United States Department of Labor

Employees’ Compensation Appeals Board

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C.S., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Vincentown, NJ, Employer

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Docket No. 21-0125

Issued: November 10, 2021

Appearances: Case Submitted on the Record

Michael D. Overman, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 5, 2020 appellant, through counsel, filed a timely appeal from a May 11, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Appellant died after the filing of this appeal. As such, a substitute appellant is required to carry the appeal forward 

as the Board’s jurisdiction was invoked during her lifetime. See D.V., Docket No. 20-1291 (issued September 14, 

2021; N.D., Docket No. 14-1757 (issued June 2, 2015); Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, 

appellant’s daughter, S.S., is recognized by the Board as the substitute appellant for the purposes of carrying the appeal 

forward.
2

Federal Employees’ Compensation Act3(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 permanent impairment 

of a scheduled member or function of the body, warranting a schedule award.

FACTUAL HISTORY

On July 11, 2001 appellant, then a 57-year-old rural mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome due to factors of 

her federal employment. She noted that she first became aware of her condition and its relationship 

to her federal employment on July 11, 2001. Appellant did not initially stop work.

On October 4, 2001 OWCP accepted appellant’s claim for right carpal tunnel syndrome.

It later expanded the acceptance of the claim to include bilateral carpal tunnel syndrome, bilateral 

traumatic lower leg arthropathy, and bilateral disorder of the bursa and tendons in the shoulder 

region. It paid appellant wage-loss compensation on the supplemental rolls effective January 9, 

2004, and the periodic rolls effective November 26, 2006.

Appellant underwent an accepted right wrist multiple flexor synovectomy and right carpal 

tunnel release on July 15, 2008, and right total shoulder arthroplasty with bicep tenodesis on 

June 3, 2011.

On September 3, 2019 appellant filed a claim for compensation (Form CA-7)for a schedule 

award.

In a September 12, 2019 development letter, OWCP noted that appellant had not provided 

medical evidence of permanent impairment in support of her schedule award claim. It requested 

a detailed narrative medical report addressing whether her accepted conditions had reached 

maximum medical improvement (MMI) and whether she had any permanent impairment of a 

scheduled member in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4

No impairment rating was provided. 

On September 26, 2019 counsel requested that appellant’s schedule award claim be 

“suspended.” He related that she had not reached MMI and that medical evidence in support of 

the schedule award would be submitted at a later date.

3

5 U.S.C. § 8101 et seq.

4 A.M.A., Guides(6th ed. 2009).
3

By decision dated December 5, 2019, OWCP denied appellant’s claim for a schedule 

award, finding that there was no medical evidence to establish that she had reached MMI and had 

sustained permanent impairment of a scheduled member or function of the body.

On December 16, 2019, appellant through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review.

A hearing was held telephonically on April 1, 2020.

In a January 13, 2020 report, Dr. Andrew Frederic Kuntz, a Board-certified orthopedic 

surgeon, noted that appellant had a 10-year history of left shoulder pain, which had been 

progressively worsening. She had been scheduled twice to have her left shoulder replaced, but 

had not undergone the procedure. Appellant had undergone a right shoulder replacement four to 

five years prior, but had fallen a few months prior and sustained a right shoulder periprosthetic 

fracture. Dr. Kuntz diagnosed primary osteoarthritis of the left shoulder, status post-shoulder 

replacement on the right, and fracture of right humerus following insertion of orthopedic implant. 

He provided physical examination findings for the bilateral shoulders. Regarding appellant’s left 

shoulder, Dr. Kuntz related herrange of motion (ROM) as 70 degrees forward flexion, -15 external 

rotation, unable to perform internal rotation, and 90 degrees abduction. He also noted that she had 

capsular irritability of the left shoulder, and 4/5 strength of the rotator cuff. Regarding appellant’s 

right shoulder, Dr. Kuntz related that she had 110 degrees of forward flexion, 35 degrees of 

external rotation, external rotation abduction of 70 degrees, and internal rotation abduction of 5 

degrees. He opined that appellant’s best treatment would be a left shoulder reverse replacement:

however,she did not present as an optimal surgical candidate given her multiple comorbidities and 

declining medical status. Dr. Kuntz recommended that appellant follow up with her primary care 

physician for pain management as necessary.

By decision dated May 11, 2020, the hearing representative affirmed the December 5, 2019 

denial of appellant’s schedule award claim, finding that there was no medical evidence from a 

physician in the case record to establish that she had reached MMI and that provided a permanent 

impairment rating.5 

LEGAL PRECEDENT

Section 8107 of FECA6 and section 10.404 of the implementing federal regulations, 7

provide for payment for permanent impairment of specified members, functions, and organs of the 

body. FECA, however, does not specify the manner in which the percentage loss of a member 

shall be determined. For consistent results and to ensure equal justice under the law for all 

claimants, good administrative practice necessitates the use of a single set of tables so that there 

may be uniform standards applicable to all claimants. The A.M.A., Guides, has been adopted by 

5 The hearing representative noted that appellant also had an occupational disease claim for a February 16, 2004 

injury which was accepted under OWCP File No. xxxxxx972 for aggravation of bilateral rotator cuff syndrome and 

aggravation of bilateral carpal tunnel syndrome. Appellant’s claims have been administratively combined by OWCP. 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.
4

the implementing regulations as the appropriate standard for evaluating schedule losses.8 For 

decisions issued after May 1, 2009, OWCP uses the sixth edition of the A.M.A., Guides.

9

It is the claimant’s burden of proof to establish permanent impairment of a scheduled

member or function of the body as a result of an employment injury.10 OWCP’s procedures 

provide that, to support a schedule award, the file must contain competent medical evidence, which 

shows that the impairment has reached a permanent and fixed state and indicates that the date on 

which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be 

visualized on review, and computes the percentage of impairment in accordance with the A.M.A., 

Guides.11 Its procedures further provide that, if a claimant has not submitted a permanent 

impairment evaluation, it should request a detailed report that includes a discussion of how the 

impairment rating was calculated.12 If the claimant does not provide an impairment evaluation 

and there is no indication of permanent impairment in the medical evidence of file, the claims 

examiner may proceed with a formal denial of the award.13

ANALYSIS

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

In a January 13, 2020 report, Dr. Kuntz noted appellant’s 10-year history of left shoulder 

pain, which had been progressively worsening. He diagnosed primary osteoarthritis of the left 

shoulder, status post-shoulder replacement on the right, and fracture of right humerus following 

insertion of orthopedic implant. Dr. Kuntz provided physical examination findings for the bilateral 

shoulders, specifically noting ROM measurements for each shoulder. He opined that appellant’s 

best treatment would be a left shoulder reverse replacement; however, she did not present as an 

optimal surgical candidate given her multiple comorbidities and declining medical status. 

OWCP’s procedures provide that if a claimant does not provide an impairment evaluation 

from his or her physician when requested, and there is an indication of permanent impairment in 

the medical evidence of file, the claims examiner (CE) should refer the claimant for a second 

opinion evaluation. The CE may also refer the case to the District Medical Adviser (DMA) prior 

8

See D.J., Docket No. 20-0017 (issued August31, 2021); F.S., Docket No. 18-0383 (issued August 22, 2018); 

Isidoro Rivera, 12 ECAB 348 (1961).

9 A.M.A., Guides, 6

th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and 

Permanent Disability Claims, Chapter 2.808.5.a.(March2017); Federal (FECA) Procedure Manual, Part 3 --Medical, 

Schedule Awards,Chapter 3.700, Exhibit 1 (January 2010).

10 Id.

11 Id.

12 Id. at Chapter 2.808.6(a) (March 2017).

13 Id. at Chapter 2.808.6(c).
5

to scheduling a second opinion examination to determine if the evidence in the file is sufficient for 

the DMA to provide an impairment rating.14

The Board finds that while Dr. Kuntz did not provide a rating of appellant’s permanent 

impairment pursuant to the sixth edition of the A.M.A., Guides, the evidence of record establishes 

appellant’s diagnoses and that a diagnosis-based permanent impairment rating could be completed 

under the Guides. For example, the evidence of record establishes that appellant underwent right 

shoulder arthroplasty in 2011. Table 15-5, the shoulder regional grid,15 provides a rating method 

for shoulder arthroplasty. Dr. Kuntz also provided evidence regarding appellant’s ROM of both 

upper extremities, which may be used to determine whether appellant had a ratable impairment 

due to loss of ROM. 

On remand OWCP shall refer the case record to the DMA to determine if the evidence in 

the file is sufficient for the DMA to provide an impairment rating. After such further development 

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

CONCLUSION

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

14 Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation, 

physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate 

impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was 

calculated. Supranote 9 at Chapter 2.808.6a.

15 Supra note 5 at 408. 
6

ORDER

IT IS HEREBY ORDERED THAT the May 11, 2020 decision of the Office of Workers’

Compensation Programs is set aside and this case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: November 10, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board