United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.D., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Washington, DC, Employer

__________________________________________

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Docket No. 20-0007

Issued: May 13, 2020

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 October 2, 2019 appellant filed a timely appeal from a June 28, 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 to 

consider the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 12 

percent permanent impairment of the right upper extremity, for which he previously received 

schedule award compensation.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.

2

 The facts and circumstances of the case 

as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts 

are as follows.

On January 29, 2015 appellant, then a 40-year-old internal revenue agent, filed an 

occupational disease claim (Form CA-2) alleging that he sustained a right rotator cuff injury due 

to factors of his federal employment. He explained that he repeatedly assembled documents for 

review and used a whole puncher to perforate case file documents. Appellant noted that he first 

became aware of his injury and first realized that it was caused by his federal employment on 

October 3, 2014. OWCP accepted his claim for sprain of the right shoulder and upper arm, 

acromioclavicular (AC) joint and disorder of the bursae and tendons in the right shoulder region, 

unspecified, complete right rotator cuff rupture, and right brachial neuritis or radiculitis, not 

otherwise specified. On July 7, 2015 appellant underwent OWCP-authorized right shoulder 

arthroscopy with subacromial decompression and distal clavicle resection by Dr. Steven H. 

Bernstein, an attending Board-certified orthopedic surgeon. OWCP paid appellant wage-loss 

compensation benefits on the periodic rolls. On June 18, 2016 appellant returned to full-time work 

with restrictions. 

On June 28, 2016 appellant filed a claim for a schedule award (Form CA-7). He submitted 

a June 17, 2016 medical report from Dr. Bernstein who found 29 percent right upper extremity 

permanent impairment and 24 percent whole body impairment under the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).3 Dr. Bernstein utilized the diagnosis-based impairment (DBI) methodology to rate 

appellant’s permanent impairment. He found that, under Table 15-5, page 402, she had five 

percent permanent impairment for a rotator cuff contusion with impingement and eight percent 

permanent impairment for an AC joint injury/disease. Utilizing the Combined Values Chart, page 

604, Dr. Bernstein calculated 13 percent permanent impairment of the right upper extremity and 8 

percent permanent impairment of the whole person. He advised that appellant had an additional 

four percent permanent impairment for pain, weakness, and loss of endurance and function. 

Dr. Bernstein found no additional impairment for atrophy. He concluded that appellant had a 

combined total of 29 percent right upper extremity permanent impairment. 

In a July 21, 2016 report, Dr. Jovito Estaris, Board-certified in occupational medicine 

serving as an OWCP district medical adviser (DMA), noted appellant’s diagnoses of impingement 

syndrome and AC joint disease, referenced Dr. Bernstein’s range of motion (ROM) measurements, 

and determined that appellant had 10.5 percent permanent impairment of the right upper extremity

which was rounded up to 11 percent based on the ROM rating method. He explained that his 

impairment rating was markedly lower than Dr. Bernstein’s impairment because Dr. Bernstein had 

rated two diagnoses under the DBI method and combined the impairment ratings. The DMA noted 

that, page 387 of the A.M.A., Guides, directed that, if a patient had two significant diagnoses, the 

examiner should use the diagnosis with the highest causally related impairment for the impairment 

 

2 Docket No. 18-1073 (issued January 18, 2019); Docket No. 17-1424 (issued October 25, 2017).

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

calculation. He also noted that Dr. Bernstein’s award of additional impairment rating for pain, 

weakness, and loss of endurance and function was not acceptable under the sixth edition of the 

A.M.A., Guides. The DMA determined that appellant reached maximum medical improvement 

(MMI) on June 17, 2016 the date of Dr. Bernstein’s impairment evaluation. 

In an August 4, 2016 letter, OWCP requested that appellant obtain a supplemental report 

from Dr. Bernstein regarding the extent of his permanent impairment based on the physician’s 

review of Dr. Estaris’ July 21, 2016 report.

Dr. Bernstein, in a letter dated August 19, 2016, noted that he had reviewed Dr. Estaris’

report and disagreed with his use of the ROM methodology to calculate appellant’s impairment 

rating. He asserted that this methodology was inappropriate and inadequate as it failed to capture 

the degree of appellant’s pain, difficulty, and impairment. Dr. Bernstein reiterated his prior finding 

that appellant had 29 percent right arm permanent impairment.

On September 20, 2016 Dr. Estaris reviewed Dr. Bernstein’s August 19, 2016 report. He 

again explained why his use of the ROM methodology to calculate appellant’s impairment rating 

was more appropriate under the A.M.A., Guides. The DMA also reiterated why Dr. Bernstein’s 

impairment rating was not acceptable under the A.M.A., Guides. 

OWCP, by decision dated October 4, 2016, granted appellant a schedule award for 11 

percent permanent impairment of the right upper extremity, based on the opinion of its DMA,

Dr. Estaris. The award ran for 34.32 weeks for the period June 18, 2016 to February 13, 2017.4 

Appellant requested reconsideration on November 4, 2016.

By decision dated February 2, 2017, OWCP denied modification of its October 4, 2016 

decision. It found that the weight of the medical evidence continued to rest with the opinion of its 

DMA. 

On June 15, 2017 appellant appealed to the Board. By decision dated October 25, 2017, 

the Board set aside the February 2, 2017 decision.

5

 The Board found that OWCP had 

inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the DBI 

or ROM methodology in assessing the extent of permanent impairment. The Board remanded the 

case for OWCP to issue a de novo decision after development of a consistent method for 

calculating permanent impairment of the upper extremities. 

On remand, in a December 11, 2017 letter, OWCP requested that appellant submit an 

additional report from Dr. Bernstein including a review of a newly prepared statement of accepted 

facts (SOAF) and an evaluation of his prior impairment rating based on the reprinted 2009 sixth 

edition A.M.A., Guides. It afforded him 30 days to submit the requested evidence. 

In a response letter dated January 10, 2018, appellant asserted that Dr. Estaris’ opinion 

could not carry the weight of the medical evidence. He claimed that he did not receive a copy of 

 

4 On November 30, 2016 appellant accepted a lump-sum payment of the schedule award. 

5 Docket No. 17-1424 (issued October 25, 2017).
4

the SOAF, which inaccurately stated that he had preexisting cervical radiculitis, AC joint arthrosis, 

and a cervical herniated disc. Appellant contended that Dr. Bernstein’s 29 percent right arm 

impairment rating was sufficient to establish his entitlement to an increased schedule award. 

On February 15, 2018 OWCP requested that its DMA review his July 21 and 

September 21, 2016 reports and Dr. Bernstein’s June 17, 2016 impairment rating and explain how 

their right upper extremity impairment calculations were determined under the reprinted 2009 sixth 

edition of the A.M.A., Guides. It related that, if the A.M.A., Guides allowed a rating using both 

the DBI and ROM methods, the impairment should be independently calculated using both 

methods. OWCP advised that three independent ROM measurements must be obtained and the 

greatest ROM measurements should be used to determine the extent of impairment. If the medical 

evidence of record was insufficient to render a rating based on the ROM method, where allowed, 

the DMA was advised to note the medical evidence necessary to complete the ROM rating method 

and render an impairment rating using the DBI method, if possible, given the available evidence. 

On February 19, 2018 Dr. Estaris explained that according to Table 15-5, appellant had 12 

percent right upper extremity permanent impairment, utilizing the DBI methodology, for a 

diagnosis of right shoulder AC joint arthropathy with impingement syndrome status post distal 

clavicle resection. He noted that, while the ROM method was applicable in this case, there was 

only one set of ROM measurements for the right shoulder. The DMA indicated that three 

independent measurements of ROM of the involved joint was required to use the ROM method. 

He reviewed Dr. Bernstein’s June 15, 2016 impairment evaluation and reiterated his prior rationale

explaining why Dr. Bernstein’s 29 percent right upper extremity permanent impairment rating was 

not proper under the A.M.A., Guides. 

OWCP, by decision dated February 22, 2018, vacated its February 2, 2017 decision, 

finding that appellant had an additional 1 percent right upper extremity permanent impairment, 

totaling 12 percent permanent impairment, based on the opinion of its DMA.

By decision dated April 13, 2018, OWCP granted appellant an additional 1 percent 

permanent impairment of the right upper extremity, for a total of 12 percent permanent impairment. 

The additional schedule award ran for 3.12 weeks for the period February 14 to March 7, 2017. 

Appellant appealed to the Board on May 1, 2018. By decision dated January 18, 2019, the 

Board set aside the April 13, 2018 decision.6 The Board found that OWCP failed to follow its 

procedures outlined in FECA Bulletin No. 17-06 (May 8, 2017) as its DMA advised that the 

necessary evidence of three independent ROM findings were not of record to rate appellant’s 

permanent impairment utilizing the ROM methodology. The Board remanded the case for OWCP 

to complete the proper procedures outlined in FECA Bulletin No. 17-06 to rate appellant’s upper 

extremity permanent impairment. 

Following remand, on April 17, 2019, OWCP referred appellant to Dr. Rafael A. Lopez 

Steuart, a Board-certified orthopedic surgeon, for a second opinion evaluation for the purpose of 

 

6 Docket No. 18-1073 (issued January 18, 2019).
5

ascertaining the extent of his permanent impairment in accordance with the A.M.A., Guides and 

FECA Bulletin No. 17-06. 

On May 8, 2019 Dr. Lopez Steuart noted a history of the accepted employment injury and 

appellant’s medical treatment. On physical examination of the right shoulder, he reported

90 degrees of forward flexion, 50 degrees of extension, 90 degrees of abduction, 40 degrees of 

adduction, 60 degrees of external rotation, and 80 degrees of internal rotation after warmup and 

measured three times with a goniometer. Appellant was unable to flex his elbow more than 

30 degrees because of posterior scapular pain, but he was later observed to fully flex his elbow. 

The biceps on the right side measured 31 centimeters (cm) compared to 30 cm on the left side. 

Forearm circumference was 27 cm on the right compared to 25 cm on the left. The musculature 

of the right shoulder girdle had normal appearance without evidence of atrophy. There was no 

evidence of swelling, erythema, crepitation, spasm, atrophy, or deformity. Rotator cuff strength 

was 5/5. There was exquisite tenderness to light palpation in the periscapular muscles. Appellant 

was uncooperative in ranging his shoulder and elbow and exhibited signs consistent with symptom 

magnification and suboptimal effort. There was no evidence of instability with a negative anterior 

and posterior apprehension test. There was also negative suicus, AC joint shear, empty-can, droparm, and lift-off tests and sulcus sign. There was slight prominence of the distal clavicle on the 

right compared to the left. Surgical portals were noted. Findings on neurological examination 

revealed intact sensation, good motor strength, symmetric reflexes, and no long-tract signs.

Dr. Lopez Steuart indicated that appellant sustained a right shoulder strain with preexisting 

degenerative changes of the right shoulder. He also underwent an arthroscopic decompression and 

distal clavicle resection and, therefore, impingement was no longer present. Dr. Lopez Steuart 

found no evidence of preexisting tendinosis of the supraspinatus and infraspinatus tendons. He 

opined that there was no exacerbation or aggravation of a preexisting condition and that appellant 

had sustained a simple shoulder strain. Dr. Lopez Steuart found that he reached MMI on May 8, 

2019, the date of his impairment evaluation.

Dr. Lopez Steuart applied the DBI rating method, utilizing Table 15-5, page 403, to find 

that appellant’s AC joint injury or disease of the right shoulder status post distal clavicle resection 

resulted in a Class 1, grade C impairment. He assigned a grade modifier 1 for functional history, 

physical examination, and clinical studies. Dr. Lopez Steuart concluded that appellant had 10 

percent permanent impairment of the right upper extremity. He also utilized the ROM rating 

method, noted three ROM measurements for appellant’s right shoulder, and calculated six percent 

permanent impairment of the right upper extremity due to loss of ROM. Dr. Lopez Steuart

explained that 90 degrees of forward flexion and 90 degrees of abduction each resulted in three 

percent permanent impairment, totaling six percent permanent impairment. He noted that 

appellant was previously awarded 12 percent permanent impairment of the right upper extremity

and, therefore, no additional impairment had been incurred. 

OWCP subsequently routed the case record, including Dr. Lopez Steuart’s May 8, 2019 

report, to the prior DMA for review. In a June 7, 2019 report, Dr. Estaris indicated that, according 

to the DBI rating method, under Table 15-5, Shoulder Regional Grid, page 403, appellant had a 

Class 1 impairment with a default value of 10 percent for class of diagnosis (CDX), which was 

AC joint arthropathy with impingement syndrome status post distal clavicle resection. He assigned 

a grade modifier 1 for functional history (GMFH) due to right periscapular pain with limited duty 

under Table 15-7, page 406. The DMA assigned a grade modifier 1 for physical examination 
6

(GMPE) due to mild limitation of ROM, stability, and no atrophy of the right shoulder under Table 

15-8, page 408. He related that a grade modifier for clinical studies (GMCS) was not used as a 

magnetic resonance imaging (MRI) scan, which showed AC joint arthropathy was used to establish 

the diagnosis and proper placement in the regional grid. The DMA utilized the net adjustment 

formula (GMFH - CDX) + (GMPE - CDX) = (1 - 1) + (1 - 1) = 0, which resulted in a grade C or 

10 percent permanent impairment of the right upper extremity. He also utilized the ROM rating 

method in Table 15-34 finding three percent impairment for 90 degrees of flexion, zero percent 

impairment for 50 degrees of extension, three percent impairment for 90 degrees of abduction, 

zero percent impairment for 40 degrees of adduction, zero percent impairment for 80 degrees of 

internal rotation, and zero percent impairment for 60 degrees of external rotation. The DMA added

these values to equal six percent permanent impairment of the right upper extremity. He concluded 

that appellant had 10 percent permanent impairment of his right upper extremity given that he had 

a higher rating for permanent impairment under the DBI rating. The DMA noted that since 

appellant was previously awarded 12 percent permanent impairment of the right upper extremity 

and the current impairment rating was included in that award, no additional award was warranted. 

He further noted that appellant reached MMI on May 8, 2019, the date of Dr. Lopez Steuart’s 

impairment evaluation. 

OWCP, by decision dated June 28, 2019, found that appellant was entitled to no more than 

12 percent permanent impairment of the right upper extremity for which he previously received 

schedule awards. It determined that the weight of the medical evidence rested with the June 7, 

2019 report of its DMA.

LEGAL PRECEDENT

The schedule award provisions of FECA7and its implementing regulations8set 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 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.9 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).10 The Board has approved the 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

10 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 2.808.6a (March 2017).
7

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.11

In addressing impairment for the upper extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity 

to be rated.12 After a CDX is determined (including identification of a default grade value), the 

impairment class is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.13 The 

net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14

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

impairment of the upper extremities, FECA Bulletin No 17-06 provides: 

“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).”

15

FECA Bulletin further advises:

“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.)

16

The Bulletin also 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.”

17

 

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

12 T.T., Docket No. 18-1622 (issued May 14, 2019).

13 A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

14 Id. at 411. 

15 FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018). 

16 Id.

17 Id.
8

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.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 12 

percent permanent impairment of the right upper extremity, for which he previously received 

schedule award compensation.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

that was previously considered in its October 25, 2017 and January 18, 2019 decisions. Findings 

made in prior Board decisions are res judicata, absent any further review by OWCP under section 

8128 of FECA.19

Following the Board’s January 18, 2019 remand decision, OWCP referred appellant’s 

schedule award claim to Dr. Lopez Steuart, serving as an OWCP second opinion physician, for 

examination and to provide a permanent impairment of appellant’s right upper extremity in 

accordance with the A.M.A., Guides and FECA Bulletin No. 17-06. In a May 8, 2019 report,

Dr. Lopez Steuart reviewed appellant’s history and conducted an examination. He indicated that 

he performed ROM testing three times after warm-up. Dr. Lopez Steuart reported a diagnosis of 

AC joint injury or disease of the right shoulder status post distal clavicle resection. Utilizing the 

DBI methodology, he found that appellant had a Class 1, grade C impairment for AC joint injury 

or disease of the right shoulder status post distal clavicle resection under Table 15-5, page 403.

Dr. Lopez Steuart assigned a grade modifier 1 for functional history, physical examination, and 

clinical studies. He concluded that appellant had 10 percent permanent impairment of the right 

upper extremity. Dr. Lopez Steuart also opined that appellant had six percent permanent 

impairment of the right upper extremity under the ROM methodology.

Dr. Estaris, OWCP’s DMA, also found that appellant had 10 percent right upper extremity 

permanent impairment under the DBI methodology. He concurred with Dr. Lopez Steuart’s 

finding of a Class 1 impairment with a default value of 10 percent impairment for appellant’s 

diagnosis of AC joint arthropathy with impingement syndrome status post distal clavicle resection

and assigned grade modifiers of 1 for functional history and physical examination. However, 

unlike Dr. Lopez Steuart, the DMA explained that a grade modifier for clinical studies was not 

applicable as an MRI scan was used to establish the diagnosis. He then properly calculated a net 

adjustment of 0 from the net adjustment formula,20 which resulted in a grade C or 10 percent 

permanent impairment for right shoulder AC joint arthropathy with impingement syndrome status 

post distal clavicle resection. The DMA also concurred with Dr. Lopez Steuart’s six percent right 

 

18 See supra note 10 at Chapter 2.808.6(f) (February 2013). See also J.T., Docket No. 17-1465 (issued 

September 25, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).

19 J.T., Docket No. 18-1757 (issued April 19, 2019); D.B., Docket No. 18-0409 (issued October 28, 2019).

20 (GMFH - CDX)(1-1) + (GMPE - CDX)(1-1) = 0.
9

upper extremity permanent impairment finding based upon the ROM methodology. He explained 

that, pursuant to the A.M.A., Guides, because the DBI method yielded greater impairment, 

appellant had 10 percent permanent impairment of the right upper extremity. However, the DMA 

noted that since he was previously awarded 12 percent permanent impairment of the right upper 

extremity and the current impairment rating was included in that award, no additional impairment 

had been incurred. 

The Board finds that the DMA properly discussed how he arrived at his conclusion by 

listing appropriate tables and pages in the A.M.A., Guides and established that appellant sustained 

10 percent right upper extremity permanent impairment. Dr. Estaris accurately summarized the 

relevant medical evidence, provided detailed findings on examination, and reached conclusions 

about appellant’s condition which comported with his findings.21 In addition, the DMA properly 

utilized the DBI method and ROM method to rate appellant’s right shoulder condition pursuant to 

FECA Bulletin No. 17-06. As the DMA’s report is detailed, well rationalized, and based on a 

proper factual background, his opinion represents the weight of the medical evidence.22 Thus, the 

Board finds that appellant has not met his burden of proof to establish greater right upper extremity 

permanent impairment than 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 impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than 12 

percent permanent impairment of the right upper extremity, for which he previously received

schedule award compensation.

 

21 M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M.,

Docket No. 18-1387 (issued February 1, 2019).

22 See M.S., id.; D.S., Docket No. 18-1816 (issued June 20, 2019).
10

ORDER

IT IS HEREBY ORDERED THAT the June 28, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: May 13, 2020

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