United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Rockford, MI, Employer

__________________________________________

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Docket No. 19-0965

Issued: December 3, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 2, 2019 appellant, through counsel, filed a timely appeal from a January 10, 2019 

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 this case.2

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of her right upper extremity, warranting a schedule award. 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the January 10, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On August 6, 2016 appellant, then a 59-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that she injured her right shoulder and upper back on August 6, 2016 when she 

reached to stop a package from falling while in the performance of duty.3 She stopped work on 

August 6, 2016 and was released to modified duty. On the reverse side of the claim form, the 

employing establishment indicated that the injury occurred in the performance of duty and that she

received medical care on August 6, 2016. OWCP accepted appellant’s claim for right shoulder 

joint sprain. On August 17, 2016 appellant accepted a full-time modified job offer as a sales,

services and distribution associate.4

On June 26, 2018 appellant filed a claim for a schedule award (Form CA-7). 

Appellant submitted a May 8, 2018 impairment rating by, Dr. Mark A. Seldes, a Boardcertified family practitioner. Dr. Seldes reviewed her medical records and related complaints of 

right shoulder pain and limited range of motion (ROM). Upon examination of appellant’s right 

shoulder, he observed tenderness over the anterior, posterior, and lateral aspects of the right 

shoulder joint and tenderness to palpation over the bicipital groove and bicipital tendon. Neer’s 

and Hawkin’s tests were positive. Dr. Seldes indicated that ROM testing was completed after 

initial warm-up and performed three times. He explained that the findings were the same each 

time and reported 80 degrees flexion, 15 degrees extension, 70 degrees abduction, 10 degrees 

adduction, 40 degrees external rotation, and 10 degrees internal rotation. Dr. Seldes diagnosed 

right shoulder impingement syndrome, right shoulder early osteoarthritis, status post rotator cuff 

repair of the right shoulder, and depression. He opined that appellant had reached maximum 

medical improvement (MMI) as of May 8, 2018. 

Referring to Table 15-5, Shoulder Regional Grid, of the sixth edition of the American 

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

Dr. Seldes selected a class 1 diagnosis-based impairment (DBI) for a right shoulder impingement. 

He explained that the maximum impairment rating under the DBI methodology is five percent 

permanent impairment. Dr. Seldes related that, as an alternative, a ROM impairment method may 

be assessed using section 15.7. Utilizing Table 15-34, shoulder ROM, he reported that appellant 

had nine percent permanent impairment for 80 degrees flexion, two percent permanent impairment 

for 15 degrees extension, six percent permanent impairment for 70 degrees abduction, one percent 

permanent impairment for 10 degrees adduction, two percent permanent impairment for 40 degrees 

external rotation, and four percent permanent impairment for 10 degrees internal rotation. 

 

3 Appellant was working a modified-duty position as a result of a previously accepted claim under OWCP File 

No. xxxxxx468. Under the previous claim, OWCP accepted that she sustained injuries to her back, thoracic spine, 

and right rotator cuff as a result of the factors of her employment in her capacity as a distribution window clerk. It 

accepted appellant’s claim for back sprain, thoracic sprain, and right rotator cuff sprain. The current claim, OWCP 

File No. xxxxxx361, and previous claim, OWCP File No. xxxxxx468, were administratively combined by OWCP, 

with the previous claim serving as the master file.

4

In an August 18, 2016 note, Dr. Matthew R. Schram, a Board-certified family practitioner, authorized appellant 

to return to work with restrictions of no lifting with right arm and no lifting more than 20 pounds with left arm. 

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

Dr. Seldes calculated a combined 24 percent right upper extremity permanent impairment due to 

loss of ROM. As the ROM method resulted in 24 percent permanent impairment and the DBI 

method resulted in a maximum of 5 percent permanent impairment, he concluded that the higher 

impairment rating of 24 percent based on loss of ROM should be applied to appellant’s case. 

In a July 1, 2018 report, Dr. Jovito Estaris, Board-certified in preventive and occupational 

medicine, serving as a district medical adviser (DMA), noted that he had reviewed the statement 

of accepted facts (SOAF) and the medical record, including Dr. Seldes’s May 8, 2018 impairment 

rating report. He indicated that under OWCP File No. xxxxxx468, a previous OWCP secondopinion examiner had provided an impairment rating of 16 percent of the right upper extremity 

based on ROM. The DMA requested an independent medical examination to confirm the ROM 

measurements of the right shoulder. 

On October 23, 2018 OWCP referred appellant to Dr. Arthur S. Dinenberg, a Boardcertified orthopedic surgeon, for a second-opinion examination in order to determine whether she 

had sustained a ratable permanent impairment due to her accepted August 6, 2016 employment 

injury in accordance with the sixth edition of the A.M.A., Guides.

In a November 14, 2018 report, Dr. Dinenberg reviewed appellant’s history, including the 

SOAF, and noted that her current claim had been accepted for right shoulder sprain. He also 

referenced her previously accepted claims and conditions and recounted her current complaints of 

severe pain in the right shoulder. Dr. Dinenberg reported that upon physical examination of 

appellant’s right upper extremity, she did not allow any palpation of the right upper extremity

because it was too painful and was unable to withstand any palpation on the right arm or forearm. 

In response to OWCP’s request for an impairment rating, he indicated that he was unable to 

determine MMI because “[appellant’s] examination [was] equivocal.” Dr. Dinenberg further 

responded that he was unable to provide a detailed description of objective and subjective findings 

because appellant could not complete ROM testing. He noted that “[s]ubjectively, she complains 

of severe pain and paresthesias in the right upper extremity.” Consequently, Dr. Dinenberg 

concluded that no impairment rating could be performed that day. 

In a December 31, 2018 report, Dr. Estaris, the DMA, explained that Dr. Dinenberg 

“discontinued his examination” and was “unable to provide any impairment rating.” Therefore, 

the DMA noted that he was unable to complete an impairment rating because he had nothing to 

review regarding appellant’s permanent impairment. 

By decision dated January 10, 2019, OWCP denied appellant’s claim for a schedule award 

finding that the evidence of record was insufficient to establish permanent impairment of a 

scheduled member causally related to her accepted August 6, 2016 employment injury. It noted 

that neither Dr. Dinenberg nor Dr. Estaris were able to provide an impairment rating. 
4

LEGAL PRECEDENT

The schedule award provision of FECA6and its implementing federal regulations,7set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members or functions of the body. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. For consistent results and to ensure equal justice, the Board has authorized the use of 

a single set of tables so that there may be uniform standards applicable to all claimants.8 For 

schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the 

A.M.A., Guides, published in 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 

It is the claimant’s burden of proof to establish a permanent impairment of the scheduled 

member or function as a result of an employment injury.11 OWCP procedures provide that, to 

support a schedule award, the file must contain competent medical evidence which shows that the 

impairment has reached a permanent and fixed state and indicates the date on which this occurred, 

describes the impairment in sufficient detail so that it can be visualized on review, and computes 

the percentage of impairment in accordance with the A.M.A., Guides.12

ANALYSIS

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

OWCP accepted that appellant sustained a right shoulder sprain as a result of an August 6, 

2016 employment injury. On June 26, 2018 appellant filed a claim for a schedule award and 

submitted a May 8, 2018 impairment rating. OWCP subsequently referred appellant’s claim to

Dr. Dinenberg for a second opinion examination. In a November 14, 2018 report, Dr. Dinenberg 

indicated that he was unable to complete a physical examination due to appellant’s complaints of 

severe pain, and thus, he could not provide an impairment rating. Upon review of Dr. Dinenberg’s 

report, Dr. Estaris, the DMA, related in a December 31, 2018 report that he was unable to provide 

an impairment rating because Dr. Dinenberg discontinued his examination. Based on the reports 

of Dr. Estaris and Dr. Dinenberg, OWCP denied appellant’s schedule award claim.

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

10 D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961). 

11 D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

12 Supra note 9 at Chapter 2.808.5 (March 2017).
5

It is well established that proceedings under FECA are not adversarial in nature, nor is 

OWCP a disinterested arbiter.13 While the claimant has the responsibility to establish entitlement

to compensation, OWCP shares responsibility in the development of the evidence. It has the 

obligation to see that justice is done.14 Once OWCP undertakes development of the record, it must 

procure medical evidence that will resolve the relevant issues in the case.15 

OWCP began to develop the evidence when it referred appellant to Dr. Dinenberg for an 

evaluation and assessment of her work-related condition and any resulting permanent 

impairment.16 Both Dr. Dinenberg and the DMA were unable to provide an impairment evaluation

due to appellant’s complaints of severe pain and could not complete the examination because 

“[appellant’s] examination [was] equivocal.” The Board finds that OWCP did not make any 

finding regarding why appellant was unable to complete her second opinion examination and failed 

to consider whether appellant’s compensation benefits should have been suspended pursuant to 5 

U.S.C. § 8123(d) for obstruction of a medical examination.17

On remand OWCP should refer appellant back to Dr. Dinenberg or another appropriate 

specialist. Additionally, it should apprise appellant of the penalty provisions of section 8123(d) of 

FECA.18 If applicable, OWCP should impose such sanctions, in the proper manner, upon making 

a finding that appellant malingered or otherwise obstructed the examination.19 Following this and 

such further development deemed necessary, it shall issue a de novo decision regarding whether 

appellant has established employment-related right upper extremity permanent impairment, 

warranting a schedule award.

CONCLUSION

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

 

13 See Vanessa Young, 55 ECAB 575 (2004).

14 Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

15 Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

16 See K.G., Docket No. 17-0821 (issued May 9, 2018).

17 See Charles A. McNeely, 40 ECAB 484 (1989). On remand, the Board directed OWCP to retest appellant and 

apprise him of the penalty provisions of 5 U.S.C. § 8123(d) and to impose said sanctions, if applicable, if there was a 

finding of malingering or obstruction of the examination).

18 Id.; 5 U.S.C. § 8123(d).

19 Charles A. McNeely, supra note 17.
6

ORDER

IT IS HEREBY ORDERED THAT the January 10, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: December 3, 2019

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board