United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

P.U., Appellant

and

U.S. POSTAL SERVICE, NATIONAL 

DISTRIBUTION CENTER, Jersey City, NJ, 

Employer

__________________________________________

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Docket No. 21-0382

Issued: July 13, 2021

Appearances: Case Submitted on the Record

Michael D. Overman, 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 January 19, 2021 appellant, through counsel, filed a timely appeal from an August 13, 

2020 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 greater than seven 

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

schedule award.

FACTUAL HISTORY

On December 31, 2016 appellant, then a 59-year-old tractor trailer operator, filed a 

traumatic injury claim (Form CA-1) alleging that on December 29, 2016 he injured his back and 

the front of his right shoulder while in the performance of duty. OWCP accepted the claim for a 

tear of the right rotator cuff. Appellant stopped work on December 31, 2016 and resumed his 

regular employment on March 1, 2017.

On May 19, 2017 Dr. Jeffrey Augustin, a Board-certified orthopedic surgeon, performed 

an OWCP-authorized arthroscopic right rotator cuff repair, labral repair, and subacromial 

decompression. On June 3, 2017 appellant underwent a right shoulder irrigation and debridement 

due to an infection. OWCP accepted that he had sustained a recurrence of disability beginning 

May 19, 2017. Appellant returned to his regular employment without restrictions on 

November 1, 2017. 

In a report dated March 29, 2018, updated on May 7, 2018, Dr. Munir Ahmed, a Boardcertified internist, discussed appellant’s history of a December 29, 2016 injury to his right shoulder 

and a prior injury to his right biceps surgically treated in 1996. He noted that appellant had daily 

symptoms of right shoulder and arm pain with stiffness that fluctuated in intensity and weakness 

of the right upper extremity. Dr. Ahmed found a QuickDASH score of 65 for the right side. On 

examination, he measured range of motion (ROM) of the right shoulder three times and found 

forward elevation of 140 degrees, abduction of 140 degrees, adduction of 60 degrees, internal 

rotation of 90 degrees, and external rotation of 90 degrees. Dr. Ahmed found positive Hawkins 

impingement and tenderness of the anterior cuff and bicipital groove of the right shoulder, but no 

joint effusion, tenderness, or instability. He opined that appellant had six percent permanent 

impairment of the right shoulder for loss of ROM according to Table 15-34 on page 475 of the 

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

Impairment (A.M.A., Guides), which he increased to seven percent based on the QuickDASH 

score.

3

 Using the diagnosis-based impairment (DBI) rating method, Dr. Ahmed identified the 

class of diagnosis (CDX) according to Table 15-5 on page 403 as class 1 full thickness rotator cuff 

tear with residual loss, which yielded a default value of five percent. He applied a grade modifier 

for functional history (GMFH) of three based on appellant’s QuickDASH score, a grade modifier 

for physical examination (GMPE) of two, and a grade modifier for clinical studies (GMCS) of

four, for a net adjustment of six and a right upper extremity impairment of seven percent.

Dr. Ahmed advised that he would use the DBI rating method as it yielded the same impairment as 

using the ROM impairment rating method.

 

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

For the right elbow, Dr. Ahmed measured ROM of the right elbow as 0 to 145 degrees 

flexion and extension, pronation of 80 degrees, and supination of 80 degrees.4 He found no joint 

effusion, tenderness, or instability and a well-healed scar over the biceps from the surgery.

Dr. Ahmed identified the CDX as a right distal biceps tendon rupture using Table 15-4 on page 

399 of the A.M.A., Guides, which yielded a default value of five percent. He found a GMFH was 

not applicable and applied a GMPE of two and a GMCS of two, for a net adjustment of two, 

yielding seven percent permanent impairment of the right upper extremity. Dr. Ahmed combined 

the impairment ratings for the right shoulder and the right elbow to find 14 percent permanent 

impairment of the right upper extremity.

On June 20, 2018 appellant filed a schedule award claim (Form CA-7).

On August 15, 2018 Dr. David H. Garelick, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), concurred with Dr. Ahmed’s finding of seven percent 

permanent impairment of the right upper extremity due a full-thickness rotator cuff tear using 

Table 15-5 on page 403 of the A.M.A., Guides. He noted that ROM of the right elbow was normal 

and that Dr. Augustin, in a prior report, had measured normal ROM findings of the right shoulder 

except for internal rotation, which Dr. Ahmed also found was normal. Dr. Garelick determined 

that the DBI method yielded a higher award for rating appellant’s shoulder impairment and found 

seven percent permanent impairment of the right upper extremity. He asserted that appellant had 

reached maximum medical improvement (MMI) on March 29, 2018.

By decision dated November 19, 2018, OWCP granted appellant a schedule award for 

seven percent permanent impairment of the right upper extremity. The period of the award ran for 

21.84 weeks from March 28 to August 28, 2018.

On November 29, 2018 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was held on April 11, 2019. 

By decision dated May 21, 2019, OWCP’s hearing representative vacated the 

November 19, 2018 decision. She instructed OWCP to request that the DMA address

Dr. Ahmed’s finding that appellant had seven percent impairment due to his right distal biceps 

tendon rupture.

On May 30, 2019 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a 

DMA, advised that appellant had no residual objective findings of his biceps tendon rupture and,

thus, no elbow impairment according to Table 15-4 on page 399 of the A.M.A., Guides.

OWCP, on June 11, 2019, requested that Dr. Ahmed review and discuss the DMA’s 

May 30, 2019 report and to submit a response within 30 days. No response was received within 

the time allotted.

 

4 Dr. Ahmed’s ROM measurements for appellant’s right elbow yielded normal findings. Id. at Table 15-33, page 

474.
4

By decision dated July 15, 2019, OWCP found that appellant had no more than the 

previously awarded seven percent permanent impairment of the right upper extremity.

On July 23, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

In a report dated July 24, 2019, Dr. Ahmed asserted that appellant had complaints of daily 

right arm pain, weakness, and stiffness. He indicated that the physical findings consisted of the 

scar from the biceps repair. Dr. Ahmed again identified the CDX as a right distal biceps tendon 

rupture, which a default value of five percent. He found that the GMPE was one due to minimal 

physical examination findings and that a GMCS was not applicable as it was used to identify the 

CDX. Dr. Ahmed opined that appellant had 5 percent permanent impairment due to appellant’s

right distal biceps tendon rupture, which he combined with the 7 percent impairment due to 

appellant’s rotator cuff tear to find 12 percent permanent impairment of the right upper extremity.

A telephonic hearing was held on November 8, 2019. 

By decision dated January 17, 2020, OWCP’s hearing representative vacated the July 15, 

2019 decision. He remanded the case for OWCP to refer Dr. Ahmed’s July 24, 2019 report to a 

DMA for review.

On January 31, 2020 Dr. Katz again concurred with Dr. Ahmed’s finding of seven percent 

permanent impairment due to a right rotator cuff tear. He opined that appellant had no impairment 

due to appellant’s distal biceps tendon rupture, noting that Dr. Ahmed had found no tenderness, 

atrophy, reduced motion, or loss of strength. 

On February 25, 2020 OWCP requested that Dr. Ahmed review Dr. Katz’ January 31, 

2020 report and provide an addendum to his July 24, 2019 report within 30 days. No response 

was received within the time allotted.

By decision dated April 6, 2020, OWCP found that appellant had no greater than the 

previously awarded seven percent permanent impairment of the right upper extremity.

On April 18, 2020 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

In an addendum report dated May 1, 2020, Dr. Ahmed again noted that appellant 

complained of “some residual intermittent right arm pain as well as weakness” and also had a scar 

on the right arm. He again opined that appellant had 5 percent permanent impairment of the right 

upper extremity due to appellant’s biceps tendon rupture, for a total right upper extremity 

impairment of 12 percent. 

A telephonic hearing was held on July 9, 2020. Counsel contended that a conflict existed 

between Dr. Katz and Dr. Ahmed regarding whether appellant had a ratable permanent impairment 

of the right upper extremity due to his biceps tendon rupture. 

On August 13, 2020 OWCP’s hearing representative affirmed the April 6, 2020 decision. 
5

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,

6

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 

specified edition of the A.M.A., Guides, published in 2009.7 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.8

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).9 Under the sixth edition, the evaluator identifies the impairment class of 

diagnosis (CDX), which is then adjusted by GMFH, GMPE, and GMCS.10 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to 

provide reasons for their impairment choices, including the choices of diagnoses from regional 

grids and calculations of modifier scores.12

OWCP s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to a 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.13

 

5 Supra note 2.

6 20 C.F.R. § 10.404.

7 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 Awards and Permanent Disability Claims, 

Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).

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

9 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.

10 Id. at 494-531.

11 Id. 411.

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

13 See supra note 7 at Chapter 2.808.6(f) (March 2017).
6

ANALYSIS

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

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

a schedule award.

In support of his schedule award claim, appellant submitted a report from Dr. Ahmed dated 

March 29, 2018 and updated May 7, 2018. Dr. Ahmed noted that appellant had undergone surgery 

in 1996 to repair a torn right biceps tendon and had injured his right shoulder on 

December 29, 2016. He found a QuickDASH score of 65 on the right side. For the right shoulder,

Dr. Ahmed found positive findings of Hawkins impingement and tenderness of the bicipital groove 

and anterior cuff. He measured ROM of the right shoulder and found 140 degrees flexion yielded 

three percent impairment and 140 degrees abduction yielded three percent impairment, for a total 

impairment due to ROM of six percent using table 15-34 on page 475 of the A.M.A., Guides.

14

 

Dr. Ahmed adjusted the ROM impairment rating based on the QuickDASH score to find seven 

percent permanent impairment of the right shoulder due to reduced motion.

Using the DBI method, Dr. Ahmed identified the CDX for the right shoulder as a class 1 

full thickness rotator cuff tear with residual loss, which yielded a default value of five percent 

under Table 15-5 on page 403 of the A.M.A., Guides. He applied a GMFH of three, a GMPE of 

two, and a GMCS of three, for a net adjustment of six and a right upper extremity impairment of 

seven percent.15 Dr. Ahmed advised that he would use the DBI impairment rating method as it 

had yielded the same result as the ROM impairment rating method.

For the right elbow, Dr. Ahmed measured normal ROM and found no joint effusion, 

tenderness, or instability and a well-healed scar over the biceps from the surgery.16 Using Table 

15-4 on page 399, he identified the CDX as a right distal biceps tendon rupture, which yielded a 

default value of five percent. Dr. Ahmed applied grade modifiers to find seven percent permanent 

impairment of the right upper extremity due to appellant’s biceps tendon rupture. He combined 

the impairment rating for the right shoulder and the impairment rating for the right arm to find 14 

percent permanent impairment of the right upper extremity.

On August 15, 2018 Dr. Garelick, a DMA, reviewed Dr. Ahmed’s report and concurred 

that appellant had seven percent permanent impairment of the right upper extremity due to his fullthickness rotator cuff tear according to Table 15-5. He found that the ROM impairment method 

yielded a lower result. The Board finds that Dr. Garelick properly applied the provisions of the 

A.M.A., Guides in finding that appellant had seven percent permanent impairment due to his right 

rotator cuff tear.

17

 Dr. Ahmed and Dr. Garelick further properly explained that appellant’s right 

 

14 The remaining ROM measurements for the elbow yielded no impairment rating pursuant to Table 15-34.

15 Utilizing the net adjustment formula discussed above, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or 

(3-1) + (2-1) + (4-1) = 6, yielded an adjustment to the highest value provided for a class 1 impairment, seven percent.

16 Dr. Ahmed’s ROM measurements for appellant’s right elbow yielded normal findings. Id. at Table 15-33, page 

474.

17 See T.D., Docket No. 20-0972 (issued January 28, 2021).
7

shoulder impairment should be rated based on DBI methodology as it yielded the same or higher 

permanent impairment than using the ROM methodology.18 

In a report dated May 30, 2019, Dr. Katz, a DMA, advised that appellant had no 

impairment due to his biceps tendon rupture based on the lack of objective findings.

In a July 24, 2019 report, Dr. Ahmed indicated that appellant had a healed scar from his 

biceps repair as a physical finding and complaints of pain, weakness, and stiffness in the right arm. 

Using the CDX of a distal bicep tendon rupture, with a default value of five percent, he found a 

GMPE of one based on the minimal findings and that a GMCS was inapplicable, for a total 

permanent impairment due to the biceps tendon rupture of 5 percent, which he combined with the 

7 percent impairment due to his rotator cuff tear to find 12 percent permanent impairment of the 

right upper extremity.

On January 31, 2020 Dr. Katz reviewed Dr. Ahmed’s report and opined that appellant had 

no impairment due to appellant’s biceps tendon rupture as the examination findings had revealed 

no tenderness, atrophy, loss of motion, or reduced strength. The Board finds that Dr. Katz properly 

determined that appellant had no impairment of the right elbow. Table 15-4 on page 399 of the 

A.M.A., Guides provides that a distal biceps tendon rupture with no residual findings, either with 

or without surgical treatment, yields a zero percent permanent impairment rating. The A.M.A., 

Guides further provides, “Subjective complaints without objective physical findings or significant 

clinical abnormalities are assigned class 0 and have usually no ratable impairment.”

19

 The Board,

thus, finds that Dr. Katz’ opinion represents the weight of the evidence as he properly applied the 

appropriate standards of the A.M.A., Guides and establishes that appellant had no ratable 

impairment of the right elbow.20

Dr. Ahmed provided an addendum report on May 1, 2020 again advising that appellant 

complained of pain and weakness of the right arm and had a scar on the right arm. He provided 

the same impairment rating. Dr. Ahmed’s findings and conclusions duplicated those from his 

July 24, 2019 report, which was reviewed by the DMA. There is no probative medical evidence 

in accordance with the provisions of the A.M.A., Guides demonstrating that appellant has greater 

than seven percent permanent impairment of the right upper extremity previously awarded.

21

On appeal counsel asserts that Dr. Ahmed properly applied the A.M.A., Guides in rating 

appellant’s elbow impairment. He contends that Dr. Ahmed’s opinion constitutes the weight of 

the evidence. As noted, however, Dr. Ahmed improperly applied the provision of the A.M.A., 

Guides, which requires objective residuals findings, in rating appellant’s impairment of the elbow.

 

18 FECA Bulletin No. 17-06 (May 8, 2017). See J.S., Docket No. 19-1567 (issued April 1, 2020); K.S., Docket No. 

19-1588 (issued March 10, 2020).

19 A.M.A., Guides 387.

20 See M.D., Docket No. 20-1459 (issued February 26, 2021).

21 See J.M., Docket No. 18-1334 (issued March 7, 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 his burden of proof to establish greater than 

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

a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the August 13, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 13, 2021

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