United States Department of Labor

Employees’ Compensation Appeals Board

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A.H, Appellant

and

U.S. POSTAL SERVICE, QUEENS 

PERFORMANCE & DISTRIBUTION CENTER,

Flushing, N.Y, Employer

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Docket No. 17-0286

Issued: April 12, 2018

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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

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

September 20, 2016 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 the claim.

 

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 established more than six percent permanent impairment 

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

FACTUAL HISTORY

On September 19, 2008 appellant, then a 38-year-old mail handler, filed an occupational 

disease claim (Form CA-2), alleging that a partial thickness rotator cuff tear in her left shoulder 

was caused or aggravated by factors of her federal employment. OWCP accepted her occupational 

disease claim for partial thickness left rotator cuff tear. Appellant did not initially stop work. 

OWCP subsequently paid her intermittent wage-loss compensation benefits on the supplemental 

rolls for temporary total disability. 

On January 9, 2015 appellant filed a claim for a schedule award (Form CA-7). As no 

medical evidence was submitted with her claim, by letters dated January 20 and March 10, 2015 

OWCP requested that she submit an impairment evaluation from her attending physician in 

accordance with the sixth edition of the American Medical Association, Guides to the Evaluation 

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

In support of her claim, appellant submitted a July 7, 2015 impairment rating from

Dr. Pran N. Sood, a Board-certified orthopedic surgeon. Dr. Sood found that appellant reached 

maximum medical improvement (MMI) on October 22, 2013.4 He noted that she had limited 

abduction and forward flexion to 110 degrees of her left shoulder. Rotation was relatively free 

and her neurological assessment was normal. For the left upper extremity, Dr. Sood found that 

appellant had 12 percent permanent impairment of her left upper extremity under the A.M.A.,

Guides. He indicated that his calculation was based on Table 15-1, page 385 and Table 15-5, 

shoulder regional grid, page 401 for partial tear of the shoulder. 

OWCP’s district medical adviser (DMA) reviewed the claim on September 11, 2015, and 

found that appellant had six percent permanent impairment of the left upper extremity.

5

 The DMA 

found that MMI occurred on May 24, 2011, when a physical therapist noted her condition was 

stable. His six percent impairment rating was based on appellant’s loss of range of motion (ROM) 

in her left shoulder under Table 34, page 475 of the A.M.A., Guides.

By decision dated October 22, 2015, OWCP granted appellant a schedule award for six 

percent permanent impairment of her left upper extremity. The award covered 18.72 weeks, from 

May 24 to October 2, 2011 and was based on her weekly pay rate on the date disability began, 

 

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

4 The record does not contain treatment notes dated October 22, 2013, nor does Dr. Sood provide rationale for 

choosing this date for MMI.

5 The DMA’s signature is illegible.
3

July 19, 2007.6 OWCP based the award on the DMA’s September 11, 2015 impairment rating, 

noting that the DMA correctly applied the [A.M.A., Guides] to the examination findings.

On November 4, 2015 counsel requested a telephonic hearing before an OWCP hearing 

representative. A telephonic hearing was held July 12, 2016. Counsel argued that the DMA’s 

impairment rating was based on the ROM, but the diagnosis-based impairment (DBI) used by

Dr. Sood was more realistic. 

By decision dated September 20, 2016, OWCP’s hearing representative affirmed its prior 

schedule award decision. 

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 FECA program with 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, 

[s]ixth [e]dition, 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.

10

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

 

6 On a December 18, 2009 Form CA-7, the employing establishment indicated that appellant stopped work on 

July 19, 2007 and her pay rate effective that date was $44,495.00 per year with night differential of $35.92 per week 

and Sunday premium of $43.44 per week. 

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).

10 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). 
4

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 met her burden of proof to establish that she 

has more than six percent permanent impairment of the left upper extremity, for which she 

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 DMA’s 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 order to ensure consistent results and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the September 20, 2016 decision. Utilizing 

a consistent method for calculating permanent impairment for upper extremities applied uniformly, 

and after such other development as may be deemed necessary, OWCP shall issue a de novo

decision with regard to appellant’s claim for an upper extremity schedule award.15

CONCLUSION

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

 

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.

15 See FECA Bulletin No. 17-0006 (issued May 8, 2017).
5

ORDER

IT IS HEREBY ORDERED THAT the September 20, 2016 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 12, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board