United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.F., Appellant

and

DEPARTMENT OF THE NAVY, BUREAU OF 

MEDICINE AND SURGERY STATIONS, 

Patuxent, MD, Employer

__________________________________________

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Docket No. 21-1418

Issued: March 6, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 September 27, 2021 appellant, through counsel, filed a timely appeal from an 

August 25, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2

5 U.S.C. § 8101 et seq.

3 The Board notes that following the August 25, 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 six

percent permanent impairment of the left upper extremity and zero percent permanent impairment 

of her left lower extremity, for which she has received a schedule award.

FACTUAL HISTORY

This case has previously been before the Board on a different issue.4 The relevant facts

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

The relevant facts are as follows.

On March 12, 2015 appellant, then a 49-year-old financial technician, filed a traumatic 

injury claim (Form CA-1) alleging that on March 6, 2015 she twisted her back, shoulder, and knee 

when trying to grab a door to prevent herself from falling on ice while in the performance of duty. 

OWCP accepted the claim for left shoulder and upper arm sprain, left knee and leg sprain, and 

lumbar sprain. It paid appellant compensation on the supplemental rolls from April 21, 2015 to 

April 20, 2016. 

In a memorandum of telephone call (Form CA-110) dated May 20, 2016, appellant 

requested that the acceptance of her claim be expanded to include the additional conditions of left 

hip strain and sciatica.

By decision dated August 4, 2016, OWCP denied appellant’s request to expand the 

acceptance of her claim to include the additional conditions of hip strain and sciatica. On 

October 3, 2016 appellant requested reconsideration. By decision dated December 15, 2016, 

OWCP denied modification of the August 4, 2016 decision. 

On February 1, 2017 appellant, through counsel, filed a timely appeal from the 

December 15, 2016 merit decision. By decision dated August 15, 2018, the Board affirmed the 

December 15, 2016 decision. The Board found that appellant had not established that her left hip 

strain and sciatica were causally related to her March 6, 2015 employment injury.5

On October 13, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

On December 14, 2018 OWCP referred appellant, a statement of accepted facts (SOAF),

and a series of questions to Dr. Rafael A. Lopez Steuart, a Board-certified orthopedic surgeon, for 

a second opinion evaluation to determine the cause and extent of her employment-related 

permanent impairment. Itrequested that he provide an opinion in accordance with the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides).6

4 Docket No. 17-0645 (issued August15, 2018).

5

Id. 

6 A.M.A., Guides(6

th ed. 2009).
3

In a December 27, 2018 report, Dr. Joshua B. Macht, appellant’s treating physician, a

Board-certified internist, noted appellant’s history of injury and medical treatment. He provided 

her physical examination findings and utilized the A.M.A., Guides to find that she had 6 percent 

permanent impairment of the left upper extremity as a result of her left shoulder condition, 5

percent permanent impairment of the left lower extremity as a result of her left hip condition, and 

11 percent permanent impairment of the left lower extremity as a result of her left knee condition. 

Dr. Macht combined the left lower extremity ratings and opined that appellant had 15 percent 

permanent impairment of the left lower extremity as a result of her left hip and knee conditions. 

In a report dated January 23, 2019, Dr. Steuart noted appellant’s history of injury and 

medical treatment. He also related her physical examination findings. Dr. Steuart utilized the 

A.M.A., Guides and determined that appellant had zero percent permanent impairment of her left

knee. Regarding the left shoulder, he determined that she had 1 percent permanent impairment

utilizing the diagnosis-based impairment (DBI) method and 12 percent impairment utilizing the 

range of motion (ROM) method. In a February 7, 2019 addendum, Dr. Steuart noted that appellant 

did not have any sensory or motor deficit from the lumbar sprain and opined that she had no

permanent impairment as a result of the accepted lumbar sprain. 

On March 15, 2019 OWCP requested that Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as an OWCP district medical adviser (DMA), review the medical 

record and provide an opinion as to whether appellant sustained permanent impairment which 

would entitle her to a schedule award.

In a March 22, 2019 report, the DMA determined that, a conflict in medical opinion existed 

between Dr. Macht, appellant’s treating physician, and Dr. Steuart, an OWCP second opinion 

physician, with regard to the extent of her permanent impairment of her left upper and left lower 

extremities due to the March 6, 2015 employment injury. He also noted that both Dr. Macht and

Dr. Steuart agreed that she did not have a spinal nerve impairment based on the accepted lumbar 

spine condition. 

On April 9, 2019 OWCP referred appellant, a SOAF, the medical record, and a list of 

questions, to Dr. Mohammad Zamani, a Board-certified orthopedic surgeon, for an impartial 

medical examination to resolve the conflict in the medical opinion evidence between Dr. Macht 

and Dr. Steuart. 

In a report dated April 30, 2019, Dr. Zamani noted appellant’s history of injury and 

physical examination findings. He utilized the fourth edition of the A.M.A., Guides7 and

determined that she had full ROM of the left leg and therefore zero percent permanent impairment 

of the left lower extremity. Dr. Zamani also found that appellant had 10 percent permanent 

impairment of the left upper extremity due to loss of ROM of the left shoulder. 

By decision dated July 15, 2019, OWCP granted appellant a schedule award for 10 precent 

permanent impairment of the left lower extremity (leg) and 0 percent permanent impairment of the 

left upper extremity (arm). The period of the award was for 28.8 weeks running from April 30 to 

November 17, 2019. 

7 A.M.A., Guides (4th ed. 1993).
4

On July 22, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

November 4, 2019. 

In a January 16, 2020 decision, OWCP’s hearing representative set aside the July 15, 2019 

OWCP decision. The hearing representative noted that the basis for the July 15, 2019 decision 

was unclear because it awarded appellant 10 percent permanent impairment for the left lower 

extremity and 0 percent for the left upper extremity, while Dr. Zamani found no permanent 

impairment of the left lower extremity and 10 percent permanent impairment of the left upper 

extremity. OWCP’s hearing representative further noted that Dr. Zamani used the fourth edition, 

rather than the sixth edition of the A.M.A., Guides. The hearing representative also noted that

Dr. Zamani apportioned the 10 percent impairment rating as 4 percent attributable to the work 

injury while the A.M.A., Guides did not allow for apportionment. OWCP’s hearing representative 

directed that, upon return of the case record, OWCP should seek clarification from Dr. Zamani 

under the sixth edition of the A.M.A., Guides, for both the left upper and lower extremities and 

that his report should be reviewed by the DMA to assure the correct application of the A.M.A., 

Guides.

On July 10 and August 19, and 28, 2020 OWCP referred appellant, a SOAF, the medical 

record, and a list of questions, to Dr. Robert M. Saltzman, a Board-certified orthopedic surgeon, 

for an impartial medical examination to resolve the conflict between Dr. Macht and Dr. Steuart. 

In a September 3, 2020 report, Dr. Saltzman reviewed the SOAF and the medical record, 

and discussed his examination findings regarding appellant’s upper and lower extremities. He 

opined that she sustained zero percent permanent impairment of the left lower extremity and six

percent permanent impairment of the left upper extremity. Dr. Saltzman related that he was in 

agreement with Dr. Macht that appellant had six percent permanent impairment of the left upper 

extremity, due to loss of ROM of the left shoulder, as a result of the March 6, 2015 employment 

injury. He also found that she had reached maximum medical improvement on October 23, 2018. 

By decision, dated November 6, 2020, OWCP determined that appellant was not entitled 

to an additional schedule award for permanent impairment of either the left upper or lower 

extremity. 

On November 12, 2020 counsel for appellant requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on February 2, 2021. 

By decision dated March 10, 2021, an OWCP hearing representative set aside the July 15, 

2019 decision. The hearing representative explained that OWCP provided appellant a schedule 

award for 10 percent permanent impairment of the left lower extremity, and 0 percent permanent 

impairment of the left upper extremity, rather than 6 percent permanent impairment of the left 

upper extremity and 0 percent impairment of the left lower extremity as indicated by Dr. Saltzman.

He also explained that, as appellant had been provided a schedule award for 201.60 days of 

compensation for the left lower extremity, which should have applied to the left upper extremity, 

there was no entitlement to additional compensation since she was only entitled to 131.04 days of 

compensation for the left upper extremity. OWCP’s hearing representative indicated that, upon 

return of the case file, OWCP “should issue a proper (corrected) Formal Decision with regard to 

the left lower extremity and left upper extremity” as the July 15, 2019 decision was erroneous. 
5

By decision dated March 24, 2021, OWCP granted appellant a schedule award for six

percent permanent impairment of the left upper extremity, and zero percent permanent impairment 

of the left lower extremity, to run for 18.72 weeks from April 30 to September 8, 2019. 

On March 30, 2021 counsel for appellant requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review, which was held on July 7, 2021. 

Counsel submitted a new report from Dr. Macht dated April 19, 2021 and argued that

appellant had nine percent permanent impairment of her left upper extremity, rather than the six

percent previously awarded. He further indicated that he would submit an additional report from

Dr. Macht regarding her left lower extremity permanent impairment.

In his report dated April 19, 2021, Dr. Macht related that Dr. Saltzman’s own physical

examination findings of appellant’s left shoulder reflected that she had nine percent permanent 

impairment of the left upper extremity due to loss of ROM. He noted that, since Dr. Saltzman’s 

examination was the most up-to-date examination, Dr. Saltzman’s finding should have been used 

to determine her permanent impairment. 

By decision dated August 25, 2021, an OWCP hearing representative affirmed the 

March 24, 2021 decision. The hearing representative accorded the special weight of the evidence 

to Dr. Saltzman, and explained that Dr. Macht’s April 19, 2021 report was of limited probative 

value as Dr. Macht was on one side of the conflict. 

LEGAL PRECEDENT

The schedule award provisions of FECA,8 and its implementing federal regulations,9 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. 

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 2009.10 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.11

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 

8

Supra note 2.

9

20 C.F.R. § 10.404.

10 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 Award and Permanent Disability Claims, 

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

11 See L.Y., Docket No. 20-0398 (issued February 9, 2021); P.R., Docket No. 19-0022 (issued April9, 2018);

Isidoro Rivera, 12 ECAB 348 (1961).
6

(ICF).

12

 Under the sixth edition, the evaluator identifies the impairment class of diagnosis (CDX), 

which is then adjusted by a grade modifier for functional history (GMFH), grade modifier for 

physical examination (GMPE), and grade modifier for clinical studies (GMCS). 13 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14 Evaluators are 

directed to provide reasons for their impairment choices, including the choices of diagnoses from 

regional grids and calculations of modifier scores.15

Regarding the application of ROM or DBI impairment methodologies in rating permanent 

impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:

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

rating should be used.”

16

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.17 In situations where there exist opposing medical 

reports of virtually equal weight and rationale and the case is referred to an impartial medical 

examiner (IME) for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.18

OWCP’s procedures provide that, if a case has been referred to an IME to resolve a conflict 

regarding permanent impairment, it is unnecessary to route the file to a DMA as long as the IME 

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

13 Id. at 383-492.

14 Id. at 411.

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

16 FECA Bulletin No. 17-06 (issued May 8, 2017); see also W.H., Docket No. 19-0102 (issued June 21, 2019).

17 5 U.S.C. § 8123(a);see also 20 C.F.R. § 10.321.

18 K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020).
7

explains his or her impairment rating and cites to the appropriate tables and the A.M.A., Guides.

The DMA should not resolve the conflict in medical opinion.19

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical evidence, and the IME’s opinion requires clarification or elaboration, OWCP must secure 

a supplemental report from the examiner for the purpose of correcting the defect in the original 

opinion.20 If the referral physician fails to respond or does not provide an adequate response, 

OWCP should refer appellant for a new impartial medical examination.21

ANALYSIS

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

OWCP found that a conflict in the medical evidence existed between appellant’s attending 

physician, Dr. Macht, who found 6 percent permanent impairment of the left upper extremity and 

15 percent permanent impairment of the left lower extremity, and OWCP referral physician,

Dr. Steuart, who found 12 percent permanent impairment of the left upper extremity and 0 percent 

permanent impairment of the left lower extremity.

In order to resolve the conflict, OWCP properly referred appellant to Dr. Zamani for an 

impartial medical examination, pursuant to 5 U.S.C. § 8123(a). In a report dated April 30, 2019,

Dr. Zamani noted her history of injury and treatment, utilized the fourth edition of the A.M.A, 

Guides,

22 and determined that she had 0 percent permanent impairment of the left lower extremity

and 10 percent permanent impairment of the left upper extremity. Based upon his opinion, on 

July 15, 2019 OWCP granted appellant a schedule award for 10 percent permanent impairment of 

the left lower extremity, and 0 precent permanent impairment of the left upper extremity.

However, in a July 16, 2020 decision, OWCP’s hearing representative set aside the July 15, 

2019 OWCP decision. The hearing representative found that Dr. Zamani incorrectly used the 

fourth edition of the A.M.A., Guides, and directed OWCP to further develop the medical evidence 

and to issue a new decision. OWCP’s hearing representative explained that, upon return of the 

case record, OWCP should seek clarification from Dr. Zamani using the sixth edition of the 

A.M.A., Guides, for both the left upper and lower extremities. Furthermore, Dr. Zamani’s report 

should be reviewed by the DMA to assure the correct application of the A.M.A., Guides. However, 

OWCP did not seek clarification from him, and instead sent appellant for a new impartial medical 

examination with Dr. Saltzman. No explanation for the failure to request clarification from

Dr. Zamani is noted in the record, and it is unclear why she was sent to Dr. Saltzman without first 

requesting clarification from Dr. Zamani.

19 See supra note 10 at Chapter 2.808.6g (March 2017); see also J.M., Docket No. 18-1387 (issued 

February1, 2019).

20 W.H., Docket No. 16-0806 (issued December 15, 2016); Harold Travis, 30 ECAB 1071, 1078 (1979); supra note 

10 at Chapter 2.810.11e (September 2010).

21 Id.;see also R.W., Docket No. 18-1457 (issued February 1, 2019).

22 A.M.A., Guides (4th ed. 1993).
8

OWCP procedures provide that: 

“If the referee specialist submits an opinion which is equivocal, lacks rationale, or 

fails to address the specified medical issues or conflict, the CE [claims examiners] 

should seek clarification or further rationale from that physician. When OWCP 

undertakes to develop the evidence by referring the case to an [OWCP]-selected 

physician, it has an obligation to seek clarification from that physician upon 

receiving a report that did not adequately address the issues that [OWCP] sought to 

develop. As such, the CE [claims examiners] should seek clarification from the 

referee physician and request a supplemental report to clarify specifically noted 

discrepancies or inadequacies in the initial report.

“Only if the referee physician does not respond, or does not provide a sufficient 

response after being asked, should the CE [claims examiners] request a new referee 

examination.”

23

The Board has held that the exclusion of a medical report obtained from a designated IME

is required under specific circumstances.24 In Joseph R. Alsing,

25 the Board excluded the medical 

report from a second impartial medical specialist, which was obtained prior to any attempt to have 

the original medical referee clarify his medical opinion. The Board stated: “Since the report was 

improperly obtained, it will not be given any weight on review by the Board and should not be 

considered by [OWCP].” The Board in Alsing remanded the case to OWCP to obtain a 

clarification report from the first impartial medical specialist and to issue a de novo decision.26 

Consequently, Dr. Saltzman’s report must be excluded from consideration as it was 

obtained before OWCP sought clarification from Dr. Zamani.

27

The case will be remanded to OWCP for further development of the medical evidence to 

include seeking clarification from Dr. Zamani, the original IME, to resolve the conflict regarding 

the extent of appellant’s permanent impairment. If OWCP is unable to obtain clarification from

Dr. Zamani, then OWCP should refer herto a second IMEto resolve the conflict of opinion. After 

such other further development as OWCP deems necessary, it shall issue a de novo decision.

23 See E.M., Docket No. 13-1876 (issued March 26, 2014); see also supra note 10 at Chapter 2.810.11e 

(September 2010).

24 See Terrance R. Stath, 45 ECAB 412 (1994).

25 Joseph R. Alsing, 39 ECAB 1012 (1988); JeannineE. Swanson, 45 ECAB 325 (1994); see W.H., supra note 20.

26 Id.; see also Kim Law-Jackson, Docket No. 03-2075 (issued November 26, 2003) (where the Board found that 

OWCP erred when it failed to follow the instructions of the Board and obtain clarification of a report from the first 

IME prior to referring appellant to another IME). See alsosupra note 10 at Chapter 2.810.12a(2) (September 2010); 

Terrance R. Stath, supra note 24.

27 See Terrance R. Stath, id. (the Board distinguished situations where medical reports were excluded because 

OWCP might have influenced the opinion of an impartial medical specialist from circumstances in which the medical 

report obtained was defective for other procedural reasons). See also id. at Chapter 2.810.12 (September 2010).
9

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 25, 2021 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for proceedings consistent with the 

decision of the Board.

Issued: March 6, 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