United States Department of Labor

Employees’ Compensation Appeals Board

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L.R., Appellant

and

DEPARTMENT OF DEFENSE, DEFENSE 

LOGISTICS AGENCY, DEFENSE 

DISTRIBUTION DEPOT-RED RIVER, 

Texarkana, TX, Employer

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Docket No. 22-0096

Issued: August 3, 2022

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 October 25, 2021 appellant filed a timely appeal from a May 19, 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 May 19, 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 her burden of proof to establish greater than 42 

percent permanent impairment of the right upper extremity and 41 percent permanent impairment 

of the left upper extremity for which she received schedule award compensation.

FACTUAL HISTORY

On May 15, 1995 appellant, then a 39-year-old laborer, filed an occupational disease claim 

(Form CA-2) alleging that she sustained pain in her right shoulder and arm causally related to 

factors of her federal employment.3 OWCP accepted the claim for a sprain of the right shoulder 

and upper arm, bilateral carpal tunnel syndrome, chronic pain syndrome, and a bilateral sprain of 

the rotator cuff. Appellant was intermittently disabled from work until December 7, 1995, when 

she stopped work and did not return. Effective October 15, 1997,she elected disability retirement. 

Appellant underwent a left carpal tunnel release on February 4, 2004 and right carpal tunnel 

releases on March 17, 2004 and October 9, 2013. She further underwent a right shoulder 

subacromial decompression and resection of the distal clavicle on October 18, 2006 and a repair 

of a torn right rotator cuff on September 15, 2010. 

By decision dated November 21, 1996, OWCP granted appellant a schedule award for 24 

percent permanent impairment of the right upper extremity. It rated her impairment based on loss 

of range of motion (ROM) of the right shoulder and altered shoulder sensation. By decision dated 

September 20, 2004, OWCP granted appellant a schedule award for three percent permanent 

impairment of the left upper extremity due to motor loss of the median nerve.

4

 

By decision dated November 26, 2007, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of the right upper extremity. By decision dated 

June 10, 2008, it granted her a schedule award for 23 percent bilateral impairment of the upper 

extremities, finding 7 percent right upper extremity impairment and 16 percent left upper extremity 

impairment due to loss of ROM of the shoulders bilaterally. 

By decisions dated June 10, 2011 and April 16, 2012, OWCP denied appellant’s claim for 

an increased schedule award. In its April 16, 2012 decision, it noted that it had previously paid 

her schedule award compensation for 33 percent permanent impairment of the right upper 

extremity and 19 percent permanent impairment of the left upper extremity.

On October 1, 2013 OWCP expanded its acceptance of the claim to include a bilateral 

ganglion and cyst of the synovium, tendon, and bursae. 

3 The claim form is not contained in the case record.

4 By decision dated December 29, 2004, OWCP denied appellant’s request for reconsideration of its September 20, 

2004 decision as she had not raised an argument or submitted evidence sufficient to warrant reopening her case for 

further merit review under 5 U.S.C. § 8128(a). 
3

On May 5, 2014 appellant filed a claim for compensation (Form CA-7) requesting an 

increased schedule award. 

In a report dated November 20, 2014, Dr. Henry Mobley, a Board-certified internist 

serving as a district medical adviser (DMA), applied the sixth edition of the American Medical 

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

5 and found that 

appellant had 24 percent permanent impairment of each upper extremity due to bilateral loss of 

ROM of the shoulders. He further found 18 percent permanent impairment of the right upper 

extremity and 14 percent permanent impairment of the left upper extremity due to ganglion cysts 

using the diagnosis-based impairment (DBI) method, 6 percent permanent impairment of the right 

upper extremity and 9 percent permanent impairment of the left upper extremity due to bilateral 

entrapment neuropathy, or carpal tunnel syndrome. Dr. Mobley combined the impairment ratings 

to find an additional 9 percent permanent impairment of the right upper extremity and 22 percent 

permanent impairment of the left upper extremity.

By decision dated March 17, 2015, OWCP granted appellant a schedule award for an 

additional 9 percent permanent impairment of the right upper extremity and an additional 22 

percent permanent impairment of the left upper extremity. It noted that she had a total right upper 

extremity impairment of 42 percent and left upper extremity impairment of 41 percent.

On June 1, 2016 appellant filed a Form CA-7 requesting an increased schedule award. 

By decision dated January 9, 2017, OWCP denied appellant’s claim for an increased 

schedule award. 

On January 14, 2017 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. A hearing was held on July 12, 2017.

By decision dated September 26, 2017, OWCP’s hearing representative set aside the 

January 9, 2017 decision. She remanded the case for OWCP to apply FECA Bulletin No. 17-066

in determining the extent of appellant’s upper extremity impairment.

On November 27, 2017 appellant underwent a decompression of the median nerve of the 

left carpal tunnel to treat recurrent left carpal tunnel syndrome. 

By decision dated May 16, 2019, OWCP denied appellant’s claim for an increased 

schedule award. 

In an impairment evaluation dated August 6, 2020, Dr. Robert R. Ippolito, a Boardcertified plastic surgeon, found that appellant had six percent permanent impairment of the left 

upper extremity due to her rotator cuff tear under the A.M.A., Guides. He measured normal ROM 

of the shoulder.

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

6 FECA Bulletin No. 17-06 (issued May8, 2017).
4

On September 4, 2020 appellant filed a Form CA-7 claim for an increased schedule award. 

On September 26, 2020 Dr. Michael M. Katz, a Board-certified orthopedic surgeonserving 

as a DMA, reviewed Dr. Ippolito’s report and found that appellant had 10 percent permanent 

impairment due to her acromioclavicular (AC) joint disease according to Table 15-5 on page 403. 

He noted that Dr. Ippolito had found normal ROM of the shoulder. Dr. Katz opined that appellant 

had previously received a schedule award of 24 percent due to her left shoulder condition and thus 

was not entitled to an additional schedule award. 

By decision dated October 28, 2020, OWCP denied appellant’s claim for an increased 

schedule award. 

On November 9, 2020 appellant requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

A telephonic hearing was held on March 4, 2021. OWCP’s hearing representative advised 

appellant that she needed to submit a medical report showing greater permanent impairment than 

that previously awarded to support her claim for an increased schedule award.

In an impairment evaluation dated March 9, 2021, Dr. Michael Smith, who specializes in 

emergency medicine, discussed appellant’s complaints of bilateral wrist and shoulder pain. 

Referencing the sixth edition of the A.M.A., Guides, he found 13 percent permanent impairment 

of each upper extremity due to loss of ROM of the shoulders according to Table 15-34 on page 

475. Dr. Smith further found 11 percent permanent impairment of each upper extremity due to 

AC joint disease after a distal clavicle resection according to Table 15-5 on page 403. He noted 

that the A.M.A., Guides provided that the DBI method should be used if it exceeded the ROM 

method. Applying table 15-23 on page 449 of the A.M.A., Guides, Dr. Smith found six percent 

permanent impairment due to left carpal tunnel syndrome and three percent permanent impairment

due to right carpal tunnel syndrome. He further found three percent permanent impairment of the 

right upper extremity due to cubital tunnel syndrome. For the left upper extremity, Dr. Smith

combined the impairment ratings of 13 percent for the shoulder and 6 percent for carpal tunnel 

syndrome to find 18 percent permanent impairment. For the right upper extremity, he combined 

the ratings of 13 percent for the shoulder, 3 percent for right carpal tunnel syndrome, and 3 percent 

for right cubital tunnel syndrome to find 19 percent permanent impairment. 

By decision dated May 19, 2021, OWCP’s hearing representative affirmed the October 28, 

2020 decision. She found that Dr. Smith’s impairment rating had yielded an impairment less than 

the previously found 42 percent permanent impairment of the right upper extremity and 41 percent 

permanent impairment of the left upper extremity.
5

LEGAL PRECEDENT

The schedule award provision of FECA,7 and its implementing federal regulations,

8 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 memb er 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 2009.9 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.10

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: A Contemporary Model of Disablement(ICF).11 Under the sixth edition, the evaluator 

identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers 

based on functional history (GMFH), physical examination (GMPE), and clinical studies 

(GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 

Evaluators are directed to provide reasons for their impairment choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.14

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.15

7

Supra note 1.

8

20 C.F.R. § 10.404.

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

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

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

10 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11 A.M.A., Guides(6th ed. 2009), p.3, section 1.3.

12 Id. at 494-531.

13 Id. at 411.

14 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April1, 2011). 

15 See supra note 9 at Chapter 2.808.6(f) (March 2017).
6

ANALYSIS

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

In decisions dated 2004 through 2015, OWCP granted appellant schedule awards that 

together totaled 42 percent permanent impairment of the right upper extremity and 41 percent 

permanent impairment of her left upper extremity. 

On September 4, 2020 appellant filed a Form CA-7 claim for an increased schedule award. 

She submitted an August 6, 2020 impairment evaluation from Dr. Ippolito, who advised that she 

had six percent permanent impairment of the left upper extremity due to her rotator cuff tear. He 

measured normal ROM of the shoulder.

Dr. Katz, a DMA, reviewed Dr. Ippolito’s report on September 26, 2020. He found that 

appellant had 10 percent permanent impairment of the left upper extremity due to AC joint disease 

under Table 15-5 on page 403 of the A.M.A., Guides and no impairment due to loss of ROM. 

Dr. Katz found that, as she had previously received a schedule award for 24 percent permanent 

impairment of the left upper extremity, she was not entitled to an additional award. 

Appellant subsequently submitted an impairment evaluation dated March 9, 2021 from

Dr. Smith, who found that she had 18 percent permanent impairment of the left upper extremity 

and 19 percent permanent impairment of the right upper extremity. OWCP’s hearing 

representative reviewed Dr. Smith’s report and found that it was insufficient to support a greater 

percentage of impairment than that previously awarded. She did not, however, refer it to a DMA 

for review. OWCP’s procedures provide that, if the claimant’s physician provides an impairment 

evaluation, the case should be referred to the DMA for review.16 

It is well established that proceedings under FECA are not adversarial in nature and OWCP 

is not a disinterested arbiter.17 While the claimant has the burden of proof to establish entitlement 

to compensation, OWCP shares responsibility in the development of the evidence and to see that 

justice is done.18

On remand OWCP should further develop the medical evidence by referring the medical 

record to a DMA to determine the extent of appellant’s employment-related permanent impairment 

based on the A.M.A., Guides. Following this and such further development as deemed necessary, 

OWCP shall issue a de novo decision on appellant’s schedule award claim.

CONCLUSION

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

16 Supra note 9 atChapter 2.808.6e (March2017); see also H.H., Docket No .21-0055 (issued September 9, 2021).

17 T.O., Docket No. 18-0659 (issued August 8, 2019).

18 T.O., id.; Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999).
7

ORDER

IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’

Compensation Programs is set aside, and the case is remanded for further proceedings consistent 

with this decision of the Board.

Issued: August 3, 2022

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