United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

I.C., Appellant

and

U.S. POSTAL SERVICE, EDGEMOOR 

BRANCH, Wilmington, DE, Employer

__________________________________________

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Docket No. 21-0005

Issued: October 18, 2021

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 2, 2020 appellant, through counsel, filed a timely appeal from a May 26, 2020 

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 her burden of proof to establish greater than 21 

percent permanent impairment of her left lower extremity for which she previously received a 

schedule award.

FACTUAL HISTORY

On February 26, 2014 appellant, then a 47-year-old letter carrier, filed a traumatic injury 

claim, alleging that on February 5, 2014 she injured her left leg when she slipped on stairs while 

in the performance of duty. OWCPinitially accepted the claim on April 14, 2014 for left hip sprain

and on October 30, 2014 it expanded the acceptance of the claim to include permanent aggravation 

of preexisting left hip avascular necrosis with superior femoral head ace tabular fragment 

displacement. It paid appellant wage-loss compensation on the supplemental rolls as of 

May 3, 2014. OWCP authorized total left hip arthroplasty, which was performed on 

February 11, 2015.

In a November 5, 2015 report, Dr. Nicholas Diamond, an osteopathic physician Boardcertified in pain management, provided left hip examination findings, including trochanteric 

tenderness, and femoral acetabular impingement. He reported that the lower extremity activity 

scale (LEAS) indicated an impairment level of 11/18 and totaled 39 percent for the left lower 

extremity. Dr. Diamond reported that range of motion (ROM) testing was performed three times 

with 120/120 degrees forward extension, 25/30 degrees extension, 20/40 degrees adduction, 20/45 

degrees internal rotation with pain, and 20/45 degrees external rotation with pain. He diagnosed

post-traumatic left hip strain and sprain, post-traumatic aggravation of preexisting left trochanteric 

avascular necrosis and anterior subchondral collapse, and status post left total hip arthroplasty. In 

accordance with the sixth edition of The American Medical Association, Guides to the Evaluation 

of Permanent Impairment (A.M.A., Guides),3 Table 16-4 on page 515, Dr. Diamond identified the 

class of diagnosis (CDX) as a Class 3 total hip replacement with mild ROM deficit, which yielded 

a default impairment value of 37 percent. When determining the impairment CDX, he noted that 

a Class 3 impairment was used for total hip arthroplasty. Dr. Diamond explained that the grade 

modifier for functional history (GMFH) would be 1 based on a LEAS score of 39 percent.4 He 

assigned a grade modifier for physical examination (GMPE) of 2,5 and a grade modifier for clinical 

studies (GMCS) of 3.

6

 Applying the net adjustment formula, Dr. Diamond calculated that 

appellant had a net adjustment of -3, resulting in 31 percent permanent impairment of the left lower 

extremity. He determined that appellant reached maximum medical improvement (MMI) on 

November 5, 2015, the date of his examination.

3 A.M.A., Guides(2009).

4

Id. at 516, Table 16-6.

5

Id. at 517, Table 16-7.

6

Id. at 519, Table 16-8.
3

On January 15, 2016 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

On February 9, 2016 OWCP routed the case record, including Dr. Diamond’s report and a 

statement of accepted facts (SOAF), to Dr. Jovito B. Estaris, Board-certified in occupational 

medicine serving as a district medical adviser (DMA), for review and an opinion of appellant’s 

permanent impairment pursuant to the sixth edition of the A.M.A., Guides. The DMA was also 

asked by OWCP to provide a date of MMI.

In a report dated February 21, 2015, Dr. Estaris noted appellant’s accepted conditions and 

reviewed the medical record, including Dr. Diamond’s November 5, 2015 impairment rating 

evaluation. Utilizing Table 16-4, Hip Regional Grid, page 515, he identified a CDX of total hip 

replacement with a good result as Class 2 impairment. Dr. Estaris assigned a GMFH of 0, a GMPE

of 1, and he noted that GMCS was not applicable as this was used in the diagnosis. Applying the 

net adjustment formula, Dr. Estaris calculated that appellant had a net adjustment of -3, which 

resulted in a Class 2, Grade A impairment, which equaled 21 percent permanent impairment of the 

left lower extremity. He noted that his impairment rating was less than Dr. Diamond’s impairment 

rating, explaining that his review of the record showed that appellant’s left hip had normal gait and 

no pain on ROM testing, while Dr. Diamond’s ROM findings indicated more than a mild 

impairment. Dr. Estaris determined that appellant reached MMI on November 5, 2015 the date of

Dr. Diamond’s examination upon which the impairment rating was based.

In a July 27, 2016 report, Dr. Diamond noted that he had reviewed the February 21, 2016 

report from Dr. Estaris. He reported that at the time of his examination appellant had complaints 

of daily and constant left hip stiffness and pain, which increased with weather changes and 

squatting. Appellant also related difficulty performing her letter carrier job, household work, and 

personal care, problems with prolonged waking and standing, and difficulty riding or driving a 

motor vehicle. He explained that on page 516, section 16.3a of the A.M.A., Guides, functional 

symptoms interfering with different activity levels could be considered when using LEAS in 

grading appellant’s functional impairment, and thus the GMFH of 1 was reasonable. Dr. Diamond 

also explained that a GMPE of 2 was appropriate based on documented moderate palpatory 

findings and observed abnormalities. He also disagreed with Dr. Estaris regarding application of 

GMCS. In support of his opinion, Dr. Diamond noted prejoint replacement x-rays were used for

the GMCS modifier. He also explained that he determined that appellant was a Class 3 impairment 

for CDX of hip replacement based on his physical examination findings including ROM deficits.

On August 29, 2016 OWCP found a conflict in the medical evidence between Dr. Estaris, 

the DMA, and Dr. Diamond, appellant’s treating physician, and referred appellant, along with a 

SOAF and list of questions to Dr. William Spellman, a Board-certified orthopedic surgeon, for an 

impartial medical examination.

In a report dated October 6, 2016, Dr. Spellman reviewed appellant’s history regarding the 

February 5, 2014 employment injury, subsequent February 11, 2015 total left hip arthroplasty, and 

noted that she was workinga full-time limited-duty job. On physical examination of herleft lower 

extremity, he found no pain with either hip abduction or adduction, both hips were stable and free 

to toggling, a curve linear scar about five inches over the hip posterior lateral aspect, a well-healed 

wound, no lateral hip tenderness or induration, and bilateral hip pain free ROM. Dr. Spellman 
4

reported that appellant’s examination was without functional impairment and the only 

measurable/observable difference was the presence of a well-healed left hip surgical scar. 

Referencing Table 16-4 of the sixth edition of the A.M.A., Guides, he identified a CDX of total 

hip replacement with a good result as a Class 2 impairment, thereby warranting 25 percent 

impairment. Dr. Spellman assigned a GMFH of 0 for no gait derangement, and a GMPE of 0, 

based on a normal examination and no tenderness. He explained that a GMCS was not applicable 

as the imaging study was part of the diagnosis. Applying the net adjustment formula, Dr. Spellman 

calculated that appellant had a net adjustment of -4, resulting movement two spaces to the left of 

the default value on Table 16-4 and Class 2, Grade A impairment, which equaled 21 percent 

permanent impairment of the left lower extremity.

On November 28, 2016 OWCP referred the case record to Dr. Michael M. Katz, an OWCP 

district medical adviser (DMA) Board-certified in orthopedic surgery. In a November 30, 2016 

report, Dr. Katz reviewed Dr. Spellman’s report and the corresponding evidence of record. He 

concurred with Dr. Spellman’s assessment of 21 percent permanent impairment of the left lower 

extremity based on a Class 2, Grade A impairment for a left hip replacement arthroplasty with a 

good result. Dr. Katz determined the date of MMI to be October 6, 2016, the date of

Dr. Spellman’s report.

By decision dated December 13, 2016, OWCP granted appellant a schedule award for 21 

percent permanent impairment of the left lower extremity. The award ran for 60.48 weeks from 

October 6, 2016 to December 13, 2017 and was based on the opinion ofDr. Spellman as confirmed 

by Dr. Katz.

On December 20, 2016 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review.

OWCP subsequently received follow-up letters dated December 5, 2017 and December 16, 

2019 in which appellant, through counsel, advised that OWCP had not scheduled an oral hearing 

as requested on December 20, 2016 and requested that an oral hearing be scheduled.

A telephonic hearing was held on March 17, 2020. Counsel contended that Dr. Spellman 

did not properly apply the A.M.A., Guides as he did not perform a LEAS or any other evaluation 

documenting appellant’s functional history.

By decision dated May 26, 2020, OWCP’s hearing representative affirmed the 

December 13, 2016 schedule award decision.

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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. 7 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 to all claimants, good administrative practice necessitates the 

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404
5

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

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).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 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.

10

 After the CDX is determined 

from the Hip 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

FECA provides that, if there is disagreement between an OWCP-designated physician and 

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.12 

For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and 

rationale.”

13

 Where OWCP has referred the case to an impartial medical examiner (IME) to 

resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently wellreasoned and based upon a proper factual background, must be given special weight. 14

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish greater than 21 

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

schedule award.

OWCP properly determined that a conflict in medical opinion arose betweenDr. Diamond, 

an examining physician, and Dr. Estaris, the DMA, regarding the extent of appellant’s permanent 

impairment of the left lower extremity. It referred her to Dr. Spellman for an impartial medical 

examination.

Dr. Spellman was selected as the IME to resolve the conflict in medical opinion, pursuant 

to 5 U.S.C. § 8123(a). In his October 6, 2016 report, he noted no gait derangement, no tenderness 

8

Id. at § 10.404; E.S., Docket No. 20-0559 (issued October 29, 2020); L.T.,Docket No. 18-1031 (issued March5, 

2019);see also RonaldR. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January2010); see alsoChapter 2.808.5(a)(March2017).

10 A.M.A., Guides 512-15

11 Id. at 515-22.

12 5 U.S.C. § 8123(a); T.C., Docket No. 20-1170 (issued January 29, 2021); A.R., Docket No. 18-0632 (issued 

October 19, 2018).

13 A.D., Docket No. 20-0553 (issued April19, 2021); C.H.,Docket No. 18-1065 (issued November 29, 2018).

14 A.D., id.; W.M.,Docket No. 18-0957 (issued October 15, 2018).
6

on left hip palpation, negative examination findings, and a left hip surgical scar. Using Table 16-

4 of the sixth edition of the A.M.A., Guides, Dr. Spellman identified a CDX of total hip 

replacement with a good result as a Class 2 impairment, thereby warranting a 25 percent default

impairment placement. He assigned a GMFH of 0 for no gait derangement and a GMPE of 0, 

based on a normal examination and no tenderness. Dr. Spellman noted that a grade modifier for 

GMCS was not applicable as the imaging study was part of the diagnosis. Applying the net 

adjustment formula, he properly calculated that appellant had 21 percent permanent impairment 

of the left lower extremity.

The Board finds that Dr. Spellman’s impartial medical opinion is sufficiently rationalized, 

having properly applied the appropriate standards of the A.M.A., Guides to the diagnostic tests 

and findings on physical examination, and based upon a proper factual and medical background 

such that it is entitled to special weight of the medical opinion evidence accorded an IME.

15

 The 

evidence of record, therefore, establishes that appellant has 21 percent permanent impairment of 

the left lower extremity.

On appeal, counsel asserts that Dr. Spellman’s opinion should not be accorded the special 

weight as he failed to utilize LEAS in his impairment rating and that Dr. Diamond provideda more 

thorough examination as he used LEAS to more accurately assess appellant’s experience day-today. As explained above, the Board finds that Dr. Spellman correctly applied the A.M.A., Guides 

to his examination findings and accurately applied the A.M.A., Guides.

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 her burden of proof to establish greater than 21 

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

schedule award.

15 See A.D., id.; V.S., Docket No. 19-1679 (issued July 8, 2020); M.R., Docket No. 19-0526 (issued July 24, 2019); 

Anna M. Delaney, 53 ECAB 384 (2002).
7

ORDER

IT IS HEREBY ORDERED THAT the May 26, 2020 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: October 18, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board