United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Southeastern, PA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 18-0985

Issued: November 4, 2019

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 16, 2018 appellant, through counsel, filed a timely appeal from a December 26, 

2017 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.

 

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

ISSUE

The issue is whether appellant has met her burden of proof to establish greater than 

four percent permanent impairment of the left upper extremity, for which she previously 

received a scheduled award.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On February 13, 2012 appellant, then a 45-year-old data collection technician, was 

involved in a motor vehicle accident while in the performance of duty. She filed a traumatic injury 

claim (Form CA-1) and OWCP subsequently accepted her claim for the conditions of left shoulder 

acromioclavicular sprain, left rotator cuff sprain, left shoulder adhesive capsulitis, neck sprain, and 

lumbosacral sprain. On November 29, 2012 appellant underwent OWCP-authorized left shoulder 

surgery.4 OWCP paid her wage-loss compensation on the supplemental rolls through April 3, 

2013, at which time she returned to work in a full-time, light limited-duty capacity.

On September 9, 2014 appellant filed a claim for a schedule award (Form CA-7). In 

support of her claim,she submitted a June 3, 2014 report by Dr. Nicholas P. Diamond, an attending

osteopath specializing in neuromuscular medicine and pain management, who noted the history of 

injury, reviewed the medical record, and performed a physical examination. Dr. Diamond 

determined that due to range of motion (ROM) findings of flexion of 160 degrees and abduction 

of 140 degrees she had six percent upper extremity permanent impairment. He applied a grade 

modifier for functional history of 2, which after net adjustment resulted in six percent left upper 

extremity permanent impairment due to loss of shoulder ROM methodology under Table 15-34 on 

page 475 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).

5

OWCP routed Dr. Diamond’s report along with a copy of the medical record to Dr. Morley 

Slutsky, Board-certified in occupational medicine and serving as a district medical adviser (DMA). 

The DMA reviewed the claim on September 12, 2014 and found four percent left upper extremity 

permanent impairment utilizing the diagnosis-based impairment (DBI) methodology under the 

A.M.A., Guides. The four percent left upper extremity impairment rating was based on a diagnosis 

for residuals of a partial thickness rotator cuff tear under Table 15-5, Shoulder Regional Grid, on 

page 402 of the A.M.A., Guides.

 

3 Docket No. 15-1304 (issued March 22, 2017).

4 Dr. John A. Pasquella, an orthopedic surgeon specialist, performed an arthroscopic subacromial decompression, 

acromioplasty, and synovectomy.

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

By decision dated October 20, 2014, OWCP granted appellant a schedule award for four 

percent permanent impairment of the left upper extremity. The award covered a period of 12.48 

weeks, from July 19 through October 14, 2013. 

On December 17, 2014 appellant, through counsel, requested reconsideration. 

By decision dated March 17, 2015, OWCP denied modification of its prior schedule award 

decision. 

On May 22, 2015 appellant, through counsel, filed an appeal with the Board. By decision 

dated March 22, 2017, the Board set aside the March 17, 2015 decision.6 The Board found that 

OWCP had inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of 

either the DBI or ROM methodology in assessing the extent of permanent impairment. The Board 

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 and further development of the 

medical evidence as to the extent of appellant’s permanent impairment.

On July 28, 2017 OWCP referred appellant for an impartial medical examination to

Dr. Andrew Gelman, a Board-certified orthopedic surgeon, to resolve a conflict between

Dr. Diamond and the DMA regarding the extent of permanent impairment of the left upper 

extremity.

In a September 5, 2017 report, Dr. Gelman reviewed a statement of accepted facts (SOAF), 

a copy of the medical record, performed a physical evaluation of appellant, and utilized the 

A.M.A., Guides. He referred to Chapter 15, Section 15.1, to explain that “most impairment values 

for the upper extremity were calculated using the [DBI] method.”

7

 Dr. Gelman noted that this was 

further recognized in Section 15.2 which advised “[ROM] is used primarily as a physical 

examination adjustment factor and only to determine actual impairment values when a grid permits 

its use as an option.”

8

 Dr. Gelman concluded that he would rely on the preferred DBI method as 

opposed to the ROM methodology. 

In performing his physical examination, Dr. Gelman noted that ROM measurements were 

recorded on multiple occasions allowing appellant to loosen up and with regards to measurements 

in accordance with the A.M.A., Guides methodology. He indicated that the measurements on the 

left varied. Dr. Gelman also indicated that he had taken the average with regard to the recorded 

measurements. Regarding the left side, he found active forward flexion of 140 degrees, abduction 

to 115 degrees, external rotation to 80 degrees, internal rotation to 50 degrees, extension of 65 

degrees, and adduction of 50 degrees. Dr. Gelman explained that on multiple occasions with the 

average taken, the right-side measurements noted active forward flexion of 160 degrees, abduction 

of 135 degrees, external rotation to 85 degrees, internal rotation to 50 degrees, extension of 85 

degrees, and adduction of 50 degrees. He advised that subtle differences on the right side were 

 

6 See supra note 3.

7 A.M.A., Guides 385.

8

Id. at 387.
4

noted and explained that appellant had better movement both on the asymptomatic right side and 

minimal with mild discomfort at the extremes on the left side.

Dr. Gelman found a class of diagnosis (CDX) of 1 as reflected in Table 15-5,

9 utilizing the 

diagnosis of impingement syndrome and/or partial thickness tear categories resulting in a default

impairment of three percent. He advised that adjustment grid parameters would then apply and 

referenced Table 15-7 for functional history adjustment.

10

 Dr. Gelman indicated that appellant 

had a grade modifier of 1 for functional history (GMFH). He also referred to Table 15-8, for a 

grade modifier of 1 for physical examination (GMPE). Dr. Gelman referred to Table 15-9,

11 for a 

grade modifier for clinical studies (GMCS) of 2. He calculated a net adjustment of plus 1 and 

explained that this would move the three percent default rating to four percent upper extremity

permanent impairment. 

Dr. Gelman noted that, if the ROM methodology was utilized, Table 15-34, Table 15-35, 

Table 15-36 would apply12 and result in eight percent permanent impairment. However, with the 

right shoulder as baseline which was without deficits, this would then equate to a rating of zero 

percent which he opined would not appear to adequately address appellant’s actual level of 

impairment. Dr. Gelman concluded that, as a result, he relied upon the DBI methodology and 

opined that appellant had four percent left upper extremity permanent impairment.13

By decision dated December 26, 2017, OWCP denied modification of the October 20, 

2014 decision finding that the special weight of the evidence should be afforded to Dr. Gelman, as 

a referee examiner, as he had resolved the existing medical conflict.

LEGAL PRECEDENT

The schedule award provisions of FECA,14 and its implementing federal regulations,15 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 

 

9

Id. at 402.

10 Id. at 406.

11 Id. at 410.

12 A.M.A., Guides 475, 477.

13 Dr. Gelman noted appellant’s lumbar spine condition, but noted that he was not provided documentation to 

complete a rating of permanent impairment due to the lumbar conditions.

14 5 U.S.C. § 8107.

15 20 C.F.R. § 10.404.
5

the A.M.A., Guides as the uniform standard applicable to all claimants.16 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.17

In determining impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated. After the CDX is determined the net adjustment formula is applied using GMFH, 

GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).18

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus 

the ROM methodology for rating of upper extremity impairments.19 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part: 

“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.,] 

Guides identify 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.”

20 (Emphasis in the original).

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the 

physician making the examination for the United States and the physician of the employee, the 

Secretary shall appoint a third physician who shall make an examination.”

21

 In situations where 

there exist opposing medical reports of virtually equal weight and rationale and the case is referred 

to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such 

 

16 Id. at 10.404(a).

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

2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2

and Exhibit 1 (January 2010).

18 See A.M.A., Guides 411.

19 FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket 

No. 18-0329 (issued July 26, 2018).

20 Id.

21 5 U.S.C. § 8123(a).
6

specialist, if sufficiently well rationalized and based upon a proper factual background, must be 

given special weight.22

ANALYSIS

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

By decision dated March 22, 2017 the Board remanded the case to OWCP for 

consideration of appellant’s permanent impairment following development of a consistent 

method for rating upper extremity permanent impairment under Chapter 15 of the A.M.A., 

Guides. 

On remand OWCP found a conflict in the medical evidence and referred appellant to

Dr. Gelman for a referee evaluation on the issue of permanent impairment. Following the referee 

evaluation, by decision dated December 26, 2017, OWCP found the special weight of the medical 

evidence was with the opinion of Dr. Gelman and affirmed the schedule award of four percent 

permanent impairment of the right upper extremity. The Board finds, however, that OWCP has 

not properly developed the medical evidence as ordered on remand. First, Dr. Gelman was 

improperly designated as a referee physician as there was no existing conflict at the time of the 

designation. The Board had already concluded that the record of evidence did not contain a 

medical opinion of any probative value on the issue of upper extremity permanent impairment. 

As the attending physician and the DMA were both found to have misapplied the A.M.A., Guides, 

no conflict could exist because the physicians’ reports lacked probative value and thus there was 

no basis for finding a conflict in medical opinion.

23

 Second, on remand OWCP was required to 

develop and then follow a procedure for a consistent application of the A.M.A., Guides for upper 

extremity impairment ratings. On May 8, 2017 FECA Bulletin No. 17-06 was issued. Following 

issuance of this Bulletin, OWCP was required to develop the medical evidence of record as to the 

extent of permanent impairment by following the new procedures. No such development 

occurred in this case.

The Board therefore finds that OWCP improperly developed the evidence as to upper 

extremity permanent impairment on remand from the Board’s prior decision. The case is thus

remanded for development of the medical evidence as to appellant’s upper extremity permanent 

impairment by following the procedures set forth in FECA Bulletin No. 17-06, to be followed by 

a de novo decision.

CONCLUSION

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

 

22 L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued November 26, 2018); R.H., 

59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002).

23 See J.H., Docket No. 18-1207 (issued June 20, 2019).
7

ORDER

IT IS HEREBY ORDERED THAT the December 26, 2017 decision of the Office of 

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

consistent with this decision of the Board.

Issued: November 4, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board