United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Fort Worth, TX, Employer

__________________________________________

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Docket No. 20-0715

Issued: March 11, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 12, 2020 appellant filed a timely appeal from a September 17, 2019 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

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 23 

percent permanent impairment of his right upper extremity for which he previously received a 

schedule award.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that OWCP received additional evidence following the September 17, 2019 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

FACTUAL HISTORY

On August 3, 2017 appellant, then a 49-year-old motor vehicle operator, filed a traumatic 

injury claim (Form CA-1) alleging that on that date he injured his right shoulder when he attempted 

to move an over the road container to load into a truck while in the performance of duty. He

initially stopped work on August 3, 2017 and returned on August 10, 2017. 

An August 11, 2017 magnetic resonance imaging (MRI) scan of the right shoulder,

interpreted by Dr. Tuong Huu Le, a Board-certified radiologist, revealed a partial thickness rotator 

cuff tear and bony contusion. 

OWCP accepted the claim for right shoulder rotator cuff muscle and tendon strain, brachial 

plexus injury, and rotator cuff tear or rupture of the right shoulder. (ICD 10) It paid appellant 

intermittent wage-loss compensation on the supplemental rolls, effective October 14, 2017, and 

on the periodic rolls, effective November 12, 2017. Appellant later received intermittent wageloss compensation again on the supplemental rolls as of November 13, 2018.

OWCP received a January 8, 2018 electromyography/nerve conduction velocity

(EMG/NCV) study, which revealed bilateral carpal tunnel syndrome, and bilateral ulnar motor and 

sensory neuropathy.

On March 14, 2019 appellant filed a claim for a schedule award (Form CA-7).

In a November 30, 2018 report, Dr. Rory Allen, an osteopath specializing in family 

medicine, noted appellant’s history of injury and medical treatment. He utilized the sixth edition 

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

(A.M.A., Guides)

3

to provide a permanent impairment rating based upon appellant’s diagnoses of

right rotator cuff strain, rotator cuff partial tear, and brachial plexus injury. Dr. Allen found five

percent permanent impairment under the diagnosis-based impairment (DBI) method based upon 

appellant’s right rotator cuff strain, with a partial thickness tear and residual loss of normal 

function. He explained that, using Table 15-5 page 402 of the A.M.A., Guides, for a right rotator 

cuff injury, partial thickness tear, appellant would be rated as a class of diagnosis (CDX) 1, grade 

C, with a default rating of three percent. The grade modifier for functional history (GMFH) was 

4 due to a QuickDASH score of 93, per Table 15-7 page 406, the grade modifier for physical 

examination (GMPE) was 2 due to moderate palpatory findings and decreased range of motion 

(ROM) per Table 15-8 page 408, the grade modifier for clinical studies (GMCS) was 2 per Table 

15-9 page 410. Dr. Allen applied the net adjustment formula and concluded that appellant had 

five percent right upper extremity permanent impairment. 

Dr. Allen related three ROM measurements for appellant’s right shoulder. Appellant’s 

ROM for the right shoulder was noted as flexion of 43, 45, and 45 degrees, extension 5, 7, and 8, 

degrees, abduction 44, 45, and 45 degrees, adduction 14, 15, and 15 degrees, internal rotation 24,

25, and 26 degrees, and external rotation of 30, 32, and 32 degrees. Dr. Allen rounded each of 

these findings to 50 degrees loss of flexion, 10 degrees loss of extension, 50 degrees loss of 

abduction, 20 degrees loss of adduction, 30 degrees loss of internal rotation, and 30 degrees loss 

of external rotation, and found that appellant had nine percent impairment due to loss of flexion, 

 

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

two percent impairment due to loss of extension, six percent impairment due to loss of abduction, 

one percent impairment due to loss of adduction, four percent impairment due to loss of internal 

rotation, and two percent impairment due to loss of external rotation. He found that these findings 

totaled 24 percent. Dr. Allen then applied the 5 percent adjustment per Table 15-36 page 477 for 

GMFH and found 25 percent permanent impairment under the ROM method.

Dr. Allen then provided detailed findings and ratings under Table 15-20 page 434 and 435 

for right brachial plexus upper and middle trunk injuries and determined that appellant’s right 

brachial plexus injury caused 44 percent permanent upper extremity impairment. He combined 

the 25 percent permanent impairment due to appellant’s right shoulder rotator cuff impairment 

with right brachial plexus upper trunk injury and concluded that appellant had 52 percent right 

upper extremity permanent impairment.

On March 20, 2019 OWCP prepared a statement of accepted facts (SOAF) wherein it noted 

the accepted condition as right shoulder rotator cuff muscle and tendon strain. 

In an April 13, 2019 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon 

serving as a district medical adviser (DMA), reviewed Dr. Allen’s November 30, 2018 report. He 

explained that Dr. Allen’s findings on examination were much greater than expected for the 

diagnosed conditions and objective findings based on the diagnostic studies. Dr. Harris 

recommended a second opinion examination because of the discrepancy. 

On May 28, 2019 OWCP referred appellant to Dr. Jack Henry, a Board-certified 

orthopedic surgeon, for a second opinion permanent impairment evaluation. In a July 18, 2019 

report, Dr. Henry noted review of appellant’s history of injury, medical treatment, and the SOAF. 

He provided physical examination findings for appellant’s right shoulder, and utilized the sixth 

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

4

 Dr. Henry noted that he had taken three sets of ROM 

measurements and reported the maximum measurements, including 50 degrees flexion, 30 degrees 

extension, 55 degrees abduction, 30 degrees adduction, 30 degrees internal rotation, and 40 degrees 

external rotation. He referred to Table 15-34 at page 475 and found that flexion of 50 degrees was 

equal to nine percent upper extremity impairment, extension of 30 degrees was equal to one percent 

upper extremity impairment, abduction of 55 degrees was equal to six percent upper extremity 

impairment, adduction of 30 degrees was equal to one percent impairment, internal rotation of 30 

degrees was equal to four percent upper extremity impairment, and external rotation of 40 degrees 

was equal to two percent upper extremity impairment. Dr. Henry explained that appellant had a 

grade 2 ROM modifier using Table 15-35 at page 477 and a GMFH of 2 using Table 15-7 at page 

406, and; therefore, no modification of the impairment was required pursuant to Table 15-36 at 

page 477 of the A.M.A., Guides. He advised that appellant had 23 percent right upper extremity 

impairment using the ROM method.

Dr. Henry referred to Table15-5 at page 402 and explained that using the DBI-based 

method, appellant was rated CDX 1 for the accepted right shoulder rotator cuff strain/tear with 

residual loss. He applied a GMFH of 2, with pain/symptoms during normal activities, and to 

perform all self-care activities independently, based on Table 15-7 at page 406. Dr. Henry applied 

a GMPE of 2 for moderate ROM loss, based on Table 15-8 at page 408. He applied a GMCS of 

2, based on Table 15-9 at page 410. Dr. Henry utilized the net adjustment formula and determined 

 

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

+3 to the right of the default grade of C, which resulted in a grade E, or 5 percent right upper 

extremity impairment using the DBI method. He advised that, since the ROM impairment rating 

was higher than the DBI rating, appellant was assigned 23 percent right upper extremity 

impairment.

Dr. Henry noted that he concurred with the findings provided by Dr. Allen, with the 

exception of an award for a brachial plexus injury, which was not an accepted condition. He

indicated that appellant had reached maximum medical improvement (MMI). 

In accordance with procedure, Dr. Henry’s report was forwarded to the DMA for review. 

In an August 9, 2019 report, Dr. Harris, the DMA, reviewed the medical findings provided 

by Dr. Henry. He applied the A.M.A. Guides and used July 18, 2019, the date of Dr. Henry’s 

report, as the date of MMI. The DMA advised that, using the DBI method under Table 15-5 of 

the A.M.A., Guides, at pages 401 to 405, appellant had five percent permanent impairment for 

partial thickness tear of the rotator cuff, the maximum permanent impairment value for the 

diagnosis. Regarding ROM method, he concurred with the findings provided by Dr. Henry. 

By decision dated September 17, 2019, OWCP granted appellant a schedule award for 23 

percent permanent impairment of the right upper extremity. The award ran for 71.76 weeks for 

the period July 18, 2019 to December 1, 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.5 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.6 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (6th ed. 2009).7

 

5 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6 20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB 

130 (2001).

7 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(a) (March 2017).
5

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

impairment CDX condition, which is then adjusted by grade modifiers or GMFH, GMPE, and 

GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

The A.M.A., Guides also provide that the 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.10 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.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

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.13 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:

“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.)14

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 

 

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

9

Id. at 411.

10 Id. at 461.

11 Id. at 473.

12 Id. at 474.

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

14 A.M.A., Guides 477.
6

should independently calculate impairment using both the ROM and DBI methods 

and identify the higher rating for the CE.”

15

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 impairment in 

accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of 

impairment specified.16

ANALYSIS

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

OWCP’s record reflects that the accepted conditions in this case are right shoulder strain 

of the muscles and tendons, right shoulder rotator cuff tear or rupture, and right brachial plexus 

injury. 

Appellant’s treating physician, Dr. Allen, provided a permanent impairment rating of 

appellant’s right upper extremity based upon the diagnoses of right rotator cuff partial thickness 

tear and brachial plexus injury. OWCP referred the case record to Dr. Henry for a second opinion 

evaluation and thereafter to the DMA, Dr. Harris, for review. 

The March 20, 2019 SOAF presented to Dr. Henry, however, only listed the accepted 

conditions of right shoulder rotator cuff muscle and tendon strain. It is OWCP’s responsibility to 

provide a complete and proper frame of reference for a physician by preparing a SOAF.

17

 OWCP’s 

procedures dictate that, when a DMA, second opinion specialist, or referee physician renders a 

medical opinion based on a SOAF which is incomplete or inaccurate, or does not use the SOAF 

as the framework in forming his or her opinion, the probative value of the opinion is seriously 

diminished or negated altogether.18 OWCP did not provide Dr. Henry, the second opinion 

physician with an accurate SOAF as it did identify all of appellant’s accepted right upper extremity 

conditions, which also included a right shoulder tear or rupture and a brachial plexus injury. The 

Board finds that the report from OWCP’s second opinion physician was not based on an accurate 

factual framework.

19

 The Board is therefore unable to determine which diagnosis and examination 

findings related to appellant’s right upper extremity resulted in the highest permanent impairment 

rating. 

 

15 Id.; A.G., Docket No. 18-0329(issued July 26, 2018).

16 See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 

18-0782 (issued January 11, 2019).

17 M.B., Docket No. 19-0525 (issued March 20, 2020); J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. 

Demarsh, 56 ECAB 677 (2005).

18 Supra note 7 at Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

19 B.K, Docket No. 19-0976 (issued December 15, 2020); G.C., Docket No. 18-0842 (issued December 20, 2018).
7

Once OWCP undertakes development of the record, it has the responsibility to do so in a 

manner that will resolve the relevant issues in the case.20 Accordingly, the Board finds that the 

case must be remanded to OWCP. On remand OWCP shall prepare a complete and accurate SOAF 

and refer appellant for a new second opinion evaluation to determine his right upper extremity 

permanent impairment. Following this and such further development as deemed necessary, it shall 

issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2019 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: March 11, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

20 R.W., Docket No. 19-1109 (issued January 2, 2020); D.S., Docket No. 19-0292 (issued June21, 2019); G.C., id.