United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.L., Appellant

and

U.S. POSTAL SERVICE, TAMPA 

PROCESSING & DISTRIBUTION CENTER, 

Tampa, FL, Employer

__________________________________________

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Docket No. 18-0588

Issued: October 3, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 25, 2018 appellant filed a timely appeal from an October 27, 2017 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 14 percent 

permanent impairment of his left upper extremity and 5 percent permanent impairment of his right 

upper extremity, for which he previously received schedule award compensation.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On July 19, 2004 appellant, then a 38-year-old mail handler, filed an occupational disease 

claim (Form CA-2) alleging that repetitive job duties caused bilateral shoulder, neck, hip, and left 

elbow conditions. 

On August 20, 2004 OWCP accepted the claim for cervical, lumbar, and thoracic strains, 

and tendinitis of both shoulders and paid him partial wage-loss compensation on the supplemental 

rolls until December 30, 2004 when he stopped work completely. It then paid him disability 

compensation on the periodic compensation rolls as of August 7, 2005. Appellant did not return 

to work. 

On September 27, 2007 OWCP expanded acceptance of the claim to include left shoulder 

rotator cuff tear. 

On August 21, 2009 OWCP noted via letter that appellant was interested in pursuing a 

schedule award claim. On August 28, 2009 appellant elected Office of Personnel Management 

(OPM) retirement benefits, effective September 29, 2009. He continues to receive OPM 

retirement benefits. 

In a report dated October 1, 2009, Dr. James W. Dyer, a Board-certified orthopedic 

surgeon and OWCP medical adviser, reviewed the medical evidence and advised that, in 

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

of Permanent Impairment (hereinafter A.M.A., Guides),2 based on appellant’s left shoulder range 

of motion (ROM) deficits, he was entitled to 14 percent permanent impairment of the left upper 

extremity. Dr. Dyer noted that appellant had reached maximum medical improvement (MMI) on

September 14, 2009.3

By decision dated October 28, 2009, OWCP granted appellant a schedule award for 14 

percent permanent impairment of the left upper extremity, for a total of 43.68 weeks, to run from 

September 29, 2009 to July 31, 2010. 

On February 27, 2015 appellant filed an additional schedule award claim (Form CA-7). 

In support of his claim for an additional schedule award, appellant submitted a February 4, 

2015 report in which Dr. Richard M. Blecha, a Board-certified orthopedic surgeon, provided an 

impairment evaluation. He described right shoulder flexion of 170/180 degrees, extension 40/50 

degrees, abduction 145/170 degrees, adduction 40/40 degrees, internal rotation 80/80 degrees, and 

external rotation 50/60 degrees. Left shoulder flexion was 165/180 degrees, flexion 165/180 

degrees, extension 40/50 degrees, abduction 95/170 degrees, adduction 40/40 degrees, internal 

rotation 80/80 degrees, and external rotation 60/60/degrees. Dr. Blecha diagnosed osteoarthritis 

of the left acromioclavicular (ACL) joint. He advised that the ROM method was the appropriate 

 

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

3 Dr. Dyer based his findings on a September 14, 2009 impairment evaluation performed by Dr. Samy F. Bishai, 

an attending orthopedic surgeon, who advised that appellant had 14 percent permanent impairment of each upper 

extremity. 
3

method of evaluating appellant’s impairment and concluded that, due to loss of left shoulder 

motion, he had seven percent permanent impairment of the left shoulder. 

In a March 30, 2015 report, Dr. H.P. Hogshead, also Board-certified in orthopedic surgery 

and an OWCP medical adviser, agreed with Dr. Blecha that appellant had seven percent 

impairment of the left upper extremity. OWCP’s medical adviser noted that, as appellant had 

previously received a schedule award for 14 percent left upper extremity permanent impairment, 

he was not entitled to a greater award. 

In a July 15, 2015 report, Dr. Bishai described physical examination findings and 

diagnosed internal derangement of each shoulder, status post surgery on the left elbow, bilateral 

carpal tunnel syndrome, chronic cervical strain, lumbar disc syndrome, herniated discs at L4-5 and 

L5-S1, grade 1 posterolisthesis at L5, and impingement syndrome of both shoulder. He utilized 

Table 15-34, Shoulder Range of Motion, of the sixth edition of the A.M.A., Guides and indicated 

that right shoulder flexion measured 80 degrees, for 9 percent upper extremity impairment, 

extension measured 15 degrees for 2 percent impairment, abduction measured 80 degrees for 6 

percent impairment, adduction measured 20 degrees for 1 percent impairment, internal rotation 

measured 20 degrees for 4 percent impairment, and external rotation measured 45 degrees for 2 

percent impairment. Dr. Bishai then combined the individual ROM impairments for a total 24 

percent right upper extremity permanent impairment. Left shoulder ROM demonstrated 70 

degrees of flexion for 9 percent upper extremity impairment, 10 degrees of extension measured 

for 2 percent impairment, 70 degrees of abduction for 6 percent impairment, 15 degrees of 

adduction for 1 percent impairment, 15 degrees of internal rotation for 4 percent impairment, and 

40 degrees of external rotation measured for 2 percent impairment. Dr. Bishai then added the 

individual ROM impairments for a total 24 percent left upper extremity permanent impairment. 

He indicated that MMI was reached on July 15, 2015.

OWCP forwarded medical records including Dr. Bishai’s July 15, 2015 report to

Dr. Michael M. Katz, an OWCP medical adviser who is Board-certified in orthopedic surgery, for 

review. In a report dated January 21, 2016, Dr. Katz requested that additional medical evidence 

be provided. In a report dated March 16, 2016, he noted his review of record including the reports 

of Dr. Blecha, Dr. Hogshead, and Dr. Bishai. Based on the marked variance in impairment found 

between Dr. Blecha and Dr. Bishai, both attending physicians, Dr. Katz recommended referral to 

an appropriate Board-certified specialist for a second opinion evaluation. 

In August 2016, OWCP referred appellant to Dr. Patrick Horan, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine if appellant was entitled to an 

additional schedule award. 

In a September 12, 2016 report, Dr. Horan noted his review of the medical record. He 

indicated that, when he asked appellant to raise his right arm, he raised it to 85 degrees and would 

not go further, stating that it would cause discomfort. Dr. Horan then terminated the evaluation 

because ROM could not be determined without full participation from the patient. He noted that 

the A.M.A., Guides require full ROM, not full motion without discomfort. OWCP again referred 

appellant to Dr. Horan on October 20, 2016. 
4

In a November 21, 2016 report, Dr. Horan described physical examination findings. He 

noted right shoulder flexion to 150 degrees, extension to 40 degrees, abduction to 130 degrees, 

adduction to 50 degrees, internal rotation to 80 degrees, and external rotation to 90 degrees. Left 

shoulder flexion was to 160 degrees, extension to 20 degrees, abduction to 110 degrees, adduction 

to 30 degrees, internal rotation to 40 degrees, and external rotation to 70 degrees. Dr. Horan 

indicated that MMI was reached on February 4, 2015. He found that appellant had a labral lesion 

of the right shoulder with residual symptoms of tenderness and minimal loss of ROM, he found 

that under Table 15-5, Shoulder Regional Grid, appellant had a class 1 diagnosis-based impairment 

(DBI), with a modifier of 2 for physical examination, for four percent permanent impairment of 

the right upper extremity. Dr. Horan advised that using the DBI methodology, under Table 15-5, 

appellant had impingement syndrome of the left shoulder for a class 1 impairment and also had 

loss of ROM, with modifiers of 2 for physical examination and functional history, for a total five

percent permanent impairment of the left shoulder. 

On March 3, 2017 OWCP asked its medical adviser, Dr. Katz, to review the record, 

including Dr. Horan’s reports. In a March 20, 2017 report, Dr. Katz referenced his March 16, 

2016 report. He noted Dr. Horan’s impairment analysis for both shoulders and agreed with his 

conclusion that appellant was not entitled to an additional schedule award for left upper extremity 

impairment. Regarding the right shoulder, Dr. Katz noted that Dr. Horan utilized the DBI 

methodology and found four percent permanent impairment under Table 15-5, and advised that 

this was supported by the record, yet in his conclusion indicated that appellant had five percent 

right upper extremity impairment. 

By decision dated May 1, 2017, OWCP granted appellant a schedule award for five percent 

permanent impairment of his right upper extremity (arm), for a total of 15.6 weeks, to run from 

November 21, 2016 to March 10, 2017. 

Appellant requested a hearing before an OWCP hearing representative. By decision dated

October 11, 2017, an OWCP hearing representative remanded the case to OWCP. The hearing 

representative noted that left upper extremity permanent impairment was not addressed in the 

decision. Regarding the right shoulder, the hearing representative questioned why Dr. Horan’s 

calculations identified four percent impairment, yet OWCP’s medical adviser, Dr. Katz, concluded 

that appellant had five percent permanent impairment of the right upper extremity. The hearing 

representative further found that, as appellant’s condition could alternatively be rated using ROM, 

OWCP should undertake further development in compliance with FECA Bulletin No. 17-06. 

Upon return of the case record, OWCP was instructed to obtain a supplementary report from an 

OWCP medical adviser who was to provide medical rationale that supported all opinions given, 

including clarifying the disparity between the four percent calculation and the five percent 

conclusion of right upper extremity impairment. Following this development, OWCP was to issue

a de novo decision.

Following a request for a clarification of his March 20, 2017 report, in an October 24, 2017 

report, Dr. Katz noted that he had reviewed the statement of accepted facts and medical record and 

referenced his March 20, 2017 report. He indicated that the current report superseded his prior 

report, which contained a typographical error. OWCP’s medical adviser described Dr. Horan’s 

findings under Table 15-5 for both shoulders, noting five percent impairment on the left and four 

percent on the right. Dr. Katz referenced FECA Bulletin No. 17-06, noting that DBI or ROM 
5

could be used in diagnoses designated by an asterisk, including appellant’s bilateral shoulder 

diagnoses. He further noted that the A.M.A., Guides provide that, if ROM is to be used, three 

independent measurements should be documented, and because Dr. Horan did not report three 

independent range of motion measurements, he was unable to calculate ROM impairments for the 

shoulders. Dr. Katz concluded that DBI impairment was therefore proper and indicated that 

appellant had 4 percent permanent impairment of the right shoulder and 5 percent on the left which 

was less than the 14 percent previously awarded, with November 21, 2016 the date of MMI. 

By decision dated October 27, 2017, OWCP found that appellant was not entitled to 

schedule awards for upper extremity impairments greater than those he had previously received, 

i.e., four percent on the left and five percent on the right. It noted that the medical evidence 

established that he had permanent impairments of five percent on the left and four percent on the 

right. 

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulation,5set 

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. 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.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

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).8 The net adjustment formula is (GMFH-CDX) 

+ (GMPE-CDX) + (GMCS-CDX).9 

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

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

“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 

 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7 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). 

8 A.M.A., Guides, supra note 2 at 383-492.

9

Id. at 411.
6

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.,] 

Guidesidentify 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.)10

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.,] 

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

in question.

“If the rating physician provided an assessment using the DBI 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 medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

11

ANALYSIS

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

The record establishes that in an October 11, 2017 decision, an OWCP hearing 

representative remanded the case to OWCP for application of FECA Bulletin No. 17-06 to 

appellant’s schedule award claim. OWCP then obtained a medical report from its medical adviser

 

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

11 Id.
7

Dr. Katz. In an October 24, 2017 report, Dr. Katz referenced FECA Bulletin No. 17-06, and found 

that, because Dr. Horan did not report three independent ROM measurements for the shoulders, 

the DBI method should be used to calculate appellant’s impairment. He concluded that appellant 

had four percent permanent impairment of his right upper extremity and five percent of his left

upper extremity, less than the previous awards, with November 21, 2016 as the date of MMI. 

The Board notes that Dr. Horan rendered his report on November 21, 2016, prior to the 

issuance of FECA Bulletin No. 17-06, issued on May 8, 2017.12 There is no evidence in this case 

that OWCP requested that either appellant or its referral physician Dr. Horan provide a 

supplemental report containing ROM measurements in accordance with the procedures set forth 

in the A.M.A., Guides and FECA Bulletin No. 17-06. As noted above, FECA Bulletin No. 17-06 

provides that, if medical evidence sufficient to make a rating based on ROM is not received within 

30 days of the request, OWCP should refer the claimant for a second opinion evaluation to obtain 

the necessary medical evidence. The Board will, therefore, remand the case for OWCP to refer 

appellant for a second opinion evaluation, either with Dr. Horan or another appropriate physician, 

to obtain the evidence necessary to complete the rating as described above.13 Following this and 

other further development of the medical evidence deemed necessary, OWCP shall issue a de novo 

decision.14

CONCLUSION

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

 

12 Id.

13 See G.W., Docket No. 18-0224 (issued May 9, 2018).

14 See R.C., Docket Nos. 17-1585 and 17-1815 (issued February 16, 2018).
8

ORDER

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

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

consistent with this opinion of the Board.

Issued: October 3, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board