United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF JUSTICE, FEDERAL 

BUREAU OF PRISONS, Marion, IL, Employer

__________________________________________

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Docket No. 21-1058

Issued: March 2, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 6, 2021 appellant, through counsel, filed a timely appeal from a June 2, 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.

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.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 29 

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

schedule award compensation.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On September 8, 2003 appellant, then a 41-year-old senior correctional officer, filed a

traumatic injury claim (Form CA-1) alleging that on September 6, 2003 he possibly fractured his 

left shoulder blade and experienced swelling in his arm when he hit the corner of a security cabinet 

door with his left shoulder while in the performance of duty. He stopped work on the date of 

injury. OWCP accepted the claim for complete rotator cuff tear or rupture, other joint derangement 

of the left shoulder,sprain of the left shoulder and upper arm, superior glenoid labrum lesion, and 

left exostosis, site unspecified. On December 3, 2003 appellant underwent authorized left shoulder 

arthroscopic surgery. He returned to full-time, modified-duty work with restrictions, effective 

June 8, 2004, until he stopped work on June 24, 2004.4

On August 2, 2004 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

By decision dated June 27, 2005, OWCP granted appellant a schedule award for eight 

percent permanent impairment of the left upper extremity. The period of the award ran for 24.96 

weeks from December 3, 2004 through May 26, 2005.

In a September 26, 2007 decision, OWCP granted appellant a schedule award for an 

additional 10 percent permanent impairment of the left upper extremity, for a total of 18 percent 

permanent impairment. The period of the award ran for 31.20 weeks from April 23 through 

November 27, 2007. 

By decision dated March 19, 2013, OWCP granted appellant a schedule award for an 

additional three percent permanent impairment of the left arm, for a total of 21 percent left upper 

extremity permanent impairment. The award ran for 9.36 weeks for the period October 26 to 

December 30, 2012. 

By decision dated August 6, 2018, OWCP expanded the acceptance of appellant’s claim to 

include complex regional pain syndrome (CRPS) of the left upper limb. 

3 Docket No. 06-2068 (issued April20, 2007).

4 Appellant retired from the employing establishment effective April 15, 2007.
3

OWCP subsequently received a June 12, 2019 medical report by Dr. John W. Ellis, an 

attending Board-certified family practitioner. Dr. Ellis determined that appellant had 16 percent 

permanent impairment of the left upper extremity using the diagnosis-based impairment (DBI) 

rating method, 45 percent permanent impairment of the left upper extremity using the range of 

motion (ROM) rating method, and 80 percent permanent impairment of the left upper extremity 

based on the accepted condition of CRPS under the sixth edition of the American Medical 

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

5

 He

determined that MMI was reached on the date of his evaluation.

On September 15, 2019 Dr. Herbert White, Jr., a Board-certified orthopedic surgeon 

serving as an OWCP DMA, reviewed the medical record, including Dr. Ellis’ June 12, 2019 

findings. He found that appellant had 13 percent permanent impairment of the left upper extremity 

based on CRPS and five percent permanent impairment of the left upper extremity based on a 

labral tear using the DBI method, and 36 percent permanent impairment of the left upper extremity 

using the ROM method in accordance with the sixth edition of the A.M.A., Guides. Dr. White

determined that the date of MMI was June 12, 2019, the date of Dr. Ellis’ impairment evaluation. 

He noted discrepancies in Dr. Ellis’ impairment ratings.

By letter dated October 25, 2019, OWCP requested that Dr. Ellis review Dr. White’s 

September 15, 2019 findings. In a November 14, 2019 addendum report, Dr. Ellis disagreed with 

the DMA’s 13 percent left upper extremity impairment rating for CRPS and advised that his 80 

percent left upper extremity impairment rating for the same condition remained unchanged.

On November 26, 2019 OWCP requested that DMA, Dr. White, review Dr. Ellis’

November 14, 2019 report. In a December 5, 2019 addendum report, the DMA related that

Dr. Ellis did not provide any additional information that would change his impairment rating.

On January 6, 2020 OWCP determined that a conflict in medical opinion existed between

Dr. Ellis and the DMA regarding the extent of appellant’s left upper extremity permanent 

impairment. On January 29, 2020 it referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Sunil Dedhia, a Board-certified orthopedic surgeon, for an 

impartial medical examination. 

In a March 10, 2020 report, Dr. Dedhia on examination of appellant’s left shoulder noted 

that there was no evidence of obvious atrophy within the supraspinatus or infraspinatus fossa. 

There was tenderness to palpation over the coracoid process, acromioclavicular joint, long head 

biceps tendon, posterior capsule. ROM measurements included 90 degrees of flexion, 80 degrees 

of abduction, 0 degrees of external rotation, 10 degrees of internal rotation, passive forward 

elevation to 100 degrees, and passive adduction to 90 degrees. 

Upon gross examination of appellant’s left upper extremity, there was no evidence of

obvious side-to-side upper extremity swelling or edema. There was no appreciable side-to-side 

difference in temperature changes throughoutthe upper arm or forearm and very minimal coolness 

was noted over the left hand compared to the right. There was no evidence of obvious hair changes 

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

on the right and left side. There was evidence of curved dystrophic nails on the left side compared 

to the right. Skin turgor and texture was fairly symmetric with no evidence of glistening or 

nonelastic skin. There was no evidence of obvious changes in the sweat pattern of the left upper 

extremity compared to the right. Using Table 15-25 of the sixth edition of the A.M.A., Guides,

Dr. Dedhia assigned a point score of 4 for CRPS, class of diagnosis (CDX), based on his 

examination findings. He determined the score of 4 resulted in a class 1 impairment under 

Table 15-26. Dr. Dedhia took into account grade modifiers for functional history (GMFH) and 

physical examination (GMPE) which resulted in a grade E, 13 percent permanent impairment of 

the left upper extremity. He noted that a grade modifier for clinical studies (GMCS) was not 

included in his calculations because clinical studies had not been provided to him. Dr. Dedhia

related that appellant had advised that radiographic studies, including a bone scan had been 

performed; however, the actual reports and images were not available for his review. Utilizing

Table 15-5, he found that a labrum lesion resulted in a class 1, five percent impairment, with a 

range adjustment to grade E based on GMPE and GMFH adjustments. Dr. Dedhia also found a 

grade E seven percent impairment, for a full-thickness rotator cuff tear under Table 15-5 based on 

GMFH and GMPE findings. He noted that his seven percent impairment rating included all 

diagnoses related to appellant’s shoulder condition and was the greater rating based on the DBI 

method.

Dr. Dedhia also utilized the ROM method at Table 15-34 to rate permanent impairment of 

the left shoulder. He found 3 percent impairment for flexion, 6 percent impairment for abduction, 

2 percent impairment for external rotation, 1 percent impairment each for extension and adduction, 

and 4 percent impairment for internal rotation, totaling 17 percent permanent impairment of the 

left upper extremity. Dr. Dedhia advised that since his 17 percent ROM permanent impairment 

rating was greater than the DBI permanent impairment ratings, it was the predominate rating for 

appellant’s left shoulder conditions. He determined that appellant had reached MMI. 

By letter dated July 10, 2020, OWCP requested that Dr. Dedhia clarify his calculation of 

the 17 percent ROM impairment rating as it calculated a 16 percent ROM impairment rating, 

whether his 13 percent DBI impairment rating should be added to the 17 percent ROM impairment 

rating for a total of 30 percent left upper extremity permanent impairment, and whether his current 

total impairment rating considered the 18 percent left upper extremity impairment rating for which 

appellant previously received schedule award compensation.

In a September 15, 2020 addendum report, Dr. Dedhia acknowledged that OWCP was 

correct in finding that appellant had a 16 percent left shoulder ROM impairment rating. He 

therefore found that appellant had 29 percent permanent impairment of the left upper extremity 

based on CRPS and shoulder ROM deficits. Dr. Dedhia related that, if appellant had been given 

a previous schedule award for 18 percent impairment, then he had an additional 11 percent 

permanent impairment. He advised that his 29 percent impairment rating was not in addition to 

the 18 percent previously awarded.

OWCP, by decision dated November 12, 2020, granted appellant a schedule award for an 

additional 11 percent permanent impairment of the left upper extremity, resulting in a total of 29 

percent permanent impairment. The period of the award ran for 34.32 weeks from March 10 

through November 5, 2020 and was based on the impartial medical opinion of Dr. Dedhia.
5

On November 19, 2020 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received progress notes dated July 3 and August 22, 2018 by

Dr. Alan G. Shepard, a neurologist, who diagnosed Type 1 CRPS of the left upper extremity, 

degeneration of the lumbar or lumbosacral intervertebral disc, and hand weakness.

OWCP issued an amended decision dated December 10, 2020, again granting appellant a 

schedule award for an additional 11 percent permanent impairment of the left upper extremity, for 

a total 29 percent permanent impairment, based on Dr. Dedhia’s impairment rating.

An oral hearing was held on March 18, 2021.

By decision dated June 2, 2021, OWCP’s hearing representative affirmed the 

December 10, 2020 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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

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 (ICF).11 In addressing impairment for the upper extremities, the sixth edition of the 

A.M.A., Guides requires identifying the impairment class for the diagnosed condition, which is 

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

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

(January2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6a (March 2017).

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

11 A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement(6th ed. 2009).
6

then adjusted by GMFH, GMPE, and GMCS.12 Evaluators are directed to provide rationale for 

their impairment rating choices, including the choices of diagnosis from regional grids and 

calculations of modifier scores.13

Impairment due to CRPS is evaluated under the scheme found in Table 15-26 (Complex 

Regional Pain syndrome (UEI)) as well as Table 15-24 and Table 15-25 and the accompanying 

relevant text.14 The grade modifier level (ranging from zero to four) are described from the 

categories of functional history, clinical studies, and physical examination. The grade modifier 

levels are averaged to arrive at the appropriate overall grade modifier level and to identify a class 

rating value. If that class number is not supported by the objective diagnostic criteria point, the 

highest class specified by those points is selected. The rating for CRPS is a “stand alone”

approach.15

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).”

16

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 17 

For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.18 Where OWCP has referred the case to an impartial medical examiner(IME) to resolve 

a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned 

and based upon a proper factual background, must be given special weight. 19

ANALYSIS

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

12 A.M.A., Guides 385-419;see M.P.,Docket No. 13-2087 (issued April8, 2014).

13 D.S., Docket No. 19-0292 (issued June 21, 2019); R.V.,Docket No. 10-1827 (issued April1, 2011).

14 A.M.A., Guides 450-54.

15 Id.

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

17 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18 C.H., Docket No. 18-1065 (issued November 29, 2018.

19 W.M., Docket No. 18-0957 (issued October 15, 2018).
7

OWCP properly found a conflict in the medical opinion evidence between appellant’s 

attending physician, Dr. Ellis and the DMA, Dr. White, regarding the extent of permanent 

impairment of the left upper extremity due to his accepted left shoulder injury. It referred 

appellant’s case to Dr. Dedhia pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination 

in order to resolve the conflict in medical opinion. In his March 10, 2020 report, the IME,

Dr. Dedhia, reviewed appellant’s history of injury and the relevant medical evidence, and provided

physical examination findings. He noted appellant’s accepted conditions of left shoulder, 

including rotator cuff tear and left arm CRPS. In evaluating appellant’s permanent impairment 

due to CRPS, using the DBI method at Table 15-25 of the sixth edition of the A.M.A., Guides,

Dr. Dedhia assigned a point score of 4 due to his examination findings. He determined that, under 

Table 15-26, the CDX for appellant’s CRPS resulted in a class 1 impairment. Dr. Dedhia 

considered adjustments for GMFH and GMPE which resulted in a grade E impairment with a 

default value of 13 percent permanent impairment. He noted that an adjustment for GMCS was 

not applicable as clinical studies had not been provided to him.

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done. 20 Once 

it undertakes development of the record, it must do a complete job in procuring medical evidence 

that will resolve the relevant issues in the case.21

In a situation where OWCP secures an opinion from an IME for the purpose of resolving 

a conflict in the medical evidence and the opinion from such IME requires clarification or 

elaboration, it has the responsibility to secure a supplemental report from the examiner for the 

purpose of correcting the defect in the original opinion.22

The Board finds that while Dr. Dedhia attempted to rate appellant’s permanent impairment 

of the left shoulder for CRPS, he clearly noted that appellant’s entire medical record, including all 

diagnostic studies, was not provided for his review. He therefore did not apply the GMCS in the 

net adjustment formula. OWCP should have referred the entire medical record including all 

diagnostic reports and/or studies to Dr. Dedhia, once he noted this discrepancy.23 On remand it

shall refer appellant’s entire medical record to Dr. Dedhia and request that he provide a 

supplemental opinion regarding appellant’s permanent impairment of the left shoulder based upon 

his CRPS diagnosis.

The Board also notes that Dr. Dedhia also used the ROM method under Table 15-34 to rate 

permanent impairment of appellant’s left shoulder. Dr. Dedhia found 3 percent impairment for 

flexion, 6 percent impairment for abduction, 2 percent impairment for external rotation, 1 percent 

20 See L.B., Docket No. 19-0432 (issued July 23, 2019); WilliamJ. Cantrell, 34 ECAB 1223 (1983).

21 Id.;see also S.A., Docket No. 18-1024 (issued March 12, 2020).

22 J.C., Docket No. 20-0064 (issued September 4, 2020); S.R., Docket No. 17-1118 (issued April5, 2018);Nancy 

Lackner (JackD. Lackner), 40 ECAB 232, 238 (1988).

23 Id.
8

impairment each for extension and adduction, and 4 percent impairment for internal rotation, 

totaling 17 percent permanent impairment of the left upper extremity. However, he did not record 

or otherwise report that he had taken three independent ROM measurements of appellant’s left 

shoulder.24 On remand, OWCP should also request that Dr. Dedhia explain whether three ROM 

measurements were taken to evaluate appellant’s left shoulder loss of ROM. Following this and 

other such further development, as deemed necessary, it 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. 

ORDER

IT IS HEREBY ORDERED THAT the June 2, 2021 decision of the Office of Workers’

Compensation Programs is set aside. The case is remanded to OWCP for further proceedings 

consistent with this decision of the Board.

Issued: March 2, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

24 The Board also notes that the record does not substantiate that Dr.Dedhia was advised by OWCP that three 

independent measurements were necessary.