United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Albany, NY, Employer

__________________________________________

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Docket No. 19-0483

Issued: October 10, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On January 2, 2019 appellant, through counsel, filed a timely appeal from a November 26, 

2018 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.

ISSUE

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

impairment of his right upper extremity warranting 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

FACTUAL HISTORY

On September 24, 1996 appellant, then a 38-year-old mail processing clerk, injured his 

neck and right upper extremity while in the performance of duty.3 OWCP accepted his traumatic 

injury claim (Form CA-1) for right shoulder sprain and cervical radiculopathy.

On May 26, 2015 Dr. Frederick J. Fletcher, a Board-certified orthopedist, noted that 

appellant had reached maximum medical improvement (MMI).

On December 17, 2015 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated March 16, 2016, OWCP advised appellant of the deficiencies 

of his claim and requested that he submit an impairment rating in accordance with the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides).

4

By decision dated May 25, 2016, OWCP denied appellant’s schedule award claim finding 

that the medical evidence of record was insufficient to establish permanent impairment of a 

scheduled member or function of the body.

On May 6, 2016 Dr. Fletcher indicated that his orthopedic group did not perform 

impairment rating evaluations. 

On June 3, 2016 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

Appellant submitted a June 8, 2016 report from Dr. Stewart A. Kaufman, a Board-certified 

orthopedist, who diagnosed sprain of the cervical spine and sprain of the right shoulder. 

Dr. Kaufman opined that appellant had reached MMI on October 17, 2003. He provided an 

impairment evaluation in accordance with the sixth edition of the A.M.A., Guides.

5

 Pursuant to

Table 15-34, Shoulder Range of Motion, page 475 of the A.M.A., Guides, findings for the right 

shoulder flexion of 90 degrees for three percent impairment, extension of 30 degrees for one

percent impairment, abduction of 65 degrees for six percent impairment, adduction of 30 degrees 

for one percent impairment, internal rotation of 40 degrees for four percent impairment, and 

external rotation of 55 degrees for two percent impairment. Dr. Kaufman noted that appellant’s 

QuickDASH score was 72.5. He opined, utilizing the range of motion (ROM) method for rating 

permanent impairment that appellant had 17 percent permanent impairment of the right upper 

extremity in accordance with the A.M.A., Guides.

By decision dated November 16, 2016, an OWCP hearing representative vacated the 

May 25, 2016 decision and remanded the case for further medical development. She instructed 

 

3 Appellant was injured pulling a hamper full of magazines out of a machine.

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

5

Id.
3

OWCP to refer appellant’s case and Dr. Kaufman’s report to an OWCP district medical adviser 

(DMA) to provide an assessment of appellant’s permanent impairment in accordance with the 

A.M.A., Guides.

On February 13, 2017 Dr. James W. Butler, Board-certified in occupational and aerospace 

medicine and serving as a DMA, reviewed the medical evidence of record and indicated that he 

did not have sufficient information to make an informed decision. He specifically noted that he 

did not know what the shoulder or cervical spine injuries were, and he did not have 

electromyogram (EMG) results.

On March 28, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. Kevin Scott, a Board-certified orthopedic surgeon. In an April 12, 2017 report, Dr. Scott

reviewed the medical record, a statement of accepted facts (SOAF), and a list of questions 

regarding appellant’s permanent impairment. He related appellant’s complaints of numbness and 

tingling into his hands and some shoulder pain. Appellant’s physical examination of the right 

shoulder revealed abduction of 150 degrees, flexion of 150 degrees, internal rotation of 60 degrees,

and external rotation of 60 degrees. With regard to his cervical spine he had 40 degrees of 

extension, 40 degrees of flexion, palpable tenderness along the cervical spine area, negative 

Spurling maneuver, and deep tendon reflexes of 2+ bilaterally at his elbow and wrist. Dr. Scott 

noted that MMI had occurred on April 12, 2017. He opined that he did not have enough 

information on the right shoulder, such as an operative report or a diagnosis from an imaging study,

to provide a permanent impairment rating. Dr. Scott opined that pursuant to the A.M.A., Guides 

Chapter 17, Table 17-6 for Functional History Adjustment: Spine on page 575, Table 17-7 for 

Physical Examination Adjustment: Spine on page 576, and Table 17-9 for Clinical Studies 

Adjustment: Spine on page 581, appellant had six percent whole person impairment.

An EMG study dated May 17, 2017 revealed moderate-to-severe carpal tunnel syndrome 

on the right side, but no evidence of cervical impingement.

On June 1, 2017 appellant underwent a magnetic resonance imaging (MRI) scan of the 

cervical spine which revealed C4-5 left lateral recess and left neural foraminal stenosis, C5-6 right 

neural foraminal stenosis, and C6-7 mild left neural foraminal stenosis. 

On July 20, 2017 OWCP requested that Dr. Scott provide a permanent impairment rating 

pursuant to Chapter 15 of the sixth edition of the A.M.A., Guides and The Guides Newsletter, 

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The

Guides Newsletter. It indicated that he provided a rating for whole person permanent impairment 

which was not accepted by OWCP. OWCP further requested that Dr. Scott note the documentation 

he would need to provide a rating for the right shoulder. 

Appellant underwent right upper extremity MRI scan on September 13, 2017 which 

revealed: mild-to-moderate supraspinatus tendinopathy with multiple small partial articular 

surface tears of the distal tendon, likely chronic; mild infraspinatus tendinopathy with tiny 

interstitial tear along the distal tendon; small interstitial tear extending into the musculotendinous 

junction, likely chronic; mild subscapularis tendinopathy; proximal long head biceps tendinopathy 

with partial longitudinal interstitial tear, likely chronic; and mild-to-moderate osteoarthritis 

especially in the acromioclavicular joint.
4

In a report dated July 21, 2017, Dr. Scott indicated that his April 12, 2017 cervical 

examination and EMG findings revealed no evidence of nerve root impingement and no evidence 

of cervical radiculopathy. Therefore, the impairment rating for the cervical spine would be zero. 

With regard to the right shoulder, Dr. Scott referenced a September 13, 2017 MRI scan which 

revealed mild-to-moderate osteoarthritis of the acromioclavicular joint and glenohumeral joint, a 

partial tear of his infraspinatus, and supraspinatus tear of the longhead of the biceps. He rated 

appellant utilizing the diagnosis-based impairment (DBI) methodology under the A.M.A., Guides

for arthritis utilizing Table 15-5 on page 405, and placed him into a class of diagnosis (CDX) 1 

and assigned a grade modifier of 1 for functional history (GMFH), a grade modifier of 1 for 

physical examination (GMPE), and found a grade modifier of 2 for clinical studies (GMCS) which 

showed a partial tear of the rotator cuff. Using the net adjustment formula (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX), Dr. Scott calculated that appellant had a net adjustment of 

(1-1) + (1-1) + (2-1) = +1, equaling a grade D. Based on these calculations, he concluded that 

appellant had seven percent permanent impairment of the right upper extremity. 

On November 17, 2017 OWCP requested that Dr. Scott provide clarification of his 

impairment rating, and specifically indicate whether there was a connection between the right 

shoulder sprain on September 24, 1996 and the MRI scan findings of September 13, 2017. It

further requested that he provide an impairment rating pursuant to The Guides Newsletter.

In a second supplemental report dated November 22, 2017, Dr. Scott indicated that he had 

not been provided medical records for the initial injury on September 24, 1996 and therefore he 

could not comment on a connection between the most recent MRI scan of September 13, 2017 and 

the original injury. He further noted that using The Guides Newsletter, appellant had zero percent 

impairment. Dr. Scott advised that appellant’s permanent impairment of the right upper extremity 

remained at seven percent.

On February 17, 2018 the DMA reviewed Dr. Scott’s April 12, July 21, and November 22, 

2017 reports. He disagreed with the determination of Dr. Scott. The DMA noted that there was 

no evidence of cervical radiculopathy on either the EMG findings or Dr. Scott’s examination. 

Therefore, he opined that there would be no rating for an injury to the cervical spine. With regard 

to the right shoulder, a right shoulder MRI scan 21 years post-injury showed normal changes one 

would expect as part of the aging process. The DMA advised that there was nothing to show that 

appellant’s right shoulder sprain had not resolved or that he experienced long-term residuals of the 

injury in 1996. He indicated that Dr. Scott’s seven percent upper extremity impairment was based 

on arthritis, which was not a direct result of the sprain, and therefore his rating should be 

discounted. The DMA further reviewed the evaluation of Dr. Kaufman who assigned 17 percent 

impairment for loss of ROM of the right shoulder and determined that he too based his impairment 

rating on arthritic changes that could not be associated with the accepted sprain. He noted that a 

simple sprain/strain had resolved and would not cause problems 21 years later. The DMA found 

zero percent permanent impairment of the right upper extremity. He found the date of MMI to be 

in April 2005. 

By decision dated March 28, 2018, OWCP denied appellant’s schedule award claim. 
5

On April 3, 2018 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 12, 2018.

By decision dated November 26, 2018, the hearing representative affirmed the March 28, 

2018 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,6 and its implementing federal regulations,7 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

In addressing upper extremity impairments, the sixth edition requires identification of the 

impairment CDX condition, which is then adjusted by GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 OWCP procedures 

provide that, after obtaining all necessary medical evidence, the file should be routed to a DMA 

for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., 

Guides, with the DMA providing rationale for the percentage of permanent impairment specified. 11

The A.M.A., Guides also provide that the ROM impairment method is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

diagnosis-based sections are applicable.12 If ROM is used as a stand-alone approach, the total of 

motion impairment for all units of function must be calculated. All values for the joint are 

measured and added.13 Adjustments for functional history may be made if the evaluator 

 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. 

8

Id. at § 10.404(a). 

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

2.808.5(a) (March 2017); see also Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

10 A.M.A., Guides 411.

11 See P.R., Docket No. 18-0022 (issued April9, 2018); Federal (FECA) Procedure Manual, supra note 9 at Chapter 

2.808.6f (March 2017). 

12 A.M.A., Guides 461. 

13 Id. at 473. 
6

determines that the resulting impairment does not adequately reflect functional loss and functional 

reports are determined to be reliable.14

Regarding the application of ROM or DBI methodologies in rating permanent impairment 

of the upper extremities, FECA Bulletin No. 17-06 provides: 

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s). 

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guidesidentify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

15 (Emphasis in the original.) 

The Bulletin further advises: “If the rating physician provided an assessment using the 

ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the 

DMA should independently calculate impairment using both the ROM and DBI methods and 

identify the higher rating for the CE.”

16

Neither FECA nor its implementing regulations provide for the payment of a schedule 

award for the permanent loss of use of the back/spine or the body as a whole. 17 However, a 

schedule award is permissible where the employment-related spinal condition affects the upper 

and/or lower extremities.18 The sixth edition of the A.M.A., Guides (2009) provides a specific 

methodology for rating spinal nerve extremity impairment. It was designed for situations where a 

particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for 

the spine. The FECA-approved methodology is premised on evidence of radiculopathy affecting 

the upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity 

impairment are incorporated in the procedure manual.19

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

 

14 Id. at 474. 

15 FECA Bulletin No. 17-06 (issued May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018). 

16 Supra note 15; V.L.,Docket No. 18-0760 (issued November 13, 2018); A.G., id.

17 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b).

18 Federal (FECA) Procedure Manual, supranote 9 at Chapter 2.808.5(c)(3) (March 2017).

19 Id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.5, Exhibit 4 (January 2010).
7

of impairment in accordance with the A.M.A., Guides, with the medical adviser providing 

rationale for the percentage of impairment specified.20

ANALYSIS

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

OWCP accepted that appellant sustained a right shoulder sprain and cervical radiculopathy 

due to a September 24, 1996 employment injury. On December 17, 2015 appellant filed a claim 

for a schedule award.

Appellant submitted a June 8, 2016 report from Dr. Kaufman who diagnosed sprain of the 

cervical spine and sprain of the right shoulder. Dr. Kaufman provided findings on examination, 

including ROM measurements of the right shoulder. He determined that appellant had 17 percent 

permanent impairment of the right upper extremity pursuant to Table 15-34 of the A.M.A., 

Guides,

21 due to loss of ROM of the shoulder. However, the DMA opined that Dr. Kaufman’s 

June 8, 2016 impairment rating of 17 percent permanent impairment of the right shoulder due to 

loss of ROM was based on arthritis and could not be associated with the accepted right shoulder 

sprain. 

Similarly, OWCP referred appellant for a second opinion examination to Dr. Scott who in 

reports dated April 12, July 21, and November 22, 2017 diagnosed mild-to-moderate osteoarthritis 

of the acromioclavicular joint and glenohumeral joint and a partial tear of his infraspinatus, and 

supraspinatus tear of the longhead of the biceps. Dr. Scott noted findings on examination. He 

rated appellant utilizing the DBI methodology under the A.M.A., Guides for arthritis utilizing 

Table 15-5 on page 405. Dr. Scott calculated that appellant had seven percent permanent 

impairment of the right upper extremity. On February 17, 2018 the DMA evaluated the second 

opinion reports from Dr. Scott dated April 12, July 21, and November 22, 2017, and discounted

Dr. Scott’s evaluation as it was related to arthritis and not related to the accepted right shoulder 

sprain. 

The Board finds that OWCP did not follow the procedures outlined in FECA Bulletin No. 

17-06. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining 

sufficient evidence to conduct a complete impairment evaluation.22 It indicates that, if the rating 

physician provides an assessment using the ROM method, the DMA should independently 

calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA 

Bulletin No. 17-06 further provides that the evaluator should obtain three independent 

measurements for ROM and that the greatest measurement should be used to determine the extent 

of impairment.23 FECA Bulletin No. 17-06 indicates that OWCP should instruct the physician to 

 

20 See Federal (FECA) Procedure Manual, supranote 9 at Chapter 2.808.6(f) (February 2013).

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

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

23 Id.
8

obtain three independent measurements.24 As OWCP did not follow the procedure set forth in the 

A.M.A., Guides and FECA Bulletin No. 17-06, the Board will remand the case for OWCP to 

further develop the ROM measurements of the upper extremity in accordance with the A.M.A., 

Guides. After it obtains the evidence necessary to complete the rating as described above, the case 

should be referred to the DMA to independently calculate using both ROM and DBI methods and 

identify the higher rating.

25

 Following this and such further development as deemed necessary, 

OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the November 26, 2018 decision of the Office of 

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

consistent with this decision of the Board. 

Issued: October 10, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

24 Id.

25 See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued 

September 11, 2018).