United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.N., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Southeastern, PA, 

Employer

__________________________________________

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Docket No. 17-1923

Issued: April 17, 2018

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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 12, 2017 appellant, through counsel, filed a timely appeal from a May 18, 

2017 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 to consider 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 has more than 12 percent permanent impairment of her left 

upper extremity and 6 percent permanent impairment of her right upper extremity, for which she 

previously received schedule awards.

On appeal counsel argues that the impartial medical examiner failed to consider the range 

of motion (ROM) method in calculating appellant’s bilateral upper extremity permanent 

impairment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as presented in the 

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.

On June 13, 2007 appellant, then a 58-year-old clerk, filed an occupational disease claim 

(Form CA-2) alleging that she developed bilateral carpal tunnel syndrome and tendinitis due to 

repetitive work duties of sweeping mail and picking up magazines and parcels.4 On July 18, 2008 

OWCP accepted the claim for bilateral carpal tunnel syndrome and authorized carpal tunnel release 

surgery, which were performed on April 24, 2008 for the left wrist and June 4, 2008 for the right

wrist.

5

 It paid appellant wage-loss compensation on the supplemental rolls commencing April 25, 

2008 and on the periodic rolls commencing July 6, 2008.

By decision dated November 18, 2009, OWCP granted appellant a schedule award for two 

percent permanent impairment of each upper extremity. By decision dated June 23, 2010, it

granted him a schedule award for an additional six percent permanent impairment of the left arm, 

for a total eight percent left upper extremity permanent impairment, and an additional four percent 

permanent impairment of the right arm, for a total of six percent right upper extremity permanent 

impairment. By decision dated March 5, 2012, OWCP granted appellant a schedule award for an 

additional 2 percent permanent impairment of the left arm, for a total of 10 percent the left upper 

extremity permanent impairment. Appellant subsequently requested an additional schedule award. 

By decision dated May 1, 2013, OWCP denied appellant’s claim for an additional schedule 

award. On November 29, 2013 an OWCP hearing representative affirmed the May 12, 2013 

decision. By decision dated January 8, 2014, OWCP again denied appellant’s request for an 

additional schedule award. 

 

3 Docket No.14-0937 (issued October 20, 2014). 

4 Appellant has a prior occupational disease claim (Form CA-2), in which OWCP accepted that she sustained left 

shoulder calcific tendinitis with rotator cuff impingement commencing November 1, 2004 due to her repetitive work 

duties of sweeping mail and picking up magazines and parcels. OWCP assigned that claim File No. xxxxxx627. 

Appellant underwent authorized left shoulder arthroscopic surgery on February 14, 2006. OWCP File No xxxxxx627 

has been administratively combined with the present claim, OWCP File No. xxxxxx886, with File No. xxxxx886 

serving as the master file.

5 Appellant retired from the employing establishment, effective February 1, 2013.
3

On March 18, 2014 appellant appealed to the Board. By decision dated October 20, 2014,

the Board set aside OWCP’s November 29, 2013 and January 8, 2014 decisions.

6

 The Board found 

that there remained an unresolved conflict in the medical opinion evidence between

Dr. David Weiss, appellant’s treating osteopathic physician, and OWCP’s second opinion 

physician, Dr. Smith, a Board-certified orthopedic surgeon. The Board instructed OWCP to refer 

appellant to an impartial medical examiner for a reasoned medical opinion with respect to 

appellant’s employment-related permanent impairment of the upper extremities under the sixth 

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

(A.M.A., Guides),

7

as well as an opinion regarding the proper date of MMI. The Board further 

instructed OWCP to issue an appropriate decision after such further development of the evidence 

as necessary.

On November 13, 2014 OWCP referred appellant to Dr. Evan Kovalsky, a Board-certified 

orthopedic surgeon, to resolve the conflict in the medical opinion. 

In a December 18, 2014 report, Dr. Kovalsky diagnosed bilateral carpal tunnel syndrome, 

left shoulder calcific tendinitis, and left shoulder impingement, based upon a review of the medical 

evidence, statement of accepted facts (SOAF), and physical examination. Using Table 15-5 and 

the diagnosis of left shoulder impingement, he found appellant had two percent left shoulder 

permanent impairment. Next, Dr. Kovalsky found six percent bilateral upper extremity permanent 

impairment based on the diagnosis of bilateral wrist neuropathy compression. He noted his 

agreement with Dr. Smith’s impairment rating. 

By decision dated March 12, 2015, OWCP granted appellant an additional schedule award 

for 2 percent permanent impairment of her left upper extremity for her shoulder condition, for a 

total 12 percent left upper extremity permanent impairment. 

By decision dated March 31, 2015, OWCP denied appellant’s claim for an additional 

schedule award for her bilateral carpal tunnel syndrome. It found that the medical evidence of 

record was insufficient to warrant additional upper extremity impairment. OWCP noted that 

appellant’s final right upper extremity permanent impairment rating was three percent, which was 

less than the six percent previously awarded.

On April 7, 2015 counsel requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. On May 18, 2015 appellant requested review of the written 

record in lieu of an oral hearing. 

In a letter dated December 22, 2015, OWCP requested that Dr. Kovalsky provide

clarification regarding the score he used for history citing page 433 of the A.M.A., Guides.

 

6 Supra note 3.

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

Dr. Kovalsky responded on January 15, 2016 that the necessary rationale had been 

provided in his report and he attached the worksheets used in determining appellant’s permanent 

impairment. 

In a February 23, 2016 report, a district medical adviser (DMA) reviewed Dr. Kovalsky’s 

report and the medical evidence of record and determined that appellant had five percent left upper 

extremity permanent impairment and three percent right upper extremity permanent impairment. 

By decision dated April 5, 2016, OWCP denied appellant’s claim for an additional 

schedule award, finding that the evidence of record established that she had 8 percent left upper 

extremity permanent impairment, which was less than the 12 percent previously awarded, and 3

percent right upper extremity permanent impairment, which was less than the 6 percent previously 

awarded.

In a letter dated April 11, 2016, appellant, through counsel, requested an oral hearing 

before a representative of OWCP’s Branch of Hearings and Review. The request was subsequently 

converted to a request for review of the written record. 

By decision dated August 15, 2016, the hearing representative set aside the April 5, 2016 

decision as he found the conflict in the medical opinion evidence regarding appellant’s permanent

impairment had not been resolved. He remanded the case to OWCP to obtain further clarification

from Dr. Kovalsky. If clarification was not provided, OWCP was instructed to refer appellant for 

a new impartial medical examination. 

On remand OWCP referred appellant to Dr. Richard Mandel, a Board-certified orthopedic 

surgeon, to resolve the conflict in the medical opinion.

In a September 28, 2016 report, Dr. Mandel, based upon a review of the medical evidence, 

SOAF, and physical examination, calculated four percent left upper extremity permanent 

impairment and three percent right upper extremity permanent impairment. A physical 

examination revealed limited bilateral shoulder ROM, normal muscle bulk mass and negative 

Tinel’s sign. Dr. Mandel used the diagnosis-based method (DBI) to determine appellant’s 

permanent impairment for the conditions of bilateral carpal tunnel syndrome and left shoulder 

tendinitis. Using Table 15-23 of the A.M.A., Guides, he assigned a grade modifier of 1 for test 

findings, a grade modifier of 0 for physical examination findings, which resulted in a three percent 

permanent impairment for each upper extremity for carpal tunnel syndrome. Next, Dr. Mandel

used Table 15-5 and assigned a class 1 for her left shoulder condition of calcific tendinitis and 

impingement. He assigned a grade modifier of 0 for physical examination and a grade modifier 

of 1 for clinical studies based upon a September 7, 2005 magnetic resonance imaging scan. 

Applying the net adjustment formula resulted in a minus 1, resulting in a class 0 or grade C, 

resulting in one percent left shoulder permanent impairment. Combining the one percent left 

shoulder permanent impairment and the three percent permanent impairment for left carpal tunnel, 

resulted in four percent left upper extremity permanent impairment.

On October 14, 2016 a DMA reviewed Dr. Mandel’s impairment rating and concurred with 

his rating of four percent left upper extremity permanent impairment.
5

By decision dated October 18, 2016, OWCP denied appellant’s claim for an additional 

schedule award.

On October 25, 2016 counsel requested an oral hearing before an OWCP hearing 

representative, which was held on February 28, 2017. 

In a January 10, 2017 report, Dr. Weiss provided an updated impairment rating. ROM of 

the left shoulder included 90 degrees elevation, 90 degrees abduction, 65 degrees cross over 

adduction, 75 degrees external rotation, and 70 degrees internal rotation. Dr. Weiss noted positive 

Hawkins’ impingement sign and O’Brien’s test. He determined that appellant had 9 percent right 

upper extremity permanent impairment and 17 percent left upper extremity permanent impairment

using Table 15-7 at 406, Table 15-23 at 449, Table 15-34 at 377, and Table 15-36 at 477 of the 

A.M.A., Guides. Dr. Weiss used ROM to determine appellant’s permanent impairment due to 

accepted left shoulder condition and the table for entrapment neuropathy to determine appellant’s 

permanent impairment for her accepted bilateral carpal tunnel syndrome. Using Table 15-7 at 406 

and Table 15-23 at 449 he assigned a grade modifier of two for test findings, a grade modifier of 

three for history and physical examination, a functional history adjustment/QuickDASH 

(Disabilities of the Arm, Shoulder, and Hand) of 90, resulting in a total of nine percent permanent 

impairment of each upper extremity. Using Table 15-34 at 475 Dr. Weiss found a three percent 

permanent impairment due to 90 degrees flexion, a three percent permanent impairment due to 90 

degrees abduction, and two percent permanent impairment due to 70 degrees internal rotation, 

which resulted in a grade modifier of 1 using Table 15-35 at 477. Using Table 15-7 at 406 he 

assigned a grade modifier of four based on her symptoms and QuickDASH of 90. Next, Dr. Weiss

used Table 15-36 at 477 to increase appellant’s impairment by 15 percent and net adjustment of 9

percent. Combining appellant’s left shoulder impairment rating and left median nerve impairment 

ratings resulted in a total of 17 percent left upper extremity permanent impairment. 

By decision dated May 18, 2017, an OWCP hearing representative affirmed the 

October 18, 2016 decision denying appellant’s claim for an additional schedule award. 

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.8 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.9 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 American Medical Association, Guides to the Evaluation of Permanent 

 

8 See 20 C.F.R. §§ 1.1-1.4.

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

§ 8107(c)(1).
6

Impairment as the appropriate standard for evaluating schedule award losses.10 As of May 1, 2009, 

schedule awards are determined in accordance with the sixth edition of the A.M.A., Guides

(2009).11

The A.M.A., Guides provide a DBI method of evaluation utilizing the World Health 

Organization’s International Classification of Functioning, Disability and Health (ICF) for upper 

extremity impairments. The evaluator identifies the impairment for the Class of Diagnosis (CDX) 

condition, which is then adjusted by grade modifiers based on Functional History (GMFH), 

Physical Examination (GMPE), and Clinical Studies (GMCS).12 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX).13

The A.M.A., Guides also provide that ROM impairment method is to be used as a standalone rating for upper extremity impairments when other grids direct its use or when no other 

diagnosis-based sections are applicable.14 If ROM is used as a stand-alone approach, the total of 

motion impairment for all units of function must be calculated. All values for the joint are 

measured and added.15 Adjustments for functional history may be made if the evaluator 

determines that the resulting impairment does not adequately reflect functional loss and functional 

reports are determined to be reliable.16

OWCP issued FECA Bulletin No. 17-06 to explain the use of DBI methodology versus 

ROM methodology for rating of upper extremity impairments.17 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part:

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating the 

loss of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

 

10 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

11 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (February 2013).

12 A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

13 Id.

14 Id. at 461.

15 Id. at 473.

16 Id. at 474.

17 FECA Bulletin No. 17-06. This Bulletin was effective for all decisions issued by OWCP on and after 

May 8, 2017.
7

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rate by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)

18

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

19

ANALYSIS

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

OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and left shoulder 

calcific tendinitis with rotator cuff impingement. The issue is whether appellant sustained more 

than 12 percent permanent impairment of the left upper extremity and 6 percent permanent 

impairment of the right upper extremity, for which she previously received schedule awards.

Dr. Mandel evaluated appellant’s permanent impairment under Table 15-5 of the A.M.A., 

Guides, for tendinitis, under the shoulder regional grid. A DMA reviewed Dr. Mandel’s report 

and concurred with his impairment rating. Dr. Weiss rated appellant’s permanent impairment of 

the left shoulder pursuant to Table 15-34 of the A.M.A., Guides for loss of shoulder ROM. 

The Board notes that Table 15-5, the Shoulder Regional Grid, does allow, by asterisk, that 

tendinitis be alternatively evaluated by as a ROM impairment.20 Under FECA Bulletin No. 17-06 

“If the rating physician provided an assessment using the ROM method and the A.M.A, Guides

allow for use of ROM for the diagnosis in question, the DMA should independently calculate 

impairment using both the ROM and DBI methods and identify the higher rating for the [claims 

examiner].”

Because Dr. Weiss provided a rating based upon appellant’s loss of ROM which was 

allowed (for a diagnosed condition followed by an asterisk) under Table 15-5 of the A.M.A., 

Guides, a DMA should have independently calculated appellant’s impairment rating using both 

the ROM and DBI method and identified the higher rating for the claims examiner. If the medical 

 

18 Id.

19 Id.

20 See A.M.A., Guides 402, Table 15-5.
8

evidence of record was insufficient for a DMA to render a rating using the ROM methodology, a 

DMA should have advised as to the medical evidence necessary to complete the rating.21

The case will therefore be remanded for further development consistent with OWCP 

procedures found in FECA Bulletin No. 17-06. Following this and any other development deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

The Board finds this case not in posture for decision.

ORDER

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

Programs dated May 18, 2017 is set aside and the case is remanded for further proceedings

consistent with the above opinion.

Issued: April 17, 2018

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

 

21 Supra note 15.