United States Department of Labor

Employees’ Compensation Appeals Board

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B.B., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Rochester, NY, 

Employer

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Docket No. 22-1230

Issued: April 7, 2023

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 28, 2022 appellant filed a timely appeal from an April 19, 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 April 19, 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 his burden of proof to establish greater than 12 

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

schedule award.

FACTUAL HISTORY

On March 3, 2018 appellant, then a 60-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that on March 2, 2018 he injured his right shoulder while in the 

performance of duty. He indicated that the injury occurred when he slipped and fell on an icy 

walkway. Appellant stopped work the day of injury and has not returned. OWCP accepted the 

claim for contusion of right hip, contusion of thorax, and complete rotator cuff tear or rupture of 

the right shoulder. It paid appellant wage-loss compensation on its supplemental rolls from 

April 17 through September 14, 2018. Appellant resigned from his position on July 1, 2019 and 

relocated to Florida. 

On January 10, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. By decision dated April 29, 2020, OWCP denied his claim for a schedule award as the 

evidence of file failed to demonstrate a measurable permanent impairment of a scheduled member

or function of the body.

On November 1, 2021 appellant again filed a Form CA-7 for a schedule award. 

In a development letter dated November 8, 2021, OWCP outlined the requirements for a 

medical report rating a permanent impairment of a scheduled member under the sixth edition of 

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

Guides).3 It requested that appellant present the letter to his treating physician. 

On October 19, 2021 Dr. Cristina Demian, an occupational medicine specialist, co-signed

an August 26, 2021 report from a nurse practitioner. She indicated that appellant reached 

maximum medical improvement (MMI) for his chronic right shoulder rotator cuff tear and that he 

had permanent work restrictions. Using the range of motion (ROM) methodology of the A.M.A., 

Guides, Dr. Demian opined that appellant had 12 percent permanent impairment and set forth her 

impairment calculation. The report contained only one set of right shoulder ROM findings. 

On February 16, 2022 OWCP sent a statement of accepted facts (SOAF), a copy of the 

medical record, including Dr. Demain’s October 19, 2021 report, to Dr. Nathan Hammel, a Boardcertified orthopedic surgeon, serving as OWCP’s district medical adviser (DMA). 

In a February 21, 2022 report, Dr. Hammel, the DMA, indicated that he reviewed the 

SOAF and appellant’s medical records. He reported the accepted conditions as contusion of right 

hip, contusion of thorax, and complete rotator cuff tear or rupture of right shoulder, not specified 

as traumatic. Dr. Hammel opined that appellant attained MMI on August 26, 2021, the date of the 

impairment examination. Using the diagnosis-based impairment (DBI) methodology of the 

A.M.A., Guides, he indicated that the maximum rating for a full-thickness rotator cuff tear was 

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

seven percent permanent impairment. Dr. Hammel concurred with Dr. Demian that appellant had 

12 percent impairment under the ROM method of the A.M.A., Guides, noting that he came to the 

same calculation. He selected the ROM methodology as it yielded a greater result than the 

maximum value under the DBI methodology.

By decision dated April 19, 2022, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right upper extremity. The award ran for 37.44 weeks for 

the period August 26, 2021 to May 15, 2022. 

LEGAL PRECEDENT

The schedule award provisions of FECA,4and its implementing federal regulation,5set 

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.6 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

A claimant may seek an increased schedule award if the evidence establishes that he or she 

sustained an increased impairment causally related to an employment injury.8 The medical 

evidence must include a detailed description of the permanent impairment.9

Regarding the application of ROM or DBI impairment methods 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).

“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 

4 5 U.S.C. § 8107.

5 20 C.F.R. § 10.404.

6

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).

8 See T.W., Docket No. 20-1547 (issued October 4, 2021).

9 See K.F., Docket No. 18-1517 (issued October 9, 2019).
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impairment rating for the diagnosis in question, the method producing the higher 

rating should be used.” (Emphasis in the original.)

FECA Bulletin No. 17-06 further provides:

“If the rating physician provided an assessment using the DBI 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.

“If the medical evidence of record is not sufficient for the DMA to render a rating 

on ROM, where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

10

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.11

ANALYSIS

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

On October 19, 2021 Dr. Demian co-signed an August 26, 2021 report evaluating 

appellant’s permanent impairment of the right upper extremity. As noted, FECA Bulletin No. 

17-06 requires three independent measurements when evaluating a loss of ROM. However, there 

is no indication that Dr. Demian obtained triplicate ROM measurements on August 26, 2021.12 As 

such, Dr. Demian’s October 19, 2021 report does not comply with the A.M.A., Guides and is of 

limited probative value.13

Furthermore, Dr. Hammel, upon reviewing Dr. Demian’s impairment report, indicated that 

he agreed with the August 26, 2021 permanent impairment evaluation that appellant had 12 percent 

permanent impairment to the right upper extremity based on the ROM method of the A.M.A., 

Guides. Without providing any calculations, he noted that he had come to the same calculated 

impairment under the ROM method during an independent analysis, and that it yielded a greater 

impairment than the DBI method of seven percent permanent impairment. As noted above,

Dr. Demian’s impairment report does not comply with the A.M.A., Guides as there is no indication 

that he obtained triplicate ROM measurements on August 26, 2021. Pursuant to FECA Bulletin 

No. 17-06, if the ROM method of rating permanent impairment is allowed, and the ROM findings 

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

11 B.T., Docket No. 22-0615 (issued September 16, 2022).

12 Supra note 10; B.T., id.; S.R., Docket No. 18-1307 (issued March 27, 2019).

13 See S.R., id.
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are incomplete, the DMA should advise as to the medical evidence necessary to complete the ROM 

method of rating and, OWCP shall obtain the necessary evidence.14 Herein, OWCP did not follow 

the procedures outlined in FECA Bulletin No. 17-06 as the DMA failed to advise that the ROM 

measurements for the right shoulder were incomplete.15

On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin 

No. 17-06 from Dr. Demian.16 After it obtains the evidence necessary to complete the rating as 

described above, the case along with an updated SOAF shall be referred to a DMA to 

independently calculate impairment to the right shoulder using both ROM and DBI methods and 

identify the higher rating.17 If Dr. Demian does not fully comply with the A.M.A., Guides, OWCP 

shall refer appellant to a specialist in the appropriate field of medicine for a second opinion 

evaluation. Following this, and other such further development as deemed necessary, OWCP shall 

issue a de novo decision.

CONCLUSION

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

14 J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,

Docket No. 19-1708 (issued April 15, 2020).

15 C.R., Docket No. 21-1265 (issued March 23, 2022); C.H., Docket No. 20-0529 (issued June 16, 2021); J.L.; R.L., 

id.; C.T., Docket No. 18-1716 (issued May 16, 2019).

16 C.R., id.; J.L., supra note 14; J.S., Docket No. 19-0483 (issued October 10, 2019).

17 See J.L., supra note 14; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued

September 11, 2018).
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ORDER

IT IS HEREBY ORDERED THAT the April 19, 2022 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: April 7, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board