United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

N.D., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Knoxville, TN, Employer 

__________________________________________ 

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Docket No. 14-1757 

Issued: June 2, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On August 11, 2014 appellant filed a timely appeal from February 24 and June 5, 2014 

merit decisions of the Office of Workers’ Compensation Programs.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 is entitled to an increased schedule award for any 

extremity. 

 1

 Appellant died on October 7, 2014 after the filing of this appeal. As he properly filed the appeal in his lifetime, 

all that is needed is a substitute appellant to carry the appeal forward as the Board’s jurisdiction was invoked during 

his lifetime. See Albert F. Kimbrell, 4 ECAB 662, 666 (1952). Accordingly, appellant’s daughter, K.D., is 

recognized by the Board as the substitute appellant for the purposes of carrying the appeal forward. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 23, 1989 appellant, then a 41-year-old letter carrier, filed an occupational 

disease claim alleging that he sustained osteoarthritis of the right knee due to factors of his 

federal employment. OWCP accepted the claim for traumatic arthropathy and unspecified 

monoarthritis of the bilateral lower extremities, a sprain of the right rotator cuff, other affections 

of the bilateral shoulder region, a sprain of the metacarpophalangeal joint of the left thumb, and a 

right biceps tendon rupture. 

By decision dated December 16, 1993, OWCP granted appellant a schedule award for a 

20 percent permanent impairment of the right lower extremity and a 35 percent permanent 

impairment of the left lower extremity.3

 In a decision dated October 19, 2006, it granted him a 

schedule award for a 30 percent permanent impairment of the right lower extremity and a 13 

percent permanent impairment of the left lower extremity. 

On December 9, 2008 OWCP granted appellant a schedule award for a nine percent 

permanent impairment of each upper extremity.4 On February 9, 2010 it found that he was 

entitled to an award for an additional nine percent permanent impairment of the right lower 

extremity. 

On June 5, 2012 OWCP granted appellant a schedule award for an additional one percent 

permanent impairment of the right upper extremity.5 On June 6, 2012 it denied his claim for an 

additional schedule award for the right arm.6 By decision dated April 16, 2013, OWCP granted 

appellant a schedule award for a seven percent permanent impairment of the left thumb. 

 3

 By decision dated December 7, 1989, OWCP granted appellant a schedule award for a 20 percent permanent 

impairment of the right lower extremity. On August 27, 1991 it vacated its December 7, 1989 decision after 

determining that he was not at maximum medical improvement. In a decision dated June 14, 1993 and finalized 

June 23, 1993, an OWCP hearing representative determined that appellant had no more than a 20 percent permanent 

impairment of the left lower extremity and 20 percent permanent impairment of the right lower extremity and 

instructed OWCP to provide him with a schedule award decision. In a decision dated July 30, 1993, OWCP denied 

modification of the June 14, 1993 decision. By decision dated December 16, 1993, it determined that appellant 

received an overpayment of compensation because it paid a schedule award prematurely and further found that he 

was not entitled to waiver. On July 1, 1994 an OWCP hearing representative found that OWCP properly calculated 

his entitlement to a lump sum for the remainder of his schedule award. On August 18, 1997 the Board set aside 

July 1, 1994 and December 16, 1993 decisions. The Board found that OWCP improperly determined that appellant 

was not entitled to wavier of recovery of an overpayment. Docket No. 95-516 (issued August 18, 1997). 

4

 In decision dated March 30 and October 22, 2007, OWCP denied appellant’s request for a lump sum schedule 

award. 

5

 In decisions dated December 9, 2010 and March 16, 2011, OWCP denied appellant’s request for an increased 

schedule award. In a nonmerit decision dated June 20, 2011, it denied his request for reconsideration of the 

March 16, 2011 decision. In its March 16, 2011 decision, OWCP had modified the December 9, 2010 decision to 

reflect that the only issue was whether appellant had a greater impairment of the right upper extremity. On 

February 1, 2012 it vacated the March 16, 2011 decision. 

6

 On September 26, 2012 OWCP modified its June 5, 2012 decision to reflect that March 26, 2010 was the date of 

maximum medical improvement. In a nonmerit decision dated December 12, 2012, it denied appellant’s request for 

reconsideration of its September 26, 2012 decision. 
3

Appellant requested an increase schedule award on September 27, 2013. Medical reports 

were forwarded to OWCP. 

On July 23, 2013 Dr. Susan N. Pick, a Board-certified orthopedic surgeon, evaluated 

appellant’s permanent impairment of the bilateral knees. On examination she measured range of 

motion of the left knee as 10 to 80 degrees with mild lateral laxity and 3 to 4 millimeters of 

anterior posterior laxity. For the right knee, Dr. Pick measured range of motion of 10 to 50 

degrees of flexion with a trace amount of medial laxity. X-rays revealed two degrees valgus 

alignment on the right and four degrees valgus alignment on the left. Citing the American 

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

(6th ed. 2009), she identified the diagnosis as a class 3 total knee replacement due to his fair result 

under Table 16-3 on page 511, which yielded a default value of 37 percent. Dr. Pick found a 

grade modifier 2 for functional history based on appellant’s “use of assistive devices” and a 

grade modifier 3 for physical examination due to his loss of range of motion. She concluded that 

appellant had a 34 percent permanent impairment of the left lower extremity. 

For the right lower extremity, Dr. Pick identified the diagnosis as a class 4 total knee 

replacement based on appellant’s poor result, which yielded a default value of 67 percent under 

Table 16-3. She found a grade modifier 3 for functional history and grade modifier 4 for 

physical examination based on loss of range of motion, for a total right lower extremity 

impairment of 63 percent. 

In an impairment evaluation dated August 23, 2013, Dr. William L. Johnson, a Boardcertified orthopedic surgeon, reviewed appellant’s history of a prior left rotator cuff repair and a 

repair of the right rotator cuff “with the most recent arthroscopy in February 2013 showing a 

rupture of the rotator cuff proximal with no repairable tissue remaining.” On examination he 

found 90 degrees of left shoulder abduction and flexion, a functional rotator cuff, and near full 

range of motion of the right shoulder. Referencing the A.M.A., Guides, for the left upper 

extremity, Dr. Johnson found a 5 percent impairment due to the prior rotator cuff tear and a 

10 percent impairment due to the distal clavicle resection, for a total upper extremity impairment 

of 15 percent. For the right upper extremity, he found a 10 percent impairment of the 

acromioclavicular (AC) joint after a distal clavicle resection, a 5 percent impairment due to 

post-traumatic degenerative disc disease, and a 6 percent impairment for residuals symptoms of 

the rotator cuff tear, which he combined to find a 20 percent right upper extremity impairment. 

OWCP referred the case to an OWCP medical adviser for review. It indicated that 

appellant had also received a schedule award for a five percent left upper extremity (elbow 

injury) impairment under file number xxxxx915 and a two percent left foot impairment under file 

number xxxxxx137. 

On February 19, 2014 an OWCP medical adviser reviewed the impairment evaluations 

from Dr. Johnson and Dr. Pick. He found that Dr. Johnson combined shoulder impairments in 

rating the extent of appellant’s impairment instead of using the single greatest impairment. The 

medical adviser determined that the most relevant diagnosis was the distal clavicle resection, 

which yielded a 10 percent impairment of each upper extremity. He noted that appellant had 

previously received a schedule award for a 7 percent impairment of the thumb, which he found 

converted to a 3 percent left upper extremity impairment, and then combined to find a 13 percent 
4

total left upper extremity impairment. The medical adviser opined that appellant had no 

additional right upper extremity impairment. 

For the left lower extremity, the medical adviser concurred with Dr. Pick’s finding of a 

34 percent left lower extremity impairment. He thus found that appellant was entitled to an 

additional 13 percent impairment of the left lower extremity. For the right lower extremity, the 

medical adviser determined that Dr. Pick improperly combined the diagnosis-based impairment 

of a total knee replacement with loss of range of motion of the knee. He found that appellant had 

no more than the previously awarded 36 percent permanent impairment of the left lower 

extremity. 

By decision dated February 24, 2014, OWCP granted appellant a schedule award for an 

additional 10 percent permanent impairment of the left upper extremity and an additional 13 

percent permanent impairment of the left lower extremity. 

On March 3, 2014 appellant requested reconsideration. He argued that he was entitled to 

additional schedule awards for each extremity based on the findings of Dr. Pick and Dr. Johnson. 

Appellant enclosed a January 10, 2014 statement in which he argued that the reports of his 

attending physicians were entitled to more weight than the medical adviser who had not 

examined him. 

By decision dated June 5, 2014, OWCP denied modification of its February 24, 2014 

decision. 

On appeal appellant argues that he should receive an additional 4 percent impairment of 

the right lower extremity as Dr. Pick found that he had a 63 percent impairment and he 

previously received an award for a 59 percent impairment. He further maintains that he is 

entitled to an additional 3 percent left lower extremity impairment as she found a 34 percent 

impairment of the left lower extremity and he previously received an award for a 31 percent 

impairment. Appellant additionally alleges that he is entitled to an additional 10 percent right 

upper extremity impairment and a 6 percent left upper extremity based on Dr. Johnson’s reports. 

He indicates that OWCP overpaid him for the lower extremities and underpaid him for the upper 

extremities. 

LEGAL PRECEDENT 

The schedule award provision of FECA,7

 and its implementing federal regulations,8 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. 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 for all claimants, OWCP has adopted 

 7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. 
5

the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

The sixth edition requires identifying 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).11 The net 

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

ANALYSIS 

In decision dated 1993 through 2010, OWCP paid appellant schedule awards totaling a 

59 percent permanent impairment of the right lower extremity, a 48 percent permanent 

impairment of the left lower extremity, a 10 percent permanent impairment of the right upper 

extremity, a 9 percent left upper extremity impairment, and a 7 percent left thumb impairment, 

which equals a 3 percent left upper extremity impairment, which equaled a 12 percent total left 

upper extremity. It additionally noted that he had received a schedule award for an impairment 

of the left upper extremity and left foot in other file numbers. 

In 2013, appellant claimed an increased schedule award and submitted impairment 

evaluations from Dr. Johnson addressing his upper extremity impairment and from Dr. Pick 

addressing his lower extremity impairment. 

For the right upper extremity, Dr. Johnson discussed appellant’s history of a rotator cuff 

repair and noted that a February arthroscopy showed a right rotator cuff rupture with no 

repairable tissue. On the right side, he found that appellant had a 6 percent impairment due to 

the rotator cuff tear, a 5 percent impairment due to post-traumatic degenerative disease, and a 

10 percent impairment for status post distal clavicle resection. Dr. Johnson combined the 

impairment ratings and concluded that appellant had a 20 percent right upper extremity 

impairment. The A.M.A., Guides, however, provides, “If a patient has 2 significant diagnoses, 

for instance, rotator cuff tear and biceps tendinitis, the examiner should use the diagnosis with 

the highest causally-related impairment rating for the impairment calculation. Thus, when rating 

a rotator cuff injury/impairment or glenohumeral pathology/surgery, incident resection 

arthroplasty of the [AC] joint is not rated.”12 Dr. Johnson, consequently, should not have 

combined the impairments from the rotator cuff tear, distal clavicle resection, and arthritis. An 

OWCP medical adviser reviewed his report and determined that the rating for the distal clavicle 

resection yielded the highest impairment. Consequently, Dr. Johnson found a 10 percent 

impairment of the right upper extremity. Appellant had previously received schedule awards 

 9 Id. at § 10.404(a). 

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

Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

11 A.M.A., Guides at 494-531. 

12 A.M.A., Guides at 387; see also R.R., Docket No. 14-998 (issued August 26, 2014). 
6

totaling a 10 percent right upper extremity impairment; therefore, appellant is not entitled to an 

additional award. 

For the left upper extremity, Dr. Johnson found a 5 percent impairment for the rotator 

cuff tear and a 10 percent impairment for the distal clavicle resection, which yielded a combined 

impairment of 15 percent. As discussed, he incorrectly combined the impairment ratings. Upon 

review, the medical adviser used the diagnosis that provided the high rating, the distal clavicle 

resection, and found a 10 percent left upper extremity impairment. Dr. Johnson noted that 

appellant had previously received a schedule award for a seven percent left thumb impairment, 

which he converted to a three percent upper extremity impairment.13 The medical adviser 

combined the upper extremity impairments to find a total left upper extremity impairment of 13 

percent. He thus found that appellant was entitled to an award for an additional 10 percent left 

upper extremity impairment. OWCP, however, previously granted appellant schedule awards for 

a 9 percent left upper extremity impairment and a 7 percent left thumb impairment, which equals 

a 12 percent left upper extremity impairment.14 Further, it indicated that he had received a prior 

award of five percent for the left upper extremity under file number xxxxxx915. Consequently, 

the case will be remanded to combine the case files and refer both records to the medical adviser 

to reconsider whether appellant is entitled to an additional schedule award for the left upper 

extremity. 

For the left lower extremity, Dr. Pick noted that appellant had range of motion from 10 to 

80 degree, mild lateral laxity and up to 4 millimeters of anterior posterior laxity. X-rays showed 

four degrees valgus alignment. Dr. Pick utilized the diagnosis of a class 3 impairment for a total 

knee replacement set forth in the knee regional grid at Table 16-3 on page 511, applicable for 

replacements that yield a fair result, with fair position, mild instability, and/or mild motion 

deficit. She applied a grade modifier 2 for functional history as appellant used assistive devices 

and a grade modifier 3 for physical examination based on his loss of range of motion. Dr. Pick 

did not apply a grade modifier for clinical studies as it appears that she used the clinical studies 

to determine the appropriate class. Application of the net adjustment formula discussed above,15

yielded an adjustment one place to the left from the default value of 37 percent to an impairment 

rating of 34 percent. An OWCP medical adviser reviewed Dr. Pick’s finding and concurred with 

her determination that appellant had a 34 percent left lower extremity impairment. The medical 

adviser found that he was entitled to an additional award for a 13 percent left lower extremity 

impairment. Appellant, however, previously received schedule awards for the left lower 

extremity totaling 48 percent, a two percent left foot impairment under file number xxxxxx915, 

and thus he is not entitled to an additional award for the left lower extremity. 

For the right knee, Dr. Pick measured range of motion of 10 to 50 degrees of flexion with 

a trace amount of medial laxity. X-rays showed two degrees valgus alignment. Dr. Pick used 

the diagnosis of a class 4 total knee replacement applicable for poor results, applicable for knee 

replacements with poor position, moderate-to-severe instability, and/or moderate-to-severe 

 13 Id. at 421, Table 15-12. 

14 Id. at 604. 

15 (GMFH - CDX) + (GMPE - CDX), or (2-3) + (3-3) = -1. 
7

motion deficit.16 She found grade modifier 3 for functional history and grade modifier 4 for 

physical examination due to loss of motion. Dr. Pick applied the grade modifiers to the default 

value of 67 percent and concluded that appellant had a 63 percent right lower extremity 

impairment. The medical adviser determined that her impairment rating for the right lower 

extremity was incorrect because she combined the diagnosis-based impairment with a rating for 

range of motion. It appears, however, that Dr. Pick used range of motion only to determine the 

appropriate grade modifier for physical examination. On remand, the medical adviser should 

reconsider the extent of appellant’s right lower extremity impairment. Following such 

development as deemed necessary, OWCP should issue a new decision regarding the extent of 

the right lower extremity impairment. 

On appeal, appellant argues that OWCP should award him the difference between his 

prior awards and the impairment ratings by Dr. Johnson and Dr. Pick. However, it is well 

established that, when the examining physician does not provide an estimate of impairment 

conforming to the A.M.A., Guides, OWCP may rely on the impairment rating provided by a 

medical adviser.17

CONCLUSION 

The Board finds that appellant has no more than a 48 percent permanent impairment of 

the left lower extremity and a 10 percent permanent impairment of the right upper extremity. 

The Board further finds that the case is not in posture for decision regarding the extent of his 

right lower extremity impairment and left upper extremity impairment. 

 16 A.M.A., Guides at 511, Table 16-3. 

17 See J.Q., 59 ECAB 366 (2008). 
8

ORDER 

IT IS HEREBY ORDERED THAT the June 5 and February 24, 2014 decisions of the 

Office of Workers’ Compensation Programs are affirmed in part and set aside in part and the 

case is remanded for further proceedings consistent with this opinion of the Board. 

Issued: June 2, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board