United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., Appellant

and

U.S. POSTAL SERVICE, COVINGTON 

STATION, Kent, WA, Employer

__________________________________________

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Docket No. 21-1390

Issued: September 1, 2023

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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On September 22, 2021 appellant, through counsel, filed a timely appeal from an August 6, 

2021 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.

ISSUE

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

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

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

FACTUAL HISTORY

On December 10, 2016 appellant, then a 51-year-old casual carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on December 10, 2016 she slipped and fell on a 

patch of ice, injuring her knees while in the performance of duty. She stopped work on 

December 11, 2016. OWCP accepted the claim for bilateral knee sprains, low back strain, and 

right shoulder strain. It later expanded the acceptance of the claim to include temporary 

aggravation of bilateral knee osteoarthritis. OWCP paid appellant wage-loss compensation on the 

supplemental rolls as of January 25, 2017 and on the periodic rolls as of July 22, 2017. By decision 

dated September 12, 2019, it terminated her medical benefits and wage-loss compensation 

effective October 30, 2018. By decision dated March 10, 2020, a representative of OWCP’s 

Branch of Hearings and Review affirmed OWCP’s September 12, 2019 decision. 

On July 4, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a July 13, 2020 development letter, OWCP requested that appellant submit an 

impairment calculation addressing whether she had reached maximum medical improvement 

(MMI) and provide an impairment rating using the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 It indicated 

that, to date, no medical evidence had been received in support of her claim for a schedule award. 

OWCP advised that, if appellant’s physician was unable or unwilling to provide the required 

report, to notify OWCP in writing and if appellant’s case met the essential elements for a schedule 

award claim, she would be scheduled to be seen by a second opinion specialist. It afforded her 30 

days to submit the necessary medical evidence. 

In an August 28, 2020 report, Dr. Ralph D’Auria, a Board-certified physiatrist, noted that 

he examined appellant due to low back pain, right shoulder pain, and bilateral knee pain. He 

described her history of injury on December 10, 2016 and reviewed her medical history. 

Dr. D’Auria listed appellant’s accepted conditions as sprain of the right knee, sprain of the left 

knee, strain of the lower back, strain of the right shoulder, and primary osteoarthritis of both knees. 

He found that she had reached MMI as the date of his examination. Dr. D’Auria found limited 

range of motion (ROM) of appellant’s right shoulder after three trials to be from 80 to 100 degrees 

of abduction, 50 degrees of adduction, 100 to 110 degrees of flexion, 50 degrees of extension, 20 

to 30 degrees of internal rotation, and 35 to 40 degrees of external rotation. He found right shoulder 

weakness on resisted external rotation of 4/5 and a positive Hawkins’ test. 

Dr. D’Auria reviewed bilateral knee x-rays dated August 18, 2020 and reported advanced 

degenerative changes in the medial compartment of both knees with no visible cartilage interval 

and decreased patella-femoral space, right more than then left. He applied the A.M.A., Guides to 

his findings and determined, using the diagnosis-based impairment (DBI) method, that the 

diagnosis of bilateral knee osteoarthritis using Table 16-3, page 511 was appropriate. Dr. D’Auria 

found that the class of diagnosis (CDX) was 4 as appellant had no cartilage interval with a default 

impairment rating of 50 percent. He found a grade modifier for functional history (GMFH) of 2, 

due to an antalgic limp with routine use of a single gait aid under Table 16-6, page 516; a grade 

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

modifier for physical examination (GMPE) of 2 due to moderate palpatory findings in accordance 

under Table 16-7, page 517; and a grade modifier for clinical studies (GMCS) of 4 as x-rays 

showed no cartilage interval under Table 16-8, page 519. Dr. D’Auria utilized the net adjustment 

formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) to reach -4 and reduced the default 

rating to grade A, which equaled 50 percent permanent impairment of the bilateral lower 

extremities.

With regard to permanent impairment of appellant’s right shoulder, Dr. D’Auria found 12 

percent permanent impairment due to loss of ROM in accordance with Figure 15-34, page 475 of 

the A.M.A., Guides. This included 100 degrees of abduction for 3 percent permanent impairment;

110 degrees of flexion for 3 percent permanent impairment; 30 degrees of internal rotation for 4 

percent permanent impairment; and 40 degrees of external rotation for 2 percent permanent 

impairment, totaling 12 percent of the right upper extremity. Dr. D’Auria determined that the 

ROM methodology was greater than the DBI estimate of two percent permanent impairment due 

to shoulder strain/sprain based on Table 15-5, page 401. He also found three percent impairment 

of the whole person due to chronic low back pain.

On January 22, 2021 OWCP referred the case record, along with a statement of accepted 

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

district medical adviser (DMA), for an opinion regarding appellant’s schedule award claim.

In a February 3, 2021 report, the DMA reviewed Dr. D’Auria’s August 28, 2020 report and 

agreed with his application of the A.M.A., Guides and the percentages of impairment of the 

bilateral knees and right shoulder. However, he noted that FECA did not allow a schedule award 

for the spine or whole person.

On February 10, 2021 OWCP requested clarification from Dr. Katz. It noted that 

appellant’s medical benefits and wage-loss compensation were terminated as there were no 

continuing employment-related residuals or disability, and because any continuing disability and 

medical residuals were due to preexisting conditions.

In a February 19, 2021 report, Dr. Katz recounted that appellant’s accepted knee conditions 

were temporary aggravations that had resolved, leaving the preexistent advanced osteoarthritis of 

the knees at the preinjury level. He did not address her right upper extremity findings. Dr. Katz

withdrew his findings of work-related permanent impairment.

By decision dated February 24, 2021, OWCP denied appellant’s schedule award claim.

On March 2, 2021 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. An oral hearing was held on 

May 27, 2021.

By decision dated August 6, 2021, OWCP’s hearing representative affirmed the 

February 24, 2021 decision.
4

LEGAL PRECEDENT

The schedule award provisions of FECA,4 and its implementing federal regulations,5 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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards applicable to all claimants.

OWCP evaluates the degree of permanent impairment according to the standards set forth 

in the specified edition of the A.M.A., Guides, published in 2009.6 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. 7

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

(ICF): A Contemporary Model of Disablement.

8

 Under the sixth edition, the evaluator identifies 

CDX, which is then adjusted by a GMFH, GMPE, and GMCS.9 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons 

for their impairment choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.11

Neither FECA nor its implementing regulations provide for a schedule award for 

impairment to the back or to the body as a whole.12 Furthermore, the back is specifically excluded 

from the definition of organ under FECA.13

4

Supra note 2.

5

20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guidesis used. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see 

also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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

8 A.M.A., Guides (6th ed. 2009), p.3, section 1.3.

9

Id. at 494-531.

10 Id. at 411.

11 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.H., Docket No. 19-1788 (issued March 17, 2020); Jay K. 

Tomokiyo, 51 ECAB 361, 367 (2000).

13 See id. at § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); FrancescoC. Veneziani, 48 

ECAB 572 (1997).
5

FECA Bulletin No. 17-06 provides guidance in applying ROM or DBI methodologies in 

rating permanent impairment of the upper extremities. 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 

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.,] 

Guidesidentify 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.)14

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a DMA for an opinion concerning the nature and percentage of impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.15

ANALYSIS

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

On January 22, 2021 OWCP referred the case record, to the DMA, Dr. Katz, for an opinion 

regarding appellant’s schedule award claim. 

In a February 3, 2021 report, the DMA reviewed Dr. D’Auria’s August 28, 2020 report and 

agreed with his findings of 50 percent permanent impairment of the bilateral lower extremities and 

12 percent of the upper right extremity. However, he noted that FECA did not allow a schedule 

award for the spine or whole person.

On February 10, 2021 OWCP requested clarification from Dr. Katz. In a February 19, 

2021 report, Dr. Katz recounted that appellant’s accepted knee conditions were temporary 

aggravations that had resolved, leaving the preexistent advanced osteoarthritis of the knees at the 

preinjury level. He did not address her right upper extremity findings. Dr. Katz withdrew his 

finding of permanent impairment. Dr. Katz, however, did not provide medical rationale explaining 

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

15 See supra note 6 at Chapter 2.808.6(f) (March 2017).
6

why his impairment ratings were no longer appropriate.

16

 As Dr. Katz’response was insufficiently 

rationalized, OWCP should have sought further clarification.

On remand, OWCP shall refer the case record to another DMA to determine appellant’s 

permanent impairment in accordance with the A.M.A., Guides. Following this and other such 

further development as deemed necessary, itshall issue a de novo decision regarding appellant’s 

schedule award claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 6, 2021 decision of the Office of 

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

proceedings consistent with this decision of the Board.

Issued: September 1, 2023

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

16 K.M., Docket No. 20-0601 (issued December 14, 2020); J.B. Docket No. 19-0527 (issued September 5, 2019).