United States Department of Labor

Employees’ Compensation Appeals Board

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M.D., Appellant

and

DEPARTMENT OF AGRICULTURE,

FOOD SAFETY INSPECTION SERVICE,

Moorefield, WV, Employer

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Docket No. 20-0900

Issued: August 31, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

On March 18, 2020 appellant, through counsel, filed a timely appeal from a February 20, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of 

the Appellate Boards docketed the appeal as No. 20-0900.

This case has previously been before the Board on different issues.

2

 The facts and 

circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The 

relevant facts are as follows.

On September 13, 2000 appellant, then a 29-year-old inspector, filed a an occupational 

disease claim (Form CA-2) alleging that she developed tendinitis in her left shoulder as a result of 

using both arms to inspect chickens while in the performance of duty. She noted that she first 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Docket No. 08-1543 (issued August 4, 2009); Docket No. 11-0698 (issued September 30, 2011).
2

became aware of her condition on July 2, 2000 and realized its relationship to her federal 

employment on September 13, 2000. Appellant stopped work on July 3, 2000 and returned on 

July 31, 2000. OWCP accepted her claim for left shoulder strain and impingement syndrome. 

Appellant underwent an OWCP-authorized left shoulder arthroscopy with acromioplasty on

October 26, 2001 and January 27, 2003. 

On July 15, 2019 appellant filed a claim for a schedule award (Form CA-7). 

OWCP, thereafter, received an April 8, 2019 letter by Dr. Eric T. Ricchetti, a Boardcertified orthopedic surgeon, who advised that appellant had reached maximum medical 

improvement (MMI).

In a development letter dated July 25, 2019, OWCP requested that appellant submit a report 

from her attending physician, which addressed whether she had reached MMI and, if so, to evaluate 

permanent impairment in accordance with the standards of the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 It 

afforded her 30 days to submit the necessary evidence. No further evidence was submitted within 

the allotted time.

By decision dated September 5, 2019, OWCP denied appellant’s schedule award claim, 

finding that the evidence of record was insufficient to establish permanent impairment of a

scheduled member or function of the body. It noted that appellant had not responded to its July 25, 

2019 development letter.

On September 11, 2019 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received an October 11, 2019 medical report by Dr. Sami E. 

Moufawad, Board-certified in physiatry and pain medicine. Dr. Moufawad diagnosed other 

affection of the left shoulder region, not elsewhere classified; and sprain of the left shoulder and 

upper arm, unspecified, as a result of appellant’s July 2, 2002 employment injury. He advised that 

she reached MMI as of the date of his impairment evaluation. Dr. Moufawad determined that 

appellant had 4 percent permanent impairment of the left upper extremity using the diagnosisbased impairment (DBI) rating method and 13 percent permanent impairment of the left upper 

extremity, using the range of motion (ROM) rating method under the sixth edition of the A.M.A., 

Guides. He concluded that she sustained a 13 percent permanent impairment of the left upper 

extremity as the ROM permanent impairment rating was greater than the DBI permanent 

impairment rating.

By decision dated February 20, 2020, OWCP’s hearing representative affirmed the 

September 5, 2019 decision. 

The Board has duly considered this matter and finds that this case is not in posture for 

decision. OWCP’s procedures provide that, after obtaining all necessary medical evidence, the 

file should be routed to a district medical adviser (DMA) for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the DMA providing 

 

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

rationale for the percentage of impairment specified.4 Its procedures further provide that, if there 

is indication in the record of impairment, OWCP should refer the case to its DMA before denying 

a schedule award claim.5 In the instant case, a DMA has not reviewed Dr. Moufawad’s 

October 11, 2019 report.

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Accordingly, the Board will remand the case to OWCP for further development. On 

remand, OWCP shall prepare an updated statement of accepted facts and refer the case file to a 

DMA for a reasoned opinion regarding the extent of appellant’s permanent impairment of the left 

upper extremity. Following this and other such further development as deemed necessary, OWCP 

shall issue a de novo decision on appellant’s schedule award claim.

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IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: August 31, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

4 Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.6(f) (March 2017). See also P.W., Docket No. 19-1493 (issued August 12, 2020); Frantz Ghassan, 57 ECAB 

349 (2006).

5 Federal (FECA) Procedure Manual, id., at Chapter 2.808.6d (March 2017).

6 T.J., Docket No. 19-1656 (issued September 18, 2020); M.R., Order Remanding Case, Docket No. 12-1932 

(issued March 25, 2013); M.R., Order Remanding Case, Docket No. 12-0914 (issued November 29, 2012); J.T., Order 

Remanding Case, Docket No. 11-1934 (issued June 12, 2012).

7

Id.