United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Vero Beach, FL, Employer

__________________________________________

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Docket No. 19-0814

Issued: September 10, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JURISDICTION

On March 4, 2019 appellant filed a timely appeal from a February 19, 2019 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 met his burden of proof to establish more than five 

percent permanent impairment of the right upper extremity, for which he previously received a 

schedule award. 

FACTUAL HISTORY

On August 12, 2016 appellant, then a 56-year-old sales,services, and distribution associate, 

filed a traumatic injury claim (Form CA-1) for a right shoulder strain that he allegedly sustained 

 

1 5 U.S.C. § 8101 et seq.
2

while in the performance of duty that day. He reportedly felt a sharp pain in his right shoulder 

after throwing parcels. Appellant stopped work on August 12, 2016, and received continuation of 

pay beginning August 13, 2016. On the reverse side of the claim form, the employing 

establishment indicated that he was in the performance of duty when injured. On November 2, 

2016 OWCP accepted appellant’s claim for right shoulder joint sprain, right upper arm/shoulder 

strain of the muscles/fascia/tendons, and right shoulder impingement syndrome.2 It paid him

wage-loss compensation for temporary total disability beginning October 7, 2016, and placed him

on the periodic compensation rolls effective October 16, 2016. 

On January 25 and July 20, 2017 appellant underwent OWCP-authorized right shoulder 

surgeries. The latter procedure involved open subacromial decompression and rotator cuff tendon 

repair, which was performed by Dr. Robert Hill, a Board-certified orthopedic surgeon. OWCP 

continued to pay appellant wage-loss compensation for temporary total disability until appellant 

resumed work on August 26, 2017.

On January 11 and June 13, 2018 appellant filed a claim for a schedule award (Form 

CA-7). 

OWCP received reports dated January 24 to July 18, 2018 by Dr. William V. Kane, Boardcertified in physical medicine and rehabilitation. Dr. Kane noted that appellant was status post 

right shoulder surgery and noted an overall improvement of symptoms. He reviewed appellant’s 

history and conducted an examination. Dr. Kane reported right shoulder examination findings of 

decreased range of motion (ROM) and pain with external rotation. Hawkins and drop arm tests 

were positive on the right. Dr. Kane diagnosed disorder of the right rotator cuff, right shoulder 

arthralgia, and right shoulder adhesive capsulitis.

In a May 23, 2018 report, Dr. Barry S. Garcia, a Board-certified internist, indicated that 

OWCP had requested a permanent impairment rating from him. Dr. Kane reviewed appellant’s 

medical history. He recounted that appellant had four right shoulder surgeries, but still had 

devastating limitations on his right arm. Dr. Kane related appellant’s complaints of decreased 

ROM and anterior right shoulder pain. He measured ROM of the right shoulder as 90 degrees 

external rotation, 90 degrees internal rotation, 60 degrees flexion, 20 degrees extension, 30 degrees 

abduction, and 25 degrees adduction. Dr. Kane diagnosed status post shoulder surgery, right 

rotator cuff disorder, right shoulder arthralgia, and right shoulder impingement syndrome. He 

noted that appellant had reached maximum medical improvement (MMI) on April 25, 2018. 

Dr. Kane explained that appellant had 22 percent whole person permanent impairment based on 

loss of range of motion (ROM). 

In a development letter dated June 26, 2018, OWCP advised appellant that the medical 

evidence submitted was insufficient to establish his schedule award claim. It requested that he 

provide a medical report from his attending physician which included a statement that the accepted 

condition had reached MMI and an impairment rating utilizing the appropriate portions of the sixth 

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

 

2 Under OWCP File No. xxxxxx296, OWCP previously accepted bilateral shoulder impingement, which arose on 

or about November 25, 2001. The case record associated with OWCP File No. xxxxxx296 is not currently before the 

Board.
3

(hereinafter A.M.A., Guides).3 OWCP afforded appellant 30 days to submit the necessary 

evidence.

In an August 23, 2018 report, Dr. Todd Fellars, a Board-certified orthopedic surgeon 

serving as a district medical adviser (DMA), noted that he had reviewed appellant’s history, 

including the medical record, and noted that appellant’s claim was accepted for right shoulder 

sprain, right shoulder impingement syndrome, and sprain of the muscle and fascia and tendons of 

the right shoulder. He reported that appellant had previously been awarded 20 percent permanent 

impairment for the right upper extremity. Utilizing the diagnosis-based impairment (DBI) method,

Dr. Fellars explained that, according to Table 15-5, Shoulder Regional Grid, the maximum 

impairment rating for a diagnosis of rotator cuff tear would be seven percent permanent 

impairment. He indicated that under the ROM methodology and Table 15-34, Shoulder Range of 

Motion, appellant had nine percent for flexion, two percent for extension, six percent for abduction, 

two percent for adduction, four percent for internal rotation, and two percent for external rotation 

for a total of 25 percent right upper extremity impairment. Dr. Fellars reported that since appellant 

had previously been awarded 20 percent permanent impairment for the right upper extremity, he 

would be entitled to an additional 5 percent right upper extremity permanent impairment for a total 

of 25 percent of the upper extremity. He explained that he disagreed with Dr. Garcia’s impairment 

rating since Dr. Garcia had not documented or provided the methodology as to how he calculated 

22 percent whole person impairment. Dr. Fellars noted that appellant had reached MMI on 

May 23, 2018.

By decision dated February 19, 2019, OWCP granted appellant a schedule award for five 

percent permanent impairment of the right upper extremity. The award ran for 15.6 weeks for the 

period May 23 to September 9, 2018.

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulations,5set 

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. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

the use of a single set of tables so that there may be uniform standards applicable to all claimants. 

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

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

6

 The Board has approved the use by OWCP of the 

 

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

4 Supra note 2.

5 20 C.F.R. § 10.404.

6 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 

3.700, Exhibit 1 (January 2010).
4

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

for schedule award purposes.7

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

(ICF).8 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX), 

which is then adjusted by grade modifiers based on functional history (GMFH), physical 

examination (GMPE), and clinical studies (GMCS).9 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).10 Evaluators are directed to provide reasons for their 

impairment choices, including the choices of diagnoses from regional grids and calculations of 

modifier scores.11

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.12 If ROM is used as a stand-alone impairment rating 

method, the total of ROM 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 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 

 

7 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

9

Id. at 494-531.

10 Id. at 411.

11 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 

12 A.M.A., Guides 461.

13 Id. at 473.

14 Id. at 474.
5

impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.”

15 (Emphasis in the original.)

ANALYSIS

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

In a May 23, 2018 report, Dr. Garcia indicated that OWCP had requested a permanent 

impairment rating from him due to appellant’s accepted right shoulder condition. Dr. Kane 

reviewed appellant’s medical history and conducted an examination. He measured ROM of the 

right shoulder as 90 degrees external rotation, 90 degrees internal rotation, 60 degrees flexion, 20 

degrees extension, 30 degrees abduction, and 25 degrees adduction. Dr. Kane noted that appellant 

had reached MMI on April 25, 2018.

In accordance with OWCP’s procedures, Dr. Fellars, the DMA, reviewed the evidence, 

including Dr. Garcia’s May 23, 2018 report. In an August 23, 2018 report, the DMA determined 

that under the DBI methodology, appellant had seven percent permanent impairment for right 

shoulder rotator cuff tear. He also calculated permanent impairment utilizing the ROM 

methodology under Table15-34 for loss of ROM and determined that appellant had 25 percent 

right upper extremity impairment. The DMA concluded that since appellant was previously 

awarded 20 percent right upper extremity impairment, he was only entitled to an additional 5 

percent permanent impairment due to his August 2, 2016 employment injury.

The Board finds, however, that neither Dr. Garcia nor the DMA indicated whether the 

ROM measurements utilized were obtained after three independent ROM findings pursuant to 

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

obtaining sufficient evidence to conduct a complete permanent impairment evaluation.16 Herein,

OWCP did not properly develop the medical evidence pursuant to FECA Bulletin No. 17-06, 

which requires that it should instruct an evaluating physician to obtain three independent 

measurements of ROM loss, if they have not been provided in the record.17 In evaluating 

permanent impairment under the ROM method, the DMA should have obtained the necessary 

ROM measurements in order to complete the rating. For this reason, the case must be remanded 

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

18

 

The Board further finds that while OWCP reduced the current award based on the DMA’s 

recommendation, the record currently before the Board does not include evidence of OWCP 

having previously issued a schedule award with respect to appellant’s right upper extremity.19 To 

 

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

16 Supra note 12.

17 C.P., Docket No. 19-0151 (issued May 22, 2019); V.H., Docket No. 18-0848 (issued February 25, 2019); T.R., 

Docket No. 17-1961 (issued December 20, 2018).

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

19 See supra note 2.
6

the extent appellant received a schedule award under his previously accepted occupational disease 

claim, File No. xxxxxx296, OWCP should, at a minimum, incorporate the prior schedule award 

and other relevant medical evidence into the current claim file.20 Following this and any other 

development 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 February 19, 2019 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: September 10, 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

 

20 OWCP’s 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. 20 C.F.R. 

§ 10.404(d).