United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.R., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

CORRECTIONAL COMPLEX, Coleman, FL, 

Employer

__________________________________________

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Docket No. 20-0588

Issued: June 25, 2021

Appearances: Case Submitted on the Record

Capp P. Taylor, for the appellant1

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 January 22, 2020 appellant, through counsel, filed a timely appeal from a December 4, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction to consider 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 met his burden of proof to establish greater than six 

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

schedule award compensation.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances of the case 

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

are as follows.

On March 2, 2004 appellant, then a 42-year-old lieutenant, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he was attempting to move a mattress when his left hand 

caught under one and pulled him, causing pain in his left shoulder. OWCP accepted the claim for 

left rotator cuff syndrome and subsequently expanded acceptance of the claim to include left 

shoulder impingement syndrome. On August 30, 2004 appellant underwent OWCP-approved left 

shoulder surgery.4 

On September 22, 2016 appellant filed a claim for a schedule award (Form CA-7). 

OWCP received an October 7, 2015 report from Dr. Samy F. Bishai, an orthopedic 

surgeon, who related appellant’s history of injury to his left shoulder. Dr. Bishai diagnosed rotator 

cuff syndrome of the left shoulder joint, left shoulder impingement syndrome, severe supraspinatus 

tendinitis of the left shoulder, and status postoperative arthroscopic surgery for treatment of 

shoulder impingement syndrome and rotator cuff syndrome and tears. He referred to the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides)

5

and explained that he utilized the stand-alone range of motion (ROM) 

methodology for calculating permanent impairment because appellant’s loss of ROM of the left 

shoulder joint had become appellant’s primary disability. Dr. Bishai concluded that appellant had 

24 percent left upper extremity impairment due to loss of left shoulder ROM under the A.M.A., 

Guides. 

OWCP’s district medical adviser (DMA), Dr. Jovito Estaris, a specialist in occupational 

medicine, reviewed the claim on November 8, 2016. Regarding the October 7, 2015 report from

Dr. Bishai, he noted that “inexplicably” his measurement of ROM was “markedly different” from 

other physicians. The DMA also noted that Dr. Bishai did not provide three sets of measurements,

as recommended by the A.M.A., Guides, and he recommended that appellant be referred for a 

second opinion evaluation. 

 

3 Docket No. 17-1961 (issued December 20, 2018).

4 Appellant underwent arthroscopic labrum repair of the shoulder, arthroscopic supraspinatus rotator cuff 

debridement, arthroscopic subacromial decompression, and subacromial pain catheter placement. 

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

On November 14, 2016 OWCP referred appellant for a second opinion examination with

Dr. Richard C. Smith, a Board-certified orthopedic surgeon. In a December 8, 2016 report,

Dr. Smith reviewed appellant’s history of injury. He noted that the accepted condition was left 

rotator cuff syndrome and left shoulder impingement syndrome. Dr. Smith utilized the diagnosisbased impairment (DBI) methodology for rating permanent impairment pursuant to the A.M.A., 

Guides, Table 15-5.

6

 He used the Shoulder Regional Grid from Table 15-5

7

and placed appellant’s 

impairment in Class 1 due to some residual loss of function with normal motion. Dr. Smith applied 

the net adjustment formula for a grade modifier for functional history (GMFH), grade modifier for 

physical examination (GMPE), and grade modifier for clinical studies (GMCS) and concluded that 

appellant had five percent permanent impairment of the left upper extremity. He also explained 

that he did not disagree with Dr. Bishai’s calculation, but the DBI methodology “better reflects the 

claimant’s overall condition.”

On March 7, 2017 OWCP requested further review of the record by Dr. Estaris, the DMA. 

In a May 3, 2017 supplemental report, the DMA noted that he had reviewed Dr. Smith’s report.

He noted that Dr. Smith’s permanent impairment rating was made using the DBI methodology for 

rotator cuff syndrome with impingement of the left shoulder and he concurred that appellant had 

five percent left upper extremity permanent impairment, utilizing the DBI methodology.

On July 5, 2017 OWCP received an undated addendum from Dr. Estaris. He advised that 

neither Dr. Bishai, nor Dr. Smith followed the A.M.A., Guides for the ROM methodology because 

neither had provided three sets of ROM measurements. The DMA recommended another second 

opinion evaluation by a Board-certified orthopedic surgeon to provide an impairment rating using 

the ROM methodology in accordance with the A.M.A., Guides. 

By decision dated July 19, 2017, OWCP granted appellant a schedule award for five 

percent impairment of the left upper extremity. 

On September 1, 2017 appellant, through counsel, appealed to the Board. By decision 

dated December 20, 2018, the Board set aside the July 19, 2017 decision and remanded the case 

for further development. The Board noted that the July 19, 2017 decision referred to the DMA’s 

May 3, 2017 report, but made no mention of his undated addendum received on July 5, 2017. 

Thus, the DMA’s recommendation to further develop the medical evidence had not been followed. 

On February 5, 2019 OWCP referred appellant for a second opinion examination with

Dr. Patrick Horan, a Board-certified orthopedic surgeon. In a February 26, 2019 report, Dr. Horan 

noted the history of appellant’s accepted left shoulder injury. He indicated that he rated appellant’s 

permanent impairment under both the DBI and ROM methods. Dr. Horan first discussed the DBI 

methodology using a diagnosis of rotator cuff injury, partial thickness tear. Applying the A.M.A., 

Guides, Table 15-5,

8 he placed appellant’s impairment in Class 1, applied the grade modifiers and 

concluded that the net adjustment resulted in five percent left shoulder permanent impairment 

 

6 A.M.A., Guides 402.

7

Id.

8

Id.
4

under the DBI methodology. Dr. Horan also utilized the ROM impairment rating methodology,

he recorded three sets of ROM measurements for both the right and left shoulders. Regarding 

appellant’s left shoulder, he found 115 degrees of forward flexion, 30 degrees of extension, 91

degrees of abduction, 50 degrees of adduction, 51 degrees of external rotation, and 75 degrees of 

internal rotation. Dr. Horan calculated nine percent permanent impairment of the left upper

extremity due to loss of ROM. He indicated that, when the DBI and ROM ratings were different, 

the greater rating was used. Therefore, Dr. Horan concluded that appellant had nine percent left

upper extremity permanent impairment. 

OWCP routed the case record, including Dr. Horan’s February 26, 2019 report, to

Dr. Estaris, the DMA, for review. In a March 12, 2019 report, the DMA noted that, according to 

the DBI rating methodology, under the A.M.A., Guides, Table 15-5, Shoulder Regional Grid,

9

appellant had four percent permanent impairment of the left upper extremity.

The DMA also utilized the ROM methodology in Table 15-3410 and found three percent 

impairment for 120 degrees of flexion, one percent impairment for 30 degrees of extension, three

percent impairment for 90 degrees of abduction, zero percent impairment for 50 degrees of 

adduction, zero percent impairment for 80 degrees of internal rotation, and two percent impairment 

for 50 degrees of external rotation. He added these values to equal nine percent permanent 

impairment of the left upper extremity. The DMA noted that appellant also had a right shoulder 

permanent impairment of three percent due to loss of ROM and subtracted this rating to conclude 

that appellant had six percent permanent impairment of his left upper extremity under the ROM 

methodology, which was greater than the DBI rating. He noted that,since appellant was previously 

granted a schedule award for five percent permanent impairment of the left upper extremity, an 

additional award of one percent was warranted. 

By decision dated March 18, 2019, OWCP granted appellant a schedule award for an 

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

permanent impairment of the left upper extremity, noting that he was previously paid for five 

percent permanent impairment of the left upper extremity. 

On November 5, 2019 appellant, through counsel, requested reconsideration. He argued 

that the DMA improperly reduced the left shoulder impairment rating by the contralateral right 

shoulder impairment of three percent. Counsel asserted that, in reports dated May 9 and October 2, 

2019, Dr. Robert R. Reppy, an osteopathic physician Board-certified in orthopedic surgery, found

that appellant’s right shoulder was not normal. 

In a May 9, 2019 report, Dr. Reppy explained that the DMA reduced the percentage of 

impairment for appellant’s left shoulder using the right shoulder as appellant’s normal, uninjured 

base status. He advised that he saw signs of osteoarthritis in the glenoid joint of the right shoulder 

and the possibility of a rotator cuff lesion in the right shoulder as well, and opined that one could 

 

9

Id.

10 Supra note 6 at 475.
5

not consider the right shoulder as “normal.” Dr. Reppy indicated that he was ordering a magnetic 

resonance imaging (MRI) scan of appellant’s right shoulder. 

In an October 2, 2019 report, Dr. Reppy advised that appellant’s MRI scan revealed 

osteoarthritis in the glenoid joint of the right shoulder, and the possibility of a rotator cuff lesion 

in the right shoulder. He argued that these conditions did not preexist the accepted 2004 

employment injury, and thus should be added to the list of accepted conditions. 

In a November 23, 2019 supplemental report, the DMA reviewed the reports from

Dr. Reppy and appellant’s MRI scan. He related that there was no documentation of any injury to 

appellant’s right shoulder and advised that, pursuant to the A.M.A., Guides, page 461, section 

15.7a, clinical measurements of motion, “If the opposite extremity is neither involved nor 

previously injured, it must be used to define normal for that individual any losses should be made 

in comparison to the opposite normal extremity.” Additionally, the DMA noted that the June 14, 

2019 MRI scan of the right shoulder showed a degenerative subchondral cyst and a posterior labral 

tear. He explained that labral tears were “either the result of injury or degenerative changes.” As 

there was no documented injury to the right shoulder, the DMA opined, “in all probability, this 

labral tear is a degenerative change. Degenerative changes are the result of aging and not from 

injury.” He opined that his six percent permanent impairment rating remained unchanged.

By decision dated December 4, 2019, OWCP denied modification of the March 18, 2019 

decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,11 and its implementing federal regulations,

12 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.13 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.14

 

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.

13 Id. at § 10.404(a).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
6

The sixth edition requires identifying the impairment class for the class of diagnosis 

(CDX), which is then adjusted by GMFH, GMPE, and GMCS.15 The net adjustment formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 

Regarding the application of the ROM or the 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.)17

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....”

18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than six 

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

schedule award compensation.

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

appellant submitted prior to the issuance of OWCP’s July 19, 2017 merit decision because the 

Board considered that evidence in its December 20, 2018 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.19

 

15 Supra note 6 at 383-492.

16 Id. at § 411.

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

18 Id.

19 A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
7

In a February 26, 2019 report, Dr. Horan provided three sets of ROM measurements and 

calculated nine percent permanent impairment of appellant’s left shoulder due to loss of ROM. He

also rated appellant’s left shoulder permanent impairment using the DBI method and found that 

appellant had a lesser than five percent permanent impairment under the DBI rating methodology. 

On March 12, 2019 Dr. Estaris the DMA, rated appellant’s left shoulder permanent

impairment utilizing both the DBI methodology under Table 15-5 and the ROM method under 

Table 15-34. According to the DBI rating method, he concluded that under Table 15-5 appellant 

had four percent permanent impairment of the left shoulder. 

Dr. Estaris then rated appellant’s left shoulder permanent impairment under the ROM 

methodology. He correctly noted that the A.M.A., Guides provide that if the opposite member is 

not involved or previously injured, any losses should be made in comparison to the opposite 

normal extremity. Using ROM measurements for both shoulders, the DMA found that appellant 

had nine percent impairment of the left shoulder and three percent impairment of the right shoulder. 

He subtracted the right shoulder rating from the left shoulder rating to conclude that appellant had 

six percent permanent impairment of his left upper extremity. As the ROM rating was higher than 

the DBI rating, the DMA found that appellant’s permanent impairment was best represented by

the ROM rating. He noted that appellant was previously awarded five percent for the left upper 

extremity impairment and advised that an additional one percent award was warranted.

Counsel thereafter submitted medical reports dated May 9 and October 2, 2019 from

Dr. Reppy to support his argument that appellant’s right shoulder was not normal, and therefore 

the DMA’s opinion was invalid.

In the May 9, 2019 report, Dr. Reppy noted that the DMA reduced the percentage of 

appellant’s left shoulder impairment by three percent, based on the right shoulder being appellant’s 

normal, uninjured base status. He noted that he had found signs of osteoarthritis in the glenoid 

joint of the right shoulder and the possibility of a rotator cuff lesion in the right shoulder, and

therefore appellant’s right shoulder could not be considered “normal.” In an October 2, 2019 

report, Dr. Reppy noted that an MRI scan confirmed his findings of glenoid joint right shoulder

osteoarthritis and the possibility of right shoulder rotator cuff lesion. He argued that these 

conditions did not preexist the employment injury and thus should not be added to the list of 

accepted conditions. 

The Board notes that the A.M.A., Guides explain that in evaluating ROM measurements 

“If the opposite extremity is neither involved nor previously injured, it must be used to define 

normal for that individual; any losses should be made in comparison to the opposite normal 

extremity.”

20

 Dr. Reppy indicated that appellant’s right shoulder was not “normal.” He concluded 

that it must have been injured during the employment injury as his right shoulder conditions did 

not exist prior to the employment injury. Appellant has not, however, alleged that he injured his 

right shoulder during the employment injury, or at any other time. Dr. Reppy, therefore, failed to 

provide an accurate history of injury as identified by appellant on his Form CA-1 and the medical 

 

20 Supra note 5 at page 461. 
8

reports of record.21 He therefore did not provide a rationalized medical opinion explaining that 

appellant’s right shoulder was involved in the accepted employment injury or previously injured, 

as required by the A.M.A., Guides. As such, his report is insufficient to meet appellant’s burden 

of proof.22

The DMA, after reviewing Dr. Reppy’s reports, properly explained that appellant’s right 

shoulder must be used to define normal for the impairment rating of the left shoulder. He referred 

to the A.M.A., Guides and noted that there was no documentation of any injury to the right 

shoulder. The DMA also noted that the June 14, 2019 MRI scan of the right shoulder showed a 

degenerative subchondral cyst and a posterior labral tear. He explained that labral tears were 

“either the result of injury or degenerative changes.” Because there was no documented injury to 

the right shoulder, the DMA advised that, “in all probability, this labral tear is a degenerative 

change. Degenerative changes are the result of aging and not from injury.” The DMA advised 

that Dr. Reppy’s findings with regard to the right shoulder did not change his opinion that the right 

shoulder impairment of three percent must be used to calculate the left shoulder impairment.

The Board therefore finds that there is no probative medical evidence of record that 

appellant has more than six percent permanent impairment of the left upper extremity, for which 

he previously received schedule award compensation. 

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.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than six 

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

schedule award compensation.

 

21 See D.M., Docket No. 20-0266 (issued January 8, 2021); J.K., Docket No. 20-0590 (issued July 17, 2020).

22 See D.A., Docket No. 20-0951 (issued November 6, 2020); G.M., Docket No. 15-1288 (issued 

September 18, 2015).
9

ORDER

IT IS HEREBY ORDERED THAT the December 4, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 25, 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