United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Knox, IN, Employer 

__________________________________________ 

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Docket No. 15-1890 

Issued: June 15, 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 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 14, 2015 appellant filed a timely appeal from a May 14, 2015 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 the claim. 

ISSUE 

The issue is whether appellant met his burden of proof to establish more than 12 percent 

permanent impairment of his right upper extremity, for which he previously received a schedule 

award. 

FACTUAL HISTORY 

On March 7, 2014 appellant, then a 56-year-old city carrier, slipped and fell on an ice 

covered sidewalk while delivering mail. He filed a traumatic injury claim (Form CA-1) alleging 

 1

 5 U.S.C. § 8101 et seq. 
2

to have dislocated his right shoulder. Appellant stopped work on March 7, 2014, and he received 

continuation of pay. On April 24, 2014 he underwent right shoulder surgery. On May 1, 2014 

OWCP accepted appellant’s traumatic injury claim for right biceps tendon rupture and complete 

rupture of the right rotator cuff, and it retroactively authorized appellant’s April 24, 2014 

surgery. Appellant received wage-loss compensation for temporary total disability through 

August 22, 2014, at which time he returned to work in a part-time, limited-duty capacity. 

Effective September 8, 2014, he resumed his full-time, regular duties without restrictions. 

On October 21, 2014 appellant filed a claim for a schedule award (Form CA-7). In 

support of his claim, he submitted a September 19, 2014 medical report from Dr. Scott P. 

Fielder, a Board-certified orthopedic surgeon.2

 Dr. Fielder noted that appellant was seen in 

follow up for his April 24, 2014 right shoulder surgery. He presented examination findings and 

opined that maximum medical improvement was reached on September 19, 2014. Utilizing the 

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

Impairment (2009) (hereinafter A.M.A., Guides), Dr. Fielder found 24 percent right upper 

extremity permanent impairment. The overall rating included 10 percent permanent impairment 

due to appellant’s distal clavicle resection and 14 percent permanent impairment due to loss of 

shoulder range of motion (ROM).3

In a January 30, 2015 report, OWCP’s district medical adviser (DMA), Dr. Morley 

Slutsky, Board-certified in occupational medicine, reviewed Dr. Fielder’s impairment rating, and 

noted his disagreement with the overall finding of 24 percent permanent impairment of the right 

upper extremity. He noted, among other things, that Dr. Fielder used the ROM method with 

invalid measurements. Dr. Slutsky further noted that “the ROM method [was] to be used only 

when no other approach [was] available.” 

In contrast, Dr. Slutsky used the diagnosis-based impairment (DBI) methodology, which 

he noted was the preferred rating method under the sixth edition of the A.M.A., Guides. 

Applying Table 15-5, Shoulder Regional Grid, A.M.A., Guides 401-05 (6th ed. 2009), he found 

that appellant’s distal clavicle excision represented the most impairing Class of Diagnosis (CDX 

1), with a default (grade C) rating of 10 percent upper extremity impairment. Dr. Slutsky then 

assigned grade modifiers for Functional History (GMFH - 1) and Clinical Studies (GMCS - 4), 

and calculated a net adjustment of +2.4

 This resulted in a final adjustment to grade E, which 

represented 12 percent permanent impairment of the right upper extremity under Table 15-5. 

By decision dated May 14, 2015, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right upper extremity based on the DMA’s January 30, 

 2

 Dr. Fielder performed appellant’s April 24, 2014 right shoulder surgery, which included rotator cuff 

reconstruction, partial claviculectomy, biceps tenodesis, and arthroscopic limited debridement. 

3

 Dr. Fielder noted that appellant’s 160 degrees of forward flexion represented one percent right upper extremity 

impairment and 100 degrees of abduction represented four percent impairment. He also indicated that appellant had 

25 percent strength deficit for flexion and abduction, which represented an additional 6 percent and 3 percent upper 

extremity impairment, respectively. 

4

 Net Adjustment ꞊ (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). See Section 15.3d, A.M.A, Guides 411 

(6th ed. 2009). 
3

2015 report. The award covered a period of 37.44 weeks from September 19, 2014 to 

June 8, 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.5

 The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.6

 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.7

 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.8 

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).9

 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.10

ANALYSIS 

The issue is whether appellant met his burden of proof to establish more than 12 percent 

right upper extremity permanent impairment, for which he previously received a schedule award. 

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

 5

 5 U.S.C. § 8149. 

6 See 20 C.F.R. §§ 1.1-1.4. 

7

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

§ 8107(c)(1). 

8

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

9 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). 

10 Isidoro Rivera, 12 ECAB 348 (1961). 
4

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. As of 

the May 14, 2015 decision, 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.11 The purpose of the use of uniform standards is to ensure consistent 

results and to ensure equal justice under the law to all claimants.12 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 DMA use both DBI and ROM methodologies 

interchangeably without any consistent basis.13 Furthermore, the Board has observed that 

physicians were interchangeably citing to language in the first printing or the second printing 

when justifying use of either ROM or DBI methodology. The Board found that because 

OWCP’s own physicians have been inconsistent in the application of the A.M.A., Guides, 

OWCP could no longer ensure consistent results and equal justice under the law for all 

claimants.14 

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

upper extremity impairment, the Board will set aside the May 14, 2015 decision. Following 

further 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 not in posture for decision. 

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

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

13 Supra note 11. 

14 Id.
5

ORDER 

IT IS HEREBY ORDERED THAT the May 14, 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: June 15, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board