United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DELIVERY CENTER, Macon, GA, Employer

__________________________________________

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Docket No. 20-1149

Issued: September 8, 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 May 4, 2020 appellant filed a timely appeal from an April 21, 2020 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 over 

the merits of appellant’s claim.2

 

1

5 U.S.C. § 8101 et seq.

2

The Board notes that OWCP received additional evidence following the April21, 2020 decision. 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 more than three 

percent permanent impairment of her left upper extremity for which she previously received

schedule award compensation.

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.

On April 4, 2013 appellant, then a 51-year-old mail processing clerk, filed an occupational 

disease claim (Form CA-2) alleging that she sustained a left shoulder strain causally related to 

factors of her federal employment. In an accompanying statement, she alleged that she injured her 

left shoulder while lifting and using the delivery bar code sorter. Appellant did not initially stop 

work.

OWCP accepted appellant’s claim for left shoulder impingement syndrome and partial tear 

of the left rotator cuff. 

In a January 21, 2015 report, Dr. Jeffrey A. Fried, a Board-certified orthopedic surgeon, 

diagnosed impingement syndrome of left shoulder, rotator cuff syndrome not otherwise specified, 

and lateral epicondylitis. He opined that appellant had two percent permanent impairment of the 

upper extremity pursuant to the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides).4

On February 18, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a report dated February 19, 2015, Dr. James W. Dyer, a Board-certified orthopedic 

surgeon acting as OWCP’s district medical adviser (DMA), concurred with Dr. Fried. Using the 

diagnosis-based impairment (DBI) method, pursuant to Table 15-5 on page 401 of the A.M.A., 

Guides, he determined that appellant had a class 1, grade C soft tissue injury to her left shoulder 

causing pain, which resulted in two percent permanent impairment of her left upper extremity.

On February 26, 2015 OWCP granted appellant a schedule award for two percent 

permanent impairment of the left upper extremity (left arm).

On March 9, 2015 appellant requested a hearing before a representative of OWCP’s Branch 

of Hearings and Review, which was held on October 6, 2015. By decision dated December 15, 

2015, OWCP’s hearing representative affirmed the February 26, 2015 schedule award decision.

 

3 Docket No 18-1168 (issued February 8, 2019); Docket No. 17-0502 (issued May 22, 2017).

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

On April 22, 2016 appellant filed a Form CA-7 claiming an increased schedule award.

Appellant submitted an October 13, 2015 report from Dr. Samy F. Bishai, an orthopedic 

surgeon, who used the range of motion (ROM) method and opined that appellant had 24 percent 

permanent impairment of the left upper extremity under Table 15-34 of the A.M.A., Guides.

5

On May 10, 2016 OWCP referred the case record to Dr. David Garelick, a Board-certified 

orthopedic surgeon serving as OWCP’s DMA, for an impairment rating. In a report dated May 14, 

2016, the DMA concluded that appellant had already been granted a schedule award for two 

percent permanent impairment of her left upper extremity, which was the appropriate award.

In a June 8, 2016 report, Dr. Bishai responded that the DMA relied upon the opinion of

Dr. Fried for his impairment rating, had not examined appellant, and that the DBI method did not 

include the marked reduction of appellant’s ROM.

In a November 11, 2016 response, Dr. Garelick explained that because there was a DBI for 

appellant’s condition, (rotator cuff syndrome which corresponded to tendinitis as noted in Table 

15-5), it was clear that the DBI method was appropriate to evaluate appellant’s permanent 

impairment.

By decision dated December 2, 2016, OWCP denied appellant’s claim for an additional 

schedule award, finding that the weight of the medical evidence rested with the opinion of

Dr. Garelick, the DMA. 

On January 9, 2017 appellant, through her representative, appealed OWCP’s December 2, 

2016 merit decision to the Board. In a May 22, 2017 decision, the Board found the case was not 

in posture for decision and remanded the case for further development.

6

On remand OWCP referred the claim to the DMA on September 27, 2017. In a 

September 30, 2017 report, Dr. Garelick, the DMA, noted that on May 3, 2014 appellant 

underwent a left shoulder arthroscopy, acromioplasty, and lysis of adhesions. He explained that

Dr. Bishai recommended a 24 percent left upper extremity rating based loss of ROM in the left 

shoulder; however, Dr. Bishai only provided one range of motion (ROM) measurement. 

Dr. Garelick explained that three sets of independent measurements must be taken and because 

this was not done, Dr. Bishai’s rating based on the ROM method could not be used. He noted that 

appellant had received a two percent impairment rating and opined that based on his review of the 

case “this award seems certainly reasonable, and I would suggest it stand.”

By decision dated December 27, 2017, OWCP denied appellant’s claim for an increased 

schedule award. 

On February 13, 2018 appellant requested reconsideration. 

 

5

Id. at 475, Table 15-34.

6 Docket No. 17-0502 (issued May22, 2017).
4

In a January 24, 2018 report, Dr. Fried explained that, upon further examination, the two

percent impairment rating was extremely low and requested reconsideration or a reevaluation of 

appellant’s left shoulder permanent impairment.

By decision dated May 4, 2018, OWCP denied modification of the December 27, 2017 

decision. 

On May 22, 2018 appellant filed a timely appeal with the Board from the May 4, 2018 

decision. By decision dated February 8, 2019, the Board found that the case was not in posture 

for decision. The Board explained that Dr. Garelick, the DMA, should have calculated appellant’s

permanent impairment rating using both the ROM and DBI methods and identified the higher 

rating.7

On May 3, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), and the 

medical record to Dr. Alexander Doman, a Board-certified orthopedic surgeon, for a second 

opinion examination to determine the extent of permanent impairment of appellant’s left upper 

extremity.

In a May 23, 2019 report, Dr. Doman utilized the sixth edition of the A.M.A., Guides, 

Table 15-5, page 402, and assigned a class of diagnosis (CDX) of 1 for partial thickness rotator 

cuff with some residual loss of function associated with arthroscopic surgical procedure. He

assigned a grade modifier for physical examination (GMPE) of 1, a grade modifier for functional 

history (GMFH) of 1, and a grade modifier for clinical studies (GMCS) of 1, which resulted in no 

shift from the default position of grade C. Dr. Doman opined that a grade C resulted in three 

percent impairment to the left upper extremity and that appellant had an increase of one percent 

from the previous award of two percent. Regarding the ROM method, he noted that forward 

flexion was 180 degrees, extension was 50 degrees, abduction was 170 degrees, adduction was 40 

degrees, internal rotation was 80 degrees, and external rotation was 70 degrees. Dr. Doman found 

that the ROM method resulted in zero percent impairment as there were no deficits in ROM. He

advised that appellant reached maximum medical improvement (MMI) on May 23, 2019.

In a June 25, 2019 report, Dr. Michael Katz, a Board-certified orthopedic surgeon serving 

as the DMA, reviewed the medical evidence of record and Dr. Doman’s May 23, 2019 report and 

concurred with Dr. Doman’s findings. 

In a February 16, 2020 report, Dr. Fried provided three sets of ROM measurements. He 

noted on the right there was elevation of 170 degrees, 170 degrees, and 170 degrees and on the left 

120, 120, and 130 degrees, with 3 percent impairment. Dr. Fried noted abduction on the right was 

150, 140, and 160 degrees, and on the left it was 90, 90, and 90 degrees, with 3 percent impairment. 

He noted external rotation on the right was 70 degrees, 70 degrees and 80 degrees, and on the left 

it was 70, 70, and 70 degrees, with 0 percent impairment. Dr. Fried noted internal rotation on the 

right was 90, 90 and 90 degrees and on the left, 70, 60 and 70 degrees, with 2 percent impairment. 

He noted extension on the right of 70, 70 and 70 degrees, and on the left of 40, 40, and 40 degrees, 

with 1 percent impairment. Dr. Fried noted adduction on the right of 30, 30, and 30 degrees, and 

on the left of 20, 20, and 20 degrees, with 1 percent impairment. Dr. Fried opined that adding the 

 

7 Docket No. 18-1168 (issued February 8, 2019).
5

impairments of 3, 3, 2, 1, and 1 resulted in a 10 percent impairment using the ROM method. Using 

the DBI method, he referred to Table 15-5

8 and selected a CDX of 1 and based on some residual 

loss of motion. He noted the GMFH of 1 minus the CDX 1 resulted in 0 degrees adjusted. 

Dr. Fried determined that the GMPE 2 minus the CDX 1 resulted in +1 adjustment. He noted that 

the GMCS of 1 minus CDX 1 equaled 0 adjustment. Dr. Fried found the final grade was D, CDX 

1, which resulted in a 4 percent upper extremity permanent impairment. He explained that because

the ROM rating was higher, appellant was entitled to a 10 percent rating based on the ROM 

method. Dr. Fried indicated that appellant reached MMI on February 12, 2020.

In an April 9, 2020 report, Dr. Katz, serving as the DMA, reviewed the medical evidence 

and Dr. Fried’s February 16, 2020 report. Dr. Katz advised that there was reason to question the 

reliability of the impairment rating using the ROM method based upon variability of the 

observations. He noted that there was marked variability in the arcs of motion measured for the 

left shoulder ranging from normal values to Class 2 impairments. Dr. Katz opined that the rating 

based on the DBI method was the sole option for determining impairment, as the ROM 

measurements lacked reliability or consistency. He advised that the permanent impairment of the 

left upper extremity was three percent. Dr. Katz noted that MMI was reached on May 23, 2019 

the date of Dr. Doman’s report. He explained that, since appellant had received a two percent

award, she was entitled to an additional one percent. 

By decision dated April 21, 2020, OWCP granted appellant an additional schedule award 

for one percent permanent impairment of the left upper extremity. The award ran for 3.12 weeks 

for the period March 29 to April 19, 2020.

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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.9 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 to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants.

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.10 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).11

 

8 A.M.A., Guides 402.

9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10 20 C.F.R. § 10.404; see S.S., Docket No. 19-0766 (issued December 23, 2019); L.T., Docket No. 18-1031 (issued 

March 5, 2019); see also RonaldR. Kraynak, 53 ECAB 130 (2001).

11 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5 (March 2017).
6

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

impairment CDX condition, which is then adjusted by GMFH, GMPE, and GMCS.12 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13

The A.M.A., Guides also provide that ROM impairment methodology is to be used as a 

stand-alone rating for upper extremity impairments when other grids direct its use or when no other 

DBI sections are applicable.14 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 

added.15 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.16

OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus

the ROM methodology for rating of upper extremity impairments.17 Regarding the application of 

ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities, 

FECA Bulletin No. 17-06 provides in pertinent part:

“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 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.”

18 (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 [claims examiner].”

19

 

12 A.M.A., Guides 383-492.

13 Id. at 411.

14 Id. at 461.

15 Id. at 473.

16 Id. at 474.

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

18 A.M.A., Guides 477.

19 V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018); FECA

Bulletin No. 17-06 (issued May 8, 2017).
7

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 OWCP’s medical adviser providing 

rationale for the percentage of impairment specified.20

Section 8123(a) of FECA provides that if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.21 This is called an impartial medical examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.22 When there exist opposing medical reports of virtually equal weight and rationale and the 

case is referred to an impartial medical specialist for the purpose of resolving the conflict, the 

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual 

background, must be given special weight.23

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 May 4, 2018 merit decision because the 

Board considered that evidence in its February 8, 2019 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.24

In support of her claim, appellant submitted a new permanent impairment evaluation report

dated February 16, 2020 from Dr. Fried, her treating physician. Utilizing the ROM methodology,

Dr. Fried opined that appellant sustained 10 percent permanent impairment of the upper left 

extremity. He also found that appellant had four percent permanent impairment utilizing the DBI 

method.

Consistent with its procedures,25 OWCP referred the matter to a DMA for an opinion 

regarding appellant’s permanent impairment in accordance with the A.M.A., Guides.

Dr. Katz, serving as the DMA, disagreed with Dr. Fried’s impairment rating, explaining 

that there was reason to question the reliability of the ROM rating based upon the variability of 

ROM measurement among observers. Dr. Katz concluded that the DBI rating was appropriate and 

 

20 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 2.808.6(f) (March 2017).

21 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

22 20 C.F.R. § 10.321.

23 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

24 See B.R., Docket No. 17-0294 (issued May11, 2018).

25 See S.S., supra note 10; Darlene R. Kennedy,supra note 23; Gloria J. Godfrey,supra note 23.
8

that appellant was entitled to three percent permanent impairment of the left upper extremity.

However, he did not address the difference in the ratings under the DBI method. 

As Dr. Fried and Dr. Katz calculated divergent permanent impairment ratings for ROM

and DBI, the Board finds that there is a conflict in the medical opinion evidence requiring referral 

to an impartial medical specialist pursuant to 5 U.S.C. § 8123(a).26

The Board will, therefore, remand the case to OWCP for referral to an impartial medical 

specialist to resolve the conflict in the medical opinion as to the extent of appellant’s left upper 

extremity permanent impairment. Following this and any further development as is deemed 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2020 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: September 8, 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

 

26 5 U.S.C. § 8123(a); see S.S., id.; R.S., supra note 21; S.T., supra note 21.