United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.K., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bellmawr, NJ, Employer 

__________________________________________ 

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Docket No. 16-0847 

Issued: March 24, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On March 21, 2016 appellant, through counsel, filed a timely appeal from a November 4, 

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.3

 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.

3

 The Board notes that appellant submitted new evidence following the November 4, 2015 decision. However, 

since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the 

Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 

ECAB 126 (2005). 
2

ISSUE 

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

right upper extremity, for which she previously received a schedule award. 

FACTUAL HISTORY 

On October 4, 2007 appellant, then a 46-year-old automation clerk, filed an occupational 

disease claim (Form CA-2) alleging that she developed stabbing and throbbing pain on the right 

side of her neck and shoulder area. She first became aware of her condition and realized its 

relation to her employment on February 3, 2007. Appellant stopped work on October 27, 2007. 

The employing establishment indicated that she was last exposed to the conditions alleged to 

have caused her condition on October 17, 2007.4

 

OWCP accepted appellant’s claim for temporary aggravation of C5-6 disc herniation. It 

paid wage-loss compensation benefits. On February 1, 2008 appellant returned to full-time 

limited duty. 

Appellant underwent authorized spinal surgeries on November 29, 2010 and 

January 24, 2011. She stopped work and filed a claim for recurrence of disability (Form CA-2a) 

on February 7, 2011. OWCP accepted appellant’s recurrence claim and paid wage-loss 

compensation. 

On August 20, 2011 appellant returned to modified duty. She continued to undergo 

medical treatment and received medical benefits. 

On June 30, 2014 appellant was treated by Dr. Arthur Becan, a Board-certified 

orthopedic surgeon. In an impairment rating report of that date, Dr. Becan accurately described 

her history of injury. He related appellant’s complaints of cervical pain and stiffness on a daily 

basis and radicular pain down her right upper extremity with tingling into her fingers. Dr. Becan 

reported that she had a Pain Disability Questionnaire score of 85, which was indicative of 

moderate cervical spine pain disability, and a QuickDASH disability score of 16 percent. Upon 

physical examination of appellant’s cervical spine, he observed posterior midline tenderness 

extending from C4 to 7 and bilateral paravertebral muscle spasm and tenderness extending on the 

right. Dr. Becan provided range of motion examination findings. He reported that examination 

of appellant’s right shoulder showed subacromial and bicipital groove tenderness. Range of 

motion examination revealed elevation and abduction of 170 degrees, crossover adduction of 

60 degrees, internal rotation of 70 degrees, and external rotation of 80 degrees. Rotator cuff drop 

test was mildly positive. Dr. Becan diagnosed chronic cervical sprain and strain, herniated 

cervical discs at C4-5 and C5-6, bulging cervical discs at C3-4 and C6-7, right C4, C5, and C6 

radiculopathy, chronic post-traumatic subacromial impingement syndrome to the right shoulder, 

and chronic post-traumatic rotator cuff tendinopathy of the right shoulder. 

 4

 Appellant has a previously accepted traumatic injury claim (Form CA-1) under File No. xxxxxx640. OWCP 

accepted her claim for cervical radiculitis and right trapezius strain as a result of a February 3, 2007 employment 

incident. 
3

Dr. Becan opined that according to the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),5

and the A.M.A., Guides Newsletter July/August 2009 edition, appellant was a class 1 for right 

severe sensory deficit of the right C5 nerve root. He reported grade modifiers of 2 for functional 

history and clinical studies, which calculated a net adjustment formula of two or four percent 

right upper extremity impairment. Dr. Becan further indicated that appellant was also a class 1 

for right severe sensory deficit of the right C6 nerve root. He reported grade modifiers of 2 for 

functional history and clinical studies, which resulted in a net adjustment formula of 2 or six 

percent impairment. Dr. Becan also provided an impairment rating for appellant’s right shoulder 

condition. He related that, according to Table 15-5, page 402, she was a class 1 for right 

shoulder impingement syndrome with residual loss and noted grade modifiers of 1 for functional 

history and physical examination and 0 for clinical studies. Dr. Becan calculated that appellant 

had a net adjustment of -1, which resulted in two percent impairment. He concluded that she had 

a total rating of 12 percent permanent impairment of the right upper extremity. Dr. Becan 

reported that appellant reached maximum medical improvement (MMI) on June 30, 2004. 

On September 16, 2014 appellant filed a schedule award claim (Form CA-7). 

In an October 8, 2014 report, Dr. Morley Slutsky, Board-certified in occupational and 

preventive medicine and an OWCP medical adviser, reviewed Dr. Becan’s June 30, 2014 report 

and noted that Dr. Becan found upper extremity sensory and motor deficits which differed 

significantly from other providers of record. He noted the dates of appellant’s previous 

examinations, which showed normal upper extremity strength and sensation. Dr. Slutsky 

recommended a second opinion evaluation by a neurologist or orthopedic surgeon who was 

trained in the use of the A.M.A., Guides. He opined that if OWCP did not order a second 

opinion evaluation, the final impairment rating would be zero percent because appellant was 

found to have normal upper extremity sensation and strength before and after her cervical 

surgery. Dr. Slutsky reported that when these findings were applied to the A.M.A., Guides 

July/August 2009 Newsletter, she had a final rating of zero percent permanent impairment of the 

upper extremity impairment. 

OWCP referred appellant, along with a statement of accepted facts (SOAF) and the 

record, to Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, for a second opinion 

examination in order to determine whether she sustained any ratable permanent impairment of 

her accepted cervical and right upper extremity conditions in accordance with the A.M.A., 

Guides and Guides Newsletter July/August 2009 edition. 

In an April 27, 2015 report, Dr. Smith reviewed appellant’s history, including the SOAF 

and noted her accepted conditions of cervical radiculitis and right trapezius strain. He related 

that her symptoms improved after her cervical surgeries, but she still experienced low-grade 

paresthesia and hypoesthesia in the C5-6 distribution bilaterally. Upon physical examination of 

appellant’s neck, Dr. Smith observed active spinal range of motion and no evidence of spasm, 

atrophy, trigger points, or deformity. Examination of appellant’s shoulder revealed no 

deformity, atrophy, instability, crepitation, or impingement. Dr. Smith reported that range of 

 5

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

motion examination was limited subjectively due to complaints of pain. Neurologic examination 

was objectively normal except for mild paresthesias and hypoesthesias in the right C5-6 

distribution. Dr. Smith noted a date of MMI of January 24, 2011. 

Dr. Smith opined that according to the A.M.A., Guides Newsletter July/August 2009 

edition, appellant had class 1 impairment with a default value of one percent for residual 

complaints of mild hypoesthesia and numbness in her right C5-6 distribution. He noted that 

according to Table 15-7 on page 406, she had grade modifiers of 1 for functional history and 

nerve distribution. After applying the net adjustment formula, Dr. Smith determined that 

appellant had one percent impairment for C5 sensory loss and one percent impairment for C6 

sensory loss for a total impairment of two percent of the upper extremity due to loss of sensation 

in C5-6. He also referenced Table 15-34, Shoulder Range of Motion Grid, on page 475, and 

determined that she had six percent right upper extremity impairment due to loss of motion at the 

right shoulder.6

 Dr. Smith concluded that appellant had a total upper extremity permanent 

impairment of eight percent. 

Dr. Sofia Lam, a Board-certified anesthesiologist, examined appellant and in a May 5, 

2015 narrative report accurately described appellant’s February 2007 work-related injury and 

reviewed the medical treatment she received. Upon physical examination of appellant’s cervical 

spine, she observed decreased range of motion on lateral rotation and flexion/extension and 

tenderness over the cervical facet joint at C3-4, C4-5, C5-6, and C6-7 area. Dr. Lam reported 

positive Spurling’s on the right side and sensory deficit in the right C5, C6, and C7 nerve root 

distribution. She diagnosed cervical sprain/strain, postcervical laminectomy syndrome with 

residual radiculopathy, and cervical facet arthropathy with paravertebral spasm. 

In a June 5, 2015 report, Dr. Slutsky again reviewed Dr. Becan’s June 30, 2014 and 

Dr. Smith’s April 27, 2015 impairment rating reports. He referenced the A.M.A., Guides 

Newsletter, July/August 2009 edition, Table 15-4 and assigned class 1 or one percent for mild C5 

sensory loss. Dr. Slutsky noted that according to Table 15-4 appellant was a class 0 for no upper 

extremity motor loss. He assigned a grade modifier of 1 and applied the net adjustment formula. 

Dr. Slutsky opined that appellant had zero percent right upper extremity impairment due to her 

C5 condition. He again utilized Table 15-4 to determine her right upper extremity impairment 

due to her C6 condition and assigned class 1 or one percent for mild sensory loss and none for 

motor loss. Dr. Slutsky assigned grade modifiers of 1 for functional history and 2 for clinical 

studies. He applied the net adjustment formula and determined that appellant had two percent 

right upper extremity impairment due to her cervical condition. Dr. Slutsky indicated that he 

disagreed with Dr. Smith’s permanent impairment rating of six percent impairment due to her 

right shoulder condition and explained that he rated her permanent impairment due to the 

preferred diagnosis-based impairment method whereas Dr. Smith used the less preferred range of 

motion method.7

 Referencing Table 15-5, Dr. Slutsky indicated that appellant was a class 1 or 

 6

 Dr. Smith indicated that appellant had a grade modifier of 1 for functional history, which resulted in zero 

modification after applying the net adjustment formula. 

7

 Dr. Smith indicated that he would provide an impairment rating based on range of motion. He referenced Table 

15-34, page 475, of the A.M.A., Guides and determined that appellant had three percent right upper extremity 

impairment due to range of motion of her right shoulder. 
5

one percent impairment for a diagnosis of right shoulder sprain. He noted grade modifiers of 1 

for functional history and 1 for physical examination. Dr. Slutsky applied the net adjustment 

formula and reported a right upper extremity impairment rating of one percent for appellant’s 

right shoulder. He combined her impairment ratings for a total of three percent right upper 

extremity permanent impairment. 

In a June 11, 2015 report, Dr. Scott M. Fried, a Board-certified orthopedic surgeon, 

related appellant’s complaints of continued neck pain radiating down her right arm and 

intermittent tingling in her fingers. He reported that neurological examination of appellant’s 

upper extremities revealed positive Phalen’s test on the right and positive Tinel’s test at the right 

wrist. Dr. Fried also noted tenderness of the right lateral epicondyle and the right radial tunnel. 

He indicated that range of motion of appellant’s right shoulder was limited. Examination of 

appellant’s cervical spine showed spasm in the cervical musculature bilaterally and upper 

trapezial area bilaterally. Range of motion was limited. Dr. Fried diagnosed aggravation of 

cervical disc at C5-6, cervical radiculitis, disc space narrowing at C4-5 and C5-6, right shoulder 

capsulitis, right shoulder rotator cuff tendinitis, and right shoulder subacromial impingement. He 

recommended that appellant remain of work and continue with therapy and activity modification. 

In a decision issued June 25, 2015, OWCP granted appellant a schedule award for three 

percent permanent impairment of the right upper extremity, based on Dr. Slutsky’s June 5, 2015 

report. The award ran from April 27 to July 1, 2015. 

On July 6, 2015 OWCP received appellant’s request, through counsel, for a hearing 

before an OWCP hearing representative. 

Dr. Fried continued to treat appellant. In reports dated July 16 to September 28, 2015, 

signed by Ms. Steiner and him, he indicated that a functional capacity evaluation performed on 

appellant showed increased symptoms with lifting, carrying, and repetitive activities in the upper 

extremities. Dr. Fried noted that appellant tolerated keying for five minutes and writing for three 

minutes. He related her complaints of pain radiating down the left ulnar elbow and ulnar volar 

forearm. Dr. Fried provided examination findings and diagnoses similar to his previous 

examination. He recommended that appellant remain off work. Dr. Fried provided a 

neuromusculoskeletal ultrasound scan of her right upper extremity dated September 2, 2015, 

which showed right radial neuropathy, median neuropathy, and brachial plexopathy, right 

trapezius strain, aggravation of cervical disc at C5-6, cervical radiculitis, disc space narrowing at 

C4-5 and C5-6 with radiculopathy, and right shoulder capsulitis, right rotator cuff tendinitis, and 

right shoulder subacromial impingement. 

On September 15, 2015 a hearing was held. Counsel asserted that OWCP improperly 

relied on Dr. Slutsky’s June 5, 2015 district medical adviser report to carry the weight of medical 

opinion evidence. He alleged that OWCP should not have disregarded Dr. Becan’s June 30, 

2014 report, which provided for 12 percent upper extremity permanent impairment, solely on the 

basis that Dr. Becan applied the range of motion method, instead of the diagnosis-based 

impairment of the A.M.A., Guides. Counsel argued that both methods were permissible to 

calculate impairment. He asserted that OWCP should have referred appellant’s schedule award 

claim to an impartial medical examiner to resolve the conflict in medical opinion evidence 

regarding the degree of impairment of her upper extremity. 
6

By decision dated November 4, 2015, an OWCP hearing representative affirmed the 

June 25, 2015 schedule award decision. She found that the medical evidence of record did not 

establish that appellant had more than three percent permanent impairment of the right upper 

extremity, for which she previously received a schedule award. The hearing representative noted 

that Dr. Slutsky properly performed his role as an OWCP medical adviser and utilized the 

examination findings as provided in Dr. Smith’s April 27, 2015 second opinion report. 

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 A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.10 

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).11 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.12

ANALYSIS 

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

impairment of her right upper extremity, for which she previously received a schedule award. 

 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’ compensation. 5 U.S.C. 

§ 8107(c)(1). 

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

Claims, Chapter 2.808.5a (February 2013). 

12 Isidoro Rivera, 12 ECAB 348 (1961). 
7

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 diagnosis-based 

impairment or the range of motion methodology when assessing the extent of permanent 

impairment for schedule award purposes.13 The purpose of the use of uniform standards is to 

ensure consistent results and to ensure equal justice under the law to all claimants.14 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 

diagnosis-based impairment and range of motion 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 range of motion 

or diagnosis-based impairment 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.15 

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 4, 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. 

CONCLUSION 

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

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

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

15 Supra note 13. 
8

ORDER 

IT IS HEREBY ORDERED THAT the November 4, 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: March 24, 2017 

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