United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.A., Appellant

and

U.S. POSTAL SERVICE, NORTH OAKLAND 

POST OFFICE, Oakland, CA, Employer

__________________________________________

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Docket No. 19-1798

Issued: November 4, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 27, 2019 appellant, through counsel, filed a timely appeal from a May 23, 2019 

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 her burden of proof to establish more than six 

percent permanent impairment of the left upper extremity and six percent permanent impairment 

of the right upper extremity, for which she previously received a schedule award.

FACTUAL HISTORY

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

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

follows.

On October 6, 2010 appellant, then a 41-year-old sales and service associate and 

distribution clerk, filed an occupational disease claim (Form CA-2) alleging that she developed 

pain in her upper extremities and tingling in her hands due to factors of her federal employment.4 

She noted that she first became aware of her claimed condition and realized its relationship to her 

federal employment on July 2, 2010. Appellant stopped work on October 4, 2010. OWCP 

accepted her claim for bilateral medial epicondylitis and bilateral lateral epicondylitis. 

On January 30, 2012 appellant filed a claim for a schedule award (Form CA-7). 

OWCP developed the claim and referred appellant, along with a statement of accepted facts 

(SOAF) and the medical record, to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, 

for a second opinion evaluation in order to determine whether she had sustained a ratable 

permanent impairment due to her accepted bilateral upper extremity injuries under the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment 

(A.M.A., Guides).5 In a May 8, 2012 report, Dr. Swartz indicated that he had reviewed the SOAF 

and noted that her claim was accepted for bilateral medial epicondylitis and bilateral lateral

epicondylitis. He conducted an examination and reported that range of motion (ROM) testing of 

appellant’s elbows measured zero degrees extension, 115 degrees flexion, 90 degrees pronation, 

and 90 degrees supination. Referencing Table 15-33, ROM, page 474, of the A.M.A., Guides,

Dr. Swartz indicated that he was using the ROM method for rating impairment of her elbows and 

determined that she had eight percent permanent impairment of each upper extremity. He noted 

April 23, 2012 as the date of maximum medical improvement (MMI). 

 

3 Docket No. 16-0016 (issued August 21, 2017); Order Dismissing Appeal, Docket No. 17-1659 (issued 

March 8, 2018).

4 Appellant has two previously accepted claims. Under OWCP File No. xxxxxx542, she filed a Form CA-2 on 

May 12, 2006 alleging that she sustained neck, upper back, and shoulder pain due to factors of her federal employment. 

Appellant stopped work on May 2, 2006 and returned to work in a full-time, limited-duty capacity on June 1, 2007. 

OWCP accepted her claim for neck strain, thoracic strain, and bilateral shoulder strain. Under OWCP File 

No. xxxxxx253, appellant filed a traumatic injury claim (Form CA-1) alleging that on September 21, 2010 she injured 

her back when she slid off a sliding scale while in the performance of duty. She stopped work on October 4, 2010. 

OWCP accepted that claim for thoracic strains and paid appellant wage-loss compensation on the supplemental rolls

from November 6, 2010 to March 22, 2013. OWCP File Nos. xxxxxx542, xxxxxx253, and xxxxxx084 have been 

administratively combined by OWCP with the latter serving as the master file. 

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

In a December 6, 2012 report, Dr. Ellen Pichey, Board-certified in occupational medicine 

and an OWCP district medical adviser (DMA), explained that, although Dr. Swartz provided an 

impairment rating based on ROM, the A.M.A., Guides made clear that the best method of rating 

was diagnosis-based impairment (DBI). Dr. Swartz determined that appellant had two percent 

permanent impairment of each upper extremity for her bilateral medial and lateral epicondylitis 

conditions pursuant to Table 15-4, page 399 and four percent permanent impairment of each upper 

extremity for bilateral cubital and carpal tunnel syndrome pursuant to Table 15-23, page 449. The 

DMA concluded that she had a combined total of six percent permanent impairment of each upper 

extremity and noted a date of MMI of May 8, 2012. 

By decision dated May 17, 2013, OWCP granted appellant a schedule award for six percent 

permanent impairment of each upper extremity. The award ran for 37.44 weeks from April 23, 

2012, the date of MMI as declared by Dr. Swartz, to January 10, 2013. OWCP noted that the 

schedule award was based on the December 6, 2012 DMA report. 

On August 25, 2014 appellant filed a claim for an increased schedule award (Form CA-7). 

In a development letter dated September 8, 2014, OWCP advised appellant of the type of 

evidence needed to establish her claim for an increased schedule award utilizing the appropriate 

portions of the sixth edition of the A.M.A., Guides. It afforded her 30 days to submit the necessary 

evidence. No response was received by OWCP.

By decision dated December 3, 2014, OWCP denied appellant’s claim for an increased 

schedule award. It found that she had not submitted medical evidence demonstrating greater than 

the six percent permanent impairment for each upper extremity previously awarded. 

On December 10, 2014 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

May 20, 2015. 

Appellant submitted a September 17, 2014 report by Dr. Michael E. Hebrard, Boardcertified in physical medicine and rehabilitation. Dr. Hebrard noted that she accepted conditions 

of bilateral medial epicondylitis and lateral epicondylitis and indicated that she had reached MMI 

as of September 17, 2014. He referenced Table 15-4, page 399 and determined that appellant had 

two percent permanent impairment of each upper extremity due to the diagnosis of lateral or medial 

epicondylitis. 

By decision dated July 24, 2015, an OWCP hearing representative affirmed the 

December 3, 2014 schedule award decision.6 

Appellant timely filed an appeal to the Board. By decision dated August 21, 2017, the 

Board set aside OWCP’s July 24, 2015 decision.

7

 The Board found that OWCP had inconsistently 

 

6 Following the July 24, 2015 decision, OWCP continued to develop the schedule award claim and referred 

appellant to a DMA. In an August 3, 2015 report, the DMA reviewed Dr. Hebrard’s impairment evaluation and agreed 

that she had two percent permanent impairment of each upper extremity in accordance with the A.M.A., Guides due 

to her accepted bilateral medial and lateral epicondylitis condition. 

7 Docket No. 16-0016 (issued August 21, 2017).
4

applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the ROM or DBI 

method in assessing the extent of permanent impairment. It remanded the case for OWCP to issue 

a de novo decision following development of a consistent method for calculating permanent 

impairment of the upper extremity. 

On remand OWCP referred appellant, along with an updated SOAF and the medical record,

to Dr. Moshe M. Lewis, Board-certified in physical medicine and rehabilitation, for a secondopinion examination in order to determine whether she had sustained additional permanent 

impairment due to her accepted bilateral upper extremity conditions in accordance with the 

A.M.A., Guides. In an October 5, 2018 report, Dr. Lewis reviewed appellant’s history and noted 

that her claim was accepted for bilateral lateral and bilateral medial epicondylitis. He related that 

her complaints of continued right and left elbow pain travelling down the hands to her ulnar 

innervated digits. Upon examination of appellant’s elbows, Dr. Lewis observed tenderness to 

palpation over the medial epicondyle and lateral epicondyle and in the extensor tendons. He 

reported that ROM was full and pain-free. Neurovascular examination revealed 5/5 strength, intact 

sensation bilaterally, and positive deep tendon reflexes. Dr. Lewis diagnosed bilateral elbow 

lateral and medial epicondylitis. 

Dr. Lewis reported October 5, 2018 as the date appellant reached MMI. First, he utilized 

the DBI method to determine the degree of her permanent impairment. Utilizing Table 15-4, 

Elbow Regional Grid, page 399, of the A.M.A., Guides, Dr. Lewis indicated that a condition of 

left elbow lateral or medial epicondylitis equated to a class of diagnosis (CDX) of 1 with a default 

value of one percent upper extremity impairment.8 He assigned a grade modifier for functional 

history (GMFH) of 2 due to appellant’s history of pain with activities involving the use of her 

elbow.9 Dr. Lewis assigned a grade modifier for physical examination (GMPE) of 1 due to 

consistent palpatory findings without observed abnormalities.10 He indicated that there was no 

grade modifier for clinical studies (GMCS) as none were available. Applying the net adjustment 

formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Lewis calculated an adjustment 

of +1,11 which moved the default value up to two percent permanent impairment. 

For appellant’s right elbow lateral or medial epicondylitis, Dr. Lewis determined that she

was a class 1 impairment with a default value of one percent upper extremity impairment.12 He 

assigned a GMFH of 2,

13 a GMPE of 1,14 and a GMCS of zero, which resulted in a net adjustment 

of +1 and moved the default value up to two percent permanent impairment. 

 

8 A.M.A., Guides 399, Table 15-4.

9

Id. at 406, Table 15-7.

10 Id. at 408, Table 15-8.

11 Id. at 411.

12 Supra note 8.

13 Supra note 9.

14 Supra note 10.
5

Regarding the ROM method to determine the degree of appellant’s permanent impairment,

Dr. Lewis explained that, as she had full ROM of both elbows, no ROM impairment calculations 

were conducted. He provided a ROM worksheet for the right and left elbows and noted that the 

ROM was measured three times after warm up. Dr. Lewis reported the maximum ROM 

calculations were 135 degrees forward flexion and 180 degrees extension. He concluded that 

appellant had a total of four percent bilateral upper extremity impairment, which converted to two 

percent whole person impairment. 

OWCP forwarded the case record to a DMA on October 25, 2018. In an October 26, 2018 

report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a DMA, reviewed 

the case file and indicated that he agreed with Dr. Lewis’ impairment evaluation for two percent 

permanent impairment of each upper extremity due to a diagnosis of bilateral epicondylitis. 

Utilizing the DBI rating method, he referenced Table 15-4, page 399, of the A.M.A., Guides and 

assigned a CDX of 1 for a default impairment rating of one percent due to residual symptoms of 

lateral or medial epicondylitis. The DMA noted a GMFH of 2 and a GMPE of 1. After applying 

the net adjustment formula, he calculated that appellant had a final upper extremity impairment of 

two percent permanent impairment of each upper extremity. The DMA also referenced FECA 

Bulletin No. 17-0615 and related that the diagnosis of lateral or medial epicondylitis allowed for 

an alternative impairment evaluation under the ROM method. He related that, since Dr. Lewis 

documented normal ROM for appellant’s bilateral elbows, there was no calculable ROM 

impairment. The DMA reported a date of MMI of October 5, 2018 the date of Dr. Lewis’

examination. He concluded that appellant had a final permanent impairment of two percent for 

each upper extremity. The DMA explained that, since appellant had a previous schedule award 

based on the same condition, there was no additional award due. 

By decision dated November 6, 2018, OWCP denied appellant’s claim for an increased 

schedule award. It found that Dr. Lewis’ October 5, 2018 second-opinion report and the

October 26, 2018 DMA report of Dr. Katz, did not demonstrate greater than the six percent 

permanent impairment previously awarded for each upper extremity. 

On November 12, 2018 appellant, through counsel, requested a telephonic hearing before 

a representative of OWCP’s Branch of Hearings and Review. In a letter dated March 11, 2019, 

appellant, through counsel, requested that the telephonic hearing be changed to a review of the 

written record. 

By decision dated May 23, 2019, OWCP’s hearing representative affirmed the 

November 6, 2018 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA16 and its implementing regulations17 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 

 

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

16 5 U.S.C. § 8107.

17 20 C.F.R. § 10.404.
6

specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such 

adoption.18 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.19

In addressing impairment of the upper extremities, the sixth edition of the A.M.A., Guides 

requires identifying the impairment for the CDX, which is then adjusted by grade modifiers based 

on GMFH, GMPE, and GMCS.20 The net adjustment formula is (GMFH - CDX) + (GMPE -

CDX) + (GMCS - CDX).21 Evaluators are directed to provide reasons for their impairment 

choices, including the choices of diagnoses from regional grids and calculations of modifier 

scores.22

The A.M.A., Guides also provide that the ROM impairment is to be used as a stand-alone 

rating for upper extremity impairments when other grids direct its use or when no other diagnosisbased sections are applicable.23

 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.24 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.25

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.,] 

 

18 Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

20 A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

21 Id. at 411.

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

23 A.M.A., Guides 461.

24 Id. at 473.

25 Id. at 474.
7

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.)26

The Bulletin further advises:

“If the rating physician provided an assessment using the ROM method and the 

[A.M.A.,] Guides allows 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.”

27

A claimant may seek an increased schedule award if the evidence establishes that he or she 

sustained an increased impairment causally related to an employment injury.28 The medical 

evidence must include a detailed description of the permanent impairment.29

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish more than six 

percent permanent impairment of each upper extremity, for which she previously received a 

schedule award.

On remand from the Board’s August 21, 2017 decision, OWCP referred appellant’s 

schedule award claim to Dr. Lewis for a second opinion examination and to provide a permanent 

impairment of her upper extremities in accordance with the A.M.A., Guides and FECA Bulletin 

No. 17-06. In an October 5, 2018 report, Dr. Lewis reviewed her history and conducted an 

examination. He provided a ROM worksheet, which indicated that he performed ROM testing 

three times after warm-up and found that ROM of appellant’s elbows was full. Dr. Lewis reported 

a diagnosis of bilateral elbow lateral and medial epicondylitis. First, he utilized Table 15-4, Elbow 

Regional Grid, of the sixth edition of the A.M.A., Guides and determined that appellant had two 

percent permanent impairment of each upper extremity for the diagnosis of lateral or medial 

epicondylitis. Regarding the ROM methodology, Dr. Lewis explained that as she had full ROM

of both left and right elbows, no ROM impairment calculations were conducted. He concluded 

that appellant had two permanent impairment for each upper extremity. Dr. Lewis noted that she

had reached MMI on October 5, 2018. 

In accordance with its procedures, following the second opinion evaluation, OWCP 

properly referred the evidence of record to a DMA, Dr. Katz, for review. On October 26, 2018 

the DMA reviewed the medical evidence of record, including the October 5, 2018 report of

Dr. Lewis, and concluded that the rating provided by Dr. Lewis for two percent permanent 

impairment of each upper extremity was appropriate. Utilizing Table 15-4, page 399, of the 

A.M.A., Guides, Dr. Lewis assigned a class 1 CDX for left elbow lateral or medial epicondylitis, 

 

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

27 Id. 

28 See Rose V. Ford, 55 ECAB 449 (2004).

29 See Vanessa Young, 55 ECAB 575 (2004).
8

which equated with a default value of one percent upper extremity impairment. He found GMFH 

of 2 and GMPE of 1. There was no GMCS provided. After applying the net adjustment formula 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), the DMA calculated an adjustment of +1, 

which moved the default value up to two percent permanent impairment. For appellant’s right 

elbow, he utilized Table 15-4 and assigned the same class 1 value for lateral or medial epicondylitis 

and grade modifiers and concluded that she had two percent permanent impairment of the right 

upper extremity. The DMA also referenced FECA Bulletin No. 17-06 and explained that, since

Dr. Lewis documented normal ROM for her bilateral elbows, there was no calculable ROM 

impairment. He noted a date of MMI of October 5, 2018. 

The Board finds that the DMA correctly applied the appropriate tables and grading 

schedules of the A.M.A., Guides and FECA Bulletin No. 17-06 to Dr. Lewis’ physical examination 

findings.30 First, he calculated permanent impairment based on DBI and determined that appellant 

had two percent permanent impairment of each upper extremity due to a diagnosis of lateral or 

medial epicondylitis. The DMA’s calculations were in accordance with the rating provided by the 

October 5, 2018 second opinion report of Dr. Lewis. Second, he indicated that, since Dr. Lewis

found full ROM findings during his October 5, 2018 evaluation, appellant had no ratable 

impairment based on the ROM rating method. Both the DMA and Dr. Lewis determined that 

appellant had two percent permanent impairment of each upper extremity. Accordingly, OWCP 

properly found that she was not entitled to greater than the six percent permanent impairment of 

each upper extremity previously awarded.31 

On appeal, counsel argues that the May 23, 2019 OWCP decision was contrary to law and 

fact. As explained above, there is no medical evidence of record utilizing the appropriate tables 

of the sixth edition of the A.M.A., Guides demonstrating a greater percentage of permanent 

impairment of each upper extremity.32 Accordingly, appellant has not met her burden of proof to 

establish her increased schedule award claim.

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 six 

percent permanent impairment of each upper extremity, for which she previously received a 

schedule award.

 

30 See J.T., Docket No. 18-1757 (issued April 19, 2019).

31 See L.T., Docket No. 18-1031 (issued March 5, 2019).

32 See C.S., Docket No. 18-0920 (issued September 23, 2019).
9

ORDER

IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: November 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