United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

St. Louis, MO, Employer

__________________________________________

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Docket No. 18-0460

Issued: July 2, 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 January 4, 2018 appellant, through counsel, filed a timely appeal from a November 27, 

2017 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.

 

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 met her burden of proof to establish more than two 

percent permanent impairment of her left upper extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On April 14, 2015 appellant filed a traumatic injury claim (Form CA-1), under OWCP File 

No. xxxxxx561, alleging that, on April 10, 2015, she sustained a left upper extremity injury due to 

lifting a package while at work. She stopped work on April 10, 2015 and returned to limited-duty 

work on April 15, 2015 without wage loss. Appellant returned to full-duty work on July 28, 2015.

On June 10, 2015 OWCP initially accepted that appellant sustained a left shoulder sprain

on April 10, 2015.

3

In an August 25, 2015 report, Dr. William C. Kostman, an attending Board-certified 

orthopedic surgeon, detailed the findings of the physical examination he performed on that date. 

He reported range of motion (ROM) findings for appellant’s shoulders: flexion (180 degrees, 

bilaterally), abduction (100 degrees, bilaterally), and external rotation (70 degrees on the left and 

80 degrees on the right). Dr. Kostman did not measure internal rotation or adduction in degrees. 

He noted that appellant had a mildly positive impingement sign for the left shoulder and that there 

was diffuse tenderness to palpation throughout the left shoulder. Dr. Kostman determined that 

appellant had reached maximum medical improvement (MMI).

Counsel argued that Dr. Kostman’s August 25, 2015 report showed that appellant had 

employment-related tendinitis of her left shoulder. On June 14, 2016 OWCP expanded the 

accepted conditions to include tendinitis of the left shoulder rotator cuff. 

On September 26, 2016 appellant filed a claim for a schedule award (Form CA-7) due to 

her accepted left shoulder conditions. 

In a July 1, 2016 report, Dr. Neil Allen, an attending Board-certified internist and 

neurologist, detailed the findings of the physical examination he conducted on July 1, 2016. He 

noted that appellant had tenderness to palpation of the anterior joint of her left shoulder, but that 

there was no instability or crepitus of the shoulder. Appellant exhibited 5/5 muscle strength and 

intact sensation in her left upper extremity. Dr. Allen indicated that ROM findings for her left 

shoulder were obtained in sets of three: flexion (140, 140, and 140 degrees), extension (50, 45, 

and 45 degrees), abduction (110, 100, and 102 degrees), adduction (60, 70, and 70 degrees), 

internal rotation (90, 88, and 90 degrees), and external rotation (90, 88, and 90 degrees). He 

evaluated the permanent impairment of appellant’s left upper extremity under the standards of the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

 

3 OWCP had previously accepted, under OWCP File Nos. xxxxxx012 and xxxxxx966, respectively, that appellant 

sustained lateral collateral ligament strains of her right knee due to December 19, 2013 and November 14, 2014 

employment incidents. After appellant sustained her April 10, 2015 left shoulder injury, OWCP accepted, (under 

OWCP File No. xxxxxx675, that she sustained cervical, thoracic, and lumbar strains due to a December 2, 2015 

employment incident. OWCP combined the files for these four claims and designated OWCP File No. xxxxxx561 

(regarding the April 10, 2015 left shoulder injury) as the master file. 
3

Impairment (A.M.A., Guides).4 Dr. Allen indicated that she had a QuickDASH score of 55. He 

applied the diagnosis-based impairment (DBI) method of rating upper extremity permanent 

impairment under Table 15-5 on page 402, noting that appellant’s left shoulder tendinitis condition 

equaled a class 1 condition with a three percent default value (under the category for individuals 

who had residual loss of the shoulder, but were functional). Dr. Allen found that she had a 

functional history grade modifier of 2, a physical examination grade modifier of 1, and a clinical 

studies grade modifier of 2. He found that application of the net adjustment formula yielded a +2

result, which required movement two spaces to the right of the three percent default value on Table 

15-5. Therefore, the total permanent impairment of appellant’s left upper extremity was five

percent. Dr. Allen determined that appellant reached MMI as of July 1, 2016.

OWCP referred the case to Dr. James W. Butler, a Board-certified occupational medicine 

physician serving as an OWCP district medical adviser (DMA). It requested that he review the 

medical evidence of record, including Dr. Allen’s July 1, 2016 report, and provide an opinion 

regarding the permanent impairment of appellant’s left upper extremity under the sixth edition of 

the A.M.A., Guides.

In a December 13, 2016 report, Dr. Butler determined that appellant had two percent 

permanent impairment of her left upper extremity under the standards of the sixth edition of the 

A.M.A., Guides. He applied the DBI method of rating upper extremity permanent impairment 

under Table 15-5 on page 402, noting that her left shoulder tendinitis condition equaled a class 1 

condition with a one percent default value (under the category for individuals with a history of 

painful injury or occupational exposure with residual symptoms, but no consistent objective 

findings). Dr. Butler found that appellant had a functional history grader modifier of 2 (based on 

the QuickDASH score of 55, as reported by Dr. Allen) and a clinical studies grade modifier of 1. 

He determined that a physical examination modifier was not applicable because the ROM 

measurements reported by Dr. Allen differed from those reported by Dr. Kostman on 

August 25, 2015. Dr. Butler noted that the sixth edition of the A.M.A., Guides provided that, 

where ROM measurements between multiple examiners were inconsistent, such measurements 

should not be used. He found that application of the net adjustment formula yielded a +1 result, 

which required movement one space to the right of the one percent default value on Table 15-5. 

Therefore, the total permanent impairment of appellant’s left upper extremity was two percent. 

Dr. Butler determined that appellant reached MMI as of August 25, 2015, the date of

Dr. Kostman’s examination.

By decision dated February 9, 2017, OWCP granted appellant a schedule award for two 

percent permanent impairment of her left upper extremity. The award ran for 6.24 weeks from 

August 25 and October 7, 2015 and was based on Dr. Butler’s December 13, 2016 impairment 

rating.

On February 15, 2017 appellant, through counsel, requested a telephone hearing with a 

representative of OWCP’s Branch of Hearings and Review. 

 

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

During the hearing held on August 2, 2017, counsel argued that there was a conflict in the 

medical opinion evidence between Dr. Allen and Dr. Butler regarding the extent of the permanent 

impairment of appellant’s left upper extremity.

After the hearing, appellant submitted a May 30, 2017 report from Dr. Allen who noted 

that he disagreed with Dr. Butler’s impairment rating.5 Dr. Allen argued that Dr. Kostman did not 

properly obtain ROM findings for appellant’s left shoulder on August 25, 2015. He asserted that 

the ROM findings he obtained on July 1, 2016 were accurate and should be included in the 

impairment rating as an element of the physical examination grade modifier. Dr. Allen then 

repeated his impairment rating evaluation from July 1, 2016 and again concluded that appellant 

had five percent permanent impairment of her left upper extremity.

By decision dated September 15, 2017, OWCP’s hearing representative affirmed OWCP’s 

February 9, 2017 decision. The hearing representative indicated that the weight of the medical 

evidence regarding the permanent impairment of appellant’s left upper extremity continued to rest 

with the opinion of the DMA, Dr. Butler.

On November 6, 2017 appellant, through counsel, requested reconsideration of OWCP’s 

September 15, 2017 decision.

In a September 21, 2017 report, Dr. Allen determined that appellant had eight percent 

permanent impairment of her left upper extremity under the sixth edition of the A.M.A, Guides.

6

 

He indicated that he had calculated the permanent impairment of her left upper extremity using the 

ROM impairment rating method under Table 15-34 on page 475 and found that she had 8.4 percent 

permanent impairment of her left upper extremity which rounded down to 8 percent permanent 

impairment.7 Dr. Allen determined that the ROM impairment rating method should be used 

because it provided the highest percentage for permanent impairment of the left upper extremity. 

By decision dated November 27, 2017, OWCP denied modification of its September 15, 

2017 decision. It found that the weight of the medical evidence regarding the permanent 

impairment of appellant’s left upper extremity continued to rest with the opinion of Dr. Butler.

LEGAL PRECEDENT

The schedule award provisions of FECA,8and its implementing federal regulations,

9

set 

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

 

5 Dr. Allen characterized the report as an “addendum to report dated July 1, 2016.”

6 Dr. Allen characterized the report as an “addendum to report dated July 1, 2016.”

7 Dr. Allen used the ROM findings for the left shoulder that he obtained on July 1, 2016. He indicated that, under 

Table 15-34, appellant had three percent impairment of the left upper extremity due to 140 degrees of flexion, three 

percent impairment due to 110 degrees of abduction, and two percent impairment due to 70 degrees of internal rotation. 

Calculation of an adjustment for the functional history grade modifier under Table 15-35 and Table 15-36 on page 

477 changed this impairment figure from 8 percent to 8.4 percent. 

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.
5

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

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.10 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.11

The sixth edition requires identifying the impairment class for the Class of Diagnosis 

(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH), Physical 

Examination (GMPE), and Clinical Studies (GMCS).12 The net adjustment formula is (GMFH –

CDX) + (GMPE - CDX) + (GMCS - CDX).13 

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:

“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).”

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e. DBI or 

ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] Guides

identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] Guides 

allow for the use of both the DBI and ROM methods to calculate an impairment 

rating for the diagnosis in question, the method producing the higher rating should 

be used. (Emphasis in the original).”

14

 

The Bulletin further advises: 

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question, 

the DMA should independently calculate impairment using the DBI method and 

clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,] 

 

10 Id. at § 10.404(a).

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

2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (March 2017). 

12 A.M.A., Guides 494-531.

13 Id. at 521.

14 FECA Bulletin No. 17-06 (issued May 8, 2017).
6

Guides, that ROM is not permitted as an alternative rating method for the diagnosis 

in question.”

15

ANALYSIS

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

OWCP accepted appellant’s claim for left shoulder sprain and tendinitis of the left shoulder 

rotator cuff. The issue on appeal is whether appellant has met her burden of proof to establish 

more than two percent permanent impairment of her left upper extremity, for which she previously 

received a schedule award. 

The Board has previously found that OWCP had 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.16 

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

justice under the law to all claimants.17 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 DMAs use both DBI and ROM methodologies interchangeably without any 

consistent basis. Furthermore, the Board observed that physicians interchangeably cite to language 

in the first printing or the second printing when justifying use of either ROM or DBI methodology. 

The Board therefore found that OWCP should develop a consistent method for calculating 

permanent impairment for upper extremities, which could be applied uniformly.

As noted above, FECA Bulletin No. 17-06 provides that, if the rating physician provided 

an assessment using the ROM method and the A.M.A., Guides allows for use of ROM for the 

diagnosis in question, the DMA should independently calculate impairment using both the ROM 

and DBI methods and identify the higher rating for OWCP’s claims examiner.

18

The Board, therefore, finds that this case requires further development of the medical 

evidence. Since Dr. Allen provided a rating based upon appellant’s loss of ROM of the left 

shoulder, which is allowed (by asterick) pursuant to Table 15-5 of the A.M.A., Guides, the DMA

should have independently calculated her impairment using both the ROM and DBI methods and 

identified the higher rating for OWCP’s claims examiner. If the medical evidence of record was 

not sufficient for the DMA to render a rating using the ROM or DBI method, he or she should 

advise as to the medical evidence necessary to complete the rating.19

 

15 Id.

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

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

18 See supra note 15.

19 Id.
7

This case will therefore be remanded for application of OWCP’s procedures found in 

FECA Bulletin No. 17-06. After such further development of the medical evidence as necessary, 

OWCP shall issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of 

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

consistent with this decision.

Issued: July 2, 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