United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Ontario, CA, Employer

__________________________________________

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Docket No. 19-0032

Issued: June 10, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 4, 2018 appellant filed a timely appeal from an August 9, 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 

consider the merits of this case.

ISSUE

The issue is whether OWCP properly identified the date of maximum medical 

improvement (MMI) for payment of appellant’s schedule award compensation.

FACTUAL HISTORY

On August 26, 2010 appellant, then a 36-year-old human resource specialist, filed a 

traumatic injury claim (Form CA-1), alleging that she sustained several injuries as a result of an

 

1 5 U.S.C. § 8101 et seq.
2

August 24, 2010 slip and fall when on official travel while in the performance of duty. OWCP 

accepted her claim for contusion of the left shoulder and upper arm, left shoulder strain, lumbar 

strain, left wrist sprain, and sciatica. It subsequently expanded the acceptance of appellant’s claim 

to include left adhesive capsulitis, left-side sciatica, sprain of the neck, and cervical spondylosis 

without myelopathy. 

A magnetic resonance imaging (MRI) scan of the left shoulder dated September 22, 2010 

revealed mild tendinopathy with possible undersurface tear of the infraspinatus tendon and 

supraspinatus tendon.

On August 31, 2011 Dr. Michael Sukay, a Board-certified orthopedist, performed a left 

shoulder arthroscopy with Mumford procedure and diagnosed impingement syndrome of the 

shoulder. 

On August 1, 2012 appellant filed a claim for a schedule award (Form CA-7). 

On August 13, 2012 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), to an OWCP district medical adviser (DMA) for an opinion on the permanent impairment 

of appellant’s left upper extremity under the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2and the date of maximum 

medical improvement (MMI). In an August 14, 2012 report, Dr. Ellen Pichey, a family medicine 

specialist serving as the DMA, noted that she had reviewed the medical records provided by 

OWCP. She provided an impairment rating pursuant to the A.M.A., Guides’ diagnosis-based 

impairment (DBI) methodology, of 11 percent permanent impairment citing to Table 15-5 for a 

diagnosis of distal clavicle resection.3

By decision dated September 25, 2012, OWCP granted appellant a schedule award for 11 

percent impairment of the left upper extremity. The award ran for 34.32 weeks from June 7, 2012 

to February 2, 2013. 

In a January 12, 2016 report, Dr. Guirguis Hanna, Board-certified in occupational 

medicine, provided a history of injury and physical examination findings. He diagnosed 

impingement syndrome of the left shoulder, history of arthroscopic shoulder surgery of the left 

shoulder on August 31, 2011 adhesive capsulitis of the left shoulder, left side sciatica, and lumbar 

radiculopathy, caused or aggravated by appellant’s employment injury. Dr. Hanna used the sixth 

edition of the A.M.A., Guides, to rate her bilateral shoulder impairment. He indicated that he rated 

appellant’s impairment utilizing the DBI and range of motion (ROM) methodology. Dr. Hanna 

noted that, while both methods were reviewed, she was rated using the ROM methodology because 

it resulted in a higher rating. Using Table 15-34, page 475, Figures 15-35, page 477, and Table 

15-36, page 477, he found left shoulder flexion of 50 degrees for nine percent impairment, 

extension of 30 degrees for one percent impairment, abduction of 45 degrees for six percent 

impairment, adduction of 20 degrees for one percent upper extremity impairment, external rotation 

of zero degrees for two percent impairment, and internal rotation of 40 degrees for four percent 

 

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

3

Id. at 403, Table 15-5. 
3

upper extremity impairment. Dr. Hanna determined, after adding the impairment values, that 

appellant had a total left upper extremity permanent impairment rating of 23 percent. He further 

found that she reached MMI on June 6, 2012.

On March 18, 2016 appellant filed a claim for an additional schedule award (Form CA-7). 

On April 11, 2016 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as a DMA. It requested that he review the medical evidence 

of record, including Dr. Hanna’s January 12, 2016 report, and provide an opinion regarding the 

permanent impairment of her left upper extremity under the sixth edition of the A.M.A., Guides.

In an April 12, 2016 report, Dr. Katz, reviewed Dr. Hanna’s January 12, 2016 report and 

determined that Dr. Hanna’s impairment evaluation could not be considered as probative for the 

purpose of recommending a schedule award under FECA as it does not allow a schedule award for 

the spine unless “it results in permanent impairment of the extremities, generally manifest as spinal 

nerve impairment.” He further indicated that the record lacked sufficient detail to permit 

assignment of an impairment rating. 

OWCP subsequently referred appellant for a second opinion evaluation with Dr. Mark 

Bernhard, an osteopath and Board-certified physiatrist, to provide an opinion on the permanent 

impairment of her left upper extremity. 

In a January 24, 2017 report, Dr. Bernhard reviewed the medical evidence and performed 

a physical examination. He noted that the accepted conditions were contusion of the left shoulder 

and upper arm, sprain of the left shoulder and upper arm, lumbar sprain, left wrist sprain, adhesive 

capsulitis of the left should, cervical strain, sciatica, and cervical spondylosis without myelopathy. 

Dr. Bernhard noted ROM for the left shoulder for flexion was 65 degrees, extension of 30 degrees, 

abduction of 45 degrees, adduction of 40 degrees, external rotation of 50 degrees, and internal 

rotation of 52 degrees. He rated appellant according to the most impairing condition, distal clavicle 

requiring resection, acromioclavicular joint injury or disease with mild residual symptoms, and 

status post distal clavicle resection. Using the A.M.A., Guides, DBI method for rating permanent 

impairment of the upper extremity Dr. Bernhard determined that appellant fell into an impairment 

class 1 default of C, 10 percent upper extremity impairment pursuant to Table 15-5, Shoulder 

Regional Grid. Dr. Bernhard noted that his examination revealed permanent limitations in 

reaching with the left shoulder, pain, lack of full ROM, stiffness, and complaints with activities of 

daily living. Based on these findings he selected a grade modifier for functional history (GMFH) 

of 2, for a moderate problem with pain symptoms with normal activity and occasional medications 

to control symptoms. Dr. Bernhard indicated that he would not use the QuickDASH score of 89 

since that would rate appellant as a very severe problem and would not accurately reflect the level 

of functional impairment because she was able to work and perform activities of daily living. With 

regard to physical examination he noted mild tenderness, symptoms with activities, and moderate 

decrease ROM resulted in a grade modifier for physical examination (GMPE) of 2. Dr. Bernhard 

indicated that since clinical studies were utilized originally in making the original diagnoses they 

would not be applied as a modifier. He likewise noted that the QuickDASH score of 89 would not 

accurately reflect the degree of functional limitations described by appellant. Using these 

calculations the net adjustment formula resulted in a net adjustment of +2 which would move 
4

appellant from a Grade C to Grade E or 12 percent left upper extremity permanent impairment as 

a result of the left shoulder distal clavicle resection, left shoulder arthroscopy on August 31, 2011. 

OWCP referred appellant’s case back to Dr. Katz, serving in his role as a DMA. It 

requested that he review the medical evidence of record, including Dr. Bernhard’s January 24,

2017 report and provide an opinion regarding permanent impairment of appellant’s left upper 

extremity under the sixth edition of the A.M.A., Guides. 

In his March 6, 2017 report, Dr. Katz opined that Dr. Bernhard’s determination that 

appellant had 12 percent permanent impairment of the left upper extremity was supported by the 

records reviewed and was consistent with the methodology set forth by the A.M.A., Guides. He 

found that the date of MMI was January 24, 2017, the date of Dr. Bernhard’s examination. 

Dr. Katz concluded that the net additional award for the left upper extremity was one percent 

impairment of the left upper extremity. 

By decision dated April 3, 2017, OWCP granted appellant a schedule award for an 

additional one percent impairment of the left upper extremity, for a total 12 percent permanent 

impairment of the left upper extremity. It noted that she was previously paid a schedule award for 

11 percent impairment of the left upper extremity by decision dated September 25, 2012. The date 

of MMI was listed as January 24, 2017, and the period of the award ran for 3.12 weeks from 

March 8 to 29, 2017. 

On March 7, 2017 Dr. Hanna diagnosed sciatica left side, lumbar radiculopathy, and 

adhesive capsulitis of the left shoulder and repeated his impairment rating as noted in his 

January 12, 2016 report. He again opined that, based on the ROM method, which resulted in a 

higher rating, appellant had a total left upper extremity permanent impairment rating of 23 percent. 

Dr. Hanna found that she had reached MMI on June 6, 2012. 

On April 4, 2017 Dr. Thomas Pham, Board-certified in occupational medicine, provided 

an attending physician’s supplementary report requesting an ergonomic evaluation of appellant’s 

workstation. He reviewed her history of injury and medical treatment, including arthroscopic 

surgery on August 21, 2011. Dr. Pham referenced Dr. Hanna’s January 12, 2016 and 

March 7, 2017 reports. 

On April 4, 2017 appellant filed a claim for a schedule award (Form CA-7) for her left 

lower extremity. 

OWCP referred appellant for a second opinion evaluation with Dr. Michael J. Einbund, a 

Board-certified orthopedic surgeon, for an opinion on permanent impairment of her bilateral lower 

extremities. 

In a June 1, 2017 report, Dr. Einbund, reviewed the medical evidence of record and 

performed a physical examination. He diagnosed cervical sprain, resolved, cervical spondylosis 

without myelopathy, left shoulder capsulitis, status post left shoulder arthroscopy on August 31, 

2011 lumbar sprain, resolved, and sciatica. Dr. Einbund noted that appellant continued to have 

residuals of the injury as it related to her left shoulder and sciatica. On examination, the left 

shoulder revealed a healed arthroscopic scar, abduction was 80 degrees, flexion was 90 degrees, 

extension was 35 degrees, external rotation was 70 degrees, internal rotation was 45 degrees, and 
5

adduction was 40 degrees. Dr. Einbund further noted left shoulder motor weakness of 4/5. He 

found that, pursuant to The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using 

the Sixth Edition (July/August 2009) (The Guides Newsletter), appellant had a one percent left 

lower extremity permanent impairment. 

OWCP again referred appellant’s case back to Dr. Katz, serving in his role as a DMA. It 

requested that he review the medical evidence of record, including Dr. Einbund June 1, 2017 report 

and provide an opinion regarding permanent impairment of her bilateral lower extremities under 

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

In a July 20, 2017 report, Dr. Katz noted that he concurred with Dr. Einbund’s 

determination that appellant had one percent permanent impairment of the left lower extremity. 

He found that she reached MMI on June 1, 2017, the date of Dr. Einbund’s examination.

By decision dated August 23, 2017, an OWCP hearing representative set aside the April 3, 

2017 decision and remanded the case to reevaluate the extent of appellant’s permanent impairment 

of her left upper extremity applying the tenets provided in FECA Bulletin No. 17-06. Pursuant to 

the Bulletin, if the A.M.A., Guides allowed for both the ROM and DBI methodologies in 

calculating permanent impairment of the upper extremity, the method that yielded the higher 

impairment rating should be used. 

On June 4, 2018 OWCP referred appellant’s case back to Dr. Katz, serving in his role as a 

DMA, for a supplemental report. It specifically requested that he apply the tenets provided in 

FECA Bulletin No. 17-06 in rendering an opinion regarding permanent impairment of her left 

upper extremity. 

In a June 5, 2018 report, Dr. Katz noted that he reviewed the SOAF and medical records 

provided by OWCP, applying FECA Bulletin 17-06. He opined that Dr. Hanna’s recorded motion 

of the left shoulder in his January 12, 2016 report did not meet the criteria for determination of 

impairment on the basis of the ROM method because the report failed to document three 

independent measurements of each arc with the greatest ROM use for the determination of 

impairment. Dr. Katz further noted that the second opinion evaluation of Dr. Einbund dated 

June 1, 2017 also failed to document three independent measurements of the shoulder motion arc, 

which does not conform to the guidelines set forth in FECA Bulletin 17-06 for a ROM rating. He 

opined that, based on the information provided in the records reviewed, a probative ROM rating 

could not be calculated. 

In a decision dated August 9, 2018, OWCP denied appellant’s claim for an additional 

schedule award for the left upper extremity. 

LEGAL PRECEDENT

Permanent impairment is to be rated according to the A.M.A., Guides, and only after the 

status of MMI is determined. Before a schedule award can be awarded, it must be medically 

determined that no further improvement can be anticipated and the impairment must reach a fixed 
6

and permanent state, which is known as MMI.4 MMI means that the physical condition of the 

injured member of the body has stabilized and will not improve further.5

Impairment should not be considered permanent until a reasonable time has passed for the 

healing or recovery to occur. This will depend on the nature of underlying pathology, as the 

optimal duration for recovery may vary considerably. The clinical findings must indicate that the 

medical condition is static and well stabilized for the person to have reached MMI.6

The period covered by a schedule award commences on the date that the employee reaches 

MMI from the residuals of the injury. The question of when MMI has been reached is a factual 

one that depends upon the medical findings in the record. The determination of such date is to be 

made in each case upon the basis of the medical evidence in that case.7 The date of MMI is usually 

considered to be the date of the medical examination that determined the extent of the impairment.8

The Board has also noted a reluctance to find a date of MMI which is retroactive to the 

award, as retroactive awards often result in payment of less compensation benefits. The Board, 

therefore, requires persuasive proof of MMI if OWCP selects a retroactive date.9 The 

determination of whether MMI has been reached is based on the probative medical evidence of 

record and is usually considered to be the date of the evaluation by the attending physician, which 

is accepted as definitive by OWCP.10

ANALYSIS

On appeal appellant does not contest the percentage of permanent impairment of her 

schedule award. Rather, she contests the date the schedule award began. The Board will therefore 

review whether OWCP properly identified the date of MMI.

The Board finds that OWCP properly identified the date of MMI. 

 

4 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(1) (January 2010); see 

also C.R., Docket No. 17-1872 (issued March 8, 2018); P.L., Docket No. 13-1340 (issued October 28, 2013).

5 C.R., id.; Adela Hernandez-Piris, 35 ECAB 839 (1984).

6 A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable 

until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not improve 

further -- has been reached); see R.I., Docket No. 09-1559 (issued August 23, 2010).

7 C.H., Docket No. 19-1639 (issued April 3, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Marie J. Born, 27 

ECAB 623 (1976).

8 Supra note 4 at Chapter 3.700.3 (January 2010).

9 C.H., supra note 7; C.W., Docket No. 13-1501 (issued November 15, 2013).

10 R.M., Docket No. 18-1313 (issued April 11, 2019); C.H., id.
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As the Board noted, the date of MMI is usually considered to be the date of the medical 

examination that determined the extent of the impairment.11 OWCP referred appellant for a second 

opinion evaluation with Dr. Bernhard to determine her impairment using the sixth edition of the 

A.M.A., Guides. Dr. Bernhard provided sufficient explanation regarding appellant’s physical 

examination findings and diagnoses to allow OWCP’s DMA, Dr. Katz, to calculate that appellant 

had an additional one percent permanent impairment of left upper extremity. Dr. Katz found that 

appellant had reached MMI on January 24, 2017, the date of Dr. Bernhard’s examination.

MMI means that the physical condition of the injured member of the body has stabilized 

and will not improve further. This date, which is determined through evaluation of the medical 

evidence, is usually considered to be the date of the evaluation accepted as definitive by OWCP.12 

January 24, 2017 was the date that Dr. Bernhard conducted a comprehensive evaluation of 

appellant’s left upper extremity conditions. 

For the above reasons, the Board finds that OWCP properly identified the date of MMI as

January 24, 2017. The Board will thus affirm OWCP’s August 9, 2018 decision.

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased impairment. 

 

11 Id.

12 C.R., supra note 4.
8

CONCLUSION

The Board finds that OWCP properly identified the date of MMI for payment of appellant’s 

schedule award compensation. 

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated August 9, 2018 is affirmed. 

Issued: June 10, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board