United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

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Docket No. 17-0484

Issued: April 5, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 3, 2017 appellant, through counsel, filed a timely appeal from an October 13, 

2016 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 established greater than five percent permanent 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances set forth in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth 

below.

OWCP accepted that on September 9, 2010 appellant, then a 49-year-old letter carrier, 

sustained a right shoulder sprain, right rotator cuff sprain, and right-sided brachial 

neuritis/radiculitis when he attempted to lift a tub of mail. In a September 9, 2010 emergency 

room report, Dr. Steve L. Andrews, an attending Board-certified family practitioner, diagnosed 

cervical radiculopathy due to the accepted employment injury. Dr. Gregory Daly, an attending 

osteopath Board-certified in family practice, diagnosed a right-sided cervical paraspinal sprain on 

September 13, 2010. Dr. Daly later found a partial supraspinatus tendon tear based on a 

November 1, 2010 magnetic resonance imaging (MRI) scan study.

A March 23, 2011 MRI scan of the cervical spine showed mild degenerative changes, with 

a trace diffuse disc bulge at C4-5, and a mild diffuse disc bulge at C6-7 causing trace right-sided 

foraminal narrowing. 

On May 3, 2012 Dr. Erling Ho, an attending Board-certified orthopedic surgeon,

performed an arthroscopic right rotator cuff repair, glenohumeral debridement, and subacromial 

decompression. OWCP authorized the procedure. Dr. Ho found that he had attained maximum 

medical improvement (MMI) as of May 13, 2013.

On June 14, 2013 appellant filed a claim for a schedule award (Form CA-7). In support of 

his claim, he submitted an August 13, 2013 report from Dr. Neil Allen, an attending Boardcertified neurologist and internist, noting findings on a July 2, 2013 examination. Dr. Allen related 

appellant’s symptoms of neck and right shoulder pain, weakness, and restricted motion. Referring 

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

Impairment (hereinafter, A.M.A., Guides),4 he noted that the impairment caused mild interference 

with activities of daily living, a Disabilities of the Arm, Shoulder and Hand (QuickDASH) score 

of 43, and a pain disability questionnaire (PDQ) score of 91. On physical examination, Dr. Allen 

noted three cm atrophy of the right brachium, increased tone throughout the right upper trapezius, 

reflexes at 1/5 in the C5-6 dermatome, reduced cutaneous sensation in the right C5 dermatome 

with two-point discrimination intact, tenderness in the long head of the biceps tendon, and 4/5 

weakness of abduction and external rotation in the right shoulder. He observed the following 

 

3 Docket No. 15-1459 (issued October 22, 2015).

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

ranges of right shoulder motion: 170 degrees flexion; 61 degrees extension; 152 degrees 

abduction; 55 degrees adduction; 34 degrees internal rotation; 77 degrees external rotation. 

Regarding right shoulder impairment, Dr. Allen referred to Table 15-5

5

to assess a class 1 

Class of Diagnosis (CDX) impairment for a rotator cuff injury, with a default value of three

percent. He noted a grade modifier for Functional History (GMFH) of 2 for a QuickDASH score 

of 43, pain with normal activity, a grade modifier for findings on Physical Examination (GMPE) 

of 3 for consistently documented palpatory findings, moderate motion deficit according to 

Table 15-34,

6

and muscle atrophy in the brachium, and a grade modifier for Clinical Studies 

(GMCS) of 2 for the preoperative MRI scan showing the supraspinatus tear. Applying the net 

adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Allen calculated a 

five percent impairment of the right upper extremity. Referring to proposed Table 1 of The Guides 

Newsletter July/August 2009, and Table 15-14,7 he found a class of diagnosis impairment for a 

mild motor deficit at C5, with a default value of four percent. He noted a grade modifier for 

functional history of 1 for a PDQ of 91 and pain with strenuous activity. Dr. Allen calculated a 

total 13 percent permanent impairment of the right arm, 5 percent for the right shoulder, 4 percent 

for motor impairment, and 4 percent for sensory impairment. 

In a March 31, 2014 report, an OWCP medical adviser opined that Dr. Allen’s rating did 

not conform to Table 17-2

8 of the A.M.A., Guides as there was no documented intervertebral 

cervical disc herniation or alteration affecting the right upper extremity. He explained that 

appellant did not have cervical nerve root impingement. The medical adviser agreed with

Dr. Allen that appellant had five percent permanent impairment of the right upper extremity 

according to Table 15-5 for shoulder impairment. He opined that appellant attained MMI as of 

May 11, 2013, as found by Dr. Ho.

By decision dated April 9, 2014 and reissued on April 17, 2014, OWCP granted appellant a 

schedule award for five percent permanent impairment of the right upper extremity.

Appellant disagreed and, in a May 6, 2014 letter, through counsel, requested a telephonic 

hearing before an OWCP hearing representative, held December 16, 2014. At the hearing, counsel 

argued that OWCP’s medical adviser failed to consider the accepted brachial neuritis in calculating 

the percentage of impairment.

By decision dated March 4, 2015, an OWCP hearing representative affirmed the April 17, 

2014 schedule award, finding that OWCP’s medical adviser thoroughly reviewed Dr. Allen’s 

findings. Appellant then appealed to the Board. 

 

5 Table 15-5, page 401 of the sixth edition of the A.M.A., Guides is entitled “Shoulder Regional Grid: Upper 

Extremity Impairments.”

6 Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is entitled “Shoulder Range of Motion.”

7 Table 15-14, page 425 of the sixth edition of the A.M.A., Guides is entitled “Sensory and Motor Sensitivity.”

8 Table 17-2, page 564 of the sixth edition of the A.M.A., Guides is entitled “Cervical Spine Regional Grid.”
4

By decision dated October 22, 2015,9the Board set aside OWCP’s March 4, 2015 decision, 

finding that the medical adviser failed to consider the brachial plexus deficits documented by

Dr. Allen. The Board emphasized that appellant had not claimed nor had OWCP accepted a 

cervical spine condition. Rather, the issue was whether there was impairment of the brachial 

plexus in any location. The Board remanded the case to OWCP to obtain a supplemental report 

from OWCP medical adviser regarding the appropriate percentage of permanent impairment 

attributable to the accepted brachial neuritis/radiculitis, to be followed by issuance of a de novo

decision. 

On December 3, 2015 OWCP requested that its medical adviser submit a supplemental 

report addressing whether the brachial neuritis/radiculitis observed by Dr. Allen warranted an 

additional percentage of permanent impairment to the right upper extremity. It requested that the 

medical adviser “thoroughly discuss any points of disagreement” with Dr. Allen’s August 12, 2013 

opinion. OWCP provided an updated statement of accepted facts for the medical adviser’s review. 

In a December 16, 2015 supplemental report, OWCP’s medical adviser opined that 

appellant had no impairment of the right arm due to cervical nerve root compression. He noted

that the March 23, 2011 cervical MRI scan, Dr. Allen’s clinical findings, and “associated records 

involving the cervical spine and brachial plexus” did not demonstrate any cervical nerve root 

compression. The medical adviser emphasized that Dr. Allen had not obtained an 

electromyography (EMG) study to substantiate either the diagnosis of cervical nerve root 

compression or brachial plexus involvement. He, therefore, found that the April 17, 2014 schedule 

award for five percent permanent impairment of the right upper extremity should remain 

unchanged. 

By decision dated January 5, 2016, OWCP found that appellant had not established greater 

than five percent permanent impairment of the right upper extremity, as previously awarded on 

April 17, 2014. It accorded the weight of the medical evidence to OWCP’s medical adviser’s 

interpretation of Dr. Allen’s clinical findings.

In a January 11, 2016 letter, counsel requested a telephonic hearing, which was held before 

an OWCP hearing representative on August 29, 2016. During the hearing, he contended that 

OWCP’s medical adviser one again failed to consider the accepted brachial plexus neuritis/radiculitis 

in determining the percentage of permanent impairment of the right upper extremity.

By decision dated October 13, 2016, an OWCP hearing representative affirmed OWCP’s 

January 5, 2016 decision. She found that OWCP’s medical adviser properly applied the appropriate 

portions of the A.M.A., Guides to Dr. Allen’s objective clinical findings and the imaging studies

of record.

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 

 

9 Docket No. 15-1459 (issued October 22, 2015).
5

vested the authority to implement the FECA program with the Director of OWCP.

10

 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.11 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.12 

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).13 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.14

ANALYSIS

The issue on appeal is whether appellant has established greater than five percent 

permanent impairment of the 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 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 diagnosis-based impairment (DBI) 

or the range of motion (ROM) methodology when assessing the extent of permanent impairment

for schedule award purposes.15 The purpose of the use of uniform standards is to ensure consistent 

 

10 See 20 C.F.R. §§ 1.1-1.4.

11 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

12 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

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

Claims, Chapter 2.808.5a (February 2013). 

14 Isidoro Rivera, 12 ECAB 348 (1961).

15 T.H., Docket No. 14-0943 (issued November 25, 2016).
6

results and to ensure equal justice under the law to all claimants.16 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.17

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 October 13, 2016 decision. Utilizing a 

consistent method for calculating permanent impairment for upper extremities to be 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.18

CONCLUSION

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

IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of 

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

consistent with this decision of the Board.

19

Issued: April 5, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

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

17 Supra note 15.

18 See FECA Bulletin No. 17-06 (May 8, 2017).

19 Colleen Duffy Kiko, Judge, participated in the preparation of this decision but was no longer a member of the 

Board after December 11, 2017.