United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

DEPARTMENT OF THE ARMY, TANKAUTOMOTIVE & ARMAMENTS COMMAND, 

Fort Benning, GA, Employer

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Docket No. 17-1818

Issued: April 3, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 24, 2017 appellant filed a timely appeal from June 12 and July 12, 2017 merit 

decisions 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 the claim.2

ISSUES

The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective June 14, 2017; and (2) whether appellant has established greater than 

23 percent permanent impairment of his left upper extremity, for which he previously received 

schedule awards.

 

1 5 U.S.C. § 8101 et seq.

2 The record on appeal includes evidence received after OWCP issued its July 12, 2017 decision. The Board’s 

jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1). 

Therefore, the Board is precluded from considering this new evidence for the first time on appeal. Id. 
2

FACTUAL HISTORY

On November 14, 2012 appellant, then a 32-year-old mobile equipment servicer, filed a 

traumatic injury claim (Form CA-1) alleging a left shoulder condition that allegedly arose in the 

performance of duty that same date. He claimed that he was working on a tank turret when he 

injured his left rotator cuff. Appellant stopped work on the date of injury and received continuation 

of pay. On February 20, 2013 OWCP accepted his claim for left shoulder region affections (not 

elsewhere classified) and unspecified disorder of the bursas and tendons. Appellant underwent 

OWCP-approved left shoulder arthroscopic procedures on July 15, 2013 and February 27, 2014. 

Both surgeries were performed by Dr. Michael M. Tucker Jr., who is Board-certified in 

orthopedic surgery and sports medicine. On March 17, 2014 appellant returned to work full time 

in a limited-duty capacity with restrictions of no use of his left arm.3 Effective June 27, 2014, the 

employing establishment removed him from service because of a failure to obtain a favorable 

background investigation.

On August 20, 2014 appellant filed a claim for a schedule award (Form CA-7). By decision 

dated August 27, 2014, OWCP granted a schedule award for 12 percent permanent impairment of 

his left upper extremity.4 The award covered a period of 37.44 weeks beginning August 20, 2014. 

On April 2, 2015 Dr. Tucker performed an additional OWCP approved left shoulder 

surgery. 

In August 2015, appellant filed a claim (Form CA-7) for an additional schedule award. He 

submitted an August 5, 2015 report from Dr. Turner who found 23 percent left upper extremity 

permanent impairment due to loss of shoulder ROM. Dr. Turner rated appellant under the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(2009) (A.M.A., Guides).5In an August 27, 2015 report, the DMA noted his agreement with

Dr. Turner’s 23 percent left upper extremity impairment rating. 

On September 3, 2015 OWCP awarded appellant an additional 11 percent permanent 

impairment of the left upper extremity. It subtracted the previous 12 percent award from the latest 

rating of 23 percent. The additional award covered a 34.32-week period beginning 

August 5, 2015. 

Appellant continued to experience left shoulder pain. In a November 26, 2016 report,

Dr. Tucker diagnosed adhesive capsulitis, and recommended a magnetic resonance imaging (MRI) 

scan and an electromyogram.

A December 5, 2016 left upper extremity electrodiagnostic study was found to be normal. 

However, a December 5, 2016 left shoulder MRI scan revealed moderate supraspinatus and 

 

3 OWCP paid wage-loss compensation for temporary total disability for the period February 27 through 

March 14, 2014. 

4 The award was based on Dr. Tucker’s August 20, 2014 impairment rating for left shoulder motion deficits. In an 

August 25, 2014 report, OWCP’s district medical adviser (DMA) concurred with Dr. Tucker’s 12 percent left upper 

extremity (shoulder) range of motion (ROM) impairment rating. 

5 Dr. Tucker referenced Table 15-34, shoulder ROM, A.M.A., Guides 475 (6th ed. 2009). 
3

infraspinatus tendinosis, prior biceps tenodesis, posterior sub-deltoid bursitis, findings suspicious 

of a recurrent superior labral tear posteriorly, and mild nonspecific thickening of the interior joint 

capsule “ ... seen with adhesive capsulitis.”

In a December 9, 2016 follow-up report, Dr. Tucker diagnosed left shoulder adhesive 

capsulitis and recommended shoulder manipulation under anesthesia. 

On December 27, 2016 OWCP expanded the acceptance of appellant’s claim to include 

left shoulder adhesive capsulitis as an accepted condition. It also authorized the recommended left 

shoulder procedure, which Dr. Tucker performed on December 28, 2016. Appellant received 

wage-loss compensation for temporary total disability beginning December 28, 2016. 

In a January 27, 2017 follow-up report, Dr. Tucker provided an assessment of adhesive 

capsulitis of left shoulder and left full-thickness rotator cuff tear. He released appellant to work 

with restrictions of waist level only work, with no overhead lifting. 

Prior to his latest surgery, appellant had been working as a State/County correctional 

officer. His nonfederal employing establishment was unable to accommodate any restrictions at 

the time, and therefore, OWCP placed him on the periodic compensation rolls, effective 

February 5, 2017. 

In a March 24, 2017 report, Dr. Tucker indicated that appellant could return to light-duty 

work with no use of left arm. Appellant also completed a work capacity evaluation (OWCP-5c) 

form. 

On or about April 22, 2017 appellant was terminated from his private sector employment 

due to issues unrelated to the accepted work-related conditions. 

In an April 24, 2017 report, Dr. Tucker noted that appellant reported that he had full motion 

and that he was “doing great.” Examination revealed flexes 160 degrees external rotation and 30 

degrees internal rotation with 4/5 strength. Dr. Tucker released appellant to full duty without 

restrictions as of April 25, 2017 and completed an OWCP-5c form. He also indicated that 

appellant was at maximum medical improvement (MMI) and that a permanent partial disability 

rating would be ordered. 

On May 2, 2017 OWCP proposed to terminate appellant’s wage-loss compensation 

benefits. It found that the weight of the medical opinion rested with the April 24, 2017 opinion of

Dr. Tucker, appellant’s attending physician, who advised that appellant was no longer disabled 

from work as a result of the accepted work-related conditions. OWCP noted that appellant’s 

medical benefits would remain open for treatment. Appellant was afforded 30 days to submit 

additional evidence or argument. 

On May 30, 2017 appellant underwent a functional capacity evaluation (FCE) and an 

impairment rating evaluation, which was conducted by a physical therapist. The FCE indicated 

that he was capable of working in the medium physical demand level for eight hours a day five

days a week. 

For the impairment rating, the physical therapist noted the history of the injury, appellant’s 

medical course, and that he had received two impairment ratings on the left shoulder. ROM
4

findings of the left shoulder were reported as flexion 105 degrees, extension 41 degrees, abduction 

89 degrees, adduction 45 degrees, internal rotation 47 degrees, and external rotation 45 degrees. 

Under the sixth edition of the A.M.A., Guides, the physical therapist assigned an 11 percent left 

upper extremity impairment based on ROM measurements under Table 15-34, page 475 and 

provided his calculation. 

In a June 12, 2017 letter, OWCP requested that Dr. Tucker review the May 30, 2017 

impairment rating report and indicate whether he agreed with its findings and whether appellant 

had reached MMI based on a recent examination. With regard to a final rating of permanent 

impairment, it informed Dr. Tucker that if the A.M.A., Guides allowed for the use of both the 

diagnosis-based impairment (DBI) and ROM methods to calculate an impairment rating for the 

diagnosis in question, then the method which produced the higher rating should be used and an 

explanation provided with regards to the calculation. 

By decision dated June 12, 2017, OWCP terminated appellant’s wage-loss compensation 

benefits effective June 14, 2017. It noted that it had “not received any additional evidence or 

argument in response to the Notice of Proposed Termination.” OWCP determined that the weight 

of the evidence rested with Dr. Tucker’s April 24, 2017 report that appellant was no longer 

disabled from work due to the employment injury. 

Also on June 12, 2017 OWCP received the May 30, 2017 FCE report, which Dr. Tucker 

signed on June 9, 2017. In his June 9, 2017 report, Dr. Tucker indicated that he had signed off on 

appellant’s FCE, which indicated that appellant could work medium duty, and that he had 11 

percent upper extremity permanent impairment. He opined that appellant reached MMI as of 

June 9, 2017 and that he could work medium duty. 

On June 19, 2017 OWCP received a May 25, 2017 report from Dr. Gary Dawson, a Boardcertified physiatrist. Dr. Dawson reported decreased left shoulder abduction and flexion limited 

to 90 degrees due to pain, positive left Neer’s maneuver and Hawkin’s sign, and scapular winging 

in the left subacromial area. He provided an assessment of left shoulder pain, chronic pain 

syndrome, and other specified dorsopathies, cervical region. 

In a June 17, 2017 report, Dr. James W. Butler, a Board-certified family practitioner and 

OWCP’s medical adviser, noted his review of the statement of accepted facts dated May 1, 2017 

and the medical record. He opined that appellant had reached MMI on June 9, 2017, the date of 

the examination results. The medical adviser noted that appellant previously had significant 

decreased ROM and that the most recent surgery had significantly improved appellant’s condition. 

He reported that appellant’s ROM impairment was greater than his partial thickness rotator cuff 

tear rating. Therefore, the medical adviser stated that the ROM measurements were used to access 

impairment. He set forth his calculations under the DBI method, which resulted in 2 percent 

impairment, and the ROM method, which resulted in 11 percent permanent impairment. The 

medical adviser opined that there was no additional impairment rating as appellant’s most recent 

impairment rating was 11 percent and he was previously awarded 23 percent upper extremity 

permanent impairment. He further noted that Dr. Tucker’s impairment rating of 11 percent was 

based on ROM measurements and he did not indicated that there was any further impairment from 

his previously assigned rating. 
5

By decision dated July 12, 2017, OWCP found that appellant had failed to establish an 

increase in permanent impairment of his left upper extremity greater than the 23 percent 

impairment previously awarded. 

LEGAL PRECEDENT -- ISSUE 1

Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to 

justify modification or termination of benefits.6 Having determined that an employee has a 

disability causally related to his or her federal employment, it may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.7 OWCP’s burden of proof in terminating compensation includes the necessity of 

furnishing rationalized medical opinion evidence based on a proper factual and medical 

background.8

ANALYSIS -- ISSUE 1

OWCP accepted appellant’s traumatic injury claim for adhesive capsulitis of the left 

shoulder, disorder of the bursae and tendons in the shoulder region, and unspecified other 

affections of the shoulder region on the left. By decision dated June 12, 2017, it terminated his 

wage-loss compensation benefits, effective June 14, 2017. This was based on the April 24, 2017 

opinion of Dr. Tucker, appellant’s attending physician, who released appellant to full duty without 

restrictions.

The Board finds that the case is not in posture for decision as OWCP, in its June 12, 2017 

decision, failed to review all the evidence submitted. In its June 12, 2017 decision, OWCP noted 

that it had “not received any additional evidence or argument in response to the Notice of Proposed 

Termination.” However, on June 12, 2017 it had received Dr. Tucker’s June 9, 2017 endorsement 

of the May 30, 2017 FCE. The FCE indicated that appellant was capable of working in the medium 

physical demand level for eight hours a day five days a week. This is new and relevant medical 

evidence not previously considered.9 Accordingly, OWCP did not review all evidence received 

prior to the issuance of the June 12, 2017 termination decision. 

As the Board’s decisions are final as to the subject matter appealed, it is crucial that all 

evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior 

to the time of issuance of its final decision be reviewed and addressed by OWCP.10 Because 

 

6 Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

Jaja K. Asaramo, 55 ECAB 200 (2004).

9 See William A. Couch, 41 ECAB 548 (1990) (OWCP is obligated to consider all evidence properly submitted by 

a claimant and received by it before a final decision is issued).

10 The Board’s review is limited to evidence which was before OWCP at the time of its final decision. 20 C.F.R.

§ 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).
6

OWCP did not consider the new medical evidence submitted by appellant, the Board cannot review 

such evidence for the first time on appeal.

11

 The June 12, 2017 decision, therefore will be reversed. 

LEGAL PRECEDENT -- ISSUE 2

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

vested the authority to implement FECA program with the director of OWCP.

12

 Section 8107 of 

FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of 

specified members, functions, and organs of the body.13 FECA, however, does not specify the 

manner by which the percentage loss of a member, function, or organ shall be determined. To 

ensure consistent results and equal justice under the law, good administrative practice requires the 

use of 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.14

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).15 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.16

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

should be routed to OWCP’s medical consultant for an opinion concerning the nature and 

percentage of permanent impairment in accordance with the A.M.A., Guides, with OWCP’s 

medical consultant providing rationale for the percentage of impairment specified.17

ANALYSIS -- ISSUE 2

OWCP accepted appellant’s traumatic injury claim for adhesive capsulitis of the left 

shoulder, disorder of the bursae and tendons in the shoulder region, and unspecified other 

affections of the shoulder region on the left. The issue is whether appellant sustained more than 

23 percent permanent impairment of his left upper extremity for which he previously received 

schedule awards. 

In support of his claim, appellant submitted a June 9, 2017 report from Dr. Tucker who 

opined that appellant reached MMI that day and sustained 11 percent permanent impairment of 

 

11 Id.

12 See 20 C.F.R. §§ 1.1-1.4.

13 For a complete loss of use of an arm, an employee shall receive 312 weeks compensation. 5 U.S.C. § 8107(c)(1).

14 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010).

16 Isidoro Rivera, 12 ECAB 348 (1961).

17 See supra note 15 at Chapter 2.808.6(f) (February 2013).
7

the left upper extremity. Dr. Tucker noted that appellant’s impairment rating was based on the 

ROM method, as that method had provided the greater impairment. 

Dr. Butler, serving as OWCP’s medial adviser, concurred with Dr. Tucker’s impairment 

rating based on the ROM method. He provided impairment calculations under both the DBI and 

ROM method and indicated that appellant’s ROM impairment of 11 percent was greater than his

partial thickness rotator cuff tear rating. Therefore, Dr. Butler reported that the ROM 

measurements were used to access impairment. He further noted that Dr. Tucker’s impairment 

rating of 11 percent was based on ROM measurements and that he did not indicate that there was 

any further impairment from his previously assigned rating. Dr. Butler found that appellant had 

no additional impairment rating as he was previously awarded 23 percent upper extremity 

impairment rating and his most recent impairment rating was only 11 percent. The only medical 

evidence that properly applied the A.M.A., Guides is that of OWCP’s medical adviser and OWCP 

based its schedule award decision on that report.18 There is no rationalized medical evidence of 

record establishing greater permanent impairment.

Appellant contends that he has very limited ROM and that a shoulder MRI scan was 

necessary as he has winging of his scapula. The Board notes that his medical benefits have not 

been affected by OWCP’s termination decision. As previously noted, there is no rationalized 

medical evidence of record establishing greater permanent impairment than the 23 percent 

permanent impairment of the left upper extremity, for which appellant previously received awards.

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 the case reversed. The Board further finds that appellant has not met 

his burden of proof to establish greater than 23 percent permanent impairment of his left upper 

extremity, for which he previously received schedule awards.

 

18 See M.C., Docket No. 15-1757 (issued March 17, 2016) (the only medical evidence that demonstrated a proper 

application of the A.M.A., Guides was that of OWCP’s medical adviser, who found that appellant had 11 percent right 

upper extremity permanent impairment).
8

ORDER

IT IS HEREBY ORDERED THAT the July 12, 2017 schedule award decision of the 

Office of Workers’ Compensation Programs is affirmed. The June 12, 2017 decision of OWCP is 

reversed. 

Issued: April 3, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board