United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.B., Appellant 

and 

U.S. POSTAL SERVICE, SAPPINGTON 

BRANCH, St. Louis, MO, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 16-0562 

Issued: May 1, 2017 

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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On February 4, 2016 appellant, through counsel, filed a timely appeal from a 

November 24, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

 

Pursuant to the Federal Employees’ Compensation Act3

 (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

 The record also contains a January 27, 2015 decision reducing appellant’s compensation to zero as his actual 

earnings as a modified city carrier, effective October 6, 2014, fairly and reasonably represented his wage-earning 

capacity. He has not appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.2(c) 

3

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has more than three percent permanent impairment of the 

right arm, for which he previously received a schedule award. 

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts and circumstances outlined in 

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

are set forth below. 

On November 23, 2009 appellant, then a 45-year-old letter carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on that date in the performance of duty he experienced 

pain in his right shoulder radiating into his arm. OWCP accepted the claim for right shoulder 

strain, an aggravation of acromioclavicular (AC) degenerative hypertrophy with inflammation of 

the right shoulder, other disorders of the bursae and tendons of the right shoulder, and a benign 

neoplasm of the scapula and long bones of the right upper limb. 

Following his injury, appellant performed modified employment until February 2, 2010, 

when he underwent a reconstruction of the right acromioclavicular joint.5

 On April 20, 2010 he 

underwent a release of the right coracoacromial ligament and on August 13, 2010 he underwent a 

distal clavicle resection, acromioplasty, and debridement of the rotator cuff and subacromial 

space. Appellant returned to limited-duty employment on January 18, 2011. He underwent an 

open resection of the superior medial angle of the scapula on August 27, 2013. Appellant 

resumed limited-duty employment on October 6, 2014. 

On January 14, 2015 appellant filed a claim for a schedule award (Form CA-7). By letter 

dated January 23, 2015, OWCP requested that he submit an impairment evaluation from his 

attending physician providing the extent of any permanent impairment using the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).6

In a report dated June 15, 2015, Dr. Corey G. Solman, Jr., a Board-certified orthopedic 

surgeon, noted that appellant’s condition was not represented in the sixth edition of the A.M.A., 

Guides. He opined that appellant had 20 percent permanent impairment of the right shoulder. 

 4

 Docket No. 12-1920 (issued September 3, 2013). 

5

 On August 2, 2011 OWCP denied appellant’s claim for leave without pay on May 6, 2011 as the evidence was 

not sufficient to show that he was disabled from work on that date. In an August 11, 2011 decision, it denied his 

claim for leave without pay for various dates in May and June 2011. On September 30, 2011 OWCP denied 

appellant’s request for surgical authorization for a right shoulder arthroscopy. In a decision dated August 21, 2012, 

it found that he had not established a recurrence of disability from June 19 to 21, 2010. However, the Board set 

aside the August 21, 2012 decision on September 3, 2013 finding that a conflict existed with regard to whether 

appellant was disabled from work on June 20 and 21, 2012 due to his work injury. The Board remanded the case for 

OWCP to refer appellant for an impartial medical examination. Supra note 4. On October 18, 2013 OWCP paid 

appellant compensation for disability from work on June 20 and 21, 2012. 

6

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

An OWCP medical adviser, on August 7, 2015, found that Dr. Solman’s impairment 

rating was insufficient to determine the extent of any permanent impairment and suggested a 

second opinion. By letter dated August 19, 2015, OWCP referred appellant to Dr. Richard R. 

Katz, a Board-certified physiatrist, for a second opinion evaluation. 

Dr. Katz, in a September 8, 2015 impairment evaluation, discussed appellant’s history of 

injury and diagnosed a right shoulder strain, an aggravation of degenerative joint disease of the 

AC joint, snapping scapular syndrome, and scapulothoracic bursitis. He measured range of 

motion (ROM) of the shoulder three times and, using the ROM method and Table 15-34 on page 

475 of the A.M.A., Guides, found six percent permanent impairment of the arm due to reduced 

shoulder motion. 

On September 17, 2015 an OWCP medical adviser found that Dr. Katz failed to measure 

ROM three times as required on page 464 of the A.M.A., Guides. Using the diagnosis-based 

impairment (DBI) method and the shoulder regional grid set forth on page 403, he identified the 

diagnosis as AC degenerative joint disease and, after applying grade modifiers, found that 

appellant had three percent permanent impairment of the right arm. The medical adviser opined 

that appellant had reached maximum medical improvement on September 8, 2015. 

By decision dated November 24, 2015, OWCP granted three percent permanent 

impairment of the right arm. The period of the award ran for 9.36 weeks from September 8 to 

November 12, 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. The Secretary of Labor has 

vested the authority to implement the FECA program with the Director of OWCP.7 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.8 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.9

 

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 

 7 See 20 C.F.R. §§ 1.1-1.4. 

8

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

§ 8107(c)(1). 

9

 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 
4

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).10 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.11

ANALYSIS 

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

impairment of the right upper extremity, for which he previously received 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 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.12 

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

justice under the law to all claimants.13 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.14

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 November 24, 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 

 10 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). 

11 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

14 Supra note 12. 
5

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.

ORDER 

IT IS HEREBY ORDERED THAT the November 24, 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: May 1, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board