United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.C., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Southeastern, PA, Employer

__________________________________________

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Docket No. 21-0761

Issued: May 5, 2022

Appearances: Case Submitted on the Record

Russell T. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 22, 2021 appellant, through counsel, filed a timely appeal from an October 30, 

2020 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 his burden of proof to establish greater than 12 

percent permanent impairment of his left upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

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

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

follows.

On May 5, 2005 appellant, then a 55-year-old clerk, filed a traumatic injury claim (Form 

CA-1) alleging that on May 3, 2005 he injured his left upper arm when he attempted to stop a tray 

of mail from slipping off a rack while in the performance of duty. OWCP accepted the claim for 

left shoulder/arm sprain/strain, left bicipital tenosynovitis, left primary osteoarthritis, and other 

affection of the left shoulder region.4 

On April 4, 2007 appellant underwent OWCP-authorized left shoulder arthroscopic,

subacromial decompression, distal clavicle excision, minor anterior labral debridement, and biceps 

tenotomy. 

In a January 6, 2015 report, Dr. Nicholas P. Diamond, an osteopath specializing in pain 

medicine, rated appellant’s left shoulder permanent impairment under the diagnosis-based 

impairment (DBI) method. He determined that, under Table 15-5 of the sixth edition of the 

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

Guides),5the combined impairments resulted in a rating of 35 percent left upper extremity 

permanent impairment. Dr. Diamond related that appellant’s class of diagnosis (CDX) of left 

shoulder acromioclavicular (AC) joint arthropathy with distal clavicular excision, a Class 1 

impairment which resulted in 12 percent permanent impairment of the left upper extremity , a 

CDX of-moderate sensory deficit from C8, a Class 1 impairment which resulted in 0 percent 

permanent impairment of the left upper extremity, a CDX of mild motor strength deficit of the 

left biceps, Class 1 impairment, which resulted in 13 percent permanent impairment of the left 

upper extremity, and entrapment neuropathy of the left median nerve at the wrist, which resulted 

in 6 percent permanent impairment of the left wrist. 

On April 12, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

3 Docket No. 18-0896 (issued December 19, 2018); Docket No. 16-0323 (issued April10, 2017). 

4 On January 4, 2008 appellant filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral 

brachial plexus injuries causally related to factors of his federal employment. OWCP assigned OWCP File No. 

xxxxxx920. It denied the claim on March 13, 2008. OWCP has administratively combined the present claim, OWCP 

File No. xxxxxx973 and OWCP File No. xxxxxx920, with the latter designated as the master file. 

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

In a June 2, 2015 report, Dr. Arnold T.Berman, a Board-certified orthopedic surgeon serving 

as OWCP’s district medical adviser (DMA), determined that appellant had 12 percent permanent 

impairment of the left upper extremity based on Dr. Diamond’s January 6, 2015 findingsregarding 

appellant’s distal clavicle resection. He opined that Dr. Diamond’s other permanent impairment 

ratings were for conditions which were not causally related to the accepted May 3, 2005 

employment injury. 

By decision dated June 23, 2015, OWCPgranted appellant a scheduleaward for 12 percent

permanent impairment of the left upper extremity. 

Appellant, through counsel, appealed to the Board on December 8, 2015. By decision

dated April 10, 2017, the Board set aside the June 23, 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 range of motion (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. 

In a November 16, 2017 report, Dr. Morley Slutsky, a DMA Board-certified in 

occupational medicine, reviewed the medical record with the exception of Dr. Diamond’s 

January 6, 2015 report, as it had not been provided for his review. He determined that appellant 

had 10 percent left upper extremity permanent impairment. Dr. Slutsky referenced Table 15-5 of 

the A.M.A., Guides, Shoulder Regional Grid, Upper Extremity Impairment, CDX of AC joint

injury or disease, Class 1 impairment, for distal clavicle resection. He then utilized the adjustment 

grid and grade modifiers, and determined that appellant had a grade modifier for functional history 

(GMFH) of 1, a grade modifier for physical examination (GMPE) of 1, and a grade modifier for 

clinical studies (GMCS) of 1, as clinical studies confirmed lesions of rotator cuff/SLAP labral 

biceps tendon tear. Utilizing the adjustment formula resulted in no adjustment to the default value 

of grade C, resulting in 10 percent permanent impairment of the left upper extremity. 

By decision dated November 28, 2017, OWCP denied appellant’s claim for an increased

schedule award for the left upper extremity. It found that, pursuant to FECA Bulletin No. 17-06,

the evidence did not support greater than the 12 percent permanent impairment of the left upper

extremity previously awarded. 

Appellant, through counsel, appealed to the Board on April 16, 2018. By decision dated 

December 19, 2018, the Board found that the case was not in posture for decision.

7

 The Board 

explained that, when rendering his impairment rating, Dr. Slutsky did not have all the relevant 

medical evidence as OWCP failed to provide the January 6, 2015 report of Dr. Diamond. The 

Board remanded the case to OWCP for referral of appellant to a second opinion physician. 

On remand, OWCP referred appellant, a statement of accepted facts (SOAF), and the 

medical record to Dr. Willie Thompson, a Board-certified orthopedic surgeon, for a second 

6 Docket No. 16-0323 (issued April10, 2017).

7 Docket No. 18-0986 (issued December 19, 2018).
4

opinion examination to determine the extent of permanent impairment of appellant’s left upper 

extremity. 

In a report dated March 5, 2019, Dr. Thompson noted his review of the SOAF and medical 

record. On examination, he found that appellant had full ROM, normal strength, no evidence of 

muscle atrophy or wasting, and intact neurovascular status. Dr. Thompson observed no AC joint 

tenderness, negative impingement signs, 5/5/ shoulder flexion and abduction strength, normal 

muscle bulk and tone, and adequate radial pulse. He diagnosed status post left shoulder 

arthroscopic surgery with distal clavicle resection. Dr. Thompson concluded that appellant had no 

residuals of the accepted March 5, 2015 employment injury. Using Table 15-5 of the A.M.A., 

Guides, page 403 and CDX of distal clavicle resection, he determined that appellantwas functional 

with normal ROM and therefore he had a Class 1, or 10 percent permanent impairment of the left 

upper extremity. 

In a March 15, 2019 supplemental report, Dr. Thompson revised his left upper extremity 

permanent impairment rating from 10 to 8 percent. He reported bilateral shoulder ROM of 180 

degrees flexion, 60 degrees extension, 180 degrees abduction, 60 degrees adduction, 70 degrees 

internal rotation, and 90 degrees external rotation. Using the DBI rating method, Dr. Thompson 

assigned a GMFH of 0, a GMPE of 0 and a GMCS of 0. He applied the net adjustment formula 

and found a net adjustment of -3, which moved the default grade of C two spaces to the left

resulting in a grade A, or eight percent permanent impairment of the left shoulder. Dr. Thompson 

determined that appellant reached maximum medical improvement (MMI) on March 4, 2008. 

On March 25, 2019 OWCP referred the medical record to Dr. Herbert White, Jr., Boardcertified in preventive medicine, acting as OWCP’s DMA, for a schedule award evaluation. In a 

March 28, 2019 report, Dr. White, reviewed the medical evidence of record, including

Dr. Thompson’s March 5 and 15, 2019 reports, and concurred with Dr. Thompson’s left upper 

extremity permanent impairment rating of eight percent. 

By decision dated April 29, 2019, OWCP denied appellant’s claim for an increased 

schedule award based on the opinions of Dr. Thompson, OWCP’s second opinion physician, and

Dr. White, the DMA. 

On May 6, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

By decision dated June 24, 2019, OWCP’s hearing representative vacated OWCP’s 

April 29, 2019 decision. The hearing representative remanded the case to OWCP to obtain an 

addendum report from Dr. White addressing whether Dr. Thompson’s reports contained a 

permanent impairment rating for the left upper extremity using both the DBI and ROM 

methodologies and to explain Dr. Thompson’s different left upper extremity impairment ratings. 

The hearing representative also instructed OWCP to make findings regarding Dr. Diamond’s 

July 6, 2015 impairment evaluation. 

In a July 12, 2019 report, Dr. White provided clarification on the impairment ratings as 

instructed by the hearing representative. He utilized the ROM method in Table 15-34, page 475 

of the A.M.A., Guides to find zero percent impairment for 180 degrees flexion, zero percent 
5

impairment for 60 degrees extension, zero percent impairment for 170 degrees abduction, zero 

percent impairment for 60 degrees adduction, two percent impairment for 70 degrees internal 

rotation, and zero percent impairment for 90 degrees external rotation, totaling two percent left 

upper extremity permanent impairment. Using Table 15-5, page 403, the DMA found CDX of 

distal clavicle resection, a Class 1 impairment, with a default value of 10 percent impairment. 

Under Table 15-7, page 406, Dr.White found a GMFH of 0, under Table 15-8, page 408, he found 

a GMPE of 1, and under Table 15-9, page 410, he found a GMCS of 0. Utilizing the net adjustment 

formula calculation, the DMA found a net adjustment of -2,8 which resulted in grade A or eight 

percent permanent impairment for left shoulder distal clavicle resection. The DMA advised that 

the DBI method should be used as it provided the higher rating percentage of permanent 

impairment. With respect to Dr. Thompson’s differing impairment ratings, the DMA observed 

that Dr. Thompson did not apply the net adjustment formula when he calculated 10 percent left 

upper extremity permanent impairment, but did utilize the net adjustmentformula in his addendum 

report when he calculated 8 percent left upper extremity permanent impairment. Dr. White further 

explained that, while he had found a GMPE of 1 and Dr. Thompson found a GMPE of 0, this 

difference would not change the rating. He determined the date of MMI to be March 5, 2019, the 

date of Dr. Thompson’s examination. 

By decision dated July 15, 2019, OWCP again denied appellant’s claim for an increased 

schedule award. 

On July 23, 2019 appellant, through counsel, requested an oral hearing before a

representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on 

November 8, 2019. 

Following the hearing, counsel submitted an October 30, 2019 addendum report from

Dr. Diamond who disagreed with Dr. Thompson’s impairment rating. He noted that, according to 

FECA, all conditions of the affected body part must be included in the permanent impairment 

rating. Dr. Diamond asserted that appellant’s impairment rating did not take into consideration 

positive objective evidence of entrapment neuropathy, which should have been included in the 

impairment rating. He again determined that appellant had 35 percent permanent impairment of 

the left upper extremity. 

By decision dated January 17, 2020, OWCP’s hearing representative found a conflict in 

the medical opinion evidence between Dr. Diamond, for appellant, and Dr. Thompson, a second 

opinion physician, and Dr. White, a DMA, with regard to the nature and extent of appellant’s 

permanent impairment. He remanded the case to OWCP for referral to an impartial medical 

examiner (IME) for resolution of the outstanding conflict. 

By letter dated February 5, 2020, OWCP referred appellant, along with a SOAF and a 

series of questions to Dr. John Perry, a Board-certified orthopedic surgeon serving as the IME. 

In a report dated March 16, 2020, Dr. Perry reviewed appellant’s history of injury and left 

shoulder surgery in May 2012. He diagnosed left shoulder distal clavicle resection and biceps 

tenotomy, left shoulder AC degenerative joint disease, inconsistent presentation, and minimal 

8

(GMFH - CDX)(0-1) + (GMPE - CDX)(1-1) + (GMCS - CDX)(0-1) = -2.
6

evidence of brachial plexus neuropathy with bilateral cubital tunnel and carpal tunnel syndrome. 

Dr. Perry concluded that the brachial neuropathy with bilateral cubital tunnel and carpal tunnel 

syndrome were unrelated to the accepted May 3, 2005 employment injury as they were late onset. 

He related that appellant’s left shoulder ROM findings included 80 degrees abduction, 90 degrees 

elevation, 45 degrees external rotation, and internal rotation to the iliac crest. Appellant’s physical 

examination of the left shoulder showed no crepitus, swelling or joint effusion, stable anterior 

glenohumeral joint, and posterior and inferior stress testing. Dr. Perry noted that people who have 

distal clavicle surgery usually perform very well. He noted that, at the time of Dr. Thompson’s 

evaluation, he found full left shoulder ROM. Thus, Dr. Perry concluded that appellant’s current 

ROM restriction was unrelated to the accepted May 3, 2005 work injury. He also concluded that

it was possible that appellant had left glenohumeral joint progressive arthritis, which was the cause 

of the restricted ROM. Alternatively, Dr. Perry suggested that appellant’s restricted ROM was 

due to other nonemployment-related conditions based on appellant’s having full ROM several 

years after the work injury. 

In an April 22, 2020 addendum report, Dr. Perry indicated that appellant had full ROM 

when examined by Dr. Thompson, but did not have full ROM during his examination. Thus, he 

explained that he could not link appellant’s left shoulder ROM restrictions with his accepted 

employment injury-related functional impairment using the A.M.A., Guides. Dr. Perry found that

Dr. Thompson’s evaluation should be relied upon to rate appellant’s ROM. 

By decision dated May 26, 2020, OWCP denied appellant’s claim for an increased 

schedule award. It accorded the special weight of the medical evidence to Dr. Perry’s impartial 

medical opinion. 

On June 2, 2020 appellant, through counsel, requested a hearing before a representative of

OWCP’s Branch of Hearings and Review. A telephonic hearing was held on September 9, 2020. 

In an August 12, 2020 report, Dr. David Weiss, an osteopath Board-certified in orthopedic 

surgery, noted thatDr. Perry found significant ROM deficits, which the physician opined that were 

unrelated to the May 3, 2005 employment injury as the restricted ROM became evident after the 

evaluation by Dr. Thompson. He also noted that, while Dr. Perry found that appellant had 

evidence of brachial plexus neuropathy, cubital and carpal tunnel syndrome, these late -onset 

conditions were not related to his employment injury. Dr. Weiss noted that impairment ratings 

under FECA must include all conditions of the affected body part at the time of the rating. He

concluded that appellant had 35 percent permanent impairment of the left upper extremity. 9 

By decision dated October 30, 2020, OWCP’s hearing representative affirmed OWCP’s 

May 26, 2020 decision, finding that the thorough, well-rationalized opinion of Dr. Perry was 

entitled to the special weight of the medical evidence.

9 Dr. Weiss related that he stood by his findings and report of January6, 2015, however,the record indicates that,

his partner,Dr.Diamond signed the report dated January 6, 2015. 
7

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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. 10 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.11 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).12

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

impairment CDX condition, which is then adjusted by GMFH, GMPE, and GMCS. 13 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

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.15 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:

“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.”

16 (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 

10 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

11 Id. at § 10.404; see S.S., Docket No. 19-0766 (issued December 23, 2019); L.T., Docket No. 18-1031 (issued 

March 5, 2019); see also RonaldR. Kraynak, 53 ECAB 130 (2001).

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

(January2010); id., atChapter 2.808.5a (March2017).

13 A.M.A., Guides 383-492.

14 Id. at 411.

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

16 A.M.A., Guides 477.
8

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE [claims examiner].”

17

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 OWCP’s medical adviser providing 

rationale for the percentage of impairment specified.18

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.19 This is called an impartial medical examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.20 When 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 specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.21

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical opinion evidence and the specialist’s opinion requires clarification or elaboration, it must 

secure a supplemental report from the specialist to correct the defect in the original report.22 If the 

IME fails to respond or does not provide an adequate response, it should refer appellant for a new 

impartial medical examination.23

ANALYSIS

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

OWCP properly found a conflict in medical opinion between Dr. Diamond an attending 

physician, and Drs. Thompson and White, for the government, regarding appellant’s permanent 

17 V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018); FECA 

Bulletin No. 17-06 (May8, 2017).

18 See supra note 12, Chapter 2.808.6(f) (March 2017).

19 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

20 20 C.F.R. § 10.321.

21 Darlene R. Kennedy, 57 ECAB 414 (2006); GloriaJ. Godfrey, 52 ECAB 486 (2001).

22 See J.K., Docket No. 21-0007 (issued July 30, 2021); M.M., Docket No. 20-1524 (issued April20, 2021); S.R., 

Docket No. 17-1118 (issued April5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

23 See J.K.; id.; M.M.,id.; W.H., Docket No. 16-0806 (issued December 15, 2016); Talmadge Miller, 47 ECAB 673 

(1996); Harold Travis, 30 ECAB 1071, 1078 (1979).
9

impairment.

24

 In order to resolve the conflict of medical opinion, it properly referred appellant to

Dr. Perry for an impartial medical examination, pursuant to 5 U.S.C. § 8123(a).

25

In his March 16 and April 22, 2020 reports, Dr. Perry diagnosed left shoulder distal 

clavicle resection and biceps tenotomy, left shoulder AC degenerative joint disease, inconsistent 

presentation, and minimal evidence of brachial plexus neuropathy with bilateral cubital tunnel and 

carpal tunnel syndrome. He reviewed the medical reports and concluded appellant’s current 

restricted ROM was unrelated to the accepted May 3, 2005 work injury. Dr. Perry recommended

using Dr. Thompson’s evaluation when considering appellant’s ROM and any impairment rating. 

He did not provide an impairment rating under the tables of the A.M.A., Guides for the left upper 

extremity using the ROM methodology, nor did he rate appellant’s left upper extremity permanent 

impairment under the DBI methodology for the left shoulder diagnoses he provided. As such,

Dr. Perry’s opinion does not conform to the A.M.A., Guides and is of diminished probative 

value.26 

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical evidence, and the IME’s opinion requires clarification or elaboration, OWCP must secure 

a supplemental report from the examiner for the purpose of correcting the defect in the original 

opinion.27 Accordingly, the Board finds that OWCP should have referred the case back to

Dr. Perry for another supplemental report for clarification, or to a new IME. Consequently, the 

case is remanded for further medical development with regard to appellant’s entitlement to a 

greater schedule award for permanent impairment of his left extremity. After this and other such 

further development as necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

24 Upper extremity impairments due to brachial plexus impairment are rated under Table 15-20 of the A.M.A., 

Guides 434. 

25 L.Y., Docket No. 20-0398 (issued February 9, 2021); B.S., Docket No. 19-1717 (issued August 11, 2020); 

Darlene R. Kennedy, 57 ECAB 414 (2006).

26 L.Y., id.;see Paul R. Evans, Jr., 44 ECAB 646, 651 (1993).

27 L.Y., id.; W.H., Docket No. 16-0806 (issued December 15, 2016); supra note 12 at Chapter 2.810.11(e) 

(September 2010); April Ann Erickson, 28 ECAB 336, 341-42(1977).
10

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2020 decision of the Office of 

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

consistent with this decision of the Board.

Issued: May 5, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board