United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.H., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Fort Dix, NJ, Employer

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Docket No. 19-0102

Issued: June 21, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

JANICE B. ASKIN, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On October 17, 2018 appellant, through counsel, filed a timely appeal from an August 22, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

1

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

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

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

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

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

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

2 5 U.S.C. § 8101 et seq.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than five 

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

schedule award. 

FACTUAL HISTORY

On December 21, 2014 appellant, then a 36-year-old correctional officer, filed a traumatic 

injury claim (Form CA-1) alleging that on that day he injured his right shoulder, right knee, and 

lower back, when he slipped and fell down four or five stairs while in the performance of duty. 

He stopped work and returned to modified duty on February 3, 2015. 

OWCP accepted the claim for sprain of right elbow and forearm, contusion of right elbow, 

and enthesopathy of right elbow. Appellant underwent right elbow surgery on August 17, 2015 

and again on December 14, 2015. He received wage-loss compensation on the supplemental rolls

commencing May 8, 2015 and returned to modified duty on March 6, 2016.

On June 10, 2016 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation. In a July 22, 2016 report, Dr. Askin noted 

that appellant had full range of motion (ROM) of his shoulder. He advised that he paid careful 

attention to the right elbow and found no obvious laxity, and no crepitus, and that, even though 

appellant reported discomfort with supination, he was able to demonstrate full supination of his 

forearm. Dr. Askin indicated that appellant continued to have a physical basis for soreness at the 

right elbow and provided restrictions to his right upper extremity. He advised that maximum 

medical improvement (MMI) had been reached. 

On November 16, 2016 appellant filed a schedule award claim (Form CA-7). In support 

of this claim, he submitted an August 25, 2016 report in which Dr. Karen Garvey, Board-certified 

in internal and occupational medicine, provided an impairment rating. Dr. Garvey noted 

appellant’s medical and surgical history, reported that appellant had difficulty with activities of 

daily living, and described the physical examination findings. She advised that, due to the extent 

of his medical history, Table 15-4, Elbow Regional Grid, of the sixth edition of the American 

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

3 did 

not fully represent his condition. Dr. Garvey provided one measurement for right upper extremity 

loss of motion, noting that under Table 15-33, flexion of 70 degrees yielded 8 percent upper 

extremity impairment, and supination of 55 degrees of supination yielded 1 percent upper 

extremity impairment. She found no impairment for extension and pronation. Dr. Garvey adjusted 

appellant’s impairment under Table 15-35, based on his QuickDASH score of 72.5, finding an 

additional 0.9 percent impairment which she added to the 9 percent ROM impairment for 9.9 

percent which she rounded to 10 percent right upper extremity impairment. She indicated that the 

date of MMI was April 28, 2016. 

OWCP requested that its district medical adviser (DMA) Dr. Michael Katz, a Boardcertified orthopedic surgeon, review the record, including Dr. Garvey’s impairment evaluation. In 

 

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

a January 26, 2017 report, Dr. Katz advised that, upon review of the record, there was a significant 

conflict in medical opinion between Dr. Askin, OWCP’s second opinion physician, and

Dr. Garvey, appellant’s treating physician, regarding appellant’s right elbow motion and 

recommended an additional impairment evaluation.

OWCP determined that a conflict in medical evidence had been created regarding 

appellant’s permanent impairment. On June 8, 2017 it referred him to Dr. Roy B. Friedenthal, 

Board-certified in orthopedic surgery, for an impartial medical evaluation. In a July 14, 2017 

report, Dr. Friedenthal noted the history of injury, his review of the medical record, and appellant’s 

current complaints of daily throbbing right elbow pain, increased by activity, and loss of elbow 

motion. He indicated that appellant had medically retired on March 7, 2017. Appellant reported 

pain on all ROMs of the right elbow. Flexion was full to 150 degrees, extension was 0 degrees, 

and pronation and supination were full and symmetric to the left. There was no joint effusion, 

crepitus, medial or lateral instability, bursal effusion, inflammation about the olecranon bursa, soft

tissue swelling or induration, and no inflammatory changes were noted. Dr. Friedenthal noted that 

appellant reported tenderness to light touch, and that resistive testing about the wrist did not 

initially produce complaints of elbow pain, but when retested and specifically asked about elbow 

pain on resistive testing, appellant reported discomfort at the elbow on both resisted dorsiflexion 

and volar flexion of the wrist. He advised that, despite multiple complaints, there were no objective 

findings related to the accepted conditions, noting subjective complaints of pain, loss of motion, 

and loss of functional capabilities which were not supported by his examination. Dr. Friedenthal 

indicated that, while appellant reported diffuse tenderness, this was in response to light touch and 

was not anatomically localized, reflecting nonphysiological factors. He concluded that appellant 

could have some residual sensitivity related to residual scarring that could interfere with strenuous 

work activities, but that he was not totally disabled. Dr. Friedenthal utilized Table 15-4 of the 

sixth edition of the A.M.A., Guides, finding a class 1 impairment for olecranon bursitis and lateral 

epicondylitis, noting that appellant would get the highest rating for the latter diagnosis. He found 

no grade modifier for physical examination (GMPE) or clinical studies (GMCS), and considered 

appellant’s QuickDASH score unreliable.4 Dr. Friedenthal indicated that he gave appellant the 

benefit of the doubt, finding a functional history modifier (GMFH) of 3, and applied the net 

adjustment formula finding zero adjustment. He concluded that appellant had five percent right 

upper extremity impairment, the default value for a class 1 impairment.

In a supplemental report dated August 30, 2017, Dr. Friedenthal indicated that MMI had 

been reached on June 27, 2017, the date of his examination. He advised that as there was no loss 

of motion in the elbow, that method would provide no impairment rating so the higher rating would 

be based on the diagnosis-based impairment (DBI) method. Dr. Friedenthal again noted that his 

final right upper extremity impairment rating was five percent. 

By decision dated February 2, 2018, OWCP found the weight of the medical evidence 

rested with the opinion of Dr. Friedenthal and granted appellant a schedule award for five percent 

permanent impairment of the right upper extremity, for 15.6 weeks compensation, to run for the 

period from June 27 to October 14, 2017. 

 

4 A copy of appellant’s QuickDASH score was included in Dr. Friedenthal’s report. 
4

On February 12, 2018 counsel requested a hearing with OWCP’s Branch of Hearings and 

Review. At the hearing, held on June 27, 2018, he maintained that Dr. Garvey’s report was the 

most thorough. Appellant testified that his activities were limited since the employment injury 

with ROM issues and continued pain. He also noted that he was no longer undergoing medical 

treatment.

By decision dated August 22, 2018, an OWCP hearing representative found the opinion of

Dr. Friedenthal was entitled to the special weight as an impartial medical examiner (IME), and 

affirmed the February 2, 2018 decision. 

LEGAL PRECEDENT

The schedule award provision of FECA,5and its implementing federal regulation,6set forth 

the number of weeks of compensation payable to employees sustaining permanent impairment 

from loss, or loss of use, of scheduled members or functions of the body. However, FECA does 

not specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides 

as the uniform standard applicable to all claimants.7 For decisions issued after May 1, 2009, the 

sixth edition will be used.8

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

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

“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss 

of ROM that a restricted ROM has an organic basis, three independent 

measurements should be obtained and the greatest ROM should be used for the 

determination of impairment, the CE [claims examiner] should provide this 

information (via the updated instructions noted above) to the rating physician(s).

“Upon initial review of a referral for upper extremity impairment evaluation, the 

DMA should identify (1) the methodology used by the rating physician (i.e., DBI 

or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,] 

Guides identify a diagnosis that can alternatively be rated by ROM. If the 

[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate 

an impairment rating for the diagnosis in question, the method producing the 

higher rating should be used.” (Emphasis in the original.)9

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

9 FECA Bulletin No. 17-06 (May 8, 2017); see also L.G., Docket No. 18-0519 (issued March 8, 2019).
5

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.”

10

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

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

third physician who shall make an examination.11 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an IME, pursuant to section 8123(a) of 

FECA, to resolve the conflict in the medical evidence.12 Where a case is referred to an IME for 

the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized 

and based on a proper factual and medical background must be given special weight.13

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than five 

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

schedule award. 

OWCP accepted appellant’s claim for sprain of right elbow and forearm, contusion of right 

elbow, and enthesopathy of right elbow. Appellant underwent two right elbow surgeries, the first 

on August 17 and the second on December 14, 2015. On November 16, 2016 he filed a schedule 

award claim. Appellant submitted an August 25, 2016 report impairment evaluation from

Dr. Garvey who found 10 percent right upper extremity impairment. Dr. Garvey indicated that the 

date of MMI was April 28, 2016. OWCP referred the record to its DMA, Dr. Katz who advised 

on January 26, 2017 that, upon review of the record, there was a significant conflict in medical 

opinion between Dr. Askin, OWCP’s second opinion physician, and Dr. Garvey, appellant’s 

treating physician, regarding appellant’s right elbow motion. OWCP properly determined that a 

conflict had been created between Drs. Askin and Garvey regarding appellant’s permanent 

impairment of the right upper extremity.14 

OWCP referred appellant to Dr. Friedenthal who evaluated appellant on July 14, 2017. 

Dr. Friedenthal reported that appellant’s right elbow ROM was normal, noting that appellant 

reported pain on all ROMs of the right elbow, but that flexion was full to 150 degrees, extension 

was 0 degrees, and pronation and supination were full and symmetric with the left. He determined 

 

10 Id.

11 5 U.S.C. § 8123(a).

12 C.R., Docket No. 18-1285 (issued February 12, 2019).

13 Id.

14 Supra note 11. 
6

that, under the DBI method, utilizing Table 15-4,15 appellant had a class 1 impairment for either 

olecranon bursitis or lateral epicondylitis. Dr. Friedenthal advised that appellant would get the 

highest rating for the latter diagnosis and found no GMPE or GMCS, and considered appellant’s 

QuickDASH score unreliable. He found a GMFH of 3. After applying the net adjustment formula 

which yielded zero adjustment, he concluded that appellant had five percent right upper extremity 

impairment, the default value for a lateral epicondylitis class 1 impairment under Table 15-4.

16

 In 

an August 30, 2017 supplemental report, Dr. Friedenthal indicated that MMI was reached on 

June 27, 2017, the date of his examination. He advised that, as there was no loss of motion in the 

elbow, the ROM method would provide no impairment rating so that the higher rating would be 

based on the DBI method. Dr. Friedenthal reiterated that his final right upper extremity 

impairment rating was five percent. 

The Board finds that it was proper for Dr. Friedenthal to use the DBI method to rate 

appellant’s right elbow impairment pursuant to FECA Bulletin No. 17-06 as he found no loss of 

ROM. Dr. Friedenthal accurately summarized the relevant medical evidence, provided detailed 

findings on examination, and reached conclusions about appellant’s condition which comported 

with his findings.17 As his report is detailed, well rationalized, and based on a proper factual 

background, his opinion is entitled to the special weight accorded an IME.18

On appeal, counsel contends that OWCP’s August 22, 2018 decision is contrary to fact and 

law. For the foregoing reasons, the Board finds that appellant has not met his burden of proof to 

establish greater than five percent permanent impairment of the right upper extremity.

Appellant may request a schedule award or increased schedule award 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 his burden of proof to establish more than five 

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

schedule award compensation. 

 

15 Supra note 3 at 399.

16 Id.

17 J.M., Docket No. 18-1387 (issued February 1, 2019).

18 Id.
7

ORDER

IT IS HEREBY ORDERED THAT the August 22, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 21, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board