United States Department of Labor

Employees’ Compensation Appeals Board

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W.H., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Indianapolis, IN, Employer

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Docket No. 18-1265

Issued: January 23, 2019

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 June 8, 2018 appellant filed a timely appeal from a January 23, 2018 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 has met his burden of proof to establish permanent 

impairment of his left upper extremity, entitling him to a schedule award.

FACTUAL HISTORY

On August 31, 2016 appellant, then a 61-year-old housekeeping aid, filed a traumatic 

injury claim (Form CA-1) alleging that, on August 25, 2016, he injured his left shoulder while in 

 

1 5 U.S.C. § 8101 et seq. 
2

the performance of duty when he pulled a box that was stuck in a trash chute. He stopped work 

that day. Appellant returned to full-time light-duty work on August 26, 2016. OWCP accepted 

that appellant sustained a left shoulder sprain causally related to the accepted August 25, 2016 

injury. 

In a report dated September 15, 2016, Dr. Gregory A. Merrell, Board-certified in 

orthopedic surgery and hand surgery, diagnosed possible left proximal biceps tendon and left 

supraspinatus tendon tears. He ordered a magnetic resonance imaging (MRI) scan of the left 

shoulder which was performed on September 30, 2016. It demonstrated supraspinatus and 

subscapularis tendinopathy, moderate chronic acromioclavicular joint arthropathy, and 

glenohumeral arthritis with posteroinferior labral fraying and adhesive capsulitis.

In a report dated December 29, 2016, Dr. Merrell opined that appellant had attained 

maximum medical improvement (MMI). He referred appellant to Joanne McDowell, a physical 

therapist, who performed a functional capacity evaluation (FCE) on February 3, 2017. Appellant 

demonstrated that he could perform work at a medium physical demand level. The physical 

therapist opined that utilizing the diagnosis-based impairment (DBI) method, according to Figure 

15-2 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),

2

appellant had a class of diagnosis (CDX) of 1 for the 

diagnosis of impingement syndrome with residual functional loss, a grade modifier for functional 

history (GMFH) of 2, a grade modifier for physical examination (GMPE) of 1, and no applicable 

grade modifier for clinical studies (GMCS). Applying the net adjustment formula is (GMFH-CDX) 

+ (GMPE-CDX) + (GMCS-CDX), or (2-1) + (1-1), resulted in a net adjustment of one, which raised 

the default CDX upward one grade from three to four percent. Ms. McDowell found that appellant 

had four percent permanent impairment of the left upper extremity due to impingement syndrome 

with moderate symptoms and normal range of motion.

In a report dated October 24, 2017, Dr. Merrell found that appellant had attained MMI. He

concurred with Ms. McDowell’s February 3, 2017 assessment of four percent permanent 

impairment of the left shoulder.

On November 22, 2017 appellant filed a claim for a schedule award (Form CA-7).

By development letter dated November 28, 2017, OWCP informed appellant that the 

evidence of record was insufficient to establish his schedule award claim. Appellant was advised 

of the type of medical evidence needed, including an updated report from his attending physician 

including the date of MMI, detailed physical findings, and an impairment rating utilizing the 

appropriate portions of the A.M.A., Guides. OWCP afforded him 30 days to submit the necessary 

evidence. No additional evidence was received.

By decision dated January 23, 2018, OWCP denied appellant’s claim for a schedule award. 

It found that he had not submitted sufficient evidence demonstrating permanent impairment of a 

scheduled member or a function of the body warranting a schedule award.

 

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

LEGAL PRECEDENT

The schedule award provisions of FECA,3and its implementing federal regulations,4set 

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.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

A claimant has the burden of proof under FECA to establish permanent impairment of a 

scheduled member or function as a result of his or her employment injury entitling him or her to a 

schedule award.7 Before the A.M.A., Guides can be utilized a description of impairment must be 

obtained from his physician. In obtaining medical evidence required for a schedule award, the 

evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, and decrease in strength or 

disturbance of sensation or other pertinent descriptions of the impairment. This description must 

be in sufficient detail so that the claims examiner and others reviewing the file will be able to 

clearly visualize the impairment with its resulting restrictions and limitations.8

OWCP’s procedures provide that, if a claimant has not submitted an impairment 

evaluation, it should request a detailed report that “includes: history of clinical presentation;

physical findings; functional history; clinical studies or objective tests; analysis of findings, and 

the appropriate impairment based on the most significant diagnosis, as well as a discussion of how 

the impairment rating was calculated.”

9

 If the claimant does not provide an impairment evaluation, 

“and there is no indication of permanent impairment in the medical evidence of file, the [claims 

examiner] may proceed with a formal denial of the award.”

10

 

3 5 U.S.C. § 8107.

4 20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

7 See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

8 A.T., Docket No. 18-0864 (issued October 9, 2018); D.M., Docket No. 11-0775 (issued October 11, 2011); 

Peter C. Belkind, 56 ECAB 580 (2005).

9 Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.808.6(a).

10 Id. at Chapter 2.808.6(c). See also A.T., supra note 8.
4

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish a permanent 

impairment of the left upper extremity entitling him to a schedule award. 

OWCP accepted that appellant sustained a sprain of his left shoulder in the performance of 

duty. Appellant’s attending physician, Dr. Merrell, found in a report dated October 24, 2017, that 

he had reached MMI. Based on an FCE performed on February 3, 2017, Dr. Merrell opined on 

October 24, 2017 that appellant had sustained four percent permanent impairment of the left upper 

extremity. 

OWCP, on November 28, 2017, requested that appellant submit an impairment evaluation 

from his physician addressing the extent of any employment-related permanent impairment using 

the A.M.A., Guides. Appellant did not, however, submit an updated impairment evaluation with 

detailed clinical findings establishing permanent impairment. The FCE performed on February 3, 

2017 contained limited physical findings reported by Ms. McDowell, a physical therapist, and 

reviewed on October 24, 2017 by Dr. Merrell. However, this report did not provide sufficient 

detail describing the precise nature of physical impairment, as observed on physical examination,

due to the accepted left shoulder strain.

11

 The Board notes that Dr. Merrell did not note a diagnosis 

of left shoulder strain, but rather listed a number of diagnoses which were not accepted by OWCP 

as causally related to the accepted employment injury. 

As the medical evidence of record was insufficient to establish permanent impairment of a 

scheduled member or function of the body, appellant has not met his burden of proof.12

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 his burden of proof to establish permanent 

impairment of his left upper extremity, entitling him to a schedule award.

 

11 A.T., supra note 8.

12 See supra note 6.
5

ORDER

IT IS HEREBY ORDERED THAT the January 23, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 23, 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