S.B. and U.S. Postal Service, West Knoxville Post Office (Board decision, March 28, 2024)

ECAB final decision. The Board affirmed OWCP’s seven percent right upper extremity impairment rating. A party may petition the Board for reconsideration within 30 days of issuance unless this order specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

A postal carrier sought a higher schedule award after an accepted shoulder injury and surgery. His treating surgeon rated impairment at seven percent. OWCP’s medical adviser reviewed the examination, applied the impairment guide, and also reached seven percent, a higher result than the range of motion method. The Board found no qualifying medical rating above that amount and affirmed the award.

Decision snapshot

• Authority: FECA schedule award rating under 5 U.S.C. § 8107.
• Outcome: June 24, 2022 decision affirmed; no increase above seven percent.
• Key point: A higher schedule award needs a supported impairment rating under the applicable guide.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.B., Appellant
)
)
and ) Docket No. 24-0153
) Issued: March 28, 2024
U.S. POSTAL SERVICE, WEST KNOXVILLE
)
POST OFFICE, Knoxville, TN, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On November 30, 2022 appellant filed a timely appeal from a June 24, 2022 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
5 U.S.C. § 8101 et seq.
2
The Board notes that, following the June 24, 2022 decision, OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id. ISSUE

The issue is whether appellant has met his burden of proof to establish greater than seven percent permanent impairment of his right upper extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On December 27, 2020 appellant, then a 59-year-old city carrier, filed a traumatic injury claim (Form CA-1) alleging that on December 6, 2020 he injured his right shoulder and upper arm when he slipped and fell on ice while in the performance of duty. He stopped work on the date of injury. OWCP accepted the claim on March 17, 2021 for right rotator cuff tear and strains of the muscle, fascia, and tendon of the right shoulder and upper arm.

On April 1, 2021 Dr. Michael Kern, a Board-certified orthopedic surgeon, performed surgery including right shoulder arthroscopy, rotator cuff repair, subacromial decompression with acromioplasty, open biceps tenodesis, and arthroscopic subscapularis repair. Appellant thereafter returned to full-time work with restrictions on June 28, 2021.3

A November 18, 2021 report of magnetic resonance imaging (MRI) scan of the right shoulder noted a high-grade reinjury involving the supraspinatus and infraspinatus tendons with full-thickness involvement and retraction of the supraspinatus tendon and full-thickness partial width tearing of the anterior infraspinatus tendon.

In a January 12, 2022 medical report, Dr. Kern reviewed the November 18, 2021 MRI scan and noted that appellant indicated that he did not wish to move forward with any additional reconstructive surgery. He diagnosed a massive rotator cuff tear, status post repair and subsequent failure, with early rotator cuff arthropathy. Dr. Kern noted that appellant related subjective complaints of pain with activities overhead and with his arm away from his body, decreased range of motion of the shoulder, and weakness reaching overhead. On physical examination, he documented full active and passive ranges of motion; significant strength deficit in the supraspinatus and with external rotation; positive Neer’s, Hawkins, and O’Brien’s impingement signs; and palpable crepitus with range of motion. Dr. Kern utilized the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 and found seven percent impairment of the right upper extremity.

In a form report dated June 7, 2022, Dr. Kern indicated that appellant had reached maximum medical improvement (MMI) on May 11, 2022.

On June 14, 2022 OWCP routed Dr. Kern’s January 12, 2022 report, along with a statement of accepted facts (SOAF), and the case record, to Dr. Herbert White, Jr., a physician

3
Appellant retired from federal service, effective February 1, 2022.
4
A.M.A., Guides (6th ed. 2009).

2
Board-certified in occupational medicine serving as an OWCP district medical adviser (DMA), for review and evaluation of appellant’s permanent impairment pursuant to the A.M.A., Guides.5

In a June 20, 2022 report, Dr. White indicated that he had reviewed the SOAF and the medical record, including Dr. Kern’s January 12, 2022 report. He opined that appellant had reached MMI on January 12, 2022, the date of Dr. Kern’s physical examination. Dr. White utilized the diagnosis-based impairment (DBI) rating method to find that, under Table 15-5 (Shoulder Regional Grid), page 403, the class of diagnosis (CDX) for full-thickness rotator cuff tear resulted in a Class 1 grade C impairment with a default value of five percent. He assigned a grade modifier for functional history (GMFH) of 2 due to pain with normal activity; a grade modifier for physical examination (GMPE) of 1 for weakness; and a grade modifier for clinical studies (GMCS) of 2 for biceps tendon pathology.6 Dr. White utilized the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (1 - 1) + (2 - 1) = 2, which increased the right upper extremity permanent impairment rating to seven percent. Under the range of motion (ROM) rating method, he noted that Dr. Kern found full active and passive range of motion, which resulted in zero percent permanent impairment. As the DBI-rating method produced the higher impairment rating, Dr. White concluded that appellant had seven percent permanent impairment of the right upper extremity.

By decision dated June 24, 2022, OWCP granted appellant a schedule award for seven percent permanent impairment of the right upper extremity. The date of MMI was found to be January 12, 2022. The award covered a period of 21.84 weeks and ran for the period January 12 through June 13, 2022. OWCP noted that the weight of the medical evidence rested with Dr. White as the DMA, who applied the A.M.A., Guides to Dr. Kern’s findings.

LEGAL PRECEDENT

The schedule award provisions of FECA7 and its implementing regulations8 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 of loss of a member shall be determined. The method used in making such determination is a matter which rests in the sound discretion of OWCP. For consistent results and to ensure equal justice, 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 OWCP as a standard for evaluation of schedule losses and

5
Id.
6
Utilizing Table 15-9, page 410, Dr. White noted that the rotator cuff tear was not rated under GMCS because it was used for diagnostic placement.
7
Supra note 1.
8
20 C.F.R. § 10.404.

3 the Board has concurred in such adoption.9 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.10

It is the claimant’s burden of proof to establish permanent impairment of the scheduled member or function of the body as a result of an employment injury.11 OWCP procedures provide that, to support a schedule award, the file must contain competent medical evidence which shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.12

In addressing impairment for the upper extremities under the sixth edition of the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity to be rated.13 After a CDX is determined (including identification of a default grade value), the impairment class is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.14 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15

Regarding the application of ROM or DBI methodologies in rating permanent impairment of the upper extremities, FECA Bulletin No. 17-06 provides:

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has an organic basis, three independent measurements should be obtained and the greatest ROM should be used for the determination of impairment, the CE [claims examiner] should provide this information (via the updated instructions noted above) to the rating physician(s).”16

The FECA Bulletin further advises:

“Upon initial review of a referral for upper extremity impairment evaluation, the DMA should identify: (1) the methodology used by the rating physician (i.e., DBI

9
Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 11 E.D., Docket No. 19-1562 (issued March 3, 2020); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
12
Supra note 10 at Chapter 2.808.5 (March 2017).
13
M.D., Docket No. 20-0007 (issued May 13, 2020); T.T., Docket No. 18-1622 (issued May 14, 2019).
14
A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).
15
Id. at 405-12. Table 15-4 and Table 15-5 also provide that, if motion loss is present for a claimant with certain diagnosed elbow and shoulder conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM impairment). Such a ROM rating stands alone and is not combined with a DBI rating. Id. at 398-05, 475-78. 16 FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018).

4 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.”17

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of impairment specified.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than seven percent permanent impairment of his right upper extremity, for which he previously received a schedule award.

In a January 12, 2022 medical report, Dr. Kern documented full active and passive range of motion; significant strength deficit in the supraspinatus and with external rotation; positive Neer’s, Hawkins, and O’Brien’s impingement signs; and palpable crepitus with range of motion. He utilized the sixth edition of the A.M.A., Guides, and found seven percent impairment of the right upper extremity.

In accordance with its procedures, OWCP properly routed the case record to Dr. White in his role as DMA, who indicated in a June 20, 2022 report that he had reviewed the SOAF and Dr. Kern’s January 12, 2022 report. Dr. White referenced the sixth edition of the A.M.A., Guides, and utilized the DBI rating method to find that, under Table 15-5 (Shoulder Regional Grid), page 403, the CDX for full-thickness rotator cuff tear resulted in a Class 1 grade C impairment with a default value of five percent. He assigned a GMFH of 2, a GMPE of 1, and a GMCS of 2 and applied the net adjustment formula, which increased the right upper extremity permanent impairment rating to seven percent. Dr. White also found that the DBI-rating method produced the higher impairment rating than the ROM rating method and, therefore, concluded that appellant had seven percent permanent impairment of the right upper extremity.

The Board finds that OWCP properly relied on the opinion of Dr. White, the DMA, to find that appellant had seven percent permanent impairment of his right upper extremity. Dr. White properly applied the standards of the A.M.A., Guides to the physical examination findings of Dr. Kern, and properly referred to the A.M.A., Guides in calculating appellant’s percentage of permanent impairment of the right upper extremity.19 The Board finds that, in the above-described calculations, Dr. White reached conclusions regarding appellant’s permanent impairment that are in accordance with the standards of the sixth edition of the A.M.A., Guides.20 There is no medical evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides,

17
Id.
18
See supra note 10 at Chapter 2.808.6(f) (February 2013). See also J.T., Docket No. 17-1465 (issued September 25, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006). 19 See R.G., Docket No. 21-0491 (issued March 23, 2023).
20
See T.S., Docket No. 22-0924 (issued April 27, 2023).

5 demonstrating a greater percentage of permanent impairment of the right upper extremity. Accordingly, the Board finds that, as appellant has not submitted medical evidence establishing more than seven percent permanent impairment of the right upper extremity, he has not met his burden of proof.

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish more than seven percent permanent impairment of his right upper extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the June 24, 2022 decision of the Office of Workers’ Compensation Programs is affirmed.

Issued: March 28, 2024
Washington, DC

Alec J. Koromilas, 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

6