United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.I., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Chicago, IL, Employer

__________________________________________

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Docket No. 19-0193

Issued: May 1, 2019

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On November 5, 2018 appellant, through counsel, filed a timely appeal from an October 4, 

2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.

 

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 Appellant submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b). By order dated 

March 13, 2019, the Board exercised its discretion and denied the request as his 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. 19-0193 (issued March 13, 2019).

3 5 U.S.C. § 8101 et seq.
2

ISSUE

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

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

schedule award compensation.4

FACTUAL HISTORY

On February 20, 2015 appellant, then a 65-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he sustained an acceleration of bilateral hip osteoarthritis 

causally related to factors of his federal employment. On the reverse side of the claim form, the 

employing establishment indicated that he had retired effective January 1, 2015. OWCP accepted 

the claim for an aggravation of bilateral hip arthritis. 

Appellant underwent a left hip arthroplasty on March 5, 2002 and a right hip arthroplasty 

on February 8, 2011. 

On December 20, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated December 27, 2016, OWCP requested that appellant submit 

an impairment evaluation from his attending physician addressing the extent of his employmentrelated permanent impairment, if any, in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5

Thereafter, appellant submitted an impairment evaluation dated July 21, 2016 from

Dr. Neil Allen, a Board-certified internist and neurologist. Dr. Allen diagnosed bilateral primary 

arthritis and joint pain of the pelvic region and thigh. He applied the Hip Regional Grid set forth 

in Table 16-4 on page 515 of the A.M.A., Guides to find 25 percent permanent impairment of the 

right lower extremity and 37 percent permanent impairment of the left lower extremity.

On February 18, 2017 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed Dr. Allen’s findings and concluded that appellant 

had 23 percent permanent impairment of the right lower extremity and 31 percent permanent 

impairment of the left lower extremity. 

OWCP determined that a conflict existed between Dr. Allen and Dr. Orenstein regarding 

the extent of appellant’s bilateral lower extremity impairment. It referred appellant to Dr. Bruce C. 

Summerville, a Board-certified orthopedic surgeon, for an impartial medical examination. 

In a report dated May 31, 2017, Dr. Summerville reviewed appellant’s work history and 

history of bilateral hip arthroplasties. On examination of the left hip, he found mild tenderness to 

 

4 OWCP granted appellant a schedule award for 23 percent permanent impairment of the right lower extremity and 

31 percent permanent impairment of the left lower extremity. Appellant, through counsel, has only appealed the 

finding of 31 percent permanent impairment of the left lower extremity. Consequently, the issue of the extent of his 

right lower extremity impairment is not before the Board as this time. 20 C.F.R. § 501.2(c).

5 A.M.A., Guides (6th ed. 2009).
3

palpation and active range of motion (ROM) “to 50 degrees and passively to 100 degrees.”

Dr. Summerville further measured ROM of 20 degrees extension, 30 degrees internal rotation, 50 

degrees eternal rotation, and 30 degrees abduction. He noted that x-rays showed excellent 

alignment with no apparent loosening or osteolysis. Dr. Summerville found full strength for hip 

flexion, abduction, and adduction and intact sensation of the lower extremities. For the left hip, 

he identified the diagnosis as class 3 hip replacement using Table 16-4 on page 515 of the A.M.A., 

Guides, which yielded a default impairment value of 37 percent. In determining the impairment 

class, Dr. Summerville noted that class 3 was used for total hip replacements with fair results, fair 

position, mild instability and/or a mild motion deficit. He related that appellant had a fair result 

from surgery “based on flexion between 50 and 79 degrees with all other motion measurements 

within the normal range. Appellant was not rated as class 4 (moderate to severe motion deficit), 

but motion was used as a nonkey adjustment factor in [p]hysical [e]xamination.” He applied grade 

modifiers of one for functional history (GMFH) and two for physical examination (GMPE)

findings, and determined that a grade modifier for clinical studies (GMCS) was not applicable as 

it was used to determine class placement. Dr. Summerville used the net adjustment formula to 

find a total left lower extremity permanent impairment of 34 percent. He further found a right 

lower extremity impairment of 21 percent.

On August 14, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as 

a DMA, reviewed Dr. Summerville’s report and found that appellant had 31 percent permanent 

impairment of the left lower extremity and 23 percent permanent impairment of the right lower 

extremity. For the left lower extremity, he concurred with Dr. Summerville’s finding of a class 3 

impairment, but determined that a GMPE was inapplicable as ROM had been used to determine 

class placement. Dr. Katz applied the net adjustment formula, (GMFH - CDX), or (1-3) to find a 

negative adjustment of two and thus 31 percent permanent impairment of the left lower extremity. 

By decision dated August 15, 2017, OWCP granted appellant a schedule award for 23 

percent permanent impairment of the right lower extremity and 31 percent permanent impairment 

of the left lower extremity. The period of the award ran for 155.52 weeks from May 31, 2017 to 

May 23, 2020.

On August 24, 2017 appellant, through counsel, requested an oral hearing before an OWCP 

hearing representative. 

Following a preliminary review, by decision dated December 6, 2017, an OWCP hearing 

representative vacated the August 15, 2017 decision. She found that Dr. Summerville as the 

impartial medical examiner (IME) was responsible for resolving the conflict in medical opinion, 

not the DMA. The hearing representative remanded the case for OWCP to obtain a supplemental 

report from Dr. Summerville clarifying his impairment rating and also addressing whether 

appellant’s bilateral total hip arthroplasties were causally related to his accepted employment 

injury.

In a supplemental report dated January 19, 2018, Dr. Summerville concurred with

Dr. Katz’ finding of 31 percent permanent impairment of the left lower extremity. He advised that

Dr. Katz had properly found ROM could not be used as a grade modifier as it was a key factor in 

reaching the class identification. Dr. Summerville opined that appellant’s total hip replacements 
4

were causally related to his accepted employment injury. He found that appellant had reached 

maximum medical improvement.

Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a DMA, reviewed

Dr. Summerville’s report on February 5, 2018 and concurred with his findings. He noted that 

Table 16-4 did not provide an alternative rating based on ROM for a hip arthroplasty.

By decision dated February 5, 2018, OWCP found that appellant had no more than the 

previously awarded 23 percent permanent impairment of the right lower extremity and 31 percent 

permanent impairment of the left lower extremity. 

On February 15, 2018 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

In a report dated July 8, 2018, Dr. Byron V. Hartunian, an orthopedic surgeon, reviewed

Dr. Summerville’s report and noted that he had measured 50 degrees of flexion. He opined that 

appellant had class 4 impairment due to his left hip replacement, which yielded a default 

impairment rating of 67 percent. Dr. Hartunian applied a GMFH of one and a GMPE of two for 

findings other than ROM to find a net adjustment of negative three and a total left lower extremity 

impairment of 59 percent.

At the hearing, held on July 25, 2018, counsel advised that he was challenging only the left 

lower extremity impairment rating. He argued that Dr. Summerville had erred in identifying the 

diagnosis as class 3 rather than class 4 as he found moderate motion loss. Counsel noted that he 

had measured 50 degrees of flexion, which yielded moderation motion loss pursuant to Table 16-

24 on page 549.6

By decision dated October 4, 2018, OWCP’s hearing representative affirmed the 

February 5, 2018 decision. She found that the opinion of Dr. Summerville constituted the weight 

of the evidence and established that appellant had 23 percent permanent impairment of the right 

lower extremity and 31 percent permanent impairment of the left lower extremity. The hearing 

representative determined that Dr. Summerville had explained that he did not rate the impairment 

as class 4 as the only abnormal ROM measurement was flexion. She noted that he also found good 

alignment after arthroplasty with no evidence of loosening.

On appeal appellant, through counsel, argues that appellant is entitled to a greater award 

for the left lower extremity based upon a class 4 placement, rather than class 3, for rating 

appellant’s left total hip replacement based upon the finding of 50 degrees of active ROM of the 

left hip.

 

6 Subsequent to the hearing, counsel resubmitted the July 8, 2018 report from Dr. Hartunian with some 

typographical errors corrected. 
5

LEGAL PRECEDENT

The schedule award provisions of FECA,7and 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 

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

In determining impairment for the lower extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity 

to be rated. With respect to the left hip, the relevant portion of the leg for the present case, reference 

is made to Table 16-4 (Hip Regional Grid) beginning on page 512.11 After the class of diagnosis 

(CDX) is determined from the Hip Regional Grid (including identification of a default grade 

value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net 

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

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 examination.13 

For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

14

 Where OWCP has referred the case to an IME 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.15 

When OWCP obtains an opinion from an IME for the purpose of resolving a conflict in the 

medical evidence and the IME’s opinion requires clarification or elaboration, OWCP must secure 

a supplemental report from the examiner for the purpose of correcting the defect in the original 

 

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also id. Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 

11 A.M.A., Guides 509-11.

12 Id. at 515-22.

13 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

14 C.H., Docket No. 18-1065 (issued November 29, 2018).

15 W.M., Docket No. 18-0957 (issued October 15, 2018).
6

opinion.16 If the referral physician fails to respond or does not provide an adequate response, 

OWCP should refer appellant for a new IME examination.17

ANALYSIS

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

OWCP properly determined that a conflict arose between Dr. Allen, an attending 

physician, and Dr. Orenstein, a DMA, regarding the extent of appellant’s permanent impairment 

of the lower extremities. It referred him to Dr. Summerville, a Board-certified orthopedic surgeon, 

for an impartial medical examination.

When a case is referred to an IME for the purpose of resolving a conflict, the opinion of 

such specialist, if sufficiently well rationalized and based on a prior factual and medical 

background, must be given special weight.18 The Board finds, however, that Dr. Summerville’s

opinion is insufficiently reasoned to be entitled to the special weight accorded an IME.

Dr. Summerville evaluated appellant on May 31, 2017. On examination he found mild 

tenderness to palpation of the left hip and ROM of 50 degrees flexion, 20 degrees extension, 30 

degrees internal rotation, 50 degrees external rotation, and 30 degrees abduction. Dr. Summerville 

determined that x-rays revealed good alignment after hip arthroplasty with no loosening or 

osteolysis. 

For the left lower extremity, Dr. Summerville identified the diagnosis as class 3 hip 

replacement using the Hip Regional Grid set forth in Table 16-4 on page 515 of the A.M.A., 

Guides, which yielded a default impairment value of 37 percent. Table 16-4 provides a class 3 

impairment with a default value of 37 percent for a fair result after a hip replacement with “fair 

position, mild instability and/or mild motion deficit.” A class 4 impairment is categorized as a 

poor result after a hip replacement with “poor position, moderate to severe instability, and/or 

moderate to severe motion deficit.” 

Dr. Summerville explained that he identified the impairment as class 3, for fair results with 

mild motion loss, rather than class 4, for moderate to severe motion deficits, as all ROM 

measurements were normal except for hip flexion. Under Table 16-24 on page 549 of the A.M.A,

Guides, Hip Motion Impairments, 50 degrees flexion constitutes a moderate impairment in ROM. 

However, Dr. Summerville measured 20 degrees of extension, which also constitutes a moderate 

ROM impairment under Table 16-24.19 Consequently, his placement of appellant in class 3, rather 

than class 4 is insufficiently rationalized. In addition, Dr. Summerville provided no citation to the 

 

16 P.E., Docket No. 18-0745 (issued February 6, 2019).

17 Supra note 10 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(e) 

(September 2010); see also R.W., Docket No. 18-1457 (issued February 1, 2019).

18 J.M., Docket No. 18-1387 (issued February 1, 2019).

19 The remaining ROM measurements, 30 degrees internal rotation, 50 degrees external rotation, and 30 degrees 

abduction, yielded no impairment under Table 16-24.
7

A.M.A., Guides for use of ROM as a grade modifier as opposed to use in class assignment. 

Therefore, the Board finds that his opinion is insufficient to resolve the conflict regarding the 

extent of appellant’s left lower extremity permanent impairment.20 

Once OWCP undertakes development of the medical evidence, it has the responsibility to 

do so in a manner that will resolve the relevant issues in the case.21 As noted above, when it

obtains an opinion from an IME for the purpose of resolving a conflict in the medical evidence 

and the IME’s opinion requires clarification or elaboration, it must secure a supplemental report 

from the specialist to correct the defect in his original report.22 If the IME is unable to clarify or 

elaborate on his original report or if his supplemental report does not sufficiently address the issues, 

OWCP should refer the claimant to a second IME.23 Following such development as deemed 

necessary, it should issue a de novo decision.

CONCLUSION

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

 

20 See R.B., Docket No. 17-1995 (issued August 13, 2018).

21 See K.S., Docket No. 18-0845 (issued October 26, 2018).

22 R.W., supra note 17.

23 See R.H., Docket No. 17-1903 (issued July 5, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the October 4, 2018 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: May 1, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board