United States Department of Labor

Employees’ Compensation Appeals Board

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J.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Flowery Branch, GA, Employer

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Docket No. 19-1529

Issued: April 16, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE 

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On July 10, 20181 appellant filed a timely appeal from a May 31, 2018 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards 

docketed the appeal as No. 19-1529.2

OWCP accepted that on May 23, 2013 appellant, then a 56-year-old lead customer service 

clerk, sustained reflex sympathetic dystrophy (RSD) of the right upper limb and an 

acromioclavicular sprain of the right shoulder and upper arm while in the performance of duty. 

By decision dated May 5, 2015, it granted appellant a schedule award for 18 percent permanent 

 

1 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 CFR 

§ 501.3(e)-(f). Since using July 10, 2019, the date the appeal was received by the Clerk of the Appellate Boards would 

result in the loss of appeal rights as it is more than 180 days from the date of OWCP’s last decision of May31, 2018, 

the date of the postmarkis considered the date of filing. The date of the U.S. Postal Service postmarkis July 10, 2018, 

rendering the appeal timely filed. See 20 CFR § 501.3(f)(1); J.M., Docket No. 19-0252 (issued January 8, 2020).

2 The Board notes that,following the May 31, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provide: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
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impairment of the right upper extremity. The period of the award ran from January 12, 2015 

through February 9, 2016.

Appellant continued to submit medical evidence pertaining to her right upper extremity

permanent impairment and on May 18, 2015 requested a telephonic hearing before an OWCP 

hearing representative. By decision dated March 2, 2016, an OWCP hearing representative 

affirmed the May 5, 2015 schedule award. Appellant appealed to the Board on July 1, 2016.

By decision dated April 11, 2017, the Board set aside the March 2, 2016 decision.

3

 The 

Board found that OWCP had inconsistently applied Chapter 15 of the sixth edition of the American 

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

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regarding the proper use of either the diagnostic-based impairment (DBI) or range of motion 

(ROM) impairment methodologies in assessing the extent of permanent impairment. It remanded 

the case for OWCP to issue a de novo decision after development of a consistent method for 

calculating permanent impairment of the upper extremities. 

In a decision dated July 14, 2017, OWCP denied appellant’s claim for an additional 

schedule award. Appellant appealed to the Board on August 7, 2017.

By decision dated March 12, 2018, the Board set aside the July 14, 2017 OWCP decision.

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The Board found that, while the district medical adviser (DMA) had indicated that appellant’s right 

upper permanent impairment could be rated due to distal clavicle resection under the DBI 

methodology, he had failed to follow OWCP’s procedures for ROM deficits, as the record did not 

reflect whether the treating physician had recorded three ROM measurements and had provided 

an opinion as to whether appellant’s loss of ROM had an organic basis. The Board remanded the 

case for OWCP to issue a de novo decision regarding appellant’s claim for an increased right upper 

extremity schedule award after further development of the claim pursuant to its procedures as 

required under FECA Bulletin 17-06 (issued May 8, 2017).

On April 13, 2018 OWCP requested that its DMA review the relevant medical evidence. 

It also instructed its DMA, in relevant part, that if the medical evidence of record was insufficient 

to render a rating based on ROM, where allowed under the A.M.A., Guides, to advise of the 

medical evidence necessary to complete the ROM rating.

On April 23, 2018 the DMA rated appellant’s permanent impairment for right distal 

clavicle excision under the DBI methodology which represented appellant’s impairment “due to 

the lack of triplicate ROM measurements as required by the [A.M.A.,] Guides.”

By decision dated May 31, 2018, OWCP denied appellant’s claim for an additional 

schedule award for an increased permanent impairment of the right upper extremity, finding that

the medical evidence was insufficient to support an increase in the impairment previously awarded. 

 

3 Docket No. 16-1462 (issued April11, 2017).

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

5 Docket No. 17-1726 (issued March12, 2018).
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It found that the DMA had indicated that appellant’s permanent impairment was evaluated under 

the DBI methodology due to a lack of triplicate ROM measurements.

The Board has duly considered the matter and finds that this case is not in posture for 

decision as OWCP has not complied with the Board’s March 12, 2018 decision or its own 

procedures.

Although the DMA reviewed the relevant medical evidence and determined that the 

attending physician had not properly documented ROM measurements in triplicate and had not 

related whether appellant’s loss of ROM had an organic basis, OWCP did not advise appellant of 

the deficiency or attempt to obtain the missing information to cure the deficiency as required by 

FECA Bulletin No. 17-06.

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The Board thus finds that the medical record with regard to the extent of appellant’s 

permanent impairment requires further development consistent with FECA Bulletin No. 17-06 as 

OWCP did not obtain the necessary ROM evidence and the DMA was thereby precluded from 

calculating appellant’s permanent impairment under both the ROM and DBI rating methods to 

determine which method produced the higher rating. After this and other such further development 

of the medical evidence as deemed necessary, OWCP shall issue a de novo decision.

 

6 Federal (FECA) Procedure Manual, Part 2 --Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.6(d) (February 2013); see also Chapter 2.808.6(f)(2)(c) (February 2013); D.H., Docket No. 18-0457 (issued 

September 18, 2019).
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IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to OWCP for further proceedings 

consistent with this order of the Board.

Issued: April 16, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board