syndrome 

of the left wrist. 

An OWCP medical adviser noted that Dr. Volsky had not provided additional 

information supporting the validity of her range of motion measurements. He repeated that the 

DBI method was the preferred method of evaluation and was appropriate for the objective right 

shoulder pathology observed in appellant’s case. 

On April 24, 2014 OWCP issued a schedule award for four percent permanent 

impairment of appellant’s left upper extremity. 
3

Appellant, through counsel, requested a telephonic hearing on May 5, 2014 before an 

OWCP hearing representative, which was held on November 14, 2014. 

In a decision dated January 29, 2015, an OWCP hearing representative affirmed 

appellant’s schedule award. She found no conflict in medical opinion or need for a new 

evaluation. 

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.3 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.4

 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.5

 

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).6 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.7

ANALYSIS 

The issue on appeal is whether appellant has more than four percent impairment of her 

left upper extremity, for which he received schedule awards. 

 3 See 20 C.F.R. §§ 1.1-1.4. 

4

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

§ 8107(c)(1). 

5

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

6

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

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

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

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 range of 

motion methodology when assessing the extent of permanent impairment for schedule award 

purposes.8

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

ensure equal justice under the law to all claimants.9

 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 range of motion 

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 range of motion 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.10 

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 January 29, 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 this case not in posture for decision.

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

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

10 Supra note 8. 
5

ORDER 

IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of 

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

consistent with this decision.11

Issued: February 22, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 11 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.