United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

H.H., Appellant

and

U.S. POSTAL SERVICE, HENRY W. 

WHEELER POST OFFICE, St. Louis, MO, 

Employer

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Docket No. 19-1530

Issued: June 26, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 10, 2019 appellant, through counsel, filed a timely appeal from a June 17, 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 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 right upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On February 22, 2012 appellant, then a 54-year-old mail carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on February 21, 2012 he stubbed his right great toe and jammed 

his right shoulder when closing a cargo door, while in the performance of duty. OWCP accepted 

the claim for right shoulder strain, a right shoulder contusion, and a resolved right great toe 

contusion. It subsequently expanded acceptance of the claim to include a right rotator cuff tear 

and right biceps tenodesis.3 Appellant underwent OWCP-authorized right shoulder surgeries on 

August 6, 2012, February 13, 2013, and January 14, 2016. 

By letter dated August 26, 2016, Dr. Fallon Maylack, a Board-certified orthopedic surgeon, 

advised that appellant had reached maximum medical improvement (MMI).

On September 26, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated September 30, 2016, OWCP informed appellant that it would not take action 

on his schedule award claim as it did not appear that he had reached MMI, noting that he had 

undergone a right rotator cuff repair on January 4, 2016 and was participating in physical therapy 

as recently as August 9, 2016. It advised that if his physician believed he was currently at MMI, 

he should submit a detailed medical report providing rationale for this opinion. 

In an October 12, 2016 permanent impairment evaluation, Dr. Neil Allen, a Board-certified 

neurologist and internist, diagnosed right shoulder sprain, a right shoulder contusion, right rotator 

cuff sprain, and right bicipital tenosynovitis. He described appellant’s February 21, 2012 

employment injury and noted that he had undergone three right shoulder surgical procedures, 

including rotator cuff repairs. Dr. Allen determined that he had reached MMI.

On examination of the right shoulder, Dr. Allen observed guarding, tenderness to palpation, 

moderate crepitus, and 4/5 strength in the deltoid. He obtained three range of motion (ROM) 

measurements for the right shoulder with the highest as follows: 160 degrees of flexion, 50 degrees 

of extension, 125 degrees of abduction, 40 degrees of adduction, 40 degrees of internal rotation, 

and 80 degrees of external rotation. Dr. Allen noted that an x-ray taken on July 5, 2012 revealed 

moderate degenerative changes of the acromioclavicular joint and mild narrowing of the 

subacromial space, while a magnetic resonance imaging (MRI) scan taken on December 13, 2012 

demonstrated large, full-thickness tears present in the supraspinatus, infraspinatus, and 

subscapularis tendons, a complete tear of the biceps tendon, and degeneration of the superior 

labrum. 

 

3 OWCP accepted that appellant sustained low back strain in an August 29, 2016 motor vehicle accident, assigned 

OWCP File No. xxxxxx703. 
3

Referencing the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides),4 Dr. Allen calculated the extent of 

appellant’s permanent impairment of the right upper extremity using the diagnosis-based 

impairment (DBI) methodology. Referring to the shoulder regional grid, Table 15-5,

5 Dr. Allen 

identified the diagnosis as a full-thickness rotator cuff tear with a class of diagnosis (CDX) of 1 

and a default value of five percent. Referring to Table 15-7 and Table 15-8,6 he applied a grade 

modifier for functional history (GMFH) of two, a grade modifier for physical examination 

(GMPE) of two, and the grade modifier for clinical studies (GMCS) of four. Applying the net 

adjustment formula changed appellant’s default grade C diagnosis of five percent permanent 

impairment to a grade E diagnosis, resulting in a final right upper extremity permanent impairment 

of seven percent.

In a September 12, 2017 report, Dr. David H. Garelick, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), reviewed the medical evidence of record and 

determined that appellant had reached MMI on October 12, 2016, the date of Dr. Allen’s 

impairment rating. He found that the maximum award for a rotator cuff tear with residual loss 

using the DBI methodology under the A.M.A., Guides was seven percent of the right upper 

extremity.7 Dr. Garelick concluded that the ROM methodology should be used because it provided 

the higher impairment rating. He utilized Dr. Allen’s ROM measurements and found that, 

according to Table 15-34 on page 475 of the A.M.A., Guides, 160 degrees flexion yielded three 

percent permanent impairment, 40 degrees extension yielded one percent permanent impairment, 

125 degrees abduction yielded three percent impairment, 40 degrees internal rotation constituted 

four percent permanent impairment, and 80 degrees external rotation and 40 degrees adduction 

yielded no impairment. Dr. Garelick added the impairments due to loss of ROM to find 11 percent 

permanent impairment. He applied a GMFH of two, to find a total right upper extremity 

impairment of 12 percent using Table 15-35 and Table 15-36 on page 477. 

By decision dated August 30, 2018, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right arm. The period of the award ran for 37.44 weeks from 

October 12, 2016 through July 1, 2017.

On September 17, 2018 appellant, through counsel, requested a telephonic hearing before 

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

February 4, 2019.

By decision dated March 15, 2019, OWCP’s hearing representative affirmed the 

August 30, 2018 decision. He found that the medical evidence of record established that appellant 

had no more than 12 percent permanent impairment of the right upper extremity. 

 

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

5

Id. at 403.

6

Id. at 406 and 408, respectively.

7 Supra note 5.
4

On March 28, 2019 appellant, through counsel, requested reconsideration.

On May 1, 2017 Dr. Maylack noted that he had treated appellant after an employmentrelated injury to his right shoulder and advised that he had undergone rotator cuff repair surgery 

on January 14, 2016 without complication. He related that on April 3, 2017 he had measured 

“good passive motion of the right shoulder with only loss of extremes of internal (90 degrees) and 

external rotation (110 degrees).” Dr. Maylack further indicated that appellant had excellent active 

ROM with biceps muscle weakness and weakness in resisted abduction and forward elevation. He 

opined that, based on his review of the sixth edition A.M.A., Guides, appellant had 20 percent 

permanent impairment of the right shoulder due to his injury and subsequent surgery.

In an April 17, 2019 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon

serving as a DMA, reviewed Dr. Maylack’s May 1, 2017 report along with the medical evidence 

of record. He advised that Dr. Maylack’s findings were insufficient to support a rating using the 

DBI methodology as he failed to reference any tables or otherwise explain how he calculated the 

impairment using the A.M.A., Guides. Dr. Katz further noted that his finding of 20 percent 

impairment exceeded any “plausible DBI key factor values of impairment under Table 15-5....” 

He found that Dr. Maylack had failed to measure ROM three times or provide a complete arc of 

motion, and that his opinion was thus insufficient to support a rating based on loss of ROM. 

Dr. Katz agreed with Dr. Garelick’s prior finding that appellant had 12 percent permanent 

impairment using the ROM methodology.

By decision dated June 17, 2019, OWCP denied modification of the March 15, 2019 

decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA8and 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.9 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.10 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).11

 

8 Supra note 2.

9 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10 20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB 

130 (2001).

11 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 2.808.5 (March 2017).
5

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

impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based 

on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).12 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13

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

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

DBI sections are applicable.14 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.15 Adjustments for functional history may be made if the evaluator determines that the 

resulting impairment does not adequately reflect functional loss and functional reports are 

determined to be reliable.16

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.17 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 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.”

18 (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.”

19

 

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

13 Id. at 411.

14 Id. at 461.

15 Id. at 473.

16 Id. at 474.

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

18 Id.

19 Id.; see also V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued 

July 26, 2018).
6

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.20

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 12 

percent permanent impairment of the right upper extremity, for which he previously received a 

schedule award.

In an October 12, 2016 permanent impairment evaluation, Dr. Allen diagnosed a right 

shoulder sprain, right shoulder contusion, right rotator cuff sprain, and right bicipital tenosynovitis. 

He provided ROM findings of the right upper extremity based on three measurements as follows: 

160 degrees of flexion, 50 degrees of extension, 125 degrees of abduction, 40 degrees of adduction, 

40 degrees of internal rotation, and 80 degrees of external rotation. Using the DBI methodology,

Dr. Allen calculated a final right upper extremity impairment of seven percent due to appellant’s 

full-thickness rotator cuff tear under Table 15-5 on page 403, the maximum allowed for that 

diagnosis.

In a September 12, 2017 report, Dr. Garelick, serving as DMA, reviewed the medical 

evidence of record and noted that under the DBI methodology for a rotator cuff tear with residual 

loss, the most that appellant could be awarded was seven percent permanent impairment of the 

right upper extremity. He found that his impairment should be calculated using the ROM method 

as it provided the higher impairment rating. Dr. Garelick determined that, according to Table 15-

34 on page 475 of the A.M.A., Guides, 160 degrees flexion yielded three percent permanent 

impairment, 40 degrees extension yielded one percent permanent impairment, 125 degrees 

abduction yielded three percent impairment, 40 degrees internal rotation yielded four percent 

permanent impairment, and 80 degrees external rotation and 40 degrees adduction yielded no 

impairment. He added the impairment ratings to find 11 percent permanent impairment. 

Dr. Garelick applied a GMFH of two to the 11 percent impairment, which yielded a total right 

upper extremity impairment of 12 percent using Table 15-35 and Table 15-36 on page 477. 

On May 1, 2017 Dr. Maylack found that appellant had good passive ROM of the right 

shoulder and measured internal rotation of 90 degrees and external rotation of 110 degrees. He 

further found excellent active ROM. Dr. Maylack advised that appellant had weakness in resisted 

abduction, forward elevation, and of the biceps muscle. He opined that he had 20 percent 

permanent impairment of the right shoulder. Dr. Maylack, however, failed to explain how he 

arrived at his impairment rating in accordance with the relevant standards of the A.M.A., Guides.

21

 

As he did not refer to tables or charts in the A.M.A., Guides in support of his determination, his 

 

20 See supra note 11 at Chapter 2.808.6(f) (March 2017).

21 B.B., Docket No. 18-0782 (issued January 11, 2019); James R. Hill, Sr., 57 ECAB 583 (2006).
7

report lacks the probative value necessary to determine appellant’s permanent impairment for 

schedule award purposes.22

In an April 17, 2019 report, Dr. Katz, serving as DMA, agreed with Dr. Garelick’s finding 

that appellant had 12 percent permanent impairment using the ROM methodology. He noted that

Dr. Garelick correctly observed that Dr. Allen had provided probative ROM measurements, and 

appropriately calculated an impairment rating using Table 15-34 of 12 percent right upper 

extremity impairment. Dr. Katz asserted that Dr. Maylack’s May 1, 2017 letter could not be 

accepted as probative evidence as he failed to explain his calculations, obtain three ROM 

measurements, or provide complete ROM measurements. The Board finds that Drs. Garelick and 

Katz, serving as DMAs, properly discussed how they arrived at their shared conclusion that 

appellant sustained 12 percent right upper extremity permanent impairment under the A.M.A., 

Guides.

23

 As the record contains no other probative, rationalized medical opinion which supports 

that he had greater impairment of the right upper extremity based upon the A.M.A., Guides, he has 

not met his burden of proof to establish greater than 12 percent permanent impairment of the right 

upper extremity for which he received schedule award compensation.24

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 greater than 12 

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

schedule award.

 

22 B.B., id.

23 See O.F., Docket No. 19-0986 (issued February 12, 2020); K.J., Docket No. 19-0901 (issued December 6, 2019).

24 See J.H., Docket No. 18-1207 (issued June 20, 2019).
8

ORDER

IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: June 26, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board