United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburg, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-82
Issued: May 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 16, 2006 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated September 28 and October 3, 2006
finding that he had no more than nine percent permanent impairment of his right lower
extremity. Pursuant to 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 more than nine percent impairment of his right lower
extremity for which he received a schedule award.
FACTUAL HISTORY
On June 6, 2002 appellant, then a 39-year-old letter carrier, filed a traumatic injury claim
alleging that he strained his right knee in the performance of duty on June 4, 2002. When he
went to pick up a dropped letter his right knee locked up. The Office accepted appellant’s claim
for right knee sprain and medial meniscus tear on August 26, 2002. Appellant underwent a

limited synovectomy of the right knee with an arthroscopic partial medial meniscectomy and
abrasion chrondroplasty in the lateral portion of the medial femoral condyle on
September 24, 2002. The Office authorized this surgery on November 20, 2002.
In a letter dated January 21, 2004, the Office authorized appellant’s attending physician,
Dr. Patrick J. DeMeo, a Board-certified orthopedic surgeon, to perform an additional right knee
arthroscopy. On February 13, 2004 Dr. DeMeo performed an arthroscopic lateral retinacular
release. Appellant returned to work on March 29, 2004.
The Office referred appellant for a second opinion evaluation with Dr. Stephen Bailey, a
Board-certified orthopedic surgeon, on December 16, 2004. In a report dated January 19, 2005,
Dr. Bailey found that appellant demonstrated no weakness, atrophy and no loss of range of
motion in his right lower extremity.
On March 16, 2005 Dr. DeMeo stated that appellant had reached maximum medical
improvement and would continue to experience weakness in his right leg. Appellant requested a
schedule award on April 24, 2005. In a letter dated July 6, 2005, the Office requested that
Dr. DeMeo rate appellant’s permanent impairment for schedule award purposes. Dr. DeMeo
responded on September 27, 2005 and found that appellant had right lower extremity impairment
of 31 percent due to weakness, atrophy and pain. He stated that appellant also had 31 percent
deficit of the quadriceps as demonstrated through biodex evaluation on March 4, 2005.
Dr. DeMeo noted that appellant’s right quadriceps measured 20.5 inches and his left quadriceps
measured 21.25 inches.
The Office referred the medical evidence to an Office medical adviser on
November 9, 2005. In a report dated February 2, 2006, the Office medical adviser reviewed
Dr. DeMeo’s report and concluded that 0.75 inches of atrophy was equivalent to 1.8 centimeters
or 8 percent impairment of the right lower extremity in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1 The Office
medical adviser further noted that Dr. DeMeo based his assessment of 31 percent impairment of
the lower extremity on biodex measurements, which were not considered under the A.M.A.,
Guides. He concluded that this did not constitute an appropriate impairment rating and that
appellant had reached maximum medical improvement on September 27, 2005 with no more
than eight percent permanent impairment of the right lower extremity.
By decision dated March 15, 2006, the Office granted appellant a schedule award for
eight percent permanent impairment of his right lower extremity.
Appellant requested reconsideration on September 21, 2006 and submitted a report dated
June 14, 2006 from Dr. Michael J. Platto, a physician Board-certified in physical medicine and
rehabilitation, who noted appellant’s history of injury and medical treatment including surgeries
on September 24, 2002 and February 13, 2004. Dr. Platto performed a physical examination and
reviewed appellant’s April 13, 2006 x-rays. He noted that the x-ray report showed minimal
narrowing of the right medial joint compartment with a cartilage height of three
millimeters (mm). Dr. Platto noted that on September 24, 2002 appellant underwent an
1

A.M.A., Guides, (5th ed. 2000), pg. 530, Table 17-6.

2

arthroscopic partial medial meniscus repair. He concluded that under the A.M.A., Guides it was
most appropriate to evaluate appellant’s impairment based on his arthritis impairment. Based on
x-rays of three mm cartilage interval for the right knee, appellant had seven percent impairment
of the right lower extremity.2 Dr. Platto discounted an impairment rating for atrophy, muscle
weakness or gait abnormality as he did not find any such impairments on examination. He also
noted that appellant had two percent impairment due to the partial meniscectomy.3 Dr. Platto
combined these impairment ratings to find a total nine percent impairment of the right knee in
accordance with the A.M.A., Guides.4
The Office medical adviser reviewed Dr. Platto’s report on September 24, 2006 and
agreed with Dr. Platto’s impairment rating. The Office medical adviser noted that impairments
for muscle atrophy could not be combined with those based on arthritis and diagnosis-based
estimates.5 He recommended an impairment rating of nine percent for schedule award purposes.
By decision dated September 28, 2006, the Office vacated the March 15, 2006 schedule
award determination and found that appellant had total impairment rating of nine percent of the
right lower extremity. The Office issued a schedule award on October 3, 2006 for a total of nine
percent impairment of appellant’s right lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulation7 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, the Act 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. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses. Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.8

2

Id. at 544, Table 17-31.

3

Id. at 546, Table 17-33.

4

Id. at 604, Combined Values Chart.

5

Id. at Guides, 526, Table 17-2.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a (August 2002).

3

Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from appellant’s physician. In obtaining medical evidence required for a schedule
award, the evaluation made by the attending physician must include a description of the
impairment including, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.9 It is the
responsibility of the evaluating physician to explain in writing why a particular method to assign
the impairment rating was chosen.10
ANALYSIS
Appellant’s attending physician, Dr. DeMeo, a Board-certified orthopedic surgeon,
provided a report on September 27, 2005. He concluded that appellant had 31 percent
impairment of his right lower extremity due to weakness, atrophy and pain. However,
Dr. DeMeo did not provide detailed findings supporting his impairment rating and did not
correlate his findings with the A.M.A., Guides. As his report did not comport with the
appropriate standards for evaluating permanent impairment under the Act, it is not sufficient to
establish the 31 percent impairment of the right lower extremity as rated by the physician.
Dr. DeMeo combined impairment for muscle weakness, pain and atrophy which is precluded by
the cross-usage chart at Table 17.2. Therefore, his impairment rating is of diminished probative
value.
The Office medical adviser reviewed Dr. DeMeo’s report and found, based on the
medical evidence of record, that under the A.M.A., Guides appellant had no more than eight
percent impairment of his right lower extremity based on muscle atrophy. He further noted that
Dr. DeMeo failed to support a greater impairment rating.
Following the March 15, 2006 decision granting him a schedule award based on eight
percent impairment of his right lower extremity, appellant submitted a medical report from
Dr. Platto, a physician Board-certified in physical medicine and rehabilitation. Dr. Platto found
that x-rays demonstrated a reduced cartilage interval of three mm in appellant’s right knee,
resulting in seven percent impairment of the right lower extremity in accordance with the
A.M.A., Guides.11 He also noted that appellant underwent a partial medial meniscectomy on
September 24, 2002, resulting in two percent impairment of the right lower extremity under the
A.M.A., Guides.12 Dr. Platto combined these impairment ratings to find a total impairment of

9

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

10

Tara L. Hein, 56 ECAB ___ (Docket No. 05-91, issued April 4, 2005).

11

See supra note 2.

12

See supra note 3

4

the right lower extremity of nine percent.13 The Office medical adviser concurred with this
impairment rating.
The A.M.A., Guides permit impairment ratings for arthritis and diagnosis-based estimates
to be combined together. However, neither of these impairments may be combined with an
impairment rating for muscle atrophy.14 There is no rationalized medical opinion evidence
correlated with the A.M.A., Guides which supports that appellant has more than nine percent
impairment of his right lower extremity for which he received a schedule award.
CONCLUSION
The Board finds that appellant has no more than nine percent impairment of his right
lower extremity for which he has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 3 and September 28, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 4, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

13

See supra note 4.

14

See supra note 5.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Suitland, MD, Employer
__________________________________________

)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 10-419
Issued: December 2, 2010

Oral Argument October 12, 2010

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2009 appellant filed a timely appeal from a May 7, 2009 decision of
the Office of Workers’ Compensation Programs that denied her request for reconsideration, as it
was untimely filed and did not establish clear evidence of error. As there is no merit decision
within one year of the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the May 7, 2009 decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128 on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.

1

20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board.2 In a decision dated April 20, 1998, the
Board set aside a September 11, 1995 Office decision with respect to appellant’s pay rate for
compensation purposes.3 By decision dated May 6, 1998, the Board determined that
overpayment in compensation was not in posture for decision until the issue of her pay rate had
been resolved.4 In a decision dated February 20, 2001, the Board found that the Office properly
determined that appellant’s pay rate for compensation purposes was as of the date of injury,
March 20, 1985. The Board further found that she was not entitled to waiver of an overpayment
in compensation in the amount of $1,206.22 and that the Office properly denied her request for
merit review. On July 31, 2001 the Board denied appellant’s request for reconsideration.5 By
decision dated May 15, 2006, the Board noted that the Office properly refused to reopen her case
for further consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a) and that the
Office properly computed her retroactive compensation.6 The law and the facts of the previous
Board decisions and orders are incorporated herein by reference.
Appellant remained on the compensation rolls.7 On November 13, 2007 she requested a
hearing of Office decisions regarding the pay rate issue.
By decision dated January 16, 2008, the Office denied the request on the grounds that it
was untimely.
On February 23, 2009 appellant again requested reconsideration regarding retroactive
pay.
In a May 7, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds that she did not establish clear evidence of error.

2

Appellant was employed as a distribution clerk. She sustained a right shoulder injury on March 20, 1985 while
throwing mail and the claim was accepted for right shoulder strain, chronic tendinitis, acromioclavicular arthrosis,
arthritis, traumatic arthropathy and right upper extremity mononeuritis. Appellant had shoulder surgery in
December 1985 and worked intermittently until May 15, 1989. She has not worked since. On August 8, 1992 the
Office accepted that appellant sustained employment-related right carpal tunnel syndrome. Appellant had a right
carpal tunnel release on September 25, 2001.
3

Docket No. 96-460 (issued April 20, 1998).

4

Docket No. 97-776 (issued May 6, 1998).

5

Docket No. 99-2221 (issued February 20, 2001). The record also contains schedule award decisions dated
September 28, 1988 and May 14, 1996, that awarded appellant a total 20 percent impairment of her right upper
extremity. By decision dated June 18, 2003, Docket No. 02-2350, the Board found that appellant did not have more
than a 20 percent permanent impairment of her right upper extremity.
6

Docket No. 05-832 (issued May 15, 2006).

7

The Board notes that while the instant case was on appeal with the Board, appellant filed an appeal from a
January 14, 2010 Office decision that reduced her monetary compensation because she failed to cooperate with
vocational rehabilitation efforts. The appeal was docketed as number 10-1526 and will be adjudicated separately.

2

LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.8 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.9 When an application for review is untimely,
the Office undertakes a limited review to determine whether the application presents clear
evidence that the Office’s final merit decision was in error.10 Office procedures state that the
Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth under section 10.607 of Office regulations,11 if the claimant’s application for
review shows “clear evidence of error” on the part of the Office. In this regard, the Office will
limit its focus to a review of how the newly submitted evidence bears on the prior evidence of
record.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office decision.13
Office procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the Office
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.14 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of the Office.15
8

5 U.S.C. §§ 8101-8193.

9

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

10

Cresenciano Martinez, 51 ECAB 322 (2000).

11

20 C.F.R. § 10.607.

12

Alberta Dukes, 56 ECAB 247 (2005).

13

Robert G. Burns, 57 ECAB 657 (2006).

14

James R. Mirra, 56 ECAB 738 (2005).

15

Nancy Marcano, 50 ECAB 110 (1998).

3

ANALYSIS
The Board finds that more than one year elapsed from the date of issuance of the last
merit decision on the pay rate issue, the Board’s May 15, 2006 decision. Appellant’s request for
reconsideration was dated February 23, 2009. Therefore, it was untimely filed. Consequently,
appellant must establish clear evidence of error.16
The Board finds that appellant failed to establish clear evidence that the October 1, 2008
decision of the Office was in error. The issue raised by appellant and asserted at oral argument is
whether the Office properly determined her retroactive compensation for the period January 16,
1988 through February 19, 1989. In the May 15, 2006 decision, the Board found that the Office
properly computed her retroactive compensation. With her February 23, 2009 request appellant
submitted evidence previously of record that had been reviewed by both the Office and the
Board. She raised arguments also previously considered. Appellant did not submit any new
evidence or argument pertaining to whether the computation of her retroactive compensation was
in error. Therefore, the issue adjudicated in the Board’s May 15, 2006 decision is res judicata
and not subject to further consideration by the Board absent any new evidence or argument.17
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128 on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.

16

20 C.F.R. § 10.607(b).

17

See Robert Ringo, 53 ECAB 258 (2001); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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

The record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

2

The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

3

The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

3

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Z., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES VA MEDICAL CENTER,
St. Petersburg, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 20-0411
Issued: October 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 10, 2019 appellant filed a timely appeal from a June 13, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from June 13, 2019, the date of OWCP’s decision, was
December 10, 2019. Since using December 12, 2019, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is December 10, 2019, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a respiratory
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 22, 2018 appellant, then a 65-year-old staff psychologist, filed an occupational
disease claim (Form CA-2) alleging that, due to factors of her federal employment, she developed
pulmonary conditions including severe asthma, paroxysmal coughing/hemoptysis, and reactive
airways. She noted that she first became aware of her condition on June 1, 2015 and realized that
it was caused or aggravated by her federal employment on September 23, 2016. Appellant
explained that she had not filed her claim within 30 days because she was never informed of
OWCP’s filing requirements by the employing establishment.
In a July 10, 2018 development letter, OWCP informed appellant that it had received no
evidence in support of her occupational disease claim. It advised her of the type of factual and
medical evidence necessary to establish her claim and provided a questionnaire for her completion.
In a separate development letter of even date, OWCP requested that the employing establishment
provide additional information regarding appellant’s exposure to potentially harmful substances,
and comments from a knowledgeable supervisor regarding the accuracy of her statements. It
afforded both parties 30 days to respond.
In a July 20, 2016 letter, Dr. Patrick Klemawesch, Board-certified in internal medicine,
detailed his treatment of appellant related to her history of severe asthma with paroxysmal
coughing episodes leading to hemoptysis. He explained that she had to limit her use of medication
to treat her condition due to her history of glaucoma. Appellant informed Dr. Klemawesch that a
strong trigger effect of her symptoms was her work environment where she documented multiple
ceiling water leaks and discolored moldy ceiling tiles. Since she began her abbreviated work
schedule, she noted a clear correlation between her symptoms and her time in her office building.
Dr. Klemawesch explained that hypersensitivity testing indicated that appellant was moderately
sensitive to multiple indoor and outdoor molds. He opined that she must limit her exposure to her
employment building as a part of her treatment.
In a July 27, 2016 letter, appellant detailed her history of respiratory problems since
transferring to the employing establishment in 2012. She requested that the employing
establishment perform a safety check of her work environment as she believed the air quality was
having an effect on her health.
Appellant submitted a September 14, 2016 indoor air quality survey provided by Cristina
Jones, a certified industrial hygienist. Ms. Jones reviewed samples from the mental health area
where appellant worked and opined that water damage caused the amplification of biological
spores to exist. She also recommended remediation steps for the employing establishment to
undertake.

2

In a November 1, 2016 letter, appellant informed her human resources department of the
chronology of her conditions. She explained that after the environmental engineering study was
performed on her floor, three offices in the mental health clinic, including her own were closed.
In a March 28, 2017 letter, appellant informed her supervisor of her intent to retire as of
May 31, 2017 as a result of the health challenges caused by her work environment. She voluntarily
retired effective May 31, 2017.
Dr. Ali Saberi, Board-certified in internal medicine, in a May 8, 2018 narrative medical
report, reviewed appellant’s employment history from 2012 and her past medical history, including
medical evidence from Dr. Klemawesch which noted asthma and symptoms of coughing. He
diagnosed dyspnea, paroxysmal coughing episodes leading to syncope and hemoptysis, reactive
airway disease, and severe asthma exposure. Dr. Saberi opined that appellant’s conditions were
caused by the mold exposure she encountered at her employing establishment. He noted that her
eyes had also been affected beginning June 2016 and ultimately required emergency surgery.
Dr. Saberi explained that, due to the use of inhalers to treat her respiratory issues, appellant’s optic
nerve was 50 percent destroyed. He also noted that she had not experienced a trigger since her
retirement on May 31, 2017. Dr. Saberi opined that appellant’s condition arose in the course of
her employment and that her work duties contributed to, aggravated, and/or caused her conditions.
He explained that her 2006 treatment for reactive airways made her more prone to sustaining
subsequent respiratory injuries. Dr. Saberi explained that her respiratory issues were causally
related to her continued exposure to the mold in the employing establishment as working in the
area was a “documented trigger” and an air quality test revealed that the office she was working
contained water damage and mold.
In response to OWCP’s development questionnaire, appellant submitted a July 16, 2018
statement in which she indicated that she was continuously exposed to mold spores while
performing her work duties as a psychologist 40 hours per week and this caused her health
problems. She alleged that she experienced severe coughing and wheezing that had caused her to
cough up blood as a result.
The employing establishment controverted appellant’s occupational disease claim in a
September 28, 2018 letter. It asserted that mold is located everywhere in the State of Florida and
is not state regulated. The employing establishment reasoned that because mold is not regulated
and it cannot be proven that appellant’s illness was caused by conditions of her federal
employment, her claim should be denied. It also attached a series of e-mails dated from August 5,
2016 to August 20, 2018 demonstrating that she was relocated due to mold levels in her office.
In an undated personal statement, appellant detailed the development of her respiratory and
glaucoma issues from 2012, when she began her employment at the employing establishment,
through her retirement in 2017. She stated that every day she worked at the employing
establishment since 2012 she was exposed to water damage and indoor fungal spores until she
requested that an indoor air survey be performed in July 2016. Appellant explained that the indoor
air quality survey revealed water damage and mold that caused her building to be condemned and
closed. She also noted a previous 2006 coughing episode after which she was diagnosed with a
reactive airway. Appellant further stated that her symptoms related to the 2006 coughing episode
quickly resolved.

3

By decision dated October 18, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that her diagnosed
conditions were causally related to the accepted factors of her federal employment.
On November 7, 2018 appellant, through counsel, requested a review of the written record
before a representative of OWCP’s Branch of Hearings and Review. In an attached letter, she
noted her disagreement with OWCP’s October 18, 2018 decision and cited Board decisions to
demonstrate the sufficiency of her medical evidence.
OWCP subsequently received an April 13, 2016 medical report, wherein Dr. Hudman Hoo,
Board-certified in internal medicine, evaluated appellant for her recurring coughing, wheezing,
and dyspnea and recounted the history of her related symptoms. Dr. Hudman Hoo diagnosed
allergic rhinitis due to pollen, hemoptysis, wheezing, and a chronic cough and provided
medications to treat her conditions.
By decision dated January 11, 2019, OWCP’s hearing representative vacated the
October 18, 2018 decision and remanded the case for further development. He determined that
OWCP had not properly made findings of the specific factors of employment that were accepted
prior to considering the medical evidence of record.
By decision dated February 13, 2019, OWCP denied appellant’s occupational disease
claim. It made specific findings as to the accepted factors of employment, but denied the claim as
the medical evidence of record was insufficient to establish that her diagnosed conditions were
causally related to the accepted factors of her federal employment.
On March 22, 2019 appellant requested reconsideration of OWCP’s February 13, 2019
decision. In an attached letter, she clarified that she was diagnosed with asthma prior to her 2015
to 2017 health problems. Appellant asserted that the employing establishment’s argument was
unsubstantial and reasoned that the office she worked in was the only facility in which she
experienced symptoms related to her pulmonary conditions.
In a June 22, 2016 letter, Dr. Gerald Snyder, a Board-certified optometrist, noted that
appellant presented for a glaucoma evaluation. He indicated that she underwent cataract surgery
in 2012 and had since discontinued her use of prescription eye drops because of breathing issues.
Dr. Saberi clarified in an October 25, 2018 letter that appellant did not have a preexisting
condition of asthma before he began treating her in 2015. He indicated that her asthmatic
conditions began after she was exposed to mold at her place of employment. Dr. Saberi opined
that appellant’s medical issues and respiratory diagnoses were causally related to her continued
exposure to the employing establishment.
In an October 30, 2018 letter, Dr. Klemawesch also clarified that appellant did not have a
preexisting condition of asthma prior to working at the employing establishment and opined that
her conditions developed as a result of the prevalence of mold at the employing establishment. He
opined that her respiratory medical issues were causally related to her chronic exposure to
aspergillus and penicillium mold at the employing establishment.

4

By decision dated June 13, 2019, OWCP’s hearing representative affirmed the
February 13, 2019 decision finding that the evidence of record was insufficient to establish, by
probative and substantial evidence, that appellant’s respiratory conditions were causally related to
the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

5

ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her claim, appellant submitted a July 20, 2016 letter in which
Dr. Klemawesch detailed his treatment for her severe asthma with paroxysmal coughing episodes
leading to hemoptysis. He acknowledged the water leaks and discolored mold in her work
environment as a strong trigger effect of her symptoms. Dr. Klemawesch explained that
hypersensitivity testing indicated that appellant was moderately sensitive to multiple indoor and
outdoor molds and opined that her employment building was a contributing factor of her
conditions. In a separate October 30, 2018 letter, he identified her chronic exposure to aspergillus
and penicillium mold at the employing establishment as the cause of her respiratory conditions.
Additionally, Dr. Saberi, in his May 8, 2018 narrative medical report, reviewed appellant’s
employment history and past medical history and diagnosed dyspnea, paroxysmal coughing
episodes leading to syncope and hemoptysis, reactive airway disease, and severe asthma exposure.
On evaluation of appellant and review of an air quality test of her office building, he opined that
the mold exposure at the employing establishment contributed to, aggravated and/or caused her
conditions and explained that her 2006 treatment for reactive airways made her more prone to
sustaining subsequent respiratory injuries.
The Board finds that, although Drs. Klemawesch and Saberi’s medical opinions are not
fully rationalized, they constitute relevant evidence in support of appellant’s claim, as they explain
the physiological process by which her accepted factors of federal employment caused or
aggravated her diagnosed respiratory conditions. Dr. Klemawesch’s July 20, 2016 letter and
Dr. Saberi’s May 8, 2018 narrative medical report therefore raise an uncontroverted inference of
causal relationship between her claimed respiratory conditions and the accepted factors of her
federal employment. Further development of appellant’s claim is therefore required.10
On remand OWCP shall prepare a statement of accepted facts (SOAF) setting forth the
employment factors which have been established and refer appellant to an appropriate second
opinion physician for an examination and a rationalized medical opinion as to whether her accepted
employment factors either caused or aggravated her respiratory conditions.11 If the second opinion
disagrees with the explanations provided by Drs. Klemawesch and Saberi, he or she must provide
a fully-rationalized explanation explaining why their opinions are unsupported. After this and
such further development as is deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

See A.T., Docket No. 19-1972 (issued June 25, 2020); K.T., Docket No 19-1436 (issued February 21, 2020);
John J. Carlone, 41 ECAB 354, 356-57 (1989).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2019 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: October 7, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 17-1570
Issued: February 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2017 appellant filed a timely appeal from a May 31, 2017 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 more than five percent permanent impairment of her
left upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On September 10, 2012 appellant, then a 42-year-old medical support assistant filed an
occupational disease claim (Form CA-2) alleging that she developed a left shoulder injury as a
1

5 U.S.C. § 8101 et seq.

result of her repetitive employment duties. She did not stop work. By decision dated
October 11, 2013, OWCP accepted the claim for rotator cuff tear/syndrome of the left shoulder
with arthroscopic repair.
In a June 25, 2012 operative report, Dr. Paul Woodworth, a Board-certified orthopedic
surgeon, discussed operative findings pertaining to appellant’s left shoulder arthroscopic rotator
cuff repair. In a May 15, 2014 operative report, he discussed findings pertaining to appellant’s
left shoulder arthroscopy, with decompression.
On April 15, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated April 28, 2015, OWCP requested that appellant submit an impairment
evaluation from her attending physician in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It
afforded her 30 days to submit the necessary evidence.
In support of her claim, appellant submitted an April 22, 2015 report from Dr. Sangarapil
Manoharan, Board-certified in emergency medicine. Dr. Manoharan reported that on May 15,
2014, appellant had undergone left shoulder arthroscopy with decompression. He provided
findings on physical examination and diagnosed left rotator cuff tear primary encounter, history
of rotator cuff tear repair, and history of arthroscopic shoulder surgery. Dr. Manoharan
determined that appellant could return to full-duty work on April 22, 2015.
By decision dated September 14, 2015, OWCP denied appellant’s claim for a schedule
award as the evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body.
On October 6, 2015 appellant requested reconsideration of OWCP’s decision. In support
of her request, she submitted a letter dated May 18, 2015 from Kaiser Permanente which advised
that Dr. Manoharan was unable to provide the requested impairment rating.
By decision dated October 8, 2015, OWCP denied appellant’s request for reconsideration
finding that it neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant merit review. The decision noted that the record failed to contain
copies of the June 2012 and May 2014 surgery notes which were needed for further
consideration of her claim.
On March 2, 2016 appellant again requested reconsideration. In support of her request
she submitted an October 19, 2015 medical report from Dr. H. Leon Brooks, a Board-certified
orthopedic surgeon.3
In the October 19, 2015 medical report, Dr. Brooks provided physical examination
findings, a review of diagnostic testing, and he summarized appellant’s medical reports
2

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

3
The Board notes that on August 13, 2015 OWCP approved authorization for a one-time examination with
Dr. Brooks for the purposes of a schedule award rating.

2

beginning June 25, 2012 and continuing. He discussed the June 25, 2012 and May 15, 2014
operative reports, as well as progress reports following surgical intervention. Dr. Brooks
determined that appellant was at maximum medical improvement (MMI) and diagnosed status
post rotator cuff repair and decompression of her acromioclavicular (AC) joint. Utilizing Table
15-34 of the A.M.A., Guides, Shoulder Range of Motion, he determined that appellant sustained
12 percent permanent impairment of the left upper extremity based on measurements revealing
moderate decreased range of motion.4 Dr. Brooks assigned a grade modifier of 2 using Table 1535, Range of Motion Grade Modifiers,5 and a grade modifier of 2 for functional history.6 He
concluded that appellant sustained 12 percent permanent impairment of the left upper extremity7
which equated to 7 percent whole person impairment.8
On July 6, 2016 OWCP routed Dr. Brooks’ report, a statement of accepted facts (SOAF),
and the case file to Dr. David H. Garelick, a Board-certified orthopedic surgeon serving as an
OWCP district medical adviser (DMA), for review and determination regarding whether
appellant sustained a permanent impairment of the left upper extremity and date of MMI.
In a July 8, 2016 report, Dr. Garelick reported that appellant had two left shoulder
surgeries, the most recent on May 15, 2014, when she underwent removal of a calcific mass from
her subacromial spine. He noted a prior rotator cuff repair with no documentation of a distal
clavicle resection. Dr. Garelick reported that he was unclear how Dr. Brooks arrived at the 12
percent impairment rating of the left upper extremity. He speculated that Dr. Brooks had
recommended 10 percent impairment for a distal clavicle resection and moved the percentage
two places to the right for an overall 12 percent award. Dr. Garelick recommended that
Dr. Brooks’ impairment rating be disregarded as the decompression appeared to have been a
calcific mass within the subacromial space, not the distal clavicle itself. He opined that appellant
sustained five percent permanent impairment of the left upper extremity for a full-thickness
rotator cuff tear with residual findings, as noted in Table 15-5, Shoulder Regional Grid.9 Given
appellant’s essentially normal physical examination, he recommended no change to the award
with the net adjustment formula. The date of MMI was noted as April 22, 2015, when appellant
was released to full-duty work and presumably released from orthopedic care.
By decision dated July 28, 2016, OWCP vacated the September 14, 2015 denial of
appellant’s schedule award claim, finding that the medical evidence of record established five
percent permanent impairment of the left upper extremity. By decision dated March 7, 2017, it
granted appellant a schedule award for five percent permanent impairment of the left upper
extremity. The date of MMI was noted as April 22, 2015. Appellant’s weekly pay was recorded
as $1,073.58 at a 66 2/3 compensation rate amounting to $805.19 weekly. OWCP noted that the
4

Supra note 2 at 475.

5

Id. at 477.

6

Id. at 406, Table 15-7.

7

Id. at 384.

8

Id. at 420.

9

Id. at 403.

3

weight of the medical evidence rested with Dr. Garelick, serving as OWCP’s DMA, who
correctly applied the A.M.A., Guides to the examination findings.10
On April 3, 2017 appellant requested reconsideration of OWCP’s March 7, 2017
schedule award determination. Appellant asserted that OWCP should have requested
clarification from Dr. Brooks prior to making its schedule award decision as she believed she
was entitled to 12 percent rather than the five percent awarded.11
In support of her claim appellant submitted a March 25, 2014 medical report from
Dr. Manoharan who provided physical examination findings and diagnosed left rotator cuff tear,
adhesive capsulitis of the left shoulder, history of rotator cuff tear repair, and history of shoulder
surgeries.
In a March 23, 2017 supplemental report, Dr. Brooks reported that he was providing
clarification of his October 19, 2015 report. He indicated that appellant did in fact undergo a
subacromial decompression which involved resection of the distal clavicle. Dr. Brooks further
indicated that appellant continued to have frequent pain as well as limited range of motion. On
objective examination, apart from the significant loss of motion, he noted evidence of positive
impingement signs. Dr. Brooks concluded that his impairment rating had not changed from his
prior report.
By decision dated May 31, 2017, OWCP denied modification of its March 7, 2017
decision, finding that appellant had established no more than the five percent permanent
impairment of her left upper extremity previously awarded.12
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.13 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.14 FECA, however, does not
10
The Board notes that OWCP initially issued a March 3, 2017 schedule award determination finding that
appellant sustained four percent permanent impairment of the left upper extremity. OWCP reissued the decision on
March 7, 2017 noting that the four percent award was a typographical error and that appellant was in fact awarded
five percent for the left upper extremity. It provided an accompanying payment sheet to show that appellant was
paid an award for five percent left upper extremity impairment.
11

Appellant further asserted that OWCP improperly calculated her schedule award at the 66 2/3 compensation
rate which should have been calculated at the 75 percent augmented pay rate for having dependents.
12
The Board notes that on appeal, appellant argued that OWCP awarded her a five percent schedule award based
on an improper 66 2/3 compensation rate. While the March 7, 2017 decision incorrectly noted the compensation
rate, the accompanying payment sheet correctly identified 75 percent compensation rate and reflected that she
received her schedule award at the proper compensation rate.
13

See 20 C.F.R. §§ 1.1-1.4.

14

For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).

4

specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.15 As of May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).16 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.17
The A.M.A., Guides provide a diagnosis-based impairment (DBI) method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF) for upper extremity impairments. The evaluator identifies the impairment for
the Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).18
The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).19
The A.M.A., Guides also provide that range of motion (ROM) impairment method is to
be used as a stand-alone rating for upper extremity impairments when other grids direct its use or
when no other diagnosis-based sections are applicable.20 If ROM is used as a stand-alone
approach, the total of motion impairment for all units of function must be calculated. All values
for the joint are measured and added.21 Adjustments for functional history may be made if the
evaluator determines that the resulting impairment does not adequately reflect functional loss and
functional reports are determined to be reliable.22
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology
based versus the ROM methodology for rating of upper extremity impairments.23 Regarding the

15

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013).
17

Isidoro Rivera, 12 ECAB 348 (1961).

18

Supra note 2 at 405-18.

19

Id.

20

Id. at 461.

21

Id. at 473.

22

Id. at 474.

23
FECA Bulletin No. 17-06. This Bulletin was effective for all decisions issued by OWCP on and after
May 8, 2017.

5

application of ROM or DBI impairment methodologies in rating permanent impairment of the
upper extremities, FECA Bulletin No. 17-06 provides in pertinent 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 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.)24
The Bulletin further 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.”25
ANALYSIS
OWCP accepted appellant’s claim for rotator cuff tear/syndrome of the left shoulder with
arthroscopic repair. The issue is whether appellant sustained more than five percent permanent
impairment of the left upper extremity for which she previously received a schedule award. The
Board finds this case is not in posture for decision.
Dr. Brooks rated appellant’s permanent impairment of the left shoulder pursuant to
Table 15-34 of the A.M.A., Guides, for loss of shoulder range of motion. DMA Dr. Garelick, on
the other hand, evaluated appellant’s permanent impairment under Table 15-5 of the A.M.A.,
Guides, for full-thickness rotator cuff tear, under the shoulder regional grid. The Board notes
that Table 15-5, the Shoulder Regional Grid, does allow, by asterisk, that a rotator cuff fullthickness tear be alternatively evaluated by as a ROM impairment.26 Under FECA Bulletin No.
17-06.5, “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
[claims examiner].”
24

Supra note 5.

25

Id.

26

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

6

Because Dr. Brooks provided a rating based upon appellant’s loss of range of motion
which was allowed (for a diagnosed condition followed by an asterisk) under Table 15-5 of the
A.M.A. Guides, DMA Dr. Garelick, should have independently calculated appellant’s
impairment using both the ROM and DBI method and identified the higher rating for the claims
examiner. If the medical evidence of record was insufficient for the DMA to render a rating
using the ROM methodology, the DMA should have advised as to the medical evidence
necessary to complete the rating.27
This case will therefore be remanded for further development consistent with OWCP
procedures found in FECA Bulletin No. 17-06. Following this and any other development
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: February 9, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

27

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL OFFICE, MARTECH POST
OFFICE, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-1586
Issued: May 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 2, 2019 appellant filed a timely appeal from a December 11, 2018 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 her burden of proof to establish more than 6 percent
permanent impairment of the right upper extremity and 12 percent permanent impairment of the
left upper extremity, for which she previously received schedule award compensation.
FACTUAL HISTORY
OWCP accepted that on February 4, 2015 appellant, then a 53-year-old letter carrier,
sustained bilateral shoulder strain and unspecified rotator cuff tear or rupture of the right and left
1

5 U.S.C. § 8101 et seq.

shoulders, not specified as traumatic, as a result of lifting a tray while in the performance of duty.2
It paid wage-loss compensation for intermittent periods of disability. On October 14, 2016
appellant underwent authorized arthroscopy of the left shoulder with debridement, subacromial
decompression, Mumford, and rotator cuff repair to treat her rotator cuff tear with
acromioclavicular (AC) joint arthritis which was performed by Dr. W. Joseph Absi, an attending
Board-certified orthopedic surgeon.
In a May 8, 2017 medical report, Dr. Absi found that appellant had eight percent permanent
impairment of the left shoulder and five percent whole person impairment according to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 He determined that she reached maximum medical improvement (MMI) on
May 8, 2017.
On June 6, 2017 appellant filed a claim for a schedule award (Form CA-7). She submitted
a May 11, 2017 letter from Dr. Absi. Dr. Absi explained that his eight percent left shoulder
permanent impairment rating was based on a diagnosis of left shoulder arthroscopy with rotator
cuff repair. He provided objective findings that appellant lacked about 10 degrees to 15 degrees
range of motion (ROM) and her strength was 4+/5. Dr. Absi provided subjective findings of
stiffness and pain. He indicated that appellant had no permanent impairment of the right shoulder.
On June 13, 2017 OWCP forwarded appellant’s case record, including Dr. Absi’s May 11,
2017 report, to a district medical adviser (DMA) to determine the extent of her permanent
impairment and date of MMI.
On June 23, 2017 appellant filed a Form CA-7 schedule award claim.
OWCP, in a development letter dated June 27, 2017, advised appellant of the type of
evidence needed to establish her schedule award claim. It requested that she provide an
impairment rating in accordance with the sixth edition of the A.M.A., Guides.4 OWCP afforded
appellant 30 days to submit the necessary evidence.
In a June 25, 2017 report, Dr. Herbert White, Jr., Board-certified in physical medicine and
rehabilitation and serving as a DMA, noted appellant’s accepted conditions and reviewed the
medical record, including Dr. Absi’s May 11, 2017 report. He reported that an April 21, 2017
functional capacity evaluation (FCE) revealed 135 degrees of flexion, 135 degrees of abduction,
90 degrees of internal rotation, and 85 degrees of external rotation for the left shoulder. Dr. White
related that there was no evidence that the ROM measurements were obtained following A.M.A.,
Guides protocol. He indicated that an October 6, 2015 right shoulder magnetic resonance imaging
scan revealed a rotator cuff tear. Dr. White found that appellant reached MMI on the date of his
impairment evaluation. He utilized the diagnosis-based impairment (DBI) rating method under
the sixth edition of the A.M.A., Guides, and determined that she had 11 percent permanent
impairment of the left upper extremity. Dr. White noted that the A.M.A., Guides preference was
2

Appellant voluntarily retired from the employing establishment effective December 31, 2019.

3

A.M.A., Guides (5th ed. 2001).

4

Id. at (6th ed. 2009).

2

for use of the DBI methodology whenever possible. He further noted that he did not use the ROM
impairment rating method because additional evidence was needed. Dr. White needed verification
that three measurements were taken as required on page 464 of the A.M.A., Guides. He also
needed a recording of all shoulder motions, noting that ROM measurements were not recorded for
extension and adduction. Dr. White referenced Table 15-5, Shoulder Regional Grid, page 403,
and identified the class of diagnosis (CDX) of AC joint injury or disease resulting in a distal
clavicle resection as a class 1 impairment. He assigned a grade modifier for functional history
(GMFH) of 2 under Table 15-7, page 406, due to pain/symptoms with normal activity. Under
Table 15-8, page 408, Dr. White assigned a grade modifier for physical examination (GMPE) of
1 based on mild decreases in ROM and strength. He excluded a grade modifier for clinical studies
(GMCS), page 410, as there were no clinical studies to review. Using the net adjustment formula
of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), page 411, Dr. White calculated that
appellant had a net adjustment of (2-1) + (1-1) = 1, which moved the grade C default value of
10 percent impairment up one grade to D, resulting in 11 percent permanent impairment of the left
upper extremity. He explained that there was a difference between his impairment rating and
Dr. Absi’s impairment rating because they used different editions of the A.M.A., Guides.
Dr. White noted that he was unable to rate impairment of the right upper extremity with the
information in the record because there was no physical evaluation or history for the right shoulder
at MMI.
In an October 6, 2017 letter, OWCP requested that Dr. Absi review the DMA’s report and
determine whether he agreed with the DMA’s impairment rating using the sixth edition of the
A.M.A., Guides.
On November 6, 2017 Dr. Absi agreed with the DMA’s 11 percent left arm permanent
impairment rating.
OWCP, by decision dated November 20, 2017, granted appellant a schedule award for 11
percent permanent impairment of the left arm. The award ran 34.32 weeks from May 8, 2017 to
January 3, 2018 and was based on the permanent impairment evaluations of Dr. Absi and the
DMA.
OWCP thereafter received a November 21, 2017 report from Dr. Absi who reiterated that
appellant reached MMI on May 8, 2017 and that she had eight percent permanent impairment of
the left shoulder and five percent whole person impairment. Dr. Absi also found that she had 11
percent permanent impairment of the right shoulder and 5 percent whole person impairment. He
noted that appellant underwent a right shoulder rotator cuff repair in 2013.5 Dr. Absi reported
objective findings that included about 10 degrees to 15 degrees of flexion and 4+/5 strength. He
also reported subjective findings of stiffness and pain in both shoulders.
In a January 19, 2018 development letter, OWCP requested that Dr. Absi clarify his right
shoulder impairment rating and provide three measurements if he used the ROM rating method to
calculate appellant’s permanent impairment.

5
The record indicates that appellant underwent right shoulder rotator cuff repair decompression and biceps
tenotomy on March 1, 2013.

3

In an April 13, 2018 report, Dr. Absi continued to find that appellant had eight percent
permanent of the left upper extremity and five percent impairment of the whole person. He noted
that the right shoulder was slightly worse than the left shoulder with 11 percent permanent
impairment and 7 percent whole person impairment according to the fifth edition of the A.M.A.,
Guides. Dr. Absi provided an impression of bilateral improved pain status post arthroscopy. He
restated that appellant had reached MMI.
On May 24, 2018 OWCP routed appellant’s case record to the DMA to determine her right
upper extremity permanent impairment rating and date of MMI.
In a May 30, 2018 report, DMA Dr. White again reviewed appellant’s medical record,
including Dr. Absi’s November 21, 2017 and April 13, 2018 reports. He determined that she had
six percent permanent impairment of the right upper extremity in accordance with the sixth edition
of the A.M.A., Guides. Under Table 15-5, Shoulder Regional Grid page 403, Dr. White identified
the diagnosis of full-thickness rotator cuff tear (distal clavicle resection) as a class 1 impairment.
He assigned a grade modifier of 2 for GMFH under Table 15-7, page 406, due to pain/symptoms
with normal activity. Dr. White assigned a grade modifier of 1 for GMPE under Table 15-8, page
508, based on mild decreases in ROM and strength. He excluded a grade modifier for GMCS,
page 418, as it was used to determine diagnostic placement. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. White calculated that appellant had a
net adjustment of (2-1) + (1-1) = 1, which moved the grade C value of five percent impairment
one space to D, resulting in six percent permanent impairment of the right upper extremity.
Regarding impairment to the left upper extremity, DMA Dr. White again identified the
diagnosis of AC joint injury or disease resulting in a distal clavicle resection as a class 1
impairment. He assigned a grade modifier 2 for GMFH under Table 15-7 due to pain/symptoms
with normal activity. Under Table 15-8, Dr. White assigned a grade modifier of 1 for GMPE based
on mild decreases in ROM and strength. He referenced Table 15-9, page 410, and assigned a grade
modifier of 2 for GMCS. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (2-1) + (1-1) + (21) = 2, which moved the grade C default value of 10 percent impairment two spaces, resulting in
a grade E value of 12 percent permanent impairment rating for the left upper extremity. He
indicated that he was unable to rate her permanent impairment of the right and left upper
extremities using the ROM method for the same reasons provided in his June 25, 2017 report.
Dr. White recommended that appellant be sent back to Dr. Absi to provide all shoulder ROM
measurements following A.M.A., Guides protocol.
On October 12, 2018 appellant file a Form CA-7 for an increased schedule award.
By development letters dated October 22 and November 2, 2018, OWCP again advised
appellant of the type of evidence needed to establish her increased schedule award claim. It also
again requested that she provide an impairment rating in accordance with the sixth edition of the
A.M.A., Guides. OWCP afforded appellant 30 days to submit the necessary evidence.
On November 9, 2018 OWCP requested that DMA Dr. White clarify his May 30, 2018
report.

4

In an amended report dated November 16, 2018, Dr. White reiterated his prior calculations
based on a diagnosis of full-thickness rotator cuff tear and concluded that appellant had six percent
right upper extremity permanent impairment. He also utilized the ROM impairment rating method
and determined that, under Table 15-34, page 475, she had zero percent permanent impairment of
the right upper extremity. Dr. White noted the right shoulder ROM measurements provided in the
April 21, 2017 FCE and reported that 170 degrees of flexion, 155 degrees of abduction, 95 degrees
of internal rotation, and 90 degrees of external rotation each represented 0 percent impairment for
a total of 0 percent permanent impairment of the right upper extremity. He concluded that
appellant had six percent permanent impairment of the right upper extremity given that she had
a higher rating for permanent impairment under the DBI rating. Regarding impairment to the left
upper extremity, Dr. White reiterated his prior calculations based on a diagnosis of AC joint injury
or disease resulting in distal clavicle resection and determined that appellant had 12 percent
permanent impairment. He also utilized the ROM method to determine that, under Table 15-34,
she had zero percent left upper extremity permanent impairment. Based on the left shoulder ROM
measurements set forth in the April 21, 2017 FCE, Dr. White found that 135 degrees of flexion,
135 degrees of abduction, 90 degrees of internal rotation, and 85 degrees of external rotation each
represented 0 percent impairment for a total of 0 percent permanent impairment of the left upper
extremity. He concluded that appellant had 12 percent permanent impairment of the left upper
extremity given that she had a higher rating for permanent impairment under the DBI rating.
Dr. White noted that she had been previously awarded a schedule award for 11 percent permanent
impairment of the left upper extremity. He deducted this impairment rating from his 12 percent
permanent impairment rating and found that appellant had an additional 1 percent permanent
impairment. Dr. White determined that she had reached MMI on May 30, 2018.
OWCP, by decision dated December 11, 2018, granted appellant a schedule award for 6
percent permanent impairment of the right upper extremity and an additional 1 percent permanent
impairment of the left upper extremity for a total of 12 percent left upper extremity permanent
impairment. The award ran for 21.84 weeks from May 30 to October 29, 2019 and was based on
the DMA’s November 16, 2018 permanent impairment evaluation.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal 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. 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

6

Supra note 1.

7

20 C.F.R. § 10.404.

5

specified edition of the A.M.A., Guides, published in 2009.8 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.9
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).10 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by GMFH, GMPE, and GMCS.11 The net adjustment formula is (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX).12 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.14
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).”
“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

8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
11

Id. at 494-531.

12

Id. at 521.

13

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

14

Supra note 8 at Chapter 2.808.6(f) (March 2017); A.C., Docket No. 19-1333 (issued January 22, 2020).

6

impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original).”15
The Bulletin further 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
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 6
percent permanent impairment of the right upper extremity and 12 percent permanent impairment
of the left upper extremity, for which she previously received schedule award compensation.
Dr. Absi, found in reports dated November 21, 2017 and April 13, 2018 and May 8 and 11,
2017 that, under the fifth edition of the A.M.A., Guides, appellant had 11 percent permanent
impairment of the right shoulder which corresponded to 7 percent whole person impairment and 8
percent permanent impairment of the left shoulder which corresponded to 5 percent whole person
impairment due to her bilateral improved pain status post arthroscopy. However, his reports are
of limited probative value as he did not use the sixth edition of the A.M.A., Guides.17 Moreover,
Dr. Absi provided whole person impairment ratings, which are of no probative value as a whole
person permanent impairment rating is not permitted under FECA.18
On May 30, 2018 Dr. White, a DMA, noted that he had reviewed Dr. Absi’s November 21,
2017 and April 13, 2018 reports. He, however, disagreed regarding the extent of permanent
impairment to appellant’s right and left upper extremities. Dr. White found that she had six percent
permanent impairment of the right upper extremity due to a full-thickness rotator cuff tear. He
utilized the DBI method for rating appellant’s permanent impairment. Under Table 15-5, Shoulder
Regional Grid, page 403, Dr. White identified the diagnosis of full thickness rotator cuff tear
(distal clavicle resection) as a class 1 impairment with a default rating of five percent. He applied
a grade modifier of 2 for GMFH and a grade modifier of 1 for GMPE to the net adjustment formula,
finding an adjustment of 1, which equaled six percent permanent impairment of the right upper
extremity. Dr. White indicated that a grade modifier for GMCS was excluded because it was used
to determine diagnostic placement.
15

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
16

FECA Bulletin No. 17-06.

17
See L.L., Docket No. 19-0855 (issued September 24, 2019); S.J., Docket No. 16-1162 (issued February 8, 2017)
(a medical opinion not based on the appropriate edition of the A.M.A., Guides is of diminished probative value in
determining the extent of permanent impairment).
18
E.R., Docket No. 18-1646 (issued May 17, 2019); A.L., Docket No. 08-1730 (issued March 16, 2009); Marilyn S.
Freeland, 57 ECAB 607 (2006).

7

For appellant’s left shoulder, Dr. White determined that appellant had a grade E default
value of 12 percent left upper extremity permanent impairment. He referenced Table 15-5 and
assigned class 1 impairment for a diagnosis of AC joint injury or disease resulting in a distal
clavicle resection under the DBI method. Dr. White applied a grade modifier of 2 for GMFH and
GMCS and a grade modifier of 1 for GMPE of 1 to the net adjustment formula, finding an
adjustment of 2 which warranted movement two spaces to a grade E default value of 12 percent
left upper extremity permanent impairment.
In an amended November 16, 2018 report, Dr. White utilized the ROM methodology and
determined that, under Table 15-34, page 475, appellant had zero percent permanent impairment
of the right upper extremity. He found that 170 degrees of flexion, 155 degrees of abduction, 95
degrees of internal rotation, and 90 degrees of external rotation each represented 0 percent
impairment for a total of 0 percent permanent impairment of the right upper extremity. Dr. White
explained that, pursuant to the A.M.A., Guides, because the DBI method resulted in the greater
impairment, appellant had six percent permanent impairment of the right upper extremity.
Regarding impairment to the left upper extremity, Dr. White utilized the ROM
methodology and determined that, under Table 15-34, appellant had zero percent permanent
impairment of the left upper extremity. He found that 135 degrees of flexion, 135 degrees of
abduction, 90 degrees of internal rotation, and 85 degrees of external rotation each represented 0
percent impairment for a total of 0 percent permanent impairment of the left upper extremity.
Dr. White concluded that appellant had 12 percent permanent impairment of the left upper
extremity because the DBI method resulted in greater impairment. He noted that she had been
previously awarded a schedule award for 11 percent permanent impairment of the left upper
extremity. Dr. White deducted the 11 percent impairment rating from his 12 percent permanent
impairment rating and found that appellant had an additional 1 percent permanent impairment.
The Board finds that the DMA properly discussed how he arrived at his conclusion by
listing appropriate tables and pages in the A.M.A., Guides and established that appellant sustained
6 percent right upper extremity permanent impairment and 12 percent left upper extremity
permanent impairment. Dr. White accurately summarized the relevant medical evidence, provided
detailed findings on examination, and reached conclusions about her condition which comported
with his findings.19 In addition, he properly utilized the DBI method and ROM method to rate
appellant’s bilateral shoulder condition pursuant to FECA Bulletin No. 17-06. As Dr. White’s
reports are detailed, well rationalized, and based on a proper factual background, his opinion
represents the weight of the medical evidence.20 Thus, the Board finds that appellant has not met
her burden of proof to establish greater bilateral upper extremity permanent impairment than that
which was previously awarded.

19

M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019) J.M.,
Docket No. 18-1387 (issued February 1, 2019).
20

See M.S., id.; D.S., Docket No. 18-1816 (issued June 20, 2019).

8

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 6
percent permanent impairment of the right upper extremity and 12 percent permanent impairment
of the left upper extremity, for which she previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9