United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.J., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CUSTOMS & BORDER PROTECTION, 

U.S. BORDER PATROL, Yuma, AZ, Employer

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Docket No. 22-0584

Issued: August 15, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2022 appellant filed a timely appeal from a February 2, 2022 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 this case.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the February2, 2022 decision, OWCP received additional evidence. 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 greater than 13

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

schedule award.

FACTUAL HISTORY

On September 9, 2020 appellant, then a 46-year-old mission support specialist, filed a 

traumatic injury claim (Form CA-1) alleging that, on that date, she injured her left shoulder when 

she slipped and fell and caught herself with her left arm while in the performance of duty. She did 

not stop work. On November 30, 2020 OWCP accepted the claim for sprain, impingement 

syndrome, and adhesive capsulitis of the left shoulder. 

In a January 25, 2021 medical report, Dr. Tal David, a Board-certified orthopedic surgeon, 

evaluated appellant’s impairment under the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

3

 Utilizing Table 15-5

(Shoulder Regional Grid), page 404, he determined that she had 11 percent permanent impairment 

of her left upper extremity due to shoulder instability.

On January 29, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On February 3, 2021 OWCP routed the medical record, a statement of accepted facts 

(SOAF), and a list of questions to Dr. Herbert White, Jr., a Board-certified orthopedic surgeon 

serving as OWCP’s district medical adviser (DMA), for review and evaluation of appellant’s

permanent impairment pursuant to the A.M.A., Guides.

4

In a February 14, 2021 report, Dr. White indicated that he had reviewed the SOAF and the 

medical record, but was unable to provide an impairment rating because the medical record 

contained inconsistent physical examination findings pertaining to instability in appellant’s left 

shoulder. He further noted that the medical record did not contain measurements of adduction or 

external rotation in the right and left shoulders. Dr. White recommended referring appellant for a 

second opinion examination to determine the reproducibility of instability on examination and for 

evaluation of all motions of the right and left shouldersin accordance with the A.M.A., Guides.

On April 13, 2021 OWCP referred appellant for a second opinion evaluation with

Dr. William P. Curran, a Board-certified orthopedic surgeon. In a June 28, 2021 report, Dr. Curran 

determined that she had 14 percent permanent impairment of her left upper extremity based on the 

range of motion (ROM) method found on Table 15-34, page 475, of the sixth edition of the 

A.M.A., Guides. He advised that he utilized the ROM method to assess appellant’s permanent 

impairment because it resulted in a higher rating for the left upper extremity than the two percent 

rating obtained under the diagnosis-based impairment (DBI) rating method. For the leftshoulder,

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

4

Id.
3

Dr. Curran found that she had three percent permanent impairment due to 110 degrees of flexion, 

one percent permanent impairment due to 20 degrees of extension, three percent permanent 

impairment due to 100 degrees of abduction, one percent permanent impairment due to 30 degrees 

of adduction, four percent permanent impairment due to 30 degrees of internal rotation, and two 

percent permanent impairment due to 40 degrees of external rotation.5 He concluded that these 

separate ratings totaled 14 percent permanent impairment of the left upper extremity.

On July 13, 2021 OWCP again referred the SOAF and medical evidence, including

Dr. Curran’s June 28, 2021 report, to Dr. White, serving as DMA, to provide a permanent 

impairment rating. In a report of even date, Dr. White determined that appellant had 13 percent 

permanent impairment of her left upper extremity under the ROM rating method. He noted that 

he utilized the findings of the ROM rating method for her permanent impairment because it 

resulted in a higher rating for the left upper extremity than the two percent rating obtained under 

the DBI rating method. Dr. White asserted that Dr. Curran improperly rated left shoulder 

extension of 20 degrees as a one percent impairment. He noted that appellant’s extension on the 

right side (i.e., the unaffected side) was 40 degrees, which also was a one percent impairment. 

Dr. White opined that, given the same degree of impairment on both sides, the A.M.A., Guides

provided on page 461 that there was no impairment of the left shoulder due to extension of 20 

degrees. Therefore, he concluded thatDr. Curran’s assessment of leftupper extremity impairment 

should be reduced from 14 percent to 13 percent permanent impairment. Dr. White also concluded 

that appellant’s left shoulder injury had reached maximum medical improvement (MMI) as of 

June 21, 2021. 

On July 15, 2021 OWCP requested clarification from Dr. White regarding the date 

appellant reached MMI. 

In an amendment to the July 15, 2021 report, Dr. White opined that appellant reached MMI 

on June 28, 2021 the date of Dr. Curran’s physical examination. 

By decision dated July 19, 2021, OWCP granted appellant a schedule award for 13 percent 

permanent impairment of the left upper extremity (left arm). The date of MMI was found to be 

June 28, 2021. The award covered a period of 40.56 weeks and ran from June 28, 2021 to 

April 7, 2022. OWCP noted that the weight of the medical evidence rested with Dr. White as the

DMA, who applied the A.M.A., Guides to Dr. Curran’s findings.

On July 20, 2021 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. The hearing was held on November 18, 2021.

5

In his June 28, 2021 impairment rating report, Dr.Curran utilized the examination findings that he obtained on 

that date. The sixth edition of the A.M.A., Guides provides that the maximum measurement (out of the required three) 

is chosen for assessing impairment and that rounding procedures are applied to each measurement. See A.M.A., 

Guides 464. The maximum measurement obtained byDr.Curranfor each type of leftshoulder motion was as follows: 

110 degrees of flexion; 20 degrees of extension; 100 degrees of abduction; 30 degrees of adduction; 30 degrees of 

internal rotation; and 40degrees of external rotation. The maximum measurement obtained for each type of shoulder 

motion for the unaffected rightside was as follows: 180 degrees of flexion; 40 degrees of extension; 180degrees of 

abduction; 40 degrees of adduction; 80 degrees of internal rotation; and 80degrees of external rotation.
4

OWCP thereafter received an August 31, 2021 report by Dr. David, who noted that he

reviewed Dr. Curran’s June 28, 2021 report. Dr. David indicated that he concurred with

Dr. Curran’s permanent impairment rating of 14 percent of the left upper extremity based upon the 

ROM method. 

By decision dated February 2, 2022, the hearing representative affirmed OWCP’s July 19, 

2021 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 

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

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and 

the Board has concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment 

is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.9

It is the claimant’s burden of proof to establish permanent impairment of the scheduled 

member or function of the body as a result of an employment injury.10 OWCP procedures provide 

that, to support a schedule award, the file must contain competent medical evidence which shows 

that the impairment has reached a permanent and fixed state and indicates the date on which this 

occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized 

on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.

11

 

With respect to calculating impairment under the DBI method for the right shoulder, 

reference is made to Table 15-5 (Shoulder Regional Grid).12 Table 15-5 also provides that, if 

motion loss is present for a claimant with certain diagnosed conditions, permanent impairment 

6

Supra note 1.

7

20 C.F.R. § 10.404.

8

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

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

2.808.5a (March2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

10 E.D., Docket No. 19-1562 (issued March 3, 2020); Edward Spohr, 54 ECAB 806, 810 (2003); TammyL. Meehan, 

53 ECAB 229 (2001).

11 Supra note 9 at Chapter 2.808.5 (February 2022).

12 See A.M.A., Guides 401-05, Table 15-5.
5

may alternatively be assessed using section 15.7 (ROM impairment). Such a ROM rating stands 

alone and is not combined with a DBI rating.13

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.14 Regarding the application of 

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

FECA Bulletin No 17-06 provides:

“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.”

15 (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].”

16

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

should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.17

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than 13

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

schedule award.

In his June 28, 2021 report, Dr. Curran determined that appellant had 14 percent permanent 

impairment of her left upper extremity based on the ROM rating method found on Table 15-34 of 

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

18

 For the left shoulder, he found that she had three percent 

13 Id. at 401-05, 475-78.

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

15 Id.

16 Id.; see also H.H., Docket No. 19-1530 (issued June26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17 See supra note 9 at Chapter 2.808.6f (March 2017); P.W., Docket No. 19-1493 (issued August12, 2020).

18 See A.M.A., Guides 475, Table 15-34.
6

permanent impairment due to 110 degrees of flexion, one percent permanent impairment due to 

20 degrees of extension, three percent permanent impairment due to 100 degrees of abduction, one 

percent permanent impairment due to 30 degrees of adduction, four percent permanent impairment 

due to 30 degrees of internal rotation, and two percent permanent impairment due to 40 degrees of 

external rotation.

The Board finds, however, that in his July 13, 2021 report, Dr. White, the DMA, properly 

determined that appellant had 13 percent permanent impairment of her left upper extremity.19 He 

found that Dr. Curran incorrectly rated left shoulder extension of 20 degrees as a one percent 

impairment. Appellant’s shoulder extension on the unaffected right side was 40 degrees, which 

also was a one percent impairment. Given the same degree of impairment on both sides, the 

A.M.A., Guides provided on page 461 that there was no impairment due to left shoulder extension

of 20 degrees. The Board notes that Dr. White concurred with the other individual ROM ratings 

calculated by Dr. Curran and that these ratings totaled 13 percent. Therefore, the Board finds that

Dr. White properly concluded that appellant had 13 percent permanent impairment of her left 

upper extremity.20

Appellant also submitted a January 25, 2021 report by Dr. David in support of her claim

for schedule award compensation, who found 11 percent permanent impairment of the left upper 

extremity under the A.M.A., Guides Table 15-5 (Shoulder Reginal Grid), page 404. As noted 

above, it is the claimant’s burden of proof to establish permanent impairment of the scheduled 

member or function of the body as a result of an employment injury.21 Dr. David’s January 25, 

2021 report does not support greater than 13 percent impairment of the left upper extremity based 

upon the A.M.A., Guides and, therefore, is insufficient to establish appellant’s burden of proof.

Appellant also submitted an August 31, 2021 report by Dr. David, who indicated that he 

had reviewed Dr. Curran’s June 28, 2021 report and concurred with an impairment rating of 14 

percent permanent impairment of the left upper extremity based upon the ROM method. However, 

he did not provide medical rationale in support of this opinion. The Board has held that a medical 

report is of limited probative value on a given medical matter if it contains a conclusion regarding 

that matter which is unsupported by medical rationale.22 Therefore, Dr. David’s August 31, 2021 

report is also insufficient to meet appellant’s burden of proof.

As the record contains no other probative, rationalized medical opinion that, supports 

greater impairment of the left upper extremity based upon the A.M.A., Guides, the Board finds 

that appellant has not met her burden of proof.

19 The Board notes that Dr.White properly used the findings of the ROM rating method for appellant’s permanent 

impairment because it resulted in a higher rating for left upper extremity than the two percent rating obtained under 

the DBI rating method. See supranote 5. Table 15-5 provides for use of the ROM rating method in appellant’s case 

given her left shoulder impingement diagnosis. See A.M.A., Guides 402, Table 15-5.

20 See B.J., Docket No. 20-0930 (issued July 2, 2021).

21 See supra note 11.

22 D.H., Docket No. 17-0530 (issued July 2, 2018).
7

Accordingly, the Board finds that the evidence of record is insufficient to establish greater 

than the 13 percent permanent impairment of her left upper extremity previously awarded.

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish more than 13 

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the February 2, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 15, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board