United States Department of Labor

Employees’ Compensation Appeals Board

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Z.L.

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer

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Docket No. 18-0850

Issued: October 29, 2019

Appearances: Case Submitted on the Record

Leah Bachmeyer Kille, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

On March 13, 2018 appellant, through counsel, filed a timely appeal from a September 28, 

2017 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.

ISSUE

The issue is whether appellant has met her burden of proof to establish greater than 12 

percent permanent impairment of the left upper extremity and 5 percent permanent impairment of 

the right upper extremity, for which she previously received schedule award compensation.

 

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

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On February 15, 2007 appellant, then a 43-year-old window clerk, filed a notice of 

occupational disease claim (Form CA-2) alleging that she sustained a bilateral shoulder injury due 

to factors of her federal employment including repetitive motion. OWCP accepted the claim for 

bilateral sprains of shoulders, upper arms, and rotator cuff. It authorized a surgical arthroscopy of 

the right shoulder on February 7, 2007 and May 21, 2008 and the left shoulder on August 15, 2007

and September 26, 2008. 

On June 9, 2014 appellant filed a claim for a schedule award (Form CA-7). 

In a December 23, 2013 report, Dr. Michael J. Platto, a Board-certified physiatrist, 

indicated that appellant was seen that day for an impairment rating evaluation. He determined that 

she had reached maximum medical improvement (MMI) for her accepted condition and conducted 

a physical examination, including obtaining a QuickDASH score of 83.33. Dr. Platto noted

tenderness to palpation in the bilateral upper trapezius muscles and bilateral biceps tendons; motor 

strength was 5/5 in both upper extremities; sensation was intact; and deep tendon reflexes were 

absent in the upper extremities. He noted that active range of motion (ROM) measurements were 

done on three successive trials for each shoulder. Left shoulder flexion was 91, 90, and 83 degrees, 

extension 27, 30, and 20 degrees, abduction 71, 75, and 78 degrees, adduction 12, 25, and 27 

degrees, internal rotation 90 degrees on first trial, and external rotation 88 degrees on first trial. 

Right shoulder flexion was 112, 108, and 67 degrees, extension 35, 30, and 33 degrees, abduction 

92, 75, and 80 degrees, adduction 18, 25, and 23 degrees, internal rotation 47, 45, and 47 degrees 

on first trial, and external rotation 90 degrees on successive trials. Utilizing the sixth edition of 

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

Guides),

4 Dr. Platto explained that he used the ROM methodology for rating permanent 

impairment because appellant had ROM deficits. Under Table 15-34, page 475, he used the 

maximum obtained ROM for each range and found that appellant had 13 percent permanent 

impairment of the left upper extremity and 12 percent permanent impairment of the right upper 

extremity. 

On April 7, 2015 Dr. Morley Slutsky, Board-certified in occupational medicine serving as 

a district medical adviser (DMA), reviewed the medical evidence of record and determined that 

appellant’s date of MMI was December 23, 2013, the date of Dr. Platto’s impairment examination. 

The DMA found, however, that Dr. Platto’s measurements did not represent appellant’s best effort. 

He therefore rated appellant’s impairment using the “preferred” diagnosis-based impairment (DBI) 

method, whereas Dr. Platto had used the less-preferred ROM method. Regarding her left shoulder,

the DMA found that her most impairing diagnosis was acromioclavicular joint disease status post 

distal clavicle excision, which was a class of diagnosis (CDX) of 1. He assigned a grade modifier 

 

3 Docket No. 15-0117 (issued March 4, 2015).

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

of 2 for physical examination (GMPE) because there was tenderness to palpation. The DMA found 

that Dr. Platto’s ROM measurements were inconsistent with the best effort by appellant and no 

other objective deficits were documented. He further found that her QuickDASH score of 83.3 

was equal to a grade modifier of 4 for functional history (GMFH) and exceeded the GMPE by 2, 

as such the GMFH was not used because it was unreliable. The DMA assigned a grade modifier 

of 4 for clinical studies (GMCS). Using the net adjustment formula (GMFH - CDX) + (GMPE -

CDX) + (GMCS - CDX), he calculated that appellant had a net adjustment of (n/a) + (2-1) + (4-1) 

= 4, equaling a grade E. Based on these calculations, the DMA concluded that she had 12 percent 

permanent impairment of the left upper extremity. 

Regarding appellant’s right shoulder, the DMA found that her most impairing diagnosis 

was full thickness rotator cuff tear with residual dysfunction, which was a CDX of 1. He assigned 

a GMPE of 2 because there was tenderness to palpation for moderate underlying pathology. The 

DMA again noted that Dr. Platto’s ROM measurements were inconsistent. He noted the

QuickDASH score equated to a GMFH of 4 and exceeded the GMPE by 2, and as such the GMFH 

was not used because it was unreliable. The DMA assigned a GMCS of 2. Using the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that 

appellant had a net adjustment of (n/a) + (2-1) + (2-1) = 2, equaling a grade E. Based on these 

calculations, the DMA concluded that she had seven percent permanent impairment of the right

upper extremity. 

By decision dated April 27, 2015, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the left upper extremity and 7 percent permanent impairment of 

the right upper extremity. The award ran for 59.28 weeks for the period December 23, 2013 to 

February 10, 2015. 

On April 25, 2016 appellant requested reconsideration. On April 26, 2016 appellant, 

through counsel, again requested reconsideration.

In a March 29, 2016 report, Dr. David P. Fowler, a Board-certified orthopedic surgeon, 

noted that he had treated appellant in 2007 for her right rotator cuff.

On July 7, 2016 the DMA reviewed the medical evidence and revised his rating using the 

diagnosis of a full thickness rotator cuff tear to a partial thickness rotator cuff tear with residual 

findings based on the 2007 surgery and a 2012 magnetic resonance imaging (MRI) scan of the 

right shoulder which demonstrated “central cuff partial tear” and a “delaminating articular surface 

partial tear of infraspinatus with insertional hypertrophic edematous tendinopathy.” He revised 

his rating to find that appellant had five percent permanent impairment of the right upper extremity. 

OWCP requested that the DMA provide a supplemental report due to an error in the 

statement of accepted facts he had been provided. In an August 2, 2016 report, the DMA explained 

that he was not initially provided with the right shoulder surgical reports and he subsequently 

reviewed the surgery reports, as well as the 2012 MRI scan, which was performed postsurgery. 

He reiterated his opinion that appellant had only five percent permanent impairment of the right 

upper extremity based on his most impairing diagnosis of partial thickness rotator cuff tear with 

residual findings. 
4

By decision dated September 22, 2016, OWCP denied modification of its prior schedule 

award decision. It further found that appellant had a decrease of two percent permanent 

impairment of the right upper extremity and, therefore, the claim would be reviewed to determine 

if there had been an overpayment of compensation due to the prior schedule award.5 

On July 11, 2017 appellant, through counsel, requested reconsideration. 

In an April 19, 2017 report, Dr. Platto indicated that he disagreed with the DMA’s

impairment rating. He indicated that the ROM method was the “preferred” method, not the DBI 

method used by the DMA, “because [he] was referred to it by the DBI grid.” Dr. Platto also 

indicated that he closely followed procedures for rating impairment set forth in the A.M.A., 

Guides, page 464, where it provides that ROM should be measured at least three times. Finally,

he argued that his use of the QuickDASH score was appropriate and explained the source cited by

the DMA, page 406, of the A.M.A., Guides was appropriate only for the DBI method, not the 

ROM method which he had utilized. 

By decision dated September 28, 2017, OWCP denied modification of its September 22, 

2016 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,6 and its implementing federal regulations,7 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.8 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.9

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

impairment CDX condition, which is then adjusted by grade modifiers of GMFH, GMPE, and 

GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 

 

5 By decision dated December 28, 2016, OWCP found that appellant received a $5,046.61 overpayment due to 

schedule award payments that were in error. It found that she was without fault in the creation of the overpayment, 

but denied waiver of recovery because her monthly income exceeded her monthly living expenses. 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 

(March 2017).

10 L.T., Docket No. 18-1031 (issued March 5, 2019); A.M.A., Guides 383-492.

11 A.M.A., Guides 411.
5

OWCP’s procedures provide that, after obtaining all necessary medical evidence, that file should 

be routed to a DMA for an opinion concerning the nature and percentage of permanent impairment 

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

the permanent impairment specified.12

The A.M.A., Guides also provides that the ROM impairment method of calculating 

permanent functional impairment 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. 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 combined.13 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.14

Regarding the application of the 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.”

15

 (Emphasis in the original.) 

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. 

 

12 R.B., Docket No. 18-1308 (issued January 10, 2019); P.R., Docket No. 18-0022 (issued April9, 2018); supra

note 9at Chapter 2.808.6f (March 2017).

13 A.M.A., Guides 473.

14 Id. at 473-74.

15 FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket 

No. 18-0329 (issued July 26, 2018). 
6

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

16

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 the medical adviser providing 

rationale for the percentage of impairment specified.17

ANALYSIS

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

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

sufficient evidence to conduct a complete impairment evaluation.18 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 ROM of each affected body part and that the greatest measurement should be 

used to determine the extent of impairment.19 FECA Bulletin No. 17-06 further indicates that 

OWCP should instruct the physician to obtain three independent measurements.20

Appellant’s attending physician provided an impairment rating report in which he relied 

upon the ROM methodology in finding 13 percent permanent impairment of the left upper

extremity and 12 percent permanent impairment of the right upper extremity. OWCP then properly 

routed the case record to Dr. Slutsky, serving as a DMA, who determined that the ROM 

measurements obtained by Dr. Platto were inconsistent and therefore could not be used. As such, 

the DMA rated permanent impairment utilizing only the DBI method without requesting additional 

physical examination findings. Upon notification that the ROM measurements were inconsistent, 

OWCP did not request nor obtain a supplemental report from Dr. Platto or a second opinion 

physician.21

As OWCP did not obtain a supplemental report from the attending physician, Dr. Platto, 

or schedule a second opinion evaluation to obtain the necessary ROM measurements required for 

rating impairment in accordance with the procedures set forth in the A.M.A., Guides and FECA 

 

16 Id.

17 L.T., supra note 10; B.R., Docket No. 17-0294 (issued May 11, 2018).

18 Id.

19 Id.

20 Id.

21 See supra note 17.
7

Bulletin No. 17-06, the case must be remanded to OWCP for further development. On remand it 

shall obtain the evidence necessary to complete the rating as prescribed in FECA Bulletin No. 

17-06, including calculation under both ROM and DBI methodologies with an award based upon 

the higher rating.

22

 Following this such further development as deemed necessary, OWCP shall 

issue a de novo decision. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 28, 2017 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: October 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

22 R.B., supra note 11; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued 

September 12, 2018).