United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Hartford, CT, Employer

__________________________________________

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Docket No. 17-1370

Issued: October 23, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

JURISDICTION

On June 5, 2017 appellant filed a timely appeal from a January 24, 2017 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 over 

the merits of this case.

ISSUE

The issue is whether appellant has more than seven percent permanent impairment of the 

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

FACTUAL HISTORY

On March 24, 2014 appellant, then a 51-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on March 13, 2014 he injured his left shoulder unloading 

trucks. He did not stop work. OWCP initially accepted the claim for left shoulder strain.

 

1

5 U.S.C. § 8101 et seq.
2

In a May 7, 2014 report, Dr. James Mazo, a Board-certified physiatrist, indicated that a

magnetic resonance imaging scan showed a full-thickness left rotator cuff tear. OWCP accepted 

the claim for a partial tear of the left rotator cuff and left rotator cuff sprain.2 Appellant 

underwent left shoulder arthroscopic surgery on July 10, 2014. He received wage-loss 

compensation on the supplemental rolls from June 12 to August 23, 2014, and on the periodic 

rolls from August 24 to October 18, 2014. Appellant returned to full-time, light-duty work on 

November 3, 2014, and received intermittent compensation on the supplemental rolls from 

October 19, 2014 until December 20, 2015. 

Appellant submitted a July 21, 2015 report from Dr. John Mara, a Board-certified 

orthopedic surgeon, who reported results on examination and indicated that appellant had 

reached maximum medical improvement. Dr. Mara reported full range of motion (ROM) of the 

left shoulder, noting it was difficult to use the right shoulder as a control because appellant had 

right shoulder arthritis that limited his ROM.

3

 He opined that appellant had 12 percent left upper 

extremity permanent impairment. In a note dated January 7, 2016, Dr. Mara indicated that the 12 

percent permanent impairment rating was based on the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4

OWCP referred appellant and medical records for a second opinion examination by

Dr. Balazs Somogyi, a Board-certified orthopedic surgeon. In a report dated May 7, 2016,

Dr. Somogyi provided a history and results on examination. Utilizing the ROM method, he 

evaluated impairment. Dr. Somogyi found for the left shoulder: 90 degrees flexion, 32 degrees 

extension, 80 degrees abduction, 15 degrees adduction, 52 degrees internal rotation and 54 

degrees external rotation. He opined that appellant had 15 percent left upper extremity 

permanent impairment under the A.M.A., Guides.

The case was referred to an OWCP medical adviser, Dr. David Garelick, a Boardcertified orthopedic surgeon. In a report dated May 25, 2016, Dr. Garelick opined that 

appellant’s permanent impairment should be determined using a diagnosis-based impairment 

(DBI) method, instead of a ROM method. He opined that appellant had seven percent left upper 

extremity permanent impairment, based on a diagnosis of full-thickness rotator cuff tear. 

By letter dated June 2, 2016, OWCP requested that Dr. Somogyi review the report from

Dr. Garelick and provide a supplemental report. In a report dated July 29, 2016, Dr. Somogyi 

indicated that he disagreed with Dr. Garelick. He opined that the ROM method was more 

appropriate in this case, and his opinion remained that appellant had 15 percent left upper 

extremity permanent impairment.

The case was again referred to Dr. Garelick for an opinion as to permanent impairment. 

In a report dated July 21, 2016, Dr. Garelick reiterated his opinion that the DBI method should 

 

2 While the acceptance letter noted a partial tear had been accepted, this was an error. Appellant’s claim is 

accepted for a complete tear of the rotator cuff tendon.

3 Dr. Mara did not provide specific ROM results for the left shoulder. 

4

6

th ed. 2009.
3

be used, and the permanent impairment rating for appellant’s left upper extremity was seven 

percent.

OWCP then requested that an OWCP medical adviser review the reports from the 

attending physician, Dr. Mara. In a report dated January 4, 2017, an OWCP medical adviser,

Dr. Michael Katz, a Board-certified orthopedic surgeon, opined that the evidence from Dr. Mara 

was of little probative value as he had not explained how the permanent impairment was 

calculated. 

By decision dated January 24, 2017, OWCP issued a schedule award for seven percent 

left upper extremity permanent impairment. The period of the award was 21.84 weeks from 

July 21, 2015.

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.

5

 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.6 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.7 

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).8 The Board has approved the use by OWCP of the A.M.A., 

 

5

See 20 C.F.R. §§ 1.1-1.4.

6

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

§ 8107(c)(1).

7

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

8

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). 
4

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.9

ANALYSIS

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

The second opinion physician, Dr. Somogyi, found that appellant’s left upper extremity 

permanent impairment should be determined using the ROM method. An OWCP medical 

adviser, Dr. Garelick, determined that the DBI method was appropriate.

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 had been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.10 

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

justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians 

were 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 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 found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.12

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the January 24, 2017 OWCP decision. 

Utilizing a consistent method for calculating permanent impairment for upper extremities applied 

uniformly, and after 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.13

CONCLUSION

The Board finds the case is not in posture for decision with respect to appellant’s left 

upper extremity permanent impairment. 

 

9

Isidoro Rivera, 12 ECAB 348 (1961).

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

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

12 Supra note 10.

13 See FECA Bulletin No. 17-06 (issued May 8, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated January 24, 2017 is set aside and the case is remanded for further 

action consistent with this decision of the Board. 

Issued: October 23, 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