United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.S., Appellant 

and 

U.S. POSTAL SERVICE, IRVING PARK ROAD 

PROCESSING & DISTRIBUTION CENTER, 

Chicago, IL, Employer 

__________________________________________ 

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Docket No. 15-1455 

Issued: April 10, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 June 25, 2015 appellant filed a timely appeal from a May 13, 2015 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 met her burden of proof to establish more than five percent 

permanent impairment of the right upper extremity, for which she previously received a schedule 

award. 

On appeal appellant generally asserts that she is entitled to an increased award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On October 27, 2010 appellant, then a 41-year-old mail processing clerk, filed a 

traumatic injury claim (Form CA-1) alleging that she dislocated her right shoulder while 

attempting to catch a falling bag of mail. OWCP accepted the claim for closed anterior 

dislocation of her right shoulder, sprain of right shoulder and upper arm, and other specified sites 

of the right upper extremity. Appellant stopped work and received continuation of pay and 

wage-loss compensation benefits. On February 15, 2011 Dr. Jonathan Nassos, a Board-certified 

orthopedic surgeon, performed an authorized right shoulder arthroscopic rotator cuff repair, 

subacromial decompression, and biceps tendon tenotomy. Appellant returned to full-time, full 

duty on January 9, 2012. 

Appellant filed a schedule award claim (Form CA-7) on November 13, 2013. In an 

October 8, 2013 report, Dr. Christos Giannoulias, Board-certified in orthopedic surgery and an 

associate of Dr. Nassos, noted a complaint of right shoulder pain. Right shoulder examination 

demonstrated crepitation with abduction and internal rotation and diminished range of motion in 

all planes. Dr. Giannoulias diagnosed shoulder impingement and advised that appellant had 

reached maximum medical improvement.2

On November 29, 2013 OWCP expanded the accepted conditions to include partial tear 

of right rotator cuff and right shoulder impingement. It also asked appellant to have her 

physician provide an impairment evaluation in accordance with the sixth edition of the American 

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

Guides).3 Dr. Giannoulias’ office responded that he did not perform impairment evaluations. 

In October 2014 OWCP referred appellant to Dr. Allan Brecher, a Board-certified 

orthopedic surgeon, for a second opinion evaluation.4 In a November 28, 2014 report, 

Dr. Brecher described the history of injury and appellant’s medical and surgical history that 

included right shoulder arthroscopy and surgery for carpal tunnel syndrome and de Quervain’s 

tenosynovitis. He noted that he had reviewed the statement of accepted facts and discussed the 

medical record submitted. Physical examination of the right shoulder demonstrated flexion to 

170 degrees, extension to 50 degrees, abduction to 140 degrees, adduction to 40 degrees, internal 

rotation to 80 degrees, and external internal rotation to 60 degrees with no crepitation. 

Dr. Brecher advised that maximum medical improvement had been reached. He indicated that 

rotator cuff tear was the most impairing diagnosis and utilized Table 15-34, Shoulder Range of 

Motion, to rate appellant’s impairment. Dr. Brecher found three percent impairment for lack of 

flexion and three percent impairment for lack of abduction, for a total of six percent permanent 

impairment. He reported modifiers of 2 for functional history and 1 for physical examination, 

 2

 Appellant initially filed a schedule award claim in July 2012. On August 27, 2012 OWCP informed her that the 

medical evidence did not establish that maximum medical improvement had been reached and, therefore, no action 

could be taken on her schedule award claim at that time. 

3

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

4

 On October 16, 2014 OWCP administratively terminated collection of an overpayment of compensation in the 

amount of $611.56. 
3

and a QuickDASH score of 44. Dr. Brecher concluded that appellant had six percent right upper 

extremity permanent impairment. 

Dr. David H. Garelick, an OWCP medical adviser who is Board-certified is orthopedic 

surgery, reviewed the medical record, including Dr. Brecher’s report. He reported that the 

A.M.A., Guides stated on page 387: “[Range of motion] is used primarily as a physical 

examination adjustment factor and only to determine actual impairment values in the rare case 

when it is not possible to otherwise define impairment.” Dr. Garelick advised that Dr. Brecher’s 

impairment rating should therefore be disregarded. OWCP’s medical adviser continued that, 

based on appellant’s continued subjective complaints of right shoulder pain, physical 

examination findings of healed surgical incisions, near normal range of motion, and magnetic 

resonance imaging (MRI) scan study findings, the right rotator cuff tear had healed. He advised 

that, based on Table 15-5, Shoulder Regional Grid, appellant had five percent impairment for a 

full-thickness rotator cuff tear under the diagnosis-based impairment (DBI) methodology. The 

medical adviser found no change with the use of the net adjustment formula, and concluded that 

the date of maximum medical improvement would have occurred one year postoperatively, or 

February 15, 2012. 

On May 12, 2015 OWCP found the weight of the medical evidence rested with OWCP’s 

medical adviser, noting that he determined that Dr. Brecher had incorrectly applied the A.M.A., 

Guides by use of the range of motion methodology.5

 OWCP granted appellant a schedule award 

for five percent permanent impairment of the right upper extremity, for a total of 15.6 weeks, to 

run from February 15 to June 3, 2012. 

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 

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 American Medical Association, Guides to the Evaluation of 

Permanent Impairment as the appropriate standard for evaluating schedule losses.8

 

 5

 The decision incorrectly states that Dr. Brecher was a treating physician rather than on OWCP referral 

physician. 

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). 
4

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., 

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

schedule award purposes.10

ANALYSIS 

The issue on appeal is whether appellant met her burden of proof to establish more than 

five percent permanent impairment of the right upper extremity, for which she previously 

received a schedule award. 

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 range of 

motion methodologies 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 methodologies 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 range of motion 

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 range of motion or DBI methodologies. 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 

 9 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). 

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. 
5

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 May 13, 2015 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, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity 

schedule award. 

CONCLUSION 

The Board finds this case not in posture for decision.

ORDER 

IT IS HEREBY ORDERED THAT the May 13, 2015 decision of the Office of 

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

consistent with this decision. 

Issued: April 10, 2017 

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