United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.B., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Chicago, IL, Employer

__________________________________________

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Docket No. 18-0409

Issued: October 28, 2019

Appearances: Case Submitted on the Record

Steven W. Etzler, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On December 19, 2017 appellant, through counsel, filed a timely appeal from a July 18, 

2017 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal 

Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.

 

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

5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has greater than four percent impairment of her left 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 decision are incorporated herein by reference. The relevant facts are set forth 

below.

On September 20, 2005 appellant, then a 51-year-old transportation security screener, filed 

an occupational disease claim (Form CA-2) alleging that she had developed swelling of her left 

elbow and left shoulder pain due to factors of her federal employment including working in 

baggage screening. OWCP accepted her claim for left lateral epicondylitis of the elbow region 

and a left calcifying tendinitis of the shoulder on November 10, 2005. 

On May 10, 2010 Dr. Aaron Anderson, a Board-certified orthopedic surgeon, submitted a 

two percent whole person permanent impairment rating. 

In a letter dated May 20, 2010, Dr. Bharat Pithadia, Board-certified in orthopedic medicine, 

opined that appellant had not reached maximum medical improvement (MMI) and he was 

therefore unable to provide an impairment rating at that time. 

On July 6, 2010 Dr. Pithadia noted that appellant had visited Dr. Anderson, who had 

attempted to calculate an impairment rating for her, but his report was lost. He opined that, from 

what he was told, that she was at MMI, but he would defer the impairment rating to Dr. Anderson.

On February 28, 2013 appellant filed a claim for a schedule award (Form CA-7).

With her request, appellant submitted a June 27, 2011 report from Dr. Michael J. Spence, 

Board-certified in physical medicine and rehabilitation. On examination of the shoulders

Dr. Spence noted an active range of motion (ROM) of the left shoulder of 90 degrees with forward 

flexion, 90 degrees with abduction, 45 degrees with external rotation, and 60 degrees with internal 

rotation. Appellant’s right shoulder active ROM was recorded as 100 degrees with forward 

flexion, 105 degrees with abduction, 60 degrees with external rotation, and 70 degrees with internal 

rotation. Both shoulders tested positive for impingement and tenderness at the acromioclavicular 

joint. Dr. Spence further noted an active ROM of the left elbow from 0 to 80 degrees. The active 

ROM of appellant’s right elbow was from 0 to 100 degrees. Her bilateral elbow ROM was limited 

secondary to pain and tenderness at the common extensor origin. Dr. Spence opined that appellant 

had reached MMI on May 10, 2010 at the time of her examination by Dr. Anderson and that, using 

Table 15-34 on page 475 with the sixth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides), he calculated that she had 12 percent 

left upper extremity permanent impairment using the ROM method. 

 

3 Docket No. 15-1348 (issued March 17, 2017).
3

Regarding appellant’s elbow conditions, Dr. Spence utilized the ROM method found at 

Table 15-33 on page 474 of the A.M.A., Guides to find eight percent left upper extremity 

permanent impairment for her left elbow. With regard to her carpal tunnel condition, he utilized 

the ROM method found on Table 15-23, page 449 of the A.M.A., Guides, to find three percent left 

upper extremity permanent impairment. Dr. Spence found a rating of permanent impairment of 

the whole person. 

OWCP forwarded the case record and a statement of accepted facts (SOAF) to a district

medical adviser (DMA) on March 14, 2013. In a report dated June 29, 2013, Dr. Morley Slutsky, 

a Board-certified occupational medicine physician serving as a DMA, calculated a permanent 

impairment rating of three percent for the left elbow utilizing Dr. Spence’s June 27, 2011 report, 

but he mistakenly based his calculation on the measurements for the right elbow. 

On June 28, 2013 OWCP again forwarded the case record and the SOAF to the DMA for 

calculation of appellant’s percentage of left elbow permanent impairment. On June 29, 2013 the 

DMA opined that she had reached MMI on June 27, 2011, which was the date of the evaluation 

by Dr. Spence. He calculated appellant’s final left upper extremity permanent impairment as four 

percent, the sum of three percent impairment for the left shoulder and one percent impairment of 

the left elbow. The DMA noted that the diagnosis-based impairment (DBI) rating methodology 

was preferred under the sixth edition of the A.M.A., Guides and assigned left elbow lateral 

epicondylitis and left shoulder partial thickness rotator cuff tear with residual dysfunction as the 

most impairing diagnoses in the elbow and shoulder regions, respectively. In calculating the 

impairment rating for the left shoulder, he noted a grade modifier for functional history (GMFH) 

of 1, as there was no documented functional modification for self-care activities. The grade 

modifier for physical examination (GMPE) was also 1, as there was tenderness to palpation and 

positive impingement testing, but did not include ROM measurements as Dr. Spence documented 

only one motion per joint movement. There was no grade modifier for clinical studies (GMCS) 

as they were used to place appellant into the correct diagnosis class. The DMA found a final left 

upper extremity permanent impairment of three percent for the left shoulder diagnosis. In 

calculating the impairment rating for the left elbow, the DMA noted a GMPE of 1, noting 

tenderness to palpation, but he did not assign other grade modifiers. He explained that GMFH

may be used only for the largest impairment in the extremity, which in this case was the shoulder, 

and that diagnostic studies were used to place appellant into the correct diagnosis. The DMA

found a final left upper extremity permanent impairment rating of one percent of the left elbow 

diagnosis, which combined with the shoulder resulted in four percent permanent impairment of 

the left upper extremity. 

By decision dated April 7, 2014, OWCP granted appellant a schedule award for four 

percent permanent impairment of her left upper extremity finding that the weight of the medical 

evidence was assigned to the opinion of the DMA as he had correctly applied the A.M.A., Guides

to Dr. Spence’s examination findings. 

On September 17, 2014 appellant requested reconsideration. 

In support of her request for reconsideration, appellant attached a letter from Dr. Spence 

dated June 2, 2014 in which he noted that he had reviewed the report of the DMA and disagreed 

with his refusal to apply the ROM method of rating permanent impairment of the upper extremities.
4

OWCP forwarded Dr. Spence’s letter to the DMA on November 5, 2014, asking him to 

comment on whether it caused him to alter his prior impairment ratings. The DMA again noted 

that the DBI method was the preferred rating method, he questioned appellant’s actual ROM 

deficits, he critiqued Dr. Spence’s ROM testing, and he reiterated his prior final upper extremity 

impairment ratings. 

By decision dated December 11, 2014, OWCP denied modification of its prior decision

finding that appellant had not submitted sufficient medical evidence to establish a greater rating of 

permanent impairment. 

On June 2, 2015 appellant, through counsel, filed a timely appeal with the Board. 

By decision dated March 17, 2017, the Board set aside and remanded OWCP’s 

December 11, 2014 decision. The Board found that, in light of conflicting interpretation by OWCP 

of the sixth edition of the A.M.A., Guides, with respect to upper extremity impairment ratings, it 

was incumbent on OWCP, through its implementing regulations and/or internal procedures, to 

establish a consistent method for rating such impairment. 

Upon return of the case record, on June 21, 2017, OWCP forwarded a SOAF and 

appellant’s case file to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving as a 

DMA. It noted that the DMA should reference all pertinent objective and subjective findings, 

identify the methodology used by the rating physician, and advise whether the applicable tables in 

the A.M.A., Guides identified a diagnosis that could alternatively be rated by the ROM method. 

OWCP explained that, if the A.M.A., Guides allowed 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. It further explained that, if the rating physician provided an 

assessment using the ROM method and the A.M.A., Guides allowed for the use of that method for 

the diagnosis in question, the DMA should independently calculate the impairment using both 

rating methods and to identify the higher rating. 

In a report dated July 18, 2017, the DMA referenced the June 27, 2011 ROM

measurements of Dr. Spence for appellant’s left shoulder. He reasoned that because appellant had 

significantly diminished ROM in her left shoulder, the ROM method was the preferred 

methodology for calculating permanent impairment for her accepted left shoulder condition. The 

DMA noted that the June 27, 2011 examination also demonstrated significantly diminished ROM

in appellant’s left elbow. He opined that according to Table 15-5, page 403 of the A.M.A., Guides, 

and based on the examination, clinical history, and diagnostic studies, her impairment rating of the 

left shoulder would correspond to three percent upper extremity impairment and a grade D 

modifier for a total of three percent upper extremity permanent impairment of the left shoulder. 

He noted that under the same Table he found that for appellant’s elbow, for lateral epicondylitis , 

a 1 percent rating with a grade C modifier. As such, the total left upper extremity impairment was 

four percent. The DMA assigned May 10, 2010 as the date appellant was at MMI. 

By decision dated July 18, 2017, OWCP denied appellant’s claim for an increased schedule 

award finding that the DMA’s July 18, 2017 report correctly applied the A.M.A., Guides as to her 

permanent impairment for her accepted conditions. 
5

LEGAL PRECEDENT

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

the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.7

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

impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers of 

GMFH, GMPE, and GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX).9 OWCP 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.10

The A.M.A., Guides also provide that the ROM impairment method of calculating 

permanent functional impairment 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. If ROM is used as a stand-alone approach, the total of motion impairment for all units 

of function must be calculated. All values for the joint are measured and combined.11 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.12

 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6

(March 2017).

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

9

Id. at 411.

10 R.B., Docket No. 18-1308 (issued January 10, 2019); P.R., Docket No. 18-0022 (issued April9, 2018); supra

note 7at Chapter 2.808.6f (March 2017).

11 A.M.A., Guides 473.

12 Id. at 473-74.
6

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.”

13

 (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.”

14

 

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.15

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s December 11, 2014 decision because the 

 

13 FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket 

No. 18-0329 (issued July 26, 2018). 

14 Id.

15 L.T., supra note 8; B.R., Docket No. 17-0294 (issued May 11, 2018).
7

Board considered that evidence in its March17, 2017 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.16

On remand from the Board OWCP forwarded a copy of Dr. Spence’s report, along with 

the medical file and a SOAF, to Dr. Tontz, serving as a DMA, who calculated appellant’s 

permanent impairment under Table 15-5 of the A.M.A., Guides for the diagnosis of shoulder 

tendinitis. However, Dr. Tontz did not indicate which table was used to determine her percentage 

of permanent impairment due to her diagnosis of left lateral epicondylitis of the elbow region.

The Board notes that Table 15-5, the Shoulder Regional Grid, does allow, by asterisk, that 

tendinitis be alternatively evaluated by the ROM methodology.

17

 Under FECA Bulletin No. 17-

06, “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.]”

The Board finds that the DMA properly provided a rating utilizing the ROM method as

allowed under Table 15-5 of the A.M.A., Guides, however, the DMA should have independently 

calculated appellant’s impairment rating using both the ROM and DBI methods and identified the 

higher rating for OWCP. The Board finds that the DMA rating report of Dr. Tontz is deficient 

because it did not consider her left shoulder and left elbow permanent impairments under both 

rating methods followed by the selection of the higher impairment rating as mandated by FECA 

Bulletin No. 17-06.

The case will therefore be remanded for further development consistent with OWCP 

procedures found in FECA Bulletin No. 17-06.

18

 Following this and such other development 

deemed necessary, OWCP shall issue an appropriate decision.

CONCLUSION

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

 

16 J.T., Docket No. 18-1757 (issued April19, 2019).

17 See A.M.A., Guides 402, Table 15-5. See also B.N., Docket No. 17-1923 (issued April17. 2018).

18 The most recent physical examination findings of record are those of Dr. Spence from his examination of 

appellant on June 27, 2011. See supra note 7.
8

ORDER

IT IS HEREBY ORDERED THAT the July 18, 2017 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 28, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board