United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.O., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Palatine, IL, Employer

__________________________________________

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Docket No. 17-0207

Issued: July 2, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 8, 2016 appellant, through counsel, filed a timely appeal from a

September 7, 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.

 

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 his burden of proof to establish permanent impairment 

of his right upper extremity, warranting a schedule award.

FACTUAL HISTORY

OWCP accepted that appellant, a 54-year-old rural carrier, sustained a right knee contusion, 

a right lower leg contusion, and a right shoulder contusion on April 11, 2009 as a result of a motor 

vehicle accident. Appellant received a schedule award for 28 percent permanent impairment of 

the right lower extremity for the period June 6, 2010 to December 22, 2011 for a total of 80.64 

weeks. He returned to full-duty work without restrictions in July 2009. 

On March 13, 2014 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7). 

In a December 23, 2013 report, Dr. Neil Allen, a Board-certified neurologist, opined that 

appellant had 11 percent permanent impairment of the right upper extremity based on the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment 

(A.M.A., Guides).

3 He indicated that the range of motion (ROM) method of assigning impairment 

reflected a more accurate impairment rating for appellant’s diagnosis of right shoulder contusion 

than the diagnosis-based impairment (DBI) method. Utilizing Table 15-34, page 475, of the 

A.M.A., Guides, Dr. Allen found 10 percent right upper extremity permanent impairment based 

on appellant’s range of motion. He assigned a grade modifier of 2 for functional history (GMFH) 

based on appellant’s pain with less than normal activity, ability to perform self-care activities with 

modification but unassisted, and QuickDASH score of 30. Dr. Allen concluded that appellant had 

11 percent permanent impairment of the right upper extremity.

In a March 27, 2014 development letter, OWCP notified appellant of the deficiencies of 

his claim and requested a medical report from a physician assessing his permanent impairment 

based on the sixth edition of the A.M.A., Guides and establishing that he had reached maximum 

medical improvement (MMI). It noted that the medical examination report from Dr. Allen did not 

explain how appellant sustained 11 percent permanent impairment of the right upper extremity for 

a contusion sustained in 2009, a condition which usually would resolve within four to eight weeks 

from the date of injury. 

In a May 10, 2014 addendum report, Dr. Allen indicated that according to Table 15-5, page 

401, of the A.M.A., Guides, if the patient has residual symptoms and consistent objective findings 

when at MMI, a shoulder contusion is in fact ratable. He indicated that despite conservative 

management appellant continued to suffer pain and function limitations in his right shoulder and, 

therefore, his condition was ratable under the sixth edition of the A.M.A., Guides. Dr. Allen 

reiterated his opinion that appellant had 11 percent permanent impairment of the right upper 

extremity.

 

3 A.M.A., Guides (6th

ed. 2009).
3

On December 8, 2014 Dr. David Garelick, a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed the medical evidence of record and found that appellant’s right 

shoulder contusion was treated conservatively and had resolved long ago. He determined that the 

date of MMI was July 11, 2009, which was approximately three months following the date of 

injury. Dr. Garelick found no medical evidence supporting any ongoing right shoulder conditions 

and noted that a December 28, 2011 independent medical examination from Dr. Mark Breslow, a 

Board-certified orthopedic surgeon, revealed symmetric range of motion of the bilateral shoulders 

with forward elevation, internal rotation, and external rotation.4

By decision dated November 6, 2015, OWCP denied appellant’s schedule award claim 

finding that the medical evidence of record did not establish permanent impairment of his right 

upper extremity. 

On November 12, 2015 counsel requested an oral hearing before the Branch of Hearings 

and Review and submitted a June 17, 2016 magnetic resonance imaging (MRI) report of the right 

shoulder demonstrating moderate-to-high grade combined bursal and articular surface tearing and 

moderate grade undersurface tearing.

A telephonic hearing was held before an OWCP hearing representative on June 29, 2016. 

By decision dated September 7, 2016, OWCP’s hearing representative affirmed the 

November 6, 2015 schedule award decision, finding that Dr. Garelick’s opinion that the accepted 

right shoulder contusion would have long since resolved was the only opinion based on a complete 

and accurate history of appellant’s work injury.

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

 

4 Dr. Breslow, in resolving a conflict of medical opinion concerning a recurrence claim, found that appellant did 

not sustain a recurrence of disability on September 22, 2010 causally related to his accepted conditions. Dr. Breslow 

also noted that appellant’s physical examination revealed “symmetric range of motion [of the] bilateral shoulders with 

forward elevation, internal and external rotation.”

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).
4

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., Guides

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

award purposes.9

ANALYSIS

The issue on appeal is whether appellant met his burden of proof to establish permanent 

impairment of his right upper extremity, warranting 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 had been followed regarding the proper use of the diagnosis-based impairment (DBI) 

or the range of motion (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 September 7, 2016 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities applied 

 

8 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 (March 2017).

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.
5

uniformly,

13 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.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish permanent

impairment of a scheduled member or function of the body warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 2, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

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