United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 14-1499 

Issued: February 22, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 17, 2014 appellant, through counsel, filed a timely appeal from a May 14, 2014 

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. 

ISSUE 

The issue is whether appellant met her burden of proof to establish more than one percent 

permanent impairment of her right arm, for which he received a schedule award. 

 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

FACTUAL HISTORY 

On September 15, 2010 OWCP accepted that appellant, then a 53-year-old service and 

sales associate, sustained calcifying tendinitis of her right shoulder due to performing her 

repetitive job duties over time. Beginning September 30, 2010, she received compensation for 

periods of disability on the daily rolls. Appellant returned to work for the employing 

establishment and stopped receiving disability compensation in December 2010. 

On April 19, 2012 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated April 23, 2012, OWCP requested that appellant submit additional factual 

and medical evidence in support of her schedule award claim, including an impairment rating, 

which applied the standards of the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) (6th ed. 2009). 

In a report dated May 7, 2012, Dr. Victor Romano, an attending Board-certified 

orthopedic surgeon, described appellant’s medical history and reported the findings of his 

examination of her right shoulder on that date. He noted that external and internal rotator 

strength was 5/5 and that sensation was intact to light touch throughout the shoulder. 

Dr. Romano reported range of motion (ROM) findings for appellant’s right shoulder indicating 

that she had active and passive flexion to 150 degrees, active and passive abduction to 160 

degrees, and active and passive extension to 60 degrees. Appellant had passive extension to 60 

degrees, external rotation in an abducted position to 90 degrees, and internal rotation in an 

abducted position to 50 degrees. Dr. Romano diagnosed mild rotator cuff tendinitis of the right 

shoulder. 

In an accompanying impairment rating worksheet dated May 7, 2012, Dr. Romano 

indicated in the functional history portion of the worksheet that an attached pain disability 

questionnaire completed by appellant showed a “mild” score of 25. Clinical studies were 

represented by magnetic resonance imaging (MRI) scans from 2010, which showed tendinitis 

and impingement syndrome of her right shoulder. Dr. Romano listed the ROM findings for 

appellant’s right shoulder and indicated that, using the ROM rating method under Table 15-34 on 

page 475 of the sixth edition of the A.M.A., Guides, she had eight percent impairment of her 

right arm due to her limited right arm motion. He indicated that appellant’s impairment fell 

under grade modifier 1 and that her functional history score did not alter the impairment rating.3

 

Therefore, appellant had eight percent permanent impairment of her right arm. 

In a May 28, 2012 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon 

serving as an OWCP medical adviser, stated that, by all accounts, appellant’s right shoulder 

condition was “mild.” Appellant reported that pain did not keep her up at night and she had 

returned to work full duty. Dr. Garelick stated that physical examination demonstrated near full 

ROM of her right shoulder and internal and external rotation strength was noted to be normal in 

 3 See A.M.A., Guides 477, Table 15-35, Table 15-36. 
3

a December 21, 2010 note. Impingement signs of the right shoulder were classified as mild. 

Dr. Garelick stated: 

“Dr. Romano has submitted notes to the medical record and has recommended 

[eight percent] [right upper extremity (RUE) permanent partial impairment (PPI)] 

based on loss of shoulder motion. However, given the OWCP prefers PPI ratings 

based on a [diagnosis-based [impairment] estimate (DBI)] whenever possible, and 

[appellant’s] condition of impingement syndrome is thoroughly addressed in the 

DB[I] section of the 6th edition of the A.M.A., Guides, I would suggest his rating 

he disregarded.” 

* * * 

“Thus, based on Table 15-5, page 402 of the A.M.A., Guides, [one percent] RUE 

PPI is awarded for residual symptoms of impingement syndrome. There would 

be no alteration to this award with use of the net adjustment formula. The date of 

[maximum medical improvement (MMI)] would have occurred on January 25, 

2011 when she was discharged from Dr. Romano’s care. Right upper extremity 

PPI = [one percent]. Date of MMI = January 25, 2011.” 

By decision dated August 15, 2012, OWCP granted appellant a schedule award for one 

percent permanent impairment of her right arm. The award ran for 3.12 weeks from January 25 

to February 15, 2011 and was based on the May 28, 2012 impairment rating of Dr. Garelick. 

Appellant requested a hearing before an OWCP hearing representative. 

In an October 17, 2012 report, Dr. Neil Allen, an attending Board-certified internist and 

neurologist, detailed appellant’s history of medical treatment and reported findings of the 

physical examination of her right shoulder on that date. He indicated that she had tenderness 

over her right acromioclavicular joint, that there was no instability in her right shoulder and that 

strength was 5/5 in her right shoulder. Dr. Allen used the ROM method and found that, under 

Table 15-34 on page 475 of the sixth edition of the A.M.A., Guides, her 152 degrees of flexion 

equaled three percent permanent impairment of her right arm and her 131 degrees of abduction 

equaled three percent impairment of her right arm.4 With respect to his use of the ROM method 

and the adjustment for functional history, he stated: 

“According to A.M.A., Guides, 6th edition, page 473 ‘Adjustments for functional 

history may be made if: (1) [ROM] impairment is the only approach used to rate 

the extremity, (2) there are reliable findings of motion impairment, (3) the 

evaluator determines that the resulting impairment does not adequately reflect the 

functional loss, and (4) the functional reports are determined to be reliable.’ In 

this case, [ROM] was the only approach used to rate the extremity, goniometry 

determined a reliable and consistent decreased [ROM] compared to [appellant’s] 

 4

 Dr. Allen indicated that there was no impairment of appellant’s right arm due to her 56 degrees of extension, 

50 degrees of adduction, 90 degrees of internal rotation, and 72 degrees of external rotation. He also reported ROM 

findings for her left shoulder: 180 degrees of flexion, 70 degrees of extension, 181 degrees of abduction, 55 degrees 

of adduction, 110 degrees of internal rotation, and 90 degrees of external rotation. 
4

unaffected side, the resulting impairment did not adequately reflect her functional 

loss and her functional history was determined reliable by being within 2 grade 

modifiers of the [ROM] impairment. According to Table 15-36, page 477, 

Functional History Grade Adjustment: Range of Motion, if the functional history 

grade modifier is one grade higher than the [ROM] grade modifier the total 

[ROM] impairment is multiplied by [five percent]. This increased [appellant’s 

upper extremity] impairment to 6.3 [percent,] which was then rounded to the 

nearest whole number for a total upper extremity impairment of 6 [percent]. 

“According to the A.M.A., Guides, 6th edition, page 390, ‘[ROM] may under 

specific circumstances, be selected as an alternative approach to rating 

impairment. Diagnoses in the grid that may be rated using [ROM] are followed 

by an asterisk (*). An impairment rating that is calculated using [ROM] may not 

be combined with DBI; it stands alone as a rating.’ In [appellant’s] case of 

tendinitis of the right shoulder the [ROM] method reflected a more accurate 

impairment than the DBI method.” 

In a February 20, 2013 decision, an OWCP hearing representative set aside an August 15, 

2012 decision and remanded the case to OWCP for further development. OWCP was instructed 

to have an OWCP medical adviser review Dr. Allen’s October 17, 2012 report and evaluate 

whether it supported that appellant had a six percent permanent impairment of her right arm. 

The hearing representative directed OWCP to issue a new decision on her right arm impairment 

after appropriate development was carried out. 

On April 22, 2013 Dr. Garelick, again serving as an OWCP medical adviser, stated that, 

since his last report, appellant had experienced exacerbation of symptoms which had been 

successfully treated with activity modification and physical therapy. Appellant’s physical 

examination was essentially unchanged since May 2012. Dr. Garelick noted that Dr. Allen 

recommended six percent right arm impairment and that Dr. Romano recommended eight 

percent right arm impairment, noting that both physicians used the ROM method to evaluate the 

impairment. He indicated that the sixth edition of the A.M.A., Guides was different from 

previous editions of the A.M.A., Guides in that a system of awards based on the DBI method, 

rather than on the ROM method, had been introduced. Dr. Garelick noted that the A.M.A., 

Guides was quite clear in stating that the DBI method should be used whenever possible. He 

stated that, as noted in Chapter 16 of the sixth edition of the A.M.A., Guides (on page 543), the 

DBI method was the method of choice for calculating impairment. ROM was used principally as 

a factor in the adjustment grid physical examination and ROM may be used as a stand-alone 

rating when no other DBI is applicable for impairment rating. Dr. Garelick indicated that 

impingement syndrome constituted a DBI of appellant’s right shoulder. He strongly suggested 

that the DBI method be used and that the recommendations from Dr. Allen and Dr. Romano be 

disregarded. Dr. Garelick stated, “Therefore, I continue to maintain that [appellant] is due [one 

percent] RUE PPI. The date of MMI will be changed to reflect the recent exacerbation. I would 

suggest [that] the date of Dr. Allen’s report, October 17, 2012, represent the new date of MMI.” 

By decision dated October 9, 2013, OWCP determined that appellant had not met her 

burden of proof to establish more than a one percent permanent impairment of her right arm. It 
5

noted that the weight of the medical evidence with respect to her right arm impairment rested 

with the opinion of Dr. Garelick, the medical adviser. 

Appellant requested a telephone hearing with an OWCP hearing representative. During 

the March 12, 2014 hearing, counsel asserted that OWCP wrongly discounted the impairment 

ratings from her attending physicians which used the ROM method of rating arm impairment. 

He asserted that OWCP procedures dictated that the opinion of the medical adviser should not 

constitute the weight of the medical evidence in the present case. 

In a May 14, 2014 decision, the hearing representative affirmed OWCP’s October 9, 

2013 decision, finding that appellant had no more than one percent permanent impairment of his 

right arm. 

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.5

 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.6 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.7 

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).8

 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.9

 5 See 20 C.F.R. §§ 1.1-1.4. 

6

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

§ 8107(c)(1). 

7

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

8

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

Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

9 Isidoro Rivera, 12 ECAB 348 (1961). 
6

ANALYSIS 

The issue on appeal is whether appellant has more than one percent impairment of her 

right upper arm, for which she 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.10 

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

justice under the law to all claimants.11 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.12 

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 May 14, 2014 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 this case not in posture for decision.

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

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

12 Supra note 10. 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of 

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

consistent with this decision.13

Issued: February 22, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 13 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.