United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION

AUGUSTA VETERANS MEDICAL CENTER, 

Augusta, GA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 18-1140

Issued: January 29, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 May 15, 2018 appellant, through counsel, filed a timely appeal from a March 19, 2018

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 over the merits of this case.

 

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

ISSUE

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

permanent impairment for schedule award purposes. 

FACTUAL HISTORY

On June 17, 2003 appellant, then a 47-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on June 16, 2003 she sustained a neck and right shoulder injury

in the performance of duty when she caught a patient who had collapsed. By decision dated 

August 5, 2003, OWCP accepted the claim for cervical and right shoulder strain under the current 

claim, OWCP File No. xxxxxx248. Appellant sought treatment for her conditions and was 

released to regular-duty work on June 24, 2003. The record reflects that she stopped treatment for 

her injury on November 14, 2003, the date of her last physical therapy progress note.

3

 

On May 26, 2016 appellant filed a claim for a schedule award (Form CA-7). 

By development letter dated June 22, 2016, OWCP advised appellant that additional 

evidence was needed to establish her claim, including an opinion from her treating physician as to 

whether maximum medical improvement (MMI) had been reached and a permanent impairment 

rating utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides).4 No evidence was received.

By decision dated February 10, 2017, OWCP denied appellant’s schedule award claim

finding that she had not submitted medical evidence, as requested, providing a permanent

impairment rating under the A.M.A., Guides. 

On February 20, 2017 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In support of her claim, appellant submitted an August 17, 2017 medical report from

Dr. Audrey M. Henderson, Board-certified in family medicine. Dr. Henderson reported that 

appellant injured her right shoulder, on June 16, 2003, and was diagnosed with cervical sprain and 

sprain of the right shoulder and upper arm. She noted that, since that time, appellant had ongoing 

pain in her right shoulder and also developed pain in her left shoulder due to overuse. 

Dr. Henderson noted that, in 2013, appellant was pushing a patient to the bus and felt pain in her 

 

3 The Board notes that on October 25, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging a 

recurrence of disability of September 27, 2014. By decision dated October 20, 2015, OWCP’s hearing representative 

denied appellant’s recurrence claim. Appellant had a claim for a new traumatic injury claim based on appellant’s 

October 25, 2013 Form CA-2a. The case was assigned OWCP File No. xxxxxx595. By decision dated January 3, 

2014, OWCP denied appellant’s traumatic injury claim. On March 27, 2015 appellant also filed an occupational 

disease claim (Form CA-2) alleging a left shoulder injury which required surgery due to a patient falling on her in 

2003, OWCP File No. xxxxxx551. By decision dated March 23, 2016, OWCP denied appellant’s occupational disease 

claim. Appellant has not appealed from either decision. OWCP’s hearing representative administratively combined 

OWCP File Nos. xxxxxx248, xxxxxx595, and xxxxxx551 with OWCP File No. xxxxxx248 identified as the master 

file.

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

right shoulder. Appellant was diagnosed with rotator cuff tear and underwent emergency surgery 

on October 25, 2013. She returned to work, but continued to experience pain, resulting in overuse 

of the left shoulder. The pain in the left shoulder progressed and appellant was diagnosed with left 

shoulder outlet impingement syndrome and left shoulder adhesive capsulitis in 2015. 

Dr. Henderson diagnosed chronic shoulder strain, chronic cervical strain, status post right 

subacromial decompression in 2013, and status post left rotator cuff repair in 2015. 

By decision dated September 22, 2017, an OWCP hearing representative affirmed the 

February 10, 2017 decision, finding that the evidence submitted was insufficient to establish 

permanent impairment of a scheduled member or function of the body causally related to the 

accepted June 16, 2003 employment injury. 

On December 22, 2017 appellant, through counsel, requested reconsideration of the 

September 22, 2017 decision. Counsel noted submission of a report from Dr. Neil Allen, Boardcertified in internal medicine, in support of appellant’s schedule award claim. 

In an October 27, 2017 report, Dr. Allen discussed appellant’s June 16, 2003 injury when 

she was on duty as a nurse’s assistant and a patient fell on top of her, causing injury to her neck and 

right shoulder. He noted that she underwent left shoulder surgery on April 13, 2015 and received 

epidural injections and physical therapy for her cervical spine injury. Dr. Allen provided physical 

examination findings and a review of diagnostic testing pertaining to the cervical spine and right 

shoulder. He referred to proposed Table 1 of The Guides Newsletter, Spinal Nerve Impairment, 

Upper Extremity Impairment, to determine that appellant had no motor or sensory impairments 

pertaining to the cervical spine.5 Dr. Allen determined that the diagnosis-based impairment (DBI) 

was a class zero impairment defined as no motor deficit with an assigned default value of zero 

percent upper extremity impairment at the bilateral C5 to C8 spinal levels.

6

 He further determined 

that the DBI was a class zero impairment defined as no sensory deficit with an assigned default 

value of zero percent upper extremity impairment at the bilateral C5-T1 spinal levels. Assignment 

of grade modifiers and adjustment did not change the motor and sensory deficit values, resulting 

in zero percent permanent impairment of the right and left upper extremities.

7

 

With respect to the right shoulder impairment, Dr. Allen reported that the range of motion 

(ROM) method for assessing permanent impairment was used as it provided greater upper 

extremity impairment than the DBI method for a rotator cuff injury, full thickness tear.8 Utilizing 

Table 15-34 of the A.M.A., Guides, shoulder ROM, he determined that appellant sustained nine

percent permanent impairment of the right upper extremity based on measurements revealing 

decreased ROM. Dr. Allen measured ROM and determined that, for the right shoulder, 130 

degrees abduction yielded three percent impairment, 110 degrees forward flexion yielded three 

percent impairment, 40 degrees extension yielded one percent impairment, 80 degrees adduction 

yielded zero percent impairment, 50 degrees internal rotation yielded two percent impairment, and 

 

5 Table 1, The Guides Newsletter, (6th ed.) (July/August 2009).

6 Supra note 6 at 425, Table 15-14.

7

Id.

8 FECA Bulletin No. 17-06 (May 8, 2017).
4

70 degrees external rotation yielded zero percent impairment. He assigned a ROM grade modifier 

of one9and a grade modifier of three for functional history due to appellant’s QuickDASH score 

of 80.

10

 Dr. Allen determined that, because the functional history grade modifier was two grades 

higher than the ROM grade modifier, the total ROM impairment should be multiplied by 

10 percent.11 This resulted in nine percent permanent impairment of the right upper extremity.12 

On January 3, 2018 OWCP routed Dr. Neil’s report and a series of questions to

Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP district medical 

adviser (DMA), for review and determination regarding whether appellant sustained a permanent 

impairment and date of MMI. It noted the accepted conditions of cervical sprain and sprain of 

right acromioclavicular shoulder and upper arm. 

In a January 5, 2018 report, Dr. Katz noted the accepted conditions of cervical and right 

shoulder sprain. He agreed with Dr. Allen’s assessment that appellant sustained zero percent

spinal nerve impairment of the left or right upper extremity based on calculations revealing no 

sensory or motor deficit. With respect to the right shoulder impairment, Dr. Katz identified a class 

one diagnosis for a rotator cuff injury, full thickness tear.13 Utilizing the DBI method, he 

calculated seven percent permanent impairment of the right upper extremity. Dr. Katz also 

calculated impairment based on the ROM method finding 10 percent permanent impairment of the 

right upper extremity. He explained that he agreed with Dr. Allen’s assessment using the ROM 

method as it yielded the higher impairment rating. However, Dr. Allen mistakenly added the total 

impairment for the affected arcs as eight percent, when the sum actually totaled nine 

percent (3+3+1+2). With the functional adjustment of 10 percent, Dr. Katz opined that appellant 

had sustained 10 percent permanent impairment of the right upper extremity. He concluded that 

MMI had been reached on October 27, 2017 the date of Dr. Allen’s examination. 

By decision dated March 19, 2018, OWCP affirmed the September 22, 2017 decision 

finding that the evidence was insufficient to establish permanent impairment to a member or 

function of the body. It found that the impairment ratings provided were based on a right rotator 

cuff tear, a condition not accepted as employment related. OWCP further found that the physicians

had not explained how the right shoulder rotator cuff tear was related to the June 16, 2003 work 

injury. As the record did not contain an impairment rating based on the accepted conditions of 

cervical and right shoulder strain, OWCP determined that appellant had not met her burden of 

proof to establish entitlement to a schedule award. 

 

9 Supra note 6 at 477, Table 15-35.

10 Id. at 406, Table 15-7.

11 Id. at 477. 

12 Id. at 475, Table 15-34.

13 Id. at 403, Table 15-5.
5

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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.14 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. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.15 

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first printing 

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second 

printing of the sixth edition. 

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

of the A.M.A., Guides (2009).16 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.17

It is the claimant’s burden of proof to establish that he or she has sustained a permanent 

impairment of the scheduled member or function as a result of an employment injury.

18

 OWCP 

procedures provide that, to support a schedule award, the file must contain competent medical 

evidence which shows that the impairment has reached a permanent and fixed state and indicates 

the date on which this occurred (date of MMI), describes the impairment insufficient detail so that 

it can be visualized on review, and computes the percentage of impairment in accordance with the 

A.M.A., Guides.

19

 

14 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

15 Id. at § 10.404. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

16 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.6a (March 2017). 

17 Isidoro Rivera, 12 ECAB 348 (1961).

18 Tammy L. Meehan, 53 ECAB 229 (2001). 

19 Supra note 16 at Chapter 2.808.5 (March 2017).
6

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish upper extremity 

permanent impairment for schedule award purposes.

In support of her schedule award claim, appellant submitted an October 27, 2017 

impairment evaluation from Dr. Allen. Utilizing the ROM method, Dr. Allen calculated nine 

percent permanent impairment of the right upper extremity due to a rotator cuff full thickness tear. 

On January 5, 2018 Dr. Katz serving as OWCP DMA, agreed with Dr. Allen’s ROM rating for a 

rotator cuff tear, but found that calculations resulted in 10 percent permanent impairment of the 

right upper extremity. 

The Board finds that the reports of Dr. Allen and Dr. Katz are insufficient to establish 

permanent impairment to appellant’s right upper extremity.

20

 The Board notes that the impairment 

should be based on the accepted conditions of cervical and right shoulder strain, but neither 

physician provided a rating for the conditions accepted for the June 16, 2003 injury.

21

 Dr. Allen 

and Dr. Katz based their impairment rating on a full thickness rotator cuff tear, a condition which 

has not been accepted as employment related.22 The physicians failed to provide an opinion 

causally relating the right rotator cuff tear to the June 16, 2003 injury.

23

 It is appellant’s burden 

of proof to establish that she suffers from additional injuries as a result of the accepted 

employment-related injury.24

Appellant also submitted an August 17, 2017 report from Dr. Henderson in which she 

noted appellant’s history of injuries and diagnoses including chronic cervical and shoulder strain, 

status post right subacromial decompression, and status post rotator cuff repair, however, this 

report offered no permanent impairment rating of appellant’s accepted conditions, as such it was 

of limited probative value.25

It is appellant’s burden of proof to establish a permanent impairment of a scheduled 

member as a result of an employment injury.26 She did not submit such evidence and thus, OWCP 

properly denied her schedule award claim.27

 

20 K.S., Docket No. 15-1082 (issued April 18, 2017).

21 G.I., Docket No. 11-0030 (issued October 13, 2011).

22 R.W., Docket No. 15-1121 (issued August 12, 2015).

23 OWCP’s procedure manual provides that impairment ratings for schedule awards include those conditions 

accepted by OWCP as work related and any preexisting permanent impairment of the same member or function. 

Supra note 16 at Chapter 2.808.5(d) (March 2017). See also Raymond E. Gwynn, 35 ECAB 247, 253 (1983).

24 See Charlene R. Herrera, 44 ECAB 361 (1993).

25 See supra note 19. 

26 Supra note 18.

27 L.F., Docket No. 10-0343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010). 
7

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 appellant has not met her burden of proof to establish upper extremity 

permanent impairment for schedule award purposes. 

ORDER

IT IS HEREBY ORDERED THAT the March 19, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 29, 2019

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