United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.M., Appellant

and

U.S. POSTAL SERVICE, VERNON HILLS 

POST OFFICE, Vernon Hills, IL, Employer

__________________________________________

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Docket No. 21-1209

Issued: March 24, 2022

Appearances: Case Submitted on the Record

Stephanie Leet, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 5, 2021 appellant, through counsel, filed a timely appeal from a June 16, 2021 

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.

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

ISSUE

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

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

award compensation.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On January 17, 2017 appellant, then a 55-year-old city carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he sprained his left thigh and upper leg when he lost 

his footing and slipped on mud and ice while in the performance of duty. He stopped work on 

January 18, 2017. OWCP accepted the claim for a strain of the left thigh muscle. On June 30, 

2017 appellant underwent an OWCP-authorized left L3-4 foraminotomy and microdiscectomy. 

OWCP subsequently expanded acceptance of the claim to include L3-4 disc protrusion and lumbar 

radiculopathy secondary to left L3-4 disc protrusion. It paid appellant wage-loss compensation on 

the supplemental rolls from March 4 until May 26, 2017.

In an impairment evaluation report dated April 25, 2019, Dr. Neil Allen, a Board-certified 

internist and neurologist, obtained a history of appellant’s January 17, 2017 employment injury 

and discussed his continued complaints of back pain radiating into the left thigh. On examination 

he found some thigh and calf atrophy, intact sensation, and full strength of the lumbar spine and 

left hip. To ascertain the range of motion (ROM), Dr. Allen performed three measurements of the 

left hip, with the highest measurement yielding 70 degrees flexion, plus 6 degrees extension, 45 

degrees external rotation, 55 degrees internal rotation, 61 degrees abduction, and 24 degrees 

adduction. Dr. Allen found 10 percent permanent impairment of the left lower extremity due to 

loss of ROM. Referencing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment 

Using the Sixth Edition (July/August 2009) (The Guides Newsletter), which is a supplemental 

publication of the sixth edition of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment (A.M.A., Guides),4 Dr. Allen found no sensory or motor impairment of 

either lower extremity due to a spinal condition. He determined that using the diagnosis-based 

impairment (DBI) method for the diagnosis of hip strain yielded a lower extremity impairment 

rating between five and seven percent. Dr. Allen reported that the ROM method resulted in a 

greater impairment rating.

On May 22, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

3 Docket No. 20-1146 (issued December 18, 2020).

4

(6th ed. 2009).
3

On October 8, 20195 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving 

as a DMA, concurred with Dr. Allen’s finding that appellant had no impairment of either lower 

extremity due to a spinal nerve impairment under The Guides Newsletter. He found that ROM 

was not permitted as an alternative impairment rating for the applicable class of diagnosis (CDX) 

of left hip strain. Dr. Katz found that a CDX of hip strain with mild motion deficits was a Class 1 

impairment, which yielded a default value of two percent of the left lower extremity according to 

Table 16-4 on page 512 of the A.M.A., Guides. He applied a grade modifier for functional history 

(GMFH) and a grade modifier for physical examination (GMPE) of one each and indicated that a 

grade modifier for clinical studies (GMCS) was inapplicable. Dr. Katz utilized the net adjustment 

formula and found no change from the default value of two percent. He concluded that appellant 

had two percent permanent impairment of the left lower extremity.

By decision dated October 22, 2019, OWCP granted appellant a schedule award for two 

percent left lower extremity permanent impairment. The period of the award ran for 5.76 weeks 

from April 25 to June 4, 2019. 

On November 19, 2019 counsel requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review and submitted an addendum report 

from Dr. Allen dated November 14, 2019, in which he opined that the ROM method yielded 10 

percent permanent impairment due to loss of hip flexion, and thus was preferable to the DBI 

method as it resulted in a higher impairment rating.

By decision dated March 23, 2020, an OWCP hearing representative affirmed the 

October 22, 2019 schedule award decision.

On May 13, 2020 counsel filed an appeal with the Board. By decision dated December 18, 

2020, the Board set aside the March 23, 2020 decision and remanded the case to OWCP for 

clarification from the DMA as to whether the accepted conditions included a left hip strain and 

whether appellant had a mild or moderate motion deficit of the left hip. 6

On January 6, 2021 OWCP requested clarification from the DMA, Dr. Katz, as to whether 

the accepted conditions included a left hip strain. It also requested he clarify his left lower 

extremity impairment rating using Table 16-4 and to explain his finding that appellant had only 

mild motion deficit given that Dr. Allen found he had moderately reduced hip ROM. 

In an addendum dated January 7, 2021, Dr. Katz noted that appellant’s accepted left thigh 

strain encompassed the left hip. He again found that ROM was not permitted as an alternative 

impairment rating for the applicable CDX of left hip strain. Dr. Katz found that a CDX for hip 

strain with moderate motion deficits, which is a Class 1 impairment, yielded a default value of five 

percent of the left lower extremity according to Table 16-4 on page 512 of the A.M.A., Guides. 

He applied a GMFH and a GMPE of one each and indicated that GMCS was inapplicable. Dr. Katz 

5 The report notes the year as “2018” which appears to be a typographical error as OWCP referred the claim to the 

DMA on September 26, 2019.

6

Supra note 3.
4

utilized the net adjustment formula and found no change from the default value of five percent. 

He concluded that appellant had five percent permanent impairment of the left lower extremity.

By decision dated January 27, 2021, OWCP granted appellant an additional three percent 

schedule award for left lower extremity permanent impairment, for a total five percent left lower 

extremity permanent impairment. The period of the award ran for 8.64 weeks from June 5 to 

August 4, 2019.

On February 25, 2021 counsel requested a review of the written record before a 

representative of OWCP’s Branch of Hearings and Review.

By decision dated June 16, 2021, OWCP’s hearing representative affirmed the January 27, 

2021 schedule award decision.

LEGAL PRECEDENT

The schedule award provisions of FECA7 and its implementing regulations8 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 

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

evaluates the degree of permanent impairment according to the standards set forth in the specified 

edition of the A.M.A., Guides, published in 2009.9 The Board has approved the use by OWCP of 

the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the 

body for schedule award purposes.10

In determining permanent impairment of 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 hip, the relevant portion of the leg 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 GMFH, GMPE, and GMCS. The net adjustment 

7

Supra note 2.

8

20 C.F.R. § 10.404.

9 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guidesis used. A.M.A., Guides(6th ed. 

2009); 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, Exhibit 1 

(January2010).

10 L.E., Docket No.20-1505 (issued June 7, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro 

Rivera, 12 ECAB 348 (1961).

11 A.M.A., Guides 512-15 (6th ed. 2009).
5

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, the 

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

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

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

should be routed to a 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.14

ANALYSIS

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

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

schedule award compensation.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s March 23, 2020 merit decision because the 

Board considered that evidence in its December 18, 2020 decision. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.15

On prior appeal, the Board remanded the case to OWCP to request clarification from the

DMA as to whether the accepted conditions include a left hip strain, and whether appellant had a 

mild or moderate motion deficit of the left hip. In a report dated January 18, 2021, Dr. Katz again 

found that ROM was not permitted as an alternative impairment rating for the diagnosis of left hip 

strain. Dr. Katz found that a CDX of hip strain with moderate motion deficits, which is a Class 1 

impairment, yielded a default value of five percent of the left lower extremity according to Table 

16-4 on page 512 of the A.M.A., Guides. He applied a GMFH and a GMPE of one each and 

indicated that GMCS was inapplicable. Dr. Katz utilized the net adjustment formula and found no 

change from the default value of five percent. He concluded that appellant had five percent 

permanent impairment of the left lower extremity. 

The Board finds that Dr. Katz adequately explained how he arrived at his rating of 

permanent impairment by listing specific tables and pages in the A.M.A., Guides. The Board also 

finds that Dr. Katz properly interpreted and applied the standards of the sixth edition of the 

A.M.A., Guides to conclude that appellant qualified for five percent permanent impairment of the 

left lower extremity. Dr. Katz’s opinion therefore represents the weight of the medical evidence 

and supports that appellant has five percent permanent impairment of the left lower extremity. 

12 Id. at 515-22.

13 Id. at 23-28.

14 See supra note 9 at Chapter 2.808.6(f) (March 2017).

15 T.R., Docket No. 20-0588 (issued June 25, 2021); A.G., Docket No. 18-0329 (issued July 26, 2018); ClintonE. 

Anthony, Jr., 49 ECAB 476 (1998).
6

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 five 

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

schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the June 16, 2021 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: March 24, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board