United States Department of Labor

Employees’ Compensation Appeals Board

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A.F., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Fayetteville, NC, Employer

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Docket No. 19-0893

Issued: October 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 21, 2019 appellant filed a timely appeal from a September 26, 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 to review the merits of this case.

2

 

1

5 U.S.C. § 8101 et seq.

2 The Board notesthat appellantsubmitted additional evidence on appeal. 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 10 

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

schedule award.

FACTUAL HISTORY

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

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

follows.

OWCP accepted that on November 14, 2011 appellant, then a 44-year-old medical 

technician, sustained right rotator cuff syndrome of the shoulder and allied disorders while in the 

performance of duty. It paid her wage-loss compensation on the supplemental rolls commencing

January 9, 2012 and on the periodic rolls commencing March 11, 2012. OWCP subsequently 

expanded acceptance of the claim to include right shoulder and upper arm acromioclavicular (AC) 

sprain. It authorized right shoulder arthroscopic distal clavicle excision; right shoulder 

arthroscopic extensive debridement of a superior labral tear, rotator cuff tear, and bursitis of the 

right shoulder; and right shoulder open biceps tenodesis, which were performed on October 9, 

2012 by Dr. Robert A. Creighton, an attending Board-certified orthopedic surgeon. 

In a medical report dated June 2, 2015, Dr. Creighton diagnosed right shoulder partial 

thickness rotator cuff tear, superior labral tear, AC arthritis. He advised that appellant had reached 

maximum medical improvement (MMI) regarding her work-related conditions. 

In a progress note dated April 28, 2017, Dr. Creighton indicated that appellant returned for 

follow-up evaluation of her continued neck and arm pain, and residual disability of her right 

shoulder which had already reached MMI.

On March 28, 2018 appellant filed a claim for a schedule award (Form CA-7). 

On May 11, 2018 OWCP requested that Dr. Creighton provide a medical report indicating 

whether appellant 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 (A.M.A., Guides).4 It afforded him 30 days to submit the requested information.

OWCP thereafter received a January 3, 2018 letter from Dr. Douglas S. McFarlane, an 

orthopedic surgeon. Dr. McFarlane noted that appellant returned for a final disability evaluation 

of her right shoulder pain. He reviewed her medical record and provided a history of her accepted 

November 14, 2011 employment injuries, medical treatment, and diagnostic test results. 

 

3 Docket No. 16-0393 (issued June24, 2016); Docket No. 18-0645 (issued October 26, 2018).

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

Dr. McFarlane found that she was at MMI and had 12 percent permanent impairment of the right 

upper extremity based on “residual lack of motion and weakness in this extremity.”

Dr. Creighton responded to OWCP’s May 11, 2018 letter on June 20, 2018 and noted that 

he last evaluated appellant on April 28, 2017 for continued neck and arm pain, and residual 

disability of the right shoulder, but that she had already reached MMI. He further noted her

accepted November 14, 2011 employment injury and the authorized right shoulder procedures he 

performed on October 9, 2012. Dr. Creighton indicated that appellant subsequently suffered a fall 

on April 5, 2014 and that she continued to have residual shoulder disability with slight limited 

range of motion (ROM). He reported 150 degrees forward flexion, 50 degrees external rotation, 

and internal rotation to L1. Dr. Creighton further reported that a functional capacity evaluation 

showed that appellant was qualified for medium work with limited work above shoulder level. He

found that she had 10 percent permanent impairment of the right shoulder under the sixth edition 

of the A.M.A., Guides.

On July 26, 2018 OWCP routed Dr. Creighton’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as 

an OWCP district medical adviser (DMA), for review.

In a report dated September 14, 2018, the DMA noted his review of the medical record and 

the SOAF. He utilized the diagnosis-based impairment (DBI) rating method of the sixth edition 

of the A.M.A., Guides to calculate the extent of appellant’s right shoulder permanent impairment. 

The DMA found that she had 10 percent permanent impairment of the right upper extremity based 

upon a class 1 distal clavicle excision under Table 15-5, page 403. He noted that there was 

“insufficient information in the case file to calculate an impairment rating utilizing the ROM rating 

method.” The DMA noted that the report of Dr. Creighton had not documented the retained 

percentage of appellant’s extension, abduction, or adduction. He determined that appellant had 

reached MMI on April 28, 2017. 

By decision dated September 26, 2018, OWCP granted appellant a schedule award for 10 

percent permanent impairment of the right arm based on the opinions of Dr. Creighton and the 

DMA. OWCP found that appellant had reached MMI on April 28, 2017 and that the period of the 

award ran for 31.2 weeks (0.4 fraction of a day) from April 28 to December 2, 2017. 

LEGAL PRECEDENT

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. 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. 

 

5

Supra note 1.

6

20 C.F.R. § 10.404.
4

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

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

7

 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.8

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).9 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).10 The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their

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

modifier scores.12

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.13 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.14 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.15

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

 

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

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

Chapter 2.808.6 (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

8 P.R., Docket No. 18-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9 A.M.A., Guides(6th

ed. 2009), p.3, section 1.3, ICF: A Contemporary Model of Disablement.

10 Id. at 494-531.

11 Id. at 411.

12 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011). 

13 A.M.A., Guides 461.

14 Id. at 473.

15 Id. at 474.
5

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.,]

Guidesidentify 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.”

16 (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. 

“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.”

17

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.18

ANALYSIS

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

OWCP accepted that appellant sustained rotator cuff syndrome of the right shoulder and 

allied disorders, and later expanded the claim to include AC sprain of the right arm and shoulder 

as employment related. It granted her a schedule award for 10 percent permanent impairment of 

her right upper extremity. 

The Board finds, however, that OWCP did not follow the procedures set forth in FECA 

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

obtaining sufficient evidence to conduct a complete impairment evaluation of the upper 

 

16 FECA Bulletin No. 17-06 (May 8, 2018). 

17 Id.

18 See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.808.6(f) (February 2013).
6

extremities.

19

 It indicates that, if the rating physician provides an assessment using the ROM 

method, the DMA should independently calculate permanent 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.20 It indicates 

that OWCP should instruct the physician to obtain three independent measurements.21

OWCP referred appellant’s case to Dr. Harris, serving as a DMA. In his September 14, 

2018 report, the DMA utilized the DBI rating method to calculate 10 percent permanent 

impairment of appellant’s right upper extremity based upon a class 1 distal clavicle excision under 

Table 15-5, page 403. He noted that there was “insufficient information in the case file to calculate 

an impairment rating utilizing the ROM rating method.” The DMA noted that the report of

Dr. Creighton had not documented the retained percentage of appellant’s extension, abduction, or 

adduction. He did not request that OWCP obtain from Dr. Creighton or other examining physician

three independent measurements of appellant’s ROM of the right shoulder as is required by a 

DMA. As OWCP failed to obtain a medical report containing three independent measurements of 

each ROM in accordance with the procedures set forth in the A.M.A., Guides and FECA Bulletin 

No. 17-06, the Board will set aside the schedule award decision. The case will be remanded for 

OWCP to obtain the evidence necessary to complete the rating process as described above. 22 

Following this and other such further development as deemed necessary, OWCP shall issue a 

de novo decision. 

CONCLUSION

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

 

19 Supra note 16.

20 Id.

21 Id.

22 J.V., Docket No. 18-1052 (issued November 8, 2018); M.C.,Docket No. 18-0526 (issued September 11, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the September 26, 2018 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 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