United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Manhattan, IL, Employer 

__________________________________________ 

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Docket No. 16-0981 

Issued: August 29, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

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

February 10, 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 the case. 

ISSUE 

The issue is whether appellant established that she sustained permanent impairment due 

to her accepted sprain of the right shoulder and upper arm. 

 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 

This case has previously been before the Board. In a May 27, 2015 decision, the Board 

set aside in part and affirmed in part OWCP’s overpayment decision dated September 2, 2014 

and affirmed an October 30, 2014 OWCP decision denying a prerecoupment hearing.3 The 

Board found that appellant received an overpayment of compensation from April 3 

to May 4, 2013 when she received wage-loss compensation after she returned to work. The 

Board further found that she was without fault for that portion of the overpayment covering 

April 3 to 6, 2013, but that she was at fault in creating that portion of the overpayment occurring 

from April 7 to May 4, 2013. The Board remanded the matter for consideration of waiver of the 

recovery of the overpayment from April 3 to 6, 2013. The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal 

are set forth below. 

Relevant facts include that on December 5, 2011 appellant, then a 35-year-old letter 

carrier, injured her right arm while delivering a package on her mail route. OWCP accepted her 

claim for right shoulder and upper arm sprain. Appellant stopped work on December 5, 2011 

and received appropriate wage-loss compensation. 

Appellant came under the treatment of Dr. Molly D’Costa, an osteopath, on December 5, 

2011 until April 30, 2012 for right shoulder pain and biceps tendinitis. She reported delivering a 

70-pound parcel and while removing the package from her vehicle she felt a pull in her right 

shoulder and experienced radiating pain down to her right wrist. Dr. D’Costa diagnosed right 

shoulder sprain and strain and returned appellant to work with a lifting restriction. A magnetic 

resonance imaging (MRI) scan of right shoulder dated December 29, 2011 revealed rotator cuff 

tendinopathy without full-thickness tear or tendon retraction. A January 9, 2012 MRI scan of the 

right shoulder revealed rotator cuff tendinopathy without full-thickness tear or tendon retraction. 

Thereafter, in the course of developing the claim, OWCP referred appellant to a second 

opinion physician and also to an impartial medical examiner. It sought to determine whether 

appellant’s accepted conditions had resolved and whether she could return to work regular duty 

or with restrictions. 

On October 6, 2014 OWCP issued a notice of proposed termination of compensation and 

medical benefits as the impartial medical examiner’s report dated July 7, 2014 established no 

residuals of the work-related employment conditions.4

On October 6, 2014 appellant filed a claim for a schedule award (Form CA-7). By letter 

dated October 17, 2014, OWCP informed appellant that she should provide a physician’s 

assessment, based on loss of function of the upper extremities, in accordance with the sixth 

 3

 Docket No.15-0265 (issued May 27, 2015). 

4

 OWCP based its proposed termination on the report of Dr. Michael J. Cohen, a Board-certified orthopedic 

surgeon acting as an impartial medical examiner. In a July 7, 2014 report, Dr. Cohen noted findings and opined that 

appellant had fully recovered from her accepted right shoulder sprain and needed no further treatment. He advised 

that her objective findings did not correlate to her subjective symptoms. 
3

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

Impairment, (A.M.A., Guides).5 She was provided 30 days to respond. 

 By decision dated October 27, 2014, OWCP terminated appellant’s wage-loss 

compensation and medicine benefits effective the same date, finding that the weight of the 

medical evidence established that appellant had no residuals or continuing disability resulting 

from her accepted employment injury. 

Appellant submitted a report from Dr. Ryan Pizinger, a Board-certified orthopedist, dated 

October 20, 2014, who treated her for a right shoulder lifting injury sustained at work on 

November 30, 2011. A right shoulder x-ray revealed no acute fractures, type 2 acromion, and 

mild acromioclavicular arthropathy. A cervical spine x-ray showed mild-to-moderate disc 

degeneration from C5-6 and C6-7, osteophyte formation, and facet hypertrophy. Dr. Pizinger 

recommended a magnetic resonance arthrogram and an MRI scan of the cervical spine. On 

December 8, 2014 he noted that appellant was unable to return to work. 

By decision dated May 1, 2015, OWCP denied appellant’s claim for a schedule award. It 

noted that she did not respond to its October 17, 2014 development letter and that her FECA 

benefits had been terminated on October 27, 2014. 

On May 6, 2015 appellant requested a telephone hearing which was held before an 

OWCP hearing representative on December 16, 2015. She submitted a report from Dr. Pizinger 

dated April 28, 2015, who noted that appellant was under his care and was unable to return to 

work. Dr. Pizinger noted restrictions of no lifting, pulling, pushing, carrying over zero pounds 

and no sudden head or neck movements. 

On November 17, 2015 appellant, through counsel, submitted an impairment rating from 

Dr. Neil Allen, a Board-certified neurologist and internist, dated October 23, 2015. Counsel 

requested that Dr. Allen’s impairment rating be forwarded to an OWCP medical adviser. 

In a report dated October 23, 2015, Dr. Allen noted a history of injury and medical 

treatment and listed her complaints of right shoulder pain and low back pain. Right shoulder 

findings included antalgic posture, global tenderness, intact light touch and sharp/dull 

discrimination, intact brachial and radial pulses, and 4/5 external muscle strength in the rotators 

and biceps. Dr. Allen noted that range of motion on the right was 140 degrees for flexion, 50 

degrees for extension, 100 degrees for abduction, 60 degrees for adduction, 40 degrees for 

internal rotation and 65 degrees for external rotation. He diagnosed complete right rotator cuff 

rupture and right shoulder and upper arm sprain. Dr. Allen advised that appellant had reached 

maximum medical improvement. He rated permanent impairment evaluation using the 

diagnosis-based impairment method. Dr. Allen noted that pursuant to the Shoulder Regional 

Grid, Table 15-5, page 402 of the A.M.A., Guides, based on the historical data and medical 

records, appellant had a class one impairment with a default value of three percent upper 

extremity impairment. For the functional history adjustment, Table 15-7, page 406, appellant 

had a QuickDASH score of 64, she reported pain with normal activity and was able to perform 

self-care activities with modification but unassisted. Dr. Allen noted that appellant qualified for 

 5

 A.M.A., Guides (6th ed. 2009). 
4

a grade 2 modifier for functional history. For physical examination adjustment, Table 15-8, page 

408, appellant had moderate palpatory findings, consistently documented with observed 

abnormalities, stable, mild motion deficit, mild alteration in alignment/deformity and no muscle 

atrophy. Dr. Allen noted that appellant qualified for a grade 2 modifier. For clinical studies 

adjustment, Table 15-8, page 408, x-rays of the right shoulder revealed no apparent bone or joint 

abnormalities and no fractures. A right shoulder MRI scan revealed mild rotator cuff 

tendinopathy without a full-thickness tear or tendon retraction with a type 2 anterior acromion 

process present. An MRI scan of the right shoulder with contrast revealed a partial thickness 

longitudinal intrasubstance tear of the distal supraspinatus tendon. Dr. Allen noted that this 

qualified for a grade modifier of 2 but it was not considered in adjustment as it was used as a key 

factor to determine class placement. He opined that based on the net adjustment formula on page 

411 of the A.M.A., Guides appellant had four percent right arm impairment. 

At the December 16, 2015 telephonic hearing, appellant’s counsel referenced the recent 

submission of Dr. Allen’s October 23, 2015 report containing an impairment rating and 

requested that Dr. Allen’s impairment evaluation be forwarded to an OWCP medical adviser. 

By decision dated February 10, 2016, an OWCP hearing representative found the medical 

evidence of record insufficient to establish permanent impairment and affirmed the May 1, 2015 

decision. He noted that Dr. Allen failed to acknowledge reports from the second opinion 

physician or the impartial medical examiner. Additionally, Dr. Allen summarized the 2015 MRI 

scan, but he did not discuss whether the MRI scan findings represented a new pathology. 

LEGAL PRECEDENT 

The schedule award provision of FECA6 and its implementing federal regulations,7 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.8

 For decisions issued 

beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.9

 

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator 

 6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 

8 Id. at § 10.404(a). 

9

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

Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

10 A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement. 
5

identifies the impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers 

based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies 

(GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12 

The grade modifiers are used on the net adjustment formula described above to calculate a net 

adjustment. The final impairment grade is determined by adjusting the grade up or down the 

default value C, by the calculated net adjustment.13 

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to the medical adviser for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale 

for the percentage of impairment specified.14

ANALYSIS 

OWCP accepted appellant’s claim for right shoulder and upper arm sprain. The Board 

finds this case is not in posture for decision. Dr. Allen’s October 23, 2015 report included an 

impairment rating for appellant’s right upper extremity. He provided physical examination 

findings, he cited to tables and charts in the A.M.A., Guides, and provided an impairment rating 

pursuant to the A.M.A., Guides. 

In this case, the hearing representative made a medical determination as to the injury 

appellant sustained not causing or contributing to any permanent impairment without the benefit 

of medical advice or review by an OWCP medical adviser. OWCP procedures provide that, after 

obtaining all necessary medical evidence, the file should be routed to OWCP’s medical adviser 

for an opinion concerning the nature and percentage of any impairment in accordance with the 

A.M.A., Guides.

15 In this case, the medical evidence was not forwarded to an OWCP medical 

adviser for review. For these reasons, the February 10, 2016 decision will be set aside and the 

case remanded to OWCP for review of the medical record by an OWCP medical adviser. 

Following such development as OWCP deems necessary, it shall issue a de novo merit 

decision.16 

CONCLUSION 

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

 11 Id. at 385-419. 

12 Id. at 411. 

13 Id. 

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

Chapter 2.808.6(f) (February 2013). 

15 Id. at Chapter 2.808.6(d) (August 2002). 

16 See B.M., 09-2231 (issued May 14, 2010) (where the Board set aside OWCP’s decision denying appellant’s 

request for a schedule award and determined that it was improper for OWCP to render a decision without the benefit 

of medical advice from or review by its medical adviser). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 10, 2016 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for 

proceedings consistent with this decision. 

Issued: August 29, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board