United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.G., Appellant 

and 

DEPARTMENT OF THE NAVY, FLEET 

READINESS CENTER SOUTHEAST, 

Jacksonville, FL, Employer 

__________________________________________ 

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Docket No. 15-0862 

Issued: September 2, 2015 

Appearances: Case Submitted on the Record

Lenin V. Perez, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 9, 2015 appellant, through his representative, filed a timely appeal from a 

January 29, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 

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. 

ISSUE 

The issue is whether appellant has more than seven percent permanent impairment of the 

right upper extremity. 

 1

 The record also contains a September 30, 2014 overpayment decision. Appellant has not appealed this decision 

and thus it is not before the Board at this time. See 20 C.F.R. § 501.3; see also S.C., Docket No. 10-1706 (issued 

May 9, 2011). 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On April 6, 2012 appellant, then a 35-year-old plastic fabricator, filed a traumatic injury 

claim alleging that on March 22, 2011 he injured his right shoulder while sanding the bottom 

wing of an aircraft. OWCP accepted the claim for an articular cartilage disorder of the right 

rotator cuff and right shoulder impingement. Appellant stopped work on March 22, 2012 and 

returned to modified employment on September 17, 2012. 

On July 25, 2012 Dr. Patrick J. Hutton, a Board-certified orthopedic surgeon, performed 

a repair of a torn rotator cuff, a debridement, and a subacromial decompression of the right 

shoulder. On December 14, 2012 he performed a repair of a recurrent right rotator cuff tear, a 

debridement, and removal of a suture anchor of the right subacromial bursa. On October 3, 2013 

Dr. Aaron Bates, a Board-certified orthopedic surgeon, performed a revision of a right rotator 

cuff repair with a limited debridement.3 

In a report dated February 25, 2014, Dr. Bates noted that appellant continued to 

experience shoulder pain. He diagnosed status post a rotator cuff repair of the right shoulder and 

found that he had reached maximum medical improvement. Dr. Bates advised that appellant had 

eight percent permanent impairment of the right shoulder under the sixth edition of the American 

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

On March 11, 2014 appellant filed a claim for a schedule award. 

On March 17, 2014 an OWCP medical adviser reviewed Dr. Bates’ report and identified 

the diagnosis as a full-thickness rotator cuff tear using the shoulder regional grid set forth at 

Table 15-5 on page 403 of the A.M.A., Guides. He found that appellant was entitled to the 

maximum allowed for the diagnosis, which yielded seven percent permanent impairment of the 

right upper extremity. The medical adviser opined that Dr. Bates’ finding of eight percent 

impairment appeared to be a typographical error. 

By decision dated April 1, 2014, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the right upper extremity. The period of the award ran for 

21.84 weeks from March 26 to August 25, 2014. 

On April 8, 2014 appellant requested a telephone hearing. 

In a report dated July 16, 2014, Dr. Rahul V. Deshmukh, a Board-certified orthopedic 

surgeon, evaluated appellant for bilateral shoulder pain greater on the right following a 

March 22, 2012 work injury. He diagnosed shoulder pain and shoulder internal derangement, 

osteoarthritis, and synovitis. Dr. Deshmukh requested authorization for a right arthrogram to 

rule out an infection or tearing of the rotator cuff and labral. 

 3

 On August 13, 2013 OWCP referred appellant to Dr. George C. Hochreiter, an osteopath, for a second opinion 

examination. In a report dated September 4, 2013, Dr. Hochreiter diagnosed a recurrent rotator cuff tear. He 

advised that it was difficult to answer when appellant would reach maximum medical improvement given that large 

tears were hard to repair and that it appeared that his “tissue quality is such that a retear can certainty occur....” 
3

A July 22, 2014 magnetic resonance imaging (MRI) scan study of the right shoulder 

revealed a recurrent tear of the distal supraspinatus tendon. 

In an impairment evaluation dated July 30, 2014, Dr. Samy F. Bishai, an orthopedic 

surgeon, discussed appellant’s history of a March 22, 2012 work injury and his continued 

difficulty using his shoulder even after three surgeries. He measured range of motion of the 

shoulders bilaterally. Dr. Bishai diagnosed right shoulder internal derangement, right shoulder 

impingement syndrome, a torn right rotator cuff status post three surgeries, and rotator cuff 

syndrome of the left shoulder. He found that appellant reached maximum medical improvement 

on July 30, 2014. Dr. Bishai determined that appellant had a 24 percent permanent impairment 

of the right upper extremity due to loss of motion using Table 15-34 on page 475 of the A.M.A., 

Guides. He explained that he used range of motion to calculate the extent of impairment as 

appellant’s “most severe disabling problem is the severe restriction in his range of motion of the 

right shoulder....” 

On August 6, 2014 Dr. Deshmukh requested authorization for additional shoulder 

surgery. 

By decision dated September 16, 2014, OWCP denied authorization for additional right 

shoulder surgery and left shoulder surgery. It found that Dr. Deshmukh had not explained why 

the requested procedures were related to appellant’s March 22, 2014 employment injury. 

In a report dated October 2, 2014, Dr. Deshmukh advised that he was treating appellant 

for a right shoulder injury. He stated: 

“I have submitted a request for authorization for a right shoulder arthroscopy 

including revision [of a] rotator cuff repair with double row repair, subacromial 

decompression, distal clavicle excision with possible augment/stem cell injection. 

Current finding of rotator cuff re-tear is demonstrated [by a] lack of healing of his 

original injury, despite prior surgery by another surgeon. The requested 

procedure is to address the originally accepted pathology which remains 

damaged.” 

 A telephone hearing was held on November 12, 2014. At the hearing, appellant’s 

representative requested that OWCP disregard the initial impairment evaluation by Dr. Bates as 

he did not cite the tables and pages of the A.M.A., Guides. He related that Dr. Bishai explained 

his use of range of motion in rating the extent of impairment. 

 On December 12, 2014 the employing establishment noted that the July 22, 2014 MRI 

scan study showed additional tearing and that Dr. Deshmukh had requested authorization for an 

additional surgery. It further asserted that the A.M.A., Guides indicated that range of motion 

should only be used if a diagnosis-based impairment rating was not available. 

 By decision dated January 29, 2015, the hearing representative affirmed the April 1, 2014 

decision. She found that Dr. Bishai did not provide a rating using the diagnosis-based 

impairment method preferred by the A.M.A., Guides. The hearing representative additionally 

determined that the evidence submitted after the schedule award decision indicated that appellant 
4

may not be at maximum medical improvement. She cited FECA Bulletin No. 96-174 that 

indicates that the medical adviser should compute the percentage of the schedule award. 

On appeal appellant’s representative contends that the hearing representative should have 

sent Dr. Bishai’s report to an OWCP medical adviser for review. He also maintains that she 

cited a FECA Bulletin applicable to the fourth edition of the A.M.A., Guides. 

LEGAL PRECEDENT 

The schedule award provision of FECA5 and its implementing federal regulations6 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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

should be routed to the 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.9

ANALYSIS 

OWCP accepted that appellant sustained impingement syndrome of the right shoulder 

and an injury to the right rotator cuff as the result of a March 22, 2011 employment injury. 

Appellant underwent shoulder surgeries for rotator cuff tears on July 24 and December 14, 2012, 

and October 3, 2013. 

On March 11, 2014 appellant filed a claim for a schedule award. In an impairment 

evaluation dated February 25, 2014, Dr. Bates opined that appellant had reached maximum 

medical improvement. He concluded that appellant had eight percent permanent impairment of 

the right upper extremity under the sixth edition of the A.M.A., Guides. Dr. Bates did not, 

however, reference the tables and pages of the A.M.A., Guides that he used to calculate 

 4

 FECA Bulletin No. 96-17 (issued September 20, 1996). 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

8

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

9 See id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) 

(February 2013). 
5

impairment. His opinion, consequently, is of diminished probative value as he did not clearly 

explain his application of the A.M.A., Guides.

10

On March 17, 2014 the medical adviser applied the provisions of the A.M.A., Guides to 

the findings by Dr. Bates. He identified the diagnosis as a full-thickness rotator cuff tear 

pursuant to Table 15-5, the shoulder regional grid. The medical adviser determined that 

appellant was entitled to the maximum allowed for the diagnosed condition under Table 15-5 of 

seven percent. He opined that Dr. Bates’ finding of eight percent impairment may have been a 

typographical error. 

Based on the medical adviser’s report, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right upper extremity. The Board finds that the 

evidence does not establish that he has more than seven percent right upper extremity 

impairment, the maximum allowed under the A.M.A., Guides using the diagnosis-based estimate 

for the diagnosed condition of a rotator cuff tear. 

Subsequent to OWCP’s decision, appellant requested a hearing and submitted a July 30, 

2014 impairment evaluation from Dr. Bishai finding that he had 24 percent permanent 

impairment of the right upper extremity as a result of reduced range of motion under Table 15-34 

on page 475 of the A.M.A., Guides. However, an MRI scan study of the right shoulder obtained 

on July 22, 2014, prior to the impairment evaluation by Dr. Bishai, showed that appellant had a 

recurrent tear of the distal supraspinatus tendon. While Dr. Bishai opined that appellant had 

reached maximum medical improvement on July 30, 2014, he did not address the July 22, 2014 

diagnostic study showing evidence of a recurrent distal supraspinatus tendon tear or its effect on 

his impairment evaluation.11 Consequently, his report does not show that appellant is entitled to 

a greater schedule award. 

On appeal appellant’s representative alleges that OWCP should have referred 

Dr. Bishai’s report to an OWCP medical adviser. As discussed, however, Dr. Bishai did not 

sufficiently explain his impairment rating given the findings on the July 22, 2014 MRI scan 

study of a recurrent tear, and thus his opinion is of diminished probative value. 

Appellant’s representative also contends that the hearing representative cited an expired 

FECA Bulletin. The hearing representative cited FECA Bulletin No. 96-1712 which was issued 

under the fourth edition of the A.M.A., Guides and indicates that the medical adviser should 

compute the percentage of the schedule award. Any error in citing an expired FECA Bulletin, 

however, is harmless as current OWCP procedures similarly provide that, after obtaining all 

necessary medical evidence, the file should be routed to the medical adviser for an opinion 

concerning the nature and percentage of impairment in accordance with the A.M.A., Guides, 

 10 See R.B., Docket No. 14-2038 (issued May 5, 2015). 

11 It is well established that the period covered by a schedule award commences on the date that the employee 

reaches maximum medical improvement. See J.C., 58 ECAB 258 (2007). Maximum medical improvement means 

that the physician condition of the injured member of the body has stabilized and will not improve further. See V.C., 

Docket No. 14-1230 (issued December 29, 2014); Adela Hernandez-Piris, 35 ECAB 839 (1984). 

12 FECA Bulletin No. 96-17 (issued September 20, 1996). 
6

with the medical adviser providing rationale for the percentage of impairment specified.13 Such 

procedures were followed in this claim. 

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 has no more than seven percent permanent impairment of 

the right upper extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: September 2, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees' Compensation Appeals Board 

 13 See supra note 9.