United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

K.W. , Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Portland, ME, Employer 

__________________________________________ 

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Docket No. 14-73 

Issued: May 20, 2014 

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 7, 2013 appellant, through his attorney, filed a timely appeal from an 

April 25, 2013 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. 

ISSUE 

The issue is whether appellant sustained more than 38 percent permanent impairment of 

the right lower extremity, for which he received a schedule award. 

On appeal, counsel asserts that OWCP should not have relied on the opinion of the 

impartial medical examiner as he allegedly failed to use a goniometer in assessing range of 

motion. He contends that OWCP should have relied on the opinion of appellant’s attending 

physician, who used a goniometer to measure ranges of motion. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

 OWCP accepted that on or before February 2, 2001 appellant, then a 43-year-old letter 

carrier, sustained an aggravation of osteoarthritis of the right hip. It later expanded the claim to 

include an aggravation of osteoarthritis of the right knee. On June 2, 2003 Dr. Brian J. McGrory, 

an attending Board-certified orthopedic surgeon, performed a primary uncemented total 

arthroplasty of the right hip, using the posterior approach. Appellant received wage-loss 

compensation on the daily rolls for work absences from June 2, 2003 until he returned to full 

duty in the fall. 

 On October 4, 2004 appellant filed a claim for recurrence of disability (Form CA-2a) 

related to a March 8, 2004 slip and fall with subsequent right knee pain. He asserted that he fell 

because of his right hip. In an October 19, 2004 letter, OWCP advised appellant of the 

additional evidence needed to determine if he were claiming a new injury or a recurrence of 

disability. As appellant did not submit additional evidence, OWCP denied the recurrence claim 

by decision dated December 6, 2004. 

On April 3, 2007 he filed a second claim for recurrence of disability for a March 5, 2007 

slip and fall on ice. In a March 16, 2007 report, Dr. Stephen J. Kelly, an attending Boardcertified orthopedic surgeon, noted appellant’s account of a slip and fall at work on March 5, 

2007, with subsequent right hip pain. Dr. McGrory restricted appellant to light duty through 

March 23, 2007, observing full, painless range of motion of the right hip as of March 30, 2007. 

By decision dated July 18, 2007, OWCP denied the claim due to a lack of medical evidence. 

 On September 24, 2010 appellant claimed a schedule award. He submitted a 

September 17, 2010 right leg impairment rating from Dr. Byron Hartunian, an attending Boardcertified orthopedic surgeon, utilizing the sixth edition of the American Medical Association, 

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

examination, appellant observed a normal gait and no neurologic impairment of either leg. He 

obtained the following ranges of motion for the right hip: 93 degrees flexion; 5 degrees 

extension; 35 degrees abduction; 10 degrees adduction; 5 degrees internal rotation; and 15 

degrees external rotation. Dr. Hartunian noted mild crepitus and medial joint line tenderness in 

the right knee. He reviewed February 8, 2010 x-rays that showed a well-seated total hip 

replacement, three millimeter medial joint space in the right knee. Dr. Hartunian diagnosed 

status post right total hip arthroplasty and degenerative right knee medial joint arthritis. He 

opined that appellant reached maximum medical improvement one year after the June 2, 2003 

arthroplasty. Dr. Hartunian explained that appellant’s degenerative arthritis continued to worsen, 

causing continued loss of range of motion, most significantly involving hip rotation. Under 

Table 16-4 of the A.M.A., Guides, the Hip Regional Grid, he found a class 4 diagnosis-based 

impairment (CDX) according to Table 16-242

 for moderate motion deficit. Dr. Hartunian 

assigned a grade 2 modifier for a moderate deficit according to the American Academy of 

Orthopedic Surgeons lower limb questionnaire showing difficulties with activities of daily living. 

He assessed a grade 4 modifier for clinical studies (GMCS) as there was a zero cartilage interval 

 2

 Table 16-24, page 549 of the sixth edition of the A.M.A., Guides is entitled “Hip Motion Impairments -- Lower 

Extremity Impairment.” 
3

in the right hip prior to surgery. The class 4 CDX added one point to each grade modifier 

according to pages 521 and 522 of the A.M.A., Guides. Dr. Hartunian applied the net adjustment 

formula of GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) to find a net adjustment of zero, 

“yielding a class 4, grade C impairment of 67 percent.” Regarding the right knee, he found a 

class 1 CDX for knee joint arthritis according to Table 16-3, the Knee Regional Grid, due to a 

three millimeter cartilage interval on standing x-ray. Dr. Hartunian noted a physical examination 

modifier (GMPE) of zero as there were no motion deficits or “palpatory findings.” He utilized 

the Net Adjustment Formula to find a -1 net adjustment, “yielding a class 1, grade B impairment 

of 6 percent.” Dr. Hartunian used the Combined Values Chart to calculate a total 69 percent 

impairment of the right lower extremity. 

 In an October 28, 2010 report, Dr. Craig Uejo, a Board-certified orthopedic surgeon and 

OWCP medical adviser, reviewed Dr. Hartunian’s impairment rating. He found that the 

objective clinical findings did not support more than 34 percent impairment of the right leg. 

Dr. Uejo opined that the ranges of motion obtained by Dr. Hartunian did not comport with earlier 

findings, particularly Dr. McGrory’s March 30, 2007 observation of full ranges of right hip 

motion. He explained that it was not medically probable that hip motion should drastically 

decrease within seven years of arthroplasty without a known cause. Dr. Uejo assigned a class 3 

CDX for a “fair result” right hip arthroplasty, with a default 37 percent impairment rating for the 

right leg, reduced by three points to 34 percent due to a grade 1 modifier. In a November 16, 

2010 supplemental report, he concurred with Dr. Hartunian’s assessment of six percent 

impairment of the right knee. Dr. Uejo combined the 6 percent impairment with 34 percent 

impairment for the right hip to equal a total 38 percent impairment of the right lower extremity. 

 By decision dated December 15, 2010, OWCP granted appellant a schedule award for 38 

percent impairment of the right leg. The 38 percent impairment rating, from the Combined 

Values Chart, combined 34 percent impairment for status post right hip arthroplasty with limited 

motion, and 6 percent impairment of the right knee. The award was based on appellant’s weekly 

pay rate of $805.65 as of June 2, 2003. The period of the award ran from June 2, 2004 to 

July 8, 2006. On January 11, 2011 appellant requested an oral hearing. He contended that 

Dr. Uejo’s calculations were confused. 

 In a March 23, 2011 decision, an OWCP hearing representative found that the case was 

not in posture for a decision due to a conflict of medical opinion between Dr. Uejo, for OWCP, 

and Dr. Hartunian, for appellant, regarding the appropriate percentage of impairment. To resolve 

the conflict, OWCP referred appellant, the medical record and a statement of accepted facts to 

Dr. David Markellos, a Board-certified orthopedic surgeon, for an impartial medical 

examination. 

 Dr. Markellos submitted an August 25, 2011 report reviewing the medical record and 

statement of accepted facts. He obtained right hip x-rays which showed appropriate placement 

and excellent alignment of the hip prosthesis. Dr. Markellos obtained standing x-rays of the 

right knee showing minimal degenerative changes with a well-preserved joint space of nearly 

four millimeters. He noted a one centimeter leg length discrepancy, shorter on the left leg. 

Dr. Markellos noted the following range of motion measurements for the right hip: 108 degrees 

forward flexion; 22 degrees internal rotation; 48 degrees external rotation; 38 degrees abduction. 

He noted full range of motion with the right knee, with full strength, sensation and pulses 
4

throughout the right knee, lower leg and foot. Dr. Markellos diagnosed status post right total hip 

replacement for treatment of progressive degenerative arthritis. He found 37 percent impairment 

of the right leg according to Table 16-4 for status post arthroplasty with a fair result as 

determined by range of motion. Dr. Markellos characterized the ranges of motion he measured 

on examination as “mild,” a class 3 CDX with a default score of 37 percent. He agreed with 

Dr. Uejo’s assignment of a grade 1 modifier, resulting “in three points subtracted result[ing] in 

the same final lower extremity of 34 percent.” In a February 27, 2012 supplemental report, 

Dr. Markellos concurred with Dr. Hartunian’s finding of six percent impairment based on the 

right knee. Using the Combined Values Chart, he found a total 38 percent impairment of the 

right leg. In a July 25, 2012 report, an OWCP medical adviser concurred with Dr. Markellos’ 

impairment rating and methods of calculation. 

 By decision dated September 4, 2012, OWCP found that appellant had not established 

that he sustained more than 38 percent impairment of the right lower extremity, for which he 

received a schedule award. It accorded the weight of the medical evidence to Dr. Markellos. 

 In a September 25, 2012 letter, appellant requested a telephonic hearing, held 

February 14, 2013. At the hearing, counsel asserted that OWCP should have relied on 

Dr. Hartunian’s finding of 67 percent impairment of the right leg as he used a goniometer to 

measure range of motion whereas Dr. Markellos did not. He also contended that OWCP used an 

incorrect pay rate to calculate the schedule award. 

 In a December 28, 2012 statement, appellant asserted that Dr. Markellos did not use a 

goniometer during his examination. He explained that the “tool has been described to me and 

[he] understood what it [was] because of what [he had] been told and because it was used by 

Dr. Hartunian” during his impairment evaluation. 

 In a December 28, 2012 letter, counsel asserted that Dr. Markellos did not provide 

physical findings to substantiate his finding that appellant had only a mild range of motion 

impairment of the right hip. In a February 14, 2013 letter, he contended that Dr. Markellos’ 

opinion could not represent the weight of the medical evidence as he did not use a goniometer. 

Counsel also asserted that OWCP should have utilized March 1, 2010 as the pay rate date as this 

was the date of his impairment rating. 

 Following the hearing, counsel submitted a February 5, 2013 report from Dr. Hartunian, 

contending that his range of motion measurements remained valid and demonstrated a moderate 

level of impairment. He stated that his September 17, 2010 opinion remained unchanged. 

 Appellant retired from federal employment effective January 31, 2013. 

 By decision dated April 25, 2013, an OWCP hearing representative affirmed OWCP’s 

September 4, 2012 decision regarding the percentage of permanent impairment. The hearing 

representative modified the September 4, 2012 decision to reflect that award should be based on 

appellant’s pay rate as of August 25, 2011. The hearing representative remanded the case to 

obtain appellant’s pay rate as of August 25, 2011 and issuance of an amended schedule award to 

correct appellant’s pay rate. 
5

LEGAL PRECEDENT 

The schedule award provisions of FECA3 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members 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 determination is a mater which rests in the sound 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. The 

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

adopted by OWCP as a standard for evaluation of schedule losses and the Board has concurred in 

such adoption.4

 For schedule awards after May 1, 2009, the impairment is evaluated under the 

sixth edition of the A.M.A., Guides, published in 2008.5

 

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).6

 Under the sixth edition, the evaluator identifies the impairment class for the 

diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). 

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.8 

ANALYSIS 

OWCP accepted that appellant sustained an aggravation of right hip and knee 

osteoarthritis, necessitating a total arthroplasty of the right hip. Following two slip and fall 

incidents, Dr. McGrory, an attending Board-certified orthopedic surgeon, found full and painless 

motion of the right hip as of March 30, 2007. 

Appellant claimed a schedule award on September 24, 2010. Dr. Hartunian, an attending 

Board-certified orthopedic surgeon, provided a September 17, 2010 impairment rating finding a 

69 percent impairment of the right leg, based on moderate range of motion impairments of the 

 3

 5 U.S.C. § 8107. 

4 Bernard A. Babcock, Jr., 52 ECAB 143 (2000). 

5

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

Chapter 2.808.5a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700.2 and Exhibit 1 (January 2010). 

6

 A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement.” 

7

 A.M.A., Guides 494-531 (6th ed. 2008). 

8

 5 U.S.C. § 8123(a). 
6

right hip totaling 67 percent impairment, and 6 percent impairment due to right knee 

osteoarthritis. On October 28 and November 16, 2010 OWCP obtained the opinion of Dr. Uejo, 

a Board-certified orthopedic surgeon and OWCP medical adviser, who assigned a default 37 

percent impairment to the right lower extremity for total hip arthroplasty with a fair result, and 6 

percent impairment due to right knee osteoarthritis. He opined that Dr. Hartunian’s 

measurements for range of motion were not supported by the medical record and were not 

medically reasonable. OWCP initially granted appellant a schedule award for 38 percent 

impairment of the right leg, then found a conflict of medical opinion between Dr. Hartunian and 

Dr. Uejo. It selected Dr. Markellos, a Board-certified orthopedic surgeon, to resolve the conflict. 

In August 25, 2011 and February 27, 2012 reports, Dr. Markellos provided range of 

motion measurements for the right hip in the category of “mild” impairment under Table 16-24. 

He opined that as appellant had a class 3 diagnosis-based impairment, with a default value of 37 

percent, reduced by 3 points to 34 percent due to the grade 1 modifier as found by Dr. Uejo. 

Combined with the 6 percent impairment for degenerative arthritis in the right knee, this resulted 

in 38 percent impairment of the right leg. An OWCP medical adviser concurred with this 

assessment on July 25, 2012. OWCP therefore issued a September 4, 2012 decision finding that 

appellant had not established that he sustained more than the 38 percent impairment of the right 

leg previously awarded. Following a hearing, it affirmed the percentage of impairment by an 

April 25, 2013 decision but directed modification of the monetary amount by adjusting the date 

of the pay rate utilized. 

The Board finds that Dr. Markellos’ impairment rating, as reviewed by OWCP medical 

adviser, is entitled to the weight of the medical evidence, as it was based on the medical record 

and statement of accepted facts, and utilized the appropriate tables and grading schemes of the 

sixth edition of the A.M.A., Guides. When a case is referred to an impartial medical specialist 

for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if 

sufficiently well rationalized and based on a proper background, must be given special weight.9

 

Therefore, OWCP’s April 25, 2013 decision finding 38 percent impairment of the right lower 

extremity was proper under the facts and circumstances of this case. 

 On appeal, counsel contends that OWCP improperly relied on the opinion of 

Dr. Markellos, the impartial medical examiner, as he allegedly did not use a goniometer to obtain 

the range of motion measurements reported. He noted that the sixth edition of the A.M.A., 

Guides at pages 543 to 548 mandated the use of a goniometer in assessing range of motion. 

Counsel also noted that Dr. Hartunian used a goniometer to measure the six ranges of hip motion 

as required by the sixth edition of the A.M.A., Guides. He requested that either the Board 

authorize a schedule award for the percentage of impairment found by Dr. Hartunian, or remand 

the case for Dr. Markellos to provide accurate range of motion measurements following the 

goniometric protocols set forth in the A.M.A., Guides. 

 Section 16.7, page 543 of the sixth edition of the A.M.A., Guides entitled “Range of 

Motion Impairment,” provides that “Range of motion (ROM) determination is an essential 

component of LE impairment ratings with a strong historical precedent.... Surface goniometry 

 9 Y.A., 59 ECAB 701 (2008). 
7

can be carried out reliably and effectively on the joints of the extremities, so that range of motion 

can be objectively determined. The conventional ROM goniometric procedures previously 

advocated in the A.M.A., Guides should be followed.” Figure 16-9, page 547, “Using a 

Goniometer to Measure Flexion of the Right Hip” also provides that “[a]ccurate measurements 

of the lower extremity can also be obtained using a proper inclinometer....” 

In J.B.,10 the Board found that an impartial examiner’s failure to use a goniometer in 

obtaining range of motion measurements negated the probative value of his report. The Board 

held that a proper range of motion evaluation under the fifth edition of the A.M.A., Guides 

required “actual goniometer readings or linear measurements.” The sixth edition of the A.M.A., 

Guides states specifically that the “conventional ROM [range of motion] goniometric procedures 

previously advocated in the [A.M.A.,] Guides should be followed,” encompassing the fifth 

edition requirements cited to in J.B. The Board finds, however, that there is insufficient 

evidence in the present case to establish that Dr. Markellos did not use a goniometer or properly 

determine appellant’s range of motion. Dr. Markellos provided very specific ranges of motion 

and referred to them as measurements, indicating the use of a measuring tool or instrument. The 

Board notes that although Dr. Markellos did not state that he used a goniometer, neither did 

Dr. Hartunian. This is problematic, as in his December 28, 2012 statement, appellant asserted 

that his knowledge of goniometers came from observing Dr. Hartunian use a goniometer as well 

as from unspecified descriptions. Also, appellant did not indicate if Dr. Markellos used an 

inclinometer, the alternative assessment tool permitted by the A.M.A., Guides.

11 Under these 

circumstances, there is insufficient evidence that Dr. Markellos did not follow the appropriate 

A.M.A., Guides measurement protocols for assessing range of motion. 

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 established that he sustained more than 38 percent 

impairment of the right lower extremity, for which he received a schedule award. 

 10 Docket No. 08-969 (issued November 17, 2008). 

11 A.M.A., Guides 547. 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 25, 2013 is affirmed. 

Issued: May 20, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board