United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.T., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Memphis, TN, Employer

__________________________________________

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Docket No. 18-1716

Issued: May 16, 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 September 11, 2018 appellant filed a timely appeal from an August 27, 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.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the August 27, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

ISSUE

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

percent permanent impairment of the left upper extremity, for which she previously received a 

schedule award. 

FACTUAL HISTORY

On August 7, 2017 appellant, then a 31-year-old city letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on August 5, 2017 she slipped on a step and fell when delivering 

mail while in the performance of duty. She alleged that she hurt her left shoulder, neck, and knee, 

with the shoulder being the most painful. Appellant stopped work that day. On October 2, 2017 

OWCP accepted the claim for contusion of the left shoulder. On April 25, 2018 it expanded 

acceptance of the claim to include strain of the muscles and tendon of the rotator cuff of the left 

shoulder and impingement syndrome of the left shoulder. OWCP paid appellant intermittent 

wage-loss compensation on the supplement rolls commencing September 20, 2017. 

On April 3, 2018 OWCP wrote to appellant’s treating physician, Dr. Gregory D. Dabov, a 

Board-certified orthopedic surgeon, and requested clarification regarding appellant’s current 

medical and disability status, and whether appellant had reached maximum medical improvement 

(MMI). 

In an April 3, 2018 report, Dr. Dabov referenced the sixth edition of the American Medical 

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

3 provided an 

impairment rating for the left shoulder, and determined that appellant was at MMI as of

March 8, 2018. He referred to Figure 15-13, Upper Extremity Range of Motion,

4

he determined 

that for range of motion, appellant had 120 degrees of flexion and 53 degrees of extension, which 

correlated to three percent upper extremity impairment. Dr. Dabov referenced Table 15-345and

found that appellant had 100 degrees of abduction, which corresponded to three percent upper 

extremity impairment, and full adduction. He found 81 degrees of internal rotation and 63 degrees 

of external rotation. Dr. Dabov combined the individual impairment ratings and determined that 

appellant had six percent left upper extremity permanent impairment pursuant to Table 15-11.6

In an April 17, 2018 report, responding to OWCP’s April 3 2018 request, Dr. Dabov

referenced his prior report and again opined that appellant had six percent left upper extremity 

permanent impairment.

On June 12, 2018 appellant filed a claim for a schedule award (Form CA-7).

 

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

4

Id. at 462-63.

5

Id. at 475.

6

Id. at 420.
3

In a June 19, 2018 report, Dr. Garelick, an OWCP district medical adviser (DMA), 

reviewed the medical evidence and referenced the A.M.A., Guides and The Guides Newsletter,

“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” (The Guides Newsletter) 

(July/August 2009). He utilized a diagnosis-based impairment (DBI) rating, referred to Table l5-

5,7and explained that appellant fell into the mid-range value for impingement syndrome with 

residual loss. The DMA, found three percent permanent impairment of the left upper extremity. 

He referenced FECA Bulletin No. 17-06 and explained that if it was clear to the evaluator that a 

restricted range of motion (ROM) had an organic basis, three independent measurements should 

be obtained and the greatest ROM loss should be used for the determination of impairment.

8

 The 

DMA noted that Dr. Dabov only measured appellant’s shoulder ROM one time, and concluded 

that Dr. Dabov’s ROM findings were not appropriate to rate impairment.

In a letter dated June 29, 2018, OWCP wrote to Dr. Dabov and provided him with a copy 

of the June 19, 2018 report from the DMA. It requested his opinion with regard to whether he 

agreed with Dr. Garelick’s assessment of three percent permanent impairment rating for 

appellant’s left upper extremity and, explained that if he disagreed to provide his rationale based 

on the A.M.A., Guides.

In an August 2, 2018 response, Dr. Dabov disagreed with the three percent impairment 

rating and explained that OWCP should refer to his rating work sheet, which supported six percent 

impairment rating. He noted that, if OWCP disagreed with his rating, then it should pay for a “tie 

breaker” third opinion.

In an August 20, 2018 report, the DMA reviewed the additional evidence provided by

Dr. Dabov, and noted that he merely referred to the ROM worksheet he had previously completed. 

He explained that there was no objective evidence to change the opinion he had rendered in his 

original report dated June 19, 2018.

By decision dated August 27, 2018, OWCP granted appellant a schedule award for three 

percent permanent impairment of the left upper extremity. The decision noted that the April 17 

and August 2, 2018 reports of Dr. Dabov were considered, but they did not provide sufficient 

rationale to support a higher permanent impairment rating. OWCP accorded the weight of the 

evidence to the DMA because he correctly applied the A.M.A., Guides to the examination findings 

and determined the date of MMI based on the medical evidence of record. The period of the award 

ran from June 11 to August 15, 2018, for a total of 9.36 weeks of compensation.

LEGAL PRECEDENT

The schedule award provisions of FECA9and its implementing regulations10 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

 

7

Id. at 402.

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

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.
4

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

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

12

 The Board has approved the use by 

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

member of the body for schedule award purposes.13

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).14 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).15

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.16 If the ROM method 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.17 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.18

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.19 Regarding the application of 

 

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

12 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). 

13 Isidoro Rivera, 12 ECAB 348 (1961). 

14 A.M.A., Guides 411.

15 Id. 

16 Id. at 461. 

17 Id. at 473.

18 Id. at 473.

19 FECA Bulletin No. 17-06 (May 8, 2017).
5

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.”

20 (Emphasis in the original.)

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 

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

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

21

ANALYSIS

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

 

20 Id.

21 Id.
6

Dr. Dabov provided reports dated April 3 and 17, 2018, and opined that appellant had six 

percent permanent impairment of the left upper extremity. He formulated his opinion utilizing

Figure 15-13, for Upper Extremity Range of Motion and referencing Table 15-34.

22

On June 19, 2018 Dr. Garelick, the DMA, reviewed Dr. Dabov’s impairment findings and

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

to rate appellant’s permanent impairment utilizing the ROM methodology, pursuant to FECA 

Bulletin No. 17-06. He thereafter evaluated appellant’s permanent impairment using the DBI 

methodology. 

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 

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.

Herein, OWCP 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 was not of 

record to rate appellant’s permanent impairment utilizing the ROM methodology.23 The Board 

notes that OWCP sent a letter to Dr. Dabov on June 29, 2018, and provided him with a copy of the 

DMA’s opinion. OWCP did not request that Dr. Dabov provide three sets of range of motion 

measurements, nor were they provided in his responsive report.

As Dr. Dabov did not provide the requisite three measurements of appellant’s loss of ROM, 

OWCP should have referred appellant for a second opinion evaluation. 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.24

CONCLUSION

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

 

22 Supra note 4.

23 See M.D., Docket No. 18-1073 (issued January 18, 2019).

24 See T.M., Docket No. 18-0182 (issued July 26, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the August 27, 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: May 16, 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