United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.L., Appellant

and

U.S. POSTAL SERVICE, HYANNIS POST 

OFFICE, Hyannis, MA, Employer

__________________________________________

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Docket No. 22-0613

Issued: April 4, 2023

Appearances: Case Submitted on the Record

Daniel B. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On March 16, 2022 appellant, through counsel, filed a timely appeal from an October 12, 

2021 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 Counsel for appellant timely requested 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, he asserted that he would like the opportunity to address technical issues under 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 

2009). The Board, in exercising its discretion, denies appellant’s request for oral argument because the arguments on 

appeal can adequately be 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

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 greater than 46 

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

schedule award compensation.

FACTUAL HISTORY

On February 24, 1993 appellant, then a 36-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on that day, he fell on ice and twisted his left knee while in the 

performance of duty.

OWCP initially accepted the claim for left knee contusion, left knee medial collateral 

ligament (MCL) sprain, and left knee medial meniscus tear. Appellant underwent an accepted left 

knee arthroscopy with partial medial meniscectomy on May 4, 1993.

By decision dated November 30, 1999, OWCP granted appellant a schedule award for eight

percent permanent impairment of the left lower extremity (leg). The period of the award ran from 

May 7, 1999 to October 15, 1999, for a total of 23.04 weeks.4

By decision dated April 1, 2008, OWCP granted appellant a schedule award for 27 percent

permanent impairment of the left lower extremity, less the 8 percent previously paid. The period 

of the award ran from March 2, 2007 to March 19, 2008, for a total of 54.72 weeks.

On February 1, 2010 OWCP expanded acceptance of the claim to include traumatic left

knee osteoarthritis and authorized a left knee total arthroplasty, which was performed on 

February 19, 2010.

Appellant filed a claim for compensation (Form CA-7) on August 24, 2011 requesting an 

additional schedule award.

By decision dated April 3, 2012, OWCP denied appellant’s claim for an additional 

schedule award, finding that he did not sustain an additional impairment beyond that which had 

previously been accepted.

On October 1, 2012 OWCP received appellant’s request for reconsideration of the April 3, 

2012 decision. By decision dated December 18, 2012, it denied his request for reconsideration,

finding that the evidence was insufficient to conduct a merit review. 

3 5 U.S.C. § 8101 et seq.

4 The record reflects that appellant has a separate claim under OWCP File No. xxxxxx080. That claim was accepted 

for a right knee MCL sprain and traumatic osteoarthritis. Appellant received a schedule award for 26 percent 

permanent impairment of the right lower extremity on July 15, 2010. 
3

In a June 15, 2017 report, Dr. Justin W. Kung, Board-certified in diagnostic radiology, 

noted that he reviewed the bilateral hip radiographs taken on September 12, 2016. He found that 

the frontal pelvic radiograph revealed that the right femoroacetabular compartment joint space 

interval measured 2.0 millimeters, and the left femoroacetabular compartment joint space 

measured 2.0 millimeters. Dr. Kung noted that there were small acetabular spaces and overall 

moderate degenerative changes in both femoroacetabular compartments.

On July 9, 2020 counsel for appellant filed a claim for compensation (Form CA-7) for an 

additional schedule award. He submitted a March 1, 2019 report from Dr. George P. Whitelaw, 

Board-certified in orthopedic surgery.

In his March 1, 2019 report, Dr. Whitelaw provided a permanent impairment rating of 

appellant’s left lower extremity using the sixth edition of the A.M.A., Guides.

5

 He noted 

appellant’s history of injury and treatment, which included five arthroscopic surgeries to the left 

knee and a total left knee replacement. Dr. Whitelaw reviewed appellant’s hip x-rays and the 

findings provided by Dr. Kung. He used a goniometer and provided three measurements for range 

of motion (ROM) for the knees and hips. Dr. Whitelaw referred to Table16-23, page 549, for Knee 

Motion Impairments, and found right knee flexion of 15 to 100 degrees and left knee flexion of 10 

to 100 degrees. Regarding the hips, he referred to Table 16-24, page 549, for Hip Motion 

Impairments, and found flexion of 90 degrees and full extension with 8 degrees of internal rotation 

bilaterally and 20 degrees of external rotation. Dr. Whitelaw referred to Table 16-6, page 516, for 

Functional History Adjustment, and found a moderate impairment. He referred to Table 16-7, 

page 517, for Physical Examination Adjustment, and noted tenderness on the right knee over the 

medial joint line, both knees and hips were stable, no significant alignment deformity, and no limb 

length discrepancy or muscle atrophy. Dr. Whitelaw diagnosed bilateral knee and bilateral hip 

arthritis.

Dr. Whitelaw referred to Table 16-4, pages 512-15, the Hip Regional Grid, and found a 

Class 2, Default Grade C, for a 20 percent lower extremity impairment with no Net Modifier 

Adjustment for each hip. He referred to Table 16-3, pages 509-11, the Knee Regional Grid, for 

the left total knee replacement, and opined that appellant had 37 percent left lower extremity 

impairment based on a mild motion impairment with no Net Modifier Adjustment. Dr. Whitelaw

referred to the Combined Values Chart, pages 604-06, for the 20 percent left hip impairment and 

the 37 percent left knee impairment, and opined that appellant had a combined 50 percent left 

lower extremity impairment.6

On July 14, 2020 OWCP provided a copy of Dr. Whitelaw’s report, a statement of accepted 

facts (SOAF), and the medical records to Dr. James W. Butler, an orthopedic surgery specialist 

and district medical adviser (DMA) and requested that the DMA provide an impairment 

evaluation. The July 14, 2020 SOAF noted that appellant’s claim was initially accepted for a left 

knee contusion, and acceptance was later expanded to include a left knee strain, left knee medial 

meniscus tear, and traumatic osteoarthritis of the left knee.

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

6 Dr. Whitelaw also provided a rating for the right lower extremity.
4

In a July 28, 2020 report, Dr. Butler provided an impairment rating using the sixth edition 

of the A.M.A., Guides. He referred to Table 16-3, pages 509-11, the Knee Regional Grid, and 

explained that the left knee total arthroplasty, with mild motion deficits as shown by the ROM 

measurements, was assigned a Class 3 impairment with “[f]air result (fair position, mild instability 

and/or mild motion deficit” for class of diagnosis (CDX) of total knee replacement. The DMA 

assigned a functional history grade modifier (GMFH) of 2 for moderate deficit and explained that 

the physical examination grade modifier (GMPE) and clinical studies grade modifier (GMCS)

were not applicable because they were used to determine the CDX. The DMA determined that 

appellant had a Net Adjustment of -1 (GMFH of 2 minus CDX of 3) for a final rating of Class 3, 

Grade B, or 34 percent permanent impairment of the left lower extremity. 

The DMA also rated the left hip. He referred to Table 16-4, pages 512-515, the Hip 

Regional Grid, and noted that a CDX of arthritis with a two-millimeter cartilage interval placed 

appellant in a Class 2 impairment. Dr. Butler noted that the physical examination showed mild 

range of motion deficits for a GMPE of 1, and that the GMFH and GMCS were not applicable 

because they were used to determine the CDX. The DMA calculated a Net Adjustment of -1 

(GMPE of 1 minus CDX of 2) for a final rating of Class 2, Grade B, or 18 percent permanent 

impairment of the left lower extremity impairment for the left hip.

The DMA referred to the Combined Values Chart at pages 604-06 and explained that the 

18 percent rating for the left hip and 34 percent rating for the left knee resulted in a combined 

rating of 46 percent impairment of the left lower extremity. He noted that as appellant had 

previously received schedule awards totaling 27 percent permanent impairment of the left lower 

extremity, that percentage should be subtracted, resulting in a schedule award for an additional 19 

percent permanent impairment of the left lower extremity.7 The DMA concluded that appellant 

reached maximum medical improvement (MMI) on March 1, 2019.

By decision dated January 5, 2021, OWCP granted appellant a schedule award for 46 

percent permanent impairment of the left lower extremity, less the 27 percent paid on previous 

schedule awards. The period of the award ran from March 1, 2019 to March 18, 2020 for a total 

of 54.72 weeks. OWCP indicated that the schedule award was based on the medical findings and 

report of Dr. Whitelaw dated March 1, 2019, and the July 28, 2020 report of the DMA. 

On May 21, 2021 counsel for appellant requested reconsideration. He noted the DMA’s 

methodology resulted in a 34 percent impairment rating for the left knee and argued that

Dr. Whitelaw’s higher rating of 37 percent should be utilized. Counsel argued that Dr. Whitelaw’s 

methodology was in conformity with the A.M.A., Guides and was consistently utilized by 

numerous DMA physicians. 

On August 18, 2021 OWCP requested clarification from the DMA. It noted that

Dr. Whitelaw did not use the GMFH which resulted in an impairment rating of 37 percent of the 

left knee. OWCP requested that the DMA explain his rationale for applying the GMFH, which 

7 The DMA also noted that this was a correct assessment if the left hip was considered a part of this claim and this 

rating. If not, then the 34 percent impairment of the left knee alone, minus the 27 percent impairment previously paid 

would be the final permanent impairment rating of the left lower extremity. 
5

resulted in his lower rating of 34 percent of the left knee. It noted that Dr. Whitelaw excluded the 

use of the GMFH because it differed by 2 or more grades from the GMPE. 

In a September 29, 2021 supplemental report, Dr. Butler noted that according to page 516

of the A.M.A., Guides “if the grade modifier for functional history differs by 2 or more grades 

from that defined by physical examination or clinical studies, the functional history should be 

assumed to be unreliable.” However, he explained that in this case, the only nonkey grade modifier 

was functional history. The DMA noted that the Class 3 impairment rating for a total knee 

replacement with fair result was based on the physical examination and clinical studies, and 

therefore they were excluded from use as nonkey grade modifiers. He explained that the GMFH 

of 2 resulted in a Net Adjustment of -1 (GMFH 2 minus CDX 3). Dr. Butler reiterated that his 46 

percent impairment rating for the left lower extremity and the reasons for it, as stated in his July 28, 

2020 report, remained unchanged.

By decision dated October 12, 2021, OWCP denied modification of the January 5, 2021 

decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA8and its implementing regulations9set 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.10 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.11

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 part of the leg for the present case, reference is 

made to Table 16-3, the Knee Regional Grid, beginning on page 509.12 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 

8 5 U.S.C. § 8107.

9 20 C.F.R. § 10.404.

10 Id. See J.M., Docket No. 21-0787 (issued June 21, 2022); see also M.F., Docket Nos. 21-0759 & 21-1037 (issued 

May 4, 2022); Ronald R. Kraynak, 53 ECAB 130 (2001).

11 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 Chapter 3.700, Exhibit 1 (January 2010).

12 See A.M.A., Guides 509-11.
6

formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13 Evaluators are directed to provide 

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

and calculations of modifier scores.14

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.15

ANALYSIS

The Board finds that appellant has not established greater than 46 percent permanent 

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

compensation. 

Dr. Whitelaw provided a permanent impairment rating of 37 percent for the left knee. He

did not apply the GMFH to the left knee rating which resulted in the 37 percent rating for the left 

knee. Dr. Whitelaw excluded the use of GMFH because it differed by more than 2 grades from 

the GMPE and the GMCS. However, the DMA, Dr. Butler, explained that Dr. Whitelaw should 

not have excluded the use of GMFH because the physical examination and clinical studies were 

used to define the CDX, and were therefore to be excluded as grade modifiers. Therefore, GMFH 

was retained as the modifier to obtain the final rating. Pursuant to Table 16-3 of Knee Regional 

Grid, at page 511 of the A.M.A., Guides, appellant’s total left knee replacement with both clinical 

findings and physical examination findings placed appellant in a Class 3 for a severe problem. The 

findings which must be present to be placed in a Class 3, are listed as a “[f]air result (fair position, 

mild instability and/or mild motion deficit).” These findings are made based upon clinical studies 

and physical examination findings. The DMA therefore properly explained that the GMCS and 

GMPE were to be excluded as they were used to define class, and only the GMFH was used to 

finalize the rating. Accordingly, Dr. Whitelaw’s 37 percent impairment rating of the left knee does 

not comport with the A.M.A., Guides.

16

 

In assessing the left hip, the DMA referred to Table 16-4, pages 512-15, the Hip Regional 

Grid, and noted that a CDX of arthritis with a two-millimeter cartilage interval placed appellant in 

a Class 2 impairment. He noted that the physical examination showed mild range of motion 

deficits for a GMPE of 1, and that the GMFH and GMCS were not applicable because they were 

used to determine the CDX. The DMA calculated a Net Adjustment of -1 (GMPE of 1 minus 

CDX of 2) for a final rating of Class 2, Grade B, or 18 percent permanent impairment of the left 

lower extremity impairment for the left hip. He referred to the Combined Values Chart at pages 

13 Id. at 515-22.

14 Id. at 23-28.

15 Supra note 11 at Chapter 2.808.6f (March 2017).

16 See C.W., Docket No. 19-1590 (issued September 24, 2020); M.S., Docket No. 19-1011 (issued 

October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket No. 18-1387 (issued 

February 1, 2019).
7

604-06, and explained that the 18 percent impairment rating for the left hip and 34 percent 

impairment rating for the left knee resulted in a combined rating of 46 percent impairment of the 

left lower extremity. In his September 29, 2021 supplemental report, the DMA indicated that his 

46 percent impairment rating of the left lower extremity, and the reasons for it, remained 

unchanged from his prior report of July 28, 2020.

The Board finds that the DMA properly applied the standards of the A.M.A., Guides to the 

physical examination findings and report of Dr. Whitelaw to find that appellant had 46 percent 

permanent impairment of the left lower extremity. The DMA accurately summarized the relevant 

medical evidence, including findings on examination, and reached conclusions regarding 

appellant’s condition that comported with those findings. Thus, appellant has not established 

greater than 46 percent permanent impairment of his left lower extremity for which he previously 

received schedule award compensation.

CONCLUSION

The Board finds that appellant has not met his burden of proof to establish greater than 46 

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

schedule award compensation. 

ORDER

IT IS HEREBY ORDERED THAT the October 12, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 4, 2023

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board