United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.H., Appellant

and

U.S. POSTAL SERVICE, BROOKLINE POST 

OFFICE, Brookline, MA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 20-0831

Issued: December 27, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Jr., Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 4, 2020 appellant, through counsel, filed a timely appeal from a December 20, 

2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

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, through counsel,submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). 

Pursuant to the Board’s Rules of Procedure, oral argumentmay be held in the discretion of the Board. 20 C.F.R. 

§ 501.5(a). In support of his oral argument request, appellant asserted that oral argument should be granted in order 

to present argument demonstrating that he had greater right lower extremity permanent impairment than had 

previously been found by OWCP. The Board, in exercising its discretion, denies hisrequest for oral argument because 

this matter requires an evaluation of the medical evidence required. As such, the arguments on appeal can be 

adequately addressed in a decision based on a review of the case record. Oral argument in this appeal would further 

delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and 

this decision is based on the case record as submitted to the Board.
2

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.

ISSUE

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

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

schedule award.

FACTUAL HISTORY

On March 19, 2012 appellant, then a 48-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging injury to his right femoral joint due to factors of his federal 

employment. He noted that he first became aware of his claimed condition on March 3, 2011 and 

realized its relation to his federal employment on November 23, 2011. OWCP accepted 

appellant’s claim for permanent aggravation of degenerative arthritis of the right hip and paid 

wage-loss compensation. Appellant underwent OWCP-authorized total right hip joint replacement 

surgery on March 26, 2013.

In a May 1, 2016 report, Dr. Bryon Hartunian, an attending Board-certified orthopedic 

surgeon, determined that appellant had 37 percent permanent impairment of his right lower 

extremity based on the standards of the sixth edition of the American Medical Association, Guides 

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

On May 10, 2016 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On May 24, 2016 OWCP referred the case to Dr. Eric M. Orenstein, a Board-certified 

orthopedic surgeon and OWCP district medical adviser (DMA). In a May 28, 2016 report,

Dr. Orenstein determined that appellant had 31 percent permanent impairment of the right lower 

extremity based on the standards of the sixth edition of the A.M.A., Guides.

In July 2017, OWCP determined that there was a conflict in the medical opinion evidence 

regarding permanent impairment and referred appellant, along with an updated statement of 

accepted facts, for an impartial medical examination with Dr. Robert R. Pennell, a Board-certified 

orthopedic surgeon. It requested that Dr. Pennell provide an opinion on appellant’s right lower 

extremity permanent impairment under the sixth edition of the A.M.A., Guides.

In a report dated August 8, 2017, Dr. Pennell discussed appellant’s factual and medical 

history and reported his physical examination findings. He noted that appellant denied that right 

hip pain caused him to limp and reported range of motion testing results, including 70 degrees of 

flexion for the right hip. Dr. Pennell referred to the sixth edition of the A.M.A., Guides and utilized 

the diagnosis-based impairment (DBI) rating method to find that, under Table 16-4 (Hip Regional 

3

5 U.S.C. § 8101 et seq.

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

Grid), page 515, the class of diagnosis (CDX) for appellant’s total right hip joint replacement 

resulted in a class 3 impairment with a default value of 37 percent. For the right lower extremity, 

he assigned a grade modifier for functional history (GMFH) of 1 due to a mild problem; a grade 

modifier for physical examination (GMPE) of 1 as a result of muscle atrophy; and a grade modifier 

for clinical studies (GMCS) of 0 due to no relevant findings. Dr. Pennell utilized the net 

adjustment formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1-3) + (1-3) + (0-3)

= -7, but noted that, under Table 16-4, moving two spaces to the left of the default value of 37 

percent was the maximum allowed. He indicated that this calculation resulted in a grade A or 31 

percent permanent impairment of the right lower extremity. Dr. Pennell found that appellant 

reached maximum medical improvement on March 26, 2014, one year after his March 26, 2013 

right hip surgery.

On July 30, 2018 OWCP referred the case to Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as the DMA. In an August 3, 2018 report, Dr. Katz discussed

Dr. Pennell’s August 8, 2017 report and explained that he agreed with Dr. Pennell that appellant 

had 31 percent permanent impairment of the right lower extremity based on the standards of the 

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

By decision dated December 28, 2018, OWCP granted appellant a schedule award for 31 

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

August 8, 2017 through April 24, 2019. It based the award on the August 8, 2017 opinion of the 

impartial medical specialist, Dr. Pennell, as supported by the August 31, 2018 opinion of Dr. Katz, 

the DMA.

Appellant, through counsel, requested reconsideration of the December 28, 2018 decision. 

By decision dated December 20, 2019, OWCP denied modification of its December 28, 

2018 decision.

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing federal regulations6 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 b e 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 and the Board has 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.
4

concurred in such adoption.

7

 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used 

to calculate schedule awards.8

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that DBI is the primary method of calculation for the lower limb and that most 

impairments are based on the DBI where impairment class is determined by the diagnosis and 

specific criteria as adjusted by the grade modifiers for functional history, physical examination, 

and clinical studies. It further provides that alternative approaches are also provided for calculating 

impairment for peripheral nerve deficits, complex regional pain syndrome, amputation, and range 

of motion. Range of motion is primarily used as a physical examination adjustment factor. 9 The 

A.M.A., Guides, however, also explain that some of the diagnosis-based grids refer to the range 

of motion section when that is the most appropriate mechanism for grading the impairment. This 

section is to be used as a stand-alone rating when other grids refer to this section or no other 

diagnosis-based sections of the chapter are applicable for impairment rating of a condition. 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 right hip, the relevant portion of the right lower extremity for the 

present case,reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512.

11

 After 

the 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 Under Chapter 2.3, 

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

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

Section 8123(a) of FECA provides that, if there is a disagreement between the physician 

making the examination for the United States and the physician of an employee, the Secretary shall 

appoint a third physician (known as a referee physician or impartial medical specialist) who shall 

make an examination.14 For a conflict to arise, the opposing physicians’ opinions must be of 

7

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); JacquelineS. Harris, 54 ECAB 139 (2002).

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

2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

9 A.M.A., Guides(6th ed. 2009) 497, section 16.2.

10 Id. at 543; see also M.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued 

January 8, 2016).

11 Id. at 509-11.

12 Id. at 515-22.

13 Id. at 23-28.

14 5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S.,Docket No. 10-1704 (issued 

May 13, 2011); S.T.,Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
5

virtually equal weight and rationale.15 In situations where the case is properly referred to an 

impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, 

if sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.16

ANALYSIS

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

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

schedule award.

OWCP properly determined that there was a conflict in the medical opinion evidence 

regarding appellant’s lower extremity permanent impairment and referred appellant for an 

impartial medical examination and impairment evaluation with Dr. Pennell, pursuant to 5 U.S.C. 

§ 8123(a).

17

 The Board finds that the special weight of the medical evidence with respect to the 

permanent impairment of appellant’s right lower extremity rests with the well-rationalized 

August 8, 2017 opinion of the impartial medical specialist, Dr. Pennell, as supported by the 

August 31, 2018 opinion of Dr. Katz, the DMA.18

In his August 8, 2017 report, Dr. Pennell referred to the sixth edition of the A.M.A., Guides

and utilized the DBI rating method to find that, under Table 16-4 (Hip Regional Grid), page 515, 

the CDX for appellant’s total right hip joint replacement resulted in a class 3 impairment with a 

default value of 37 percent. For the right lower extremity, he assigned a grade modifier for GMFH 

of 1; a GMPE of 1; and a GMCS of 0. Dr. Pennell properly utilized the net adjustment formula, 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (1-3) + (1-3) + (0-3) = -7, and noted that, 

under Table 16-4, moving two spaces to the left of the default value of 37 percent was the 

maximum allowed. He indicated that this calculation resulted in a grade A or 31 percent permanent 

impairment of the right lower extremity.

In addition, in an August 3, 2018 report, Dr. Katz discussed Dr. Pennell’s August 8, 2017 

report and also properly determined that appellant had 31 percent permanent impairment of the 

right lower extremity based on the standards of the sixth edition of the A.M.A., Guides.

Appellant has not submitted a medical report which establishes a greater permanent 

impairment rating of the right lower extremity in accordance with the standards of the sixth edition 

of the A.M.A., Guides.

On appeal, counsel argues the opinion of appellant’s attending physician, Dr. Hartunian,

established a greater permanent impairment of the right lower extremity than already determined 

15 P.R., Docket No. 18-0022 (issued April9, 2018).

16 See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 

ECAB 1010 (1980).

17 See supra notes 14 and 15.

18 See supra note 16.
6

by OWCP. However, Dr. Hartunian’s opinion represents one side of a conflict in the medical 

opinion evidence, which was resolved by the well-rationalized opinion of the impartial medical 

specialist, Dr. Pennell.

19

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 greater than 31 

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 27, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

19 See S.I., Docket No. 13-1880 (issued April18, 2014); Richard O’Brien, 53 ECAB 234 (2001).