United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.R., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Stockton, CA, Employer 

__________________________________________ 

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Docket No. 16-1460 

Issued: December 14, 2016 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On July 1, 2016 appellant filed a timely appeal from a February 2, 2016 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 12 percent permanent impairment of the 

right upper extremity and 24 percent permanent impairment of the right lower extremity, for 

which he received schedule awards. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 12, 2014 appellant, then a 53-year-old revenue officer, filed a traumatic injury 

claim (Form CA-1) alleging that on June 23, 2014 he shattered his right femur and right elbow 

joint when he fell down stairs.2 He stopped work on June 23, 2014. 

OWCP accepted the claim for a closed peritrochanteric fracture of the neck of the femur, 

intertrochanteric section, an open fracture of the lower end of the humerus, a closed fracture of 

the upper end of the humerus, and a right elbow contusion. On June 23, 2014 appellant 

underwent a “drainage and splinting of the open, right distal humerus fracture and intramedullary 

fixation of the right proximal femur fractures.” He received hospital treatment in July 2014 due 

to his surgery for right hip wound cellulitis. 

In a report dated October 15, 2015, Dr. Helen Mindy Weinrit, a Board-certified 

anesthesiologist, opined that appellant had reached maximum medical improvement. She 

advised that she was not providing an impairment evaluation as she had no training in the 

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

Permanent Impairment (A.M.A., Guides). Dr. Weinrit diagnosed an intertrochanteric fracture of 

the right femur and an open, comminuted fracture of the right distal humerus with intra-articular 

extension. She related that appellant could not fully extend his right arm and experienced upper 

right arm pain that was mild but increased with exercise. Appellant further complained of mildto-moderate right hip pain and “numbness of the posterior right elbow, right buttock, and right 

groin.” Dr. Weinrit described appellant’s difficulties performing activities of daily living. On 

examination, she found mild tenderness of the upper right arm with full strength and no swelling 

or atrophy. Dr. Weinrit provided range of motion measurements obtained by a physical therapist 

for the elbows, forearms, and right hip. She found full strength with no swelling, atrophy, or 

tenderness of the right hip area but “decreased sensation to pinprick that correlates with an L2-3 

nerve distribution, of the right proximal groin and anterolateral hip.” Dr. Weinrit measured 

appellant’s leg length as 40.25 on the right and 41.75 on the left. 

OWCP, on November 12, 2015, referred appellant to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the extent of any 

employment-related permanent impairment. 

In an impairment evaluation dated December 2, 2015, Dr. Swartz discussed appellant’s 

symptoms of pain rated 5/10 in his right hip and elbow. He measured range of motion for both 

elbows. For the right elbow, Dr. Swartz measured -35 degrees extension, 75 degrees flexion, 90 

degrees pronation, and 45 degrees supination. He found 4/5 strength of the right arm. On right 

hip examination, Dr. Swartz found a 2.7 inch shortening of the right leg and thigh circumference 

of 67 centimeters on the right and 71 centimeters on the left. He diagnosed status post fracture 

of the right distal humerus extending into the elbow joint treated with an open reduction and 

internal fixation with plate and screw instrumentation and status post open reduction and internal 

fixation of the right hip with an intramedullary nail and compression screw in the femoral head 

 2

 Appellant fell down stairs at his residence while on flexi place and packing for “approved work[-]related travel.” 

The employing establishment confirmed that he “was engaged in official duties at his residence” when the injury 

occurred. 
3

and neck. Referencing the elbow regional grid set forth at Table 15-4 on page 399, Dr. Swartz 

identified the diagnosis as a right distal humerus fracture. He determined, however, that he could 

not use the elbow regional grid to rate the diagnosed condition as it required “normal range of 

motion of the elbow to proceed with an impairment rating.” Dr. Swartz used the range of motion 

measurements he obtained and determined that, under Table 15-33 on page 474, -35 degrees 

extension yielded 2 percent impairment, 75 degrees extension yielded 8 percent impairment, 90 

degrees pronation yielded no impairment, and 45 degrees supination yielded 2 percent 

impairment, for a total right upper extremity impairment of 12 percent. He applied grade 

modifiers of two for functional history of pain and loss of use, which he found did not exceed the 

range of motion grade modifier of two, for a total right upper extremity impairment of 12 

percent. For the right hip, Dr. Swartz identified the diagnosis as a class 2 fractured right hip and 

femur using Table 16-4, the hip regional grid, set forth on page 514 of the A.M.A., Guides. He 

applied a grade modifier of 2 for functional history due to appellant’s use of a cane and severe 

limp, and a grade modifier of 4 due to the shortening of his right leg to the default value of 20 

percent. Applying the net adjustment formula, Dr. Swartz found a grade modifier of 2, or 24 

percent right leg impairment. 

On January 6, 2016 an OWCP medical adviser reviewed Dr. Swartz’ report and 

concurred with his impairment rating for the right upper and lower extremities. 

By decision dated February 2, 2016, OWCP granted appellant a schedule award for 12 

percent permanent impairment of the right upper extremity and 24 percent permanent 

impairment of the right lower extremity. The period of the award ran for 106.56 weeks from 

December 2, 2015 to December 16, 2017. 

On appeal appellant contends that he has a class 3 hip fracture with a default value of 30 

percent rather than a class 2 hip fracture with a default value of 24 percent under Table 16-4 on 

page 514. He asserts that he has a discrepancy in leg length of seven centimeters, uses a cane or 

crutch for walking, and has an unstable gait. Appellant also notes that he had cellulitis of his 

wound, which yields a class 4 impairment. He cites an example provided on page 529 of the 

A.M.A., Guides for a hip fracture and maintains that he has at least 30 percent lower extremity 

impairment, which should be increased to 50 percent right lower extremity impairment based on 

his wound infection. 

LEGAL PRECEDENT 

The schedule award provision of FECA,3 and its implementing federal regulations,4 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 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 
4

the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is 

then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination 

(GMPE), and Clinical Studies (GMCS).7

 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX). 

ANALYSIS 

OWCP accepted that appellant sustained a closed peritrochanteric fracture of the femur, 

an open fracture of the lower end of the humerus, a closed fracture of the upper end of the 

humerus, and a right elbow contusion as a result of a June 23, 2014 employment injury. 

Appellant underwent surgery on June 23, 2014 to repair the fractures. 

Dr. Weinrit, an attending physician, advised in an October 15, 2015 report that appellant 

had reached maximum medical improvement. She diagnosed a right femur fracture and an open 

fracture of the right distal humerus with intra-articular extension. Dr. Weinrit related that 

appellant was unable to fully extend his arm. Appellant further experienced mild right arm pain 

that increased with exercise and mild-to-moderate pain in the right hip with numbness into the 

right buttock and groin. Dr. Weinrit provided examination findings of upper right arm 

tenderness without a loss of strength, swelling, or atrophy. She further found no right hip 

atrophy, swelling, or loss of strength but decreased sensation in the L2-3 nerve distribution. 

Dr. Weinrit did not rate appellant’s impairment as she indicated that she was unfamiliar with the 

sixth edition of the A.M.A., Guides. 

OWCP referred appellant to Dr. Swartz for an impairment evaluation. On December 2, 

2015 Dr. Swartz diagnosed status post fracture of the right distal humerus extending into the 

elbow joint treated with an open reduction and internal fixation and status post internal fixation 

of the right hip. He noted that the diagnosed condition of a right distal humerus fracture could 

not be rated using the elbow regional grid as appellant’s range of motion was abnormal.8

 

Dr. Swartz thus rated the elbow impairment using range of motion. He found that, according to 

Table 15-33 on page 474, a loss of 35 degrees extension equaled 2 percent impairment, 75 

degrees flexion equaled 8 percent impairment, 90 degrees pronation equaled no impairment, and 

45 degrees supination yielded 2 percent impairment, for a total right arm permanent impairment 

 5 Id. at § 10.404(a). 

6

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

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

(January 2010). 

7

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

8

 The A.M.A., Guides 399, Table 15-4, the elbow regional grid, provides that the diagnosed condition of an elbow 

fractures is used to rate an impairment that causes residuals symptoms with “consistent objective findings and/or 

functional loss, with normal motion.” 
5

due to loss of motion of 12 percent. Dr. Swartz applied a grade modifier to the loss of range of 

motion of two for functional history, which did not alter the 12 percent impairment rating. 

Dr. Swartz identified the right hip diagnosis as a class 2 fracture. Utilizing the hip 

regional grid set forth in Table 16-4 on page 514, he found a default impairment of 20 percent. 

Dr. Swartz applied a grade modifier of two for functional history due to appellant’s limp and use 

of a cane and a grade modifier of four for clinical studies findings of shortening of the right leg. 

Applying the net adjustment formula moved the impairment rating two places to the right, for 24 

percent right lower extremity permanent impairment.9

An OWCP medical adviser reviewed the evidence on January 6, 2016 and agreed with 

Dr. Swartz’s findings. The Board finds that there is no medical evidence of record showing that 

appellant has more than 12 percent impairment of the right upper extremity and 24 percent 

permanent impairment of the right lower extremity. 

On appeal appellant contends that his diagnosed condition should be a class 3 hip 

fracture, for a default value of 30 percent under Table 16-4. He notes that he has leg length 

discrepancy and experienced cellulitis following surgery. Appellant asserts that due to his 

cellulitis he has a class 4 hip fracture under Table 16-4, for 50 percent impairment. He has the 

burden, however, to submit probative medical evidence showing more than 24 percent right 

lower extremity impairment.10 Appellant’s lay opinion on the extent of his impairment is 

insufficient to discharge his burden of proof as the Board has held that lay individuals are not 

competent to render a medical opinion.11

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. 

CONCLUSION 

The Board finds that appellant has no more than 12 percent permanent impairment of the 

right upper extremity and 24 percent permanent impairment of the right lower extremity, for 

which he received schedule awards. 

 9

 Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) or (2-2) + (4-2) =2, 

yielded an adjustment of two. Clinical studies were used to identify the diagnosis and thus are not applicable in the 

impairment calculation. A.M.A., Guides 515-16. 

10 See K.S., Docket No. 15-0741 (issued August 10, 2015); D.H., 58 ECAB 358 (2007). 

11 See L.W., Docket No. 14-0503 (issued June 20, 2014); Gloria J. McPherson, 51 ECAB 441 (2000). 
6

ORDER 

IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 14, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board