United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.B., Appellant

and

DEPARTMENT OF ENERGY, BONNEVILLE 

POWER ADMINISTRATION, Custer, WA, 

Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 21-0563

Issued: December 30, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On February 28, 2021 appellant filed a timely appeal from a January 28, 2021 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 January 28, 2021 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 left upper extremity, for which he previously received a 

schedule award.

FACTUAL HISTORY

On January 9, 2017 appellant, then a 49-year-old electrician, filed a traumatic injury claim 

(Form CA-1) alleging that on that date he injured his left shoulder when he slipped and fell when 

exiting his truck while in the performance of duty. OWCP accepted the claim for sprain of left 

shoulder joint and strain of other muscles, fascia and tendons at shoulder and upper arm level, left 

arm. Appellant stopped work on the date of injury and returned to full duty on January 10, 2017.

In an August 21, 2020 report, Dr. Eric S. Smith, a Board-certified occupational medicine 

specialist, indicated that appellant’s chronic left shoulder condition has reached a point of medical 

stability. He opined that he would evaluate appellant for permanent impairment of the left shoulder 

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

Permanent Impairment (A.M.A., Guides), after OWCP sent appellant “an award letter.”

3

On November 18, 2020 appellant filed a claim for compensation (Form CA-7) for a

schedule award.

In a December 4, 2020 report, Dr. Smith noted appellant’s physical examination findings, 

including a goniometric evaluation of range of motion (ROM) with three measurements for both 

the right and left upper extremities. Inspection of the shoulders revealed no edema, swelling, rubor 

or cyanosis with equal shoulder height, normal sensation and normal motor strength testing and 

symmetrical reflexes. With regard to the left shoulder, Dr. Smith measured: flexion of 131, 134, 

and 132 degrees; extension of 44, 43 and 46 degrees; abduction of 87, 86, and 87 degrees; 

adduction of 68, 67 and 65 degrees; external rotation of 32, 32, and 31 degrees; and internal 

rotation of 21, 24, and 22 degrees. He noted that appellant demonstrated full effort and that the 

rest of the examination was unremarkable. Referencing the A.M.A., Guides, Dr. Smith indicated 

that all the diagnostic-based impairments (DBI) under Table 15-5 referred to normal ROM, 

however, appellant had abnormal ROM. Therefore, he found the ROM impairment methodology

more appropriate. Under Table 15-34, page 475, Dr. Smith found that appellant’s left shoulder 

had grade modifier (GM) 1. Appellant’s loss of flexion was a 1 percent impairment, loss of 

extension was a 1 percent impairment, loss of abduction was a 3 percent impairment, loss of 

adduction was a 0 percent impairment, loss of internal rotation was a 4 percent impairment, and 

loss of external rotation was a 2 percent impairment, for a total of 13 percent permanent 

impairment of the left upper extremity. He also noted that an activities of daily living 

questionnaire, which appellant signed on December 3, 2020, indicated some difficulty with lifting

activities. Dr. Smith concluded that appellant’s left shoulder injury had reached maximum medical 

improvement. 

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

On January 11, 2021 OWCP prepared a statement of accepted facts (SOAF) that listed 

appellant’s accepted conditions. Appellant’s case record was thereafter referred to Dr. Morley 

Slutsky, Board-certified in occupational medicine, serving as OWCP’s District Medical Adviser 

(DMA), for review.

In a January 21, 2020 report, Dr. Slutsky reviewed the SOAF and Dr. Smith’s December 4, 

2020 medical report. He opined that appellant reached MMI on December 4, 2020, the date of

Dr. Smith’s impairment evaluation. Utilizing the DBI method, Dr. Slutsky found that the most 

impairing diagnosis under Table 15-5 was left shoulder sprain, with one percent default permanent 

impairment value. He assigned grade modifier functional history (GMFH) 1 under Table 15-7; 

grade modifier physical examination (GMPE) 1 under Table 15-8; and grade modifier clinical 

studies (GMCS) 0, noting that appellant was still symptomatic with normal diagnostic testing. 

After using the net adjustment formula, Dr. Slutsky found a negative 1 which moved the final 

grade to B or 1 percent upper extremity impairment. Under the ROM method, he indicated that 

he agreed with all the impairments Dr. Smith assigned for left shoulder ROM under Table 15-34 

with the exception of extension, noting that 50 degrees of extension equaled 0 percent impairment, 

not the 1 percent impairment Dr. Smith assigned. Using Table 15-34, the DMA noted: 130 

degrees flexion for 3 percent impairment; 50 degrees extension for 0 percent impairment, 90 

degrees abduction for 3 percent impairment, 70 degrees adduction for 0 percent impairment, 20 

degrees internal rotation for 4 percent impairment, and 30 degrees external rotation for 2 percent 

impairment, equaled 12 percent left lower extremity impairment. Under Table 15-35, he found 

that shoulder grade modifier ROM 2, for a ROM equal to 12 percent. Under Table 15-7, the DMA

found GMFH 1 as appellant still had symptoms. Under Table 15-36, he found a net modifier -1 

for the difference of ROM GMFH (1) and ROM GM (2). The DMA concluded that the ROM 

impairment remained the same and equaled 12 percent left upper extremity impairment. Thus, he 

opined that appellant had final 12 percent left upper extremity impairment under the ROM 

methodology, which yielded the highest impairment value.

By decision dated January 28, 2021, OWCP awarded appellant 12 percent permanent 

impairment of his left upper extremity. The award ran 37.44 weeks (fraction of a day) from 

December 4, 2020 through June 23, 2021. OWCP accorded the weight of the medical evidence 

regarding the percentage of impairment to the DMA, finding that he correctly applied the A.M.A., 

Guides to the examination findings.

LEGAL PRECEDENT

The schedule award provisions of FECA,4 and its implementing federal regulations,5 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. 

4

Supra note 1.

5

20 C.F.R. § 10.404.
4

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 2009.6 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.7

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning Disability and Health 

(ICF).8 Under the sixth edition, the evaluator identifies class of diagnosis (CDX), which is then 

adjusted by a GMFH, GMPE, and GMCS.9 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).10 Evaluators are directed to provide reasons for their impairment 

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

scores.11

FECA Bulletin No. 17-06 provides guidance in applying ROM or DBI methodologies in 

rating permanent impairment of the upper extremities. 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).

“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.,] 

Guidesidentify 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 

6 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see 

also Part 3 --Medical, Schedule Awards,Chapter 3.700, Exhibit 1 (January 2010).

7 M.W., Docket No. 20-0252 (issued May 24, 2021); P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

8 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.

9

Id. at 383-492.

10 Id. at 411.

11 M.W., supra note 7; R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued 

April 1, 2011).
5

impairment rating for the diagnosis in question, the method producing the higher 

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

12

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.13

ANALYSIS -- ISSUE 1

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

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

schedule award.

OWCP received a report from Dr. Smith, who opined that appellant had reached MMI and 

found that appellant had 13 percent permanent impairment of the left upper extremity based on 

ROM methodology. 

In accordance with its procedures, OWCP properly routed the case record to the DMA, 

who, usingDr. Smith’s evaluation findings, provided permanent impairment ratings using both the 

DBI and ROM methodologies. The DMA found that appellant had 1 percent permanent left upper 

extremity impairment under the DBI method and 12 percent permanent left upper extremity 

impairment under the ROM method. He also opined that the ROM methodology represented the 

greater left upper extremity permanent impairment rating.

The Board has reviewed the DMA’s ROM impairment rating under Table 15-34, page 475 

of the A.M.A, Guides, based on the findings of Dr. Smith, and finds that appellant has 12 percent 

total left upper extremity permanent impairment based upon the ROM methodology. As noted, if 

the evaluator evaluating loss of ROM determines that there is an organic basis for a restricted 

ROM, then the greatest of three ROM measurements should be used for the determination of the 

impairment. The greatest of the three ROM measurements of appellant’s left shoulder from

Dr. Smith reflects flexion of 134 degrees, extension of 46 degrees, abduction of 87 degrees, 

adduction of 68 degrees, external rotation of 32 degrees, and internal rotation of 24 degrees. These 

values based on the greatest measurement differ from both the values assigned by Dr. Smith and 

the DMA.14 Pursuant to Table 15-34, flexion of 134 degrees equals 3 percent impairment; 

extension of 46 degrees rounded up to 50 degrees equals 0 percent impairment,15 abduction of 87 

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

13 See supra note 6 at Chapter 2.808.6(f) (March 2017).

14 The DMA erroneously reported flexion of 130 degrees, extension of 50 degrees, abduction of 90 degrees, 

adduction of 70 degrees, external rotation of 30 degrees, and internal rotation of 20 degrees. 

15 For extension of the shoulder Table 15-34 provides that 30 to 40 degrees equals 1 percent upper extremity 

impairment and more than or equal to 50 degrees equals 0 percent upper extremity impairment. There is no category 

provided for the range of 41 degrees to 49 degrees. Appellant’s 46 degree extension rounds up to 50 degrees and thus 

is equal to 0 percent upper extremity impairment.
6

degrees rounded up to 90 degrees equals 3 percent impairment,

16 adduction of 68 degrees equals 

0 percent impairment; external rotation of 32 degrees equals 2 percent impairment, and internal 

rotation of 24 degrees equals 4 percent impairment, for a total 12 percent left upper extremity 

permanent impairment. Under Table 15-35, page 477, the DMA properly found GM was 2.

17

 

Under Table 15-36, page 477, he also properly found GMFH was 1. Under Table 15-36, the 

GMFH is -1, which equals no change in total ROM impairment, or 12 percent permanent 

impairment. 

The Board finds that the DMA properly indicated that appellant’s impairment finding 

under the ROM methodology represented the greater left upper extremity permanent impairment. 18 

There is no other current medical evidence in conformance with the sixth edition of the 

A.M.A., Guides establishing greater than the 12 percent permanent impairment of the left upper 

extremity for which he previously received a schedule award. Accordingly, appellant has met not 

his burden of proof. 

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.

CONCLUSION

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

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

schedule award. 

16 There is no category provided under Table 15-34 for abduction 87 degrees. Eighty-seven degrees rounds up to 

90 degrees which provides three percent upper extremity impairment. 

17 Under Table 15-35, the range of motion grade modifier 2 for the shoulder is from 12 percent to 23 percent upper 

extremity impairment for total motion impairment. 

18 See E.R., Docket No. 19-1574 (issued March 24, 2020).
7

ORDER

IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board