United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Malden, MA, Employer 

__________________________________________ 

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Docket No. 13-1493 

Issued: September 18, 2014 

Appearances: Oral Argument September 3, 2014 

Daniel B. Shapiro, Esq., for the appellant 

Paul J. Klingenberg, Esq., for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA HOWARD FITZGERALD, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On June 11, 2013 appellant, through her attorney, timely appealed the December 14, 

2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding 

entitlement to a schedule award. 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.2

ISSUE 

The issue is whether appellant has greater than 31 percent impairment of the left lower 

extremity. 

 1

 5 U.S.C. §§ 8101-8193 (2006). 

2

 The record on appeal contains evidence received after OWCP issued its December 14, 2012 decision. The 

Board is precluded from considering evidence that was not in the case record at the time OWCP rendered its final 

decision. 20 C.F.R. § 501.2(c)(1) (2012). 
2

FACTUAL HISTORY 

Appellant, a 67-year-old clerk, sustained a work-related injury on August 26, 1999 when 

a flat tub fell off a truck and hit her left leg. She twisted her knee in the process. OWCP 

accepted the claim for left knee sprain. Appellant previously injured the same knee at work in 

November 1994 and June 1995. The June 1995 injury (xxxxxx434) required arthroscopic 

surgery to repair a torn left medial meniscus.3 Appellant also has an accepted claim for a 

December 2, 2004 right knee injury (xxxxxx846).4 

Under the current claim (xxxxxx485), OWCP approved a June 29, 2006 arthroscopic 

procedure and a May 5, 2008 left total knee arthroplasty (TKA).5 Appellant also underwent a 

May 17, 2010 right TKA, which OWCP authorized under claim number xxxxxx846. Her 

August 1999 and December 2004 lower extremity claims have been combined, with claim 

number xxxxxx846 designated as the master file. 

On April 18, 2011 appellant filed a claim for a schedule award (Form CA-7) with respect 

to her August 26, 1999 left knee injury. 

In an April 11, 2011 report, Dr. Byron V. Hartunian, a Board-certified orthopedic 

surgeon, found a combined 55 percent left lower extremity (LLE) impairment.6

 He applied the 

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

Impairment (2008). Dr. Hartunian calculated 28 percent impairment for Class 3 hip arthritis 

under Table 16-4, Hip Regional Grid (LEI), A.M.A., Guides 514 (6th ed. 2008). Additionally, he 

calculated 37 percent LLE impairment based on the result of appellant’s May 5, 2008 left total 

knee replacement. Dr. Hartunian found Class 3 impairment (fair result) under Table 16-3, Knee 

Regional Grid (LEI), A.M.A., Guides 511 (6th ed. 2008).7

 The left hip and knee impairments 

combined represented 55 percent LLE impairment. Dr. Hartunian advised that appellant reached 

maximum medical improvement (MMI) in November 2008; some six months after her left total 

knee replacement. 

 3

 On November 1, 2000 OWCP granted a schedule award for 20 percent LLE impairment under claim number 

xxxxxx434. 

4

 OWCP accepted the claim for right medial meniscus tear and aggravation of right knee osteoarthritis. 

5

 Appellant had follow-up surgery on May 16, 2008 to remove a deep hematoma from her left knee. 

6

 Dr. Hartunian examined appellant on March 18, 2011. 

7

 The default rating (grade C) was 37 percent. Dr. Hartunian excluded all grade modifiers, and thus, did not 

calculate a net adjustment. Grade modifiers for Physical Examination (GMPE) and Clinical Studies (GMCS) were 

excluded because Dr. Hartunian relied on these two factors in determining and/or confirming the appropriate 

diagnostic class (CDX). Under Table 16-6, Functional History Adjustment -- Lower Extremities, A.M.A., Guides

515 (6th ed. 2008), Dr. Hartunian assigned a grade modifier for Functional History (GMFH) of zero for gait 

derangement (none). Appellant also completed an AAOS (American Academy/Association of Orthopedic 

Surgeons) lower limb questionnaire during Dr. Hartunian’s March 18, 2011 examination. See Section 16.9, 

Appendix 16-A: Lower Limb Questionnaire, A.M.A., Guides 555 (6th ed. 2008). Based on her AAOS response, 

Dr. Hartunian assigned a grade modifier of two representing a moderate deficit. In light of the disparity between the 

AAOS questionnaire two and gait derangement zero, Dr. Hartunian excluded functional history as unreliable. 
3

In a May 5, 2011 report, the district medical adviser (DMA), Dr. Christopher R. Brigham, 

concurred with the 28 percent LLE rating for left hip arthritis, but questioned whether this 

condition was related to appellant’s accepted left knee condition.8 With respect to appellant’s 

total knee arthroplasty, the DMA agreed with the Class 3 (fair result) designation under Table 

16-3, Knee Regional Grid (LEI), A.M.A., Guides 511 (6th ed. 2008). However, he disagreed 

with Dr. Hartunian regarding the appropriate adjustment for functional history.9 Whereas 

Dr. Brigham found a grade modifier of zero for functional history based on examination findings 

of no altered gait, Dr. Hartunian determined that appellant’s functional history was unreliable 

and, therefore, should be excluded from the grading process.10 Dr. Brigham’s inclusion of 

functional history resulted in a net adjustment of -3, which corresponded to 31 percent 

impairment (grade A), rather than the default rating of 37 percent (grade C) as determined by 

Dr. Hartunian.11 The DMA also noted that OWCP previously granted a schedule awarded for 20 

percent LLE impairment, which should be subtracted for the current 31 percent LLE (knee) 

rating. 

OWCP declared a conflict in medical opinion between appellant’s physician, 

Dr. Hartunian, and Dr. Brigham. The referee physician was instructed to address the extent of 

appellant’s left lower extremity impairment and whether her left hip condition was work related. 

In a report dated November 11, 2011, Dr. John S. Ritter, a Board-certified orthopedic 

surgeon and impartial medical examiner (IME), found 31 percent LLE impairment under Table 

16-3, Knee Regional Grid (LEI), A.M.A., Guides 511 (6th ed. 2008). The rating was based on a 

diagnosis of total knee replacement with a fair result (class 3, grade A).12 Additionally, the IME 

found appellant reached MMI one year after her May 2008 left total knee replacement. 

On February 29, 2012 another DMA, Dr. David I. Krohn, reviewed the record and noted 

his concurrence with the IME’s November 11, 2011 findings.13

 

 8

 Dr. Brigham is Board-certified in occupational medicine. 

9

 Dr. Brigham and Dr. Hartunian agreed there should be no assignment of grade modifiers for physical 

examination and clinical studies. 

10 See Table 16-6, Functional History Adjustment -- Lower Extremities, A.M.A., Guides 515 (6th ed. 2008). 

11 Net Adjustment (-3) ꞊ (GMFH 0 - CDX 3) + (N/A GMPE - CDX) + (N/A GMCS - CDX). See Section 16.3d, 

A.M.A, Guides 521-22 (6th ed. 2008). 

12 Dr. Ritter found a functional history of zero based on examination findings of no altered gait. He did not 

include physical examination and clinical studies. Accordingly, Dr. Ritter calculated a net adjustment based on 

functional history alone. See supra note 11. Dr. Ritter also found that appellant’s left hip condition was neither 

caused nor aggravated by the August 26, 1999 accepted trauma. Thus, he did not include arthritis-based hip 

impairment in his lower extremity rating. 

13 Dr. Krohn is a Board-certified orthopedic surgeon. 
4

On May 16, 2012 OWCP granted a schedule award for an additional 11 percent 

impairment of the LLE, for a total LLE impairment of 31 percent.14 The award covered a period 

of 31.68 weeks from May 16 through December 23, 2009. 

By decision dated December 14, 2012, the Branch of Hearings and Review affirmed 

OWCP’s May 16, 2012 schedule award. 

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.15 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.16 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2008).17

If there is disagreement between the physician making the examination for OWCP and 

the employee’s physician, OWCP shall appoint a third physician who shall make an 

examination.18 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”19 Where OWCP has referred the employee to an impartial medical 

examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.20

ANALYSIS 

The Board finds that the case is not in posture for decision. 

OWCP properly found a conflict in medical opinion regarding the extent of appellant’s 

left lower extremity impairment. One area of disagreement was Dr. Hartunian’s inclusion of 

 14 OWCP reduced this latest schedule award by the 20 percent LLE award appellant received on November 1, 

2000 (xxxxxx434). 

15 For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2). 

16 20 C.F.R. § 10.404. 

17 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability 

Claims, Chapter 2.808.6a (February 2013). 

18 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on 

behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b). 

19 Darlene R. Kennedy, 57 ECAB 414, 416 (2006). 

20 Gary R. Sieber, 46 ECAB 215, 225 (1994). 
5

impairment due to left hip arthritis. Dr. Brigham, the DMA at the time, questioned whether 

appellant’s left hip condition was causally related to her August 26, 1999 left knee injury. The 

other area of disagreement was the significance accorded the March 18, 2011 AAOS lower limb 

questionnaire. Dr. Hartunian assigned a grade modifier of two based on appellant’s AAOS 

results. He also assigned a grade modifier of zero based on gait analysis. Because of the 

disparity between gait derangement (zero) and the AAOS lower limb questionnaire (two), 

Dr. Hartunian determined that the grade modifier functional history was unreliable and should be 

excluded from consideration. Thus, there was no net adjustment. In contrast, Dr. Brigham did 

not believe the AAOS subjective assessment should nullify the gait derangement finding. 

Therefore, he assigned a grade modifier functional history of zero based on examination findings 

of no altered gait, which resulted in a -3 net adjustment. 

Dr. Ritter, the IME, found that appellant’s left hip arthritis was unrelated to her 

August 26, 1999 traumatic injury. With respect to appellant’s right knee condition, Dr. Ritter 

found 31 percent LLE impairment. He too found a grade modifier functional history of zero 

based on examination findings of no altered gait, with a corresponding negative net adjustment 

from grade C (37 percent) to grade A (31 percent), but he appears not to have administered a 

new AAOS lower limb questionnaire when he examined appellant in November 2011 

examination. Furthermore, Dr. Ritter’s report makes no mention of appellant’s March 18, 2011 

AAOS questionnaire. 

The A.M.A., Guides indicate that “[t]he evaluating physician may use outcome 

instruments and inventories,” such as the AAOS lower limb questionnaire, as part of the process 

of evaluating functional symptoms.21 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.22 If a grade modifier 

is found to be unreliable or inconsistent, it should be disregarded and eliminated from the 

calculation.23

An IME’s report must actually fulfill the purpose for which it was intended; it must 

resolve the conflict in medical opinion.24 OWCP should ensure that the IME’s report is 

comprehensive, clear and definite and that it is based on current information and supported by 

substantial medical reasoning, as well as a review of the case file.25 If the referee specialist 

submits an opinion which is equivocal, lacks rationale, or fails to address the specified medical 

issues or conflict, OWCP is obliged to seek clarification from the IME.26 

 21 Section 16.3a, A.M.A., Guides 516 (6th ed. 2008) (emphasis added); see Section 16.9, Appendix 16-A: Lower 

Limb Questionnaire, A.M.A., Guides 555 (6th ed. 2008). 

22 See Section 16.3d, A.M.A., Guides 521 (6th ed. 2008) (emphasis added). 

23 Id.

24 Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter 

2.810.11d(2) (September 2010).

25 Id.

26 Id. at Chapter 2.810.11e. 
6

As noted, Dr. Ritter did not comment on the March 18, 2011 AAOS lower limb 

questionnaire results nor did he administer a new AAOS questionnaire as part of his 

November 2011 examination. Although inclusion of AAOS lower limb questionnaire results is 

not mandatory under the A.M.A., Guides, given this particular functional history component was 

part of the identified conflict, it is reasonable that Dr. Ritter obtain an updated lower limb 

questionnaire as part of his evaluation process.27 Accordingly, the Board finds the case is not in 

posture for decision. OWCP’s December 14, 2012 decision shall be set aside, and the case 

remanded for further development. If Dr. Ritter is either unwilling or unable to reexamine 

appellant and provide the necessary clarification regarding functional history, then OWCP 

should refer appellant to another IME.28 After OWCP has developed the case record consistent 

with the Board’s directive, a de novo decision shall be issued. 

CONCLUSION 

The case is not in posture for decision. 

 27 Appellant’s counsel would have the Board recalculate the latest schedule award based on a grade modifier 

functional history of two, but that is a medical determination best left to a qualified physician. Moreover, the 

March 18, 2011 AAOS lower limb questionnaire is somewhat dated. 

28 See supra note 26.
7

ORDER 

IT IS HEREBY ORDERED THAT the December 14, 2012 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision. 

Issued: September 18, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board