United States Department of Labor

Employees’ Compensation Appeals Board

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C.R., Appellant

and

SOCIAL SECURITY ADMINISTRATION, 

OFFICE OF THE CHIEF ADMINISTRATIVE

LAW JUDGE, Tampa, FL, Employer

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Docket No. 21-0559

Issued: July 17, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On February 26, 2021 appellant, through counsel, filed a timely appeal from a January 19, 

2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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 Board notes that,following the January 19, 2021 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.
2

Federal Employees’ Compensation Act3(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 greater than four 

percent permanent impairment of her right upper extremity, and one percent permanent 

impairment of her left upper extremity, for which she previously received schedule award

compensation.

FACTUAL HISTORY

On July 3, 2017 appellant, then a 59-year-old legal assistant, filed an occupational disease 

claim (Form CA-2) alleging that she developed cervical disc herniation with neuritis, right elbow 

epicondylitis, and bilateral carpal tunnel syndrome causally related to factors of her federal 

employment, including the use of two computer monitors and repetitive work tasks of lifting claim 

files, and moving carts full of files. She first became aware of her conditions on January 28, 2015 

and attributed the conditions to factors of her federal employment on May 19, 2017. Appellant 

stopped work on September 22, 2015 and receiveddisability retirement. On May 20, 2019 OWCP

accepted her claim for bilateral carpal tunnel syndrome and right elbow lateral epicondylitis.

On July 29, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In an August 8, 2019 development letter, OWCP advised appellant of the deficiencies in 

her schedule award claim, and requested medical evidence supporting permanent impairment. It

afforded her 30 days to respond. No response was received.

By decision dated October 1, 2019, OWCP denied appellant’s claim for a schedule award, 

finding that there was no medical evidence to establish permanent impairment.

Thereafter, OWCP received a September 13, 2019 report, wherein Dr. Sami E. Moufawad, 

a physician Board-certified in pain medicine,reviewed the medical records, and electrodiagnostic 

test results, and opined that appellant had attained maximum medical improvement. He provided 

an impairment rating in accordance with sixth edition of the American Medical Association’s 

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

4

 Dr. Moufawad diagnosed 

bilateral carpal tunnel syndrome and right lateral epicondylitis. On physical examination, he found 

tenderness on palpation and crepitance of the tendons on the dorsum of the hands bilaterally. 

Dr. Moufawad found no loss of range of motion (ROM) in the wrists, bilaterally. He provided 

three measurements for each of the right elbow movements and found forward flexion of 145

degrees, 150 degrees, and 150 degrees; extension of -13 degrees, -10 degrees, and -10 degrees; 

pronation of 65 degrees, 70 degrees and 70 degrees; and supination of 55 degrees, 60 degrees, and 

60 degrees. Appellant’s sensory examination showed decreased perception to light touch over the 

3

5 U.S.C. § 8101 et seq.

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

ulnar aspect of the right wrist and the right little finger with two-point discrimination at eight

millimeters. She exhibited slight decrease of sensation on the radial aspect of the right upper 

extremity from the forearm and elbow to the arm. Dr. Moufawad reviewed appellant’s June 9, 

2017 electromyogram and nerve conduction velocity (EMG/NCV) study and found that it 

demonstrated mild-to-moderate right ulnar neuropathy across the elbow. The median nerve 

sensory and motor examination was normal.

Utilizing the A.M.A., Guides, Table 15-33, page 474, for the right elbow, Dr. Moufawad 

found that appellant had two percent permanent impairment of her right elbow due to loss of ROM

in extension, one percent for loss of ROM in pronation, and one percent for loss of ROM in 

supination. He found that her right upper extremity grade modifier for physical examination 

(GMPE) was 1 and her impairment due to loss of ROM was four percent permanent impairment. 

Dr. Moufawad further applied the diagnosis-based impairment (DBI) methodology under 

the A.M.A., Guides to his findings regarding appellant’s accepted right elbow condition. Using

Table 15-5, page 399, he identified the class of diagnosis (CDX) as Class 1 epicondylitis, status

post release of flexor or extensor origins with residual symptoms, which yielded a default value of 

five5 percent impairment of the right upper extremity. Dr. Moufawad assigned a grade modifier 

for functional history (GMFH) of 3, based on a QuickDASH score of 70. He opined that a GMPE 

was not considered because it was used for determining the class. Dr. Moufawad found that the 

grade modifier for clinical studies (GMCS) was 1 based on the magnetic resonance imaging (MRI) 

scan findings. He utilized the net adjustment formula (GMFH – CDX) + (GMPE – CDX) = (3 –

1) + (1 – 1) = 2, which resulted in a grade E or seven percent permanent impairment of the upper 

right extremity due to lateral epicondylitis. Dr. Moufawad noted that the DBI method resulted in 

the higher impairment rating when compared to the ROM method.

Dr. Moufawad further found that Table 15-23, page 449 of the A.M.A., Guides could not 

be used to evaluate appellant’s bilateral carpal tunnel syndrome because of the negative 

EMG/NCV study findings regarding the medial nerves. He utilized the CDX as Class 1 wrist 

sprain, found in Table 15-3, page 395 of the A.M.A., Guides. Dr. Moufawad applied a GMFH of 

3, a GMPE of 1 due to tenderness on palpation of the wrist tendons, and a GMCS of 0, due to the 

normal MRI scan. Applying the net adjustment formula, he reached (0-1) or -1 which resulted in 

one percent permanent impairment of each upper extremity due to the accepted condition of carpal 

tunnel syndrome. Dr. Moufawad combined appellant’s right upper extremity impairments and 

found eight percent permanent impairment. He further found one percent permanent impairment 

of the left upper extremity.

On October 7, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. 

Following a preliminary review, by decision dated January 10, 2020, OWCP’s hearing 

representative vacated the October 1, 2019 decision and remanded the case for OWCP to refer

Dr. Moufawad’s September 13, 2019 report to a district medical adviser (DMA) for review.

5

Id. at 399, provides that the default value for lateral epicondylitis without surgery was one percent impairment.
4

On February 22, 2020 Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed Dr. Moufawad’s September 13, 2019 report and 

disagreed, in part, with his application of the A.M.A., Guides. The DMA found that carpal tunnel 

syndrome, an entrapment neuropathy, was rated in accordance with Table 15-23, page 449 of the 

A.M.A., Guides which required positive electrodiagnostic studies. As appellant did not have 

positive electrodiagnostic studies, she had no ratable impairment for carpal tunnel syndrome. The 

DMA noted that if test results excluded this condition from rating using the entrapment neuropathy

method, then page 433 of the A.M.A., Guides provides that rating may be performed using the 

appropriate regional DBI class for nonspecific hand, wrist, or elbow pain. He further noted that 

the Table 15-3, page 395 of the A.M.A., Guides, provided a CDX of 1 with a default value of 1, 

for wrist pain. The DMA noted that, as appellant’s GMFH differed by 2 or more grades from the

GMPE or GMCS, it was assumed to be unreliable and excluded from the grading process, in 

accordance with page 406 of the A.M.A., Guides. He applied the net adjustment formula and 

found one percent permanent impairment of each upper extremity for carpal tunnel syndrome rated 

under the diagnosis of nonspecific wrist pain. The DMA further noted that Dr. Moufawad had 

found no loss of ROM in appellant’s wrists, and that the DBI method was the more appropriate

rating methodology for her bilateral carpal tunnel syndrome. However, he determined that this 

rating was only applicable to her left upper extremity. The DMA found that, page 389 of the 

A.M.A., Guides provides that if more than one diagnosis in a regional grid could be used, as in 

appellant’s right upper extremity, the highest impairment rating should be used, and that painful 

disorders in a regional grid are rated only once.

The DMA found that lateral epicondylitis, with history of painful injury, residual 

symptoms without consistent objective findings was a CDX of 1 with a default value of one, and 

that Dr. Moufawad incorrectly used the default value of 5 for lateral epicondylitis status

postsurgical release of the flexor or extensor origins with residual symptoms. He noted that 

appellant had never had surgery, that there were no documented subjective findings or physical 

signs of lateral epicondylitis, and that consequently the elbow regional grid diagnosis for lateral 

epicondylitis without consistent objective findings was more appropriate. In applying the net 

adjustment formula, the DMA reached a net adjustment of zero, or one percent permanent 

impairment for right lateral epicondylitis using the DBI method.

The DMA applied Table 15-33, page 474, to the loss of ROM figures provided by

Dr. Moufawad for appellant’s right elbow and agreed with his assessment of four percent 

permanent impairment of the right upper extremity using the ROM method. He determined that 

this provided her with a greater impairment than the DBI method and utilized four percent 

permanent impairment of the right upper extremity to reach her permanent impairment for 

schedule award purposes.

By decision dated March 5, 2020, OWCP granted appellant a schedule award for one 

percent permanent impairment of the left upper extremity (left arm), and four percent permanent 

impairment of the right upper extremity (right arm). The schedule award ran for a total of 15.6 

weeks during the period September 13 to December 31, 2019.

On March 11, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review.
5

In an addendum dated May 8, 2020, Dr. Moufawad concurred with the DMA’s finding of 

one percent of the left upper extremity. He further agreed that appellant had no impairment of the 

right upper extremity due to a wrist impairment, noting that he should have used the DBI for wrist 

pain instead of wrist strain. Dr. Moufawad, however, disagreed with the DMA’s calculation of 

the DBI for right lateral epicondylitis. He noted that appellant did not undergo a surgical release, 

but found that the April 17, 2017 right elbow MRI scan showed signals consistent with lateral 

epicondylitis and that she had mild elbow joint effusion. Dr. Moufawad opined that she had 

residual symptoms and limited ROM which rendered her impairment closer to that of five percent 

for postsurgical lateral epicondylitis. He concluded that, on reexamination,appellant’s impairment 

rating should be five percent permanent impairment of the right upper extremity and one percent 

permanent impairment of the left upper extremity.

A telephonic hearing was held on June 23, 2020. By decision dated July 6, 2020, OWCP’s 

hearing representative vacated the March 5, 2020 OWCP decision, and remanded the case for 

further review by the DMA of Dr. Moufawad’s May 8, 2020 report.

In a July 27, 2020 report, the DMA agreed with Dr. Moufawad that appellant had clinical 

and MRI scan findings consistent with lateral epicondylitis, but asserted that this yielded a one 

percent default impairment according to the A.M.A., Guides, Table 15-4, page 399. He opined 

that the A.M.A., Guides unequivocally asserted that the higher default impairment rating of five 

percent applies only status postsurgical release of the flexor or extensor origins with residual 

symptoms and that therefore her impairment rating under the DBI remained at one percent.

By decision dated August 6, 2020, OWCPdenied appellant’s claim for additional schedule 

award compensation. 

On August 14, 2020 appellant, through counsel, requested a telephonic hearing before a 

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

November 10, 2020. 

By decision dated January 19, 2021, OWCP’s hearing representative affirmed the 

August 6, 2020 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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. OWCP 

evaluates the degree of permanent impairment according to the standards set forth in the specified 

6

Supra note 3.

7

20 C.F.R. § 10.404.
6

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): A Contemporary Model of Disablement10 Under the sixth edition, the evaluator 

identifies the impairment CDX, which is then adjusted by a GMFH, GMPE, and/or 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

FECA Bulletin No. 17-06 provides guidance in applying ROM or DBI impairment 

methodologies in rating permanent impairment of the upper extremities. 14 Regarding the 

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.,] 

Guidesidentify 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.)15

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 Awards and Permanent Disability Claims, 

Chapter 2.808.5a (March 2017); see also 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.

11 Id. at 494-531.

12 Id. at 411.

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

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

15 Id.
7

The Bulletin further provides:

“If the medical evidence of record is [in]sufficient for the DMA to render a rating 

on ROM where allowed, the DMA should advise as to the medical evidence 

necessary to complete the rating. However, the DMA should still render an 

impairment rating using the DBI method, if possible, given the available 

evidence.”

16

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.17

ANALYSIS

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

four percent permanent impairment of her right upper extremity, or one percent permanent 

impairment of her left upper extremity, for which she previously received schedule award 

compensation.

In support of her claim, appellant submitted September 13, 2019 and May 8, 2020 reports 

from Dr. Moufawad who found four percent permanent impairment due to loss of ROM of the 

right elbow. Dr. Moufawad also found that the most appropriate CDX for rating purposes was 

Class 1 epicondylitis status post release of flexor or extensor origins with residual symptoms, 

which yielded a default value of five percent impairment of the right upper extremity.18 In his 

May 8, 2020 addendum, he reexamined the A.M.A., Guides, and determined that appellant’s 

impairment rating should be five percent permanent impairment of the right upper extremity19 and 

one percent permanent impairment of the left upper extremity using the DBI methodology.

20

OWCP properly determined that appellant had four percent permanent impairment of her 

right upper extremity, and one percent permanent impairment of her left upper extremity based on 

the February 22 and July 27, 2020 reports of Dr. Slutsky, the DMA, who interpreted the 

September 13, 2019 clinical findings of Dr. Moufawad. Dr. Slutsky properly applied the standards 

of the sixth edition of the A.M.A., Guides to the examination findings of record, and correctly 

utilized the DBI methodology for her left upper extremity. Dr. Moufawad, in his May 8, 2020 

addendum, found that, under Table 15-3, page 395, herleft upper extremity impairment could only 

be evaluated as wrist pain which was a Class 1 impairment with a default value of 1, as there were 

no electrodiagnostic studies supporting her diagnosis of carpal tunnel syndrome and no loss of 

16 Id.; R.L., Docket No. 19-1793 (issued August 7, 2020).

17 See supra note 8 at Chapter 2.808.6f (March 2017).

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

19 Id.

20 Supra note 18 at 395, Table 15-3.
8

ROM. He applied the net adjustment formula and determined that appellant had no more than one 

percent permanent impairment of her left upper extremity.

Dr. Slutsky also agreed with Dr. Moufawad’s findings, including the three measurements 

of each of the right elbow movements necessary to reach the ROM method of calculating 

appellant’s permanent impairment due to right lateral epicondylitis, and agreed with his rating of

four percent permanent impairment due to loss of ROM of the right elbow. However, he

demonstrated that, under the DBI, appellant had only one percent permanent impairment due to 

the lateral epicondylitis. Dr. Slutsky noted that the higher percentage utilized by Dr. Moufawad

to reach five percent, was only appropriate in situations where the claimant had undergone surgical 

release of the flexor or extensor origins as specifically outlined by the A.M.A., Guides, Table 25-

4, page 399. While he agreed with Dr. Moufawad’s finding that appellant had continued 

symptoms of lateral epicondylitis, he found that these symptoms could not be equivalent to 

surgery, as proposed by Dr. Moufawad. As such, there was no medical evidence properly applying 

the A.M.A., Guides, which resulted in more than four percent permanent impairment of the right 

upper extremity, or one percent permanent impairment of the left upper extremity.

As the DMA provided a rationalized opinion properly applying the appropriate standards 

of the sixth edition of the A.M.A., Guides, the Board finds that his opinion constitutes the weight 

of the medical evidence.

21

 Thus, appellant has not met her burden of proof to establish greater 

impairment than that previously awarded.

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 her burden of proof to establish greater than 

four percent permanent impairment of her right upper extremity and one percent permanent 

impairment of her left upper extremity, for which she previously received schedule award 

compensation.

21 K.A., Docket No. 20-1463 (issued March 16, 2021); O.F., Docket No. 19-0986 (issued February 12, 2020); M.C., 

Docket No. 15-1757 (issued March 17, 2016) (the only medical evidence that demonstrated a proper application of 

the A.M.A., Guides was the report of the DMA).
9

ORDER

IT IS HEREBY ORDERED THAT the January 19, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 17, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy 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