United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Washington, DC, Employer

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Docket No. 18-1073

Issued: January 18, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 1, 2018 appellant filed a timely appeal from an April 13, 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 more than 12 percent permanent impairment of the right 

upper extremity, for which he previously received a schedule award.

 

1 5 U.S.C. § 8101 et. seq.
2

FACTUAL HISTORY

This case has previously been before the Board.

2

 The facts and circumstances as set forth 

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

are set forth below.

On January 29, 2015 appellant, then a 40-year-old internal revenue agent, filed an 

occupational disease claim (Form CA-2) alleging that on October 3, 2014 he first became aware 

of his right rotator cuff injury and first realized that his condition was caused by his federal 

employment. He claimed that, while he was assembling documents for review he felt a very sharp 

pain go through his right shoulder while using a hole puncher to perforate case file documents.

OWCP accepted the claim for sprain of the right shoulder and upper arm;

acromioclavicular (AC) and disorder of the bursae and tendons in the right shoulder region, 

unspecified; complete right rotator cuff rupture; and right brachial neuritis or radiculitis, not 

otherwise specified. It authorized a right shoulder arthroscopy with subacromial decompression 

and distal clavicle resection which was performed on July 7, 2015 by Dr. Steven H. Bernstein, an 

attending Board-certified orthopedic surgeon. OWCP paid wage-loss compensation benefits on 

the periodic rolls. 

Appellant returned to full-time work with restrictions on June 18, 2016.

On June 28, 2016 appellant filed a claim for a schedule award (Form CA-7).

In support of his schedule award claim, appellant submitted a June 17, 2016 report from

Dr. Bernstein in which he noted that appellant had been evaluated on June 15, 2016. On physical 

examination Dr. Bernstein utilized the diagnosis-based impairment (DBI) methodology to 

determine the degree of permanent impairment. He indicated that, in accordance with Table 15-

5, page 402 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),3appellant’s rotator cuff contusion with impingement 

and residual loss, equated to five percent permanent impairment of the right upper extremity. 

Dr. Bernstein further indicated that an AC joint injury/disease equated to eight percent upper 

extremity permanent impairment. Utilizing the Combined Values Chart on page 604, he calculated 

13 percent permanent impairment of the right upper extremity and 8 percent whole person

impairment. Dr. Bernstein awarded an additional four percent impairment each for pain,

weakness, and loss of endurance and function. He found no additional impairment for atrophy.

Dr. Bernstein concluded that appellant had a combined 29 percent total right upper extremity 

permanent impairment. 

On July 21, 2016 Dr. Jovito Estaris, Board-certified in occupational medicine, acting as an 

OWCP district medical adviser (DMA) reviewed the medical record, including Dr. Bernstein’s 

report. He noted appellant’s diagnoses of impingement syndrome and AC disease. The DMA 

used the range of motion (ROM) method. He referenced Dr. Bernstein’s ROM measurements and 

 

2 Docket No. 17-1424 (issued October 25, 2017).

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

applied Table 15-34, page 475 of the A.M.A., Guides. The DMA found 3 percent impairment 

each for flexion and abduction, no impairment for external rotation, and 4 percent impairment for 

internal rotation, totaling 10 percent impairment. He assigned a grade modifier 1 for loss of ROM

under Table 15-35, page 477. The DMA found a grade modifier 1 for decreased total ROM

according to Table 15-36, page 477. He assigned a grade modifier 2 for functional history for pain 

with normal activity based on Table 15-7, page 406. The DMA then calculated 10.5 percent

permanent impairment of the right upper extremity which was rounded up to 11 percent. He 

explained that his impairment rating was markedly lower than Dr. Bernstein’s impairment rating 

because Dr. Bernstein had rated two diagnoses under the DBI method and had combined the 

impairment ratings. The DMA referenced page 387 of the A.M.A., Guides, which directed that, 

if a patient had two significant diagnoses, the examiner should use the diagnosis with the highest 

causally-related impairment for the impairment calculation. He also noted that Dr. Bernstein 

awarded additional impairment ratings for pain, weakness, and loss of endurance and function 

which was not acceptable under the sixth edition of the A.M.A., Guides. The DMA determined 

that appellant had reached maximum medical improvement (MMI) on June 17, 2016, the date of

Dr. Bernstein’s evaluation.

OWCP, by letter August 4, 2016, requested that appellant obtain a supplemental report 

from Dr. Bernstein regarding the extent of his permanent impairment based on the physician’s 

review of the DMA’s report.

In an August 19, 2016 letter, Dr. Bernstein reviewed the DMA’s report and disagreed with 

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

this methodology was inappropriate and inadequate as it failed to capture the degree of appellant’s 

pain, difficulty, and impairment. Dr. Bernstein restated his prior finding that appellant had 29 

percent right arm impairment.

The DMA, on September 20, 2016, reviewed Dr. Bernstein’s August 19, 2016 report. He

reiterated why his use of the ROM methodology to calculate appellant’s impairment rating was

more appropriate under the A.M.A., Guides. The DMA also restated why Dr. Bernstein’s

impairment rating was not acceptable under the A.M.A., Guides.

By decision dated October 4, 2016, OWCP granted appellant a schedule award for 11

percent permanent impairment of the right upper extremity, based on the opinion of the DMA.

The period of the award ran from June 18, 2016 to February 13, 2017.4

On November 4, 2016 appellant requested reconsideration.

By decision dated February 2, 2017, OWCP reviewed the merits of appellant’s claim and 

denied modification of its October 4, 2016 decision. It found that the weight of the medical 

evidence remained with the DMA’s opinion.

 

4 On November 30, 2016 appellant accepted a lump-sum payment of the schedule award.
4

Appellant appealed to the Board on June 15, 2017. By decision dated October 25, 2017, 

the Board set aside the February 2, 2017 decision.

5

 The Board found that OWCP had 

inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the DBI 

or ROM methodology in assessing the extent of permanent impairment. The Board remanded the 

case for OWCP to issue a de novo decision after development of a consistent method for 

calculating permanent impairment of the upper extremities.6

Following remand, on December 11, 2017 OWCP requested that appellant submit an 

additional report from Dr. Bernstein including a review of a newly prepared the statement of 

accepted facts (SOAF) and an evaluation of his prior impairment rating based on the reprinted 

2009 sixth edition A.M.A., Guides. Appellant was afforded 30 days to submit the requested 

evidence.

By letter dated January 10, 2018, appellant responded to OWCP’s December 11, 2017 

development letter. He contended that OWCP’s DMA’s opinion could not carry the weight of the 

medical evidence. Appellant noted that he had not received a copy of the SOAF, which 

inaccurately noted that he had preexisting cervical radiculitis, AC joint arthrosis, and a herniated 

cervical disc. He asserted that Dr. Bernstein’s 29 percent right arm extremity impairment rating 

was sufficient to establish his entitlement to a greater schedule award.

On February 15, 2018 OWCP requested that its DMA review his July 21 and 

September 21, 2016 reports and Dr. Bernstein’s impairment rating of June 17, 2016 and explain 

how their right upper extremity impairment calculations were determined under the reprinted 2009 

sixth edition A.M.A., Guides. In pertinent part, it indicated that the DMA must reference all 

pertinent objective and subjective findings, identify the methodology used by the rating physician, 

and advise whether the applicable tables in the A.M.A., Guides identify a diagnosis that can 

alternatively be rated by ROM. If the A.M.A., Guides allows 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. If the rating physician provided an assessment using 

the ROM method and the A.M.A., Guides allows for use of ROM diagnosis in question, the DMA

was to independently calculate the impairment using both the ROM and DBI methods and identify 

the higher rating. OWCP noted that, if it was clear to the evaluator evaluating loss of ROM that 

the loss had an organic basis, three independent measurements should be documented/recorded 

and the greatest ROM should be used for the determination of permanent impairment. If the 

medical evidence of record was insufficient to render a rating based on the ROM method, where 

allowed, the DMA was advised to note the medical evidence necessary to complete the ROM 

rating method and render an impairment rating using the DBI method, if possible, given the 

available evidence.

On February 19, 2018 the prior DMA for OWCP reviewed the SOAF and medical record. 

The DMA utilized the DBI method to determine the degree of appellant’s permanent impairment. 

He indicated that, in accordance with Table 15-5, page 403 of the sixth edition of the A.M.A., 

Guides, appellant’s AC joint arthropathy with impingement syndrome status post distal clavicle 

 

5 Supra note 2.

6 Supra note 1.
5

resection equated to a class 1 impairment with a default value of 10 percent upper extremity 

impairment.7 Utilizing Table 15-7, page 406, the DMA assigned a grade modifier 2 for functional 

history due to pain with regular activity, increase on lifting arm.8 He assigned a grade modifier of 

2 for physical examination under Table 15-8, page 408 due to a tender shoulder with limitation of 

ROM and positive impingement tests.9 The DMA noted that a grade modifier for clinical studies

was not applicable as a magnetic resonance imaging scan showed AC joint arthropathy, which was 

used in the diagnosis and proper placement in the regional grid. Applying the net adjustment 

formula, he subtracted 2, the numerical value of the class, from the numerical value of the grade 

modifier for each applicable component (functional history and physical examination) and then 

added those values, resulting in a net adjustment of 2 ((2-1) + (2-1)).10 Application of the net 

adjustment formula meant that movement was warranted two places to the right of class 1 default 

value grade C to grade E based on Table 15-5.

11

 Therefore, the DBI method of rating of permanent 

impairment for appellant’s right AC joint arthropathy with impingement syndrome amounted to 

12 percent of the right upper extremity.12

The DMA noted that the ROM method was applicable in this case. However, he indicated 

that there was only one set of measurements of ROM of the right shoulder. The DMA noted that 

three independent measurements of ROM of the involved joint was required to use the ROM 

method. He reviewed Dr. Bernstein’s June 15, 2016 impairment evaluation and noted his 29 

percent right upper extremity impairment rating. The DMA related that proper use of the A.M.A., 

Guides explained any discrepancies between his own impairment evaluation and Dr. Bernstein’s 

impairment evaluation. He indicated that Dr. Bernstein provided impairment ratings for two 

conditions of the same joint, five percent impairment for impingement syndrome of right shoulder 

and eight percent impairment for AC joint arthropathy of the same shoulder. The DMA maintained 

that this was not the recommended rating by the sixth edition of the A.M.A., Guides and related 

that page 387 provided that if a patient had two significant diagnoses, for instance, rotator cuff tear 

and biceps tendinitis, the examiner should use the diagnosis with the highest causally related 

impairment rating for the impairment calculation. He further related that page 389 provided that 

if more than one diagnosis could be used, the highest causally-related impairment rating should be 

used, which was generally the more specific diagnosis. Typically, one diagnosis would adequately 

characterize the impairment and its impact on activities of daily living (ADL). The DMA 

maintained that the highest causally related impairment rating was for the AC joint arthropathy. 

Dr. Bernstein had added four percent impairment ratings for disability due to pain, weakness, and 

loss of endurance, and loss of function. He indicated that these impairment ratings were not found 

 

7 A.M.A., Guides 411, Table 15-5.

8

Id. at 406, Table 15-7.

9

Id. at 408, Table 15-8.

10 Id. at 411.

11 Supra note 5.

12 Id.
6

in the sixth edition of the A.M.A., Guides. The DMA again concluded that appellant had reached 

MMI on June 15, 2016, the date of Dr. Bernstein’s evaluation.

By decision dated February 22, 2018, OWCP vacated its February 2, 2017 decision. It 

found that its DMA properly determined that appellant had an additional 1 percent impairment of 

his right upper extremity, totaling 12 percent permanent impairment of his right upper extremity.

By decision dated April 13, 2018, OWCP granted appellant an additional schedule award 

of one percent right upper extremity permanent impairment. This was above the previously paid 

11 percent right upper extremity award, for a total right upper extremity permanent impairment of 

12 percent. The additional award ran for a total of 3.12 weeks of compensation covering the period

February 14 to March 7, 2017.

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.13 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.14 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).15 The Board has approved the 

use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of 

a member of the body for schedule award purposes.16

The sixth edition requires identifying 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).17 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX). 

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.18 If the ROM method is used as a stand-alone approach, 

 

13 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

14 Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

15 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).

16 Isidoro Rivera, 12 ECAB 348 (1961).

17 A.M.A., Guides 401-19.

18 Id. at 461.
7

the total of motion impairment for all units of function must be calculated. All values for the joint 

are measured and added.19 Adjustments for functional history may be made if the evaluator 

determines that the resulting degree of permanent impairment does not adequately reflect 

functional loss and functional reports are determined to be reliable.20

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.21 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: 

“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.” (Emphasis in the original.)

22

The Bulletin further advises: 

“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. 

“Upon receipt of such a report, and if the impairment evaluation was provided from 

the claimant’s physician, the CE should write to the claimant advising of the 

medical evidence necessary to complete the impairment assessment and provide 30 

days for submission. Any evidence received in response should then be routed back 

to the DMA for a final determination. Should no evidence be received within 30 

days of the date of the CE’s letter, the CE should proceed with a referral for a second 

opinion medical evaluation to obtain the medical evidence necessary to complete 

 

19 Id. at 473.

20 Id. at 474.

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

22 Id.
8

the rating. After receipt of the second opinion physician’s evaluation, the CE 

should route that report to the DMA for a final determination.”

23

ANALYSIS

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

On prior appeal the Board remanded the case for OWCP to reevaluate the extent of 

appellant’s permanent impairment of his right upper extremity after it determined a consistent 

method for rating upper extremity impairments under the sixth edition of the A.M.A., Guides. On 

remand OWCP indicated that FECA Bulletin No. 17-06 provides that, if the A.M.A., Guides

allowed both the DBI and ROM methods for calculating an identified diagnosis, the method that 

yielded the higher impairment rating should be used.24

On June 28, 2016 appellant’s treating physician, Dr. Bernstein, noted that appellant 

sustained 29 percent permanent impairment of his right upper extremity pursuant to the A.M.A., 

Guides. He used the DBI method to rate appellant’s permanent impairment. Dr. Bernstein 

diagnosed rotator cuff contusion with impingement and residual loss under Table 15-5, page 402 

of the sixth edition of the A.M.A., Guides,

25 appellant’s loss equated to five percent permanent 

impairment of the upper extremity. He further indicated that an AC joint injury/disease equated 

to eight percent upper extremity impairment. Utilizing the Combined Values Chart on page 604,

Dr. Bernstein calculated 13 percent impairment of the upper extremity. He awarded an additional 

four percent permanent impairment each for pain, weakness, and loss of endurance and function. 

Dr. Bernstein found no additional impairment for atrophy. He concluded that appellant had 29

percent total upper extremity permanent impairment. Dr. Bernstein advised that appellant could 

return to his internal revenue field agent position with restrictions.

On February 19, 2018 OWCP’s DMA reviewed Dr. Bernstein’s impairment findings. He 

noted that, since three independent ROM calculations were not of record, it was not possible to 

evaluate appellant’s permanent impairment utilizing the ROM methodology. Pursuant to FECA 

Bulletin No. 17-06, the DMA proceeded to evaluate appellant’s impairment using the DBI 

methodology. 

However, as noted by the DMA, while an alternative ROM calculation for appellant’s 

diagnosis was allowed under the A.M.A., Guides, there was only one set of ROM calculations of 

record. Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment 

is allowed, after review of the DBI rating, the 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 ROM. If the claimant’s treating physician has provided an 

impairment rating, the claims examiner should then write to the treating physician advising of the 

 

23 Id.

24 Supra note 19. FECA Bulletin No. 17-06 (issued May 8, 2017). See also D.F., Docket No. 17-1474 (issued 

January 23, 2018).

25 A.M.A., Guides (6th ed. 2009).
9

medical evidence necessary to complete the rating. If the necessary evidence is not received within 

30 days, OWCP is to refer appellant for a second opinion evaluation. In the present case, it did 

not follow the procedures outlined in FECA Bulletin No. 17-06 after the DMA advised that the 

necessary evidence of three independent ROM findings were not of record to rate appellant’s 

permanent impairment utilizing the ROM methodology. For this reason, this case must be 

remanded for OWCP to complete the proper procedures outlined in FECA Bulletin No. 17-06 to 

rate appellant’s upper extremity permanent impairment. After such further development as 

necessary, OWCP shall issue a de novo decision.26

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2018 decision of the Office of Workers’

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

with this decision.

Issued: January 18, 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

 

26 See T.M., Docket No. 18-0182 (issued July 26, 2018).