United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.N., Appellant

and

U.S POSTAL SERVICE, POST OFFICE, 

North Attleboro, MA, Employer

__________________________________________

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Docket No. 20-0763

Issued: January 21, 2022

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 February 21, 2020 appellant, through counsel, filed a timely appeal from a February 13, 

2020 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 OWCP assigned File No. xxxxxx294 to appellant’s claim for the present appeal. In the appeal papers, counsel 

inadvertently reversed the third and second to last two digits of this file number. The Board finds that this constitutes 

harmless error in the filing of the present appeal as the content and context of the appeal papers, when considered as 

a whole, demonstrate the intent to file an appeal from OWCP’s February13, 2020 decision under OWCP File No. 

xxxxxx294.
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.4

ISSUES

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

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

schedule award compensation; and (2) whether OWCP’s Branch of Hearings and Review properly 

denied appellant’s request for the issuance of a subpoena.

FACTUAL HISTORY

On September 16, 1992 appellant, then a 47-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging injury to his knees due to factors of his federal employment. 

OWCP accepted his claim for permanent aggravation of bilateral degenerative joint disease of the 

knees and paid wage-loss compensation for periods of disability. Appellant underwent OWCPauthorized knee surgery, including total right knee replacement on March 19, 2002 and total left 

knee replacement on April 30, 2002.5

On September 7, 2012 appellant filed a claim for compensation(Form CA-7) for a schedule 

award.

In an August 16, 2012 report, Dr. Bryon Hartunian, an attending Board-certified 

orthopedic surgeon, determined that appellant had 67 percent permanent impairment of each 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).6 Dr. Morley Slutsky, a Boardcertified occupational medicine specialist and OWCP district medical adviser (DMA) 

subsequently determined on December 4, 2012 that appellant had 31 percent permanent 

impairment of each lower extremity based on the standards of the sixth edition of the A.M.A., 

Guides. After extensive development of the medical evidence, including referral to multiple 

3

5 U.S.C. § 8101 et seq.

4 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 argument may 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 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. Therefore, the oral argument request is denied and this decision 

is based on the case record as submitted to the Board.

5 OWCP administratively combined OWCP File No. xxxxxx239 with the file for the present claim, OWCP File 

No. xxxxxx294, with the latter serving as the master file.

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

impartial medical specialists, OWCP granted appellant schedule awards which, in total, provided 

compensation for 31 percent permanent impairment of each lower extremity.

In June 2019, OWCP determined that a conflict in the medical opinion evidence existed 

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

accepted facts, for an impartial medical examination with Dr. Alan Solomon, a Board-certified 

orthopedic surgeon. It requested that he provide an opinion on appellant’s lower extremity 

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

In a July 26, 2019 report, Dr. Solomon discussed appellant’s factual and medical history 

and reported the findings of his physical examination. He referenced the sixth edition of the 

A.M.A., Guides 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 appellant’s

total left knee replacement resulted in a class 3 impairment for the left lower extremity with a 

default value of 37. Dr. Solomon noted that, upon examination, appellant had left knee flexion of 

0 to 79 degrees, which under Table 16-23 on page 549 represented a class 3 condition.

7

 For the 

left lower extremity, he assigned a grade modifier for functional history (GMFH) of 1 and a grade 

modifier for physical examination (GMPE) of 2. Dr. Solomon found that a grade modifier for 

clinical studies (GMCS) was not applicable as the clinical studies were used to establish the 

diagnosis and proper placement in the regional grid. He utilized the net adjustment formula, 

(GMFH - CDX) + (GMPE - CDX) = (1 - 3) + (2 - 3) = -3, which resulted in a grade A or 31 percent 

permanent impairment of the left lower extremity. Dr. Solomon provided a separate calculation 

for the right lower extremity to find 31 percent permanent impairment and found that appellant 

reached maximum medical improvement (MMI) on the date of his examination.

By decision dated August 14, 2019, OWCP determined that appellant was not entitled to 

additional schedule award compensation for either lower extremity. It found that the special 

weight of the medical evidence rested with the well-rationalized opinion of the impartial medical 

specialist, Dr. Solomon, who found 31 percent permanent impairment of each lower extremity.

On August 22, 2019 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, appellant 

submitted a September 3, 2019 report from Dr. John J. Walsh, a Board-certified orthopedic 

surgeon, who asserted that appellant was entitled to a class 4 rating, rather than a class 3 rating, 

for appellant’s left knee under Table 16-3 and Table 16-23 of the sixth edition of the A.M.A., 

Guides. Dr. Walsh opined that, given such a class 4 rating, the permanent impairment of 

appellant’s left lower extremity utilizing Table 16-3 would fall under the default value of 67 

percent.

Prior to the hearing, appellant, through counsel, requested a subpoena for Dr. Solomon, 

which was denied by OWCP on November 6, 2019. 

During the hearing held on January 3, 2020, counsel advised that appellant was not 

contesting the permanent impairment rating he received for his right lower extremity. He argued 

that appellant was entitled to a class 4 rating, rather than a class 3 rating, for the left knee under 

7 Dr. Solomon also noted that appellant had right knee flexion of 0 to 85 degrees.
4

Table 16-3 of the sixth edition of the A.M.A., Guides. Counsel asserted that the permanent 

impairment of appellant’s left lower extremity was properly calculated in Dr. Walsh’s 

September 3, 2019 report which found 67 percent permanent impairment of that extremity. He

argued that he needed to question Dr. Solomon in order to properly assess appellant’s permanent 

impairment.

By decision dated February 13, 2020, OWCP’s hearing representative affirmed the 

August 14, 2019 decision. The hearing representative noted that the prior denial of appellant’s 

request to subpoena Dr. Solomon was now finalized and indicated that counsel failed to establish 

a sufficient basis to warrant issuance of such a subpoena as he did not prove that oral testimony 

was the best or only way to obtain additional information from Dr. Solomon. The hearing 

representative noted that Dr. Solomon had already provided detailed medical reasoning explaining 

his opinion regarding appellant’s permanent impairment.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA8 and its implementing federal regulations9 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

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

the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has 

concurred in such adoption.

10

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

to calculate schedule awards.11

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

provides that diagnosis-based impairment is the primary method of calculation for the lower limb 

and that most impairments are based on the diagnosis-based impairment 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.12 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 

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

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

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

2.808.5a (March 2017); see alsoChapter 3.700.2 and Exhibit 1 (January 2010).

12 A.M.A., Guides(6th ed. 2009) 497, section 16.2.
5

other grids refer to this section or no other diagnosis-based sections of the chapter are applicable 

for impairment rating of a condition.13

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

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

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

reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.14 After the CDX is 

determined from the Knee 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).15 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.16

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.17 For a conflict to arise, the opposing physicians’ opinions must be of 

virtually equal weight and rationale.18 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.19

ANALYSIS -- ISSUE 1

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

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

compensation.

13 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).

14 Id. at 509-11.

15 Id at 515-22.

16 Id. at 23-28.

17 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).

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

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

ECAB 1010 (1980).
6

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

regarding appellant’s lower extremity permanent impairment and, pursuant to 5 U.S.C. § 8123(a),

referred him for an impartial medical examination and impairment evaluation with Dr. Solomon.20 

In his July 26, 2019 report, Dr. Solomon discussed appellant’s factual and medical history 

and reported the findings of his physical examination. He referenced the sixth edition of 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 the total left knee replacement resulted in a class 3 impairment for 

the left lower extremity with a default value of 37. Dr. Solomon noted that, upon examination, 

appellant had left knee flexion of 0 to 79 degrees, which under Table 16 -23 on page 549 

represented a class 3 condition. For the left lower extremity, he assigned a GMFH of 1 and a 

GMPE of 2. Dr. Solomon found that a GMCS was not applicable as the clinical studies were used 

to establish the diagnosis and proper placement in the regional grid. He properly utilized the net 

adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (1 - 3) + (2 - 3) = -2, which resulted in 

a grade A or 31 percent permanent impairment of the left lower extremity. Dr. Solomon found 

that appellant reached MMI on the date of his examination, July 26, 2019. 

Appellant submitted a September 3, 2019 report from Dr. Walsh, who asserted that 

appellant was entitled to a class 4 rating, rather than a class 3 rating, for appellant’s left knee under 

Table 16-3 and Table 16-23 of the sixth edition of the A.M.A., Guides. Dr. Walsh opined that, 

given such a class 4 rating, the permanent impairment of appellant’s left lower extremity utilizing 

Table 16-3 would fall under the default value of 67 percent. The Board notes, however, that

Dr. Walsh failed to adequately explain why appellant’s left knee was entitled to a class 4 rating, 

rather than a class 3 rating.

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

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

opinion of the impartial medical specialist, Dr. Solomon and establishes that appellant has no 

greater than 37 percent impairment of the left lower extremity. 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.

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.21 The hearing 

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

subpoena request.22 Abuse of discretion is generally shown through proof of manifest error, a 

20 See supra notes 17 and 18. The Board notes that appellant is not contesting OWCP’s determination regarding 

right lower extremity permanent impairment.

21 See 20 C.F.R. § 10.619.

22 See id.
7

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

probable deductions from established facts.23 

ANALYSIS -- ISSUE 2

The Board finds that OWCP’s hearing representative properly denied appellant’s request

for the issuance of a subpoena.

OWCP’s hearing representative did not commit an abuse of discretion in denying 

appellant’s request, through counsel, to subpoena Dr. Solomon. 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 individuals. The hearing representative noted that Dr. Solomon had already provided 

detailed medical reasoning explaining his opinion regarding appellant’s permanent impairment. 

The Board finds that the hearing representative’s denial of counsel’s request to subpoena

Dr. Solomon did not constitute as abuse of discretion under the above-noted standard.24

CONCLUSION

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

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

schedule award compensation. The Board further finds that OWCP’s Branch of Hearings and 

Review properly denied appellant’s request for the issuance of a subpoena.

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

24 See id.
8

ORDER

IT IS HEREBY ORDERED THAT the February 13, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: January 21, 2022

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