United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.P., Appellant

and

DEPARTMENT OF THE NAVY, U.S. FLEET 

FORCES COMMAND, Kings Bay, GA, 

Employer

__________________________________________

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Docket No. 19-1514

Issued: October 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On July 9, 2019 appellant filed a timely appeal from a July 3, 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 greater than 10 

percent permanent impairment of his left upper extremity, for which he previously received a 

schedule award.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On February 23, 2017 appellant, then a 62-year-old machinist, filed a traumatic injury 

claim (Form CA-1) alleging that on February 21, 2017 he sustained a left shoulder strain as a result 

of removing a rotor from an engine lathe while in the performance of duty. On the reverse side of 

the claim form, the employing establishment indicated that he stopped work on the date of injury 

and returned to work on the same day.2 OWCP assigned the claim OWCP File No. xxxxxx662

and accepted an unspecified sprain of the left shoulder joint, initial encounter, impingement 

syndrome of the left shoulder, and unspecified rotator cuff tear or rupture of the left shoulder, not 

specified as traumatic. On September 22, 2017 appellant underwent authorized left shoulder 

arthroscopy with arthroscopic rotator cuff repair, superior labrum anterior and posterior repair, 

Bankart repair, subacromial decompression, major debridement, synovectomy, glenoid bone 

removal, and large joint injection performed by Dr. Kevin P. Murphy, an attending Board-certified 

orthopedic surgeon.

On April 18, 2018 appellant filed a claim for a schedule award (Form CA-7).3

In an April 9, 2018 medical report, Dr. Murphy noted that appellant presented following a

September 22, 2017 left shoulder arthroscopy. He also noted that appellant’s shoulder was doing 

well. Dr. Murphy provided normal presentation, strength, range of motion, and function on 

examination of the left shoulder and assessed pain and primary osteoarthritis in the left shoulder. 

He advised that appellant had reached maximum medical improvement (MMI) on the date of his 

examination. Dr. Murphy, in an April 9, 2018 work capacity evaluation (Form OWCP-5c), 

reiterated his MMI finding and indicated that appellant was capable of performing his usual work 

without restriction.

In an April 26, 2018 letter, OWCP requested that Dr. Murphy provide a medical report 

which included a statement that appellant’s accepted conditions had reached MMI and an

impairment rating in accordance with the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded him 30 days 

to submit the requested evidence. No response was received. 

On September 13, 2018 OWCP referred appellant, together with a statement of accepted 

facts (SOAF), the medical record, and a set of questions, to Dr. Raymond F. Topp, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the extent of his 

employment-related permanent impairment based on the sixth edition of the A.M.A., Guides and 

the date he reached MMI.

In a report dated October 9, 2018, Dr. Topp discussed findings on examination of 

appellant’s left shoulder. He noted, among other findings, that left deltoid atrophy was present, 

 

2 The record indicates that appellant retired from the employing establishment on July 14, 2017. 

3 On June 3, 2008 OWCP had previously granted appellant a schedule award for 10 percent permanent impairment 

of each arm under a claim assigned OWCP File No. xxxxxx418, which was accepted for bilateral carpal tunnel 

syndrome.

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

2.5 centimeter (cm) as compared to the right shoulder. Dr. Topp found no tenderness or instability. 

He reported range of motion (ROM) measurements of 180 degrees of abduction, 180 degrees of 

forward flexion, full adduction, internal rotation was decreased to posterior superior iliac spine 

(PSIS), and external rotation of 40 degrees. Dr. Topp assessed left anterior shoulder pain. 

Referring to Table 15-5 of the sixth edition of the A.M.A., Guides, Dr. Topp determined 

that appellant had a class 1, grade C impairment, for a primary diagnosis of rotator cuff tear. He 

derived a grade modifier for functional history (GMFH) of 2, grade modifier for physical 

examination (GMPE) of 2, and grade modifier for clinical studies (GMCS) of 2, with an additional

grade modifier of 1 for a QuickDASH score of 35. Dr. Topp concluded that appellant’s class 1, 

grade C impairment, resulted in five percent permanent impairment of the left upper extremity due 

to his rotator cuff tear diagnosis. 

Dr. Topp again referred to Table 15-5 and determined that appellant had a class of diagnosis 

(CDX) of 1 for a superior labral tear from anterior to posterior (SLAP) and labral tear and GMFH, 

GMPE, and GMCS all of 2 with a QuickDASH score of 35, he had a grade C impairment, which 

yielded three percent left upper extremity permanent impairment. He added the five percent

permanent impairment rating for a rotator cuff tear and three percent permanent impairment rating 

for SLAP and labral tears, to calculate a combined eight percent permanent impairment of the left 

upper extremity. Dr. Topp noted that he was unable to use the ROM method to rate impairment 

of appellant’s left shoulder because he did not have a normal opposing extremity to make a 

comparison. He determined that appellant had reached MMI on September 22, 2018, one year 

following his September 22, 2017 authorized left shoulder rotator cuff surgery. 

On January 8, 2019 OWCP referred the case record, including Dr. Topp’s October 9, 2018 

report, to Dr. Herbert White, Jr., Board-certified in physical medicine and rehabilitation and 

serving as the district medical adviser (DMA), for review. In a January 12, 2019 report, the DMA

noted that he had reviewed the SOAF and the medical record, including Dr. Topp’s October 9, 

2018 report. Utilizing the diagnosis-based impairment (DBI) rating methodology in Table 15-5, 

page 403 of the sixth edition of the A.M.A., Guides, he identified a CDX of one for the diagnosis 

of full thickness rotator cuff tear, residual loss functional. The DMA assigned a GMFH of 2 under 

Table 15-7, page 406, a GMPE of 2 under Table 15-8, page 408, and a GMCS of 2 under Table 

15-9, page 410. He applied the net adjustment formula, (GMFH-CDX)(2-1) + (GMPE-CDX)(2-

1) + (GMCS-CDX)(2-1), to find +3 net adjustment, which moved the default grade C to grade E 

or seven percent permanent impairment of the left upper extremity due to a full-thickness rotator 

cuff tear. 

The DMA noted that he was unable to rate impairment utilizing the ROM rating method 

with the information provided. He indicated that a recording of all ROMs was needed, noting that 

extension ROM was not provided and internal ROM was not provided in degrees by Dr. Topp. 

The DMA explained the discrepancies between his seven percent permanent impairment rating for 
4

appellant’s full-thickness rotator cuff tear and Dr. Topp’sfive percent impairment rating. He noted

that Dr. Topp had not properly applied the grade modifiers as indicated above.5 

On January 22, 2019 OWCP requested that Dr. Topp provide the information raised in the 

DMA’s January 12, 2019 report.

Dr. Topp responded, in a February 4, 2019 addendum, that internal rotation was 20 degrees 

and extension was 10 degrees based on his examination.

In an amended February 11, 2019 report, the DMA reviewed the medical record including

Dr. Topp’s February 4, 2019 addendum. He utilized the ROM method in Table 15-34, page 475 

of the A.M.A., Guides to find 0 percent impairment for 180 degrees of flexion, 2 percent 

impairment for 10 degrees of extension, 0 percent impairment for 180 degrees of abduction, 0

percent impairment for adduction within normal limits, 4 percent impairment for 20 degrees of 

internal rotation, and 2 percent impairment for 40 degrees of external rotation, totaling 8 percent 

left upper extremity permanent impairment due to a rotator cuff tear. The DMA noted that 

appellant had reached MMI on February 4, 2019, the date of Dr. Topp’s addendum.

On February 14, 2019 OWCP requested that the DMA clarify his February 11, 2019 report. 

It requested that he determine whether appellant had greater than 10 percent permanent impairment 

of the left upper extremity for which he previously received a schedule award in June 2008.

The DMA responded, in a February 19, 2019 amended report, that appellant had no 

additional permanent impairment of the left arm. He reiterated his DBI impairment ratings of 

seven percent permanent impairment for a rotator cuff tear and five percent permanent impairment 

for a labral tear of the left upper extremity. The DMA also reiterated his ROM impairment ratings 

of eight percent left upper extremity permanent impairment. He assigned a grade modifier 1 for 

ROM under Table 15-35, page 477. Under Table 15-7, page 406, the DMA found a GMFH of 1 

due to pain with normal activity. He applied the formula (GMFH = 2) - (grade modifier for ROM 

= 1), which yielded a modifier adjustment of 1. Next, using Table 15-36, page 477, the DMA 

adjusted the impairment rating using functional history total ROM by five percent (8 percent x 5 

percent or .4 percent adjustment), 8 percent + .4 percent or 8.4 percent left upper extremity 

impairment. He rounded the number down to 8 percent. The DMA explained that as the ROM

method resulted in a higher rating than the DBI method, the ROM calculation should be used. 

 

5 The DMA noted that Dr. Topp should have only rated impairment due to the rotator cuff tear diagnosis. He 

indicated that page 389 of the A.M.A., Guides, provides that if more than one diagnosis could be used, the most 

clinically accurate causally-related impairment rating should be used, which was generally the more specific diagnosis, 

and that typically, one diagnosis would adequately characterize the impairment and its impact on activities of daily 

living. The DMA noted that Table 2.1, page 20, #12 mandated that, if the A.M.A., Guides provided for more than 

one method to rate a particular impairment or condition, the method producing the higher rating “must be used.” He 

maintained that the rotator cuff tear provided the greater impairment, seven percent permanent impairment of the left 

upper extremity. The DMA further maintained that Dr. Topp’s statement that he was unable to use the ROM method 

because right shoulder motions were not normal was incorrect. He indicated that abnormal right shoulder motions 

only meant that motions of the right shoulder could not be considered normal so the left could not be compared to the 

right using the right as normal. The DMA recommended that Dr. Topp provide internal ROM and extension ROM in 

degrees. He determined that appellant had reached MMI on October 9, 2018, the date of Dr. Topp’s impairment 

evaluation. 
5

Regarding appellant’s previous schedule award for 10 percent permanent impairment of 

the left upper extremity, he cited section 2.5c Apportionment on page 25 of the A.M.A., Guides, 

which provides that a total impairment rating (A) (an all-inclusive current rating) is derived 

irrespective of preexisting and resulting conditions and that in this case the impairment was eight 

percent. The DMA indicated that section 2.5c provides that a second “baseline rating” (B) is 

derived that accounts solely for preexisting conditions without associated or aggravated reinjury

and that in this case the previous impairment was 10 percent. He concluded that the final rating 

was derived in which the preexisting conditions were discounted by subtracting the second from 

the first rating (A - B), resulting in an additional impairment of zero percent (8 percent - 10 percent 

= 2 percent).

By decision dated February 21, 2019, OWCP denied appellant’s claim for a schedule award

finding that Dr. Topp’s October 9, 2018 report constituted the weight of the medical evidence.

In a letter received by OWCP on March 18, 2019, appellant requested reconsideration. He

contended that the medical evaluation of his left shoulder injury had not included an evaluation of

his carpal tunnel injury. Appellant noted that he had a nearly identical case involving his right 

shoulder for which he received an additional schedule award in a claim assigned OWCP File No. 

xxxxxx444.

6

OWCP, by decision dated July 3, 2019, denied modification of its February 21, 2019 

decision finding that the weight of the medical evidence rested with the February 19, 2019 report 

of the DMA who determined that appellant had no additional permanent impairment of the left 

upper extremity beyond the previously awarded 10 percent permanent impairment of the left upper 

extremity. It noted that the DMA considered appellant’s preexisting condition in his impairment 

rating.

LEGAL PRECEDENT

The schedule award provisions of FECA,7and its implementing federal regulations,

8

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

 

6 OWCP granted appellant a schedule award for six percent permanent impairment of the right arm under OWCP 

File No. xxxxxx444, which was accepted for sprain of the right shoulder and upper arm, rotator cuff.

7 Supra note 1 at § 8107.

8 20 C.F.R. § 10.404.
6

the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the

sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

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

CDX for the diagnosed condition, which is then adjusted by GMFH, GMPE, and GMCS.11 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 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.13

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.”] (Emphasis in the original.)14

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 

 

9

Id. at § 10.404(a).

10 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).

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

12 A.M.A., Guides 411.

13 R.B., Docket No. 18-1308 (issued January 10, 2019); P.R., Docket No. 18-0022 (issued April 9, 2018); supra

note 10 at Chapter 2.808.6f (March 2017).

14 FECA Bulletin No. 17-06 (May 8, 2017).
7

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

15

It is well established that benefits payable under 5 U.S.C. § 8107(c) are 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) the latter impairment in whole or in part would duplicate the compensation 

payable for the preexisting impairment.16

ANALYSIS

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

On June 3, 2008 OWCP previously granted appellant a schedule award for 10 percent left 

upper extremity permanent impairment based on his accepted condition of bilateral carpal tunnel 

syndrome. On April 18, 2018 appellant filed a claim for an increased schedule award and 

submitted medical evidence. Utilizing the DBI methodology found in Table 15-5, Dr. Topp, 

OWCP’s referral physician, determined that appellant had eight percent permanent impairment of 

the left upper extremity due to a primary diagnosis of rotator cuff, SLAP, and labral tears. DMA

Dr. White also utilized the DBI methodology in Table 15-5 and determined that appellant had 

seven percent permanent impairment of the left upper extremity due to full-thickness rotator tear, 

residual loss functional. Additionally, he used the ROM methodology found in Table 15-34 and 

determined that appellant had eight percent permanent impairment of the left upper extremity due 

to his rotator cuff tear. The DMA properly explained that appellant’s current permanent 

impairment of the left upper extremity was based on the ROM methodology as it yielded a higher 

permanent impairment rating than the DBI methodology.17 In a February 14, 2019 letter, OWCP 

requested that the DMA clarify whether appellant had greater than 10 percent permanent 

impairment of the left upper extremity for which he previously received a schedule award in 

June 2008. In a February 19, 2019 amended report, the DMA apportioned appellant’s left upper 

extremity impairment between the accepted left shoulder condition in the instant claim assigned 

OWCP File No. xxxxxx662 and the accepted bilateral wrist condition in the claim assigned OWCP 

File No. xxxxxx418, and determined that there was no additional permanent impairment of the left 

upper extremity. OWCP, in a February 21, 2019 decision, denied appellant’s claim for an 

increased schedule award. Appellant requested reconsideration and by decision dated July 3, 

2019, OWCP denied modification of its prior decision. OWCP based its determination that he

was not entitled to a schedule award greater than the 10 percent permanent impairment of the left 

upper extremity previously awarded on the opinion of its DMA who advised that, at present, he 

was only entitled to 8 percent left upper extremity permanent impairment.

 

15 Id.

16 20 C.F.R. § 10.404(d); see S.M., Docket No. 17-1826 (issued February 26, 2018); T.S., Docket No. 16-1406 

(issued August 9, 2017); T.S., Docket No. 09-1308 (issued December 22, 2009).

17 A.M.A., Guides 473.
8

Although the DMA sought to apportion appellant’s impairment between the current 

accepted condition and the previously accepted condition, the Board notes that a claimant is not 

precluded from an additional schedule award solely because he or she received a greater award to 

the same scheduled member from another claim.18 The Board has previously held that simply 

comparing the prior percentage of permanent impairment awarded to the current impairment for 

the same member is not always sufficient to deny an increased schedule award claim.19 The issue 

is not whether the current permanent impairment rating is greater than the prior impairment ratings, 

but whether it duplicates in whole or in part the prior impairment rating.20 Therefore, the Board 

finds that OWCP has not properly analyzed appellant’s entitlement to schedule award benefits in 

the present claim for his accepted shoulder conditions.

Furthermore, OWCP’s procedures provide that cases should be administratively combined 

when correct adjudication of the issues depends on frequent cross-referencing between files.21 For 

example, if a new injury case is reported for an employee who previously filed an injury claim for 

a similar condition or the same part of the body, doubling is required.22 Because they both involve 

schedule awards for accepted injuries to appellant’s left upper extremity, for a full and fair 

adjudication, the claims in OWCP File Nos. xxxxxx662 and xxxxxx418 must be administratively 

combined.23

Accordingly, the Board will remand the case to OWCP to administratively combine the 

case records for OWCP File Nos. xxxxxx662 and xxxxxx418 and analyze appellant’s entitlement 

to an additional schedule award for his accepted conditions. Following this and other such further 

development, as deemed necessary, OWCP shall issue a de novo decision on appellant’s schedule 

award claim.

CONCLUSION

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

 

18 See S.M., supra note 16.

19 R.K., Docket No. 19-0247 (issued August 1, 2019); M.K., Docket No. 18-1614 (issued March 25, 2019); T.S.,

Docket No. 16-1406 (issued August 9, 2017).

20 Id.

21 See supra note 10 at Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) (February 2000).

22 Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,

Docket No. 17-0432 (issued August 17, 2018).

23 See B.O., Docket No. 18-1100 (issued February 24, 2020).
9

ORDER

IT IS HEREBY ORDERED THAT the July 3, 2019 decision of the Office of Workers’

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

this decision of the Board.

Issued: October 21, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board