United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

D.N., Appellant 

and 

U.S. POSTAL SERVICE, BEVERLY HILLS 

STATION, Dallas, TX, Employer 

__________________________________________ 

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Docket No. 15-1456 

Issued: April 3, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 25, 2015 appellant filed a timely appeal from an April 6, 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 the case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he has permanent 

impairment of his left upper extremity due to the accepted left shoulder injury. 

On appeal appellant generally asserts that he has physical disabilities that warrant a 

schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On December 17, 2013 appellant, then a 39-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he dislocated his left shoulder at work that day. He was treated 

at Methodist Charlton Medical Center that same day for an interval reduction of prior 

glenohumeral dislocation. A post-reduction left shoulder x-ray showed satisfactory alignment. 

On January 23, 2014 OWCP accepted closed dislocation of the left shoulder. 

Dr. Kristen E. Fleager, a Board-certified orthopedic surgeon, began treating appellant. On 

March 3, 2014 she advised that appellant could return to modified duty, and on April 14, 2014, 

that he could return to full duty with no restrictions. Appellant received continuation of pay and 

wage-loss compensation benefits. He returned to full duty on April 15, 2014. 

On July 17, 2014 Dr. Fleager noted that examination of appellant’s shoulder showed no 

gross deformity, muscle atrophy, or shoulder girdle tenderness to palpation. Shoulder range of 

motion was symmetric with 180 degrees of forward flexion and abduction, 70 degrees of 

external rotation, and internal rotation to the lower thoracic spine. Motor testing was normal 5/5 

throughout without guarding, and no shoulder apprehension or sulcus sign were present. Neer 

and Hawkins impingement tests were negative. Dr. Fleager concluded that appellant had an 

excellent recovery with full strength in his rotator cuff. She advised that he had reached 

maximum medical improvement and could resume all activities. 

On July 17 and October 8, 2014 appellant filed schedule award claims (Form CA-7). 

In a September 5, 2014 report, Dr. Robert A. Helsten, a family physician, reported 

appellant’s complaint of pain. Physical examination demonstrated mild, diffuse left shoulder 

tenderness, and range of motion on the left was decreased when compared to the right. 

Dr. Helsten diagnosed closed dislocation of left shoulder. He noted that he had evaluated 

appellant’s left upper extremity impairment in accordance with the sixth edition of the American 

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

Guides),2

 and that maximum medical improvement was reached on April 15, 2014, the date 

appellant returned to full duty. Dr. Helsten noted that appellant’s shoulder dislocation could be 

rated under Table 15-5, Shoulder Regional Grid, for a diagnosis of shoulder joint dislocation. He 

continued that, because appellant had residual symptoms of pain and limited range of motion, he 

therefore elected to use the range of motion methodology to determine appellant’s impairment. 

Dr. Helsten indicated that he used right shoulder range of motion testing for comparison and 

control. He reported left shoulder flexion of 150 degrees, extension of 30 degrees, abduction of 

160 degrees, adduction of 30 degrees, internal rotation of 70 degrees, and external rotation of 50 

degrees, concluding that appellant had 12 percent left shoulder range of motion impairment. 

Dr. Helsten also reported that appellant had three percent right shoulder impairment due to 

decreased flexion.3

 He subtracted the 3 percent right shoulder impairment from the left shoulder 

 2

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

3

 Dr. Helston reported right shoulder flexion of 170 degrees, extension of 70 degrees, abduction of 170 degrees, 

adduction of 50 degrees, internal rotation of 90 degrees, and external rotation of 80 degrees. 
3

impairment of 12 percent, concluding that appellant had 9 percent permanent impairment of his 

left shoulder. 

On October 15, 2014 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed the medical record. He noted that Dr. Helsten utilized Table 

15-34, Shoulder Range of Motion, to rate appellant’s impairment and reported his findings. 

Dr. Katz also reviewed Dr. Fleager’s July 17, 2014 report, noting that her range of motion 

findings were substantially different from those of Dr. Helsten and would yield no impairment. 

He opined that, due to the difference in examination findings, it was appropriate to refer 

appellant for a second opinion impairment evaluation by a Board-certified orthopedic surgeon or 

physiatrist. 

In November 2014 OWCP referred appellant to Dr. John R. Sklar, Board-certified in 

physical medicine and rehabilitation, for a second opinion evaluation. In a December 16, 2014 

report, Dr. Sklar noted that he evaluated appellant on December 8, 2014. He described the 

history of injury and his review of the record. Dr. Sklar indicated that appellant had no swelling, 

redness, or warmth in the left shoulder, and it was nontender. No shoulder instability was noted, 

and appellant had good strength. Dr. Sklar found crepitation in both shoulders. Range of motion 

was full and equal in the both shoulders. Dr. Sklar opined that appellant’s examination was 

consistent with the diagnosis of a left shoulder dislocation which had resolved with good 

function and only minor ongoing complaints. He advised that maximum medical improvement 

was reached on April 14, 2014, when appellant was released to return to work. Dr. Sklar 

maintained that, since he found no loss range of motion in the shoulders, it was inappropriate to 

assign impairment under the range of motion methodology based on Dr. Helsten’s analysis, since 

the loss of range of motion he had found was not permanent. He opined that the best way to rate 

appellant’s impairment was under the diagnosis-based impairment (DBI) methodology under soft 

tissue section found on page 401 of Table 5-5, Shoulder Regional Grid. Dr. Sklar found a class 1 

impairment, noting that appellant had some residual complaints without consistent objective 

findings. He noted that the range for a class 1 impairment under Table 15-5 was from 0 to 1 

percent, with a default value of 1 percent. Dr. Sklar advised that appellant had a QuickDASH 

score of 11 for a functional history modifier of 0, and found a physical examination modifier of 1 

for minimal findings on examination, and a clinical studies modifier of 1 because the studies 

confirmed the diagnosis. He then applied the net adjustment formula, finding a net adjustment of 

minus 1 for a grade of B, and zero percent left upper extremity permanent impairment. 

On January 23, 2015 Dr. Ronald Blum, a Board-certified orthopedic surgeon and OWCP 

medical adviser, reviewed the record, including Dr. Sklar’s report. He found that maximum 

medical improvement was reached on December 8, 2014, the date of Dr. Sklar’s evaluation. 

Dr. Blum noted that, under Table 15-5, for a diagnosis of shoulder strain/pain, with no 

instability, appellant had a class 1 impairment with a default value of zero percent. He found a 

zero modifier for functional history, and modifiers of one for physical examination and clinical 

studies. Dr. Blum applied the net adjustment formula and concluded that, with an adjustment of 

minus one, appellant had zero percent left upper extremity permanent impairment. 

On April 6, 2015 OWCP found that, based on OWCP medical adviser’s review, the 

medical evidence of record did not demonstrate a permanent, measurable, scheduled impairment, 

and therefore, appellant was not entitled to a schedule award for his accepted injury. 
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 on appeal is whether appellant met his burden of proof to establish permanent 

impairment of his left upper extremity due to the accepted left shoulder condition. 

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 methodology when assessing the extent of permanent impairment for schedule award 

 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). 
5

purposes.9

 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 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 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 April 6, 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.

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

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

11 Supra note 9. 
6

ORDER 

IT IS HEREBY ORDERED THAT the April 6, 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 3, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board