United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.C., Appellant

and

U.S. POSTAL SERVICE, MINERAL POST 

OFFICE, Mineral, VA, Employer

__________________________________________

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Docket No. 20-1170

Issued: January 29, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 19, 2020 appellant, through counsel, filed a timely appeal from a March 24, 2020 

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.

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish greater than 

25 percent permanent impairment of each lower extremity, for which she previously received 

 

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.
2

schedule award compensation; and (2) whether OWCP abused its discretion in denying appellant’s

request for a subpoena.

FACTUAL HISTORY

On June 24, 2016 appellant, then a 50-year-old rural mail carrier, filed an occupational 

disease claim (Form CA-2) alleging that she sustained bilateral knee osteoarthritis due to factors 

of her federal employment, including standing, bending, twisting, pivoting, lifting, walking, and 

climbing into and out of her postal vehicle. By decision dated May 25, 2017, OWCP accepted her 

claim for primary osteoarthritis of the knees.

The record reflects that appellant underwent right total knee replacement surgery on 

August 20, 2012 and left total knee replacement surgery on April 15, 2013, performed by

Dr. Harry J. Shaia, a Board-certified orthopedic surgeon. The operative reports noted a diagnosis 

of degenerative joint arthritis.

Appellant also received medical treatment from Dr. Byron V. Hartunian, a Board-certified 

orthopedic surgeon. In a May 4, 2016 report, Dr. Hartunian reviewed appellant’s medical records 

and noted that she underwent total knee replacement of both knees due to end-stage degenerative 

joint disease, as confirmed by diagnostic testing. He reported that she currently complained of 

stiffness in the knees, no instability, and restricted motion and pain with certain activity. Upon 

physical examination, Dr. Hartunian observed that squatting was limited to 50 percent due to 

restricted motion in both knees. Examination of appellant’s bilateral knees revealed no palpable 

effusion or tenderness. Range of motion (ROM) of her right knee was 107 degrees flexion and 0 

degrees extension; ROM of her left knee was 108 degrees flexion and 0 degrees extension. 

Dr. Hartunian diagnosed status post right and left total knee replacement for end-stage 

degenerative arthritis. He reported a date of maximum medical improvement (MMI) of the right 

total knee replacement of December 10, 2012 and a date of MMI of the left knee replacement of 

October 14, 2013.

On July 13, 2017 appellant filed a claim for a schedule award (Form CA-7).

Appellant submitted a June 1, 2017 impairment evaluation from Dr. Hartunian who 

referred to his previous examination report for physical examination findings, diagnoses, and dates 

of MMI. Dr. Hartunian referred to the sixth edition of the American Medical Association, Guides 

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

3

and utilized the diagnosis-based 

impairment (DBI) rating method to find that, under Table 16-3 (Knee Regional Grid), page 511, 

the class of diagnosis (CDX) for a total knee replacement resulted in a class 3 impairment with a 

default value of 37 percent due to mild motion deficit. He assigned a grade modifier for functional 

history (GMFH) of 2 based on appellant’s American Academy of Orthopedic Surgery (AAOS) 

Lower Limb Questionnaire, which showed a moderate deficit.

4

 Dr. Hartunian found that a grade 

 

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

4 Dr. Hartunian also reported that appellant had GMFH of 0 due to no antalgic gait. However, he explained that 

according to the A.M.A., Guides, the highest class modifier should be used when determining grade modifiers. Id. at 

515, Paragraph 16-3.
3

modifier for clinical studies (GMCS) and a grade modifier for physical examination (GMPE) were 

not applicable as clinical studies and physical examination were used to establish the diagnosis 

and proper placement in the regional grid. He also explained that since the GMFH differed by 2 

or more from the GMCS and GMPE, the GMFH was considered unreliable and should be excluded 

from the calculation. As the net adjustment formula amounted to no adjustment, Dr. Hartunian 

determined that appellant had 37 percent permanent impairment of the right lower extremity. He

reported that the analysis for the left total knee replacement was identical and resulted in 37 percent 

left lower extremity permanent impairment.

Following review by Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as an OWCP district medical adviser (DMA), the case was referred to Dr. William C. Andrews, Jr., 

a Board-certified orthopedic surgeon, for a second opinion evaluation and opinion on permanent 

impairment of the lower extremities. 

In an August 10, 2017 report, Dr. Andrews referred to his May 3, 2017 medical 

examination of appellant and included a copy of the May 3, 2017 report. In his May 3, 2017 report, 

he observed excellent range of motion and good stability upon physical examination of both knees. 

Dr. Andrews diagnosed degenerative arthritis of both knees. He referred to the A.M.A., Guides 

and utilized the DBI rating method to find that, under Table 16-3 (Knee Regional Grid), page 511, 

the CDX for total knee replacement with a good result resulted in a class 2 impairment with a 

default value of 25 percent permanent impairment.5 Dr. Andrews noted no grade modifiers. He 

calculated that 25 percent permanent impairment of each lower extremity equaled 20 percent 

whole person impairment.

The file was reviewed by Dr. Katz, who agreed with Dr. Andrews’ rating of 25 percent 

permanent impairment of each lower extremity. Dr. Katz noted a date of MMI of May 3, 2017, 

the date of Dr. Andrews’ second opinion report.

By decision dated June 26, 2018, OWCP granted appellant a schedule award for 25 percent 

permanent impairment of each lower extremity. The award ran for 144 weeks from May 3, 2017 

to February 4, 2020.

On July 12, 2018 appellant, through her then-counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on November 6, 2018. 

By decision dated January 8, 2019, a hearing representative set aside the June 26, 2018 OWCP 

decision and remanded the case for an impartial medical examination due to a conflict in medical 

opinion between Dr. Hartunian for appellant and Dr. Williams for OWCP. 

On remand, OWCP referred appellant to Dr. John Aldridge, a Board-certified orthopedic 

surgeon, for an impartial medical examination on June 27, 2019 to resolve the conflict regarding 

the extent of appellant’s bilateral lower extremity impairment. In his August 1, 2019 report,

Dr. Aldridge reviewed appellant’s history and noted that her claim was accepted for bilateral 

primary knee osteoarthritis. He indicated that x-ray examination of the knees revealed a slight bit 

of varus alignment with no evidence of loosening, instability, or other abnormality. Upon physical 

examination of appellant’s knees, Dr. Aldridge observed ROM findings of full extension of 0 

 

5

Id. at 511, Table 16-3.
4

degrees to 105 degrees flexion. He also noted no varus valgus instability, no paresthesias, and 

good overall alignment. Sensation and motor strength in the lower extremities were normal.

Dr. Aldridge explained that the basis of the conflict between Dr. Hartunian and

Dr. Andrews was whether, for the CDX of total knee replacement appellant was a class 2 for 

moderate problem or class 3 for severe problem. He reported that based on appellant’s functioning

knees with good range of motion from 0 to 105 degrees, with no instability, and the ability to work 

a full-time job, he would classify appellant as a class 2 for moderate problem. Dr. Andrews 

assigned GMFH of 1 (mild problem) based on appellant’s complaints of stiffness. He assigned a 

GMPE of 1 (mild problem) due to range of motion from 0 to 105 degrees and a GMCS of 1 (mild 

problem) based on slight varus position of the knee. Dr. Andrews calculated that appellant had no 

adjustment, which resulted in a default impairment of 25 percent permanent impairment of the 

bilateral knees.

By decision dated September 6, 2019, OWCP found that appellant was entitled to no more 

than the previously awarded schedule award for 25 percent impairment of each lower extremity. 

The award ran for 144 weeks from May 3, 2017 to February 4, 2020. 

On September 16, 2019 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review.

In a September 24, 2019 letter, appellant, through counsel, requested the issuance of 

subpoenas to compel Dr. Aldridge, Dr. Andrews, and Dr. Katz, the DMA, to testify during the oral 

hearing. Counsel asserted that the anticipated testimony of these physicians was necessary to 

determine which findings formed the basis of their decision and to assess the proper weight to be 

given to them.

In a December 10, 2019 letter, OWCP’s hearing representative denied appellant’s request 

for subpoenas. In denying the request, she explained that appellant had not demonstrated that 

evidence from Drs. Aldridge, Andrews, and Katz could not be obtained without the use of 

subpoenas, including obtaining such evidence in writing if further clarification was deemed 

necessary to resolve the underlying issue of the present case.

In a December 12, 2019 memorandum, counsel for appellant argued that Dr. Aldridge 

erroneously assigned a class 2, moderate problem, under the CDX of total knee replacement. He 

noted that according to Table 16-23, page 549, of the A.M.A., Guides, a mild motion deficit for 

the knee was flexion of 80 to 109 degrees. Counsel indicated that by Dr. Aldridge’s own physical 

examination findings, appellant had 105 degrees flexion bilaterally, which classified as mild 

motion deficit, thereby placing appellant in class 3 for a severe problem. He also argued that

Dr. Aldridge erroneously assigned a GMFH of 1 due to appellant’s complaints of “stiffness.” 

Counsel noted that according to Table 16-6, page 516, of the A.M.A., Guides, identification of 

GMFH required an analysis of gait derangement and the AAOS Lower Limb instrument. He 

reported that appellant’s AAOS form demonstrated a GMFH of 2. 

A telephonic hearing was held on January 9, 2020. Counsel argued that Dr. Aldridge had 

incorrectly applied the A.M.A., Guides in assigning a class 2, instead of a class 3 for the CDX of 

total knee replacement. He contended that appellant was entitled to 37 percent permanent 
5

impairment for each lower extremity and asserted that the controlling case was W.B.,6 which also 

involved a total knee replacement. Counsel also argued that if he had been given the right to 

question Dr. Aldridge, he would have agreed that appellant’s physical examination findings 

showed mild motion deficit due to the range of motion of her knees. 

Counsel subsequently submitted a memorandum dated January 9, 2020, which reiterated 

his arguments at the telephonic hearing.

By decision dated March 24, 2020, an OWCP hearing representative affirmed the 

September 6, 2019 decision finding that appellant was entitled to no more than 25 percent 

permanent impairment of each lower extremity. The hearing representative also finalized its prior 

denial of appellant’s request for issuance of subpoenas to Drs. Aldridge, Andrews, and Katz. 

LEGAL PRECEDENT -- ISSUE 1

The schedule award provision of FECA7and its implementing regulations8set 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member 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 and the Board has concurred in such 

adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, 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 knee, the relevant portion of the leg for the present case, reference 

is made to Table 16-3 (Knee Regional Grid) beginning on page 509.11 After the CDX is determined 

from the Knee Regional Grid (including identification of a default grade value), the net adjustment 

formula is applied using GMFH, GMPE, and GMCS The net adjustment formula is (GMFH -

CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, evaluators are directed to 

 

6 Docket No. 14-1982 (issued August 26, 2015).

7 5 U.S.C. § 8107.

8 20 C.F.R. § 10.404.

9 20 C.F.R. § 10.404(a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB 

139 (2002). 

10 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).

11 See A.M.A., Guides (6th ed. 2009) 509-11.

12 Id. at 515-22.
6

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 This is called an impartial medical examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.15 When there exist opposing medical reports of virtually equal weight and rationale and the 

case is 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 -- ISSUE 1

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

OWCP determined that a conflict arose between Dr. Hartunian, an attending physician, and

Dr. Andrews, the second opinion physician, regarding the extent of appellant’s permanent 

impairment of each lower extremity. Appellant was subsequently referred to Dr. Aldridge for an 

impartial medical examination to resolve the conflict in medical evidence. 

In an August 1, 2019 report, Dr. Aldridge noted bilateral knee examination findings of full 

extension of 0 degrees to 105 degrees flexion. He also noted no varus valgus instability, no 

paresthesias, and good overall alignment. Dr. Aldridge determined that according to the A.M.A., 

Guides, Table 16-3 (Knee Regional Grid), appellant was a class 2 for a moderate problem based 

on good range of motion from 0 to 105 degrees. The Board finds, however, that Dr. Aldridge 

provided a contradictory and inconsistent opinion regarding appellant’s permanent impairment. 

Although Dr. Aldridge noted examination findings of 105 degrees flexion, he assigned class 2 for 

good results from total knee replacement surgery instead of class 3 for fair results. A class 3 

assignment is described as mild instability and/or mild motion deficit.17 According to Table 16-

23, page 549, a mild motion impairment for the knee is 80 to 109 degrees flexion. The Board finds 

that Dr. Aldridge did not adequately explain why he assigned a class 2 for good results when 

appellant’s range of motion examination findings showed 105 degrees flexion, equal to mild 

 

13 Id. at 23-28.

14 5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued 

May 4, 2009).

15 20 C.F.R. § 10.321.

16 Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

17 A.M.A., Guides 511, Table 16-3.
7

motion deficit. In light of the inconsistent nature of his impairment rating, the Board finds that his 

report requires clarification.18

Additionally, the Board notes that Dr. Aldridge did not assign grade modifiers in 

accordance with the A.M.A., Guides. Dr. Aldridge assigned a GMFH of 1 (mild problem) due to 

appellant’s complaints of stiffness. According to Table 16-6,19 grade modifiers for functional 

history are determined by gait derangement or AAOS Lower Limb score, not complaints of 

stiffness. Dr. Aldridge also assigned a GMPE of 1 (mild problem) due to range of motion. 

However, paragraph 16.320 of the A.M.A., Guides provides that, if a grade modifier was used to 

establish the diagnosis and proper placement in the regional grid, it may not be used again in the 

impairment calculation. In this case, Dr. Aldridge indicated that he assigned class 2 due, in part, 

to appellant’s ROM. Since he utilized appellant’s examination findings in determining appellant’s 

class placement, he should not have assigned a grade modifier for physical examination. 

Furthermore, the Board notes that Dr. Aldridge incorrectly calculated the net adjustment 

formula. Dr. Aldridge assigned a GMFH of 1 due to appellant’s complaints of stiffness, a GMPE 

of 1 due to range of motion, and a GMCS of 1 due to slight varus position of the knee. Dr. Andrews 

calculated that appellant had no adjustment, which resulted in a default impairment of 25 percent 

permanent impairment of the both knees. The Board finds, however, that application of the net 

adjustment formula21 (1 - 2) + (1 - 2) + (1 - 2) results in an adjustment of -3, instead of no 

adjustment. As Dr. Aldridge’s impairment rating report does not properly conform to the A.M.A., 

Guides, his opinion is of diminished probative value and requires clarification.22

In a situation where OWCP secures an opinion from an impartial medical examiner for the 

purpose of resolving a conflict in the medical evidence and the opinion from such examiner 

requires clarification and/or elaboration, OWCP has the responsibility to secure a supplemental 

report from the examiner for the purpose of correcting the defect in the original opinion.

23

For the above-described reasons, the opinion of Dr. Aldridge requires clarification. 

Therefore, in order to address the unresolved conflict in the medical opinion evidence, the case 

will be remanded to OWCP for referral to Dr. Aldridge for a supplemental opinion regarding the 

degree and extent of appellant’s bilateral lower extremity permanent impairment. If Dr. Aldridge 

is unable to clarify his opinion or if his requested supplemental report is also lacking rationale, 

OWCP shall refer appellant to a new impartial medical examiner for the purpose of obtaining a 

 

18 See W.W., Docket No. 18-0093 (issued October 9, 2018).

19 A.M.A., Guides 516.

20 Id. at 515-16.

21 Supra note 13.

22 See L.L., Docket No. 19-0214 (issued May 23, 2019).

23 S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
8

rationalized medical opinion on the issue.24 After carrying out this and other such further 

development as deemed necessary, OWCP shall issue a de novo decision.

LEGAL PRECEDENT -- ISSUE 2

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.25 The hearing 

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

subpoena request.26 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.27

ANALYSIS -- ISSUE 2

The Board finds that OWCP’s hearing representative did not abuse her discretion when she 

denied appellant’s subpoena request for the testimony of Drs. Aldridge, Andrews, and Katz. In 

denying the request, the hearing representative explained that appellant had not demonstrated that 

evidence from Drs. Aldridge, Andrews, and Katz could not be obtained without the use of 

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

of appellant’s request for subpoenas constituted an abuse of discretion under the above-noted 

standard.28

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 this case is not in posture for decision with respect to the schedule

award determination. The Board also finds that OWCP did not abuse its discretion in denying 

appellant’s request for subpoenas. 

 

24 M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

25 See 20 C.F.R. § 10.619.

26 Id. 

27 B.M., Docket No. 17-1157 (issued May 22, 2018); Gerald A. Carr, 55 ECAB 225 (2004).

28 See E.S., Docket No. 20-0559 (issued October 29, 2020).
9

ORDER

IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed in part, and set aside in part. The case is remanded 

for further proceedings consistent with this decision of the Board.

Issued: January 29, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board