United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Boston, MA, Employer 

__________________________________________ 

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Docket No. 16-0525 

Issued: August 2, 2017 

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION

On January 27, 2016 appellant, through counsel, filed a timely appeal from a 

December 8, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

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.3

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 

3

 Appellant, through counsel, filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After 

exercising its discretion, the Board, by an August 10, 2016 order, denied appellant’s request for an oral argument, 

noting that counsel’s arguments on appeal could be adequately addressed in a Board decision based on a review of 

the case record as submitted. Order Denying Request for Oral Argument, Docket No. 16-0525 (issued 

August 10, 2016). 
2

ISSUE

The issue is whether appellant met his burden of proof to establish more than 23 percent 

permanent impairment of his left lower extremity and more than 8 percent permanent 

impairment of his right lower extremity, for which he previously received schedule awards. 

FACTUAL HISTORY

On April 23, 2013 appellant, then a 64-year-old retired letter carrier, filed an occupational 

disease claim (Form CA-2) for bilateral hip and knee conditions, which allegedly arose in the 

performance of duty on or about January 31, 2010.4

 In August 2013, OWCP accepted his claim 

for aggravation of preexisting bilateral hip and knee osteoarthritis.5

 

On September 13, 2013 appellant filed a claim for a schedule award (Form CA-7). 

In a January 31, 2013 report, Dr. David C. Morley, Jr., a Board-certified orthopedic 

surgeon, discussed appellant’s factual and medical history and reported the findings of his 

physical examination on that date. He noted that the findings of June 1, 2012 left knee x-ray 

testing revealed no evidence of significant arthritic changes with four millimeters of medial 

compartment joint space.6

 The findings of June 1, 2012 right knee x-ray testing showed early 

marginal osteophytes in the medial femoral condyle, but no evidence of osteophyte formation in 

the lateral and patellofemoral joint spaces. Dr. Morley posited that appellant’s bilateral knee and 

hip conditions had been aggravated by his work as a letter carrier. 

In another January 31, 2013 report, Dr. Morley discussed his calculation of the permanent 

impairment of appellant’s lower extremities under the standards of the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009) (A.M.A., Guides). He determined that appellant had 37 percent permanent impairment of 

his left lower extremity due to his left hip condition, 7 percent permanent impairment of his left 

lower extremity due to his left knee condition, 18 percent permanent impairment of his right 

lower extremity due to his right hip condition, and 20 percent permanent impairment of his right 

lower extremity due to his right knee condition. Under Table 16-4 (Hip Regional Grid) 

beginning on page 512, Dr. Morley applied the diagnosis-based impairment (DBI) method of 

rating appellant’s lower extremity permanent impairment due to his hip conditions and found a 

class 3 condition of his left hip (due to total hip replacement) and a class 2 condition of his right 

hip (due to arthritis). Under Table 16-3 (Knee Regional Grid) beginning on page 509, he used 

the DBI rating method for appellant’s lower extremity permanent impairment to find a class 1 

condition of his left knee (due to primary knee joint arthritis) and a class 2 condition of his right 

knee (due to primary knee joint arthritis). 

 4

 Appellant retired effective December 31, 2010. 

5

 Appellant also has a previously accepted traumatic injury claim for right medial meniscus tear, which occurred 

on May 28, 2003 (OWCP File No. xxxxxx835). On November 25, 2003 he had undergone a right knee partial 

lateral meniscectomy and medial femoral condyle chondroplasty. On January 26, 2006 appellant had undergone a 

left total hip arthroplasty. 

6

 The record includes a report of the June 1, 2012 left knee x-ray testing which contains an impression of apparent 

mild degenerative changes with no acute abnormality identified. 
3

In a September 3, 2013 report, Dr. Morley determined that appellant had 37 percent 

permanent impairment of his left lower extremity due to his left hip condition, 10 percent 

permanent impairment of his left lower extremity due to his left knee condition, 20 percent 

permanent impairment of his right lower extremity due to his right hip condition, and 18 percent 

permanent impairment of his right lower extremity due to his right knee condition. He again 

applied the DBI impairment rating method under Table 16-3 and Table 16-4 to evaluate 

appellant’s left and right hip conditions and his right knee condition. Dr. Morley used the range 

of motion (ROM) impairment rating method under Table 16-23 on page 549 to evaluate his left 

knee condition. He used the Combined Values Chart beginning on page 604 to combine the 

various impairment ratings and to find a total permanent impairment of 43 percent for the left 

lower extremity and a total permanent impairment of 34 percent for the right lower extremity. 

In April 2014 OWCP referred appellant for a second opinion examination with 

Dr. Frank A. Graf, a Board-certified orthopedic surgeon. It requested that Dr. Graf provide 

opinions regarding appellant’s current diagnoses, causal relationship of his medical conditions to 

work factors, disability from work, and work-related permanent impairment of his lower 

extremities. 

In a May 6, 2014 report, Dr. Graf reported physical examination findings of that date and 

indicated that appellant’s current symptoms were in his right hip and both knees. He noted that 

appellant was able to slowly squat to 93 degrees of knee flexion in both knees, that there was 

tenderness to palpation along the medial compartment joint lines of both knees, and that there 

was no instability in either knee. Dr. Graf indicated that appellant had disability due to the 

residuals of the accepted work injuries, but he did not specify the level of disability. He noted 

that appellant had reached maximum medical improvement (MMI) in his left hip and both knees, 

but that appellant was considering total right hip replacement due to increasing pain and should 

not be considered at MMI for the right hip. Dr. Graf attached a worksheet in which he provided 

permanent impairment calculations under the standards of the sixth edition of the A.M.A., 

Guides. He determined that, under Table 16-4, appellant had 31 percent permanent impairment 

of his left lower extremity due to a class 3 left hip condition (total hip replacement) and that, 

under Table 16-3, he had 10 percent permanent impairment of his left lower extremity due to a 

class 1 left knee condition (arthritis). Dr. Graf also found that, under Table 16-4, appellant had 

20 percent permanent impairment of his right lower extremity due to a class 2 right hip condition 

(arthritis) and that, under Table 16-3, he had 20 percent permanent impairment of his right lower 

extremity due to a class 2 right knee condition (arthritis). 

OWCP requested that Dr. Graf produce a supplemental report regarding his rating of the 

permanent impairment of appellant’s lower extremities, to include clarification regarding 

whether appellant’s right hip condition had reached MMI. In a supplemental June 3, 2014 report 

and worksheet, Dr. Graf determined that appellant had 38 percent permanent impairment of his 

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

standards of the sixth edition of the A.M.A., Guides. He found that, under Table 16-4, appellant 

had 31 percent permanent impairment of his left lower extremity due to a class 3 left hip 

condition (total hip replacement) and that, under Table 16-3, he had 10 percent permanent 

impairment of his left lower extremity due to a class 1 left hip condition (arthritis). Dr. Graf 

indicated that the 20 percent permanent impairment of appellant’s right lower extremity was due 

to a class 2 condition of his right knee (arthritis) as calculated under Table 16-3. He did not 
4

provide a permanent impairment rating for appellant’s right hip and noted that appellant should 

not be considered at MMI for the right hip. 

In a June 20, 2014 letter, OWCP requested that Dr. Morley Slutsky, a Board-certified 

occupational medicine physician, evaluate appellant’s permanent impairment in his capacity as 

an OWCP medical adviser. It advised Dr. Slutsky that he should only consider the permanent 

impairment rating provided by Dr. Morley and that he should provide permanent impairment 

ratings for appellant’s lower extremities under the standards of the sixth edition of the A.M.A., 

Guides.

7

 OWCP asked Dr. Slutsky to discuss any disagreement with Dr. Morley’s impairment 

rating and requested that he determine the date of MMI based on the medical evidence of record. 

In a June 20, 2014 report, Dr. Slutsky found that appellant had 32 percent permanent 

impairment of his left lower extremity and 11 percent permanent impairment of his right lower 

extremity under the standards of the sixth edition of the A.M.A., Guides. He noted that, under 

Table 16-4, appellant had 31 percent permanent impairment of his left lower extremity due to a 

class 3 left hip condition (total hip replacement) and that, under Table 16-3, he had 2 percent 

permanent impairment of his left lower extremity due to a class 1 left knee condition (soft tissue 

lesion with consistent motion deficits). Dr. Slutsky also found that, under Table 16-4, appellant 

had nine percent permanent impairment of his right lower extremity due to a class 1 right hip 

condition (arthritis) and that, under Table 16-3, he had two percent permanent impairment of his 

right lower extremity due to a class 1 right knee condition (partial lateral meniscectomy).8

 He 

used the Combined Values Chart to combine the various impairment ratings and to find total 

permanent impairment of 32 percent for the left lower extremity and total permanent impairment 

of 11 percent for the right lower extremity. Dr. Slutsky found that appellant had reached MMI 

for both knees and hips by January 31, 2013 because these conditions had stabilized by that date. 

In a January 20, 2015 letter, OWCP provided Dr. Morley 30 days to provide additional 

comments regarding appellant’s permanent impairment. In a February 9, 2015 report, 

Dr. Morley indicated that he had reviewed Dr. Slutsky’s June 20, 2014 report and discussed how 

his impairment rating differed from that of Dr. Slutsky. He noted that he believed that, with 

respect to appellant’s left hip, the grade modifier for physical examination was “not applicable,” 

whereas Dr. Slutsky had assigned the value of “zero” for this modifier. Dr. Morley indicated 

that, therefore, the “proper left impairment is 37 [percent].” With respect to appellant’s left 

knee, he expressed his disagreement with Dr. Slutsky’s use of the DBI rating method and 

indicated that appellant’s impairment was best calculated under the ROM impairment rating 

method. Under Table 16-23 on page 549 of the sixth edition of the A.M.A., Guides, appellant 

had 10 percent permanent impairment of his left lower extremity due to mild limitation of left 

knee motion. Dr. Morley indicated that, with respect to appellant’s right lower extremity, he 

disagreed with Dr. Slutsky’s class designations for the right hip and knee conditions, and he 

 7

 OWCP indicated that it referred appellant for a second opinion medical examination with Dr. Graf and 

requested an opinion on permanent impairment, but noted that this was done in error as the case file was not in 

posture for a second opinion regarding permanent impairment at the time of the examination. It did not provide any 

further explanation of why it felt that the referral to Dr. Graf was in error. 

8

 Dr. Slutsky calculated various grade modifiers for appellant’s bilateral hip and knee conditions. For the left hip, 

he determined that appellant had a functional history grade modifier of 3 and a physical examination grade modifier 

of 0. Dr. Slutsky found that the grade modifier for clinical studies was not applicable because clinical studies were 

used to place appellant in the correct diagnostic class. See A.M.A., Guides 215-21. 
5

reported that his assessment of the permanent impairment of the right lower extremity due to 

these conditions remained the same as noted in his earlier report. 

OWCP determined that there was a conflict in the medical opinion evidence between 

Dr. Morley, the attending physician, and Dr. Slutsky, OWCP’s medical adviser, and referred 

appellant to Dr. Robert R. Pennell, a Board-certified orthopedic surgeon, for an impartial 

medical examination and opinion on permanent impairment. 

In a May 28, 2015 report, Dr. Pennell discussed appellant’s factual and medical history 

and reported findings of his examination on May 28, 2015. He noted that, upon examination, 

appellant complained of very minor tenderness on palpation of his right hip but that he had no 

tenderness on palpation of his left hip. Appellant reported mild tenderness on palpation of his 

right knee lateral joint line, but no tenderness on palpation of his left knee. Dr. Pennell provided 

findings of ROM testing for both hips, knees, and ankles. He opined that appellant had 22 

percent permanent impairment of his left lower extremity and 15 percent permanent impairment 

of his right lower extremity under the sixth edition of the A.M.A., Guides.

9

 Dr. Pennell indicated 

that, under Table 16-4 beginning on page 512, appellant had class 2 impairment as a result of a 

left total hip joint replacement with a good result which resulted in 21 percent permanent 

impairment of his left lower extremity.10 He noted that, under Table 16-3 beginning on page 

509, appellant had one percent permanent impairment of his left lower extremity as the result of 

his left knee condition (other soft tissue lesion with significant palpatory and/or radiographic 

findings).11 Dr. Pennell used the Combined Values Chart to combine these impairment ratings to 

conclude that appellant’s total permanent impairment of the left lower extremity was 22 percent. 

He noted that, under Table 16-4, appellant had class 1 impairment as a result of his right hip 

arthritis which resulted in six percent permanent impairment of his right lower extremity.12 

Dr. Pennell indicated that, under Table 16-23 on page 549, appellant had 10 percent permanent 

impairment of his right lower extremity as a result of the loss of motion of the right knee joint. 

He used the Combined Values Chart to combine these impairment ratings and conclude that 

appellant’s total permanent impairment of the right lower extremity was 15 percent. 

OWCP referred the case to Dr. David I. Krohn, a Board-certified internist serving as an 

OWCP medical adviser, for an opinion on appellant’s permanent impairment under the sixth 

edition of the A.M.A., Guides. In a report dated November 23, 2015, Dr. Krohn concluded that 

appellant had 23 percent permanent impairment of his left lower extremity and 8 percent 

permanent impairment of his right lower extremity under the sixth edition of the A.M.A., 

 9

 Dr. Pennell indicated that appellant was at MMI for his right hip and left knee on December 31, 2010 (his 

retirement date), for his right knee on November 25, 2004 (one year following the November 25, 2003 right knee 

operation), and for his left hip on January 26, 2007 (one year following the January 26, 2006 total left hip 

replacement). 

10 Dr. Pennell determined that, for his left hip, appellant had a functional history grade modifier of 0 and a 

physical examination grade modifier of 1. He found that the clinical studies grade modifier was not applicable. 

Dr. Pennell used the grade modifiers to calculate the net adjustment formula. See A.M.A., Guides 515-22. 

11 Dr. Pennell reported that, for his left knee, appellant had a functional history grade modifier of 1, a physical 

examination grade modifier of 1, and a clinical studies grade modifier of 1. 

12 Dr. Pennell determined that, for his right hip, appellant had a functional history grade modifier of 1 and a 

physical examination grade modifier of 0. He found that the clinical studies grade modifier was not applicable. 
6

Guides. He derived his impairment ratings based on the examination findings of Dr. Pennell. 

With regard to the left lower extremity, Dr. Krohn found that appellant had 21 percent permanent 

impairment of the left lower extremity due to left hip arthritis (derived under Table 16-4). With 

respect to the left hip, he calculated the grade modifiers and applied the net adjustment formula 

in the same manner as Dr. Pennell to find 21 percent permanent impairment of the left lower 

extremity. With respect to appellant’s left knee, Dr. Krohn determined that the correct diagnosis 

was other soft tissue lesion, versus Dr. Pennell’s diagnosis of arthritis, because there was no 

evidence of left knee arthritis qualifying for a DBI impairment rating under Table 16-3 in the 

case file. He derived a two percent left lower extremity rating due to appellant’s soft tissue 

lesion (under Table 16-3). Dr. Krohn used the Combined Values Chart to combine these values 

and to find that appellant had a total impairment rating of 23 percent for his left lower extremity. 

He found that appellant had six percent impairment of the right lower extremity due to right hip 

arthritis (derived under Table 16-4 (Hip Regional Grid) beginning on page 512). With respect to 

the right hip, Dr. Krohn calculated the grade modifiers and applied the net adjustment formula in 

the same manner as Dr. Pennell to find six percent permanent impairment of the right lower 

extremity. He opined that the most appropriate diagnosis for appellant’s right knee was a class 1 

lateral meniscal injury with a rating of two percent rating for the right lower extremity (derived 

under Table 16-3 (Knee Regional Grid) beginning on page 509). Dr. Krohn used the Combined 

Values Chart to combine these ratings and to find that appellant had a permanent impairment 

rating of eight percent for his right lower extremity. 

In a December 8, 2015 decision, OWCP granted appellant schedule awards for 23 percent 

permanent impairment of his left lower extremity and 8 percent permanent impairment of his 

right lower extremity. The awards ran for a total of 89.28 weeks and was based on Dr. Krohn’s 

impairment rating which evaluated the examination findings obtained by Dr. Pennell. 

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.13 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 American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule 

losses.14 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).15

FECA provides that, if there is disagreement between an OWCP-designated physician 

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

 13 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ 

compensation. 5 U.S.C. § 8107(c)(2). 

14 20 C.F.R. § 10.404. 

15 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 and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 
7

examination.16 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually 

equal weight and rationale.”17 Where OWCP has referred the case to an impartial medical 

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

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

weight.18

The Board has long held that an OWCP medical adviser may create a conflict in medical 

opinion with an examining physician.19 OWCP’s procedures provide that cases returned from a 

referee medical examiner should not routinely be sent to an OWCP DMA for review unless a 

schedule award is at issue.20 Where a referee examination was arranged to resolve a conflict 

created by a DMA with respect to a schedule award issue, the same DMA should not review the 

referee specialist’s report.21 Instead, another DMA or OWCP medical consultant should review 

the file.22

When a case has been referred for a referee evaluation to resolve the issue of permanent 

impairment, it is appropriate for the DMA to review the calculations to ensure the referee 

physician appropriately used the A.M.A., Guides.

23 

ANALYSIS 

OWCP accepted appellant’s claim for aggravation of preexisting osteoarthritis of both 

hips and aggravation of preexisting osteoarthritis of both knees.24 On September 13, 2013 

appellant filed a Form CA-7 claiming a schedule award due to his accepted work injuries. By 

decision dated December 8, 2015, OWCP granted appellant schedule awards for 23 percent 

permanent impairment of his left lower extremity and 8 percent permanent impairment of his 

right lower extremity. The awards were based on the impairment rating of Dr. Krohn, an OWCP 

medical adviser, who had evaluated the findings of Dr. Pennell, the impartial medical specialist. 

 16 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The district medical 

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

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

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

19 See Harold Travis, 30 ECAB 1071 (1979); see 20 C.F.R. § 10.321(b). 

20 Supra note 15 at Chapter 2.810.11f (September 2010). 

21 Id.

22 Id. 

23 Id. at Chapter 2.810.8k (September 2010). Although the DMA may review the opinion of a referee specialist in 

a schedule award case, the resolution of the conflict is the specialist’s responsibility. Id. The DMA cannot resolve a 

conflict in medical opinion. Id.

24 On November 25, 2003 appellant had undergone a right knee partial lateral meniscectomy and medial femoral 

condyle chondroplasty. On January 26, 2006 he had undergone a left total hip arthroplasty. 
8

The Board finds that appellant did not meet his burden of proof to establish more than 23 

percent permanent impairment of his left lower extremity and more than 8 percent permanent 

impairment of his right lower extremity, for which he received schedule awards. 

The Board notes that OWCP properly found that there was a conflict in the medical 

opinion evidence regarding the extent of appellant’s permanent impairment between Dr. Morley, 

an attending physician, and Dr. Slutsky, OWCP’s DMA, and referred appellant to Dr. Pennell for 

an impartial medical examination and opinion on permanent impairment.25 

On appeal, counsel argues that OWCP improperly found a conflict in the medical opinion 

evidence between Dr. Morley and Dr. Slutsky because Dr. Morley examined appellant, but 

Dr. Slutsky did not examine him. OWCP regulations, Board precedent, and OWCP’s procedures 

each recognize that an OWCP medical adviser, without having conducted a physical 

examination, can create a conflict in medical opinion evidence.26

In a May 28, 2015 report, Dr. Pennell opined that appellant had 22 percent permanent 

impairment of his left lower extremity and 15 percent permanent impairment of his right lower 

extremity under the sixth edition of the A.M.A., Guides. He indicated that, under Table 16-4 

beginning on page 512, appellant had a class 2 impairment as a result of a left total hip joint 

replacement with a good result which represented 21 percent impairment of his left lower 

extremity. Dr. Pennell noted that, under Table 16-3 beginning on page 509, appellant had one 

percent permanent impairment of his left lower extremity as the result of his left knee condition 

(other soft tissue lesion with significant palpatory and/or radiographic findings). He used the 

Combined Values Chart to combine these impairment ratings and conclude that appellant’s total 

permanent impairment of his left lower extremity was 22 percent. Dr. Pennell noted that, under 

Table 16-4, appellant had a class 1 impairment as a result of his right hip arthritis which resulted 

in six percent permanent impairment of his right lower extremity.27 He indicated that, under 

Table 16-23 on page 549, appellant had 10 percent permanent impairment of his right lower 

extremity as a result of the loss of motion of the right knee joint. Dr. Pennell used the Combined 

Values Chart to combine these impairment ratings and conclude that appellant’s total permanent 

impairment of his right lower extremity was 15 percent. 

In a report dated November 23, 2015, Dr. Krohn, OWCP’s medical adviser, derived an 

impairment rating under the sixth edition of the A.M.A., Guides, based on the examination 

findings of Dr. Pennell. It was proper for OWCP to refer the case to Dr. Krohn in his capacity as 

an OWCP medical adviser because OWCP procedures provide for such referrals in schedule 

award cases.28 The Board finds that Dr. Krohn properly provided an opinion that appellant has 

 25 In his most recent September 3, 2013 impairment rating, Dr. Morley found a combined 43 percent left lower 

extremity permanent impairment and 34 percent right lower extremity permanent impairment. Dr. Slutsky, the 

initial DMA, reviewed the record, including Dr. Morley’s findings, and in a report dated June 20, 2014 found 32 

percent left lower extremity permanent impairment and 11 percent permanent impairment of the right lower 

extremity. OWCP afforded Dr. Morley an opportunity to review Dr. Slutsky’s impairment rating, and in a report 

dated February 9, 2015, appellant’s physician disagreed with the DMA’s impairment rating. 

26 See supra notes 16, 19, and 20. 

27 Dr. Pennell determined that, for his right hip, appellant had a functional history grade modifier of 1 and a 

physical examination grade modifier of 0. He found that the clinical studies grade modifier was not applicable. 

28 See supra notes 20 and 23. 
9

23 percent permanent impairment of his left lower extremity and 8 percent permanent 

impairment of his right lower extremity. His report constitutes the weight of the medical 

evidence with respect to appellant’s permanent impairment because he corrected errors in 

Dr. Pennell’s application of the standards of the A.M.A., Guides.

29

Dr. Krohn properly concluded that appellant had 23 percent permanent impairment of his 

left lower extremity and 8 percent permanent impairment of his right lower extremity under the 

sixth edition of the A.M.A., Guides. In his rating report, he found that Dr. Pennell had not 

properly applied the standards of the sixth edition of the A.M.A., Guides. For example, 

Dr. Krohn properly opined that the most appropriate method to rate appellant’s right knee 

condition was to apply the DBI rating method under Table 16-3 for his right partial lateral 

meniscectomy. He correctly calculated that appellant had a two percent permanent impairment 

of his right lower extremity due to this condition. The Board notes that Dr. Pennell applied the 

ROM method under Table 16-3 to rate appellant’s right lower extremity impairment due to his 

right knee condition, but that Table 16-3 does not provide for use of this method to rate 

appellant’s right knee condition and Dr. Pennell did not otherwise adequately explain why it was 

appropriate to use the ROM method.30 With respect to appellant’s left knee, Dr. Krohn 

determined that the correct diagnosis was other soft tissue lesion, rather than arthritis, because 

there was no evidence in the case file of left knee arthritis which qualified appellant for an 

impairment rating under Table 16-3.31 He then properly derived a two percent left lower 

extremity rating due to appellant’s soft tissue lesion under Table 16-3.32 The Board notes that 

Dr. Krohn properly derived the same permanent impairment ratings for appellant’s left and right 

hips as Dr. Pennell. He then properly used the Combined Values Chart beginning on page 604 to 

combine the relevant impairment ratings and concluded that appellant had 23 percent permanent 

impairment of his left lower extremity and 8 percent permanent impairment of his right lower 

extremity. The Board has carefully reviewed Dr. Krohn’s rating report and finds that he has 

adequately explained how it comports with the standards of the sixth edition of the A.M.A., 

Guides. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

 

 29 See supra note 23. 

30 See A.M.A., Guides 509-11. The A.M.A., Guides provides that the DBI method is the primary method of 

evaluating lower extremity permanent impairment. The ROM method is used to determine actual impairment values 

of the lower extremities only when it is not possible to otherwise define impairment. Id. at 497. See also E.M., 

Docket No. 14-0311 (issued July 8, 2014). 

31 The Board notes that the record contains the findings of June 1, 2012 left knee x-ray testing which reveal no 

evidence of significant arthritis changes with four millimeters of medial compartment joint space. A claimant must 

have three millimeters of cartilage interval or full-thickness articular cartilage defect to qualify for a DBI rating 

under Table 16-3 and there is no evidence that appellant has either of these conditions. See A.M.A., Guides 511. 

32 The Board notes that Dr. Krohn’s left lower extremity impairment rating due to appellant’s left knee condition 

was actually higher than the one percent impairment rating provided by Dr. Pennell. 
10

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish more than 23 

percent permanent impairment of his left lower extremity and more than 8 percent permanent 

impairment of his right lower extremity, for which he previously received schedule awards. 

ORDER 

IT IS HEREBY ORDERED THAT the December 8, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 2, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board