United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.F., Appellant

and

U.S. POSTAL SERVICE, MIDDLESEX ESSEX 

PROCESSING & DISTRIBUTION CENTER, 

North Reading, MA, Employer

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Docket No. 22-0052

Issued: September 20, 2023

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 14, 2021 appellant, through counsel, filed a timely appeal from a 

September 17, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 

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 argument may be held in the discretion of the Board. 20 C.F.R. 

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

present argument demonstrating that range of motion should have been used to evaluate appellant’s right lower 

extremity impairment. The Board, in exercising its discretion, denies his request for oral argument because this matter 

requires an evaluation of the medical evidence presented. 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

Pursuant to the Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction to consider the merits of this case.

ISSUE

The issue is whether appellant has met his burden of proof to establish greater than 36 

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

schedule award.

FACTUAL HISTORY

On October 17, 2019 appellant, then a 56-year-old truck driver, filed an occupational 

disease claim (Form CA-2) alleging he developed right hip and knee osteoarthritis causally related 

to factors of his federal employment. He noted that he first became aware of his condition and 

realized its relation to his federal employment on April 26, 2019. Appellant did not stop work. 

OWCP accepted the claim for permanent aggravation of bilateral hip osteoarthritis and permanent 

aggravation of right knee osteoarthritis.

Appellant provided medical records regarding a right knee injury that occurred in 

October 1997 when a trash cart fell against his knee. He underwent anterior cruciate ligament 

(ACL) and medial cruciate ligament reconstructions on January 7, 1998 and right knee 

arthroscopic lysis of adhesions and manipulation under anesthesia on March 25, 1998. On 

January 12, 2000 appellant underwent a right knee chondroplasty patella and medial femoral 

condyle and right knee lysis of adhesions.

On August 23, 2018 Dr. Justin W. Kung, a Board-certified radiologist, advised that he had 

reviewed appellant’s bilateral hip and knee radiographs obtained on May 8 and July 27, 2018 and 

found a right medial compartment joint space interval of 3.0 millimeters and a lateral compartment 

joint space interval of 4.5 millimeters with a prior ACL repair. His frontal pelvic radiograph 

demonstrated that the right femoroacetabular joint measured 2.0 millimeters and the left 

femoroacetabular joint measured 3.0 millimeters.

In a September 17, 2019 report, Dr. John J. Walsh, Jr., a Board-certified orthopedic 

surgeon, reviewed appellant’s August 23, 2018 right knee x-ray showing 3.0 millimeters of right 

knee medial compartment joint space and 4.5 millimeters of lateral compartment joint space. He 

found prominent osteophytes arising from the right femoral head. Dr. Walsh noted that appellant 

walked with a “bent knee” antalgic gait. His findings on physical examination included bilateral 

knee effusions and palpable osteophytes along the medial joint lines. Dr. Walsh diagnosed 

osteoarthritis of the right knee and hip. He provided appellant’s right knee range of motion (ROM) 

measurements with a surface goniometer and obtained three separate measurements to reach 10

degrees of flexion contracture, flexion of 113 degrees, and total flexion of 103 degrees. Dr. Walsh

measured right hip ROM of 75 degrees of flexion, 0 degrees of extension, 30 degrees of abduction, 

27 degrees of adduction, 9 degrees of internal rotation, and 5 degrees of external rotation. He 

found that appellant had reached maximum medical improvement (MMI). Dr. Walsh applied the

ROM method for rating impairment set forth in sixth edition American Medical Associations 

3

5 U.S.C. § 8101 et seq.
3

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

4 at Table 16-23 on page 549 

to find 30 percent permanent impairment of the right knee for loss of flexion and flexion 

contracture. He further applied Table 16-24, page 549, and found that appellant right hip ROM

resulted in 25 percent permanent impairment. Dr. Walsh utilized the Combined Values Chart on 

page 606 of the A.M.A., Guides to reach 48 percent permanent impairment of the right lower 

extremity impairment.

On April 14, 2020 appellant filed a claim for compensation (Form CA-7) requesting a 

scheduled award.

On April 20, 2020 OWCP referred the case record and a statement of accepted facts 

(SOAF) to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as OWCP’s district 

medical adviser (DMA). In a May 1, 2020 report, Dr. Harris diagnosed status post right knee ACL

reconstruction and chondroplasty, status post right knee arthroscopic lysis of adhesions and 

manipulation, and bilateral knee degenerative joint disease. He found that appellant’s diagnoses 

did not meet any of the criteria discussed in Section 16.7, page 543, of the A.M.A., Guidesto allow 

impairment calculation by ROM, as this was a stand-alone rating used when no diagnosis-based 

sections were applicable or in very rare cases where a severe injury results in a passive ROM loss, 

qualifying for a Class 3 or 4 impairment or for amputation ratings, in accordance with section 16.7, 

page 543, A.M.A., Guides. Dr. Harris calculated appellant’s impairment rating based on the 

diagnosis-based impairment (DBI) estimates for mild degenerative joint disease of the right knee 

with documented joint space narrowing of a three-millimeter cartilage interval, resulting in seven 

percent permanent impairment of the right lower extremity in accordance with Table 16-3, page 

511 of the A.M.A., Guides. In regard to appellant’s right hip, he found residual moderate 

degenerative joint disease of the hip, hip arthritis, with documented joint space narrowing with a 

2-millimeter cartilage interval, resulting in 20 percent permanent impairment in accordance with 

Table 16-4, page 514 of the A.M.A., Guides. Dr. Harris concluded that appellant had 26 percent 

right lower extremity permanent impairment.

On June 15, 2020 OWCP provided Dr. Walsh with the DMA’s impairment ratings and 

requested that he submit additional comments or evidence in support of his impairment rating. In 

a June 29, 2020 response, Dr. Walsh asserted that he had appropriately applied the ROM method. 

He maintained that the A.M.A., Guides provided that impairments due to knee flexion contracture 

should not be estimated using x-rays, because the measurements were unreliable. Dr. Walsh

concluded that the ROM method must, therefore, be used to rate appellant’s permanent 

impairment.

On September 21, 2020 OWCP referred Dr. Walsh’s June 29, 2020 report to Dr. Harris, 

the DMA, for review. In an October 31, 2020 report, Dr. Harris found that appellant’s right knee 

impairment should not be calculated based on radiographic findings for degenerative changes, as 

he had a 10 percent flexion contracture and x-rays were not reliable. The DMA determined that 

appellant had 20 percent right lower permanent impairment for residual knee flexion contracture 

in accordance with Table 16-23, page 549 of the A.M.A., Guides. Dr. Harris further found that 

appellant’s right hip impairment should be calculated through the DBI resulting in 20 percent 

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

permanent impairment. The DMA combined these impairment ratings to reach 36 percent 

permanent impairment of the right lower extremity.

On February 5, 2021 OWCP requested clarification from the DMA, regarding his 

impairment rating. In a February 16, 2021 supplemental report, the DMA, Dr. Harris, opined that 

appellant had reached MMI on April 26, 2019 and that he had 36 percent permanent impairment 

of his right lower extremity.

By decision dated April 26, 2021, OWCP granted appellant a schedule award for 36 

percent permanent impairment of the right lower extremity. The period of the award ran for 103.68 

weeks from April 26, 2019 to April 20, 2021.

On June 22, 2021 appellant, through counsel, requested reconsideration and contended 

that, based on Dr. Walsh’s reports, appellant had an additional 10 percent permanent impairment 

of his right knee due to loss of flexion in accordance with Table 16-23 of the A.M.A., Guides. 

Counsel asserted that the permanent impairment of appellant’sright hip should be calculated based 

on loss of ROM, not the DBI methodology.

By decision dated September 17, 2021, OWCP denied modification of its prior decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,5 and its implementing federal regulations,6 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 loss of a member shall be 

determined. The method used in making such a determination is a matter which rests in the 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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 2009.7 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. 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 

5

Supra note 3.

6

20 C.F.R. § 10.404.

7 For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guidesis used. Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (March 2017); see 

also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

8 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).
5

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 ROM

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

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

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

11

 Under the sixth edition, the 

evaluator identifies the impairment class of diagnosis (CDX), which is then adjusted by the grade 

modifier functional history (GMFH), grade modifier physical examination (GMPE), and/or grade 

modifier clinical studies (GMCS).

12

 The net adjustment formula is (GMFH - CDX) + (GMPE -

CDX) + (GMCS - CDX).13 Evaluators are directed to provide reasons for their impairment 

choices, including the choices of diagnoses from regional grids and calculations of modifier 

scores.14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 36 

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

schedule award.

In support of his schedule award claim, appellant submitted reports from his, Dr. Walsh, 

dated September 17, 2019, and June 29, 2020 finding his right hip ROM of 75 degrees of flexion, 

0 degrees of extension, 30 degrees of abduction, 27 degrees of adduction, 9 degrees of internal 

rotation, and 5 degrees of external rotation. Dr. Walsh applied Table 16-24, page 549, of the 

A.M.A., Guides and found that appellant right hip ROM resulted in 25 percent permanent 

impairment of the right lower extremity.

In reports dated May 2 and October 31, 2020, the DMA, Dr. Harris, found residual 

moderate degenerative joint disease of the hip, hip arthritis, with documented joint space 

narrowing with a 2-millimeter cartilage interval, resulting in 20 percent permanent impairment in 

accordance with Table 16-4, page 514 of the A.M.A., Guides. He properly found that appellant’s 

right hip diagnoses did not meet any of the criteria discussed in Section 16.7, page 543 of the 

A.M.A., Guides to allow impairment calculation by ROM. 

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

10 Id. at 543; see also C.H., Docket No. 20-0831 (issued December 27, 2021); M.D., Docket No. 16-0207 (issued 

June 3, 2016); D.F., Docket No. 15-0664 (issued January 8, 2016).

11 A.M.A., Guides, 3, section 1.3.

12 Id. at 494-531.

13 Id. at 411.

14 R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).
6

Page 518 of the A.M.A., Guides notes that x-rays of the hip joint are taken in the neutral 

position and that the joint space of the hip is relatively constant in the various positions, such that 

hip position is not as critical as for knee x-rays. Therefore, the DMA, properly calculated 

appellant’s right hip impairment based on the DBI rating of 20 percent.

The DMA found 20 percent right lower extremity impairment for residual knee flexion 

contracture in accordance with Table 16-23, page 549 of the A.M.A., Guides. The remainingknee 

ROM figure provided by Dr. Walsh of knee flexion of 113 degrees, is a 0 percent impairment in 

accordance with Table 16-23, page 549, A.M.A., Guides.

15

The Board finds that the DMA, Dr. Harris, properly calculated appellant’s permanent 

impairment for the right lower extremity using the DBI methodology. There is no other current 

medical evidence in conformance with the sixth edition of the A.M.A., Guides establishing greater 

than the 36 percent permanent impairment of the right lower extremity for which appellant

previously received a schedule award. Accordingly, appellant has not met his burden of proof.

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 permanent impairment.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than 36 

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

schedule award.

15 The A.M.A., Guides do not provide a motion impairment for total knee flexion as measured byDr.Walsh, only 

for knee flexion of 109 degrees or less and flexion contracture of 5 degrees or greater. A.M.A., Guides, 549, Table 

16-23.
7

ORDER

IT IS HEREBY ORDERED THAT the September 17, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 20, 2023

Washington, DC

Alec J. Koromilas, 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