United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.H., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Stamford, CT, Employer

__________________________________________

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Docket No. 17-1699

Issued: December 18, 2018

Appearances: Case Submitted on the Record

David P. McCormack, Esq., for the appellant1

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 August 1, 2017 appellant, through counsel, filed a timely appeal from a February 17, 

2017 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 Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R. 

§ 501.5(b). By order dated February 1, 2018, the Board exercised its discretion and denied the request as appellant’s 

arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the 

record. Order Denying Request for Oral Argument, Docket No. 17-1699 (issued February 1, 2018).
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 31 percent 

permanent impairment of his right lower extremity, for which he previously received a schedule 

award.

FACTUAL HISTORY

On June 21, 2013 appellant, then a 59-year-old letter carrier, filed an occupational disease 

claim (Form CA-2) alleging that he developed permanent acceleration of osteoarthritis of his right 

hip due to factors of his federal employment. He underwent right total hip replacement surgery 

on March 5, 2012. By decision dated October 2, 2013, OWCP accepted the claim for aggravation 

of preexisting osteoarthritis of the right hip.

On October 22, 2013 appellant filed a claim for a schedule award (Form CA-7).

In a February 27, 2013 report, Dr. Frank A. DiFazio, a Board-certified orthopedic surgeon,

found that appellant’s right hip examination showed a well-healed surgical scar and no swelling, 

erythema, warmth, or focal tenderness. He advised that appellant was capable of working with 

restrictions of no prolonged standing, walking, or lifting greater than 40 pounds. Dr. DiFazio

opined that appellant had reached maximum medical improvement (MMI) and had 37 percent 

permanent impairment of the right lower extremity based on the fifth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4

On October 10, 2013 Dr. Byron V. Hartunian, an orthopedic surgeon, opined that appellant 

had 37 percent permanent impairment of the right lower extremity using the sixth edition of the 

A.M.A., Guides.

5

 He concurred with Dr. DiFazio that appellant had reached MMI as of

February 27, 2013. Dr. Hartunian diagnosed status post right total hip replacement for end-stage 

degenerative arthritis. He measured appellant’s range of motion (ROM) of the right hip using a 

goniometer three times with the highest range recorded for flexion 98 degrees, abduction 26 

degrees, and adduction 20 degrees. On combined flexion and rotation appellant experienced some 

mild right groin discomfort. Based on the sixth edition of the A.M.A., Guides, Dr. Hartunian 

calculated that appellant’s total hip replacement condition was consistent with a class 3 diagnosis 

because there was a mild motion deficit in flexion and rotations, per Table 16-24. There were no 

other physical findings documented so he found that a grade modifier for physical examination 

(GMPE) was not applicable. Dr. Hartunian found that a grade modifier for clinical studies 

(GMCS) was not applicable because x-rays taken approximately one year after surgery confirmed 

the diagnosis. He assigned a grade modifier of zero for functional history (GMFH) because there 

was no antalgic limp. Dr. Hartunian assigned a grade modifier of 3 for severe deficit based on the 

American Academy of Orthopaedic Surgeons (AAOS) Lower Limb Questionnaire completed by 

appellant. He indicated that the A.M.A., Guides indicated that the higher grade modifier of 3 was 

to be used in the calculation and therefore the net adjustment formula resulted in a class 3, grade 

C impairment, equaling a 37 percent impairment rating for the right lower extremity.

 

4 A.M.A., Guides (5th ed. 2001).

5

Id. at (6th ed. 2009).
3

Appellant submitted a copy of his AAOS Lower Limb Questionnaire dated May 9, 2013.

On November 12, 2013 Dr. Robert Y. Pick, a Board-certified orthopedic surgeon and 

OWCP district medical adviser (DMA), reviewed the medical evidence of record and opined that 

appellant’s right total hip replacement on March 5, 2012 was unrelated to his accepted condition 

or factors of his federal employment.

On March 27, 2014 another DMA, Dr. Morley Slutsky, a Board-certified occupational 

medicine specialist, disagreed with Dr. Pick and found that appellant’s March 5, 2012 surgery was 

warranted and necessitated by his accepted work-related condition. Based on the sixth edition of 

the A.M.A., Guides, he calculated that appellant had a class 3 diagnosis for status post right hip 

surgery with good results because his hip ROM had a mild deficit, the hardware had good 

placement, and there was no hip instability. Dr. Slutsky assigned a grade modifier of zero for 

physical examination because there was no tenderness, swelling, erythema, or increased warmth 

and a grade modifier of zero for functional history because appellant did not have an antalgic gait 

requiring the use of a single gait aid or external orthotic device for stabilization. Dr. Slutsky noted 

that there was no documentation of a positive Trendelenburg’s sign. He found that Dr. Hartunian’s 

grade modifier of 3 secondary to appellant’s AAOS score was unreliable and would not be used 

for impairment calculations because the score was 3 grade modifiers greater than the GMFH of 

zero. Dr. Slutsky concurred with Dr. Hartunian that a grade modifier for clinical studies was not 

applicable because there were no studies presented at MMI that were specific to the diagnosis 

being rated. He concluded that appellant had 31 percent permanent impairment of the right lower 

extremity.

In an April 7, 2014 letter, OWCP provided a copy of Dr. Slutsky’s March 27, 2014 report 

to Dr. Hartunian and requested a supplemental report providing an opinion about appellant’s workrelated condition and any resulting impairment. Dr. Hartunian did not respond.

OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified orthopedic surgeon, 

for a second opinion evaluation. In his December 9, 2014 report, Dr. Somogyi found that appellant 

reported right hip pain and difficulties with getting on a bed due to soreness “stiffness.” The ROM 

of the left hip was full and painless and the ROM of the right hip revealed flexion performed to 90 

degrees. Extension was full and abduction was somewhat restricted. Rotational movements were 

significantly restricted. There were no palpatory findings. Dr. Somogyi determined that appellant 

reached MMI in March 2013, one year after his right hip surgery. He calculated that appellant had 

a default impairment of 37 percent for his diagnosis of status post right total hip replacement 

surgery. Dr. Somogyi assigned a grade modifier of 2 for functional history and physical 

examination because appellant had moderate problems with his right lower extremity. He stated 

that a grade modifier for clinical studies was not applicable in this case. Dr. Somogyi concluded 

that appellant had 31 percent permanent impairment of the right lower extremity.

In a supplemental report dated March 9, 2015, Dr. Somogyi asserted that his opinion was 

based upon the available information at the time, including the contents of a previously completed 

second opinion examination regarding appellant’s case.

By decision dated July 30, 2015, OWCP awarded appellant a schedule award for 31 percent 

permanent impairment of the right lower extremity. The award ran for 89.28 weeks for the period 

February 27, 2013 to November 13, 2014 and a fraction of a day.
4

On August 5, 2015 counsel requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review.

By decision dated November 23, 2015, an OWCP hearing representative found that the 

case was not in posture for a hearing and vacated the prior decision because further development 

of the medical evidence was warranted as Dr. Somogyi’s second opinion evaluation lacked 

probative value. The hearing representative found that Dr. Somogyi failed to identify the tables 

and pages of the A.M.A., Guides he used to calculate appellant’s impairment rating and a specific 

date of MMI for schedule award purposes.

In a supplemental report dated February 23, 2016, Dr. Somogyi indicated that he relied on 

Table 16-4, page 515, of the A.M.A., Guides. He stated that appellant’s impairment rating was 

based on a class 3 impairment of the hip as identified on page 515. Dr. Somogyi assigned a grade 

modifier of one for functional history and physical examination for mild problems. He calculated 

that the net adjustment was two, which resulted in an impairment of 31 percent permanent 

impairment of the right lower extremity for degenerative arthritis and total hip replacement. 

Dr. Somogyi determined that appellant’s date of MMI was February 27, 2013.

On March 20, 2016 Dr. Herbert White, a Board-certified internist and occupational 

medicine specialist serving as a DMA for OWCP, reviewed the medical evidence of record and 

concurred with Dr. Somogyi’s impairment rating. Utilizing Table 16-4, page 515, of the A.M.A.,

Guides, Dr. White calculated that appellant had a default impairment rating of 37 percent for his 

diagnosis of total right hip replacement. He assigned a grade modifier of one for functional history

for his antalgic gait. Dr. White found that a grade modifier for physical examination was excluded 

because it was used to determine the class and he assigned a grade modifier of zero for clinical 

studies because “none available.” Using the net adjustment formula of (GMFH - CDX) + (GMPE 

- CDX) + (GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (1-3) + (not 

applicable) + (0-2) = -4, which he equated to 31 percent permanent impairment of the right lower 

extremity.

By de novo decision dated March 22, 2016, OWCP again awarded appellant a schedule 

award for 31 percent permanent impairment of the right lower extremity. The award ran for 89.28 

weeks for the period February 27, 2013 to November 13, 2014 and a fraction of a day.

On August 1, 2016 counsel requested reconsideration.

In a July 21, 2016 report, Dr. Hartunian reviewed the medical evidence of record and 

concurred that appellant had a class 3 diagnosis and that a grade modifier for physical examination 

was properly excluded. Regarding the functional history, he found that appellant had a gait 

derangement score of 1. Dr. Hartunian noted that the AAOS score supported a grade modifier for 

functional history of 3 and he stated that the A.M.A., Guides required that the higher AAOS score 

be used. He found, however, that the higher AAOS score differed by 2 or more from that of the 

physical examination and the clinical studies and; therefore, the functional history (not the AAOS 

score) was properly excluded as unreliable. Regarding the clinical studies, Dr. Hartunian found 

that it was also properly excluded for the additional reason that the diagnostic reports merely 

confirmed appellant’s diagnosis. Using the net adjustment formula of (GMFH - CDX) + (GMPE 

- CDX) + (GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (not 
5

applicable) + (not applicable) + (not applicable) = 0, yielding a class 3, grade C diagnosis, which 

equated to 37 percent permanent impairment of the right lower extremity.

On September 27, 2016 and February 7, 2017 Dr. White confirmed that he excluded 

physical and clinical studies from appellant’s impairment rating calculation.

In a December 28, 2016 report, Dr. White further clarified that he disagreed with

Dr. Hartunian’s interpretation of the A.M.A., Guides. He stated that appellant’s antalgic gait 

would not be usual with a total hip replacement and, as a result, the functional history score for an 

antalgic gait would be assigned a functional history of one. Dr. White explained that if the rating 

physician had rated functional history as three, then it could be excluded for the reasons

Dr. Hartunian outlined. However, to exclude functional history in appellant’s case would indicate 

that he did not have an antalgic gait. In addition, Dr. White noted that excluding functional history

because of appellant’s unreliability using the AAOS score instead of a score in which the AAOS 

is used to assist in determining the functional history would actually benefit him, which he did not 

think was the intention of the A.M.A., Guides. He concluded that appellant had a functional 

history of one (1). Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX), Dr. White calculated that appellant had a net adjustment of (1-3) + (not 

applicable) + (not applicable) = -2, yielding a class 3, grade A diagnosis, which equated to 31

percent permanent impairment of the right lower extremity.

By decision dated February 17, 2017, OWCP denied modification of the March 22, 2016

schedule award decision.

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7 provide for 

compensation to employees sustaining impairment from loss or loss of use of specified members 

of the body. FECA, however, does not specify the manner in which the percentage loss of a

member shall be determined. The method used in making such determination is a matter which 

rests in the sound discretion of OWCP. For consistent results and to ensure equal justice under the 

law for all claimants, OWCP has adopted the A.M.A., Guides as the uniform standard applicable 

to all claimants.8 The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of 

schedule losses and the Board has concurred in such adoption.9 For schedule awards after May 1, 

2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 

2009.10

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see also F.V., Docket No. 18-0427 (issued November 9, 2018).

9 See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

10 See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
6

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class of

diagnosis (CDX) condition, which is then adjusted by grade modifiers based on GMFH, GMPE,

and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). 

Evaluators are directed to provide reasons for their impairment rating choices, including the 

choices of diagnoses from regional grids and calculations of modifier scores.13

ANALYSIS

The Board finds that appellant has not established greater than 31 percent permanent 

impairment of the right lower extremity for which he previously received a schedule award. 

OWCP properly referred appellant to Dr. Somogyi for a second opinion evaluation to determine 

the nature and extent of his employment-related permanent impairment. In his December 9, 2014 

report, Dr. Somogyi noted that appellant reported right hip pain and difficulties with getting on a 

bed due to soreness “stiffness.” The ROM of the left hip was full and painless and the ROM of 

the right hip revealed flexion performed to 90 degrees. Extension was full and abduction was 

somewhat restricted. Rotational movements were significantly restricted. There were no 

palpatory findings. In his supplemental report dated February 23, 2016, Dr. Somogyi indicated 

that he relied on Table 16-4, page 515, of the A.M.A., Guides. He stated that appellant’s 

impairment rating was based on a class 3 impairment of the hip as identified on page 515. 

Dr. Somogyi assigned a grade modifier of one for functional history and physical examination for 

mild problems. He calculated that the net adjustment was two, which resulted in an impairment 

of 31 percent permanent impairment of the right lower extremity for degenerative arthritis and 

total hip replacement. Dr. Somogyi determined that appellant’s date of MMI was 

February 27, 2013.

In accordance with its procedures, OWCP properly referred the evidence of record to its 

OWCP medical adviser, Dr. White, who reviewed the clinical findings of Dr. Somogyi and 

determined that appellant had 31 percent permanent impairment of the right lower extremity under 

the sixth edition of the A.M.A., Guides. Dr. White concurred with Dr. Somogyi’s class 3, grade 

A diagnosis of right total hip replacement based on Table 16-4, page 515, of the sixth edition of 

the A.M.A., Guides. He assigned a grade modifier of one (1) for functional history for appellant’s 

antalgic gait. Dr. White excluded a grade modifier for physical examination because it was used 

to determine the class and he excluded a grade modifier for clinical studies because none were 

applicable in this case. Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX), he calculated that appellant had a net adjustment of (1-3) + (not applicable) + 

(not applicable) = -2, yielding a class 3, grade A diagnosis, which equated to a 31 percent 

permanent impairment of the right lower extremity. Dr. White discussed how he arrived at his

conclusion by listing specific tables and pages in the A.M.A., Guides. He properly interpreted 

Table 16-4 to find that appellant qualified for 31 percent permanent impairment of the right lower

 

11 A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.

12 Id. at 494-531.

13 See R.V., Docket No. 10-1827 (issued April 1, 2011).
7

extremity. Thus, the Board finds that OWCP properly relied upon the opinion of its medical 

adviser in denying appellant’s claim for an additional schedule award.

Appellant submitted a July 21, 2016 report from Dr. Hartunian who opined that appellant

had class 3, grade C diagnosis, which equated to 37 percent permanent impairment of the right 

lower extremity. Dr. Hartunian determined that physical examination and clinical studies were 

properly excluded. He found that appellant had a gait derangement score of 1. Dr. Hartunian

argued, however, that functional history should be excluded as unreliable because the higher 

AAOS score of 3 differed by 2 or more from that of the physical examination and the clinical 

studies. Thus, he calculated that appellant had a net adjustment of zero, equaling 37 percent 

permanent impairment of the right lower extremity. The Board has held that when the attending 

physician fails to provide an estimate of impairment conforming to the A.M.A., Guides or does 

not discuss how he or she arrives at the degree of impairment based on physical findings, his or 

her opinion is of diminished probative value in establishing the degree of impairment and OWCP 

may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings reported 

by the attending physician.14 Dr. White explained that if he had rated functional history as three, 

then it could be excluded for the reasons Dr. Hartunian outlined. However, to exclude functional 

history in appellant’s case would indicate that he did not have an antalgic gait. The Board finds 

that OWCP’s medical adviser in this case properly applied the standards of the A.M.A., Guides. 

His opinion is the weight of medical evidence and supports that appellant does not have a greater 

right upper extremity impairment than the 31 percent previously awarded.

There is no probative medical evidence of record, in conformance with the sixth edition of 

the A.M.A., Guides, establishing that appellant has more than 31 percent permanent impairment 

of the right lower extremity. Accordingly, appellant has not established that he is entitled to a 

schedule award greater than that previously awarded.

15

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 employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish more than 31 

percent permanent impairment of the right lower extremity, for which he previously received a 

schedule award.

 

14 See John L. McClanic, 48 ECAB 552 (1997); L.M., Docket No. 12-0868 (issued September 4, 2012).

15 FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that 

schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in 

both cases are for impairment of the same member or function and where it is determined that the compensation for 

the later disability in whole or part would duplicate the compensation payable for the preexisting disability. 5 U.S.C. 

§ 8108; 20 C.F.R. § 10.404(c).
8

ORDER

IT IS HEREBY ORDERED THAT the February 17, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 18, 2018

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