United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

P.E., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Harrisburg, PA, Employer 

__________________________________________ 

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Docket No. 16-0223 

Issued: April 19, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 16, 2015 appellant, through counsel, filed a timely appeal from a 

September 10, 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 over the merits of this case. 

ISSUE 

The issue is whether appellant has more than five percent permanent impairment of his 

left upper extremity, for which he previously 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 November 5, 2007 appellant, then a 60-year-old rural carrier, filed an occupational 

disease claim (Form CA-2) alleging that he developed bursitis as a result of duties of his federal 

employment. OWCP accepted appellant’s claim on February 1, 2008 for subacromial bursitis of 

the left shoulder. Appellant returned to modified work. 

Appellant underwent accepted arthroscopic surgery of the left shoulder on 

March 19, 2008. This surgery was performed by Dr. Christopher Mancuso, a Board-certified 

orthopedic surgeon. Appellant returned to a modified position on April 1, 2008. He underwent a 

second arthroscopic procedure with debridement of the labrum and subacromial decompression 

on April 15, 2009, also by Dr. Mancuso. Appellant again returned to modified duty on 

May 21, 2010. 

Appellant thereafter filed a recurrence of disability claim (Form CA-2a) alleging a 

recurrence of disability commencing September 13, 2011. OWCP accepted the recurrence and 

placed appellant on the periodic rolls from September 17, 2011 until October 7, 2013, the date he 

returned to full-time modified duty. 

Appellant retired from the employing establishment effective December 31, 2013. 

On April 1, 2014 appellant requested a schedule award by completing a Form CA-7. 

With his request, appellant submitted a December 17, 2013 report from Dr. Nicholas Diamond, a 

Board-certified osteopath, using the range of motion (ROM) method. Dr. Diamond rendered an 

impairment rating of seven percent permanent impairment of the left upper extremity based upon 

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

Impairment (A.M.A., Guides).3

 Based on a QuickDASH score of 65, he assigned a functional 

history grade modifier of 3. Dr. Diamond stated that appellant reached maximum medical 

improvement on December 17, 2013. He used ROM measurements to calculate appellant’s 

percentage of impairment. 

OWCP forwarded Dr. Diamond’s report to a district medical adviser (DMA) on 

May 12, 2014. On May 13, 2014 the DMA, Dr. Morley Slutsky, Board-certified in occupational 

medicine, arrived at a left upper extremity permanent impairment rating of five percent. He 

stated that his percentage of impairment differed from Dr. Diamond’s because he applied the 

diagnosis-based impairment (DBI) method of calculation using the diagnosis of partial thickness 

rotator cuff tear with residual dysfunction rating impairment. 

By decision dated January 15, 2015, OWCP granted appellant a schedule award for five 

percent permanent impairment of his left upper extremity. It noted that the weight of medical 

evidence regarding appellant’s percentage of impairment was assigned to the DMA, Dr. Slutsky, 

because he correctly applied the A.M.A., Guides. 

On January 22, 2015 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. In advance of the hearing, appellant submitted an updated 

 3

 A.M.A., Guides (6th ed. 2009). 
3

medical report from Dr. Diamond, dated June 1, 2015. The content of this report was 

substantially similar to Dr. Diamond’s December 17, 2013 report, containing the same 

calculations and impairment rating of seven percent. 

The hearing was held on June 25, 2015. At the hearing, counsel noted that the DMA, 

Dr. Slutsky, used the DBI method of impairment rating, which was not exclusive according to 

the A.M.A., Guides. He argued that appellant was entitled to the methodology most favorable to 

him in a schedule award analysis, and that as such, seven percent permanent impairment rating 

was appropriate. In the alternative, counsel argued that there remained a conflict in the medical 

evidence between the DMA’s analysis and Dr. Diamond’s which should be resolved by an 

impartial medical examiner. 

By decision dated September 10, 2015, the hearing representative affirmed OWCP’s 

January 15, 2015 decision, finding that Dr. Slutsky’s opinion constituted the weight of the 

medical evidence. 

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.4

 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.5

 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.6 

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).7

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

 4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 

6

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

7 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 2.808.5(a) (February 2013). 
4

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

schedule award purposes.8

ANALYSIS 

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

impairment of the left upper extremity, for which he previously received a schedule award. The 

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

Appellant’s treating physician, Dr. Diamond reported on December 17, 2013 that 

appellant had seven percent permanent impairment of the left upper extremity. He rated 

appellant’s impairment using appellant’s ROM measurements to calculate appellant’s permanent 

impairment. OWCP’s district medical adviser, Dr. Slutsky, determined that appellant had five 

percent permanent impairment of the left upper extremity, using the DBI method of calculating 

permanent impairment. 

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 

methodology when assessing the extent of permanent impairment for schedule award purposes.9

 

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

justice under the law to all claimants.10 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.11 

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 September 10, 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. 

 8

 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

11 Supra note 9. 
5

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the September 10, 2015 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 19, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board