United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF AGRICULTURE 

INSPECTION OPERATIONS PROGRAM, 

Denison, IA, Employer

__________________________________________

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Docket No. 19-0114

Issued: June 12, 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

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 19, 2018 appellant filed a timely appeal from a September 20, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the September 20, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 10 percent 

permanent impairment of his left upper extremity, for which he previously received a schedule 

award.

FACTUAL HISTORY

On January 14, 2015 appellant, then a 54-year-old food safety inspector, filed a traumatic 

injury claim (Form CA-1) alleging that he sustained a left arm injury when a hog shed fell and hit 

him on the hook of his left arm. He did not initially stop work. By decision dated February 26, 

2015, OWCP accepted the claim for left shoulder sprain, left hand sprain, left elbow sprain, and 

left ulnar neuropathy. It subsequently expanded acceptance of the claim to include left lateral 

epicondylitis, superior glenoid labrum lesion of the left shoulder, and impingement syndrome of 

the left shoulder. Appellant received intermittent wage-loss compensation on the supplemental 

rolls as of March 1, 2015 and on the periodic rolls as of June 26, 2016. 

Appellant underwent OWCP approved surgery on September 2, 2015 for left tennis elbow 

release and on April 13, 2016 for left shoulder arthroscopy with repair of anterior labral 

detachment and subacromial decompression arthroscopically with acromioplasty and left elbow 

revision tennis elbow release with lateral epicondylectomy, performed by Dr. Steven J.

Stokesbary, a Board-certified orthopedic surgeon. 

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

In a development letter dated February 28, 2017, OWCP requested that appellant submit a 

permanent impairment evaluation from his attending physician in accordance with the sixth edition 

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

(A.M.A., Guides).3 It afforded him 30 days to submit the requested impairment evaluation. 

In support of his claim, appellant submitted Dr. Stokesbary’s April 13, 2016 operative

report and January 31, 2017 postoperative evaluation. Dr. Stokesbary determined that appellant 

had reached maximum medical improvement (MMI) following his April 13, 2016 left lateral 

epicondylectomy revision with left shoulder arthroscopy with superior labral anterior to posterior 

(SLAP) repair and subacromial decompression.

On October 13, 2017 OWCP referred appellant to Dr. Adam T. Kafka, Board-certified in 

physical medicine and rehabilitation, for a second opinion evaluation regarding permanent 

impairment of his left elbow and shoulder. 

In a November 1, 2017 report, Dr. Kafka discussed appellant’s medical history, provided 

physical examination findings, and determined that MMI was reached on January 31, 2017. On 

physical examination, he utilized the diagnosis-based impairment (DBI) methodology to 

determine the degree of permanent impairment. Dr. Kafka indicated that, in accordance with Table 

 

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

15-5, Shoulder Regional Grid, of the sixth edition of the A.M.A., Guides,

4

the impairment 

diagnosis was class 1 acromioclavicular (AC) joint disease with a default impairment value of 10 

percent due to distal clavicle resection. He assigned a grade modifier for functional history

(GMFH) of two based on appellant’s QuickDASH score, a grade modifier of 1 for physical 

examination (GMPE) based on minimal palpatory findings and mild decrease in range of motion

(ROM) from opposite sides, and a grade modifier of 4 for clinical studies (GMCS) as the magnetic 

resonance imaging showed a rotator cuff tear along with a labral lesion. Applying the net 

adjustment formula, Dr. Kafka subtracted 1, the numerical value of the class, from the numerical 

value of the grade modifiers resulting in a net adjustment of 4 ((2-1) + (1-1) + (4-1).5 Application 

of the net adjustment formula meant that movement was warranted from the class 1 default value 

grade C to grade E, for a combined rating of 12 percent permanent impairment of the left shoulder.

6

 

Dr. Kafka also provided ROM findings based on three measurements and calculated five percent 

permanent impairment using the ROM methodology. He determined that the DBI methodology 

should be used as it provided the higher rating. 

Dr. Kafka further provided an impairment rating pertaining to the left elbow. Utilizing the 

DBI methodology found at Table 15-4, Elbow Regional Grid, of the A.M.A., Guides, he assigned 

class 1 impairment for lateral epicondylitis status postsurgical release of extensor origins, 

amounting to a default impairment value of five percent.7 Dr. Kafka discussed the net adjustment 

formula and assignment of grade modifiers, determining that no adjustment was for a default value 

of five percent permanent impairment of the left elbow. He did not utilize the ROM methodology 

for the left elbow as physical examination revealed full ROM. Dr. Kafka reported that the A.M.A., 

Guides allowed for combination of two impairments of the same limb. He referenced Appendix 

A on page 604, explaining that 12 percent impairment was combined with 5 percent for a final 16 

percent permanent impairment of the left upper extremity.8

OWCP routed Dr. Kafka’s report and the case file to Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review and a 

determination as to whether appellant sustained a permanent impairment of the left shoulder and 

elbow.

In a May 24, 2018 report, Dr. Harris determined that appellant had four percent permanent 

impairment of the left upper extremity for loss of shoulder internal rotation under the ROM 

methodology.9 He opined that the DBI methodology should be used since it provided the higher 

left shoulder rating, amounting to five percent permanent impairment for arthroscopic surgery 

 

4

Id. at 403.

5

Id. at 411.

6

Id. at 403, Table 15-5.

7

Id. at 399, Table 15-4.

8

Id. at 604.

9

Id. at 475, Table 15-34.
4

including labral repair.

10

 The DMA further found five percent permanent impairment of the left 

elbow for residual problems with lateral epicondylitis. He noted full ROM for the left elbow which 

amounted to zero percent impairment using the ROM methodology. The DMA concluded that 

appellant had a combined value of 10 percent permanent impairment of the left upper extremity 

and had reached MMI on November 1, 2017. He disagreed with Dr. Kafka’s 16 percent 

impairment rating of the left upper extremity, explaining that the physician had provided 

impairment for having undergone excision of the distal clavicle which was not documented on the 

April 13, 2016 operative report.

By decision dated September 20, 2018, OWCP granted appellant a schedule award for 10 

percent permanent impairment of the left arm (left shoulder and left elbow). The date of MMI was 

November 1, 2017 and the period of award ran from November 1, 2017 to June 7, 2018. OWCP 

found that in reviewing the evidence, the DMA determined that Dr. Kafka had incorrectly applied 

the A.M.A., Guides to the examination findings. It found, therefore, that the weight of the medical 

evidence regarding the percentage of permanent impairment rested with the DMA, as he had 

correctly applied the A.M.A., Guides to the examination findings to calculate 10 percent 

permanent impairment of the left elbow and shoulder. 

LEGAL PRECEDENT

The schedule award provision 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.11 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.12 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).13 

In addressing upper extremity impairments, the sixth edition requires identification of the 

impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based 

 

10 Id. at 405, Table 15-5.

11 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12 20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB 

130 (2001).

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

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

Chapter 2.808.5 (March 2017). 
5

on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).14 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus 

the ROM methodology for rating of upper extremity impairments.16 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part:

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify: (1) the methodology used by the rating physician (i.e., DBI 

or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,] 

Guides allow for the use of both the DBI and ROM methods to calculate an 

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)17

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA 

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

18

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

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing 

rationale for the percentage of impairment specified.19

ANALYSIS

The Board finds that the case is not in posture for decision.

On November 1, 2017 OWCP referred appellant to Dr. Kafka for a second opinion 

evaluation and opinion regarding the extent of his permanent impairment of the left elbow and 

shoulder. Dr. Kafka provided an impairment rating using both the ROM and DBI methodologies. 

He discussed his calculations, provided reasoning for his ratings, and provided proper citations to

 

14 A.M.A., Guides 383-492.

15 Id. at 411.

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

17 A.M.A., Guides 477.

18 Supra note 16; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued 

July 26, 2018).

19 See supra note 13 at Chapter 2.808.6(f) (March 2017).
6

the A.M.A., Guides. Dr. Kafka determined that the DBI methodology produced the higher 

impairment rating for the left shoulder, warranting 12 percent permanent impairment for class 1 

AC joint disease due to distal clavicle resection.20 He further discussed his findings and calculated 

five percent permanent impairment of the left elbow for class 1 lateral epicondylitis status 

postsurgical release of extensor origins.

21

 Dr. Kafka explained his calculations and concluded that 

appellant was entitled to a combined 16 percent permanent impairment of the left upper extremity. 

In accordance with its procedures, OWCP referred the evidence of record to Dr. Harris, 

serving as OWCP’s DMA who provided an impairment rating on May 24, 2018. The DMA

disagreed with Dr. Kafka regarding his left shoulder permanent impairment rating for AC joint 

disease due to distal clavicle resection. 

While the DMA, performed both a DBI and a ROM rating, the Board finds that his 

impairment rating report is conclusory in nature as he merely provided a numerical rating without 

providing specific detail or rationale as to how he had utilized the A.M.A., Guides in reaching his 

conclusions.22 For example, in performing the DBI rating he did not discuss grade modifiers or 

other physical findings in calculating five percent impairment of the left shoulder and five percent 

impairment of the left elbow. In providing an ROM rating, the DMA did not explain the loss of 

ROM measurements which he relied upon, only concluding that appellant had four percent left 

upper extremity impairment for loss of shoulder internal rotation. The report of the DMA is 

therefore insufficient as a basis for a schedule award because, as the DMA, he did not appropriately 

determine appellant’s permanent impairment based on the appropriate standards.23 Upon receipt 

of the DMA report, it was incumbent upon OWCP to request clarification or obtain a supplemental 

report from the DMA.24 As that was not done, the Board finds the DMA’s report is an insufficient 

basis for a schedule award.

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is 

not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to 

compensation. However, OWCP shares responsibility in the development of the evidence to see 

that justice is done.25 Once it undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.26

Consequently, the Board finds that further development of the medical evidence is required 

to determine the extent of appellant’s permanent impairment for schedule award purposes. On 

remand, OWCP should request clarification from Dr. Kafka pertaining to his use of the AC joint 

 

20 Supra note 5.

21 Supra note 6.

22 V.H., Docket No. 18-0848 (issued February 25, 2019).

23 Supra note 13 at Chapter 2.808.6.f(2)(a) (March 2017).

24 Id.; see W.G., Docket No. 17-1090 (issued March 12, 2018).

25 T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

26 Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).
7

disease with distal clavicle resection diagnosis for the left shoulder.

27

 Following this additional 

development, the case should be routed back to a DMA for evaluation of appellant’s permanent 

impairment in accordance with the A.M.A., Guides. After such further development as deemed 

necessary, OWCP shall issue an appropriate merit decision. 

CONCLUSION

The Board finds that the case is not in posture for decision. 

ORDER

IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: June 12, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

27 R.R., Docket No. 16-0589 (issued February 3, 2017).