United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Employer 

__________________________________________ 

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Docket No. 16-1125 

Issued: April 26, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 May 5, 2016 appellant filed a timely appeal from a March 31, 2016 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to 

consider the merits of the case. 

ISSUE 

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

than eight percent permanent impairment of her left upper extremity, for which she previously 

received schedule awards. 

On appeal appellant requested that the Board review the medical evidence and provide a 

decision addressing her claim for additional permanent impairment of her right upper extremity. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case has previously been before the Board. The facts and circumstances of the two 

prior appeals are incorporated herein by reference. 

On January 9, 2007 appellant, then a 52-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2), alleging that she developed shoulder pain due to her 

federal job duties. OWCP denied her claim on March 8, 2007 due to a lack of supporting 

medical evidence. Appellant requested reconsideration and OWCP declined to reopen her claim 

for consideration of the merits on May 3, 2007. She requested review by the Board, and in a 

decision dated March 13, 2008, the Board affirmed OWCP’s decision.2 On September 25, 2007 

OWCP accepted that appellant developed right shoulder strain due to factors of her federal 

employment. 

Appellant filed a claim for a schedule award (Form CA-7). By decision dated July 9, 

2009, OWCP granted her a schedule award for seven percent permanent impairment of her right 

upper extremity. On August 26, 2009 appellant requested reconsideration of this decision. In a 

report dated August 14, 2009, Dr. Donald R. Bassman, a Board-certified orthopedic surgeon, 

opined that appellant had 30 percent permanent impairment of the right upper extremity. OWCP 

denied modification of the July 9, 2009 decision on September 29, 2009. 

Appellant filed a claim for an increased schedule award (Form CA-7) and a claim for 

recurrence of disability (Form CA-2a) on October 16, 2009. OWCP accepted the recurrence on 

January 21, 2010. Appellant began receiving disability retirement benefits on March 1, 2010. 

By decision dated September 30, 2010, OWCP denied appellant’s claim for an additional 

schedule award. Counsel requested an oral hearing from OWCP’s Branch of Hearings and 

Review on October 11, 2010. In a decision dated May 2, 2011, OWCP’s hearing representative 

affirmed the September 30, 2010 decision finding that appellant had no more than seven percent 

permanent impairment of her right upper extremity for which she had received a schedule award. 

Appellant submitted a series of requests for reconsideration resulting in OWCP decisions 

reviewing the merits of her claim and denying modification of the September 30, 2010 decision 

on February 8, June 13, and September 19, 2012, and February 25, 2013. She appealed the 

February 25, 2013 decision to the Board and, on June 10, 2014,3

 the Board found that she had 

not established more than seven percent permanent impairment of her right arm. The facts and 

circumstances of the case as set forth in the Board’s prior decisions are adopted herein by 

reference. 

Following the Board’s June 10, 2014 decision, OWCP developed appellant’s claim for a 

consequential left upper extremity injury. Appellant underwent a left shoulder magnetic 

resonance imaging (MRI) scan and arthrogram on March 5, 2014 which demonstrated a large 

full-thickness tear of the supraspinatus tendon and a possible tear of the infraspinatus tendon. 

 2

 Docket No. 07-2329 (issued March 13, 2008). 

3

 Docket No. 13-1136 (issued June 10, 2014). 
3

Dr. Matthew Bradley, an orthopedic surgeon, examined appellant on April 15, 2014. He 

reviewed her MRI scan and opined that appellant had a chronic tear and recommended surgery. 

OWCP’s medical adviser opined, however, on June 23 and October 8, 2014 that 

appellant’s left shoulder condition was not work related. 

On November 18, 2014 OWCP referred appellant for a second opinion evaluation with 

Dr. Robert Sciortino, a Board-certified orthopedic surgeon. In a report dated December 12, 

2014, Dr. Sciortino reviewed appellant’s history of injury and medical history. He noted that 

appellant initially reported left shoulder pain in 2006, that she had used her left shoulder for all 

overhead work following her right shoulder surgeries, and that appellant’s left shoulder condition 

was a consequence of her right shoulder injury. Dr. Sciortino also noted that appellant had 

neurological damage as a result of her right shoulder surgeries resulting in weakness in her 

deltoid muscle and abnormalities on her EMG. On January 16, 2015 OWCP accepted the claim 

for left rotator cuff sprain/tear. 

In a report dated February 24, 2015, Dr. Bradley evaluated both of appellant’s shoulders 

for permanent impairment, if any. He opined that she had 75 percent permanent impairment of 

her right shoulder and 30 percent permanent impairment of her left shoulder due to full-thickness 

rotator cuff tear resulting in disability and pain. Dr. Bradley found bilateral loss of range of 

motion (ROM), as well as loss of muscle strength, and positive impingement tests on the left. 

Subsequently, OWCP’s medical adviser, using the diagnosis-based impairment (DBI) 

method, determined that appellant had seven percent permanent impairment of her bilateral 

upper extremities based on her full-thickness rotator cuff tear with residual loss. He reported 

pain, limited ROM, and positive impingement signs. The medical adviser found that five percent 

permanent impairment was warranted for a full-thickness rotator cuff tear with residual loss. He 

further noted that grade modifiers for Clinical Studies (GMCS) and Physical Examination 

(GMPE) resulted in an increase from the default value of five to seven percent permanent 

impairment of the left upper extremity. 

In an April 9, 2015 decision, OWCP granted appellant a schedule award for seven 

percent permanent impairment of her left arm. Appellant requested reconsideration on August 7, 

2015 and requested additional schedule awards for both her right and left arms. 

OWCP referred appellant for a second opinion evaluation with Dr. Richard T. Katz, a 

Board-certified physiatrist, on December 11, 2015. Dr. Katz examined appellant on January 7, 

2016 and provided ROM findings for her left shoulder as 180 degrees of flexion, 50 degrees of 

extension, 90 degrees of internal rotation, and 90 degrees of external rotation, 180 degrees of 

abduction and 50 degrees of adduction.4

 Appellant’s right shoulder demonstrated flexion of 80 

degrees, extension of 50 degrees, internal rotation of 90 degrees, external rotation of 60 degrees, 

abduction of 75 degrees and adduction of 50 degrees. Dr. Katz repeatedly noted that he was 

providing appellant’s permanent impairment rating for her right shoulder only. He found that 

she had no neurological weakness and that her lack of active motion in the right shoulder was 

due to pain and illness behaviors. Dr. Katz noted an absence of denervation of the EMG. He 

 4

 Dr. Katz found that appellant’s left shoulder ROM figures were normal. A.M.A., Guides 475, Table 15-34. 
4

found that appellant was entitled to an additional right upper extremity award due to lack of 

ROM. Dr. Katz, using the ROM method, found that loss of flexion was nine percent permanent 

impairment, loss of abduction was six percent permanent impairment, loss of external rotation 

was not a ratable loss, and that appellant had 15 percent permanent impairment of the right arm 

due to loss of ROM. He found that appellant had GMPE of 2 due to loss of motion.5

 Dr. Katz 

also noted that appellant’s QuickDASH score was grade 4 resulting in a functional history grade 

adjustment of 2 and 10 percent increase to total ROM or 16.5 percent rounded up to 17 percent 

of the right upper extremity. 

OWCP’s medical adviser reviewed appellant’s medical records on May 3, 2016. She 

found, using the DBI method, that appellant’s right arm impairment was due to the diagnosed 

condition of right rotator cuff full-thickness tear. OWCP’s medical adviser opined that under the 

A.M.A., Guides, if there is a diagnosis of the condition, then the DBI method should be used. 

Only if there is no diagnosis that fits the condition is it appropriate to utilize the ROM method to 

determine impairment.6

 With regard to appellant’s right upper extremity, the medical adviser 

found that appellant’s rotator cuff injury had a default grade of 5 due to residual loss and normal 

motion.7

 She applied the net adjustment formula of the A.M.A., Guides, grade modifier for 

Functional History (GMFH) - Class of Diagnosis (CDX) (Regional Grid) + (GMPE - CDX) + 

(GMCS - CDX).8 The medical adviser found that appellant had GMFH of 4 based on her 

QuickDASH score, and that her GMPE was 2 based on decreased ROM. She discounted 

appellant’s GMCS as it was used in the diagnosis and GMFH as it differed from the GMPE by 

two grades. Applying the truncated formula, the medical adviser reached right shoulder 

permanent impairment rating of six percent. 

OWCP’s medical adviser applied the shoulder regional grid to appellant’s left upper 

extremity impairments and determined that appellant had a class 1 rotator cuff injury with a 

default of grade 3, due to residual loss, functional with normal motion. She noted that appellant 

had no consistent objective abnormal findings9 and functional normal motion. The medical 

adviser noted that the GMPE was zero based on findings on no instability and normal ROM 

found by Dr. Katz. She determined GMFH was 1 due to pain, that GMCS was inapplicable as it 

was used to reach the diagnosis. Applying the net adjustment formula, the medical adviser 

reached class 1, impairment rating of two percent due to residual loss function with normal 

motion. 

By decision dated March 31, 2016, OWCP granted appellant a schedule award for an 

additional one percent permanent impairment of her left upper extremity. 

 5 Id. at 477, Table 15-35. 

6 Id. at 387. 

7 Id. at 403, Table 15-5. 

8 Id. at 411. 

9 Id. at 403, Table 15-5. 
5

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.10 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.11 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 American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule 

losses.12 

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).13 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.14

ANALYSIS 

The issue on appeal is whether appellant has more than eight percent permanent 

impairment of her left upper extremity, for which she previously received schedule awards. 

The Board finds 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 

 10 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 

12 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

13 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). 

14 Isidoro Rivera, 12 ECAB 348 (1961). 
6

methodology when assessing the extent of permanent impairment for schedule award purposes.15 

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

justice under the law to all claimants.16 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.17 

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 31, 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 is not in posture for decision.

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

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

17 Supra note 15. 
7

ORDER 

IT IS HEREBY ORDERED THAT the March 31, 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 26, 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