United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.J., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Bedford Park, IL, Employer

__________________________________________

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Docket No. 20-1565

Issued: January 24, 2023

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

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On August 25, 2020 appellant filed a timely appeal from an April 21, 2020 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.

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 8 

percent permanent impairment of his left upper extremity and 31 percent permanent impairment 

of the left lower extremity for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as presented 

in the prior decisions are incorporated herein by reference. The relevant facts are as follows.

On December 18, 1990 appellant, then a 32-year-old tool and parts clerk, injured his left 

shoulder left hip and lower back when he was pinned between a cabinet and a desk while in the 

performance of duty. OWCP assigned File No. xxxxxx090 and accepted his claim for lumbar 

strain and left shoulder contusion on February 7, 1991. It later expanded acceptance of the claim

to include left shoulder capsulitis and permanent aggravation of degenerative disc disease at L4-5. 

By decision dated May 18, 1994, OWCP granted appellant a schedule award for eight percent 

permanent impairment of his left upper extremity. On January 22, 1998 OWCP granted appellant 

a schedule award for 29 percent permanent impairment of his left lower extremity. Appellant was 

released to return to light-duty work on May 21, 2002.3

On February 6, 2003 appellant filed a traumatic injury claim (Form CA-1) alleging that on 

February 4, 2003 he sustained additional injuries to his back and left shoulder when his chair broke 

while he was sitting in it in the performance of duty. OWCP assigned File No. xxxxxx830 and 

accepted that claim for left shoulder contusion and lumbar strain on March 5, 2003. Appellant

stopped work on February 4, 2003. OWCP administratively combined OWCP File Nos 

xxxxxx090 and xxxxxx830, with the latter serving as the master file. 

On November 26, 2012 appellant retired from the employing establishment through a 2013 

special incentive offer. He elected to receive benefits from the Office of Personnel Management 

effective June 2, 2014 in lieu of wage-loss compensation benefits under FECA.

Appellant filed a claim for compensation (Form CA-7) for an increased schedule award on 

June 27, 2014.

In a report dated August 14, 2014, Dr. Charlotte H. Mitchell, an internist, noted appellant’s 

multiple work injuries. She diagnosed chronic low back pain due to spinal stenosis with left side 

radiculopathy, severe claudication of the left leg and left shoulder pain due to posterior scapula. 

Dr. Mitchell found that appellant had reached maximum medical improvement (MMI). She 

provided a whole person impairment of 33 percent permanent impairment. Dr. Mitchell reported 

that appellant’s left shoulder traumatic degenerative joint disease was 9 percent permanent 

impairment and that his multidirectional left shoulder was 13 percent permanent impairment.

On September 18, 2014 OWCP referred this report to its district medical adviser (DMA),

Dr. David H. Garelick, a Board-certified orthopedic surgeon. In his September 22, 2014 report, 

2 Docket No. 17-1403 (issued April6, 2018); Docket No. 03-2140 (issued March 25, 2004).

3 The employing establishment offered appellant a job which OWCP found suitable on August 29, 2002. In a 

November 29, 2002 decision, OWCP terminated appellant’s wage-loss compensation and schedule award benefits 

finding he refused suitable work under 5 U.S.C. § 8106(c)(2). By decision dated July 2, 2003, it denied modification 

of its prior decision. Appellant appealed that decision to the Board. By decision dated March25, 2004, the Board 

reversed, finding that OWCP did not meet its burden of proof to terminate appellant’s compensation benefits effective 

November 25, 2002. Docket No. 03-2140 (issued March 25, 2004). Following the Board’s decision OWCP restored

appellant’s wage-loss compensation benefits.
3

the DMA found thatDr. Mitchell had not established additional permanent impairment beyond the 

8 percent permanent impairment in the left upper extremity and 29 percent permanent impairment 

in the left lower extremity for which he had previously received a schedule award.

By decision dated October 7, 2014, OWCP denied appellant’s claim for an increased 

schedule award. On October 31, 2014 appellant requested an oral hearing before a representative 

of OWCP’s Branch of Hearings and Review.

On January 13, 2015 Dr. David Fardon, a Board-certified orthopedic surgeon, evaluated 

appellant for schedule award purposes. He evaluated appellant’s permanent impairment under the 

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

Impairment.4 Specifically, Dr. Fardon provided appellant’s impairment to his lumbar spine due to 

intervertebral disc herniations at multiple levels with radiculopathy. He concluded that appellant 

had 19 percent permanent impairment of the whole person as a result of his low back disorder.

In a report dated April 16, 2015, Dr. Neil Allen, a Board-certified neurologist, examined 

appellant for schedule award purposes. In applying the A.M.A., Guides, he determined that 

appellant had 24 percent impairment of the left lower extremity. In regard to appellant’s left 

shoulder, Dr. Allen determined that appellant had five percent permanent impairment of his left 

upper extremity.

An oral hearing was held on June 18, 2015. OWCP subsequently received a report from

Dr. Mitchell dated June 26, 2015. Dr. Mitchell diagnosed chronic low back pain due to spinal 

stenosis with radiculopathy and chronic paraspinal spasm, bilateral lumbosacral facet arthropathy, 

left-sided sciatica, as well as chronic left shoulder pain due to rotator cuff tendinopathy and 

pericapsulitis with resultant muscular atrophy and post-traumatic degenerative joint disability. She

evaluated appellant’s left shoulder condition based on range of motion (ROM)5 and reported 90 

degree of flexion which is 3 percent permanent impairment; 30 degrees of extension which she 

found was 2 percent permanent impairment;6 75 degrees of abduction which is 6 percent 

permanent impairment; and 50 degrees of adduction which 10 percent permanent impairment.7 

Dr. Mitchell totaled his left upper extremity loss of ROM and found 25 percent permanent 

impairment under the A.M.A., Guides. She further found that appellant had 31 percent impairment 

of his lumbar spine. Dr. Mitchell opined that he had reached MMI in August 2014.

By decision dated August 11, 2015, OWCP’s hearing representative affirmed the 

October 7, 2014 decision.

On October 19, 2015 appellant requested reconsideration of the August 11, 2015 decision 

and submitted additional medical evidence. Dr. Joseph R. Mejia, a specialist in occupational 

medicine and ophthalmology, completed a report on October 1, 2015 and performed an evaluation 

for schedule award purposes. He reported decreased motor strength on the left, and constant thigh 

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

5

Id. at 475, Table 15-34.

6 The A.M.A., Guidesliststhis as one percent permanent impairment. Id.

7

Id.
4

to knee left leg paresthesia to light touch. Dr. Mejia determined that appellant had 12 percent 

permanent impairment of his left lower extremity. 

In a report dated October 27, 2015, Dr. Mejia addressed the percentage of permanent 

impairment of appellant’s left upper extremity. He determined that appellant reached maximum 

medical improvement on August 14, 2014. Dr. Mejia found that appellant’s left upper extremity 

had pain restricted rotator cuff motion, with 90 degrees of flexion, 75 degrees of abduction, 90 

degrees of internal rotation, and 45 degrees of abduction. He also reported tenderness at the 

acromioclavicular joint and upper trapezius muscle in the left shoulder. Dr. Mejia applied the 

diagnosis-based estimates (DBE) and determined that appellant had four percent permanent 

impairment of his left upper extremity due to acromioclavicular joint injury. 8

In a decision dated January 7, 2016, OWCP denied modification of the August 11, 2015 

decision, finding that appellant had not submitted medical evidence which showed more than 29 

percent permanent impairment of the left lower extremity and 8 percent permanent impairment of 

the left upper extremity for which he had previously received schedule award compensation.

Dr. Kern Sinh, a Board-certified orthopedic surgeon, examined appellant on April 27, 2016 

for schedule award purposes. He reviewed appellant’s history of injury and diagnosed lumbar 

muscular strain and L4 through S1 degenerative disc disease.9

On November 15, 2016 appellant requested reconsideration of the January 7, 2016 decision 

and submitted additional medical evidence. Dr. Thomas Pontinen, a physician Board-certified in 

pain management, examined appellant for schedule award purposes on July 26, 2016. He 

described appellant’s history of injury and noted that appellant’s back pain radiated to his left 

lower extremity in the L4-S1 distribution to the foot. Dr. Pontinen also found that appellant’s back 

pain radiated in the left upper arm to the forearm and hand with no associated neurological deficit. 

He found 42 percent permanent impairment in the left lower extremity due to moderate motor and 

sensory deficits in L4, L5, and S1 with impairments of 16 percent permanent impairment for L4, 

16 percent permanent impairment for L5, and 10 percent permanent impairment for L1. In regard 

to appellant’s left upper extremity, Dr. Pontinen attributed appellant’s permanent impairment to 

moderate deficits in the C6 and C7 dermatomes and reached 15 percent permanent impairment.

On December 11, 2016 OWCP’s DMA reviewed Dr. Pontinen’s July 26, 2016 report. He 

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

DBE in accordance with Dr. Allen’s rating. The DMA further noted that the major finding in 

appellant’s left shoulder was loss of shoulder motion, and utilized the diagnosis of tendinitis as the 

most impairing condition in the left shoulder region. He noted that Dr. Pontinen’s impairment 

rating of the left upper extremity was based on cervical spine nerve conditions, which were not 

accepted in appellant’s claim and therefore could not be considered for schedule award purposes. 

8 A.M.A., Guides 403, Table 15-5.

9 On May 9, 2016 appellant appealed the January 7, 2016 OWCP decision. In a letter dated September 22, 2016, 

he requested that the Clerk of the Appellate Boards dismiss his appeal. In an Order Dismissing Appeal, issued 

December 1, 2016,the Board granted appellant’s request for the dismissal of his appeal. Docket No. 16-1210 (issued 

December 1, 2016).
5

The DMA applied The Guides Newsletter, Rating Spinal Nerve Extremity Impairment 

Using the Sixth Edition (July /August 2009) (The Guides Newsletter) to Dr. Pontinen’s findings 

as Dr. Pontinen failed to provide discussion of the tables, figures, and chapters from the A.M.A., 

Guides used. He noted that appellant’s lower extremity impairment was based on combining the 

motor and sensory defects in L4, L5, and S1, not merely adding these impairments.10 For sensory 

deficits of the left L4 nerve root, the DMA determined that appellant had decreased light touch 

and sharp/dull sensitivities or a moderate impairment.11 He applied The Guides Newsletterto this 

finding resulting in a Class 1, Grade C or three percent permanent impairment of the left lower 

extremity. The DMA then determined appellant’s motor deficit of the left L4 nerve root based on 

a decreased strength of grade 3/5 or moderate strength loss of two percent permanent impairment.12 

Applying The Guides Newsletter to this finding resulted in Class 1, Grade C or 13 percent 

permanent impairment of the left lower extremity. The DMA then completed the net adjustment 

formula noting that appellant’s function history grade modifier was 1 and that his clinical studies 

grade modifier was 0 as there were no findings of left-sided L4 involvement on electromyogram

resulting in a net adjustment of -1 or Grade B, 11 percent permanent impairment. Appellant’s total 

L4 impairment based on the Combined Values Chart for his sensory impairment of 3 and his motor 

impairment of 11 was 14 percent permanent impairment.

In regard to appellant’s L5 nerve root impairments to the left lower extremity, the DMA

repeated a similar process and sensory impairment of three percent permanent impairment. In 

regard to appellant’s L5 nerve root motor impairment, he found clinical studies supporting 

evidence of lumbar radiculopathy. The DMA found that the net adjustment was 0 and that 

appellant’s motor final grade was C or 13 percent impairment. He combined the motor and sensory 

deficits to reach 16 percent permanent impairment due to the L5 nerve root.

In regard to appellant’s S1 nerve root impairment,13 the DMA found a moderate motor 

deficit with a Grade C value of eight percent permanent impairment, and net adjustment of 0 

resulting in eight percent permanent impairment due to loss of strength. He found moderate 

sensory deficit of the S1 nerve root was 2 percent permanent impairment and combined this with 

appellant’s motor strength loss of 8 percent permanent impairment to reach 16 percent permanent 

impairment.14 In combining appellant’s three nerve root impairments, the DMA utilized the values 

of 16 percent permanent impairment for the L5 nerve root, 11 percent permanent impairment for 

the L4 nerve root, and 8 percent permanent impairment for the S1 nerve root15 to reach 31 percent 

permanent impairment of the left lower extremity.

10 A.M.A., Guides 604.

11 Id. at 533, Table 16-11.

12 Id.

13 OWCP’s medical adviser’s report again mentions the left L4 nerve root, but the impairment ratings provided 

correspond to those for the S1 nerve root.

14 The Combined Values Chart combines 8 and 2 to reach 10 percent permanent impairment.

15 The Board notes that these percentages do not correlate with the impairment ratings he reached of 16 percent 

permanent impairment of the L5 nerve root, 14 percent permanent impairment of the L4 nerve root, and 10 percent 

permanent impairment of the S1 nerve root.
6

By decision dated January 9, 2017, OWCP found that the January 7, 2016 decision should 

be modified as appellant had established an additional 2 percent permanent impairment of the left 

lower extremity. However, it further found that he had not established increased impairment of 

his left upper extremity warranting an additional schedule award.

In a decision dated January 19, 2017, OWCP granted appellant a schedule award for an 

additional two percent permanent impairment of his left lower extremity, for a total impairment 

rating of 31 percent.

On February 10, 2017 appellant requested reconsideration of the January 19, 2017 

decision. He provided an additional note from Dr. Pontinen dated January 24, 2017. Dr. Pontinen 

addressed appellant’s left upper extremity and found mild subacromial crepitus, positive Neers’

test indicating shoulder impingement, positive Hawkins’ test, and two centimeters of atrophy in 

the left arm circumference relative to the right arm. He listed appellant’s left shoulder range of 

motion as 80 degrees of flexion, 20 degrees of extension, 35 degrees of abduction, 50 degrees of 

adduction, 55 degrees of internal rotation, and 105 degrees of external rotation. Dr. Pontinen 

further found that appellant had moderate sensory deficits in the C6-7 dermatomes. He found that 

appellant’s left shoulder QuickDASH score was 82 as he reported pain with normal activity and 

could perform self-care activities with modifications, and noted this was Grade Modifier 2 for 

functional history.16 Dr. Pontinen noted that appellant’s DBE was tendinitis17 with a Grade C 

impairment of one percent permanent impairment. He further noted that appellant’s physical 

examination grade modifier would be two considering appellant’s loss of range of motion. 

Dr. Pontinen reported that appellant had moderate deficits in sensory and mild motor deficits in 

both the C6 and C7 dermatomes. He concluded that appellant’s total left upper extremity 

impairment was 15 percent permanent impairment. Dr. Pontinen opined that appellant’s left upper 

extremity motor and sensory deficits should be considered when evaluating his left upper extremity 

for schedule award purposes.

The DMA resubmitted his December 11, 2016 report on April 11, 2017 without reviewing

Dr. Pontinen’s January 24, 2017 report with the additional correlation of upper extremity findings 

to the A.M.A., Guides.

By decision dated May 4, 2017, OWCP denied modification of its prior decisions, finding 

that the medical evidence did not establish greater than 31 percent permanent impairment of the 

left lower extremity and 8 percent permanent impairment of the left upper extremity for which he 

has previously received schedule award compensation. 

Appellant appealed to the Board. By decision dated April 6, 2018, the Board remanded 

the case for further development of the medical evidence regarding permanent impairment of 

appellant’s upper and lower extremities.18 Specifically, the Board requested that OWCPdetermine 

whether the diagnosis-based impairment (DBI) method or ROM method was more appropriate for 

appellant’s upper extremity impairment and whether the diagnosed condition of cervical 

16 A.M.A., Guides 406, Table 15-7.

17 Id. at 402, Table 15-5.

18 Docket No. 17-1403 (issued April6, 2018).
7

radiculopathy preexisted his accepted employment injuries such that any impairment due to this 

condition should be included for schedule award purposes. In regard to appellant’s left lower 

extremity impairment rating, the Board remanded for a supplemental report from the DMA 

correctly detailing the impairments reached and the combined values in accordance with the 

Combined Values Chart of the A.M.A., Guides.

On January 17, 2020 OWCP referred appellant’s schedule award claim to Dr. Morley 

Slutsky, Board-certified in occupational medicine, and DMA, to address whether appellant had 

greater than 8 percent permanent impairment of his left upper extremity,19 noting that Dr. Mitchell 

had found 25 percent impairment based on loss of ROM. It further noted that Dr. Pontinen’s 

January 24, 2017 report attributed a portion of appellant’s left upper extremity impairment to 

cervical radiculopathy and requested that the DMA discuss whether cervical radiculopathy was a 

preexisting condition predating appellant’s accepted employment injuries. 

In his February 5, 2020 report, the DMA found that Dr. Mitchell’s reports did not provide 

sufficient findings to establish permanent impairment. He noted that the August 14, 2014 report 

did not provide clinical testing or impairment calculations. The DMA reviewed Dr. Mitchell’s 

June 26, 2015 report and found that she had not provided three valid shoulder ROM measurements

as required by the A.M.A., Guides and that she had provided no other shoulder findings. He 

concluded that Dr. Mitchell’s reports were of no value in determining appellant’s upper extremity 

impairment in accordance with the sixth edition of the A.M.A., Guides. The DMA concluded that 

based on the medical evidence of record, the DBI method was more appropriate for the condition 

of tendinitis with residual dysfunction or three percent permanent impairment.

The DMA reviewed the medical records and found no evidence that appellant 

demonstrated cervical spine lesions or cervical nerve root deficits prior to October 27, 2015, or 

after his accepted employment injuries. He further found that Dr. Pontinen failed to provide a 

diagnostic study supporting his findings. However, the DMA provided an impairment rating based 

on five percent of the left upper extremity due to left C6-7 nerve root deficits based on

Dr. Pontinen’s reports. He found that including C6-7 nerve root deficits, appellant was entitled to 

an increased schedule award for his left upper extremity totaling13 percent permanent impairment.

By decision dated April 21, 2020, OWCP denied appellant’s claim for an additional 

schedule award, finding that he was previously paid a schedule award for 8 percent permanent 

impairment of the left upper extremity and 29 percent impairment of the left lower extremity, and 

that the medical evidence did not support an increase in his permanent impairment.

LEGAL PRECEDENT

The schedule award provisions of FECA,20 and its implementing federal regulations,21 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, 

19 The accompanying statement of accepted facts notes both that appellant’s claim was accepted for left shoulder 

conditions and that he received a schedule award for eight percent of the right upper extremity.

20 5 U.S.C. § 8107.

21 20 C.F.R. § 10.404.
8

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 2009.22 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.

23

 

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

percentage of permanent impairment. In addressingupper extremity impairments, the sixth edition 

requires identifying the impairment class of diagnosis (CDX), which is then adjusted by a grade 

modifier for functional history (GMFH), a grade modifier for physical examination (GMPE), and

a grade modifier for clinical studies (GMCS). The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).24

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.,] 

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.)25

The Bulletin further provides:

“If the medical evidence of record is [in]sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

22 For decisions issued after May 1, 2009 the sixth edition of theA.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 Part 3 -- Medical, Schedule Awards,Chapter 3.700, Exhibit 1 

(January2010).

23 F.S., Docket No. 18-0383 (issued August 22, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

24 A.M.A., Guides 411. F.S., id.

25 FECA Bulletin No. 17-06 (issued May8, 2017);see also W.H., Docket No. 19-0102 (issued June21, 2019).
9

impairment rating using the DBI method, if possible, given the available 

evidence.26

“Upon receipt of such a report, and if the impairment evaluation was provided from 

the claimant’s physician, the CE should write to the claimant advising of the 

medical evidence necessary to complete the impairment assessment and provide 30 

days for submission. Any evidence received in response should then be routed back 

to the DMA for a final determination. Should no evidence be received within 30 

days of the date of the CE’s letter, the CE should proceed with a referral for a second 

opinion medical evaluation to obtain the medical evidence necessary to complete 

the rating. After receipt of the second opinion physician’s evaluation, the CE 

should route that report to the DMA for a final determination.”

27

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

the permanent loss of use of the back/spine or the body as a whole. 28 Furthermore, the back is 

specifically excluded from the definition of an organ under FECA.29 However, a schedule award 

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

extremities.30 The sixth edition of the A.M.A., Guides, however, does not provide a separate 

mechanism for rating spinal nerve injuries as extremity impairment. Recognizing that FECA, 

allows ratings for extremities and preclude ratings for the spine, The Guides Newsletter offers an 

approach to rating spinal nerve impairments consistent with sixth edition methodology. 31 For 

peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries, 

OWCP procedures provide that The Guides Newsletter, Rating Spinal Nerve Extremity 

Impairment Using the Sixth Edition (July/August 2009) is to be applied as provided in section 

3.700 of its procedures.32 

ANALYSIS

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

With regard to the left upper extremity, in her June 26, 2015 report, Dr. Mitchell provided 

one set of passive ROM measurements for the left shoulder. OWCP referred Dr. Mitchell’s report 

26 Id., J.L., Docket No. 19-1684 (issued November 20, 2020); R.L.,Docket No. 19-1793 (issued August 7, 2020);

E.P., Docket No. 19-1708 (issued April15, 2020).

27 Id.

28 5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); C.T., Docket No. 20-0043 (issued April30, 2021); ErnestP. 

Govednick, 27 ECAB 77 (1975).

29 See id. at § 8101(19); C.T., id.; Francesco C. Veneziani, 48 ECAB 572 (1997).

30 A.D., Docket No. 20-0553 (issued April19, 2021); RozellaL. Skinner, 37 ECAB 398 (1986).

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

2.808.5(c)(3) (March 2017).

32 FECA Transmittal No. 10-0004 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 --Medical, 

Schedule Awards, Chapter 3.700, at Exhibit 4 (January 2010).
10

to Dr. Slutsky, its DMA, who opined that appellant had three percent left upper extremity 

impairment for tendinitis with residual dysfunction under the DBI methology. The DMA, who 

reviewed Dr. Mitchell’s report, did not conduct any evaluation under the ROM method. Rather, 

he simply advised that Dr. Mitchell’s report did not contain complete ROM measurements for the 

left shoulder. Section 15.7 of the sixth edition of the A.M.A., Guides provides that ROM should 

be measured after a warmup, in which the individual moves the joint through its maximum ROM 

at least three times. The ROM examination is then performed by recording the active 

measurements from three separate ROM efforts and all measurements should fall within 10 

degrees of the mean of these three measurements. The maximum observed measurement is used 

to determine the ROM impairment.33 There currently is no evidence in the case record that these 

requirements for evaluating permanent impairment due to ROM deficits have been met.

In order to conduct a full evaluation of appellant s right upper extremity permanent 

impairment, the Board finds that the case shall be remanded to OWCP in order for it to obtain the 

raw data from Dr. Mitchell’s ROM testing for the left upper extremity. Once the data is obtained, 

it should be evaluated and considered under the relevant standards of the A.M.A., Guides, 

including referral to a DMA, as a possible basis for an impairment rating. If no such data is 

available, OWCP shall take appropriate action for further examination to obtain the necessary 

ROM measurements.

This case shall therefore be remanded for full application of OWCP s procedures found in 

FECA Bulletin No. 17-06 and the standards of the sixth edition of the A.M.A., Guides. After 

conducting this and other such further development of the medical evidence as deemed necessary, 

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

With regard to the left lower extremity, in its April 6, 2018 decision, the Board remanded 

the case for a supplemental report from the DMA correctly detailing the left lower extremity 

impairment ratings and combined values in accordance with the Combined Values Chart of the 

A.M.A., Guides. OWCP, however, did not follow the Board’s prior instructions in developing his 

claim with regard to his left lower extremity.

The Board has final authority to determine questions of fact and law. The Board’s 

determinations are binding upon OWCP and must, of necessity be accepted and acted upon by the 

Director of OWCP.34 A decision of the Board is final upon the expiration of 30 days following 

the date of its order and, in the absence of new review by the Director, the subject matter is 

res judicata, and is not subject to further consideration by the Board.35

33 A.M.A., Guides 464; see also C.H.Docket No. 20-0529 (issued June16, 2021); P.H., Docket No. 18-0987 (issued 

March 30, 2020).

34 A.H., Docket No. 19-1336 (issued April16, 2020); K.B.,Docket No. 17-0969 (issued March 13, 2018);see Paul 

Raymond Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84 (1949). See also Frank W. White, 42 

ECAB 693 (1991) (the Board’s order in a prior appeal imposed an obligation on the Director to take particular actions 

as directed); L.C.,Docket No. 09-1816 (issued March 17, 2010) (OWCP did not follow the Board’s instructions);

T.S., Docket No. 13-2135 (issued April3, 2014).

35 See A.H., id.; 20 C.F.R. § 501.6(d); ClintonE. Anthony, Jr., 49 ECAB 476, 479 (1998).
11

OWCP has not issued a decision in which it followed the instructions of the Board in its 

April 6, 2018 decision, i.e., it has not issued an appropriate merit decision correctly detailing the 

left lower extremity impairment ratings and combined values in accordance with the Combined 

Values Chart of the A.M.A., Guides. The case is, therefore, again remanded for OWCP to 

correctly detail the left lower extremity impairment ratings and combined values in accordance 

with the Combined Values Chart of the A.M.A., Guides.

36

 Following this and other such further 

development as deemed necessary, OWCP issue a de novo merit decision regarding appellant’s 

left lower extremity permanent impairment.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the April 21, 2020 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: January 24, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

36 See J.V., Docket No. 21-0226 (issued February 16, 2022).