United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.S., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, Houston, TX 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0766

Issued: December 23, 2019

Appearances: Case Submitted on the Record

Leah B. Kille, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 25, 2019 appellant, through counsel, filed a timely appeal from a 

September 13, 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 15 percent 

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

award.

FACTUAL HISTORY

On August 24, 2011 appellant, then a 44-year-old special agent, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a neck and right shoulder injury on that date during 

a training exercise while he was practicing baton strikes in an upward overhead motion. By 

decision dated April 9, 2012, OWCP accepted the claim for right rotator cuff sprain of shoulder 

and upper arm and right supraspinatus sprain of shoulder and upper arm. It paid appellant wageloss compensation on the periodic rolls from May 6, 2012 through May 30, 2015. Appellant

underwent OWCP-authorized right shoulder surgery on April 26, 2012, June 7, 2013, and 

June 27, 2014.

On June 21, 2017 appellant filed a claim for a schedule award (Form CA-7).

In support of his claim, appellant submitted an April 6, 2017 permanent impairment 

evaluation from Dr. M. Stephen Wilson, a treating orthopedic surgeon. Dr. Wilson reported that 

appellant sustained a large full-thickness, near full-width tear of the supraspinatus tendon as a 

result of his work-related injury. He noted status post an April 26, 2012 right shoulder arthroscopic 

subacromial decompression, mini-open right rotator cuff repair (supraspinatus and infraspinatus),

and insertion of biodefense patch, status post a June 7, 2013 right shoulder arthroscopy with 

synovectomy and mini-open massive rotator cuff repair with ArthroFlex dermal matrix and 

insertion of biodefense patch, and status post a June 27, 2014 open incision and debridement of 

the right shoulder. Dr. Wilson determined that appellant had reached maximum medical 

improvement (MMI).

In accordance with the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides),3 Dr. Wilson provided range of motion 

(ROM) findings based on three measurements and calculated 26 percent right upper extremity 

permanent impairment using the ROM methodology. In order to establish accurate ROM

measurements for the affected extremity, he explained that active ROM of the affected limb, as 

well as passive ROM of the affected limb and active ROM of the unaffected limb had been 

considered in the performance of his rating examination.

Under Table 15-34,4shoulder ROM, Dr. Wilson found that 120 degrees of flexion yielded 

three percent permanent impairment, 30 degrees of extension yielded one percent permanent 

impairment, 110 degrees of abduction yielded three percent impairment, 30 degrees of adduction 

yielded two percent impairment, 10 degrees of internal rotation yielded eight percent impairment, 

and 20 degrees of external rotation yielded nine percent impairment. He added those impairment 

 

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

4

Id. at 475.
3

ratings to conclude that appellant had 26 percent permanent impairment of the right upper 

extremity. Dr. Wilson found that, under Table 15-36,5a functional history grade adjustment was 

not necessary and appellant remained at 26 percent permanent impairment of the right upper 

extremity due to his right shoulder injury. He concluded that the ROM methodology should be 

used in providing appellant’s impairment rating.

On July 3, 2017 OWCP routed Dr. Wilson’s report, a statement of accepted facts and the 

case file to Dr. David H. Garelick, a Board-certified orthopedic surgeon serving as an OWCP 

district medical adviser (DMA), for an opinion on the date of MMI and permanent impairment of 

the right upper extremity in accordance with the A.M.A., Guides.

In a July 7, 2017 report, Dr. Garelick reviewed the medical evidence of record and 

determined that MMI was reached on April 6, 2017, the date of Dr. Wilson’s examination. He 

reported that under the diagnosis-based impairment (DBI) methodology for a rotator cuff tear with 

residual loss, the most that appellant could be awarded was seven percent permanent impairment 

of the right upper extremity.6 Thus, Dr. Garelick concluded that the ROM methodology should be 

used because it provided the higher impairment rating. He used Dr. Wilson’s impairment findings 

and found, under Table 15-34, that appellant had 15 percent permanent impairment of the right 

upper extremity based on the ROM methodology.7 Dr. Garelick indicated that the discrepancy

between his calculations and Dr. Wilson’s was due to misapplication of the impairment values 

under Table 15-34, specifically noting the difference in impairment values provided by Dr. Wilson 

for external and internal rotation of the shoulders. He found that 120 degrees of flexion yielded 

three percent permanent impairment, 30 degrees of extension yielded one percent permanent 

impairment, 110 degrees of abduction yielded three percent permanent impairment, 30 degrees of 

adduction yielded two percent permanent impairment, 10 degrees of internal rotation yielded four 

percent permanent impairment, and 20 degrees of external rotation yielded two percent permanent

impairment, for a total 15 percent permanent impairment of the right upper extremity. Dr. Garelick

reported that Dr. Wilson incorrectly assigned eight percent permanent impairment for 10 degrees 

of internal rotation and nine percent permanent impairment for 20 degrees of external rotation. He

concluded that appellant had 15 percent total right upper extremity permanent impairment based 

on the ROM methodology which yielded the greatest impairment.

In an April 25, 2018 medical report, Dr. Wilson reviewed Dr. Garelick’s July 7, 2017 

report and disagreed with his impairment rating. He explained that Table 15-348 of the A.M.A., 

Guides left open for interpretation the percentages for internal and external shoulder rotation as 

each motion was based upon the motion of the other. Dr. Wilson reported that appellant was 

severely limited on both internal and external motions which rendered it difficult to determine an 

actual percentage of impairment as there had to be some extrapolation of numbers since Table 15-

34 only provided percentages based on the opposite motion. He noted that, according to Table 15-

34, appellant’s 10 degrees internal ROM should be eight percent because his external ROM was 

 

5

Id. at 477.

6

Id. at 403, Table 15-5.

7 Supra note 4.

8

Id.
4

20 degrees. Dr. Wilson reported that the 20 degrees external ROM was not even noted as a 

possibility as the 10 degrees internal ROM was not an option with which to determine his external 

motion percentages. Therefore, he determined that the highest impairment rating should be used 

as the default. Dr. Wilson disagreed with Dr. Garelick’s impairment rating four percent for 

internal rotation and two percent for external rotation. He explained that these numbers could not 

be correct as appellant’s internal rotation was not between 40 to 50 degrees which would be 

necessary for his external rotation to amount to four percent permanent impairment. Furthermore,

Dr. Wilson asserted that appellant’s 20 degrees of external rotation would result in an eight percent 

permanent impairment for internal rotation. As such, he concluded that his 26 percent rating for 

permanent impairment of the upper right extremity remained unchanged.

In a September 9, 2018 medical report, DMA Dr. Garelick reviewed Dr. Wilson’s 

supplemental April 25, 2018 report and disagreed with his interpretation of the A.M.A., Guides.

In accordance with Table 15-34, he argued that 20 degrees of external rotation was classified under 

a grade 1 modifier as it was between 50 degrees of external rotation to 30 degrees of internal 

rotation. As such, Dr. Garelick opined that two percent permanent impairment should be awarded 

for this deficiency. He further stated that 10 degrees of internal rotation was classified as a grade 

2 modifier which falls between the 10 degrees of external rotation to 40 degrees of internal rotation, 

amounting to four percent permanent impairment. Dr. Garelick concluded that his opinion 

remained unchanged and appellant should only be awarded 15 percent permanent impairment of 

the right upper extremity.

By decision dated September 13, 2018, OWCP granted appellant a schedule award for “15

percent permanent partial impairment of the right upper extremity (arm).” The date of MMI was 

noted as April 6, 2017 and the period of award ran from April 6, 2017 to February 27, 2018. It 

found that the weight of the medical evidence regarding the percentage of permanent impairment 

rested with Dr. Garelick, serving as the DMA, as he had correctly applied the A.M.A., Guides to 

the examination findings.

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.9 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 

 

9 5 U.S.C. § 8107; 20 C.F.R. § 10.404.
5

standard for evaluating schedule losses.10 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).11 

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).12 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13

The A.M.A., Guides also provide that ROM impairment methodology 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.14 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.15 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.16

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.17 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 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.

18

 (Emphasis in the original.)

 

10 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).

11 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 & Permanent Disability Claims, 

Chapter 2.808.5 (March 2017). 

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

13 Id. at 411.

14 Id. at 461.

15 Id. at 473.

16 Id. at 474.

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

18 A.M.A., Guides 477.
6

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.”

19

OWCP’s 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.20

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.21 This is called an impartial medical examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.22 When there exist opposing medical reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.23

ANALYSIS

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

In support of his claim, appellant submitted permanent impairment evaluation reports dated 

April 6, 2017 and April 25, 2018 from Dr. Wilson, his treating physician. Utilizing the ROM 

methodology, Dr. Wilson opined that appellant sustained 26 percent permanent impairment of the 

upper right extremity. Consistent with its procedures,24 OWCP referred the matter to a DMA for 

an opinion regarding appellant’s permanent impairment in accordance with the A.M.A., Guides.

Dr. Garelick, serving as the DMA, reviewed the reports of Dr. Wilson and determined that the 

ROM methodology produced the higher rating. However, he disagreed with Dr. Wilson’s

 

19 V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018); supra 

note 17.

20 See supra note 11 at Chapter 2.808.6(f) (March 2017).

21 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

22 20 C.F.R. § 10.321.

23 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

24 Id.
7

impairment rating and found that appellant only sustained 15 percent permanent impairment of the 

right upper extremity based on the ROM methodology.

The primary diversion in the physicians’ application of Table 15-34 relates to a rating for 

shoulder internal and external rotation. Dr. Wilson assigned eight percent permanent impairment 

for 10 degrees of internal rotation and nine percent permanent impairment for 20 degrees of 

external rotation. The DMA, however, assigned four percent permanent impairment for 10 degrees 

of internal rotation and two percent permanent impairment for 20 degrees of external rotation. As 

both physicians applied the Table 15-34 of the A.M.A., Guides, but calculated divergent 

permanent impairment ratings, the Board finds that there is a conflict in the medical opinion 

evidence requiring referral to an impartial medical examiner pursuant to 5 U.S.C. § 8123(a).25

The Board will therefore remand the case to OWCP for referral to an impartial medical 

examiner to resolve the conflict in medical opinion as to the extent of appellant’s right upper 

extremity permanent impairment.26 Following this and any 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. 

 

25 Supra note 21.

26 Supra note 22.
8

ORDER

IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of 

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

consistent with this opinion. 

Issued: December 23, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board