United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, EUSTIS POST 

OFFICE, Eustis, FL, Employer

__________________________________________

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Docket No. 20-0274

Issued: May 13, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 August 1, 2020 appellant, through counsel, filed a timely appeal from an October 28, 

2019 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 to consider 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 his burden of proof to establish more than 18 percent 

permanent impairment of his right upper extremity and 2 percent permanent impairment of his left 

upper extremity, for which he previously received schedule award compensation.

FACTUAL HISTORY

On March 6, 2014 appellant, then a 52-year-old rural letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 27, 2014 he injured both shoulders and his neck 

while in the performance of duty. He did not stop work. In an accompanying narrative statement

dated March 6, 2014, appellant related that on February 27, 2014 he experienced pain in his right 

shoulder and neck when sorting and casing tubs of flats and letters and placing them into a hamper 

and cart for delivery on his route in a postal vehicle.

OWCP initially denied appellant’s claim, but on April 27, 2015, accepted appellant’s claim 

for aggravation of cervical spondylosis without myelopathy, sprain of neck, and aggravation of 

bilateral shoulder impingement.3

Appellant submitted an April 20, 2017 medical report from Dr. Samy Bishai, an orthopedic

surgeon, who opined that appellant had 24 percent permanent impairment of each upper extremity 

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),4 due to loss of shoulder range of 

motion (ROM). Dr. Bishai determined that appellant reached maximum medical improvement 

(MMI) on the date of his impairment evaluation.

On July 13, 2017 appellant filed a claim for a schedule award (Form CA-7).

OWCP, by development letter dated July 26, 2017, requested that appellant submit a report 

from his attending physician which addressed whether he had reached MMI and, if so, to evaluate 

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

It afforded him 30 days to submit the necessary evidence. No further evidence was submitted.

On August 25, 2017 OWCP referred the medical evidence and a statement of accepted 

facts (SOAF) to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP 

district medical adviser (DMA), to review the findings in the April 20, 2017 report by Dr. Bishai. 

On August 26, 2017 the DMA recommended that appellant undergo a second opinion evaluation 

with a Board-certified orthopedic surgeon because Dr. Bishai’s ROM measurements conflicted 

with the ROM measurements contained in an April 30, 2014 report of Dr. Richard Blecha, a 

Board-certified orthopedic surgeon, and April 2, 2015 report of Dr. Richard C. Smith, a Boardcertified orthopedic surgeon and prior OWCP referral physician.

On September 21, 2017 OWCP referred appellant, along with a SOAF and the medical 

record, to Dr. Norman B. Seltzer, a Board-certified orthopedic surgeon, for a new second opinion 

 

3 Appellant retired on disability from the employing establishment effective May 8, 2015.

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

impairment examination. In a November 9, 2017 report, Dr. Seltzer utilized the diagnosis-based 

impairment (DBI) rating method of the sixth edition of the A.M.A., Guides and opined that 

appellant had two percent permanent impairment of each upper extremity. He determined that 

appellant had reached MMI on April 20, 2017, the date of Dr. Bishai’s impairment evaluation. 

On December 28, 2017 Dr. Katz, the DMA, reviewed the medical record and indicated that 

he agreed with Dr. Seltzer’s rating of two percent permanent impairment of each upper extremity. 

He advised that appellant reached MMI on November 9, 2017, the date of Dr. Seltzer’s evaluation.

On January 3, 2018 OWCP requested that the DMA provide a rationalized opinion 

explaining why he selected November 9, 2017 as the date of MMI. In response, the DMA 

submitted an amended report dated January 5, 2018 in which he reiterated the calculations he first 

presented in his December 28, 2017 report. Additionally, he explained that the definition of MMI 

was usually considered to be the date of the evaluation by an attending physician OWCP accepts 

as definitive. The DMA related that, Dr. Seltzer’s November 9, 2017 evaluation formed the basis 

upon which he rendered his own impairment rating, November 9, 2017 met the described 

definition of MMI.

By decision dated January 11, 2018, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right arm and two percent permanent impairment of the left 

arm based upon the opinions of Dr. Seltzer and its DMA. The period of the award ran for 12.48 

weeks (87.36 days) from November 9, 2017 to February 3, 2018.

On January 19, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on June 26, 2018.

By decision dated September 6, 2018, OWCP’s hearing representative set aside the 

January 11, 2018 decision and remanded the case for further medical development. He instructed

OWCP to refer appellant back to Dr. Seltzer for an additional second opinion examination to 

determine whether he had permanent impairment of his upper extremities under the ROM rating 

method set forth in the sixth edition of the A.M.A., Guides.

On September 12, 2018 OWCP requested a supplemental report from Dr. Seltzer.

On September 26, 2018 OWCP referred appellant, together with a SOAF, the medical 

record, and list of questions, to Dr. Jeffrey T. O’Brien, a Board-certified orthopedic surgeon, for a 

new second opinion impairment evaluation. In a November 2, 2018 report, Dr. O’Brien reviewed 

appellant’s medical records and noted examination findings, including ROM measurements for 

the right and left shoulders and cervical spine. He diagnosed right shoulder impingement 

syndrome and cervical degenerative disc disease. Dr. O’Brien determined that appellant reached 

MMI on April 2, 2015. Regarding impairment to the right upper extremity, he utilized the DBI 

rating method found at Table 15-5 of the sixth edition of the A.M.A., Guides, and found that 

appellant had a class of diagnosis (CDX) of 1 for shoulder impingement with a default value of 

one percent. Dr. O’Brien assigned a grade modifier for functional history (GMFH) of 2, a grade 

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

of 2. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX) 

= (2 - 1) + (2 - 1) + (2 - 1) = 0, resulting in a class 1, grade E, or five percent permanent impairment 

of the right upper extremity. Dr. O’Brien noted that the five percent DBI impairment rating was 
4

higher than the ROM impairment rating. He further noted that there were no objective findings 

for the left shoulder and concluded that there was zero percent permanent impairment of the left 

upper extremity. Additionally, Dr. O’Brien indicated that there was no neck impairment rating for 

a diagnosis of cervical degenerative disc disease as there was no radiculopathy of the spine.

On December 12, 2018 Dr. Katz, the DMA, reviewed the medical record, including

Dr. O’Brien’s November 2, 2018 clinical findings. He noted that Dr. O’Brien only provided a

permanent impairment rating for the right shoulder when both shoulders were involved in 

appellant’s claim. Further, the DMA noted that Dr. O’Brien measured significant loss of ROM

for the right shoulder, did not calculate a stand-alone motion rating using Table 15-34, and he 

concluded that the DBI permanent impairment for the right shoulder exceeded ROM permanent 

impairment. He related that if the ROM examination was reliable, it was likely that the ROM 

permanent impairment would far exceed the DBI permanent impairment. Therefore, for these

reasons, the DMA recommended that OWCP obtain a supplemental report from Dr. O’Brien or a 

report from a Board-certified physiatrist or a Board-certified orthopedic surgeon addressing and 

calculating appellant’s bilateral shoulder ROM permanent impairment using Table 15-34.

On December 14, 2018 and February 1, 2019 OWCP requested that Dr. O’Brien submit a 

supplemental report which addressed the concerns expressed by the DMA in his December 13, 

2018 report.

In a February 1, 2019 supplemental report, Dr. O’Brien provided ROM measurements for 

appellant’s right and left shoulders. Regarding permanent impairment to the right shoulder, he 

utilized Table 15-34 on page 475, and found that 40 degrees of abduction yielded six percent 

permanent impairment, 80 degrees of flexion yielded nine percent permanent impairment, 20 

degrees of adduction yielded two percent permanent impairment, 30 degrees of extension yielded 

one percent permanent impairment, and 80 degrees of internal rotation and 60 degrees of external 

rotation yielded zero percent permanent impairment, totaling 18 percent permanent impairment of 

the right upper extremity. Regarding permanent impairment to the left shoulder, Dr. O’Brien again 

utilized Table 15-34 and found that 180 degrees of flexion, 45 degrees of extension, 170 degrees 

of abduction, 40 degrees of adduction, 80 degrees of internal rotation, and 60 degrees of external 

rotation yielded zero percent permanent impairment, totaling zero percent permanent impairment. 

He advised that there were no changes in ROM loss for the left shoulder, and thus, concluded that 

appellant had zero percent permanent impairment of his left upper extremity.

The DMA, in an April 2, 2019 report, reviewed Dr. O’Brien’s February 1, 2019 findings

and concurred with his 18 percent permanent total impairment of the right upper extremity, noting 

that the additional award would be for 16 percent permanent impairment of the right upper 

extremity after subtracting the 2 percent previously awarded. He also concurred that appellant had

zero percent permanent impairment of the left upper extremity.

By decision dated April 4, 2019, OWCP granted appellant an additional schedule award 

for 16 percent permanent impairment of the right upper extremity (arm) for a total of 18 percent, 

with no additional permanent impairment of the left upper extremity (arm) beyond the 2 percent 

permanent impairment previously awarded based on the opinions of Dr. O’Brien and its DMA. 

The period of the award ran for 49.92 weeks (349.44 days) from November 2, 2018 to 

October 17, 2019.
5

On April 10, 2019 counsel requested a telephonic hearing before a representative of 

OWCP’s Branch of Hearings and Review, which was held on August 13, 2019. No additional 

evidence was submitted.

By decision dated October 28, 2019, an OWCP hearing representative affirmed the April 4, 

2019 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA5and its implementing regulations6set 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 to 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. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).8 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.9

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. With regard to the shoulder, the relevant portion of the arm for the present case, 

reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX 

is determined from the Shoulder Regional Grid (including identification of a default grade value), 

the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment 

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

Regarding the application of ROM or DBI impairment 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 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017).

9 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10 See A.M.A., Guides 405-12. Table 15-5 also provides that, if motion loss is present for a claimant with certain 

diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM impairment). 

Such a ROM assessment stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.
6

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. (Emphasis in the original.)”

* * *

“If the rating physician provided an assessment using the DBI 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.

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

11

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 

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

rationale for the percentage of impairment specified.12

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 18

percent permanent impairment of his right upper extremity and two percent permanent impairment 

of his left upper extremity, for which he previously received schedule award compensation.

OWCP referred appellant for a second opinion evaluation with Dr. O’Brien who, in his 

November 2, 2018 report, found that appellant had reached MMI due to his accepted conditions 

of aggravation of cervical spondylosis without myelopathy, neck sprain, and aggravation of 

bilateral shoulder impingement. Regarding impairment to the right shoulder, he determined that, 

under the DBI method for rating permanent impairment, utilizing Table 15-5, page 402 appellant 

had a default value of one percent for the accepted right shoulder impingement syndrome.

Dr. O’Brien then assigned a grade modifier 2 for GMFH, 2 for GMPE, and 2 for GMCS. After 

applying the net adjustment formula, he determined that the net adjustment of zero resulted in a 

 

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

12 See supra note 8 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).
7

class 1, grade E, five percent permanent impairment of the right upper extremity. Dr. O’Brien 

found that the five percent DBI impairment rating was higher than the ROM impairment rating, 

but did not provide a right shoulder ROM permanent impairment rating. He determined that 

appellant had zero percent permanent impairment of his left upper extremity based on no objective 

findings for his left shoulder. Dr. O’Brien further found that he had no permanent impairment of 

the neck based on his diagnosis of cervical degenerative disc disease in the absence of 

radiculopathy of the spine.

In accordance with its procedures,13 OWCP properly referred the evidence of record to

Dr. Katz, a DMA, who reviewed the clinical findings of Dr. O’Brien on December 12, 2018 and 

recommended that OWCP obtain a supplemental report from Dr. O’Brien as he only provided a 

permanent impairment rating for the right shoulder when both shoulders were involved in 

appellant’s claim, did not provide a ROM permanent impairment rating for the right upper 

extremity although he found significant loss of ROM of the right shoulder, and concluded that the 

right shoulder permanent impairment under the DBI rating method was greater than the right 

shoulder permanent impairment under the ROM rating method.

In a February 1, 2019 supplemental report, Dr. O’Brien provided three ROM measurements 

of appellant’s right and left shoulders. Regarding permanent impairment to the right shoulder, he 

utilized Table 15-34, page 475, of the sixth edition of the A.M.A., Guides and determined that 80 

degrees of flexion represented 9 percent permanent impairment, 30 degrees of extension 

represented 1 percent permanent impairment, 40 degrees of abduction represented 6 percent 

permanent impairment, 20 percent of adduction represented 2 percent permanent impairment, and 

80 degrees of internal rotation and 60 degrees of external rotation represented 0 percent permanent 

impairment, totaling 18 percent permanent impairment of the right upper extremity. Regarding 

permanent impairment to the left shoulder, Dr. O’Brien determined that 180 degrees of flexion, 45 

degrees of extension, 170 degrees of abduction, 40 degrees of adduction, 80 degrees of internal 

rotation, and 60 degrees of external rotation yielded zero percent permanent impairment, totaling 

zero percent permanent impairment of the left upper extremity.

In his April 12 2019 report, the DMA concurred with Dr. O’Brien’s finding that appellant 

had 18 percent permanent impairment of his right upper extremity and 0 percent permanent 

impairment of his left upper extremity pursuant to the sixth edition of the A.M.A., Guides.

The Board finds that OWCP properly determined that the clinical findings and reports of

Dr. O’Brien and the DMA constitute the weight of the medical evidence.14 There is no probative 

medical evidence of record demonstrating greater impairment than that previously awarded.15 

Therefore, appellant has not met his burden of proof to establish an increased schedule award.

 

13 Id.

14 J.S., Docket No. 19-1567 (issued April 1, 2020); J.H., Docket No. 18-1207 (issued June 20, 2019); M.C., Docket 

No. 15-1757 (issued March 17, 2016).

15 See J.S., id.; J.M., Docket No. 18-1334 (issued March 7, 2019).
8

On appeal counsel contends that OWCP has the duty to develop the evidence. The Board 

notes that appellant has the burden of proof to establish his entitlement to a greater schedule award

and the medical evidence submitted is insufficient to meet his burden of proof.16

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish more than 18 

percent permanent impairment of his right upper extremity and two percent permanent impairment 

of his left upper extremity, for which he previously received schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the October 28, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 13, 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

 

16 See D.F., Docket No. 17-1474 (issued January 26, 2018); A.T., Docket No. 16-0738 (issued May 19, 2016).