United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

U.S. POSTAL SERVICE, SOUTH TROOST 

STATION, Kansas City, MO, Employer 

__________________________________________ 

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Docket No. 16-1669 

Issued: March 22, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., 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 18, 2016 appellant, through counsel, filed a timely appeal from a March 14, 

2016 merit decision and an August 10, 2016 nonmerit 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

ISSUES 

The issues are: (1) whether appellant met her burden of proof to establish more than 

seven percent permanent impairment of the right arm and five percent permanent impairment of 

the left arm, for which she previously received schedule awards; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 

U.S.C. § 8128(a). 

On appeal counsel generally asserts that OWCP improperly denied an additional schedule 

award. 

FACTUAL HISTORY 

On December 13, 2011 appellant, then a 50-year-old city letter carrier, filed a traumatic 

injury claim (Form CA-1), alleging that on September 20, 2011 she injured her right arm while 

picking up a tub of flats. OWCP initially accepted sprain of the shoulder and upper arm, 

supraspinatus, right, and later expanded the claim to include right upper extremity conditions of 

sprain of superior glenoid labrum lesion, complete rotator cuff rupture, and ankyloses of 

shoulder joint, and left upper extremity conditions of impingement syndrome and rotator cuff 

sprain on the left. 

Dr. John A. Gillen, II, a Board-certified orthopedic surgeon, performed right shoulder 

operative procedures on March 22 and June 25, 2012, and procedures on the left on October 3, 

2013, and January 21, 2014. Appellant received wage-loss compensation for surgical recovery 

and for attendance at medical treatment appointments. She returned to modified duty on 

October 3, 2014. 

In a report dated June 18, 2014, Dr. Gillen advised that he began treating appellant in 

February 2012. He described her treatment thereafter and advised that, in accordance with the 

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

Impairment (hereinafter A.M.A., Guides),3

 appellant had 48 percent right shoulder permanent 

impairment and 29 percent left shoulder permanent impairment. 

In September 2014 OWCP referred appellant to Dr. Kala Danushkodi, a Board-certified 

physiatrist, for an impairment evaluation in accordance with the sixth edition of the A.M.A., 

Guides.

4

 In a September 30, 2014 report, Dr. Danushkodi advised that, under Table 15-5 of the 

sixth edition, Shoulder Regional Grid, appellant had seven percent upper extremity permanent 

impairment on the right, and five percent upper extremity permanent impairment on the left 

based on the diagnosis-based impairment (DBI) methodology for diagnosis of full-thickness 

rotator cuff tear. Dr. Daniel D. Zimmerman, a Board-certified orthopedic surgeon and an OWCP 

medical adviser, concurred with Dr. Danushkodi’s impairment analysis. 

 3

 A.M.A., Guides (5th ed. 2001). 

4

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

By decision dated November 3, 2014, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right shoulder and five percent permanent 

impairment of the left shoulder. Appellant timely requested a hearing with OWCP’s Branch of 

Hearings and Review.5

 She retired on Office of Personnel Management disability, effective 

January 13, 2015. 

At the hearing, held before an OWCP hearing representative on June 17, 2015, appellant 

described her employment and medical histories. Counsel maintained that appellant had 

preexisting carpal tunnel syndrome that should have been considered in the impairment analysis 

and that, at a minimum, a conflict in medical evidence had been created between the opinions of 

Dr. Gillen and Dr. Danushkodi. 

Following the hearing, appellant submitted a July 17, 2015 report in which Dr. Robert P. 

Poetz, an osteopath, described her work and medical history, and complaints of neck and 

bilateral, radiating shoulder pain. Upper extremity examination included decreased shoulder 

range of motion (ROM) and positive Phalen’s and Tinel’s signs at the wrists bilaterally. 

Dr. Poetz diagnosed right shoulder rotator cuff tear, subacromial impingement, anterior and 

posterior glenoid labral tears, partial tear of the biceps tendon, subclavicular impingement, and 

adhesive capsulitis; left shoulder rotator cuff tear, subacromial impingement, partial tears of 

biceps tendon, mild glenohumeral osteoarthritis, and adhesive capsulitis; and bilateral carpal 

tunnel syndrome. He evaluated impairment in accordance with the sixth edition of the A.M.A., 

Guides, noting that for decreased right and left shoulder ROM, under section 15.7g, appellant 

had 23 percent impairment bilaterally which, after adding modifiers, yielded 24 percent 

permanent impairment of each upper extremity under the ROM methodology. For the diagnosis 

of carpal tunnel syndrome, Dr. Poetz utilized Table 15-3, wrist regional grid. He found that 

appellant had one percent permanent impairment of each upper extremity due to carpal tunnel 

syndrome. Dr. Poetz combined the bilateral 1 percent impairment for carpal tunnel syndrome 

with the 24 percent for loss of shoulder motion, and concluded that appellant had 25 percent 

permanent impairment of each upper extremity. 

By decision dated August 11, 2015, an OWCP hearing representative remanded the case 

to OWCP for referral of Dr. Poetz’s report to an OWCP medical adviser for review regarding 

appellant’s bilateral upper extremity impairment, to be followed by a de novo decision. 

Dr. Zimmerman, OWCP’s medical adviser, reviewed Dr. Poetz’s report on 

September 7, 2015. He indicated that Dr. Poetz’s shoulder impairment ratings were not 

acceptable because they were not in compliance with the requirements of the A.M.A., Guides. 

The medical adviser further noted that, as carpal tunnel syndrome had not been accepted, it need 

not be rated. He concluded that Dr. Poetz’s report provided no medically acceptable basis upon 

which to revise appellant’s previous schedule award. 

In a September 25, 2015 decision, OWCP found that appellant had not established 

entitlement to permanent impairment greater than that previously received. 

 5

 Thomas R. Uliase, Esq., began representing appellant in December 2014. 
4

Appellant, through counsel, timely requested a hearing. At the hearing on 

February 8, 2016, counsel maintained that the September 7, 2015 report by Dr. Zimmerman was 

insufficient because he had not applied the A.M.A., Guides to Dr. Poetz’s findings. He further 

asserted that, as carpal tunnel syndrome was preexisting, it should have been considered. 

By decision dated March 14, 2016, an OWCP hearing representative found that OWCP 

properly accorded weight to the opinions of Dr. Danushkodi and Dr. Zimmerman and affirmed 

the September 25, 2015 decision. He noted that the medical record did not establish preexisting 

carpal tunnel syndrome. 

On June 28, 2016 appellant, through counsel, requested reconsideration of the March 14, 

2016 decision. He submitted a May 18, 2016 report in which Dr. Poetz asserted that he properly 

interpreted the A.M.A., Guides in finding loss of bilateral upper extremity motion. 

In a decision dated August 10, 2016, OWCP denied appellant’s request for 

reconsideration of the merits. 

LEGAL PRECEDENT -- ISSUE 1 

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.6

 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.7

 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.8

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).9

 The Board has approved the use by OWCP of the A.M.A., 

 6 See 20 C.F.R. §§ 1.1-1.4. 

7

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

§ 8107(c)(1). 

8

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

9

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

Chapter 2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 
5

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.10

ANALYSIS -- ISSUE 1 

The issue on appeal is whether appellant met her burden of proof to establish that she has 

more than seven percent permanent impairment of the right upper extremity and five percent 

permanent impairment of the left upper extremity for which she previously received schedule 

awards on November 3, 2014. The accepted right upper extremity conditions are, sprain of 

shoulder and upper arm, supraspinatus, right, sprain of superior glenoid labrum lesion, complete 

rotator cuff rupture, and ankyloses of shoulder joint. Accepted left upper extremity conditions 

are impingement syndrome and rotator cuff sprain. 

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.11 

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

justice under the law to all claimants.12 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.13 

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 March 4, 2016 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, 

 10 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

13 Supra note 11. 
6

OWCP shall issue a de novo decision on appellant’s claim for an additional right upper extremity 

schedule award. 

In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot. 

CONCLUSION 

The Board finds this case not in posture for decision. 

ORDER 

IT IS HEREBY ORDERED THAT the March 14, 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: March 22, 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