United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.G., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, St. Cloud, MN, Employer 

__________________________________________ 

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Docket No. 14-1464 

Issued: November 14, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant filed a timely appeal from the May 14, 2014 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he has more than 

a 40 percent permanent impairment of his left arm, for which he received schedule awards. 

FACTUAL HISTORY 

OWCP accepted that on March 24, 1988 appellant, then a 31-year-old licensed practical 

nurse, sustained dislocation, adhesive capsulitis and localized primary osteoarthritis of his left 

 1

 5 U.S.C. §§ 8101-8193. 
2

shoulder due to lifting a patient up into bed with the aid of a coworker.2

 He underwent left 

shoulder arthroscopy on July 20, 1988, anterior left shoulder stabilization; a cruciate capsular 

repair on May 1, 1990; and a left shoulder open revision surgery with decompression on 

November 8, 1999. The procedures were authorized by OWCP. 

In a decision dated September 12, 2002, OWCP granted appellant a schedule award for a 

15 percent permanent impairment of his left arm. The award ran for 46.8 weeks from 

November 1, 2001 to September 24, 2002. The award was based on a July 29, 2002 impairment 

rating under the fifth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides) (5th ed. 2001) by Dr. David H. Garelick, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser. Dr. Garelick based his 

impairment rating on physical examination findings obtained in May 2002 by Dr. Daniel D. Bus, 

an attending Board-certified orthopedic surgeon. 

On November 12, 2008 Dr. Michael Q. Freehill, an attending Board-certified orthopedic 

surgeon, performed an authorized total left shoulder replacement surgery, which included left 

pectoralis major tendon transfer for subscapularis deficiency with graft jacket and biceps 

tenodesis. 

In a November 19, 2009 report, Dr. Freehill stated that appellant reported feeling 

significantly better after his November 12, 2008 left shoulder surgery despite experiencing some 

pain and locking sensation in his left shoulder. The physician provided findings for range of 

motion testing of appellant’s left shoulder and noted that his pectoralis major tendon appeared to 

be intact and firing. There was no crepitus in appellant’s left shoulder and strength was 5/5. 

Dr. Freehill observed that appellant’s surgical incision appeared dry and clean with no drainage 

and that he was intact with regard to sensory and motor function. 

On March 3, 2010 Dr. Freehill determined that, under Table 15-5 on page 405 of the 

sixth edition of the A.M.A., Guides (6th ed. 2009), appellant had a class 3 diagnosis-based 

impairment of his left arm due to his total left shoulder arthroplasty. Appellant had a grade 

modifier 1 for functional history and modifier 1 for physical examination and application of the 

net adjustment formula caused movement two places to the left from the default value on 

Table 15-5. Dr. Freehill rated a 26 percent impairment of appellant’s left arm, noting that 

maximum medical improvement (MMI) was November 19, 2009. 

On April 26, 2010 Dr. Garelick, serving as an OWCP medical adviser, discussed 

Dr. Freehill’s findings regarding appellant’s left shoulder condition after his November 12, 2008 

total left shoulder replacement surgery. He noted that Dr. Freehill stated that appellant had done 

relatively well since the surgery despite complaining of pain with activity. Physical examination 

by Dr. Freehill revealed healed surgical incisions without infection, normal 5/5 strength and 

active range of motion slightly diminished with 150 degrees of forward elevation and 100 

degrees of abduction. The remainder of the examination was unremarkable and x-rays showed 

that the arthroplasty was in a good position without evidence of loosening. Dr. Garelick stated 

 2

 OWCP had previously accepted that on September 4, 1987 appellant sustained a left shoulder contusion and 

permanent aggravation of preexisting left shoulder instability with post-traumatic early glenohumeral arthritis due to 

being punched in his left shoulder by a patient. 
3

that, under Table 15-5 on page 405 of the sixth edition of the A.M.A., Guides, appellant had a 

class 3 diagnosis-based left arm impairment with a default value of 40 percent due to a 

complicated total shoulder arthroplasty necessitating a pectoralis major transfer. He noted that 

the award included consideration of range of motion, weakness and pain and that there was no 

change from the default value of 40 percent upon application of the net adjustment formula. The 

date of MMI occurred on November 19, 2009 as found by Dr. Freehill. 

In a decision dated May 10, 2010, OWCP granted appellant a schedule award for an 

additional 25 percent permanent impairment of his left arm, compensating him for a total 

impairment of 40 percent. The award ran for 78 weeks from November 19, 2009 to May 18, 

2011 and was based on the examination findings of Dr. Freehill and the April 26, 2010 report of 

Dr. Garelick. 

On March 13, 2013 Dr. Freehill performed authorized revision surgery to reverse total 

left shoulder arthroplasty. In June 2013, appellant returned to limited-duty work for the 

employing establishment. 

On March 27, 2014 appellant filed a claim for an additional schedule award. 

In a March 7, 2014 report, Dr. Freehill detailed the findings of his physical examination 

on that date, noting that appellant reported that he currently had minimal pain and good function 

in his left shoulder. He stated that appellant had well-healed surgical incisions and that there was 

no shoulder atrophy. Dr. Freehill reported range of motion findings for appellant’s left shoulder, 

including active flexion to 150 degrees and active abduction to 145 degrees. Strength of 

appellant’s left shoulder was 4+ and he was able to fire his deltoid muscle without difficulty. 

In a form report dated March 7, 2014, Dr. Freehill determined that, under Table 15-5 on 

page 405 of the sixth edition of the A.M.A., Guides, appellant had a class 3 diagnosis-based 

impairment of his left arm due to his reverse total left shoulder arthroplasty. He stated that 

appellant had a grade modifier 1 for functional history and modifier 1 for physical examination3

and determined that appellant had a 43 percent permanent impairment of his left arm based on 

the diagnosis-based impairment. Dr. Freehill found that appellant had one percent permanent 

impairment of his left arm due to loss of left shoulder motion. He then added the 43 percent 

rating for diagnosis-based impairment and the 1 percent rating for range of motion impairment to 

conclude that appellant had total left arm impairment of 44 percent. 

On April 28, 2014 Dr. Garelick, the medical adviser, reviewed the reports from 

Dr. Freehill, who indicated that appellant had done relatively well following his left shoulder 

surgery and experienced minimal pain with good function. Examination of appellant’s left 

shoulder demonstrated that all surgical incisions had healed and that range of left shoulder 

motion was near normal. Strength in his left shoulder was 4+ without tenderness signs and 

x-rays revealed that the glenoid and humeral components were in good position without evidence 

of loosening or scapular notching. Dr. Garelick noted that Dr. Freehill had recommended a 

 3

 Dr. Freehill did not provide a grade modifier for clinical studies. 
4

44 percent impairment rating of appellant’s left arm based on diagnosis-based impairment and 

range of motion impairment and stated: 

“However, this is not allowed based on the rules set forth in the [sixth edition of 

the A.M.A., Guides]. Thus, I would suggest [appellant] award be disregarded. 

By all accounts, [appellant] has done well and there is no objective basis for any 

change to his award. However, given the revision surgery, the date of MMI needs 

to be updated and occurred on March 7, 2014, approximately 1 year 

postoperatively. TOTAL left upper extremity [permanent partial impairment] = 

40 percent Date of MMI = March 7, 2014.” 

By decision dated May 14, 2014, OWCP found that appellant did not establish that he has 

more than a 40 percent permanent impairment of his left arm, for which he received schedule 

awards. It found that the medical evidence did not establish greater permanent impairment of his 

left arm. OWCP explained that Dr. Garelick determined that Dr. Freehill impermissibly added 

impairment ratings for diagnosis-based impairment with range of motion impairment. 

LEGAL PRECEDENT 

The schedule award provision of FECA4 and its implementing regulations5 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 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. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after 

May 1, 2009, the sixth edition of the A.M.A., Guides is used for evaluating permanent 

impairment.7

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 respect 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 401.8

 

After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including 

identification of a default grade value), the net adjustment formula is applied using the grade 

modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 

6 Id. 

7 See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the 

fifth edition of the A.M.A., Guides (5th ed. 2001) is used. 

8

 A.M.A., Guides 401-05. 
5

grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).9 Table 15-5 also provides that, if motion loss is present for a 

claimant who has undergone a shoulder arthroplasty, impairment may alternatively be assessed 

using Section 15.7 (range of motion impairment). Such a range of motion impairment stands 

alone and is not combined with a diagnosis impairment.10 

ANALYSIS 

OWCP accepted that on March 24, 1988 appellant sustained dislocation, adhesive 

capsulitis and localized primary osteoarthritis of his left shoulder and it authorized multiple 

surgeries of his left shoulder. On November 12, 2008 Dr. Freehill, an attending Board-certified 

orthopedic surgeon, performed total left shoulder replacement surgery, which included left 

pectoralis major tendon transfer for subscapularis deficiency with graft jacket and biceps 

tenodesis. On March 13, 2013 he performed OWCP-authorized revision surgery to reverse total 

left shoulder arthroplasty. OWCP granted appellant schedule awards for a 40 percent permanent 

impairment of his left arm. The determination that appellant had this degree of left arm 

impairment was based on the opinion of Dr. Garelick, a Board-certified orthopedic surgeon 

serving as an OWCP medical adviser. Dr. Garelick calculated his impairment rating based on 

the findings of Dr. Freehill. 

The Board finds that appellant has not submitted sufficient medical evidence to establish 

that he has more than a 40 percent permanent impairment of his left arm. 

The Board notes that Dr. Garelick properly calculated that appellant had 40 percent 

permanent impairment of his left arm based on findings provided by Dr. Freehill. On April 26, 

2010 Dr. Garelick stated that, under Table 15-5 on page 405 of the sixth edition of the A.M.A., 

Guides, appellant had class 3 diagnosis-based left arm impairment with a default value of 

40 percent due to his complicated total shoulder arthroplasty necessitating a pectoralis major 

transfer.11 He considered appellant’s range of motion, weakness and pain and found that the 

grade modifiers did not cause any change from the default value of 40 percent impairment upon 

application of the net adjustment formula.12 Therefore, Dr. Garelick found that appellant had 40 

percent permanent impairment of his left arm. 

In a March 7, 2014 report, Dr. Freehill provided an opinion that appellant had 44 percent 

permanent impairment of his left arm. However, his opinion is of limited probative value in that 

 9 Id. at 405-12. 

10 Id. at 405, 475-78. 

11 Id. at 405. 

12 See id at 405-11. 
6

he failed to provide adequate explanation of how this rating of permanent impairment was 

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

13

Dr. Freehill indicated that appellant had 43 percent left arm impairment due to his class 3 

left shoulder arthroplasty. Under Table 15-5 of the sixth edition of the A.M.A., Guides, the 

highest default value for a grade 3 shoulder arthroplasty is 40 percent. Dr. Freehill stated that 

appellant had a grade modifier 1 for functional history and modifier 1 for physical examination.14 

However, under Table 15-5, application of the net adjustment formula to these grade modifiers 

would cause movement two places to the left of the default value of 40 percent and would render 

a diagnosis-based impairment value of 34 percent, not an impairment rating of 43 percent. 

Dr. Freehill also added 1 percent impairment based on loss of range of motion findings, to his 

diagnosis-based rating of 43 percent. While Table 15-5 allows for consideration of range of 

shoulder motion in arthroscopy cases as an alternative rating method, it explicitly provides that 

the range of motion rating stands alone and may not be combined with a rating derived under the 

diagnosis-based method.15

On appeal, appellant indicated that the pain in his left shoulder had worsened and that he 

had less range of motion; however, the medical evidence of record does not establish more than a 

40 percent permanent impairment of his left arm, for which he received schedule awards. 

Appellant may request a schedule award or increased schedule award 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 did not meet his burden of proof to establish that he has 

more than 40 percent permanent impairment of his left arm, for which he received schedule 

awards. 

 13 See James Kennedy, Jr., 40 ECAB 620 (1989) (finding that an opinion which is not based upon the standards 

adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative 

value in determining the extent of a claimant’s permanent impairment). 

14 Dr. Freehill did not provide a grade modifier for clinical studies. 

15 A.M.A., Guides 405, 475-78. 
7

ORDER 

IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 14, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board