United States Department of Labor

Employees’ Compensation Appeals Board

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S.C., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

78 LOGISTICS READINESS SQUADRON, 

ROBINS AIR FORCE BASE, GA, Employer

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Docket No. 21-0724

Issued: September 14, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 14, 2021 appellant filed a timely appeal from January 13 and 14, 2021 merit 

decisions and March 16 and 19, 2021 nonmerit decisions 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 greater than 

nine percent permanent impairment of his left upper extremity, for which he previously received 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that, following the March 19, 2021 decision, appellant submitted additional evidence to OWCP.

However, the Board’s Rules of Procedures 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

schedule award compensation; (2) whether OWCP has met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits, effective September 21, 2018, as he no 

longer had disability or residuals causally related to his accepted March 30, 2016 employment 

injury; (3) whether appellant has met his burden of proof to establish continuing disability or 

residuals on or after September 21, 2018 causally related to the accepted employment injury; and 

(4) whether OWCP properly denied appellant’s requests for reconsideration of the merits of its

termination determination, pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On April 7, 2016 appellant, then a 50-year-old fuel distribution system worker, filed a 

traumatic injury claim (Form CA-1) alleging that on March 30, 2016 he sustained left knee and 

left shoulder injuries when he tripped over a dike containment wall and fell on his hands and left 

knee while in the performance of duty. OWCP accepted his claim for laceration of 

muscles/tendons of the left shoulder rotator cuff, and left shoulder joint sprain. Appellant stopped 

work and OWCP paid him wage-loss compensation for disability from work on the supplemental 

rolls commencing May 15, 2016 and on the periodic rolls commencing August 21, 2016.

On October 18, 2016 and September 26, 2017 Dr. Jeffrey C. Easom, an osteopath and 

Board-certified orthopedic surgeon, performedOWCP-authorized left rotator cuff repair surgeries. 

In a January 29, 2018 report, he noted that appellant’s left shoulder examination showed no 

deformity, swelling, ecchymosis, or atrophy. There was mild crepitus with direct palpation of the 

left shoulder and strength testing was 5/5 in all muscle groups tested.

OWCP then referred appellant, along with a statement of accepted facts and a series of 

questions, for a second opinion examination with Dr. Jeffrey A. Fried, a Board-certified orthopedic 

surgeon. It requested that he provide an opinion regarding whether appellant had disability or 

residuals related to his accepted March 30, 2016 employment injury. 

In an April 4, 2018 report, Dr. Fried discussed appellant’s factual and medical history and 

reported his physical examination findings. He cited range of motion (ROM) figures for the left 

shoulder and noted that there was no instability or deformity of the left shoulder. Dr. Fried 

indicated that both the strength of appellant’s shoulders and his cervical spine motion were good. 

He concluded that the objective findings on examination corresponded with the subjective findings

and opined that appellant’s left rotator cuff tear was now resolved, following surgical repair with 

resulting full ROM and good strength. Based on the examination and review of the medical 

evidence, Dr. Fried concluded that appellant was capable of returning to his date-of-injury job as 

a fuel distribution system worker without medical restrictions.

In a May 9, 2018 report, Dr. K. Scott Malone, a Board-certified orthopedic surgeon, 

determined that appellant had nine percent permanent impairment of his left upper extremity under 

the standards of the sixth edition of the American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides).3 For the left shoulder, he recorded one ROM 

measurement for each type of shoulder motion and utilized Table 15-34 (Shoulder Range of 

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

Motion) on page 475 of the sixth edition of the A.M.A., Guides to find that appellant had nine 

percent permanent impairment under the ROM impairment rating method.

On May 7, 2018 OWCP issued a notice of proposed termination of appellant’s wage-loss 

compensation and medical benefits because he ceased to have disability or residuals causally 

related to his accepted March 30, 2016 employment injury. It indicated that the weight of the 

medical opinion evidence rested with the well-rationalized opinion of Dr. Fried, the second 

opinion examiner. OWCP afforded appellant 30 days to submit evidence and argument 

challenging the proposed termination action.

On May 21, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award due to his accepted March 30, 2016 employment injury. 

In a June 5, 2018 report, Dr. Nelson S. Haas, a Board-certified occupational medicine 

physician serving as an OWCP district medical adviser(DMA), determined that appellant had four 

percent permanent impairment of his left upper extremity under the sixth edition of the A.M.A., 

Guides. He opined that the ROM impairment rating method could not be utilized because

Dr. Malone recorded only one ROM measurement, rather than three, for each type of shoulder 

motion. Dr. Haas obtained his impairment rating by utilizing the diagnosis-based impairment 

(DBI) rating method under Table 15-5 (Shoulder Regional Grid) on page 402 of the sixth edition 

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

With respect to the termination matter, appellant submitted a copy of a letter to his union 

representative in which he described Dr. Fried’s examination. He also submitted copies of medical 

records, which had previously been submitted to OWCP.

By decision dated September 21, 2018, OWCP finalized the termination of appellant’s

wage-loss compensation and medical benefits, effective the same date, because he ceased to have 

disability or residuals causally related to his accepted March 30, 2016 employment injury. It found 

that Dr. Fried’s opinion constituted the weight of the medical opinion evidence.

By decision dated November 6, 2018, OWCP granted appellant a schedule award for four 

percent permanent impairment of his left upper extremity (left arm). The award ran for 12.48 

weeks from September 21 through December 7, 2018. 

OWCP requested that Dr. Malone provide a supplemental report that clarified the ROM 

findings. In a supplemental February 12, 2019 report, Dr. Malone advised that OWCP was 

missing the second page of his May 9, 2018 report. He utilized Table 15-34 on page 475 of the 

sixth edition of the A.M.A., Guides to find that appellant had nine percent permanent impairment

under the ROM rating method. Dr. Malone also utilized Table 15-5 (Shoulder Regional Grid) on 

page 402 of the sixth edition of the A.M.A., Guides to determine that appellant had five percent 

permanent impairment utilizing the DBI rating method. He concluded that, given the higher rating 

under the ROM rating method, appellant had nine percent permanent impairment of the left upper 

extremity.

On July 5, 2019 appellant requested reconsideration of OWCP’s September 21, 2018 

termination decision and submitted several reports of attending physicians. By decision dated 

October 2, 2019, OWCP denied modification of the September 2, 2018 decision. 
4

In an October 28, 2019 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon 

serving as DMA, agreed with Dr. Malone’s February 12, 2019 determination that, under the ROM 

rating method, appellant had nine percent permanent impairment of the left upper extremity. He 

found that appellant reached maximum medical improvement (MMI) on May 9, 2018, the date of

Dr. Malone’s last examination.

By decision dated November 13, 2019, OWCP granted appellant increased schedule award 

compensation for five percent permanent impairment of the left upper extremity (left arm) for a 

total award of nine percent permanent impairment of the left upper extremity (left arm).

4

On November 25, 2019 appellant requested reconsideration of the November 13, 2019 

schedule award decisions. He submitted several letters in which he argued that he was entitled to 

increased schedule award compensation. By decision dated January 24, 2020, OWCP denied 

appellant’s request for reconsideration of the merits of OWCP’s schedule award decision,pursuant 

to 5 U.S.C. § 8128(a).

On June 26, 2020 appellant again requested reconsideration of OWCP’s schedule award 

decision, arguing that he was entitled to increased schedule award compensation. By decision 

dated January 13, 2021, OWCP denied modification of its November 13, 2019 schedule award 

decision.

On June 26, 2020 appellant also requested reconsideration of OWCP’s termination 

decision. He submitted several letters in which he argued that his wage-loss compensation should 

not have been terminated. By decision dated January 14, 2021, OWCP denied modification of its 

September 21, 2018 termination determination.

On March 9, 2021 appellant requested reconsideration of OWCP’s January 14, 2021 

termination decision and submitted several statements in support of his request. By decision dated 

March 16, 2021, OWCP denied his March 9, 2021 request for reconsideration of the merits of its 

termination determination, pursuant to 5 U.S.C. § 8128(a). 

On March 17, 2021 appellant again requested reconsideration of OWCP’s January 14, 

2021 termination decision and submitted several statements in support of his request. By decision 

dated March 19, 2021, OWCP denied his March 17, 2021 request for reconsideration of the merits 

of its termination decision, pursuant to 5 U.S.C. § 8128(a). 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. However, 

FECA does not specify the manner in which the percentage of loss shall b e determined. For 

4 Under a separate decision dated November 13, 2019, OWCP vacated its November 6, 2018 decision.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
5

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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8 

With respect to calculating impairment under the DBI method for the right shoulder, 

reference is made to Table 15-5 (Shoulder Regional Grid).9 Table 15-5 also provides that, if 

motion loss is present for a claimant with certain diagnosed conditions, permanent impairment 

may alternatively be assessed using section 15.7 (ROM impairment). Such a ROM rating stands 

alone and is not combined with a DBI rating.10

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.11 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:

“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.)12

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 [claims examiner].13

“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 

7

Id.

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

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

9

See A.M.A., Guides 401-05, Table 15-5.

10 Id. at 401-05, 475-78.

11 FECA Bulletin No. 17-06 (issued May8, 2017). 

12 Id.

13 Id.; see also H.H., Docket No. 19-1530 (issued June26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).
6

percentage of impairment in accordance with the A.M.A., [Guides], with the DMA 

providing rationale for the percentage of impairment specified.”

14

In determining 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. With respect to the shoulder, the relevant portion of the arm for the present case, 

reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the class 

of diagnosis (CDX) is determined from the Shoulder Regional Grid (including identification of a 

default grade value), the net adjustment formula is applied using the grade modifier for functional 

history (GMFH), grade modifier for physical examination (GMPE), and grade modifier for clinical 

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

CDX).15

ANALYSIS -- ISSUE 1

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

nine percent permanent impairment of his left upper extremity for which he previously received 

schedules award compensation.

In a February 12, 2019 report, Dr. Malone determined that appellant had nine percent 

permanent impairment of his left upper extremity. He utilized Table 15-34 on page 475 of the 

sixth edition of the A.M.A., Guides to find that appellant had nine percent permanent impairment 

under the ROM rating method. Dr. Malone also utilized Table 15-5 on page 402 of the sixth 

edition of the of the A.M.A., Guides to determine that appellant had five percent permanent 

impairment of the DBI rating method. He concluded that, given the higher rating under the ROM 

rating method, appellant had nine percent permanent impairment of the left upper extremity.16 In 

an October 28, 2019 report, Dr. Harris, OWCP’s DMA, agreed with Dr. Malone’s February 12, 

2019 determination that, under the ROM rating method, appellant had nine percent permanent 

impairment of the left upper extremity. He found that appellant reached MMI on May 9, 2018 the 

date of Dr. Malone’s last examination. Appellant has not submitted probative medical evidence 

demonstrating that he has greater than nine percent permanent impairment of the left upper 

extremity. Therefore, OWCP properly denied his claim for increased schedule award

compensation.

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 permanent impairment.

14 Supra note 9 at Chapter 2.808.6(f); P.W., Docket No. 19-1493 (issued August12, 2020).

15 See A.M.A., Guides(6th ed. 2009) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant 

with certain diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM 

impairment). Such a ROM rating stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.

16 See supra note 14.
7

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify 

termination or modification of an employee’s benefits.17 After it has determined that an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.18 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.19

ANALYSIS -- ISSUE 2

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective September 21, 2018.

In an April 4, 2018 report, Dr. Fried discussed appellant’s factual and medical history and 

reported the findings of his physical examination. He cited ROM figures for the left shoulder and

noted that there was no instability or deformity of the left shoulder. Dr. Fried indicated that both

the strength of appellant’s shoulders and his cervical spine motion were good. He concluded that 

the objective findings on examination corresponded with the subjective findings and opined that 

appellant’s left rotator cuff tear was now resolved, following surgical repair with resulting full 

ROM and good strength. Based on the examination and review of the medical evidence, Dr. Fried 

concluded that appellant was capable of returning to his date-of-injury job as a fuel distribution 

system worker without medical restrictions.

The Board finds that Dr. Fried did not provide adequate medical rationale in support of his 

opinion that appellant ceased to have disability or residuals due to his March 30, 2016 employment 

injury. Dr. Fried opined that appellant’s left rotator cuff tear had resolved, but he did not 

sufficiently discuss the medical findings of record to explain when and/or how the condition had 

resolved and no longer caused disability. In addition, he did not provide any discussion regarding 

whether appellant’s accepted left shoulder joint sprain had resolved or otherwise ceased to cause 

disability from work. For these reasons, OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation and medical benefits effective September 21, 2018.20

CONCLUSION

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

nine percent permanent impairment of his left upper extremity for which he previously received 

schedule award compensation. The Board further finds that OWCP failed to meet its burden of 

17 D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 

197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

18 See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); CharlesE. 

Minnis, 40 ECAB 708 (1989); VivienL. Minor, 37 ECAB 541 (1986).

19 M.C., Docket No. 18-1374 (issued April23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

20 In light of the Board’s disposition of Issue 2, Issues 3 and 4 are renderedmoot.
8

proof to terminate appellant’s wage-loss compensation and medical benefits, effective 

September 21, 2018.

ORDER

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of Office of Workers’

Compensation Programs is affirmed. The January 14, 2021 decision of Office of Workers’

Compensation Programs is reversed. The March 16 and 19, 2021 decisions of the Office of 

Workers’ Compensation Programs are set aside as moot. 

Issued: September 14, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board