United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.S., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DELIVERY CENTER, Macon, GA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0502 

Issued: May 22, 2017 

Appearances: Case Submitted on the Record

Anthony Arenas, 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 9, 2017 appellant, through her representative, filed a timely appeal from a 

December 2, 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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant has established more than two percent permanent 

impairment of her left upper extremity, for which she has previously received a schedule award. 

 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

On appeal appellant, through counsel, contends that OWCP cannot pick and choose 

which parts of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) (6th ed. 2009) that it wishes to use. Counsel contends that the 

A.M.A., Guides still allow for the range of motion (ROM) method to be used for calculating an 

impairment rating. He also contends that the A.M.A., Guides, provide that if there is more than 

one method to rate a particular impairment or condition, the method producing the higher rating 

must be used. 

FACTUAL HISTORY 

On April 14, 2013 appellant, then a 51-year-old mail processing clerk, filed an 

occupational disease claim (Form CA-2) alleging that she suffered a left shoulder strain as a 

result of her federal employment. In an accompanying statement, she alleged that she injured her 

left shoulder while lifting and using the delivery bar code sorter. Appellant did not initially stop 

work. 

On March 28, 2014 OWCP accepted appellant’s claim for left shoulder impingement 

syndrome. 

On May 2, 2014 Dr. Jeffrey A. Fried, a Board-certified orthopedic surgeon, performed an 

arthroscopic lysis of adhesions and an arthroscopic subacromial decompression. His 

postoperative diagnosis was impingement syndrome, left shoulder, and subacromial spur and 

adhesive capsulitis, left shoulder. 

Appellant received compensation benefits on the supplemental rolls from May 3, 2014. 

On May 5, 2014 OWCP expanded appellant’s claim to include acceptance for partial tear 

of the left rotator cuff. 

In a January 21, 2015 report, Dr. Fried diagnosed appellant with impingement syndrome 

of her left shoulder, rotator cuff syndrome not otherwise specified, and lateral epicondylitis. He 

stated that she had two percent permanent impairment of the upper extremity pursuant to the 

A.M.A., Guides. 

On February 18, 2015 OWCP referred appellant’s case to OWCP’s medical adviser for 

an impairment rating. In a response dated February 24, 2015, the medical adviser indicated that 

he agreed with Dr. Fried. He explained that, using the diagnosis-based impairment (DBI) 

method, pursuant to Table 15-5 on page 401 of the A.M.A., Guides, appellant had a class 1, 

grade C soft tissue injury to her left shoulder causing pain which equaled two percent permanent 

impairment of her left upper extremity. 

On February 28, 2015 appellant filed a claim for a schedule award (Form CA-7). 

On February 26, 2015 OWCP issued a schedule award for two percent permanent 

impairment of appellant’s left upper extremity. 

On March 9, 2015 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on October 6, 2015. 
3

By decision dated December 15, 2015, the hearing representative affirmed the 

February 26, 2015 schedule award decision, noting that there was no evidence that appellant had 

greater than two percent permanent impairment of the left upper extremity. 

On April 27, 2016 appellant filed a claim for an increased schedule award. In support 

thereof, she submitted an October 13, 2015 impairment rating by Dr. Samy F. Bishai, an 

orthopedic surgeon. Dr. Bishai diagnosed internal derangement of the left shoulder, rotator cuff 

tear and syndrome left shoulder joint, left shoulder impingement syndrome, and status 

postoperative arthroscopic surgery for treatment of rotator cuff tear and shoulder impingement 

left shoulder. He used the stand alone ROM method to calculate her impairment under Table 15-

34 of the A.M.A., Guides.

3

 Dr. Bishai noted that with regard to appellant’s left shoulder, flexion 

was 80 degrees which equaled nine percent upper extremity permanent impairment. Extension 

of 20 degrees equaled two percent upper extremity permanent impairment. Dr. Bishai further 

noted that abduction of 80 degrees equaled six percent upper extremity permanent impairment, 

and adduction of 20 degrees equaled one percent upper extremity impairment. He noted internal 

rotation was 20 degrees which equaled four percent upper extremity impairment and external 

rotation of 45 degrees equaled two percent upper extremity permanent impairment. Dr. Bishai 

explained that adding these impairment ratings, “since we are dealing with one and the same 

joint),” totaled 24 percent permanent impairment of the left upper extremity. 

On May 10, 2016 OWCP referred the record to its medical adviser for an impairment 

rating. In a May 14, 2016 response, OWCP’s medical adviser suggested that Dr. Bishai’s rating 

should be disregarded. He noted that Dr. Bishai based his rating on ROM, and that the A.M.A., 

Guides indicated that ROM is to be 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. The medical adviser concluded that appellant had already been 

granted a schedule award for two percent permanent impairment of her left upper extremity, and 

that was the appropriate award. 

In a June 8, 2016 report, Dr. Bishai responded to OWCP’s medical adviser’s report. He 

noted that the medical adviser relied upon the opinion of Dr. Fried for his impairment rating, and 

that the medical adviser had not examined appellant. Dr. Bishai also opined that Dr. Fried’s use 

of the diagnosis-based impairment (DBI) method was not credible since it did not take into 

consideration the marked reduction of appellant’s ROM. Dr. Bishai also raised questions with 

regard to the date of maximum medical improvement. 

In a November 15, 2016 response, OWCP’s medical adviser reviewed Dr. Bishai’s 

comments, but concluded that given that there was a DBI for appellant’s condition (rotator cuff 

syndrome which corresponded to tendinitis as noted in Table 15-5), it was clear that the DBI 

method was appropriate. The medical adviser again noted that the DBI method was preferable 

under the sixth edition of the A.M.A., Guides. 

By decision dated December 2, 2016, OWCP denied appellant’s claim for an additional 

schedule award, finding that the weight of the medical evidence rested with the opinion of 

OWCP’s medical adviser. 

 3

 A.M.A., Guides 475, Table 15-34. 
4

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.4 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.5

 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.6 

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).7

 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.8 

ANALYSIS 

The issue is whether appellant has more than two percent permanent impairment of her 

left upper extremity, for which she has previously received a schedule award. 

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.9

 

 4 See 20 C.F.R. §§ 1.1-1.4. 

5

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

§ 8107(c)(1). 

6

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

7 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). 

8 Isidoro Rivera, 12 ECAB 348 (1961). 

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

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

justice under the law to all claimants.10 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.11 

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 December 2, 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, 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.

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

11 Supra note 9. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated December 2, 2016 is set aside, and the case is remanded for 

further action consistent with this decision. 

Issued: May 22, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board