United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORATATION SECURITY 

ADMINISTRATION, Newark, NJ, Employer 

__________________________________________ 

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Docket No. 13-1954 

Issued: September 5, 2014 

Appearances: Case Submitted on the Record

Robert D. Campbell, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On August 1, 2013 appellant, through counsel, filed a timely appeal from a February 7, 

2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUE 

The issue is whether appellant has an employment-related permanent impairment to a 

scheduled member or function of the body under 5 U.S.C. § 8107. 

 1

 Under the Board’s Rules of Procedure, if the date of delivery of the notice of appeal (in this case August 12, 

2013) would result in loss of appeal rights with respect to the 180-day time limitation for filing an appeal, the appeal 

will be considered to be filed as of the date of postmark. 20 C.F.R. § 501.3(e) and (f). In this case, the appeal was 

postmarked August 1, 2013, which is within 180 days of February 7, 2013. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

The case has previously been before the Board. By decision dated September 12, 2012, 

the Board remanded the case for further development of the medical evidence with respect to a 

schedule award.3 The Board noted that the referee physician, Dr. Andrew Carollo, a Boardcertified orthopedic surgeon, had reported examination findings in a February 16, 2011 report 

that range of motion for hip flexion in both hips was 100 degrees, with normal reported as 120 

degrees.4 The Board remanded the case for an OWCP medical adviser’s opinion as to whether 

the report from Dr. Carollo required clarification. 

On return of the case record, OWCP requested that an OWCP medical adviser review 

Dr. Carollo’s report and provide an opinion with respect to a permanent impairment under the 

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

Guides). In a report dated October 16, 2012, the medical adviser stated that Dr. Carollo found no 

weakness or atrophy, normal reflexes and normal sensation. He did not discuss hip range of 

motion. The medical adviser opined that appellant had no impairment under the A.M.A., 

Guides. 

By decision dated November 30, 2012, OWCP found that appellant was not entitled to a 

schedule award. On December 19, 2012 appellant requested a review of the written record. By 

decision dated February 7, 2013, the hearing representative affirmed the November 30, 2012 

decision. He found that the weight of the medical evidence did not establish a permanent 

impairment. 

LEGAL PRECEDENT 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants, OWCP has 

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.7 

 3

 Docket No. 12-790 (issued September 12, 2012). 

4

 Dr. Carollo had also stated that hip measurements “were within normal limits” without further explanation. 

5

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 

6 A. George Lampo, 45 ECAB 441 (1994). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 
3

ANALYSIS 

In the present case, the Board had remanded the case for an OWCP medical adviser to 

review the referee physician report, specifically with reference to Dr. Carollo’s findings with 

respect to the hips. OWCP asked a medical adviser to review Dr. Carollo’s report, although it 

did not specifically discuss the hip range of motion. The medical adviser did not comment on 

the question of hip range of motion. 

The Board notes that, under the A.M.A., Guides, an impairment based loss of range of 

motion in the lower extremities may be determined in accord with section 16.7.8

 This method is 

used “only if no other approach is available” to rate the impairment.9

 The report from OWCP’s 

medical adviser indicates that a diagnosis-based method would not result in a ratable impairment. 

The medical adviser stated that Dr. Carollo found no weakness or atrophy, normal reflexes and 

normal sensation. 

A medical question remains, however, as to whether an impairment based on loss of 

range of motion would be appropriate in this case. The 100 degrees of hip flexion range of 

motion reported by Dr. Carollo would result in a five percent leg impairment if a range of motion 

approach was utilized.10 To properly resolve the conflict, the referee physician, Dr. Carollo, 

must address his findings regarding hip flexion and specifically clarify his opinion as to an 

impairment under the A.M.A., Guides. OWCP should note the reported range of motion 

findings and the applicable provisions of the A.M.A., Guides with respect to an impairment 

based on loss of range of motion and secure a probative medical opinion from the referee 

physician that is sufficient to resolve the conflict. After such further development as OWCP 

deems necessary, it should issue an appropriate decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision and is remanded to OWCP for 

further development of the medical evidence. 

 8

 A.M.A., Guides 543-53. 

9 Id. at 552. 

10 A.M.A., Guides 549, Table 16-24. Under Table 16-24, hip flexion of 80 to 100 degrees is a “mild” leg 

impairment of five percent. 
4

ORDER 

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

Compensation Programs dated February 7, 2013 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: September 5, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board