United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

V.Z., Appellant 

and 

DEPARTMENT OF THE NAVY, NAVAL AIR 

WARFARE CENTER WEAPONS DIVISION, 

China Lake, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1012 

Issued: November 5, 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 March 27, 2014 appellant filed a timely appeal from a November 22, 2013 decision of 

the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. 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 established that he sustained more than 25 percent 

impairment of the right arm, for which he received a schedule award. 

On appeal, appellant contends that OWCP should have relied on the impairment rating 

provided by his attending physician and not the rating offered by a second opinion physician as 

interpreted by an OWCP medical adviser. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

 OWCP accepted that on May 3, 2011 appellant, then a 56-year-old electronics engineer, 

sustained adhesive capsulitis of the right shoulder due to driving a truck loaded with heavy 

equipment over a bumpy road and then striking his shoulder in a doorway.2

 Under OWCP File 

No. xxxxxx372, it previously accepted a right rotator cuff tear occurring on September 18, 2008. 

Appellant underwent arthroscopic partial repair of the rotator cuff tear on June 2, 2009. On 

April 7, 2010 Dr. George F. Hatch, III, an attending Board-certified orthopedic surgeon, 

performed a right latissimus dorsi tendon transfer.3

In reports dated May 20, 2011 to March 8, 2012, Dr. Hatch noted appellant’s complaints 

of increased right shoulder pain following the May 3, 2011 injury. He diagnosed right shoulder 

impingement, improved with physical therapy.4

 In a March 9, 2012 report, Dr. Stephen Lombardo, an attending Board-certified 

orthopedic surgeon, found that appellant had reached maximum medical improvement. He 

found abduction and forward flexion of the right shoulder less than 150 degrees, external rotation 

at 70 degrees and internal rotation at 0 degrees. Dr. Lombardo also noted 4/5 weakness in 

forward flexion, internal and external rotation. He stated that appellant had “lost 80 percent of 

his function of his glenohumeral joint” according to the fifth edition of the A.M.A., Guides. 

 In a May 8, 2012 report, Dr. Hatch also found that appellant had reached maximum 

medical improvement. He noted identical ranges of motion and strength measurements to those 

found by Dr. Lombardo on March 9, 2012.5

 On September 7, 2012 appellant claimed a schedule award. In a September 18, 2012 

letter, OWCP advised appellant to obtain an impairment rating from Dr. Lombardo utilizing the 

sixth edition of the A.M.A., Guides. Appellant submitted a copy of Dr. Hatch’s March 8, 2012 

report. As he did not provide the impairment rating requested on March 20, 2013, OWCP 

referred him for a second opinion to Dr. Alice N. Martinson, a Board-certified orthopedic 

surgeon, who reviewed the medical record and a statement of accepted facts provided by OWCP. 

In her March 20, 2013 report, Dr. Martinson concurred that appellant had reached maximum 

 2

 OWCP File No. xxxxxx112. 

3

 In a March 14, 2011 report, Dr. Hatch opined that appellant’s right shoulder was permanent and stationary. He 

found 36 percent impairment of the right arm according to the fifth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides) for weakness and restricted 

motion. 

4

 July 26, 2011 x-rays of the right shoulder showed a Hill-Sachs deformity of the superior lateral aspect of the 

right humeral head not present on April 7, 2010 studies, and osteophytes at the acromioclavicular joint and humeral 

head. A November 1, 2011 arthrogram of the right shoulder showed postoperative changes and a 3.5 centimeters 

“[f]ull-thickness tearing or stripping of the supraspinatus to infraspinatus with medial restriction from the greater 

tuberosity and repair.” 

5

 By a May 11, 2012 decision, OWCP denied appellant’s request to continue seeing Dr. Hatch as his office was 

beyond a 50-mile radius from his zip code area. In an August 9, 2012 letter, appellant requested an oral hearing. He 

requested that OWCP approve Dr. Lombardo as his attending physician. On August 27, 2012 appellant withdrew 

his request for an oral hearing. 
3

medical improvement. On examination of the right shoulder, she found 80 degrees flexion, 40 

degrees abduction, 10 degrees extension, 30 degrees internal rotation and 0 degrees adduction 

and external rotation. Dr. Martinson diagnosed a “[m]arked loss of shoulder strength and motion 

following an irreparable rotator cuff tear and latissimus dorsi transfer.” Referring generally to 

Table 15-34 of the sixth edition of the A.M.A., Guides,6

 she rated 32 percent impairment of the 

right upper extremity due to loss of range of motion. 

On July 3, 2013 Dr. Arthur S. Harris, an OWCP medical adviser, reviewed 

Dr. Martinson’s report and found that appellant had reached maximum medical improvement as 

of her March 20, 2013 examination. He then applied the sixth edition of the A.M.A., Guides to 

her clinical findings. Referring to Table 15-34, Dr. Harris found nine percent impairment of the 

right upper extremity for shoulder flexion limited to 80 degrees, four percent impairment for 

internal rotation of the shoulder at 30 degrees, six percent impairment for abduction limited to 40 

degrees, two percent impairment for shoulder adduction at 0 degrees, two percent impairment for 

external rotation at 0 degrees and two percent impairment for shoulder extension limited to 10 

degrees. He added these percentages to total 25 percent impairment of the right arm. Dr. Harris 

explained that Dr. Martinson did not provide a breakdown of her impairment calculations 

supporting a greater percentage of impairment. He indicated that, although appellant had a 

postsurgical diagnosis, the range of motion method was the more appropriate means of 

evaluating appellant’s specific deficits. 

 By decision dated November 22, 2013, OWCP granted appellant a schedule award for 25 

percent impairment of the right upper extremity, based on Dr. Martinson’s opinion as reviewed 

by the medical adviser. 

LEGAL PRECEDENT 

 The schedule award provisions of FECA7

 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members 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 determination is a matter which rests in the sound 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. The A.M.A., 

Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board 

has concurred in such adoption.8

 For schedule awards after May 1, 2009, the impairment is 

evaluated under the sixth edition of the A.M.A., Guides, published in 2008.9

 In addressing upper extremity impairments, the sixth edition requires identifying the 

impairment class for Class of Diagnosis (CDX), which is then adjusted by grade modifiers based 

 6

 Table 15-34, page 475 of the sixth edition of the A.M.A., Guides is entitled “Shoulder Range of Motion.” 

7

 5 U.S.C. § 8107. 

8 Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

9

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

Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 
4

on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).10 

The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11

While section 15.2 of the sixth edition of the A.M.A., Guides provides that “[d]iagnosisbased impairment is the primary method of evaluation for the upper limb,” Table 15-5 also 

provides that, if motion loss is present for a claimant who has a rotator cuff injury, 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.12 

Section 15.7 of the sixth edition of the A.M.A., Guides provides: 

“Range of motion should be measured after a ‘warm up,’ in which the individual 

moves the joint through its maximum range of motion at least [three] times. The 

range of motion examination is then performed by recording the active 

measurements from [three] separate range of motion efforts. Measurements 

should be rounded up or down to the nearest number ending in zero.... All 

measurements should fall within 10 [degrees] of the mean of these three 

measurements. The maximum observed measurement is used to determine the 

range of motion impairment.”13 

It is well established that proceedings under FECA are not adversarial in nature, and 

while the claimant has the burden to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.14 

ANALYSIS 

OWCP accepted that appellant sustained adhesive capsulitis of the right shoulder due to a 

May 3, 2011 incident, preceded by a right rotator cuff tear sustained on September 18, 2008. 

Appellant underwent arthroscopic partial rotator cuff repair and a right latissimus dorsi tendon 

transfer. On March 14, 2011 Dr. Hatch, an attending Board-certified orthopedic surgeon, found 

36 percent impairment of the right upper extremity due to weakness and limited motion 

according to the fifth edition of the A.M.A., Guides. Dr. Lombardo, an attending Board-certified 

orthopedic surgeon, opined that on March 9, 2012 appellant had a permanent impairment of the 

right arm under the fifth edition of the A.M.A., Guides. 

Appellant claimed a schedule award on September 7, 2012. OWCP advised him by 

September 18, 2012 letter to submit an impairment rating from his attending physician utilizing 

the sixth edition of the A.M.A., Guides. As appellant did not submit such rating, OWCP 

obtained a second opinion from Dr. Martinson, a Board-certified orthopedic surgeon, who found 

 10 A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014). 

11 Id. at 411. 

12 Id. at 387, 405, 475-78. 

13 Id. at 464. 

14 Dorothy L. Sidwell, 36 ECAB 699 (1985). 
5

32 percent impairment of the right arm due to restricted shoulder motion according to Table 

15-34. Dr. Harris reviewed Dr. Martinson’s report and concurred with her clinical findings, but 

found that applying the individual grading criteria under Table 15-34 to the ranges of motion 

observed resulted in 25 percent impairment. He concurred that the range of motion rating 

method was more appropriate than the diagnosis-based method in appellant’s case. OWCP 

issued its November 22, 2013 schedule award for 25 percent impairment of the right upper 

extremity, based on the reviews by Dr. Harris of Dr. Martinson’s clinical findings. 

The Board notes that while section 15.2 of the sixth edition of the A.M.A., Guides provides 

that “[d]iagnosis-based impairment is the primary method of evaluation for the upper limb,” Table 

15-5 also provides that, if motion loss is present for a claimant who has a rotator cuff injury, 

impairment may alternatively be assessed using section 15.7 (range of motion impairment).15 In 

this case it is not apparent that Dr. Martinson obtained range motion in compliance with section 

15.7. The case should be remanded to OWCP to obtain further information from Dr. Martinson 

as to the protocol outlined at page 464, of the A.M.A., Guides. After developing the evidence in 

accordance with the Board’s decision, OWCP shall issue an appropriate decision regarding 

appellant’s right upper extremity impairment. 

 On appeal, appellant contends that OWCP should have accorded the weight of the 

medical evidence to his attending physicians and not to Dr. Martinson. The Board notes that 

Dr. Hatch and Dr. Lombardo relied on the fifth edition of the A.M.A., Guides which was no 

longer in effect as of May 1, 2009. The case will be remanded for additional development 

regarding Dr. Martinson’s range of motion findings. 

CONCLUSION 

The Board finds that the case is not in posture for decision as to whether appellant has 

more than 25 percent impairment of the right upper extremity, for which he received a schedule 

award. 

 15 A.M.A., Guides 387, 405, 475-78. 
6

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated November 22, 2013 is set aside, and the case remanded to OWCP 

for further proceedings consistent with this decision of the Board. 

Issued: November 5, 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