United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.P., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Stoughton, MA, Employer

__________________________________________

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Docket No. 22-1009

Issued: May 19, 2023

Appearances: Case Submitted on the Record

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

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On June 21, 2022 appellant, through his representative, filed a timely appeal from a 

February 22, 2022 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 so that the 

Board could address the proper application of the guidelines in determining appellant’s permanent impairment. The 

Board, in exercising its discretion, denies the request for oral argument because 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 over the merits of this case.

ISSUE

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

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

award compensation.

FACTUAL HISTORY

On May 20, 2010 appellant, then a 46-year-old transitional mail carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on that day he broke his left leg when he fell on wet stairs 

while delivering mail in the performance of duty. He stopped work on May 20, 2010 and returned 

on September 27, 2010. OWCP accepted the claim for left supracondylar femur fracture, closed 

fracture of the left femur shaft, and left lower leg primary osteoarthritis. It paid appellant wageloss compensation on the supplemental rolls from July 5 through September 24, 2010. 

By decision dated February 10, 2016, OWCP granted appellant a schedule award for nine 

percent permanent impairment of the left lower extremity. The period of the award ran for 25.92 

weeks from December 18, 2014 through June 17, 2015. 

Appellant underwent OWCP-authorized total left knee arthroplasty on April 9, 2018. 

OWCP paid him wage-loss compensation on the supplemental and periodic rolls from March 5 to 

July 27, 2018. 

On March 20, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In support of his claim, appellant submitted a March 4, 2019 report from Dr. Byron V. 

Hartunian, a Board-certified orthopedic surgeon. Dr. Hartunian noted that appellant had 

undergone bilateral total knee replacements. Regarding appellant’s left knee, he noted appellant’s 

work-related history of left distal femur fracture, with open reduction internal fixation, and that 

appellant had developed end-stage arthritis of the knee. On examination of appellant’s left knee

Dr. Hartunian found no tenderness and laxity.

4

 He reviewed the American Academy of 

Orthopedic Surgeons (AAOS) Lower Limb Questionnaire completed by appellant indicating that 

he had moderately stiff lower extremities, mild pain when walking on flat services, moderate pain 

when going up or down stairs, and moderate pain while lying in bed. Dr. Hartunian measured

range of motion (ROM) of the left knee of 95 degrees flexion, and 0 degrees extension. He noted 

x-rays reviewed by appellant’s treating physician documented “[appellant] was functioning well 

with good position of components.” Dr. Hartunian opined that appellant reached maximum 

medical improvement on July 17, 2018. He used the sixth edition of the American Medical 

3

5 U.S.C. § 8101 et seq.

4 Dr. Hartunian also provided examination findings and an impairment rating for the right knee. He noted that the 

impairment rating for the left knee was the same as the right knee.
3

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

5 and 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 was Class

3 based on mild motion deficit in flexion and x-ray showing fair knee position. Dr. Hartunian did 

not assign a grade modifier for clinical studies (GMCS) or a grade modifier for physical 

examination (GMPE) findings as he had used ROM and x-rays to confirm the class of impairment. 

He found a grade modifier for functional history (GMFH) of 2 based on the AAOS Lower Limb

Questionnaire. Dr. Hartunian determined that the GMFH was unreliable and should be excluded 

from the calculation as it differed by two or more from the GMCS and GMPE, which he indicated 

were zero for the purpose of modifier determination. He concluded that the net adjustment formula 

did not apply, and that appellant had 37 percent permanent impairment of the left lower extremity.

On August 22, 2019 OWCP forwarded Dr. Hartunian’s March 4, 2019 report, the medical 

record, and a statement of accepted facts (SOAF) to the district medical adviser (DMA) for review 

In an August 39, 2019 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

serving as an OWCP DMA, reviewed the medical evidence of record and determined that 

appellant’s date of injury was undetermined as reports from appellant’s treating physician,

Dr. Eric L. Smith, a Board-certified orthopedic surgeon, from April 9, 2018 until the present were 

necessary for review.

On September 16, 2019 OWCP forwarded the medical reports requested by Dr. Katz for 

review. 

Dr. Katz, in a September 23, 2019 report, reviewed the medical reports of record including

Dr. Hartunian’s March 4, 2019 report and the reports from Dr. Smith. He concurred with

Dr. Hartunian that the CDX for total knee replacement, fair result (mild motion deficit), was a 

Class 3 impairment, which had a default value of 37 percent. Dr. Katz indicated that he had not 

used x-rays in identifying the class of impairment, as appellant’s x-rays showing good position of 

the prosthesis would be a Class 2 impairment. Instead, he had used appellant’s motion deficit to 

identify the class as 3. Dr. Katz further explained that the fact that a grade modifier is excluded 

from the net adjustment calculation does not reduce its value to zero. He applied a GMFH of 3, a 

GMCS of 2 and found that a GMPE was not applicable as it was used to identify the CDX. After 

applying the net adjustment formula, Dr. Katz found that appellant had 31 percent permanent 

impairment of the left lower extremity. He noted that the method Dr. Hartunian used in calculating 

his net adjustment was not consistent with the methodology set forth by the A.M.A., Guides. 

Regarding ROM methodology, the DMA explained that the key diagnostic factors were not 

eligible for an alternative impairment rating. Dr. Katz advised that he was reached on 

January 7, 2019, and he concluded that appellant had 31 percent permanent impairment of the left

lower extremity.

On January 8, 2020 OWCP referred appellant for a second opinion evaluation, together 

with a SOAF, list of questions, and medical record, to Dr. John Goldberg, a Board-certified 

orthopedic surgeon, for an assessment of appellant’s employment-related conditions and any 

resulting permanent impairment. In a report dated February 3, 2020, Dr. Goldberg noted 

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

appellant’s diagnoses of status post left open fracture with open reduction and internal fixation, 

status post hardware removal, and status post left total knee arthroplasty. He concluded that 

appellant had 26 percent left lower extremity permanent impairment. Dr. Goldberg explained that,

under Table 16-3, page 511 of the A.M.A., Guides, appellant’s total knee replacement would be a 

Class 2 impairment. He indicated that appellant had a GMFH of 1, and a GMPE of 1 which would 

result in 23 percent permanent impairment rating. Dr. Goldberg then noted that he would elevate 

appellant’s Class 2 rating for appellant’s total knee replacement to Class 3 due to his prior fracture 

and assign 26 percent permanent impairment rating. 

On March 20, 2020 OWCP provided Dr. Hartunian with Dr. Goldberg’s February 3, 2020 

report for his review and comment. In a letter dated April 14, 2020, Dr. Hartunian explained that

Dr. Goldberg selected the wrong class of impairment and that his application of the grade 

modifiers and methodology were not in accordance with the A.M.A., Guides. 

On July 20, 2020 OWCP requested Dr. Katz review the medical record, SOAF,

Dr. Hartunian’s reports dated March 4, 2019 and April 14, 2020, and Dr. Goldberg’s February 3, 

2020 report. In a July 27, 2020 report, Dr. Katz agreed with Dr. Hartunian’s opinion that

Dr. Goldberg had not properly rated appellant’s permanent impairment under Table 16-3 of the 

A.M.A., Guides. He again found that appellant had a total 31 percent permanent impairment of 

the left lower extremity. 

By decision dated September 18, 2020, OWCP granted appellant a schedule award for an 

additional 22 percent left lower extremity permanent impairment, resulting in a total 31 percent 

left lower extremity permanent impairment. The period of the award ran for 63.36 weeks for the 

period January 7, 2019 through March 25, 2020. 

On May 19, 2021 appellant’s counsel requested reconsideration contending that he 

disagreed with the application of the A.M.A., Guides, especially the grade modifiers, in 

determining appellant’s permanent impairment of the left lower extremity. 

By decision dated June 9, 2021, OWCP denied modification. 

On June 29, 2021 appellant requested reconsideration. Counsel requested that OWCP seek 

a supplemental report from Dr. Katz regarding appellant’s left knee impairment rating in view of 

his June 1, 2021 impairment rating for the right knee in OWCP File No. xxxxxx746. 

Accompanying appellant’s reconsideration request was Dr. Katz’ June 1, 2021 permanent

impairment rating. 

By decision dated February 22, 2022, OWCP denied modification. 
5

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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. 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.

8

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

to calculate schedule awards.

9

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 position of the leg for the present case, reference 

is made to Table 16-3 (Knee Regional Grid) beginning on page 509.10 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).

11

 Evaluators are directed to 

provide reasons for their impairment rating choices, including the choices of diagnosis from 

regional grids and calculations of modifier scores.12

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.

13

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. See also M.F., Docket Nos. 21-0759 & 21-1037 (issued May 4, 2022); RonaldR. Kraynak, 53 ECAB 

130 (2001).

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 2.808.5a (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).

10 See A.M.A., Guides 509-11.

11 Id. at 515-22.

12 Id. at 23-28.

13 Supra note 9 at Chapter 2.808.6f (March 2017).
6

ANALYSIS

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.

On March 4, 2019 Dr. Hartunian discussed appellant’s history of bilateral total knee 

replacements. On examination he found no tenderness or laxity of the left knee. Dr. Hartunian 

measured ROM of 95 degrees flexion and 0 degrees extension of the left knee. He identified a 

Class 3 impairment, based on appellant’s mild motion deficit and x-ray showing fair knee position. 

Dr. Hartunian found that a GMCS and a GMPE were inapplicable as he had used ROM and x-rays 

to confirm the class of impairment. He determined that the GMCS and GMPE were zero for 

purposes of determining the modifier and that, consequently, the GMFH was unreliable as it 

differed by two or more grades from that of the GMPE and GMCS. Dr. Hartunian, however, 

incorrectly assigned grade modifiers of zero for GMPE and GMCS studies as they are excluded 

from the net adjustment calculation.14 The A.M.A., Guides provides, “If a particular criterion, 

such as [ROM], was used to determine impairment class, it may not be used again to determine 

the grade and is disregarded in the impairment calculation.”

15

 As Dr. Hartunian found that

appellant’s ROM and x-rays were used to determine the class of impairment, he improperly 

assigned GMPE and GMCS of zero.16 His impairment rating, consequently, is not in accordance 

with the provisions of the A.M.A., Guides.

In a February 3, 2020 report, Dr. Goldberg assigned a Class 3 impairment for appellant’s

CDX of total knee arthroplasty and found that he had 26 percent left lower extremity permanent 

impairment under Table 16-3 of the A.M.A., Guides. The Board notes that, while Dr. Goldberg 

rendered an impairment rating of 26 percent and made referencesto the A.M.A., Guides, his rating 

did not conform with Table 16-3 of the A.M.A., Guides as a Class 3 impairment under Table 16-

3 does not allow a 26 percent impairment rating, but rather would result in a rating between 31 and 

43 percent. Since Dr. Goldberg improperly applied the A.M.A., Guides to rate appellant’s 

permanent impairment, his opinion is of limited probative value.

Dr. Katz, OWCP’s DMA, reviewed Dr. Hartunian’s findings and concurred with the 

applicable Class 3 impairment, with a default value of 37 percent. He applied GMFH of 2 and

GMCS of 2 and found that a GMPE was inapplicable as it was used in identifying the CDX. 

Utilizing the net adjustment formula discussed above, (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX), or (2- 3) + (2-3), yielded an adjustment of two places to the left, or 31 percent 

impairment of each lower extremity. In a July 27, 2020 report, Dr. Katz again found that appellant 

had 31 percent left lower extremity permanent. The Board has reviewed Dr. Katz’ opinion and 

finds that it conforms to the provisions of the A.M.A., Guides. Dr. Katz properly reviewed the 

medical evidence and evaluated appellant’s impairment of the lower extremities in accordance 

14 R.H., Docket No. 20-1472 (issued March 15, 2021).

15 A.M.A., Guides 411.

16 R.H., supra note 14.
7

with the A.M.A., Guides. There is no medical evidence in conformance with the A.M.A., Guides

showing greater permanent impairment.

17

The Board thus 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.

Appellant may request a schedule award or increased schedule award 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 31 

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

schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the February 22, 2022 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 19, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board

17 See L.D., Docket No. 19-0495 (issued February 5, 2020).