United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.B., Appellant

and

DEPARTMENT OF THE ARMY, CORPUS 

CHRISTI ARMY DEPOT, Corpus Christi, TX, 

Employer

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Docket No. 18-1308

Issued: January 10, 2019

Appearances: Case Submitted on the Record

Randy Wilson, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2018 appellant, through his representative, filed a timely appeal from a 

February 2, 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 his burden of proof to establish more than 13 percent 

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

award compensation.

FACTUAL HISTORY

On May 18, 2009 appellant, then a 62-year-old material expediter, filed a traumatic injury 

claim (Form CA-1) alleging that, on May 12, 2009, he injured his left shoulder in the performance 

of duty. OWCP accepted the claim, assigned File No. xxxxxx812, for a sprain of the left shoulder 

and upper arm at the rotator cuff, a disorder of the bursae and tendons of the left shoulder, and a 

left shoulder and upper arm sprain.

OWCP had previously accepted that appellant sustained a crush injury to the fingers of his 

left hand under File No. xxxxxx259. By decision dated July 10, 2003, it granted him a schedule 

award for six percent permanent impairment of the left upper extremity due to the crush injury to 

his left fingers under File No. xxxxxx259.3

In a June 2, 2011 report, Dr. Charles W. Breckenridge, a Board-certified orthopedic 

surgeon, diagnosed status post repeat left shoulder rotator cuff repairs. He opined that appellant 

had five percent permanent impairment of the left upper extremity using Table 15-5 on page 403 

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

Impairment (A.M.A., Guides).4

An OWCP district medical adviser (DMA) reviewed the evidence on July 1, 2011. He 

identified the diagnosis as a class one full-thickness tear of the rotator cuff, which yielded a default 

value of five percent according to Table 15-5 on page 403 of the A.M.A., Guides. OWCP’s

medical adviser applied grade modifiers and concluded that appellant had seven percent permanent 

impairment of the left upper extremity.

By decision dated August 11, 2011, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the left upper extremity. The period of the award ran for 21.84 

weeks from June 13 to November 12, 2011. 

In a report dated July 28, 2016, Dr. T. Bradley Edwards, a Board-certified orthopedic 

surgeon, opined that appellant had 22 percent permanent impairment of the left upper extremity 

due to reduced shoulder motion. 

Dr. Herbert White, Jr, an occupational medicine specialist serving as a DMA, reviewed the 

evidence and submitted a report dated October 3, 2016. He found that Dr. Edwards failed to 

 

3 The record also contains a September 24, 1998 decision granting appellant a schedule award for six percent 

permanent impairment of the left arm under OWCP File No. xxxxxx443. That claim has been retired and is not 

currently accessible. 

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

measure appellant’s range of motion of the shoulder three times as required under the A.M.A., 

Guides and that his report was thus insufficient to support a permanent impairment rating.

OWCP, on October 17, 2016, referred appellant to Dr. James E. Butler, III, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the extent of any 

permanent impairment of the left upper extremity. 

In a November 30, 2016 impairment evaluation, Dr. Butler discussed appellant’s 

complaints of pain, weakness, tingling, and numbness in his left arm. He measured range of 

motion for his left shoulder three times and found 110 degrees flexion, 30 degrees extension, 100 

degrees abduction, 40 degrees adduction, 60 degrees internal rotation, and 60 degrees external 

rotation. Dr. Butler diagnosed a left shoulder sprain, rotator cuff tear, labral tear, impingement 

syndrome, joint arthrosis of the acromioclavicular (AC) joint, and status post two rotator cuff tears 

with distal clavicle resections. He indicated that he was rating appellant’s impairment using the 

diagnosis-based impairment (DBI) methodology rather than range of motion (ROM) methodology 

due to inconsistencies between his measurements and the measurements previously obtained by

Dr. Edwards. Dr. Butler identified the diagnosis as a class 1 left shoulder sprain, rotator cuff 

tear/labral tear, impingement syndrome, AC joint arthrosis, and status post rotator cuff repair, and 

distal clavicle resection using Table 15-5 on page 403, which yielded a default value of 10 percent. 

He applied grade modifiers and concluded that appellant had 12 percent permanent impairment of 

the left upper extremity.

Dr. White reviewed the evidence on December 27, 2016 and noted that the DBI method 

was “the preferred method for calculating impairments of the upper extremity” under the A.M.A., 

Guides. He identified the diagnosis using Table 15-5, the shoulder regional grid, as a class 1 distal 

clavicle resection, which yielded a default value of 10 percent. Dr. White adjusted the permanent 

impairment rating to 12 percent after applying grade modifiers.

By decision dated March 8, 2017, OWCP found that appellant had not established that he 

was entitled to an increased schedule award. It noted that the evidence demonstrated that he had 

12 percent permanent impairment of the left upper extremity, which was less than the previous 

awards that totaled 13 percent permanent impairment.

In an August 2, 2017 report, Dr. Edwards reviewed appellant’s history of injury treated 

with multiple shoulder surgeries. He diagnosed a left rotator cuff tear. Dr. Edwards provided grip 

strength measurements on the left and the results of bilateral manual muscle testing for the 

shoulders, elbows, and wrists. He measured range of motion for the left shoulder. Dr. Edwards 

opined that appellant had 11 percent permanent impairment of the left upper extremity due to loss 

of range of motion of the shoulder utilizing the ROM methodology. 

Appellant, on December 4, 2017, requested reconsideration. 

By decision dated February 2, 2018, OWCP denied modification of its March 8, 2018 

decision. It found that Dr. Edwards’ report was not probative as he did not indicate that he had 

used the sixth edition of the A.M.A., Guides and did not provide three separate range of motion 

measurements for the left shoulder. OWCP further noted that Dr. Edwards’ permanent impairment 
4

rating was less than that previously awarded to appellant, and thus was insufficient to support a 

greater schedule award.

On appeal appellant questions why OWCP combined a schedule award for a smashed 

finger with his shoulder award. He notes that he had a prosthetic right arm and thus performs all 

activities with his left upper extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,

6

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. 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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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 

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

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 OWCP 

procedures provide that, after obtaining all necessary medical evidence, the file should be routed 

to a DMA for an opinion concerning the nature and percentage of impairment in accordance with 

the A.M.A., Guides, with the DMA providing rationale for the percentage of permanent 

impairment specified.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 

diagnosis-based 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 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8 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). 

9 A.M.A., Guides 411.

10 See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f (March 2017).

11 A.M.A., Guides 461.

12 Id. at 473.
5

determines that the resulting impairment does not adequately reflect functional loss and functional 

reports are determined to be reliable.13

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.,] 

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.”

14 (Emphasis in the original.)

ANALYSIS

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

OWCP accepted that appellant sustained a sprain of the left shoulder and upper arm at the 

rotator cuff, a left shoulder and upper arm sprain, and a disorder of the bursae and tendons of the 

left shoulder due to a May 12, 2009 employment injury under File No. xxxxxx812. It had 

previously accepted a crush injury to the fingers of appellant’s left hand under File No. xxxxxx259, 

and, on July 10, 2003, granted him a schedule award for six percent permanent impairment of the 

left upper extremity as a result of the crush injury. 

By decision dated August 11, 2011, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the left upper extremity due to his left rotator cuff tear. Appellant

subsequently requested an increased schedule award, which OWCP denied on March 8, 2017. 

Appellant requested reconsideration and submitted an August 2, 2017 report from

Dr. Edwards. Dr. Edward provided findings on examination, including range of motion 

measurements for the left shoulder. He determined that appellant had 11 percent permanent 

impairment of the left upper extremity due to loss of range of motion of the shoulder. OWCP 

denied the claim as Dr. Edward had not provided three range of motion measurements as required 

by the A.M.A., Guides and as he did not reference the provisions of the A.M.A., Guides in reaching 

his impairment determination. It further found that Dr. Edwards’ report did not demonstrate that 

 

13 Id. at 474.

14 FECA Bulletin No. 17-06 (issued May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018).
6

appellant had more than 13 percent permanent left upper extremity impairment for which he had 

previously received schedule awards. 

The Board finds that OWCP did not follow the procedures outlined in FECA Bulletin 

No. 17-06. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining 

sufficient evidence to conduct a complete impairment evaluation.15 It indicates that, if the rating 

physician provides an assessment using the ROM method, the DMA should independently 

calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA 

Bulletin No. 17-06 further provides that the evaluator should obtain three independent 

measurements for range of motion and that the greatest measurement should be used to determine 

the extent of impairment.16 FECA Bulletin No. 17-06 indicates that OWCP should instruct the 

physician to obtain three independent measurements.17

As OWCP did not inform Dr. Edwards of the provisions of FECA Bulletin No. 17-06 and 

attempt to obtain a supplemental report containing three independent measurements of range of 

motion in accordance with the procedures set forth in the A.M.A., Guides and FECA Bulletin No. 

17-06, the Board will remand the case for OWCP to obtain the evidence necessary to complete the 

rating as described above.18 Following this and such further development as deemed necessary, 

OWCP shall issue a de novo decision.

On appeal appellant contends that the schedule award he received for his smashed finger 

should not be included in rating his shoulder impairment. OWCP regulations provide that benefits 

payable under section 8107(c) shall be reduced by the period of compensation paid under the 

schedule for an earlier injury if: “(1) compensation in both cases is for impairment of the same 

member or function or different parts of the same member or function; and (2) OWCP finds that 

the later impairment in whole or in part would duplicate the compensation payable for the 

preexisting impairment.”

19

OWCP determined that Dr. Edward’s finding of 11 percent permanent impairment of the 

left upper extremity was insufficient to support an increased schedule award as it was less than the 

previously awarded 13 percent left upper extremity impairment. Appellant previously received a 

schedule award for six percent permanent impairment of the left upper extremity as a result of a 

crush injury to the fingers of his left hand under File No. xxxxxx259. He also received a schedule 

award in 2011 for seven percent permanent impairment of the left upper extremity due to his rotator 

cuff injury. The Board finds that OWCP did not explain why appellant’s current impairment rating 

for the shoulder duplicated his previous schedule award compensation, in particular the rating 

issued for his crushed finger. The Board has explained that simply comparing the prior percentage 

 

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

16 Id.

17 Id. 

18 See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued 

September 11, 2018).

19 20 C.F.R. § 10.404(d); see also A.T., Docket No. 17-1806 (issued January 12, 2018).
7

of impairment awarded to the current impairment for the same member is not always sufficient.20 

The issue is not whether the current impairment rating is greater than the prior impairment ratings,

but whether it duplicates in whole or in part the prior impairment rating.21 On remand, after 

properly calculating the extent of appellant’s current left upper extremity impairment, OWCP

should determine whether the impairment rating duplicates, in whole or in part, appellant’s prior 

award.22 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the February 2, 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: January 10, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 See T.S., Docket No. 16-1406 (issued August 9, 2017).

21 Id.

22 See J.V., Docket No. 17-1766 (issued April 3, 2018).