United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Oklahoma City, OK, Employer

__________________________________________

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Docket No. 18-1792

Issued: September 16, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 24, 2018 appellant filed a timely appeal from a September 12, 2018 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.2

 

1 5 U.S.C. § 8101 et seq. 

2 The Board notes that following the September 12, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this

additional evidence for the first time on appeal. Id. 
2

ISSUE

The issue is whether appellant has met his burden of proof to establish more than 30 percent 

permanent impairment of the left lower extremity and 46 percent permanent impairment of the 

right lower extremity, for which he previously received schedule award compensation.

FACTUAL HISTORY

On November 12, 2002 appellant, then a 54-year-old carpenter, filed a traumatic injury 

claim (Form CA-1) alleging that on November 7, 2002 a window unit he had been repairing tipped 

and pulled him forward while in the performance of duty. OWCP assigned the claim File No. 

xxxxxx564. It accepted that the November 7, 2002 employment incident had resulted in a lumbar 

strain, lumbar spondylosis, and spinal stenosis.

Appellant underwent core decompression of the right hip on December 19, 2002, unrelated 

to his federal employment. In 2003, he underwent bilateral total hip arthroplasties due to 

nonoccupational avascular necrosis.

On April 30, 2008 appellant filed an occupational disease claim (Form CA-2) alleging that 

federal employment duties, including repetitive heavy lifting on or before April 8, 2008, had 

caused bilateral hip pain. OWCP assigned the claim File No. xxxxxx075. It accepted that 

appellant had sustained bilateral hip and thigh sprains. Appellant retired from the employing 

establishment effective July 25, 2008.

On October 27, 2008 under File No. xxxxxx564, appellant underwent authorized L4-5 and 

L5-S1 anterior lumbar discectomies with instrumentation, plate fixation, and bone allograft. He 

underwent a revision laminectomy and fusion from L4-S1 on October 28, 2010 with removal of 

instrumentation. On December 8, 2010 appellant underwent surgical reexploration of the fusion 

site with dural repair to address a cerebrospinal fluid leak. He required a second dural repair on 

January 25, 2011.

On January 5, 2012 OWCP administratively combined File No. xxxxxx564 and File No. 

xxxxxx075. It designated File No. xxxxxx564 as the master file. OWCP also expanded its 

acceptance of the claim under File No. xxxxxx564 to include nonunion (pseudarthrosis) of lumbar 

fusion.

By decision dated April 4, 2013, under File No. xxxxxx564, OWCP granted appellant a 

schedule award for 28 percent permanent impairment rating of each lower extremity due to sensory 

and motor deficits in the L4, L5, and S1 nerve roots bilaterally. The period of the award, equal to 

161.28 weeks of compensation, ran from March 10, 2013 through April 11, 2016.

On October 5, 2015 appellant underwent a revision right hip arthroplasty.
3

On September 28, 2016 appellant filed a claim for an additional schedule award (Form CA7) under File No. xxxxxx075.

3

 In support of his claim, he submitted a May 23, 2016 impairment 

rating by Dr. John W. Ellis, a Board-certified family practitioner, who found that appellant had 

attained maximum medical improvement (MMI). Referring to Table 16-4 (Hip Regional Grid) at 

page 515 of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),4 he opined that the accepted employment injuries under 

both File Nos. xxxxxx564 and xxxxxx075 had caused 59 percent permanent impairment of each 

lower extremity due to two right hip arthroplasties and one left hip arthroplasty.

In an October 27, 2016 report, Dr. Paul D. Maitino, an attending Board-certified 

orthopedic surgeon, opined that appellant had attained MMI in the right hip. He opined that 

according to Table 16-4, appellant had 28 percent permanent impairment of the right lower 

extremity due to right hip arthroplasty with moderate residual symptoms. 

On April 26, 2017 OWCP obtained a second opinion from Dr. Michael S. Brown, a Boardcertified physiatrist, regarding the appropriate percentage of lower extremity permanent 

impairment originating in the spine. Dr. Brown reviewed a statement of accepted facts (SOAF)

and the medical record, and opined that appellant had attained MMI. On examination, he noted 

that appellant ambulated with a walker. Dr. Brown observed a normal range of bilateral hip 

motion, 4/5 strength throughout both lower extremities, and noted appellant’s symptoms of pain 

and paresthesias radiating into both lower extremities. He diagnosed bilateral L4, L5, and S1 

radiculopathies, failed back syndrome following multiple surgeries, left hip strain, a history of 

nonoccupational bilateral hip arthroplasties in 2003, and revision right total hip arthroplasty.

Utilizing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth 

Edition (July/August 2009) (The Guides Newsletter) and Table 16-11 (Sensory and Motor 

Severity) at page 533 of the A.M.A., Guides, Dr. Brown found bilateral mild sensory and motor 

deficits at the L4 level equaling 9 percent permanent impairment of each lower extremity; bilateral 

severe sensory and mild motor deficits at the L5 level equaling 13 percent permanent impairment 

of each lower extremity, and bilateral moderate motor and sensory deficits at the S1 level equaling 

12 percent impairment on the right and 13 percent impairment on the left. He noted that according 

to page 3 of The Guides Newsletter, combined motor and sensory impairment could not exceed 13 

percent for one level, and the combined impairment could not exceed 56 percent for both lower 

extremities. Dr. Brown therefore found 28 percent permanent impairment of each lower extremity 

due to spinal nerve root impairment. 

Regarding the right hip, Dr. Brown found a class of diagnosis (CDX) of 2 for a total right 

hip arthroplasty with a good result. He noted a grade modifier for functional history (GMFH) of 

3, a grade modifier for findings on physical examination (GMPE) of 0, and no applicable modifier

for clinical studies (GMCS) applied. Utilizing the net adjustment formula, (GMFH-CDX) + 

(GMPE-CDX), or (3-2) + (0-2) resulted in a net modifier of -1, which lowered the default grade 

of C downward to B, equaling 23 percent permanent impairment of the right lower extremity.

Regarding the left hip, Dr. Brown found a class 1 impairment for a left hip strain, with a GMFH 

 

3 On February 21, 2017 OWCP expanded its acceptance of the claim under File No. xxxxxx564 to include male 

erectile dysfunction, neuromuscular dysfunction of the bladder, urinary urgency and frequency, and neurogenic bowel. 

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

of 3 and a GMPE of 0. Applying the net adjustment formula, or (3-1) + (0-1), resulted in a net 

modifier of 1, which raised the default grade of C upward to D, equaling 2 percent permanent 

impairment of the left lower extremity. For the right lower extremity, Dr. Brown combined the 28 

percent spinal nerve root impairment and the 23 percent right hip impairment to equal 45 percent 

permanent impairment of the right leg. For the left lower extremity, he combined the 28 percent 

spinal nerve root impairment with the 2 percent impairment for a left hip strain to equal 29 percent 

permanent impairment of the left leg.

In a report dated May 27, 2017, Dr. Morley Slutsky, a Board-certified orthopedic surgeon 

serving as an OWCP district medical adviser (DMA), reviewed Dr. Brown’s April 26, 2017 

impairment rating. He opined that based only on the employment injuries accepted under OWCP 

File No. xxxxxx075, appellant had 30 percent impairment of each lower extremity. The DMA

noted that Dr. Brown’s report had not provided adequate clinical findings to assess bilateral hip 

impairment.

By decision dated August 25, 2017, under File No. xxxxxx075, OWCP granted appellant 

a schedule award for an additional 2 percent impairment of each lower extremity, for a total 30 

percent permanent impairment of each leg. The period of the award, equal to 11.52 weeks of 

compensation, ran from April 26 to July 15, 2017.

On September 6, 2017 appellant requested a review of the written record by an OWCP 

hearing representative. 

By decision dated December 7, 2017, under File No. xxxxxx075, an OWCP hearing 

representative set aside the August 25, 2017 schedule award decision and remanded the claim to 

obtain clarification from Dr. Brown regarding appellant’s bilateral hip impairment, a subsequent 

review by a DMA, and the issuance of a de novo decision.

In a report dated January 8, 2018, Dr. Ellis opined that appellant had 37 percent permanent 

impairment of each leg for total hip arthroplasty according to Table 16-4. Combined with the 28 

percent previously awarded for spinal nerve root impairment, he found 55 percent impairment of 

each lower extremity. 

Dr. Brown provided a supplemental report dated March 30, 2018. He explained that he 

did not record specific range of motion values for the bilateral hips when he had examined 

appellant on April 26, 2017. Dr. Brown noted that he had assessed a GMPE of 0 based on a normal 

range of motion in both hips.

OWCP referred appellant to Dr. Brown for an updated impairment rating. In a report dated 

June 28, 2018, Dr. Brown opined that appellant had attained MMI. He obtained range of motion 

measurements for both hips based on the maximum range among three trials performed after a 

warm-up. For both hips, Dr. Brown observed 110 degrees flexion, 0 degrees extension, 50 degrees 

adduction, and 40 degrees external rotation. He found 30 degrees internal rotation in the right hip 

and 40 degrees internal rotation on the left. Dr. Brown reiterated his calculation of 45 percent 

permanent impairment of the right lower extremity and 29 percent permanent impairment of the 

left lower extremity utilizing the identical tables and grading criteria as set forth in his April 26, 

2017 report.
5

On July 16, 2018 OWCP requested that a DMA review Dr. Brown’s updated report and 

provide an impairment rating for both lower extremities.

In a report dated July 25, 2018, the DMA reviewed Dr. Brown’s June 28, 2018 report. He

concurred that appellant had attained MMI as of June 28, 2018. The DMA also concurred with 

the bilateral L4, L5, and S1 nerve root impairment percentages found by Dr. Brown, but calculated 

that they equaled 30 percent lower extremity impairment and not 28 percent as Dr. Brown had 

found. For each lower extremity, he utilized the Combined Values Chart to combine the 13 percent 

impairment value for L5 with the 12 percent impairment for S1 to equal 23 percent, then combined 

the 9 percent L4 impairment to equal 30 percent permanent impairment of each lower extremity.

The DMA did not include an impairment rating for the left hip arthroplasty as it was not the most 

impairing diagnosis for the left hip region, resulting in a total 30 percent permanent impairment of 

the left lower extremity. He also concurred with Dr. Brown’s calculation of 23 percent permanent 

impairment of the right lower extremity due to hip arthroplasty with moderate residual symptoms. 

The DMA combined the 30 and 23 percent impairments for the right lower extremity to total 46 

percent. 

By decision dated September 12, 2018, OWCP granted appellant a schedule award for 16 

percent permanent impairment of the right lower extremity in addition to the 30 percent previously 

awarded, for a total of 46 percent permanent impairment of the right lower extremity. It further 

found that appellant had not sustained impairment of the left lower extremity greater than the 30 

percent previously awarded.5 The period of the increased award, equivalent to 46.08 weeks of 

compensation, ran from June 28, 2018 to May 16, 2019. 

LEGAL PRECEDENT

The schedule award provisions of FECA6and its implementing regulations7set 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 

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

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

 

5 The Board notes that on its face, the September 12, 2018 decision noted zero percent additional permanent 

impairment of the left lower extremity and an additional 16 percent permanent impairment of the “LLE.” Based on 

the medical evidence in support of the increased schedule award, the decision should have referred to an additional 16 

percent permanent impairment of the right lower extremity (“RLE”). The Board finds that the decision reference to 

the left lower extremity is a harmless typographical error. 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404. 
6

the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.9

No schedule award is payable for a member, function, or organ of the body not specified 

in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the 

payment of a schedule award for the permanent loss of use of the back,11 no claimant is entitled to 

such an award.12 However, in 1966, amendments to FECA modified the schedule award provision 

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. As the schedule award provision of FECA includes 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.13

The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment (DBI)

method of evaluation utilizing the World Health Organization’s International Classification of 

Functioning, Disability and Health (ICF).14 Under the sixth edition, for lower extremity 

impairments the evaluator identifies the impairment of the CDX, which is then adjusted by grade 

modifiers of GMFH, GMPE, and GMCS.15 The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).16

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.17

The standards for evaluation of permanent impairment of an extremity under the A.M.A., 

Guides are based on all factors that prevent a limb from functioning normally, such as pain, sensory 

 

8

Id. at § 10.404(a); see also Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

10 Henry B. Floyd, III, 52 ECAB 220 (2001).

11 FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

12 Thomas Martinez, 54 ECAB 623 (2003).

13 See Thomas J. Engelhart, 50 ECAB 319 (1999).

14 A.M.A., Guides, supra note 5 at page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement. 

15 Id. at 493-556. 

16 Id. at 521.

17 A.R., Docket No. 19-0250 (issued May 6, 2019); M.J., Docket No. 17-1776 (issued December 19, 2018); P.R., 

Docket No. 18-0022 (issued April 9, 2018). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule 

Awards and Permanent Disability Claims, Chapter 2.808.5 (March 2017).
7

deficit, and loss of strength.18 Also, it is axiomatic that in determining entitlement to a schedule 

award, preexisting impairment to the scheduled member is to be included.19

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 30 

percent permanent impairment of the left lower extremity and 46 percent permanent impairment 

of the right lower extremity, for which he previously received schedule award compensation.

OWCP accepted appellant’s claims for lumbar strain, lumbar spondylosis, spinal stenosis, 

nonunion of lumbar fusion.20 By decision dated April 4, 2013, under OWCP File No. xxxxxx564, 

it granted him schedule award compensation for 28 percent permanent impairment of each lower 

extremity. On September 28, 2016 appellant filed a claim for an increased schedule award due to 

his employment injuries. 

Appellant’s physicians, Dr. Ellis and Dr. Maitino, utilized the DBI method to rate bilateral 

lower extremity impairment due to bilateral hip arthroplasties. However, neither physician 

addressed neurologic impairment of the lower extremities originating in the spine. OWCP 

therefore obtained a second opinion from Dr. Brown regarding the appropriate percentage of 

permanent lower extremity impairment due to all accepted employment conditions. In an April 26, 

2017 report, Dr. Brown utilized the DBI method to find 45 percent impairment of the right lower 

extremity due to right hip arthroplasty and spinal nerve root impairment, and 28 percent permanent 

impairment of the left lower extremity due to a left hip strain and spinal nerve root impairment. 

Dr. Slutsky, a DMA, agreed with the percentages of spinal nerve root impairment found 

by Dr. Brown. He opined that appellant had 30 percent permanent impairment of each lower 

extremity based only on the employment conditions accepted under OWCP File No. xxxxxx075. 

By decision dated August 25, 2017, under File No. xxxxxx075, OWCP granted appellant 

a schedule award for an additional two percent permanent impairment of each lower extremity. It

set aside the August 25, 2017 schedule award by decision dated December 7, 2017 and remanded 

the claim to obtain a supplemental report from Dr. Brown. Dr. Brown provided a June 28, 2018 

addendum report finding 45 percent permanent impairment of the right lower extremity and 29 

percent permanent impairment of the left lower extremity based on the same tables and grading 

schemes as his prior report.

The DMA reviewed Dr. Brown’s addendum report and concurred with the bilateral nerve 

root impairment percentages and right hip regional impairment, but disagreed with his percentage 

 

18 C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010);

Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

19 C.H., id.; C.K., Docket No. 16-1294 (issued January 13, 2017); P.W., Docket No. 16-0684 (issued October 3,

2016); J.C., Docket No. 15-1780 (issued March 17, 2016); Peter C. Belkind, 56 ECAB 580 (2005).

20 The Board notes that OWCP also accepted male erectile dysfunction, neuromuscular dysfunction of the bladder, 

urinary urgency and frequency, and neurogenic bowel. There is no schedule award claim of record for these 

conditions.
8

totals. For each lower extremity, the DMA utilized the Combined Values Chart to combine 13 

percent L5 impairment, 12 percent S1 impairment, and 9 percent L4 impairment to equal 30 

percent permanent impairment. He combined the 30 percent impairment for nerve root 

impingement with 23 percent impairment due to right hip arthroplasty to equal 46 percent 

permanent impairment of the right lower extremity. By decision dated September 12, 2018, 

OWCP granted appellant an additional 16 percent impairment of the right lower extremity. 

The Board finds that the DMA properly applied the A.M.A., Guides and The Guides 

Newsletter to find that appellant had no more than 30 percent permanent impairment of the left 

lower extremity as previously awarded, and 46 percent permanent impairment of the right lower 

extremity. As appellant has not submitted evidence establishing greater permanent impairment,

he has not met his burden of proof.

On appeal appellant contends that OWCP should not have reduced the September 28, 2018 

schedule award for 46 permanent impairment of the right lower extremity due to hip arthroplasty 

under File No. xxxxxx075 based on the 28 percent previously awarded for spinal nerve root 

impairment under File No. xxxxxx564. He asserts that OWCP should not have combined the 

claims. As explained above, however, the DMA properly calculated the schedule award based on 

all conditions which affected the functioning of the limb.

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 30 

percent permanent impairment of the left lower extremity and 46 percent permanent impairment 

of the right lower extremity, for which he previously received schedule award compensation.
9

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 16, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board