United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

B.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Dedham, MA, Employer

__________________________________________

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Docket No. 17-1157

Issued: May 22, 2018

Appearances: Case Submitted on the Record

Benjamin R. Zimmermann, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 4, 2017 appellant, through counsel, filed a timely appeal from an April 12, 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). After exercising its discretion, by order dated September 22, 2017, the Board 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. 17-1157 (issued September 22, 2017).
2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish his claim of 

permanent aggravation of right hip osteoarthritis; (2) whether OWCP properly denied appellant’s 

claim for a schedule award for his right lower extremity; and (3) whether OWCP properly denied 

appellant’s request for subpoenas.

FACTUAL HISTORY

On April 23, 2012 appellant, then a 49-year-old letter carrier, filed an occupational disease 

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

due to his work duties. He indicated that he first realized on January 5, 2012 that he had a medical 

condition aggravated by factors of his federal employment. Appellant did not stop work.

In an accompanying statement, appellant indicated that, with respect to his current mail 

delivery route, he sorted mail for one and a half to two hours in the morning, and then went on the 

road for six hours of mail delivery.4 He worked one to one and a half hours of overtime as well. 

Appellant indicated that he had measured his route with a pedometer and walked eight miles per 

day. On the average, he delivered 6 to 7 trays of mail and 15 to 20 packages per day. While 

sorting mail, appellant stood for the entire time, and he had to bend down and pick up bundles of 

circulars and trays of mail, lifting them to waist level. He indicated that he was constantly twisting 

and turning his body while lifting these items, and repeatedly raised and lowered his arm while 

reaching above shoulder height in order to place mail in slots. Appellant had to lift mail tubs 

weighing up to 35 pounds and packages weighing up to 70 pounds. He indicated that delivering 

mail required significant lifting, bending, and twisting.

In an April 11, 2012 report, Dr. Byron V. Hartunian, an attending Board-certified 

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

physical examination he conducted on January 5, 2012. He provided a diagnosis of right hip 

degenerative arthritis with one millimeter of cartilage interval and status post left total hip 

arthroplasty for end-stage degenerative arthritis.5 Dr. Hartunian opined that the repetitive heavy 

physical activities that appellant performed for 25 years permanently aggravated, accelerated, and 

hastened the arthritic condition of the left hip, necessitating the left total hip replacement, and 

causing a more rapid progression of the arthritis condition affecting the right hip.

OWCP referred the case record for review to Dr. Morley Slutsky, a Board-certified 

occupational medicine physician serving as an OWCP medical adviser. It asked him to provide 

an opinion regarding whether the evidence of record was sufficient to establish a work-related 

aggravation or acceleration of appellant’s underlying left or right hip osteoarthritis.

In a report dated August 17, 2012, Dr. Slutsky explained that osteoarthritis is a ubiquitous 

disease and, regardless of work-associated factors, the condition has a prevalence of 80 percent in 

individuals 55 years of age and older. He noted that there is a strong link between being 

 

4 Appellant indicated that he had worked for the employing establishment since November 1986.

5 The record contains a report of the left total hip arthroplasty appellant underwent on June 30, 2010. The procedure 

was not approved by OWCP. 
3

overweight and the development of this condition and noted that other factors such as gender and 

family history were also important when discussing this issue. Dr. Slutsky argued that

Dr. Hartunian had not provided a sufficiently thorough evaluation of appellant’s medical history, 

as he had not discussed the nonwork-related factors which are scientifically shown to have the 

highest association with development of osteoarthritis. He opined that there was therefore 

insufficient objective evidence of record to support a causal relationship between appellant’s 

bilateral hip osteoarthritis and his work duties.

OWCP initiated further development of the claim and referred appellant for a second 

opinion examination with Dr. Stanley Hom, a Board-certified orthopedic surgeon, to address 

whether there was a causal relationship between appellant’s federal employment duties and the 

claimed bilateral hip condition. Dr. Hom received a copy of the statement of accepted facts 

(SOAF) and the medical evidence of record, to be used as a basis for his evaluation of appellant

and medical opinion.

In a September 28, 2012 report, Dr. Hom discussed appellant’s factual and medical history 

and reported the findings of his September 27, 2012 physical examination. He noted that appellant

underwent total left hip replacement surgery on June 30, 2010 and was able to return to his regular 

work approximately 10 weeks later.6 Dr. Hom opined that appellant’s work activities temporarily 

aggravated his underlying bilateral hip arthritis, with durations lasting anywhere from days to 

weeks. He indicated, however, that appellant’s work activities did not represent a cause of the left 

hip arthritis.

On November 7, 2012 OWCP accepted that appellant sustained temporary aggravation of 

preexisting osteoarthritis of both hips.

On February 21, 2013 appellant filed a claim for compensation (Form CA-7) seeking a 

schedule award due to his accepted employment conditions.

Appellant submitted a December 31, 2012 report in which Dr. Hartunian provided his 

physical examination findings including range of motion for the lower extremities. Using the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment 

(A.M.A., Guides),

7 Dr. Hartunian opined that appellant had sustained 63 percent permanent

impairment of the left lower extremity and 26 percent permanent impairment of the right lower 

extremity. He indicated that appellant reached maximum medical improvement (MMI) of the right 

hip in September 2007 when x-rays confirmed the diagnosis. Dr. Hartunian concluded that MMI 

of the left hip was reached in June 2011, one year after the left total hip replacement. 

OWCP found a conflict in the medical opinion evidence between Dr. Hartunian and

Dr. Hom regarding whether appellant sustained a temporary or permanent work-related 

aggravation of preexisting bilateral hip osteoarthritis and referred him to Dr. Alan Solomon, a 

Board-certified orthopedic surgeon, for an impartial medical examination. OWCP was also asked 

 

6 Dr. Hom indicated that it was reasonable for appellant to undergo the June 30, 2010 left hip arthroplasty.

7 A.M.A., Guides (6th ed. 2009).
4

to address whether the June 30, 2010 left hip arthroplasty was reasonable and necessary due to 

appellant’s work duties as a letter carrier.

In a September 25, 2013 report, Dr. Solomon discussed appellant’s factual and medical 

history and reported the findings of his physical examination on that date. He noted that appellant

worked as a letter carrier for over 26 years without any significant loss of time from work or reports 

of acute illness or injury. Although appellant identified the onset of symptoms as sometime around 

2003 with stiffness and aching at the end of the workday, there were no reports of imaging or visits 

to a physician prior to 2007. Dr. Solomon noted that appellant noticed increasing left hip pain 

approximately two years prior to his treatment in 2007. At that time, x-rays of the left hip and 

bilateral hips were obtained and were significant for advanced osteoarthritis. Dr. Solomon 

indicated that, although there were signs of degenerative osteoarthritis in the right hip at that time, 

right hip symptoms were not significant and did not affect function. After appellant underwent 

left hip replacement, he returned to his full-duty job as a letter carrier about 10 weeks later, carrying 

his bag on his left shoulder. Dr. Solomon indicated that he had reviewed the SOAF and he 

discussed appellant’s work duties. He noted that, upon examination, appellant had a one-inch leg 

length discrepancy between the left and right legs, with a shortened left hip. There were no signs 

of atrophy, but osteoarthritis caused a motion restriction of both hips. Appellant was able to walk 

without antalgic limp or weakness.8 He could walk on heels and toes without difficulty or pain. 

There were no neurological findings and review of the most recent x-rays of the hips demonstrated 

a well-seated, well-constructed total left hip replacement and significant osteoarthritis on the right 

with no visible cartilage interface. 

Dr. Solomon opined that appellant’s left hip symptoms and the need for total hip 

replacement on the left side were accelerated by his employment. He concluded that repetitive 

pressure on the left hip from carrying a mailbag on the left side gradually became less bearable 

leading to aggravation of his cartilage erosion and the premature need for total hip replacement. 

Dr. Solomon noted that the predicted replacement of a total hip replacement was approximately 

20 years and that appellant’s left total hip replacement was needed 7 years prematurely. He

indicated that the x-rays of the right hip were strongly suggestive of an aggressive form of arthritis. 

Dr. Solomon opined that appellant’s right hip had not been significantly affected by his work duties 

and remained a “benchmark” for the natural progression of his disease. He explained appellant

had been walking while shifting his weight to the left hip, leaving the right hip with less pressure 

and less cause for synovial and cartilaginous erosion/destruction. Dr. Solomon explained that 

appellant’s left hip symptoms began in 2003 and gradually increased over a period of 

approximately seven years before he came to require surgery. He opined that this would be the 

expected course for the right hip, projecting severe disabling hip osteoarthritis at age 56 with or 

without the letter carrier route.

Dr. Solomon also provided a permanent partial impairment evaluation of appellant’s lower 

extremities based on his bilateral hip condition. Using Table 16-4 of the sixth edition of the 

A.M.A, Guides, he assigned class 2 impairment for the left total hip replacement with moderate 

problem, good result. The functional history adjustment for moderate problem with use of cane 

was a grade modifier 2. Physical examination adjustment for moderate problem was a grade 

modifier 2. Dr. Solomon noted that clinical studies adjustment was not used as clinical studies

 

8 Dr. Solomon noted that appellant did not have a positive Trendelenburg sign.
5

were not available. He found a net adjustment of 0, yielding class 2, grade C permanent 

impairment of 25 percent of the left lower extremity. For the right hip, Dr. Solomon assigned class 

1 for right hip arthritis (mild problem) and applied grade modifiers of 1 for functional history, 

physical examination, and clinical studies adjustments. He utilized the net adjustment formula to 

find a 0 net adjustment, yielding class 1, grade C permanent impairment of 7 percent for the right 

lower extremity.

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

its medical adviser, for review and opinion on whether the evidence of record was sufficient to 

demonstrate appellant had reached MMI, and had sustained permanent impairment of a scheduled 

member due to the accepted work conditions.

In a report dated April 6, 2014, Dr. Krohn opined that Dr. Solomon’s assignment of 

functional history modifier 2 for the left hip was not correct in light of his report on examination 

of no antalgic limp or Trendelenburg sign. He argued that Dr. Solomon’s description “use of cane”

was discrepant from the physical examination findings presented in his report. Dr. Krohn also 

asserted that Dr. Solomon’s assignment of physical examination modifier 2 was not correct as 

range of motion of the left hip correlated with a “mild” not “moderate” problem based on the 

reported examination findings according to Table 16-24 of the A.M.A., Guides. For the right hip,

he noted that the class 1 key factor was based on a three millimeter cartilage interval or full 

thickness articular cartilage defect. Since there was no reported radiologic documentation, this 

was the correct class. Dr. Krohn indicated that a functional history grade modifier of 1 was not 

correct in the absence of antalgic gait or need for orthotics.

By letter dated July 16, 2014, OWCP requested an addendum report from Dr. Solomon 

addressing the discrepancies in his opinion noted by Dr. Krohn.

In a July 28, 2014 report, Dr. Solomon indicated that he corrected his prior report to reflect 

that appellant could walk with a slight antalgic limp with no signs of the Trendelenburg 

gait/weakness. On this basis, appellant qualified for grade modifier 2 for functional history with 

the use of a cane and an antalgic gait. Dr. Solomon agreed with the opinion of Dr. Krohn, that the 

physical examination grade modifier should be changed to 1. He recalculated the left lower 

extremity impairment as 23 percent after applying the net adjustment formula, which yielded an 

adjustment of -1. For the right hip, Dr. Solomon noted that the x-ray findings were “close to bone 

on bone radiologic appearance,” but did not provide a measurement of cartilage interval 

determined by a radiologist, and he updated his report to reflect this. He noted that the functional 

history grade modifier was 1 for slight antalgic limp and the physical examination grade modifier 

was 1, due to one inch leg length discrepancy. The net adjustment therefore was 0, yielding grade 

C or seven percent permanent impairment of the right lower extremity. Dr. Solomon indicated 

that there was no reason to incorporate the right hip osteoarthritis as work related since appellant

was asymptomatic and had not been symptomatic or disabled within the time period before 2016, 

the anticipated time for the aggressive osteoarthritis to surface and become disabling.

On January 28, 2015 OWCP expanded the accepted conditions to include acceleration of 

left hip osteoarthritis, based on the opinion of the impartial medical specialist, Dr. Solomon. It 

continued to find that appellant only had temporary aggravation of preexisting right hip 

osteoarthritis.
6

OWCP referred the case file back to Dr. Krohn in his capacity as an OWCP medical adviser 

for review and an opinion on whether the evidence of record was sufficient to demonstrate 

appellant had reached MMI, and had sustained permanent impairment of a scheduled member due 

to the accepted work injury.

In a report dated February 16, 2015, Dr. Krohn concurred with Dr. Solomon’s finding of 

23 percent permanent impairment of the left lower extremity. He indicated that there was no 

ratable impairment for the right lower extremity, as Dr. Solomon opined that the right hip had not 

been significantly affected by appellant’s work and remained a “benchmark” for the natural 

progression of his disease.

On January 27, 2016 OWCP granted appellant a schedule award for 23 percent permanent 

impairment of his left lower extremity. The award ran for 66.24 weeks from September 4, 2013 

to December 11, 2014 and was based on the opinions of Dr. Solomon and Dr. Krohn.9

In a February 12, 2016 decision, OWCP denied appellant’s claim for a right lower 

extremity schedule award, noting Dr. Solomon’s finding of temporary work-related aggravation 

of preexisting right hip osteoarthritis. 

Appellant disagreed with the decision denying a schedule award based on permanent 

impairment of the right lower extremity and, through counsel, requested a hearing with a 

representative of OWCP’s Branch of Hearings and Review. Counsel provided a written statement 

dated February 24, 2016 arguing for issuance of subpoenas to the second opinion physician,

Dr. Hom, and the impartial medical specialist, Dr. Solomon, to compel their attendance and 

testimony at the hearing.

In a letter dated September 23, 2016, OWCP advised appellant and counsel that the request 

for subpoena was denied, in that they had failed to prove that a subpoena was the best means or 

only method to obtain additional information from Dr. Hom or Dr. Solomon, if warranted. It

indicated that supplemental written reports could be obtained from these physicians if additional 

information was found necessary.

During the hearing held on October 27, 2016, appellant testified that he had worked as a

letter carrier for 30 years and he detailed the course of his hip problems, which began 

approximately 14 years ago. Appellant discussed his work duties over the past 30 years. Counsel 

argued that the current claim should be accepted for permanent aggravation of right hip arthritis. 

He further argued that the opinion of Dr. Solomon was not sufficiently well rationalized to be 

afforded special weight regarding the nature and cause of appellant’s medical conditions.

In an April 12, 2017 decision, OWCP’s hearing representative affirmed OWCP’s 

February 12, 2016 decision and denied appellant’s request for the issuance of subpoenas. He found 

that OWCP properly denied appellant’s claim for a right lower extremity schedule award based on

Dr. Solomon’s finding of a temporary work-related aggravation of preexisting right hip 

 

9 With respect to the January 27, 2016 schedule award, appellant requested a hearing with a representative of 

OWCP’s Branch of Hearings and Review. Prior to a hearing being held, OWCP’s hearing representative issued a 

May 4, 2016 decision setting aside OWCP’s January 27, 2016 decision and remanding the case to OWCP for further 

development of the matter of left lower extremity permanent impairment. This matter is not currently before the 

Board.
7

osteoarthritis. The hearing representative also found that OWCP properly determined that 

appellant’s claim should not be expanded to include permanent aggravation of right hip 

osteoarthritis, noting that Dr. Solomon’s opinion showed that such expansion was not warranted. 

He exercised his discretion and denied appellant’s request for subpoenas, finding that he could 

obtain any desired evidence in support of his claim through other means.10

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was timely filed within the applicable 

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, 

and that any specific condition and/or disability for which compensation is claimed are causally 

related to the employment injury.11 In general the term disability under FECA means incapacity 

because of injury in employment to earn the wages which the employee was receiving at the time 

of such injury.12 This meaning, for brevity, is expressed as disability for work.13 

The medical evidence required to establish a causal relationship between a claimed period 

of disability and an employment injury is rationalized medical opinion evidence. The opinion of 

the physician must be based on a complete factual and medical background of the claimant, must 

be one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.14

ANALYSIS -- ISSUE 1

The Board finds that OWCP properly determined that there was a conflict in the medical 

opinion between Dr. Hartunian, appellant’s attending physician, and the government physician,

Dr. Hom, OWCP’s referral physician, on the issue of whether appellant had permanent 

aggravation of right hip osteoarthritis.15 In order to resolve the conflict, OWCP properly referred 

appellant, pursuant to section 8123(a) of FECA, to Dr. Solomon for an impartial medical 

examination and an opinion on the matter. 

 

10 The hearing representative indicated that Dr. Solomon and Dr. Hom had already provided detailed medical 

reasoning explaining their opinions regarding how they arrived at their conclusions that work duties temporarily 

aggravated appellant’s underlying right hip condition.

11 J.F., Docket No. 09-1061 (issued November 17, 2009).

12 See 20 C.F.R. § 10.5(f).

13 Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

14 See E.J., Docket No. 09-1481 (issued February 19, 2010).

15 Dr. Hartunian found permanent aggravation in a December 31, 2012 report and Dr. Hom found temporary 

aggravation in a September 28, 2012 report.
8

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.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 finds that the weight of the medical evidence with respect to a permanent 

aggravation of right hip osteoarthritis is represented by the thorough, well-rationalized opinion of

Dr. Solomon.

19

 The September 25, 2013 report of Dr. Solomon establishes that appellant did not 

sustain a work-related permanent aggravation of right hip osteoarthritis.

In his September 25, 2013 report, Dr. Solomon indicated that the x-rays of the right hip 

were strongly suggestive of an aggressive form of arthritis. He opined that appellant’s right hip 

had not been significantly affected by his work duties and remained a “benchmark” for the natural 

progression of his disease. Dr. Solomon explained that appellant had been walking while shifting 

his weight to the left hip, leaving the right hip with less pressure and less cause for synovial and 

cartilaginous erosion/destruction.

The Board has carefully reviewed the opinion of Dr. Solomon and notes that it has 

reliability, probative value, and convincing quality with respect to its conclusions regarding the 

relevant issue which was the basis of the conflict. Dr. Solomon provided a thorough factual and 

medical history and accurately summarized the relevant medical evidence.20 He provided medical 

rationale for his opinion by explaining that the worsening of appellant’s right hip condition was 

due to the natural progression of the underlying degenerative condition.

For these reasons, appellant has met his burden of proof to establish his claim of permanent 

aggravation of right hip osteoarthritis.

LEGAL PRECEDENT -- ISSUE 2

The schedule award provisions of FECA21 and its implementing regulations22 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 to all claimants, good administrative practice necessitates the 

 

16 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

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

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

19 See supra note 17.

20 See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

21 5 U.S.C. § 8107.

22 20 C.F.R. § 10.404 (1999).
9

use of a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for 

evaluating schedule losses.23 The effective date of the sixth edition of the A.M.A., Guides is 

May 1, 2009.24

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.25 A

schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically 

enumerated under FECA.26 Moreover, neither FECA nor its implementing regulations provides for 

a schedule award for impairment to the back or to the body as a whole. Furthermore, the back is 

specifically excluded from the definition of organ under FECA.27

In 1960, amendments to FECA modified the schedule award provisions to provide for an 

award for permanent impairment to a member of the body covered by the schedule regardless of 

whether the cause of the impairment originated in a scheduled or nonscheduled member. 

Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be 

entitled to a schedule award for permanent impairment to an extremity even though the cause of 

the impairment originated in the spine.28

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) is to be applied.29 The Board has long recognized the discretion of OWCP to 

adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.30 In 

particular, the Board has recognized the adoption of this methodology for rating extremity 

impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform 

standard applicable to each claimant for a schedule award for extremity impairment originating in 

the spine.31

 

23 Id.

24 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 (March 2017).

25 Pamela J. Darling, 49 ECAB 286 (1998).

26 Thomas J. Engelhart, 50 ECAB 319 (1999).

27 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

28 See supra note 25.

29 See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3 -

- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4.

30 D.S., Docket No. 14-12 (issued March 18, 2014).

31 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
10

ANALYSIS -- ISSUE 2

The Board finds that it was improper for OWCP to assign the weight of the medical 

evidence with respect to appellant’s right lower extremity impairment to the opinion of

Dr. Solomon and to deny appellant’s claim for a schedule award for the right lower extremity on 

this basis. The Board finds that, with respect to the issue of appellant’s right lower extremity 

permanent impairment, Dr. Solomon served as an OWCP referral physician rather than an 

impartial medical specialist because appellant was not referred to Dr. Solomon to resolve a conflict 

in the medical evidence regarding his right lower extremity permanent impairment.32

In reports dated September 25, 2013 and July 28, 2014, Dr. Solomon provided an opinion 

that appellant had seven permanent impairment of his right lower extremity based on the standards 

of the sixth edition of the A.M.A, Guides. For the right hip, he assigned class 1 for right hip 

arthritis (mild problem) and applied grade modifiers of 1 for functional history, physical 

examination, and clinical studies adjustments. Dr. Solomon utilized the net adjustment formula to 

find a 0 net adjustment, yielding class 1, grade C permanent impairment of seven percent for the 

right lower extremity. The Board finds that the medical opinion of Dr. Solomon is insufficiently 

rationalized as to his application of the A.M.A., Guides in particular his use of grade modifiers.

Given Dr. Solomon’s findings in this regard, the question of appellant’s right lower 

extremity permanent impairment is not in posture for decision. The case is remanded to OWCP 

for referral back to Dr. Solomon, to include referral of appellant for examination if necessary, for 

an opinion clarifying his opinion on appellant’s right lower extremity permanent impairment.

LEGAL PRECEDENT -- ISSUE 3

In requesting a subpoena, a claimant must explain why the testimony is relevant to the 

issues in the case and why a subpoena is the best method or opportunity to obtain such evidence 

because there is no other means by which the testimony could have been obtained.33 The hearing 

representative of OWCP’s Branch of Hearings and Review has discretion to approve or deny a 

subpoena request.

34

 Abuse of discretion is generally shown through proof of manifest error, a 

clearly unreasonable exercise of judgment, or actions taken which are clearly contrary to logic and 

probable deductions from established facts.35 

ANALYSIS -- ISSUE 3

The Board finds that OWCP’s hearing representative did not abuse his discretion when he 

denied counsel’s subpoena requests for the testimony of Dr. Solomon and Dr. Hom. The hearing 

representative noted that counsel failed to establish a sufficient basis to warrant issuance of such a 

subpoena when he did not prove that oral testimony was the best or only way to obtain additional 

information from those physicians. He pointed out that Dr. Solomon and Dr. Hom had already 

 

32 See supra notes 15 and 16.

33 See 20 C.F.R. § 10.619.

34 See id.

35 Gerald A. Carr, 55 ECAB 225 (2004).
11

provided detailed medical reasoning explaining their opinions regarding how they arrived at their 

conclusions that work duties temporarily aggravated appellant’s underlying right hip condition. 

The Board finds that that there is no reason to find that the hearing representative’s denial of 

counsel’s request for subpoenas constituted as abuse of discretion under the above-noted 

standard.36

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish his claim of 

permanent aggravation of right hip osteoarthritis and that OWCP properly denied his request for 

subpoenas. The Board further finds that the case is not in posture for decision regarding appellant’s 

claim for a schedule award for his right lower extremity.

ORDER

IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of Workers’

Compensation Programs is affirmed with respect to appellant’s claim for permanent aggravation 

of right hip osteoarthritis and his request for subpoenas. The April 12, 2017 decision is set aside 

 

36 See supra note 34.
12

with respect to appellant’s claim for a schedule award for his right lower extremity and the case is 

remanded for further development to be followed by a de novo decision.

Issued: May 22, 2018

Washington, DC

Christopher J. Godfrey, 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