United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.G., Appellant

and

U.S. POSTAL SERVICE, COLUMBUS 

PROCESSING & DISTRIBUTION CENTER, 

Columbus, OH, Employer

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Docket No. 23-0905

Issued: December 11, 2023

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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, 2023 appellant, through counsel, filed a timely appeal from a June 6, 2023 

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 two 

percent left lower extremity permanent impairment, for which he previously received a schedule 

award. 

FACTUAL HISTORY

This case has previously been before the Board on a different issue.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 26, 2010 appellant, then a 36-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on that date he strained his left upper leg and thigh when the antifatigue mat he was standing on slipped out from under him while in the performance of duty. 

OWCP accepted the claim for left hip and groin strains.

In a report dated March 24, 2022, Dr. Rohn T. Kennington, a physician Board-certified in 

family medicine and emergency room medicine, reviewed appellant’s medical history and 

provided physical examination findings. He performed range of motion (ROM) testing for the left 

hip and found mildly decreased ROM. Dr. Kennington reported moderate tenderness on palpation 

of the medial aspect of the left proximal thigh and into the left groin region. He opined that 

appellant had reached maximum medical improvement (MMI) on March 24, 2022. Utilizing the 

diagnosis-based impairment (DBI) rating method of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A.),4 Dr. Kennington 

identified the class of diagnosis (CDX) for hip strain with mild motion deficits as a Class 1 

impairment with a default value of grade C or five percent permanent impairment underTable 16-

4 (Hip Regional Grid), page 512. He assigned a grade modifier for functional history (GMFH) of 

1, in accordance with Table 16-6, page 516, as appellant had a mild deficit, and a grade modifier 

for clinical studies (GMCS) of 1 in accordance with Table 16-9, page 519, as diagnostic studies 

showed a mild problem. Dr. Kennington noted that a grade modifier for physical examination 

(GMPE) was not applicable since it was used to determine the CDX. He calculated that appellant 

had a net adjustment of 0, resulting in no movement from the default value of grade C and 

corresponding to five percent permanent impairment of the left lower extremity.

On April 13, 2022 OWCP referred appellant’s case to Dr. James W. Butler, an orthopedic 

surgeon serving as an OWCP district medical adviser (DMA), and requested that he provide an 

opinion regarding Dr. Kennington’s permanent impairment rating. In an April 27, 2022 report,

Dr. Butler agreed with Dr. Kennington’s date of MMI. He identified the CDX for hip strain with 

mild motion deficits as a Class 1 impairment with a default value of grade C or two percent

permanent impairment under Table 16-4, page 512. Dr. Butler assigned a GMCS of 1 based on 

findings of mild pathology and clinical studies confirming diagnosis. He assigned a GMFH of 1

for mild gait derangement and a GMPE of 2 for moderate palpatory findings and observed 

3 Docket No. 11-875 (issued January 13, 2012). 

4 A.M.A., Guides (6th ed. 2009).
3

abnormalities. Dr. Butlerfound that appellant had a net adjustment of +1, resulting in a movement 

from the default value of grade C to D and corresponding to a two percent permanent impairment 

of the left lower extremity.

On May 25, 2022 Dr. Kennington reviewed Dr. Butler’s permanent impairment rating and 

noted the primary difference in their impairment ratings was the initial assignment for CDX using 

the DBI method. He noted that he placed the diagnosis in CDX of 1 with midrange default value 

of five percent based on appellant’s physical examination findings of significant left hip weakness 

while Dr. Butler identified a CDX of 1 with midrange default value of two percent for mild motion 

defects. Dr. Kennington argued that weakness of 4/5+ left hip girdle musculature strength does 

represent significant weakness and a default midrange value of five percent. He observed that

Dr. Butler agreed with the remainder of his report and noted his opinion that appellant’s five 

percent left lower extremity permanent impairment remained unchanged.

In a June 5, 2022 addendum, Dr. Butler reviewed Dr. Kennington’s May 25, 2002

regarding the discrepancy between the two impairment calculations. He explained that according 

to Table 16-11, page 533 that a 4/5 motor deficit is rated as mild weakness and severity of 1. In 

addition, appellant’s ROM findings showed mild motion deficit according to Table 16-24, page

549. Thus, Dr. Butler found no evidence of significant weakness, which is why he used mild loss 

of ROM.

By decision dated October 27, 2022, 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 March 24 to May 3, 2022.

On November 8, 2022 appellant, through his representative, requested an oral hearing

before a representative of OWCP’s Branch of Hearings and Review. A hearing was held on 

April 13, 2023. 

By decision dated June 6, 2023, OWCP’s hearing representative affirmed the October 27, 

2022 schedule award decision.

LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing 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 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 

5

Supra note 2.

6

20 C.F.R. § 10.404.
4

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

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.

9

 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 formula is 

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).

10

 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.

11

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.

12

ANALYSIS

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

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

Dr. Kennington provided a permanent impairment rating of five percent for the left lower 

extremity. He identified a CDX for hip strain with mild motion deficits placed appellant in a Class

1 impairment with default value of grade C or five percent permanent impairment under Table 16-

4, page 512. Dr. Kennington assigned a GMFH of 1, in accordance with Table 16-6, page 516, as 

appellant had a mild deficit, and a GMCS of 1 in accordance with Table 16-9, page 519, as 

diagnostic studies showed a mild problem. He noted that a GMPE was not applicable since it was 

used to make the diagnosis. Dr. Kennington calculated that appellant had a net adjustment of 0, 

resulting in no movement from the default value of five percent permanent impairment of the left 

lower extremity. The Board notes that Dr. Kennington’s findings of mild motion and functional 

7 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. Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

8 D.M., Docket No. 21-1209 (issued March 24, 2022); 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).

9 A.M.A., Guides 512-515 (6th ed. 2009).

10 Id. at 515-522.

11 Id. at 23-28.

12 See supra note 5 at Chapter 2.808.6f (March 2017).
5

history deficits would place appellant in a CDX of 1, with a default value of two percent. However, 

in an addendum dated May 25, 2022, Dr. Kennington explained that his placement of appellant’s 

impairment in a CDX of 1 with midrange default value of five percent was based on significant

left hip weakness.

In assessing the left hip, the DMA, Dr. Butler, referred to Table 16-4, pages 512-15, the 

Hip Regional Grid, and noted that a CDX for left hip with mild motion deficits placed appellant 

in a Class 1 impairmentwith a default value of two percent impairment. He noted that the physical 

examination findings showed a moderate palpatory findings supported by observed abnormalities 

resulting in a GMPE of 2. The DMA assigned a GMFH of 1 based on mild gait derangement, and 

a GMCS of 1 based on mild pathology and confirmation of diagnosis by clinical studies. The 

DMA calculated a Net Adjustment of +1 (GMFH of 1 - CDX of 1) + (CMPE of 2 - CDX of 1) + 

GMCS of 1 - CDX of 1) for a final rating of CDX of 1, grade D, or two percent permanent 

impairment of the left lower extremity impairment. In his June 5, 2022 supplemental report, the 

DMA further explained that according to Table 16-11, page 533 a Grade 4/5 motor deficit, as noted 

by Dr. Kennington, was classified as mild GMFH with a severity of 1 and not a moderate problem 

with a severity of 2 as found by Dr. Kennington. Appellant’s impairment was therefore rated for 

mild motion deficits, and not moderate motion or significant weakness and the proper default 

rating was therefore two percent, not five percent. 

The Board finds that the DMA, Dr. Butler, properly applied the standards of the A.M.A., 

Guides to the physical examination findings and reports of Dr. Kennington to find that appellant 

had two 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 two percent permanent impairment of his left lower extremity for 

which he previously received a schedule award.

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 two

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

schedule award.
6

ORDER

IT IS HEREBY ORDERED THAT the June 6, 2023 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: December 11, 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