United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.G., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 16-1686 

Issued: September 13, 2017 

Appearances: Case Submitted on the Record

Ron Watson, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 15, 2016 appellant, through his representative, filed a timely appeal from a 

May 4, 2016 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

 Appellant also filed a timely request for oral argument in this case. By order dated January 11, 2017 the Board, 

after exercising it discretion denied his request for oral argument as oral argument would further delay issuance of a 

Board decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 16-1686 

(issued January 11, 2017). 

3

 5 U.S.C. § 8101 et seq.
2

ISSUE 

The issue is whether appellant has more than seven percent permanent impairment of his 

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

FACTUAL HISTORY 

This case has previously been before the Board.4

 The facts of the case as presented in the 

prior appeal are incorporated herein by reference. The relevant facts are as follows. 

On December 27, 2002 appellant, then a 41-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on December 26, 2002 he sustained a right shoulder injury 

when he slipped on ice. By decision dated February 13, 2003, OWCP accepted the claim for 

right shoulder sprain. 

On May 5, 2010 appellant filed a recurrence claim (Form CA-2a) alleging a 

return/increase of disability. By decision dated October 7, 2010, OWCP accepted his recurrence 

claim which was expanded to include complete right rotator cuff rupture and subsequently, 

postoperative infection. 

OWCP authorized surgery for right shoulder arthroscopy and biceps tendon repair and on 

December 16, 2010, appellant underwent right shoulder arthroscopy with extensive debridement, 

lysis of adhesions, biceps tenodesis, subacromial decompression with acromioplasty, rotator cuff 

repair, and distal clavicle excision. It approved a subsequent February 3, 2011 surgery resulting 

from a postoperative infection. Appellant then underwent a right shoulder arthroscopy with 

extensive debridement, complete synovectomy, loose body removal, and subacromial 

decompression. On February 8, 2011 he underwent an additional surgery for drainage of a pus 

collection in the subcutaneous tissues anteriorly. Appellant returned to full-time work on 

July 11, 2011. The record reflects that he received compensation benefits on the periodic rolls 

from December 19, 2010 until July 10, 2011. 

On January 11, 2012 appellant filed a claim for a schedule award (Form CA-7). In 

support of his schedule award claim, he submitted a December 28, 2011 medical report from his 

treating physician, Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon. In his report, 

Dr. Hartunian diagnosed acromioclavicular (AC) joint disease of the right shoulder, rotator cuff 

injury with full-thickness rotator cuff tear status post repair of the right shoulder, and biceps 

tendon tear status post tenodesis of the right shoulder. Using the diagnosis-based impairment 

(DBI) methodology and Table 15-5, in the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Hartunian opined that 

appellant had 22 percent permanent impairment of the right upper extremity. The rating was 

based on AC joint disease for 12 percent permanent impairment, rotator cuff tear for 7 percent 

permanent impairment, and biceps tendinitis and weakness for 5 percent permanent impairment. 

On September 6, 2012 OWCP routed Dr. Hartunian’s report, a statement of accepted 

facts (SOAF), and appellant’s case record to Dr. Morley Slutsky, an OWCP medical adviser 

 4

 Docket No. 14-0359 (issued June 22, 2015). 
3

Board-certified in occupational medicine, for an opinion regarding the extent of appellant’s 

permanent impairment of the right upper extremity. In a September 6, 2012 report, Dr. Slutsky 

noted that appellant had a number of diagnoses which could be rated for permanent impairment. 

He related, however, that Dr. Hartunian improperly rated multiple conditions when only the 

diagnosis which produced the greatest potential impairment in accordance with section 15.2(e) 

and 15.3(f) of the A.M.A., Guides could be used. Dr. Slutsky found that the diagnosis of 

AC joint arthrosis status post distal clavicle resection had the greatest potential for impairment 

and agreed with Dr. Hartunian’s 12 percent permanent impairment rating for this condition. He 

concluded that appellant’s total right upper extremity impairment was 12 percent. 

In a December 31, 2012 supplemental report, Dr. Hartunian reviewed Dr. Slutsky’s report 

and disagreed with his conclusion that only one diagnosis could be used to calculate appellant’s 

permanent impairment of the upper right extremity. While he agreed with Dr. Slutsky that the 

AC joint arthrosis status post clavicle excision was the highest ratable condition, he argued that 

ratings for the rotator cuff and biceps tendon tear should be combined due to the complex nature 

of the injuries. Dr. Hartunian again concluded that appellant was entitled to a schedule award for 

22 percent permanent impairment of the right upper extremity. 

On March 20, 2013 OWCP referred appellant to Dr. Kenneth J. Glazier, a Board-certified 

orthopedic surgeon, for an impartial medical examination to resolve the conflict regarding the 

extent of permanent impairment between Dr. Hartunian and Dr. Slutsky. 

In an April 16, 2013 medical report, Dr. Glazier provided a medical history and findings 

on physical examination. He agreed with Dr. Slutsky’s assessment that only the highest rated 

diagnosis should be used, based on the A.M.A., Guides. Dr. Glazier opined, however, that the 

more appropriate diagnosis was the rotator cuff tear due to the lack of symptoms and findings at 

the AC joint. Pursuant to the DBI method, using Table 15-5, he calculated seven percent right 

upper extremity permanent impairment based on appellant’s rotator cuff injury. 

On May 7, 2013 OWCP requested that Dr. Robert Y. Pick, an OWCP medical adviser 

and Board-certified orthopedic surgeon, review the record regarding appellant’s schedule award 

claim. 

In a May 26, 2013 report, Dr. Pick agreed with Dr. Glazier’s finding that appellant had 

seven percent permanent impairment of the right upper extremity. He noted that the impairment 

rating was based on the rotator cuff because it was the salient and major impairment, as opposed 

to the AC joint. 

By decision dated June 28, 2013, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the right upper extremity, finding that the weight of the 

medical evidence rested with Dr. Glazier’s impartial medical evaluation. The date of maximum 

medical improvement (MMI) was noted as July 11, 2011. The award covered a period of 21.84 

weeks from July 11 to December 10, 2011. 

Appellant, through his representative, appealed to the Board on December 2, 2013. By 

decision dated June 22, 2015, the Board set aside OWCP’s June 28, 2013 decision granting 

appellant a schedule award for seven percent permanent impairment of the right upper extremity 
4

and remanded the case for further development. The Board found that the opinion of 

Dr. Glazier, serving as the impartial medical examiner, was of reduced probative value and failed 

to resolve the conflict in medical opinion as to whether appellant’s schedule award should be 

based upon a single diagnosis and because his findings were internally inconsistent regarding 

findings on physical examination of the AC joint.5 

Following the Board’s June 22, 2015 remand, OWCP referred appellant, a SOAF, the 

case file, a medical conflict statement, and a series of questions to Dr. Murray Goodman, a 

Board-certified orthopedic surgeon, for an impartial medical evaluation to resolve the continued 

conflict of medical opinion regarding the extent of appellant’s permanent impairment of his right 

upper extremity. It requested Dr. Goodman discuss any points of disagreement and resolve the 

conflict as to whether appellant’s permanent impairment should be based on a single diagnosis or 

multiple diagnoses, pursuant to the A.M.A., Guides.

6

 

In a November 30, 2015 medical report, Dr. Goodman discussed appellant’s medical 

history and review of diagnostic testing. He noted that, on December 16, 2010, appellant 

underwent a right shoulder arthroscopic debridement, subacromial decompression, rotator cuff 

repair, and distal clavicle resection, but a complete repair of the rotator cuff could not be 

accomplished. Postoperatively, appellant developed a wound infection and underwent surgery 

again in February 2011. Physical examination findings of the right shoulder revealed nonfocal 

tenderness, range of motion (ROM) findings of 130 degrees of forward flexion, 180 degrees of 

abduction, mild snapping, external rotation at 60 degrees, internal rotation at 50 degrees, mild 

pain, and mild weakness on resisted abduction and external rotation. Dr. Goodman identified 

diagnoses of right shoulder sprain, complete rotator cuff rupture of the right shoulder, and 

postoperative infection which were causally related to appellant’s work injury. He also noted a 

diagnosis of AC joint arthritis of the right shoulder which he opined was a preexisting condition, 

but could have predisposed him to or increased his risk of the work injury. Dr. Goodman 

explained that MMI had been obtained following the surgery. 

Dr. Goodman opined that appellant had seven percent permanent impairment of the right 

upper extremity in accordance with the A.M.A., Guides (6th ed. 2009).7

 He explained that, with 

respect to the shoulder, it is not uncommon for rotator cuff tears, superior labrum from anterior 

to posterior lesion or other labral lesions, and biceps tendon pathology to be present 

simultaneously. Dr. Goodman noted that the evaluator was expected to choose the most 

significant diagnosis and rate only that diagnosis using the DBI method.8

 Utilizing Table 15-5 

Shoulder Regional Grid for Upper Extremity Impairments, Dr. Goodman identified the most 

significant diagnosis as rotator cuff injury, full thickness tear under a class one impairment for 

residual loss.9

 He noted that it was not appropriate to utilize AC joint injury or disease because 

 5 Id.

6

 A.M.A., Guides (2009). 

7 Id. 

8 Id. at 390, section 15.2e. 

9 Id. at 403. 
5

although the AC joint arthritis was present, it was a preexisting condition, not related to his work 

injury, and not accepted by OWCP. Dr. Goodman assigned for functional history a grade 

modifier of 2 based on a QuickDASH score of 56.6710 and physical examination a grade 

modifier of 2.11 Clinical studies were not utilized because the magnetic resonance imaging scan 

was used to establish the impairment class. Dr. Goodman applied the net adjustment formula 

which resulted in two, moving appellant to grade E with an adjusted impairment rating of seven 

percent permanent impairment of the right upper extremity.12

On January 29, 2016 OWCP routed Dr. Hartunian’s December 28, 2011 report, 

Dr. Slutsky’s September 6, 2012 report, Dr. Goodman’s November 30, 2015 report, a SOAF, and 

the case file to Dr. Taisha S. Williams, an OWCP district medical adviser (DMA), for an opinion 

on Dr. Goodman’s impairment rating. It noted that the case was referred for an impartial 

medical examination in order to resolve a conflict of medical opinion between Dr. Hartunian and 

Dr. Slutsky with regard to the percentage of permanent impairment of the right upper extremity. 

OWCP identified the accepted conditions of adhesive capsulitis of the right shoulder, complete 

rotator cuff tear or rupture of the right shoulder, sprain of right shoulder and upper arm, and 

postoperative infection. 

In a February 28, 2016 medical report, Dr. Williams reported that Dr. Goodman correctly 

applied the criteria/tables in the A.M.A., Guides and noted the correct date of MMI. 

In a May 4, 2016 de novo decision, OWCP found that, based upon the report of 

Dr. Goodman appellant was not entitled to additional schedule award for permanent impairment 

of the right upper extremity. 

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.13 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.14 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 

 10 Id. at 406, Table 15-7. 

11 Id. at 408, Table 15-8. 

12 Id. at 411. 

13 See 20 C.F.R. §§ 1.1-1.4. 

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

§ 8107(c)(1). 
6

implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.15 

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).16 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.17

ANALYSIS 

OWCP accepted appellant’s claim for sprain of right shoulder and upper arm, adhesive 

capsulitis of the right shoulder, complete rotator cuff tear or rupture of the right shoulder, and 

postoperative infection. The issue is whether appellant sustained more than seven percent 

permanent impairment of the upper right extremity, for which he previously received a schedule 

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

In its June 22, 2015 decision, the Board found that the conflict in medical evidence 

between the opinions of Dr. Slutsky and Dr. Hartunian was well defined in their reports. 

Dr. Hartunian contended that appellant’s unusual medical history and array of symptoms 

required that a schedule award include multiple diagnoses while Dr. Slutsky found that 

appellant’s symptoms and impairment were accurately reflected in a single diagnosis. As 

Dr. Glazier, serving as the impartial medical examiner, failed to explain or resolve this conflict, 

the Board set aside OWCP’s June 28, 2013 decision and remanded the case for further medical 

development. 

On remand OWCP requested Dr. Goodman, serving as the impartial medical examiner, 

discuss any points of disagreement and resolve the conflict of whether the permanent impairment 

is based on a single diagnosis or multiple diagnoses. In his November 30, 2015 report, 

Dr. Goodman utilized the DBI method and identified the diagnosis as rotator cuff injury, fullthickness tear with residual loss under a class 1 impairment and opined that appellant was 

entitled to seven percent permanent impairment of the upper right extremity. Dr. Williams, 

serving as an OWCP DMA, reviewed this referee report and agreed with his findings. 

 15 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001). 

16 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (February 2013). 

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

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

impairment of his 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 had been followed regarding the proper use of the DBI or the ROM 

methodology when assessing the extent of permanent impairment for schedule award purposes.18 

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

justice under the law to all claimants.19 In T.H., the Board concluded that OWCP physicians 

were 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 observed that physicians 

interchangeably cited to language in the first printing or the second printing when justifying use 

of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the 

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure 

consistent results and equal justice under the law for all claimants.20

In order to ensure a consistent result and equal justice under the law for cases involving 

upper extremity impairment, the Board will set aside the May 4, 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 on appellant’s claim for an upper extremity schedule award. 

CONCLUSION 

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

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

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

20 Supra note 18.
8

ORDER 

IT IS HEREBY ORDERED THAT the May 4, 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: September 13, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board