United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.W., Appellant

and

DEPARTMENT OF THE NAVY, NORFOLK 

NAVAL SHIPYARD, Portsmouth, VA, Employer

__________________________________________

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Docket No. 19-0532

Issued: October 1, 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 December 7, 2018 appellant filed a timely appeal from a November 21, 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 more than 12 percent 

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

award. 

 

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 6, 2016 appellant, then a 43-year-old rigger, injured his right lower shoulder when

descending a ladder while in the performance of duty. OWCP accepted his traumatic injury claim 

for unspecified sprain of the right shoulder. Appellant stopped work on April 6, 2016.

A magnetic resonance imaging (MRI) scan of the right shoulder dated April 14, 2016, 

revealed supraspinatus tendon articular sided high-grade partial thickness tear, acromioclavicular 

(AC) joint arthrosis, subacromial spurring, and mild subacromial subdeltoid bursitis.

On May 10, 2016, Dr. Martin R. Coleman, a Board-certified orthopedic surgeon, 

performed an arthroscopic decompression of the right shoulder, resection of the distal clavicle, and 

cuff debridement. He diagnosed impingement of the right shoulder, degenerative arthritis of the 

AC joint, and partial cuff tear. 

On September 19, 2016 he underwent a magnetic resonance arthrogram of the right 

shoulder which revealed widening of the AC joint and exhibited post-traumatic widening versus 

surgical intervention. 

Appellant came under the treatment of Dr. Arthur Wardell, a Board-certified orthopedist, 

who on September 21 and October 7, 2016 noted marked tenderness over the AC joint, right 

trapezius, infraspinatus, and supraspinatus tendons and restricted range of motion (ROM). 

Dr. Wardell advised that appellant developed adhesive capsulitis as a result of his work injury on 

April 6 and May 10, 2016 surgery. He recommended arthroscopic debridement, manipulation to 

treat his arthrofibrotic contractures, formal open distal clavicle excision/revision, possible biceps 

tenotomy, and possible rotator cuff repair.

On February 24, 2017 OWCP referred appellant for a second opinion evaluation with

Dr. James Schwartz, a Board-certified orthopedic surgeon. In a March 18, 2017 report,

Dr. Schwartz reviewed the medical record and a statement of accepted facts. He diagnosed partial 

rotator cuff tear of the right shoulder related to the April 6, 2016 date of injury and preexisting 

right shoulder AC joint arthrosis. Dr. Schwartz noted significant subjective findings with limited 

objective findings. He opined that no surgery was indicated at that time and recommended that 

appellant be seen by an orthopedist specializing in shoulder surgery. Dr. Schwartz advised that 

appellant was unable to use his right upper extremity, but could work within his physical 

limitations. He recommended vocational rehabilitation and reemployment.

On May 11, 2017 Dr. Wardell referred appellant for a functional capacity evaluation

(FCE). 

On May 31, 2017 appellant underwent a right shoulder MRI scan which revealed suspected 

two surgical anchors in the greater tuberosity, no high-grade cuff tear, supraspinatus and 

infraspinatus tendinopathy with perhaps minimal low grade interstitial tears, evidence of 

subacromial decompression with mild AC joint degenerative changes, and Type 2 acromion with

perhaps mild intra-articular biceps tendinopathy.

A June 12, 2017 FCE revealed that appellant was functioning at the sedentary to light 

physical capacity demand levels below chest height. The results of the evaluation suggested that 
3

he gave reliable effort. Utilizing computerized goniometric measurements, the FCE results 

revealed shoulder abduction on the left of 165 and on the right of 63 degrees, adduction on the left 

of 45 degrees and on the right of zero degrees, flexion on the left of 155 degrees and on the right 

of 55 degrees, extension on the left of 41 degrees and on the right of 14 degrees, external rotation 

on the left of 62 degrees and on the right of 25 degrees, and internal rotation on the left of 59 

degrees and on the right of 62 degrees.2 

On July 10, 2017 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated July 11, 2017, OWCP advised appellant that the medical 

evidence received in support of his schedule award claim was the June 12, 2017 FCE report. It 

noted that this medical evidence was insufficient to support his claim because there was no 

impairment rating provided by a physician. OWCP requested that appellant arrange for 

submission of a detailed narrative medical report from his treating physician based upon a recent 

examination with a permanent impairment rating in accordance with the sixth edition of the

A.M.A., Guides.

3

 It related that, if the A.M.A., Guides allowed a rating using both the diagnosisbased impairment (DBI) and ROM methods, the impairment should be independently calculated 

using both methods. OWCP advised that the evaluator must obtain three independent ROM 

measurements and use the greatest of the measurements to determine the extent of impairment. It

afforded appellant 30 days to submit the requested evidence. 

In a report dated July 20, 2017, Dr. Wardell calculated that appellant had 23 percent 

impairment of the right upper extremity based on the ROM method. He noted his calculation was 

based upon measurements taken by computerized goniometry at the time of the FCE on 

June 12, 2017.

On July 25, 2017 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving as 

a district medical adviser (DMA), reviewed the medical record. He noted that Dr. Wardell 

recommended 23 percent impairment based on loss of ROM for the right shoulder and used 

measurements from an FCE performed on June 12, 2017. The DMA observed that each of the 

computerized goniometric measurements for right shoulder ROM were apparently measured once. 

He calculated impairment based on the DBI method and opined that appellant had 12 percent 

permanent impairment due to distal clavicle resection under Table 15-5, page 403. The DMA 

found that he could not provide an impairment rating due to ROM, as measurements from the FCE 

used by Dr. Wardell did not include three independent ROM measurements. He concluded that 

appellant reached maximum medical improvement on June 12, 2017.

By decision dated August 2, 2017, OWCP granted appellant a schedule award for 12 

percent impairment of the right upper extremity. The period of the award ran from July 23, 2017 

to April 11, 2018. 

 

2 The Board notes that the computerized goniometric measurements were based on the fifth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment(A.M.A., Guides).

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

On September 6, 2018 appellant requested an additional schedule award. 

In a report dated August 30, 2018, Dr. Wardell noted that appellant had an FCE on July 9, 

2018 which included “computerized goniometric measurements” of the right shoulder. He 

indicated that the goniometric measurement was performed three times with no significant 

difference in any of the three measurements. Dr. Wardell calculated 9 percent impairment due to 

loss of flexion, 2 percent impairment for loss of extension, 6 percent impairment for loss of 

abduction, 2 percent impairment for loss of adduction, 4 percent impairment for loss of internal 

rotation, and 2 percent impairment for loss of external rotation, for a combined 25 percent 

permanent impairment of the right upper extremity.

On September 11, 2018 the DMA, reviewed the medical record including Dr. Wardell’s 

August 30, 2018 report. He noted that Dr. Wardell recommended 25 percent impairment based on 

loss of ROM for the right shoulder and reported using measurements from an FCE performed on 

July 9, 2018. However, the DMA noted that the only FCE in the file was from June 12, 2017. 

Upon review of that FCE report, he found no documentation stating that right shoulder ROM was 

measured more than once. Additionally, the FCE noted that appellant put forth reliable effort, but 

was deemed unreliable for the right and left rapid exchange grip test, the right-sided five position 

grip test, the rapid exchange grip test, and the left shoulder flexion test. Also noted was that 

appellant put forth marginal effort for the right shoulder flexion test and right internal rotation test. 

The DMA opined that the ROM loss did not have an organic basis, and therefore, he could not be 

rated based on ROM. He noted that there was no evidence of adhesive capsulitis and there was 

variability in appellant’s right shoulder flexion measured at 130 degrees on January 12, 2018 and 

120 degrees on April 20, 2018. Dr. Garelick noted that appellant was not entitled to an additional 

schedule award.

OWCP, by letter dated September 19, 2018, requested that Dr. Wardell review the report 

of the DMA and provide a supplemental report regarding the extent of appellant’s permanent 

impairment.

In an October 24, 2018 letter, Dr. Wardell reviewed the DMA’s report and disagreed with 

his use of the DBI methodology to calculate appellant’s impairment rating. He contended that 

ROM was the preferred methodology as appellant’s loss of ROM was due to his injury and the 

distal clavicle resection. Dr. Wardell indicated that appellant developed arthrofibrosis as a result 

of the injury and the distal clavicle resection with acromioplasty. He referenced his August 30, 

2018 letter. 

On October 30, 2018 the DMA reviewed the medical record including Dr. Wardell’s 

August 30 and October 24, 2018 reports. He reiterated the findings in his September 11, 2018 

report. The DMA indicated that if OWCP continued to have concern about his opinion as to 

permanent impairment after this correspondence he recommended that appellant be referred to a 

second opinion physician.

By decision dated November 21, 2018, OWCP denied appellant’s claim for an additional 

schedule award. 
5

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing regulations5 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such 

adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.7

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).8 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX) 

condition, which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS).

9

 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to provide reasons for their 

impairment rating choices, including the choices of diagnoses from regional grids and calculations

of modifier scores.10

The A.M.A., Guides also provide that the ROM impairment method is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

DBI sections are applicable.11 If ROM is used as a stand-alone approach, the total of motion 

impairment for all units of function must be calculated. All values for the joint are measured and 

added.12 Adjustments for functional history may be made if the evaluator determines that the 

resulting impairment does not adequately reflect functional loss and functional reports are 

determined to be reliable.13

 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter

3.700.2 and Exhibit 1 (January 2010).

8 A.M.A., Guides(6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement. 

9

Id. at 494-531.

10 See R.V., Docket No. 10-1827 (issued April1, 2011). 

11 A.M.A., Guides 461. 

12 Id. at 473. 

13 Id. at 474. 
6

Regarding the application of ROM or DBI methodologies in rating permanent impairment 

of the upper extremities, FECA Bulletin No. 17-06 provides: 

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s). 

“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.,] 

Guidesidentify 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.”

14 (Emphasis in the original.) 

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 the medical adviser providing 

rationale for the percentage of impairment specified.15

ANALYSIS

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

OWCP accepted that appellant sustained an unspecified sprain of the right shoulder due to 

an April 6, 2016 employment injury. On August 2, 2017 it granted him a schedule award for 

12 percent permanent impairment of the right upper extremity. Appellant subsequently requested 

an increased schedule award, which OWCP denied on November 21, 2018. 

In a report dated August 30, 2018, Dr. Wardell, citing a July 9, 2018 FCE which included 

computerized goniometric measurements of the right shoulder, calculated a combined 25 percent 

permanent impairment of the right upper extremity. He indicated that the computerized 

goniometric measurements were performed three times with no significant difference in any of the 

three measurements. 

On September 11, 2018, Dr. Garelick serving as a DMA, reviewed Dr. Wardell’s 

August 30, 2018 report which recommended 25 percent impairment based on loss of ROM for the 

right shoulder and found no FCE dated July 9, 2018, rather one dated June 12, 2017, and no 

documentation equivocally stating that right shoulder ROM was measured more than one time

pursuant to FECA Bulletin No. 17-06. He further noted that appellant’s effort on physical 

examination was deemed unreliable on numerous portions of the FCE. Dr. Garelick opined that 

 

14 FECA Bulletin No. 17-06 (May 8, 2018); V.L., Docket No. 18-0760 (issued November 13, 2018). 

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

the ROM loss did not have an organic basis and noted that appellant was not entitled to an 

additional schedule award.

In an October 24, 2018 report, Dr. Wardell again found 25 percent permanent impairment 

of the right upper extremity using the ROM methodology. He disagreed with the use of the DBI 

methodology to calculate appellant’s impairment rating and contended that ROM was the preferred 

methodology as appellant’s loss of ROM was due to his injury and the distal clavicle resection. 

Dr. Wardell indicated that appellant developed arthrofibrosis as a result of the injury and the distal 

clavicle resection and acromioplasty. 

In accordance with OWCP’s procedures the DMA reviewed the medical record on 

October 30, 2018 and determined that a rating based upon loss of ROM was not applicable in this 

case as there was no documentation in the FCE used by Dr. Wardell equivocally stating that right 

shoulder ROM was measured more than once pursuant to FECA Bulletin No. 17-06. He opined 

that using the DBI rating method, appellant had 12 percent permanent impairment of the right 

upper extremity due to the diagnosis of distal clavicle resection under Table 15-5 on page 405. He 

further recommended that appellant be referred to a second opinion physician if further 

clarification was required.

The Board finds that OWCP has not properly developed the medical evidence pursuant to 

FECA Bulletin No. 17-06, which requires that it should instruct an evaluating physician to obtain 

three independent measurements of ROM loss, if they have not been provided into the record.16 It 

was incumbent upon the DMA, when performing the ratings under both the ROM and DBI 

methods to obtain the necessary ROM measurements to complete the full rating if they were found 

not to exist in the medical record.

17

If, as in this case, Dr. Wardell does not provide the requested information OWCP shall 

refer appellant for a second opinion examination to obtain the necessary ROM measurements as 

outlined in FECA Bulletin No. 17-06 and the A.M.A., Guides. Only after proper development of 

the medical record should the case record be rerouted to the DMA for a review of the attending 

physician’s rating of permanent impairment. After such further development as is deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

 

16 V.H., Docket No. 18-0848 (issued February 25, 2019); T.R., Docket No. 17-1961 (issued December 20, 2018).

17 See M.D., Docket No. 18-1073 (issued January 18, 2019) (finding that a DMA should advise as to the medical 

evidence necessary to complete the ROM method of rating if the medical evidence of record is insufficient to rate 

appellant’s impairment using loss of ROM).
8

ORDER

IT IS HEREBY ORDERED THAT the November 21, 2018 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: October 1, 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