United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

IMPERIAL BEACH STATION, San Diego, CA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 20-1316

Issued: March 3, 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 June 22, 2020 appellant filed a timely appeal from a January 7, 2020 merit decision and 

June 3, 2020 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish permanent 

impairment of a scheduled member or function of the body, warranting a schedule award; and 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the June 3, 2020 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

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 14, 2008 appellant, then a 39-year-old senior patrol agent, filed a traumatic injury 

claim (Form CA-1) alleging that on May 12, 2008 he suffered a left shoulder and arm injury after 

losing control and falling from an all-terrain vehicle (ATV) while in the performance of duty. He 

stopped work on May 12, 2008.

In a May 14, 2008 report, Dr. Benjamin Cox, a neurosurgeon, noted that appellant 

experienced bilateral shoulder and rib pain after falling from an ATV onto concrete. He examined 

appellant and reviewed x-rays of his shoulders. Dr. Cox diagnosed acute grade 2 left 

acromioclavicular (AC) joint separation, left all costochondral junction disruption syndrome, left 

pectoralis major and minor muscle strain/sprain, left deltoid muscle and triceps muscle 

strain/sprain, and right infraspinatus muscle strain.

Appellant returned to light-duty work on June 18, 2008 and full-duty work on 

August 20, 2008.

In a September 17, 2008 report, Dr. Cox noted that appellant had no subjective complaints. 

He examined appellant and found no external anatomical abnormalities and full left shoulder range 

of motion (ROM). Dr. Cox opined that appellant had reached maximum medical improvement 

(MMI).

On October 15, 2008 OWCP accepted appellant’s claim for left AC joint separation. 

On May 15, 2017 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated May 19, 2017, OWCP informed appellant that the medical 

evidence of record was insufficient to establish his schedule award claim. It requested that he 

submit a detailed narrative medical report from his treating physician based upon a recent 

examination including a date of MMI, the diagnosis upon which the impairment rating was based, 

a detailed description of any preexisting impairment, and a final rating of the permanent 

impairment and discussion of the rationale for calculation of the impairment, with references to 

the applicable criteria and tables of the sixth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP afforded appellant 30 days 

to submit the necessary evidence.

In a June 27, 2017 report, Dr. David Chao, an orthopedic surgeon, noted that appellant 

injured his left shoulder after rolling over in an ATV and landing on his left shoulder. He examined 

appellant and noted that he had normal ROM and full strength in his left shoulder. Dr. Chao 

reviewed x-rays of appellant’s left shoulder and diagnosed closed traumatic dislocation of the left 

AC joint. Utilizing the fifth edition of the A.M.A., Guides,

4 he found that appellant had 10 percent 

 

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

4 A.M.A., Guides (5th ed. 2001).
3

permanent impairment of the upper extremity. Dr. Chao opined that appellant had reached 

permanent and stationary status.

On March 7, 2018 OWCP referred appellant’s case, along with a statement of accepted 

facts (SOAF), to Dr. Herbert White, Jr., a Board-certified occupational medicine specialist serving 

as the district medical adviser (DMA). In a March 10, 2018 report, Dr. White reviewed the SOAF

and medical record. Utilizing the diagnosis-based impairment (DBI) method of the sixth edition 

of the A.M.A., Guides, he identified the class of diagnosis (CDX) as a class one impairment for 

the diagnosis of AC joint injury or disease with residual loss, functional with normal motion under 

Table 15-5, page 403. Dr. White noted a grade modifier for functional history (GMFH) of 1, in 

accordance with Table 15-7, page 406, as appellant had pain/symptoms with strenuous activity. 

He assigned a grade modifier for physical examination (GMPE) of 1, in accordance with Table 

15-8, page 408, as appellant’s AC joint prominence was exaggerated. Dr. White found that a grade 

modifier for clinical studies (GMCS) was excluded in accordance with Table 15-9, page 410. He 

calculated that appellant had a net adjustment of zero, resulting in no movement from the default 

value of C and corresponding to a three percent left upper extremity impairment. Dr. White

determined that appellant had zero percent left upper extremity impairment under the range of 

motion (ROM) methodology and therefore concluded that the DBI method should be used for 

rating purposes. He disagreed with Dr. Chao’s impairment rating as he found that appellant had a 

Type 2 AC separation based on Dr. Cox’s report. Dr. White opined that appellant reached MMI 

on August 20, 2008, the date that appellant returned to full-duty work.

A left shoulder arthrogram, dated December 12, 2018, revealed extensive labral tearing 

with paralabral cyst formation and articular-sided tearing with mild medial subluxation consistent 

with remote grade 3 AC separation. 

On April 29, 2019 OWCP referred appellant for a second opinion examination with

Dr. Ronald Teed, a Board-certified orthopedic surgeon. In a July 3, 2019 report, Dr. Teed 

reviewed the SOAF and medical record.

5

 He examined appellant and found no gross deformity in 

his bilateral shoulders. Dr. Teed noted that both shoulders had full ROM and full strength. He 

indicated that appellant’s left shoulder had no pain to palpation and his left AC joint was 

prominent, nontender, and stable. Dr. Teed diagnosed closed left AC dislocation, healed, and 

noted that appellant had secondary, unrelated conditions that were due to aging. He opined that 

appellant reached MMI on September 17, 2008. Utilizing the DBI method of the A.M.A., Guides,

Dr. Teed identified the CDX as a class zero impairment for the diagnosis of AC joint injury or 

disease with no significant objective abnormal findings at MMI. He therefore concluded that 

appellant had zero percent permanent impairment of the upper extremity.

X-rays of appellant’s left shoulder, dated November 19, 2019, revealed prior left AC joint 

separation.

In a November 19, 2019 report, Dr. Mallik Tella, a Board-certified orthopedic surgeon, 

noted that appellant presented with an 11-year history of left shoulder pain after falling from an 

ATV. He examined appellant’s left shoulder and found tenderness to palpation at the biceps 

tendon and AC joint. Dr. Tella noted that appellant had full strength in his left shoulder. He 

diagnosed Type 3 left AC separation and indicated that appellant had 10 percent permanent 

 

5 Dr. Teed referenced findings of a February 28, 2019 magnetic resonance imaging (MRI) scan and a request for 

surgery from Dr. Patrick Denard that are unrelated to appellant’s case.
4

impairment of the upper extremity. Dr. Tella noted that appellant had a class one injury/mild 

problem and that all of his grade modifiers were one.

On December 5, 2019 OWCP again referred appellant’s case to Dr. White, the DMA, for 

a schedule award impairment rating. In a December 13, 2019 report, Dr. White reviewed the 

SOAF and medical record.6 Utilizing the DBI method of the A.M.A., Guides, he identified the 

CDX as a class zero impairment for the diagnosis of AC joint injury or disease with no significant 

objective abnormal findings under Table 15-5, page 403. Dr. White therefore noted that appellant 

had zero percent left upper extremity impairment. He calculated that appellant also had zero 

percent left upper extremity impairment under the ROM methodology. Dr. White agreed with

Dr. Teed’s impairment rating, but opined that the date of MMI was July 3, 2019. 

By decision dated January 7, 2020, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment of 

a scheduled member or function of the body. It based its determination on the opinion of

Dr. White, the DMA.

On May 19, 2020 appellant requested reconsideration. He asserted that he had 10 percent 

upper extremity impairment based on the reports of Drs. Chao and Tella. Appellant argued that 

the July 3, 2019 report from Dr. Teed was inconsistent and referenced medical evidence that was 

unrelated to his case. 

By decision dated June 3, 2020, OWCP denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,7and its implementing federal regulations,8set 

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.9 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

 

6 Dr. White did not review x-rays of appellant’s left shoulder, dated November 19, 2019, and Dr. Tella’s report of 

even date.

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

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

2.808.5(a) (February 2013); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
5

(ICF).11 Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the 

GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + 

(GMCS-CDX).13 Evaluators are directed to provide reasons for their impairment rating, including 

the choice of diagnoses from regional grids and the calculation of the modifier score.14

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the 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 impairment specified.15

ANALYSIS -- ISSUE 1

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

In a June 27, 2017 report, Dr. Chao, appellant’s attending physician, diagnosed closed 

traumatic dislocation of the left AC joint and found that appellant had 10 percent permanent 

impairment of the upper extremity under the fifth edition of the A.M.A., Guides.

In a March 10, 2018 report, Dr. White, the DMA, reviewed the SOAF and medical record. 

Utilizing the DBI method of the A.M.A., Guides, he identified the CDX as a class one impairment 

for the diagnosis of AC joint injury or disease with residual loss, functional with normal motion 

under Table 15-5, page 403. Dr. White calculated that appellant had three percent left upper 

extremity impairment. He disagreed with Dr. Chao’s impairment rating as he found that appellant 

had a Type 2 AC separation as opposed to a Type 3 AC separation.

OWCP referred appellant to Dr. Teed for a second opinion examination to determine his

permanent impairment for schedule award purposes. In a July 3, 2019 report, Dr. Teed provided 

findings on physical examination and noted that a diagnosis of closed left AC dislocation, healed. 

He opined that appellant reached MMI on September 17, 2008. Utilizing the DBI method of the 

A.M.A., Guides, Dr. Teed identified the CDX as a class zero impairment for the diagnosis of AC 

joint injury or disease with no significant objective abnormal findings at MMI and concluded that 

appellant had zero percent permanent impairment of the upper extremity.

In a December 13, 2019 report, Dr. White, the DMA, reviewed Dr. Teed’s July 3, 2019 

report. Utilizing the DBI method of the A.M.A., Guides, he identified the CDX as a class zero 

impairment for the diagnosis of AC joint injury or disease with no significant objective abnormal 

findings under Table 15-5, page 403. Dr. White, therefore, found that appellant had zero percent 

left upper extremity impairment. He calculated that appellant also had zero percent left upper 

 

11 A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability, and Health 

(ICF): A Contemporary Model of Disablement.

12 Id. at 493-556.

13 Id. at 521.

14 E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018); 

R.V., Docket No. 10-1827 (issued April 1, 2011).

15 See supra note 10 at Chapter 2.808.6(f) (March 2017).
6

extremity impairment under the ROM methodology and opined that the date of MMI was 

July 3, 2019.

Having reviewed the case record, the Board finds that OWCP failed to properly develop 

the evidence. OWCP received x-rays of appellant’s left shoulder, dated November 19, 2019, 

which revealed prior left AC joint separation. It also received a November 19, 2019 report from

Dr. Tella who provided findings on physical examination and found that appellant had 10 percent 

permanent impairment of the upper extremity. However, OWCP failed to forward this relevant 

medical evidence to Dr. White for comment and review pertaining to the extent of permanent 

impairment of appellant’s left upper extremity impairment.16 The record reflects that Dr. White’s

impairment rating was therefore not based on a full and accurate framework rendering his opinion 

of limited probative value.17

Additionally, the Board finds that Dr. White failed to adequately explain his opinion in 

accordance with the relevant standards. Although he identified the CDX as class zero impairment,

Dr. White did not sufficiently explain how he classified appellant’s AC joint injury based on 

severity.18 Dr. White noted that there were no significant objective abnormal findings at MMI. 

However, he failed to account for appellant’s arthrogram of his left shoulder, dated December 12, 

2018, which revealed labral tearing with partial rotator cuff tearing, biceps tendon medial 

subluxation, and findings consistent with remote grade 3 AC separation. Dr. White also failed to 

explain why he identified the CDX as class zero impairment after finding that the CDX was a class 

one impairment in his March 10, 2018 report.

It is well established that, proceedings under FECA are not adversarial in nature, and while 

the employee has the burden of proof to establish entitlement to compensation, OWCP shares 

responsibility in the development of the evidence.19 Once OWCP undertook development of the 

evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do 

a complete job and obtain a proper evaluation and report that would resolve the issue in this case.20

The case is therefore remanded to OWCP for further medical development.21 OWCP shall 

request that Dr. White review the entire case record and provide a supplemental opinion regarding

whether appellant has permanent impairment of his left upper extremity in accordance with the 

sixth edition of the A.M.A., Guides. Following this and such further development as deemed 

necessary, OWCP shall issue a de novo decision.

 

16 L.S., Docket No. 19-1730 (issued August 26, 2020).

17 Id.

18 See D.O., Docket No. 19-1729 (issued November 3, 2020); R.O., Docket No. 10-2143 (issued August 15, 2011).

19 See W.W., Docket No. 18-0093 (issued October 9, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);

William J. Cantrell, 34 ECAB 1233, 1237 (1983).

20 See G.M., Docket No. 19-1931 (issued May 28, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi,

56 ECAB 234 (2004).

21 L.S., supra note Error! Bookmark not defined.; P.E., Docket No. 17-0961 (issued March 14, 2018).
7

CONCLUSION

The Board finds this case is not in posture for decision.22

ORDER

IT IS HEREBY ORDERED THAT the January 7 and June 3, 2020 decisions of the 

Office of Workers’ Compensation Programs are set aside and the case is remanded for further 

proceedings consistent with this decision of the Board.

Issued: March 3, 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

 

22 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.