United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Hartford, CT, Employer 

__________________________________________ 

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Docket No. 14-1982 

Issued: August 26, 2015 

Appearances: Oral Argument July 23, 2015 

Daniel B. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On September 15, 2014 appellant, though counsel, filed a timely appeal from an 

August 22, 2014 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 has more than a 31 percent impairment of his left lower 

extremity and a 31 percent impairment of his right lower extremity, for which he received 

schedule awards. 

FACTUAL HISTORY 

On May 3, 2012 appellant, then a 60-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed right and left knee permanent acceleration of 

osteoarthritis as a result of his federal employment duties. On February 28, 2011 he underwent 

 1

 5 U.S.C. § 8101 et seq.
2

bilateral knee replacement. By decision dated November 1, 2012, OWCP accepted the claim for 

bilateral knee permanent aggravation of osteoarthritis. 

On November 9, 2012 appellant filed a claim for a schedule award (Form CA-7). 

In support of his schedule award claim, appellant submitted an April 26, 2012 medical 

report from Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon. In his report, 

Dr. Hartunian noted that he evaluated appellant on April 6, 2012 and reviewed prior medical 

reports pertaining to his bilateral knee condition. He provided a history of appellant’s 

employment activities and findings on physical examination. Dr. Hartunian noted that right knee 

flexion range of motion (ROM) was 94 degrees, left knee flexion ROM was 98 degrees, and 

extension was 0 degrees for both knees. He diagnosed status post right and left knee 

replacement for end-stage degenerative arthritis. Using the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2

Dr. Hartunian opined that appellant had a total 37 percent impairment of the right lower 

extremity and 37 percent impairment of the left lower extremity. According to Table 16-3 Knee 

Regional Grid, section for total knee replacement, Dr. Hartunian identified the diagnosis as a 

class 3 severe problem, which yielded a default value of 37 percent.3

 

Dr. Hartunian explained that class placement for lower extremity arthroplasty required, in 

part, an analysis of hardware positioning through the use of postarthroplasty clinical studies. He 

noted that appellant’s postarthroplasty clinical studies showed good hardware positioning. Class 

placement for lower extremity arthroplasty also required an analysis of range of motion. 

Dr. Hartunian explained that appellant’s postarthroplasty physical examination indicated a mild 

motion deficit. He noted that, because clinical studies and physical examination were used to 

determine the class, they were not used as modifiers. Dr. Hartunian further explained that the 

A.M.A., Guides provide that “imaging studies” (as opposed to “clinical” studies) were used to 

grade arthritis. However, in a postarthroplasty situation, the arthritic cartilage surfaces have been 

replaced by prostheses and there is no longer any arthritis to grade. Dr. Hartunian stated that, for 

this additional reason, the clinical studies grade modifier was inapplicable as appellant’s relevant 

clinical studies were imaging studies and x-rays used to confirm the diagnosis. He stated that the 

functional history adjustment as determined by gait derangement was a grade modifier 0 as there 

was no antalgic limp. When determining the grade modifier based on the AAOS Lower Limb 

Questionnaire completed by appellant, he assigned a grade modifier 2 for moderate problem.4

 

Dr. Hartunian noted that, because the difference between these two methods of determination is 

2, the functional history adjustment was considered unreliable and excluded from the grading 

process. Thus, the net adjustment formula did not apply in this situation, resulting in a default 

class 3, grade C impairment of 37 percent for the right lower extremity and 37 percent for the left 

lower extremity. Dr. Hartunian concluded that appellant reached maximum medical 

improvement (MMI) one year after his knee surgery in February 2012. 

 2

 A.M.A., Guides (2009). 

3 Id. at 511, Table 16-3. 

4 Id. at 516. 
3

OWCP properly routed Dr. Hartunian’s report and the case file to Dr. Morley Slutsky, an 

OWCP district medical adviser (DMA), for review and a determination on whether appellant 

sustained a permanent impairment of the lower extremities and the date of MMI. 

In a November 27, 2012 report, Dr. Slutsky reported that appellant reached MMI on 

April 26, 2012, the date of Dr. Hartunian’s examination. He calculated 31 percent impairment of 

the right lower extremity and 31 percent impairment of the left lower extremity. Dr. Slutsky 

reported that he agreed with Dr. Hartunian’s diagnosis for bilateral knee arthroplasty and also 

placed appellant in class 3 for bilateral total knee arthroplasty with good alignment and stability 

and mild motion loss. Applying appellant’s range of motion examination findings to Table 

15-23, Dr. Slutsky noted that he had 10 percent knee motion impairment for the right and 

10 percent impairment for the left.5

 Dr. Slutsky agreed with Dr. Hartunian that the clinical 

studies grade modifier was not applicable because diagnostic testing was used to place 

appellant’s knee into the correct diagnostic class, and could not be used to assign a grade 

modifier.6

 He further agreed that the functional history was also not applicable in the grading 

process. Dr. Slutsky explained that appellant’s AAOS score equaled a grade modifier 2 while 

the functional history adjustment as determined by gait derangement equaled a grade modifier 0 

for no antalgic limp.7

 As there was a difference of two grade modifiers between these functional 

history measures, the functional history was unreliable and would not be used in the rating 

calculation. With respect to physical examination, Dr. Slutsky disagreed with Dr. Hartunian’s 

assessment to exclude it from the net adjustment formula. Dr. Slutsky assigned a grade modifier 

0, stating that appellant’s ROM and stability testing were used to place the knees into the correct 

diagnostic class and no other objective deficits were documented.8 Using the net adjustment 

formula, Dr. Slutsky found that the difference of 0 physical examination grade modifier from 

3 for the class of diagnosis equaled a net adjustment of -3. As the lowest rating in the class -2, 

the final grade A resulting in a 31 percent impairment of the left lower extremity and 31 percent 

impairment of the right lower extremity.9

 

By letter dated January 10, 2014, OWCP informed appellant that Dr. Slutsky, the DMA, 

provided a 31 percent impairment rating for each lower extremity as opposed to the earlier 

37 percent impairment rating provided by Dr. Hartunian. It provided appellant with a copy of 

Dr. Slutsky’s report and advised him to obtain a supplemental report from his treating physician 

which would support further consideration of the additional six percent impairment difference 

for each lower extremity. 

In a December 31, 2012 supplemental report, Dr. Hartunian reviewed Dr. Slutsky’s report 

and disagreed with his final 31 percent impairment rating. He noted that, after further review of 

the A.M.A., Guides, he was amending his previous opinion regarding the applicability of the 

grade modifier for functional history, namely, that it should be excluded because the AAOS 

 5 Id. at 549. 

6 Id. at 519, Table 16-8. 

7 Id. at 516, Table 16-6. 

8 Id. at 517, Table 16-7. 

9 Supra note 3. 
4

finding was disparate by two or more from the gait derangement finding 0. Rather, 

Dr. Hartunian stated that appellant’s functional history should be assigned a grade modifier 2 as 

the A.M.A., Guides stipulate that the highest class modifier should be used as the value for that 

adjustment in the net adjustment calculation.10 

Dr. Hartunian also noted that Dr. Slutsky erroneously assigned a grade modifier 0 for 

physical examination when no grade modifier should be assigned as it was used to define the 

class. He referenced the section of the A.M.A., Guides which stated, “If a grade modifier, or 

nonkey factor, was used for primary placement in the regional grid, it may not be used again in 

the impairment calculations. For example, if a diagnostic class was determined using range of 

motion as a factor, then range of motion is not considered again when determining the physical 

examination adjustment factor.”11 Dr. Hartunian further disagreed with the date of MMI 

assigned by Dr. Slutsky, stating that MMI was reached in February 2012, one year after 

undergoing right and left knee total knee replacement. He stated that it was well accepted that 

the MMI for joint replacement was generally about one year following joint replacement surgery, 

noting that MMI applied to the function of a joint and focused on functional impairment. 

Dr. Hartunian stated that all of his conclusions from his prior report remained the same: 

placing appellant in class 3 and no grade modifiers assigned for physical examination or clinical 

studies because they were used to confirm the diagnosis. Using the net adjustment formula, he 

took the difference of 2 for the functional history grade modifier from 3 for the class diagnosis 

resulting in a -1 adjustment. This resulted in a grade B impairment rating of 34 percent 

permanent impairment of the right lower extremity and 34 percent impairment of the left lower 

extremity. 

OWCP provided Dr. Slutsky with Dr. Hartunian’s January 4, 2013 supplemental report 

and requested an addendum report addressing the opposing opinions. 

In a June 25, 2013 report, Dr. Slutsky reported that the findings made in his prior 

November 27, 2012 report remained unchanged. He disagreed with Dr. Hartunian’s assignment 

of grade modifier 2 for functional history and maintained that the functional history could not be 

used in the net adjustment formula because it was unreliable. Dr. Slutsky noted that, while the 

AAOS score equaled a grade modifier 2, the primary determinate for functional history grade 

modifiers were objective factors found in Table 16-6.12 He stated that appellant did not have a 

gait issue and there was no documentation of a positive Trendelenburg which resulted in a grade 

modifier 0. The DMA referenced section 16.3a of the A.M.A., Guides and stated that because 

there was a significant discrepancy of two grade modifiers between the observed functional 

status and that of appellant’s history, the functional history was unreliable.13

Dr. Slutsky further maintained that physical examination should be assigned a grade 

modifier 0. He stated that appellant’s knee ROM and stability testing were used to place 

 10 Supra note 7. 

11 A.M.A., Guides 515-16. 

12 Supra note 7. 

13 A.M.A., Guides 516. 
5

appellant into the correct diagnostic class and no other objective deficits were documented. 

Based upon this, appellant’s physical examination grade modifier was 0. Dr. Slutsky noted that 

this was consistent with an example provided in the A.M.A., Guides for a total knee replacement 

rating.14 Thus, he argued that Dr. Hartunian’s assertion that the physical examination grade 

modifier should be excluded from the net adjustment calculation was incorrect. Dr. Slutsky 

concluded that MMI was April 26, 2012, the date of the rating examination performed by 

Dr. Hartunian. 

By decision dated January 31, 2014, OWCP granted appellant a schedule award claim for 

31 percent permanent impairment of the right lower extremity and 31 percent impairment of the 

left lower extremity. It found that the weight of the medical evidence rested with Dr. Slutsky 

serving as the DMA. The date of MMI was noted as April 6, 2012, the date of Dr. Hartunian’s 

examination. The award covered a period of 178.56 weeks from April 6, 2012 to 

September 2, 2015. 

On February 12, 2014 appellant, through counsel, requested an oral hearing before the 

Branch of Hearings and Review. 

At the June 17, 2014 hearing, counsel argued that the weight of the medical evidence 

rested with Dr. Hartunian as Dr. Slutsky improperly utilized the A.M.A., Guides. 

By letter dated July 16, 2014, counsel argued that OWCP deemed the medical evidence 

to be sufficiently complete to warrant a decision and as such, no further medical development 

was necessary. He argued that Dr. Slutsky’s reports were not probative or of equal weight to the 

reports of Dr. Hartunian, and also argued that no conflict was created and no referee physician 

was warranted. Rather, the weight of the medical evidence rested with Dr. Hartunian and OWCP 

should utilize his report in determining appellant’s schedule award. 

By decision dated August 22, 2014, the Branch of Hearings and Review affirmed 

OWCP’s January 31, 2014 schedule award. It noted that the weight of the medical opinion 

rested with Dr. Slutsky serving as the DMA. 

LEGAL PRECEDENT 

The schedule award provision of FECA and its implementing regulations 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.15 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.16

 14 Id. at 527. 

15 5 U.S.C. § 8107; 20 C.F.R. § 10.404. 

16 K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth 

edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010). 
6

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World 

Health Organization’s International Classification of Functioning, Disability, and Health (ICF). 

For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed 

condition Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on 

Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).17 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).18 

Evaluators are directed to provide reasons for their impairment rating choices, including choices 

of diagnoses from regional grids and calculations of modifier scores.19

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

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.20

ANALYSIS 

OWCP accepted appellant’s claim for right and left knee permanent aggravation of 

osteoarthritis. On February 28, 2011 appellant underwent bilateral knee replacement. The issue 

is whether he has more than a 31 percent permanent impairment of the right lower extremity and 

31 percent permanent impairment of the left lower extremity, for which he received schedule 

awards. The Board finds that appellant is entitled to an additional six percent impairment for the 

right lower extremity and six percent impairment for the left lower extremity.21

Diagnosis-based impairment is the primary method for evaluating impairment to the 

lower limb. Impairment is determined first by identifying the relevant diagnosis, then by 

selecting the class of the impairment: no objective problem, mild problem, moderate problem, 

severe problem, very severe problem approaching total function loss. This provides a default 

impairment rating, which can be adjusted slightly up or down using grade modifiers or nonkey 

factors, such as functional history, physical examination, and clinical studies.22

The impairment values for a total knee replacement are found in Table 16-3, page 511 of 

the A.M.A., Guides or the Knee Regional Grid. A good result -- good position, stable, 

functional -- has a default impairment value of 25 percent. A fair result -- fair position, mild 

instability and/or mild motion deficit -- has a default impairment value of 37 percent. A poor 

result has a default impairment value of 67 percent. A poor result with chronic infection has a 

default impairment value of 75 percent. 

 17 Supra note 2 at 493-531. 

18 A.M.A., Guides 521. 

19 R.V., Docket No. 10-1827 (issued April 1, 2011). 

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

Chapter 2.808.6(d) (February 2013). 

21 See A.G., Docket No. 14-1143 (issued December 10, 2014). 

22 Supra note 2 at 497. 
7

In his November 27, 2012 and June 25, 2013 reports, Dr. Slutsky, serving as the DMA, 

reported that appellant was entitled to 31 percent impairment of the right lower extremity and 31 

percent impairment of the left lower extremity. Dr. Hartunian’s April 26, 2012 report found that 

appellant had 37 percent impairment for each lower extremity, which he later amended to 

34 percent impairment in his subsequent January 14, 2013 report. 

The Board notes that the medical evidence and findings pertaining to appellant’s bilateral 

knee arthroplasty were sufficient such that a conflict in medical evidence was not created.23 

Dr. Slutsky and Dr. Hartunian agreed that appellant should be placed in class 3 for bilateral total 

knee arthroplasty based on his clinical studies and physical examination findings. Both 

physicians used appellant’s physical examination findings for knee range of motion and stability 

testing to place him in the correct diagnostic class, with a class 3 grade C default impairment 

value of 37 percent. 

With respect to assigning values for grade modifiers, both Dr. Slutsky and Dr. Hartunian 

agreed that no assignment value should be provided for clinical studies as diagnostic testing was 

used to place appellant into the correct diagnostic class.24

Dr. Slutsky further agreed with Dr. Hartunian’s initial April 26, 2012 assessment that 

functional history could not be assigned a grade modifier and was not applicable in the grading 

process. Both physicians agreed that appellant’s AAOS score equaled a grade modifier 2 while 

the functional history adjustment as determined by gait derangement equaled a grade modifier 0 

for no antalgic limp.25 As there was a difference of two grade modifiers between these 

functional history measures, Dr. Slutsky found that the functional history was unreliable and 

would not be used in the rating calculation. In his supplemental January 14, 2013 report, 

Dr. Hartunian amended his prior functional history assessment and argued that appellant should 

be assigned a grade modifier 2 because the A.M.A., Guides stipulate that the highest class 

modifier should be used as the value for that adjustment. 

The Board notes that Dr. Slutsky properly determined that functional history could not be 

assigned a grade modifier as it was not applicable in the grading process. The A.M.A., Guides

indicate that the evaluating physician may use outcome instruments and inventories, such as the 

AAOS lower limb questionnaire, as part of the process of evaluating functional symptoms.26 

The A.M.A., Guides further provide that, if there are multiple components to a grade modifier, 

the evaluator should choose the most objective grade modifier with the highest value, associated 

with the diagnosis being rated.27 If a grade modifier is found to be unreliable or inconsistent, it 

should be disregarded and eliminated from the calculation.28 In this instance, both physicians 

 23 See J.J., Docket No. 14-1143 (issued December 10, 2014); Mary L. Henninger, 52 ECAB 408 (2001). 

24 Supra note 6. 

25 Supra note 7. 

26 Supra note 4, section 16.3a (emphasis added); see section 16.9, Appendix 16-A: Lower Limb Questionnaire, 

A.M.A., Guides 555. See also G.C., Docket No. 13-1493 (issued September 18, 2014). 

27 A.M.A., Guides 521, section 16.3d (emphasis added). 

28 Id. 
8

agreed with the grade modifiers assigned based on appellant’s AAOS score and gait 

derangement. As the functional history differed by two or more grades from that defined by 

physical examination or clinical studies, Dr. Slutsky properly determined that functional history 

was unreliable and should be excluded from the grading process.29 Assigning the grade modifier 

with the highest value would not be appropriate in this case. 

With respect to physical examination, Dr. Slutsky and Dr. Hartunian disagree regarding 

whether a grade modifier should be assigned. Dr. Slutsky stated that appellant’s knee ROM and 

stability testing were used to place the knees into the correct diagnostic class and no other 

objective deficits were documented. Based upon this, he assigned a grade modifier 0 for 

physical examination. Dr. Hartunian disagreed with Dr. Slutsky stating that physical 

examination had to be excluded from the grading process because it was used to place appellant 

in the correct class. 

The Board notes that Dr. Slutsky incorrectly assigned a grade modifier for physical 

examination, which must be excluded from the net adjustment calculation. Both physicians 

agree that range of motion and stability testing were used to place appellant in the correct 

diagnostic class. The A.M.A., Guides provide that if a grade modifier or nonkey factor, is used 

for primary placement in the regional grid, it may not be used again in the impairment 

calculations. For example, if a diagnostic class was determined using range of motion as a 

factor, then range of motion is not considered again when determining the physical examination 

adjustment factor.30 As Dr. Slutsky stated that, range of motion and stability testing were used to 

place the knees into the correct diagnostic class, he improperly assigned a grade modifier 0 for 

physical examination as he previously explained that no other objective deficits were 

documented.31 Thus, physical examination cannot be used in calculating the net adjustment 

formula.32 

As the medical evidence establishes that functional history, clinical studies, and physical 

examination should be disregarded and eliminated from the net adjustment calculation, the 

default value of C for class 3 total knee replacement results in 37 percent impairment as the final 

 29 If the functional history is determined to be unreliable or inconsistent with other documentation, it is excluded 

from the grading process. Supra note 26. 

30 Id. at 515-16. 

31 The A.M.A., Guides provide that a physical examination grade modifier assignment of 0 pertains to those 

patients who have had findings in the past but are now healthy (with no expectation that they will have recurrent 

findings). Id. at 15. 

32 The Board notes that the example Dr. Slutsky cites on page 527 of the A.M.A., Guides for total knee 

replacement does not establish that a grade modifier should be assigned for physical examination. In the example, 

the left knee was assigned class 2 while the right knee was assigned class 3. Physical examination was not used to 

assign the class for the left knee so physical examination was assigned a grade modifier 0 for the net adjustment 

calculation. With respect to the right knee, the example noted that range of motion was used to assign the class and 

thus could not be considered for grade assignment. The example provided a grade modifier 1 for physical 

examination, however, based on atrophy or weakness, which was not used in assigning the class. It noted that range 

of motion would be a grade modifier 2, but had to be excluded. Dr. Slutsky’s reports explained that range of motion 

and stability testing were used to place the knees into the correct diagnostic class and no other objective deficits 

were documented. He incorrectly relied on this example as support for assigning a physical examination grade 

modifier 0. 
9

rating value. In this case, appellant was previously awarded 31 percent impairment of the right 

lower extremity and 31 percent of the left lower extremity. The Board finds that he is entitled to 

an additional six percent impairment of the right lower extremity and six percent impairment of 

the left lower extremity.33 The Board further finds that OWCP properly determined that the date 

of MMI was April 6, 2012, the date of Dr. Hartunian’s examination.34 

CONCLUSION 

The Board finds that appellant has established entitlement to 37 percent impairment for 

the right lower extremity and 37 percent impairment for the left lower extremity. 

ORDER 

IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed, as modified. 

Issued: August 26, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 33 Supra note 21. 

34 In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a 

permanent and fixed state, which is generally referred to as MMI. See supra note 20 at Chapter 2.808.5b(1) 

(February 2013). Assuming MMI has been attained, the date of MMI is usually considered to be the date of the 

evaluation by the attending physician that is accepted as definitive by OWCP. Schedule awards begin on the date of 

MMI, unless circumstances show that a later date should be used. A retroactive determination of the date of MMI is 

not per se erroneous. When the medical evidence establishes that the employee did in fact reach maximum 

improvement by such date, the determination is proper. Supra note 20 at Chapter 2.808.7b.