United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.L., Appellant

and

DEPARTMENT OF LABOR, OFFICE OF 

WORKERS’ COMPENSATION PROGRAMS, 

New York, NY, Employer

__________________________________________

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Docket No. 22-0068

Issued: October 12, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On October 20, 2021 appellant filed a timely appeal from a September 30, 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

ISSUES

The issues are: (1) whether appellant has established greater than 8 percent permanent 

impairment of the left upper extremity and 12 percent permanent impairment of the right upper 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,following the September 30, 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

extremity for which she previously received a schedule award; and (2) whether appellant has met 

her burden of proof to establish any permanent impairment of her lower extremities, warranting a 

schedule award.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.

3

 The facts and 

circumstances as set forth in the Board’s prior order are incorporated herein by reference. The 

relevant facts are as follows.

On May 15, 2018 appellant, then a 37-year-old claims examiner, filed a traumatic injury 

claim (Form CA-1) alleging that on May 11, 2018 she sustained bilateral shoulder and back strains

when she attempted to open a heavy door while pushing her chair to a new cubicle. She stopped 

work on the date of injury. Appellant returned to work on June 27, 2018 stopped work again on 

June 29, 2018 and returned to work on September 4, 2018. By decision dated April 5, 2019,

OWCP accepted the claim for bilateral shoulder joint, lumbar, and pelvic strains. 

In a report dated November 25, 2020, Dr. Erie T. Agustin, a physician specializing in 

internal and family medicine, advised that appellant had reached maximum medical improvement

(MMI). He noted that she sustained neck, bilateral shoulder, upper and lower back, and left knee 

injuries due to an April 6, 2018 motor vehicle accident, and a May 11, 2018 work injury. 

On December 31, 2020 appellant filed a claim for compensation (Form CA-7) for a 

schedule award. 

On March 10, 2021 OWCP referred appellant, together with a statement of accepted facts

(SOAF) and medical record, to Dr. David Benatar, a Board-certified orthopedic surgeon, for a 

second opinion permanent impairment evaluation, due to the accepted work-related conditions. 

In a report dated March 26, 2021, Dr. Benatar reviewed the SOAF and appellant’s medical 

record. He set forth her physical examination findings and opined that she had reached MMI on 

the date of the examination, March 26, 2021. Regarding the lower extremities, Dr. Benatar noted 

negative bilateral straight leg raising, no motor or sensory deficits, and intact sensory from L2 to 

S1. Regarding the upper extremities, he noted positive impingement testing on both sides, negative 

instability testing, and intact motor and sensory testing. 

With regard to the right shoulder, range of motion (ROM) of the right upper extremity was 

recorded as 120 degrees flexion, 35 degrees extension, 110 degrees abduction, 15 degrees 

adduction, 65 degrees internal rotation, and 45 degrees external rotation. In rating appellant’s right 

upper extremity under the ROM method, Dr. Benatar determined that loss of flexion represented 

3 percent permanent impairment, loss of extension represented 1 percent permanent impairment, 

loss of abduction represented 3 percent permanent impairment, loss of adduction represented 1 

percent permanent impairment, loss of internal rotation represented 3 percent permanent 

impairment, and loss of external rotations represented 2 percent impairment, for a total permanent 

impairment of 12 percent. Utilizing Table 15-35 on page 477 of the sixth edition of the American 

3 Order Granting Remand, Docket No. 19-0240 (issued March 22, 2019). 
3

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

4

Dr. Benatar assigned a grade modifier 2 for the 12 percent ROM impairment rating and a grade 

modifier for functional history (GMFH) of 2 that resulted in no change in the overall rating. He

found that, under Table 15-34, appellant had 12 percent right upper extremity permanent 

impairment for loss of ROM, noting that the greatest of three measurements was used to calculate 

permanent impairment. Utilizing the diagnosis-based impairment (DBI) rating method found at 

Table 15-5 on page 402 of the sixth edition of the A.M.A., Guides.

5

 Dr. Benatar noted that 

appellant had a class of diagnosis (CDX) of 1 with a default value of two percent for residual 

symptoms and consistent objective findings for a diagnosis of right shoulder labral lesions 

including superior labrum anterior and posterior (SLAP) tear. He assigned a GMFH of 2, a grade 

modifier for clinical studies (GMCS) of 1, and a grade modifier for physical examination (GMPE) 

of 2, which moved the default value two spaces to the right resulting in a class 1, grade E rating of

five percent permanent impairment of the right upper extremity. Dr. Benatar opined that appellant 

had 12 percent permanent impairment of the right upper extremity based on the ROM rating 

method, which was greater than the 5 percent permanent impairment based on the DBI rating 

method. 

With regard to the left shoulder, Dr. Benatar determined that, under Table 15-34, appellant 

had eight percent permanent impairment, noting that the greatest of three measurements was used 

to calculate permanent impairment. Using the DBI method, he noted that she had a CDX of 1 with 

a default value of three percent for a diagnosis of left shoulder impingement with residual loss. 

Dr. Benatar assigned a grade modifier for GMFH of 2, a grade modifier for GMCS of 0, and a 

grade modifier for GMPE of 1, which resulted in a class 1, grade C or three percent permanent 

impairment of the right upper extremity. He opined that appellant had eight percent permanent 

impairment of the left upper extremity based on the ROM rating method, which was greater than 

the three percent permanent impairment rating based on the DBI rating method. 

On April 13, 2021 OWCP referred the medical record, including Dr. Benatar’s March 26, 

2021 report, to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a district 

medical adviser (DMA). In a report dated April 16, 2021, Dr. Harris concurred with Dr. Benatar’s

bilateral upper extremity findings. For the lower extremities, he indicated that appellant did not 

have any neurologic deficit in either the left or right lower extremity consistent with lumbar 

radiculopathy. This was consistent with severity 0 under Table 16-11 and a Class 0 impairment 

based on Table 2 of The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the 

Sixth Edition (July/August 2009) (The Guides Newsletter). Dr. Harris concluded that this resulted 

in zero percent permanent impairment for lumbar radiculopathy in either the left or right lower 

extremity based on the methodology described in The Guides Newsletter. He indicated that the 

A.M.A., Guides did not allow for an impairment rating under the ROM method. Dr. Harris opined 

that appellant reached MMI on March 26, 2021, the date of Dr. Benatar’s examination. 

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

5

Id.
4

By decision dated July 6, 2021, OWCP granted appellant a schedule award for 8 percent 

permanent impairment of her left upper extremity and 12 percent permanent impairment of her 

right upper extremity. The award ran 62.4 weeks for the period March 27, 2021 to June 6, 2022. 

On July 27, 2021 appellant requested a review of the written record by a representative of 

OWCP’s Branch of Hearings and Review. 

By decision dated September 30, 2021, OWCP’s hearing representative affirmed the 

July 6, 2021 decision. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA6 and its implementing regulations

7 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 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.

8

 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides(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

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.

11

 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.

12

 The 

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

13

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.; see also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); id. at Chapter 2.808.5(a) (March2017).

10 B.B., supra note 8; M.D., Docket No. 20-0007 (issued May 13, 2020); P.R., Docket No. 19-0022 (issued April9, 

2018); Isidoro Rivera, 12 ECAB 348 (1961).

11 B.B., id.; M.D.,id.; T.T., Docket No. 18-1622 (issued May 14, 2019).

12 A.M.A., Guides 383-492;see B.B., id.; M.P., Docket No. 13-2087 (issued April8, 2014).

13 Id.
5

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).”

14

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.,] 

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 

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

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

15

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.”

16

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.17

ANALYSIS -- ISSUE 1

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

percent permanent impairment of her right upper extremity and 8 percent permanent impairment 

of her left upper extremity, for which she previously received a schedule award.

In a March 26, 2021 report, Dr. Benatar reviewed the SOAF and set forth his examination 

findings. He opined that appellant reached MMI on March 26, 2021. For the accepted right 

14 FECA Bulletin No. 17-06 (issued May8, 2017); B.B., id.; V.L., Docket No. 18-0760 (issued November 13, 2018).

15 Id.

16 Id.

17 See supra note 9 at Chapter 2.808.6(f) (February 2013). See also D.S., Docket No. 20-0670 (issued November 2, 

2021); 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).
6

shoulder labral lesions including SLAP tear, Dr. Benatar found under Table 15-5 a Class 1 

impairment and default of two percent upper extremity impairment. He assigned a GMFH of 2, 

GMPE of 2, and a GMCS of 1, under Table 15-7, Table 15-8, and Table 15-9, respectively. 

Dr. Benatar found that the net adjustment within the diagnostic class resulted in Grade E or five 

percent right upper extremity permanent impairment for the accepted right shoulder labral lesions 

including SLAP tear. He also utilized the ROM rating method to determine permanent impairment 

to the right shoulder. Utilizing Table 15-34, page 475, Dr. Benatar determined that 120 degrees 

flexion represented 3 percent permanent impairment, 35 degrees extension represented 1 percent 

permanent impairment, 110 degrees abduction represented 3 percent permanent impairment, 15 

degrees adduction represented 1 percent permanent impairment, and the internal rotation 

represented 3 percent permanent impairment, and external rotations represented 2 percent 

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

Utilizing Table 15-35 on page 477, he assigned a grade modifier of 2 for the 12 percent ROM 

impairment rating and a GMFH of 2 that resulted in no change.

For the accepted left shoulder impingement CDX, Dr. Benatar found, under Table 15-5, a 

Class 1 impairment with residual loss of function and default value of three percent left upper 

extremity impairment. He assigned a GMFH of 2, GMPE of 1, and a GMCS of 0, under Table 15-

7, Table 15-8, and Table 15-9, respectively. Dr. Benatar found that the net adjustment within the 

diagnostic class was zero, which resulted in Grade C or three percent permanent impairment. He 

also utilized the ROM rating method to determine permanent impairment to the left shoulder. 

Utilizing Table 15-34, page 475, Dr. Benatar determined that had a total of eight percent permanent 

impairment of the left upper extremity. As using the ROM method resulted in greater impairment 

than the DBI rating method, Dr. Benatar concluded that appellant had a total of eight percent left 

upper extremity permanent impairment. 

In accordance with its procedures,18 OWCP properly referred the evidence of record to

Dr. Harris, serving as the DMA, who reviewed the March 26, 2021 report and clinical findings of

Dr. Benatar. In his April 16, 2021 report, Dr. Harris concluded that appellant’s bilateral shoulder 

permanent impairments under the ROM rating method were greater than her bilateral shoulder 

impairments using the DBI rating method. He concurred with Dr. Benatar, that, pursuant to the 

sixth edition of the A.M.A., Guides, the ROM methodology established 12 percent permanent 

impairment of the right upper extremity and 8 percent impairment of the left upper extremity. 

The Board finds that OWCP properly determined that appellant has not established greater

than 12 percent permanent impairment of the right shoulder and 8 percent permanent impairment 

of the left upper extremity based on the clinical findings and reports of Dr. Benatar and

Dr. Harris.19 There is no probative medical evidence of record demonstrating greater impairment 

than that previously awarded.20 

18 Id.

19 See D.S., id.; J.S., Docket No. 19-1567 (issued April1, 2020); J.M., Docket No. 18-1334 (issued March 7, 2019).

20 See D.S., id.; D.F., Docket No. 17-1474 (issued January 26, 2018); A.T., Docket No. 16-0738 (issued 

May 19, 2016).
7

Appellant may request a schedule award or increased schedule award based at any time on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased permanent impairment.

LEGAL PRECEDENT -- ISSUE 2

Neither FECA nor its implementing regulations provides for the payment of a schedule 

award for the permanent loss of use of the back/spine, or the body as a whole. However, a schedule 

award is permissible where the employment-related spinal condition affects the upper and/or lower 

extremities.

21

 The sixth edition of the A.M.A., Guides provides a specific methodology for rating 

spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations where 

a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for 

the spine. FECA-approved methodology is premised on evidence of radiculopathy affecting the 

upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity 

impairment are incorporated into OWCP’s procedures.

22

ANALYSIS -- ISSUE 2

The Board further finds that appellant has not met her burden of proof to establish any 

permanent impairment of her lower extremities, warranting a schedule award.

OWCP accepted appellant’s claim for lumbar spine and pelvis and bilateral shoulder 

sprains. In a March 26, 2021 report, Dr. Benatar examined her and found no neurologic deficit of 

either lower extremity consistent with lumbar radiculopathy. Consistent with its procedures, 23

OWCP properly referred the matter to a DMA for an opinion regarding appellant’s permanent 

impairment in accordance with the sixth edition of the A.M.A., Guides and The Guides Newsletter.

On April 16, 2021 Dr. Harris, OWCP’s DMA, reviewed Dr. Benatar’s March 26, 2021 

report and opined that appellant did not have any neurologic deficit in either lower extremity 

consistent with lumbar radiculopathy. He found that this was consistent with severity 0 under 

Table 16-11 and a Class 0 impairment based on Table 2 of The Guides Newsletter. Dr. Harris 

concluded that this resulted in zero percent permanent impairment for lumbar radiculopathy in 

either the left or right lower extremity based on the methodology described in The Guides 

Newsletter. He indicated that the A.M.A., Guides did not allow for a lower extremity impairment 

rating assessed under ROM. 

The Board finds that appellant has not established entitlement to a schedule award due to 

her accepted lumbar condition under The Guides Newsletter. The record contains no medical 

21 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.B., supra note 8; A.G., Docket No. 18-0815 (issued 

January 24, 2019); Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

22 Supra note 9 at Chapter 3.700, Exhibit 4 (January 2010); see B.B., id.; E.G., Docket No. 19-1081 (issued 

September 24, 2020).

23 Supra note 16.
8

evidence in accordance with The Guides Newsletter demonstrating permanent impairment of either 

lower extremity due to her accepted lumbar condition.24

CONCLUSION

The Board finds that appellant has not established greater than 8 percent permanent 

impairment of the left upper extremity and 12 percent permanent impairment of the right upper 

extremity for which she previously received a schedule award. The Board also finds that appellant 

has not met her burden of proof to establish any permanent impairment of her lower extremities,

warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT September 30, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 12, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

24 See B.B., supranote 8;E.G., Docket No. 19-1081 (issued September 24, 2020);T.K., Docket No. 19-1222 (issued 

December 2, 2019); C.S., Docket No. 18-0920 (issued September 23, 2019).