United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

U.S. POSTAL SERVICE, MORGAN STATION, 

Brooklyn, NY, Employer

__________________________________________

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Docket No. 18-0526

Issued: September 11, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 18, 2018 appellant, through counsel, filed a timely appeal from a December 8, 

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 his burden of proof to establish more than six 

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

schedule award.

FACTUAL HISTORY

On November 13, 2012 appellant, then a 54-year-old maintenance supply clerk, filed a 

traumatic injury claim (Form CA-1) alleging that he injured his right shoulder on November 7,

2012 while pushing, pulling, and moving supplies while at work. On February 13, 2013 OWCP 

accepted the claim for adhesive capsulitis of the right shoulder and paid wage-loss compensation 

on the supplemental rolls beginning January 4, 2013. It placed appellant on the periodic 

compensation rolls in January 2014. 

By decision dated July 8, 2014, OWCP authorized arthroscopic surgery of the right 

shoulder to include decompression and debridement. On September 22, 2014 Dr. Arnold B. 

Wilson, a Board-certified orthopedic surgeon, performed the right shoulder arthroscopic 

procedure. On September 11, 2015 he advised that appellant could return to work without 

limitation on October 15, 2015. 

In March 2016, OWCP referred appellant to Dr. Donald Heitman, a Board-certified 

orthopedist, for a second opinion evaluation. In an April 14, 2016 report, Dr. Heitman advised 

that the accepted condition of adhesive capsulitis had not fully resolved, but that appellant could 

return to full duty. Appellant returned to full-time, limited duty on June 30, 2016.

By decision dated August 31, 2016, OWCP determined that appellant’s actual earnings as 

a maintenance operations support clerk fairly and reasonably represented his wage-earning 

capacity with zero loss because his actual earnings met or exceeded the current wages of the job 

held when injured.

On November 4, 2016 appellant filed a claim for a schedule award (Form CA-7). He 

submitted a September 27, 2016 report in which Dr. Stewart A. Kaufman, a Board-certified 

orthopedic surgeon, noted appellant’s history of injury, and described appellant’s complaint of 

continued right shoulder pain, and described physical examination findings. Right shoulder range 

of motion (ROM) findings yielded abduction to 110 degrees, adduction to 25 degrees, flexion to 

150 degrees, extension to 35 degrees, internal rotation to 40 degrees, and external rotation to 25 

degrees. Left shoulder ROM findings yielded abduction to 145 degrees, adduction to 30 degrees, 

flexion to 170 degrees, extension to 35 degrees, internal rotation to 80 degrees, and external 

rotation to 60 degrees. Dr. Kaufman diagnosed sprain of right shoulder with probable rotator cuff 

tear and Type II acromion, status post surgery. He advised that the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

3

indicated that ROM could be utilized in measuring impairment. Dr. Kaufman found that, under 

Table 15-34, Shoulder Range of Motion, appellant’s right shoulder flexion of 150 degrees yielded 

3 percent impairment, extension of 35 degrees yielded 1 percent impairment, abduction of 110 

 

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

degrees yielded 3 percent impairment, adduction of 25 degrees yielded 1 percent impairment, 

internal rotation of 40 degrees yielded 4 percent impairment, and external rotation of 25 degrees 

yielded 2 percent impairment which, when added, totaled 14 percent right upper extremity 

impairment. He advised that this was concordant with appellant’s QuickDASH (Disabilities of the 

Arm, Shoulder, and Hand) score of 7.

Dr. Arnold B. Wilson, a Board-certified orthopedic surgeon, completed a permanent 

impairment form report on November 26, 2016. He advised that, pursuant to the A.M.A., Guides,

appellant had 17.5 percent permanent impairment of the right arm, noting flexion to 145 degrees 

for 10 percent ROM impairment and mild loss of internal rotation for 7.5 percent ROM 

impairment. Dr. Wilson indicated that maximum medical improvement (MMI) was reached on 

November 11, 2016. 

OWCP referred the medical record, including the impairment evaluations of Dr. Kaufman 

and Dr. Wilson, to a district medical adviser (DMA) for review. In a January 28, 2017 report,

Dr. Michael M. Katz, the DMA, who is Board-certified in orthopedic surgery, found Dr. Wilson’s 

report of diminished probative value because he did not reference tables or provide worksheets to 

support his impairment rating. He noted that Dr. Kaufman also provided left shoulder ROM 

findings that totaled eight percent permanent impairment.4 Dr. Katz indicated that the A.M.A., 

Guides provided that this impairment should be subtracted from the right shoulder as the left 

shoulder measurements determined the baseline, which would reduce appellant’s right upper 

extremity impairment to six percent, with September 27, 2016 as the date of MMI. 

By letter dated February 6, 2017, OWCP forwarded a copy of Dr. Katz’s report to

Dr. Kaufman for review. It requested that Dr. Kaufman submit a supplemental report, rating 

appellant’s permanent impairment pursuant to the A.M.A., Guides. OWCP noted that, if more 

than one method of evaluation was allowed in the A.M.A., Guides, e.g., diagnosis-based 

impairment (DBI) or ROM, an explanation for the method chosen should be provided. 

In a supplemental report dated February 23, 2017, Dr. Kaufman advised that appellant 

reached MMI on September 27, 2016, the date of his examination. He again provided appellant’s 

bilateral shoulder ROM measurements. Dr. Kaufman indicated that, if the left shoulder were to 

be considered the normal member, then appellant’s right upper extremity impairment was 6 

percent, found by subtracting the 8 percent left shoulder ROM impairment from the 14 percent 

right shoulder ROM impairment. 

OWCP again asked Dr. Katz to review Dr. Kaufman’s reports and advised him to reference 

all pertinent objective and subjective findings including the methodology used, i.e., DBI or ROM, 

and noted that three independent measures should be documented for ROM with the greatest used 

to determine impairment. 

 

4 OWCP’s medical adviser indicated that left shoulder abduction to 145 degrees yielded 3 percent impairment, 

adduction to 30 degrees yielded 1 percent impairment, flexion to 170 degrees yielded 3 percent impairment, extension 

to 35 degrees yielded 1 percent impairment, and internal rotation to 80 degrees and external rotation to 60 degrees 

yielded no impairment, for a total left shoulder ROM impairment of 8 percent. 
4

In a May 16, 2017 report, Dr. Katz referenced his January 28, 2017 report. He again found 

that Dr. Wilson’s report lacked sufficient detail and described Dr. Kaufman’s ROM 

measurements. Dr. Katz opined that Dr. Kaufman could appropriately reference Table 15-34 for 

a stand-alone ROM rating and further noted that page 461 of the A.M.A., Guides advised that, if 

the opposite extremity was neither involved nor previously injured, it must be used to define 

normal for that individual, and any losses should be made in comparison to the opposite normal 

extremity. He indicated that, as there was no evidence in the record of contralateral, left shoulder 

involvement, the injured right shoulder should be compared with the left shoulder. Dr. Katz noted 

that, in his supplemental report dated February 23, 2017, Dr. Kaufman concurred with his 

adjustment of appellant’s right upper extremity impairment rating. He then compared

Dr. Kaufman’s ROM measurement and concluded that subtracting 8 percent (left shoulder) from 

14 percent (right shoulder) yielded 6 percent right upper extremity permanent impairment due to 

loss of ROM. Dr. Katz also advised that, by utilizing the DBI method under Table 15-5, Shoulder 

Regional Grid, appellant had a class 1 impairment for a diagnosis of shoulder impingement with 

residual loss, which had a default value of 3. He found grade modifiers of 2 for functional history 

and physical examination, and a clinical studies grade modifier of 1. After applying the net 

adjustment formula, Dr. Katz indicated that, under the DBI method, appellant had five percent 

right upper extremity impairment. He advised that appellant’s permanent impairment of the right 

upper extremity was six percent, found by using the ROM method, with September 27, 2016 the 

date of MMI. 

By decision dated June 6, 2017, OWCP granted appellant a schedule award for six percent 

permanent impairment of the right upper extremity, for a total of 18.72 weeks, to run from

September 27, 2016 to February 5, 2017. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative

on June 26, 2017. No additional evidence was submitted. Appellant was not present at the hearing 

held on November 7, 2017. Counsel requested that, in light of the Board’s finding in the case, 

T.H.,

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the case should be remanded to an OWCP DMA for comparison of the ROM and DBI 

methods.

By decision dated December 8, 2017, an OWCP hearing representative noted that Dr. Katz, 

OWCP’s medical adviser, had compared the ROM and DBI methods and concluded that a greater 

impairment was found utilizing the ROM method. She affirmed the June 6, 2017 schedule award 

decision. 

LEGAL PRECEDENT

It is the claimant’s burden to establish that he or she sustained a permanent impairment of 

a scheduled member or function as a result of any employment injury.6 

 

5 Docket No. 14-0943 (issued November 25, 2016).

6

J.B., Docket No. 17-1907 (issued March 8, 2018).
5

The schedule award provision of FECA,7and its implementing federal regulation,

8

set 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.9 As of May 1, 2009, the sixth edition of the 

A.M.A., Guides is used to calculate schedule awards.10

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).11 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).12

 

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 

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.)13

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 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10 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). 

11 A.M.A., Guides, supra note 3 at 383-492.

12 Id. at 411.

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

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.”

14

ANALYSIS

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

By decision dated June 6, 2017, OWCP granted a schedule award for six percent permanent 

impairment of the right upper extremity, based on the ROM method. This decision was affirmed 

by an OWCP hearing representative on December 8, 2017. 

Dr. Katz, the DMA, was correct in finding right shoulder impairments utilizing both the 

DBI method under Table 15-5 for a diagnosis of shoulder impingement with residual loss and 

under Table 15-34 for ROM deficits. He identified grade modifiers and applied the net adjustment 

formula, concluding that under Table 15-5 appellant had five percent permanent impairment of the 

right shoulder under the DBI method.15 Dr. Katz then analyzed appellant’s right shoulder 

impairment under the ROM method. He correctly indicated that the A.M.A., Guides provide that, 

if the opposite member is not involved or previously injured, any losses should be made in 

comparison to the opposite normal extremity.16 By using ROM measurements for both shoulders 

described by Dr. Kaufman, in his September 27, 2016 report, Dr. Katz concluded that, based on 

appellant’s 14 percent ROM permanent impairment of the right shoulder and 8 percent ROM 

 

14 Id.

15 A.M.A., Guides, supra note 3 at 402.

16 Id. at 461. 
7

permanent impairment of the left shoulder, appellant had 6 percent permanent impairment of the 

right shoulder due to loss of shoulder motion, the greater loss.

17

The Board, however, notes that FECA Bulletin No. 17-06 provides that, pursuant to the 

A.M.A., Guides, three independent ROM measurements should be obtained, and the greatest ROM 

should be used for the determination of impairment.18 Dr. Kaufman rendered his examination on 

September 17, 2016, prior to the effective date of FECA Bulletin No. 17-06 on May 8, 2017. 

OWCP did not render its schedule award decision until June 6, 2017. Therefore, as provided in 

the FECA Bulletin, OWCP should have provided this directive via the updated instructions to the 

rating physician prior to issuing its June 6, 2017 schedule award decision.

19

 

There is no evidence in this case that OWCP attempted to obtain a supplemental report

from Dr. Kaufman containing three independent measurements of ROM in accordance with the 

procedures set forth in the A.M.A., Guides and FECA Bulletin No. 17-06.20 The Board will, 

therefore, remand the case for OWCP to obtain another supplemental report from Dr. Kaufman to 

obtain the evidence necessary to complete the rating as described above.21 Following this and 

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

decision.22

CONCLUSION

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

 

17 FECA Bulletin No. 17-06, supra note 13.

18 Id.

19 The Board notes that this specific information was provided in its May 12, 2017 transmittal letter to OWCP’s

medical adviser requesting an impairment analysis. 

20 Id.; A.M.A., Guides, supra note 3 at 464.

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

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

ORDER

IT IS HEREBY ORDERED THAT the December 8, 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: September 11, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board