United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., widow of J.D., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

COMMISSARY AGENCY, Camp Pendleton, CA, 

Employer

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Docket No. 19-1168

Issued: March 29, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 30, 2019 appellant, through counsel, filed a timely appeal from a February 15, 

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 over 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 her burden of proof to establish that the employee 

had more than 13 percent permanent impairment of his left upper extremity, for which he

previously received a schedule award.

FACTUAL HISTORY

On March 15, 2003 the employee, then a 52-year-old meat cutter, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he injured his left shoulder lifting a piece of meat 

while in the performance of duty. OWCP assigned the claim OWCP File No. xxxxxx748 and 

accepted it for an aggravation of a left rotator cuff tear.3

On February 14, 2003 the employee underwent an arthroscopic subacromial 

decompression and coupling of the distal clavicle of the left shoulder. On May 27, 2003 he 

underwent a left shoulder mini open rotator cuff repair and on January 30, 2004 he underwent a 

left shoulder mini open rotator cuff repair and lysis of adhesions. 

In a report dated September 24, 2004, Dr. Thomas Wenyeh Wang, a Board-certified family 

practitioner, diagnosed a left shoulder rotator cuff tear and retear, status post repairs. He provided 

range of motion (ROM) measurements for the left upper extremity.

On October 25, 2006 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as 

a district medical adviser (DMA), applied the fifth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4to Dr. Wang’s clinical 

findings. He determined that the employee had 6 percent impairment of the left upper extremity 

due to loss of ROM of the left shoulder and 6 percent impairment due to left shoulder muscle 

weakness, for a total left upper extremity permanent impairment of 13 percent.

By decision dated November 29, 2007, OWCP granted the employee a schedule award for 

13 percent permanent impairment of the left upper extremity.5 The award was for 40.56 weeks 

and ran from the period November 25, 2007 to September 3, 2008. 

 

3 OWCP previously accepted under OWCP File No. xxxxxx242 that on October 31, 2002 the employee sprained 

his left rotator cuff. It also accepted under OWCP File No. xxxxxx555 that on December 18, 2002 he sprained/strained 

his left shoulder. OWCP has administratively combined OWCP File Nos. xxxxxx242, xxxxxx555 and xxxxxx748 

with the later serving as the master file.

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

5 By decision dated November 9, 2007, OWCP reduced the employee’s wage-loss compensation, effective 

November 25, 2007, after finding that he had the capacity to earn wages in the selected position of computer support 

technician. By decision dated June 26, 2008, an OWCP hearing representative affirmed the November 9, 2007 

decision, and by decision dated November 19, 2008, OWCP denied modification of the June 26, 2008 decision. 

OWCP subsequently accepted that the employee sustained a recurrence of disability and paid him wage-loss 

compensation for total disability on the periodic rolls beginning March 15, 2009. 
3

On March 3, 2009 the employee underwent arthroscopic surgery with a mini open rotator 

cuff repair of the left shoulder.6 

On June 10, 2015 OWCP expanded its acceptance of the claim to include aggravation of 

left shoulder arthritis.

The employee underwent a functional capacity evaluation (FCE) on November 19, 2015. 

The FCE provided ROM measurements for the shoulders bilaterally. 

In a report dated April 11, 2017, Dr. Wang reviewed the results from the November 19, 

2015 FCE. He reviewed ROM measurements for the bilateral shoulders and found that the 

employee had normal strength. Dr. Wang diagnosed left rotator cuff syndrome.

In an April 26, 2017 impairment rating report, Dr. Mesfin Seyoum, who specializes in 

family medicine, indicated that he had reviewed the evidence of record, but had not physically 

examined the employee. He diagnosed a rotator cuff tear and strain and adhesive capsulitis of the 

left shoulder. Utilizing the Dr. Wang’s physical findings, and referencing the sixth edition of the 

A.M.A., Guides, Dr. Seyoum identified the class of diagnosis (CDX) as a class 3 left shoulder 

arthroplasty according to Table 15-5 on page 405, which yielded a default impairment rating of 30 

percent. He applied a grade modifier for physical examination (GMPH) of two and a grade 

modifier for clinical studies (GMCS) of two, and found that a grade modifier for functional history 

(GMFH) was not applicable due to lack of information available to review. Dr. Seyoum utilized 

the net adjustment formula to find no change from the default value of 30 percent. He further 

found 15 percent permanent impairment due to loss of ROM of the shoulder according to Table 

15-34 on page 475. Dr. Seyoum used ROM measurements from November 2015.

On June 16, 2017 the employee filed a claim for an increased schedule award (Form CA-7). 

On August 30, 2017 Dr. Morley Slutsky, Board-certified in occupational medicine and

serving as a DMA, noted that Dr. Seyoum had based his impairment calculations due to loss of 

ROM of the employee’s left shoulder on a November 2015 FCE. He opined that the measurements 

were invalid for purposes of rating impairment under the 6th edition of the A.M.A., Guides7as the 

evaluator had not obtained three ROM measurements per joint. Using the diagnosis-based 

impairment (DBI) method, Dr. Slutsky identified the CDX as a class 1 full-thickness rotator cuff 

tear with residual dysfunction according to Table 15-5 on page 403, which yielded a default value 

of five percent. He applied a GMFH of one and found that a GMPH was not applicable as

Dr. Seyoum had not provided examination findings. Dr. Slutsky further noted that clinical studies 

were used to identify the correct diagnosis class and thus a GMCS was inapplicable. He found no 

adjustment from the default value of five percent for the left upper extremity after applying the net 

adjustment formula. Dr. Slutsky opined that the employee had obtained maximum medical 

 

6 By decision dated December 22, 2016, OWCP reduced the employee’s wage-loss compensation as he had the 

capacity to earn wages in the selected position of customer complaint clerk. On January 1, 2017 the employee elected 

to receive retirement benefits from the Office of Personnel Management in lieu of wage-loss compensation from 

OWCP. By decision dated August 14, 2017, an OWCP hearing representative affirmed the December 22, 2016 

decision. 

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

improvement (MMI) on April 11, 2017, the date of Dr. Wang’s last examination. He noted that 

the employee had previously received a schedule award for 13 percent permanent impairment of 

the left shoulder and was thus not entitled to an increased schedule award.

By decision dated September 5, 2017, OWCP denied the employee’s claim for an increased 

schedule award. 

On September 11, 2017 the employee, through counsel, requested a telephonic hearing 

before a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was 

held on February 14, 2018. 

By decision dated March 29, 2018, OWCP’s hearing representative vacated the 

September 5, 2017 decision, finding that OWCP had not complied with FECA Bulletin No. 17-06. 

He remanded the case for OWCP to refer the employee for a second opinion examination on the 

issue of the extent of his left upper extremity impairment. OWCP’s hearing representative noted 

that, if the A.M.A., Guides allowed for both the DBI and ROM methods to rate an impairment, 

both should be calculated and the greater used to determine the impairment percentage.

In a report dated February 21, 2018, Dr. Seyoum reviewed Dr. Slutsky’s August 28, 2017 

report. He noted that he had based his impairment rating on a November 2015 report from

Dr. Wang as it was the most current evidence available for his review. Dr. Seyoum identified the 

CDX as a class 1 acromioplasty using Table 15-5 on page 403 of the A.M.A., Guides, which he 

found yielded a range of 8 to 12 percent. He applied GMPE and GMCS of two and found that a 

GMFH was inapplicable. After using the net adjustment formula, Dr. Seyoum found 12 percent 

permanent impairment of the left shoulder using the DBI method. He noted that he would need to 

review three active ROM measurements for the shoulder in order to use the ROM method.8

On June 29, 2018 Dr. Slutsky affirmed prior impairment rating. He noted that Dr. Seyoum

had rated the employee for an acromioplasty, which he advised was not a ratable diagnosis. 

Dr. Slutsky advised that he was basing his impairment rating on Dr. Wang’s findings in his 

April 11, 2017 report. He asserted that Dr. Wang had failed to provide valid ROM measurements 

and thus rated the employee using the DBI method. Dr. Slutsky noted that the A.M.A., Guides

found that an acromioplasty differed from status post distal clavicle excision. He reiterated that 

the employee had five percent permanent impairment of the left upper extremity. As the employee

had previously received an award for 13 percent of the same joint, Dr. Slutsky found that he had 

no additional impairment.

By decision dated July 24, 2018, OWCP denied appellant’s claim for an increased schedule 

award. 

On July 30, 2018 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on December 13, 2018. 

 

8 The employee passed away on April 22, 2018. 
5

By decision dated February 15, 2019, OWCP’s hearing representative affirmed the July 24, 

2018 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,9and its implementing federal regulations,

10 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 loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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

OWCP evaluates the degree of permanent impairment according to the standards set forth in the 

specified edition of the A.M.A., Guides, published in 2009.11 The Board has approved the use by 

OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a 

member of the body for schedule award purposes.12

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning Disability 

and Health (ICF).13 Under the sixth edition, the evaluator identifies the impairment CDX, which 

is then adjusted by GMFH, GMPE and GMCS.14 The net adjustment formula is (GMFH - CDX) 

+ (GMPE - CDX) + (GMCS - CDX).15 Evaluators are directed to provide reasons for their 

impairment choices, including the choices of diagnoses from regional grids and calculations of 

modifier scores.16

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

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

diagnosis-based sections are applicable.17 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 

 

9 Supra note 2.

10 20 C.F.R. § 10.404.

11 For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed. 

2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

12 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

13 A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health 

(ICF): A Contemporary Model of Disablement.

14 Id. at 494-531.

15 Id. at 411.

16 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011). 

17 A.M.A., Guides 461.
6

measured and added.18 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.19

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in 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.)20

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.”

21

It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the 

period of compensation paid under the schedule for an earlier injury if: (1) compensation in both 

cases is for impairment of the same member or function or different part of the same member or 

function or different parts of the same member or function; and (2) the latter impairment in whole 

or in part would duplicate the compensation payable for the preexisting impairment.22

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 

 

18 Id. at 473.

19 Id. at 474.

20 FECA Bulletin No. 17-06 (issued May 8, 2017). See also L.G., Docket No. 18-0519 (issued March 8, 2019); 

D.F., Docket No. 17-1474 (issued January 23, 2018).

21 Id.

22 20 C.F.R. § 10.404(d); see T.S., Docket No. 16-1406 (issued August 9, 2017); T.S., Docket No. 09-1308 (issued 

December 22, 2009).
7

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

impairment specified.23

ANALYSIS

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

OWCP previously awarded the employee a schedule award for 13 percent permanent 

impairment of the left upper extremity due to loss of ROM and muscle weakness of the left 

shoulder.

The employee subsequently requested an increased schedule award. In a report dated 

April 26, 2017, Dr. Seyoum reviewed the evidence of record, but did not physically examine the 

employee. He identified the CDX as a left shoulder arthroplasty, which he found yielded an 

impairment rating of 30 percent after the applicable grade modifiers. The employee, however, did 

not undergo a shoulder arthroplasty, and thus Dr. Seyoum’s impairment rating using the DBI 

method is of diminished probative value.24 Using ROM measurements from a 2015 report,

Dr. Seyoum found that the employee had 15 percent permanent impairment due to loss of ROM 

of the left shoulder. 

On August 30, 2017 Dr. Slutsky, the DMA, used the DBI method to assess the employee’s 

impairment, noting that the ROM measurements used by Dr. Seyoum failed to meet the criteria of 

the sixth edition of the A.M.A., Guides. Referencing Table 15-5 on page 403, he identified the 

CDX as a class 1 full-thickness rotator cuff tear with residual dysfunction, which yielded a default 

impairment rating of five percent. Dr. Slutsky applied a GMFH of one and found that a GMPH 

and GMCS were not applicable. After applying the net adjustment formula, he concluded that the 

employee had five percent permanent impairment of the left upper extremity.25

On February 21, 2018 Dr. Seyoum identified the CDX as a class 1 acromioplasty, for a 

default value of 10 percent. However, an acromioplasty is not a listed diagnosis in Table 15-5 on 

page 403 of the sixth edition of the A.M.A., Guides. Table 15-5 on page 403 provides a rating for 

an acromioclavicular joint injury with a default value of 10 after a distal clavicle resection or 

complete disruption of the joint capsule, which Dr. Slutsky determined was not applicable for the 

employee. Dr. Seyoum’s impairment rating, consequently, fails to conform to the protocols for 

rating permanent impairment under the A.M.A., Guides.

26

 

By decision dated March 29, 2018, an OWCP hearing representative instructed OWCP to 

refer the employee for a second opinion examination and to obtain ROM measurements that 

 

23 See supra note 11 at Chapter 2.808.6(f) (March 2017).

24 See C.S., Docket No. 19-0172 (issued April 24, 2019).

25 Utilizing the net adjustment formula discussed above, (GMFH - CDX), or (1-1) = 0, yielded a zero adjustment.

26 See C.M., Docket No. 19-0125 (issued August 16, 2019); D.F., supra note 17; James Kennedy, Jr., 40 ECAB 

620 (1989) (finding that an opinion which is not based upon the standards adopted by OWCP and approved by the 

Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of a claimant’s 

permanent impairment).
8

conformed to the A.M.A., Guides in accordance with FECA Bulletin No. 17-06. However, prior 

to the scheduled second opinion examination, the employee passed away.

On June 29, 2018 Dr. Slutsky reviewed Dr. Seyoum’s February 21, 2018 report and again 

opined that the employee had five percent permanent impairment due to his rotator cuff tear with 

residual dysfunction. He indicated that an acromioplasty was not a ratable diagnosis. Dr. Slutsky 

advised that he was using findings from Dr. Wang’s April 11, 2017 impairment evaluation to rate 

the employee’s impairment. He asserted that Dr. Wang’s ROM measurements were not valid. 

Dr. Slutsky, however, failed to explain why the ROM measurements obtained by Dr. Wang were 

insufficient for rating permanent impairment using the ROM method. As noted, after obtaining 

all necessary medical evidence, the file should be routed to the 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.27 The DMA failed to provide such 

rationale. Consequently, the Board will remand the case for the DMA for clarification of his 

opinion consistent with OWCP’s procedures set forth in FECA Bulletin No. 17-06.28 

CONCLUSION

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

 

27 See J.S., Docket No. 18-1635 (issued May 15, 2019).

28 See J.F., Docket No. 17-1726 (issued March 12, 2018).
9

ORDER

IT IS HEREBY ORDERED THAT the February 15, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this opinion of the Board.

Issued: March 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board