United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Pittsburgh, PA, Employer 

__________________________________________ 

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Docket No. 13-2131 

Issued: September 10, 2014 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

JURISDICTION 

On September 17, 2013 appellant filed a timely appeal from the May 8, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal 

Employees’ Compensation Act1 (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 met his burden of proof to establish that he has more than 

a two percent permanent impairment of his right leg, for which he received a schedule award. 

FACTUAL HISTORY 

On June 27, 2012 appellant, then a 42-year-old letter carrier, filed an occupational disease 

claim alleging that he sustained osteoarthritis of his right knee due to the walking duties required 

by his job. He first became aware of his claimed condition on February 6, 2010 and first realized 

 1

 5 U.S.C. §§ 8101-8193. 
2

that it was caused or aggravated by his work on January 12, 2012. Appellant did not stop work.2

 

In an accompanying statement, he advised that he first noticed that his right knee was hurting on 

February 6, 2010 when he had to walk through deep snow to deliver the mail. Appellant 

believed that his right knee condition was caused by his job requirements, including engaging in 

excessive walking and walking on uneven terrain and slippery surfaces. 

In a May 5, 2012 report, Dr. Patrick J. McMahon, an attending Board-certified orthopedic 

surgeon, discussed appellant’s medical history, including right knee pain associated with his 

work duties since February 2010. He noted that x-rays showed arthritis and signs of prior 

surgery in appellant’s right knee. Dr. McMahon stated that, on examination, appellant reported 

tenderness over the right medial joint line of his right knee, but no tenderness over the right 

lateral joint line. Strength in appellant’s right knee was normal and there was mild effusion. 

OWCP accepted that appellant sustained aggravation of joint effusion of his right knee. 

In a report dated February 21, 2013, Dr. Michael J. Platto, an attending Board-certified 

physical medicine and rehabilitation physician, detailed findings of his physical examination of 

appellant. He exhibited normal posture and gait and was able to squat down and get back up 

again independently. Dr. Platto had 100 degrees of active flexion of the right knee and 0 degrees 

of extension. He stated that appellant had moderate-to-severe crepitus in the right knee, motor 

strength was 5/5 in both legs and sensation was intact upon pinpoint testing. Appellant had a 13 

degree varus deformity of his right knee. Dr. Platto provided an impairment rating evaluation for 

appellant’s right leg. He noted that, under Table 16-3 (Knee Regional Grid) on page 509 of the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (6th ed. 2009), the most appropriate diagnosis would be for a class 1 total 

meniscectomy (medial or lateral) or meniscal transplant (allograft). Dr. Platto noted that 

multiple diagnoses could be applied, including anterior cruciate repair; but due to the lack of 

instability appellant would not qualify for an impairment based on this diagnosis. He stated that 

degenerative joint disease of the right knee could be considered, but that appellant’s 7.4 

millimeter medial joint space observed on x-rays would not qualify him for a schedule award 

because Table 16-3 on page 511 of the sixth edition of the A.M.A., Guides only provided 

impairment for a three millimeter cartilage interval or less. Dr. Platto concluded that appellant’s 

meniscus injury was the most appropriate diagnosis for rating his right leg impairment under 

Table 16-3. Under Table 16-6 on page 516, appellant’s American Academy of Orthopedic 

Surgery scale score of 66 and his normal posture and gait without orthosis meant that he had a 

grade modifier 0 for Functional History (GMFH). Under Table 16-7 on page 517, he had 

moderate palpatory findings in terms of crepitus, pain to palpation and mild restriction upon knee 

flexion which warranted a grade modifier 1 for Physical Examination (GMPE). 

Dr. Platto also found that appellant had a 13 degree varus deformity of the right knee, 

noting that the sixth edition of the A.M.A., Guides does not contain a table which gives a 

 2

 Appellant originally sustained a twisting injury to his right knee in 1997 when he punched a punching bag while 

serving in the U.S. Army. He had previously undergone right knee surgery, including anterior cruciate ligament 

repair and medial meniscectomy in April 1997, meniscectomy in April 2001, anterior cruciate cadaver repair and 

cadaver meniscus replacement in March 2002 and medial meniscectomy and microfracture surgery in 

December 2003. 
3

specific rating for varus deformity. He stated that Table 17-10 on page 537 of the fifth edition of 

the A.M.A., Guides stated that a 13 degree varus deformity would be a severe impairment 

warranting a grade modifier 3. Dr. Platto stated that appellant did not have a grade modifier for 

Clinical Studies (GMCS) because x-ray and magnetic resonance imaging (MRI) scan reports 

were used to make the definition of class. He applied the net adjustment formula to find a net 

adjustment modifier of +1 which meant that, after moving one place to the right of the seven 

percent default value found on Table 16-3, appellant had a diagnosis-based impairment rating of 

eight percent for his right leg. Dr. Platto stated that page 543 of the sixth edition provided, if 

active range of motion impairment percentage is greater than the percentage impairment derived 

from a diagnosis-based class, then the impairment is rated by range of motion as a stand-alone 

rating. Under Table 16-23 on page 549, appellant’s 100 degrees of active flexion of his right 

knee warranted a 10 percent rating for his right leg. Under Table 16-17 on page 545, he had a 

grade modifier 0 for functional history and therefore the total impairment of his right leg, based 

on the range-of-motion method, was 10 percent.3

 

On March 15, 2013 appellant filed a claim for a schedule award due to his accepted work 

injury. 

On April 14, 2013 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, noted that Dr. Platto made reference to the standards of both the 

fifth and sixth editions of the A.M.A., Guides, but stated that this was “not appropriate and 

invalidates his recommendation since only [the sixth edition of the A.M.A., Guides] is 

appropriately used for this calculation.” He noted that the only accepted condition for 

appellant’s claim was aggravation of joint effusion of the right knee. Dr. Berman stated that this 

was based upon a knee sprain and did not constitute an aggravation of osteoarthritis since the 

“accepted condition does not state that it is aggravation of osteoarthritis.” He recommend that 

appellant receive a schedule award for the right knee based upon Table 16-3 on page 509 of the 

sixth edition of the A.M.A., Guides for the class 1 diagnosis of “Strain; tendinitis” which 

involved “palpatory findings and/or radiologic findings.” Dr. Berman determined that appellant 

fell under the default value of two percent of the right leg. Under Table 16-6, Table 16-7 and 

Table 16-8 on pages 516 through 520 of the sixth edition, appellant had a grade modifier 1 for 

functional history adjustment, grade modifier 1 for physical examination and grade modifier 1 

for clinical studies. Application of the net adjustment formula meant that there was zero 

adjustment from the two percent default value. Dr. Berman stated that appellant reached 

maximum medical improvement on February 21, 2013 and concluded that the total impairment 

of his right leg was two percent. 

In a May 8, 2013 decision, OWCP granted appellant a schedule award for a two percent 

permanent impairment of his right leg. The award ran for 5.76 weeks from February 21 

to April 2, 2013 and was based on Dr. Berman’s impairment rating using the physical findings 

by Dr. Platto. 

 3

 In a May 30, 2013 report, Dr. McMahon indicated that appellant had trace effusion in his right knee. 
4

LEGAL PRECEDENT 

The schedule award provision of FECA4 and its implementing regulations5 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. 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 use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 For OWCP decisions issued on or after 

May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating 

permanent impairment.7

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 portion of the leg for the present case, 

reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.8

 After the class of 

diagnosis (CDX) is determined from the Knee Regional Grid (including identification of a 

default grade value), the net adjustment formula is applied using the grade modifier for 

functional history, grade modifier for physical examination and grade modifier for clinical 

studies. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 

Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices, 

including choices of diagnoses from regional grids and calculations of modifier scores.10

It is well established that, in determining the amount of a schedule award for a member of 

the body that sustained an employment-related permanent impairment, preexisting impairments of 

the body are to be included.11 There is no basis for including subsequently acquired conditions.12 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 

6 Id. 

7 See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the 

fifth edition of the A.M.A., Guides (5th ed. 2001) is used. 

8 See A.M.A., Guides 509-11 (6th ed. 2009). 

9 Id. at 515-22. 

10 Id. at 23-28. 

11 D.F., 59 ECAB 288 (2007); Kenneth E. Leone, 46 ECAB 133 (1994). 

12 R.G., Docket No. 13-220 (issued May 9, 2013). 
5

When a claimant does not demonstrate any permanent impairment caused by the accepted 

exposure, the claim is not ripe for consideration of any preexisting impairment.13 OWCP 

procedures provide: 

“Impairment ratings for schedule awards include those conditions accepted by the 

OWCP as job-related, and any preexisting permanent impairment of the same 

member or function. If the work-related injury has affected any residual 

usefulness in whole or in part, a schedule award may be appropriate. There are no 

provisions for apportionment under FECA. Rated impairment should reflect the 

total loss as evaluated for the schedule member at the time of the rating 

exam[ination].14

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that diagnosis-based impairment is “the primary method of calculation for the lower 

limb” and that most impairments are based on the diagnosis-based impairment 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.15 Chapter 16 further provides: 

“Alternative approaches are also provided for calculating 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 and is only used to determine actual impairment values when it 

is not possible to otherwise define impairment.”16

Chapter 15 of the A.M.A., Guides, pertaining to the upper extremities, provides that the 

range of motion method for evaluating permanent impairment of the upper extremities may be 

used to determine actual impairment values where a diagnosis-based impairment grid permits its 

use.17 When the diagnosis-based impairment grid permits such use, as evidenced by an asterisk 

(*) with explanatory text, the range of motion method is a stand-alone method for determining 

impairment and is not combined with the diagnosis-based impairment.18 The Board notes, 

however, that the diagnosis-based grids of Chapter 16 do not contain any asterisks with 

explanatory text providing for use of the range of motion method to evaluate permanent 

impairment of the lower extremities.19 With respect to rating of the lower extremities, the 

 13 Thomas P. Lavin, 57 ECAB 353 (2006).

14 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5(d) (February 2013). 

15 A.M.A., Guides 497. 

16 Id. 

17 Id. at 387. 

18 Id. at 391-405. 

19 Id. at 501-15. 
6

Summary portion of Chapter 16 states, “Only, if no other approach is available to rating, 

calculate impairment based on range of motion as explained in Section 16.7.”20

While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence.21 Accordingly, once OWCP undertakes 

to develop the medical evidence further, it has the responsibility to do so in the proper manner.22 

ANALYSIS 

OWCP accepted that appellant sustained aggravation of joint effusion of his right knee.23 

In a May 8, 2013 decision, it granted him a schedule award for a two percent permanent 

impairment of his right leg. The award was based on the impairment rating of Dr. Berman, a 

Board-certified orthopedic surgeon serving as an OWCP medical adviser. Dr. Berman used the 

physical findings of Dr. Platto, an attending Board-certified physical medicine and rehabilitation 

physician. 

The Board finds that the case is not in posture for decision regarding whether appellant 

has more than a two percent permanent impairment of his right leg, for which he received a 

schedule award. 

On appeal, counsel argued that appellant had a 10 percent permanent impairment of his 

right leg given that Dr. Platto found such an impairment on February 21, 2013 due to limited right 

knee motion, as calculated under Section 16.7 of the A.M.A., Guides. Chapter 16 of the sixth 

edition of the A.M.A., Guides, pertaining to the lower extremities, provides that diagnosis-based 

impairment is the primary method of calculation for the lower limb. The range of motion rating 

method is primarily used as a physical examination adjustment factor and is only used to 

determine actual impairment values when it is not possible to otherwise define impairment under 

the diagnosis-based rating method.24 The Board notes that Dr. Platto did not adequately explain 

why it was appropriate to use the range of motion rating method in this case. Moreover, it was 

not appropriate for Dr. Platto to use the fifth edition of the A.M.A., Guides when he derived 

grade modifiers because the sixth edition of the A.M.A., Guides was in effect as the time of his 

February 21, 2013 evaluation.25 

 20 Section 16.7 of Chapter 16 (entitled “Range of Motion Impairment”) provides, “This section is to be used as a 

stand-alone rating when other grids refer you to this section or no other diagnosis-based sections of this chapter are 

applicable for impairment rating of a condition.” Id. at 543. 

21 Russell F. Polhemus, 32 ECAB 1066 (1981). 

22 See Robert F. Hart, 36 ECAB 186 (1984). 

23 Appellant had previously undergone right knee surgery, anterior cruciate ligament repair and medial 

meniscectomy in April 1997, meniscectomy in April 2001, anterior cruciate cadaver repair and cadaver meniscus 

replacement in March 2002 and medial meniscectomy and microfracture surgery in December 2003. 

24 See supra notes 15 through 20. 

25 See supra note 7. 
7

In determining that appellant had a two percent permanent impairment of his right leg, 

Dr. Berman stated that, under Table 16-3 on page 509 of the sixth edition of the A.M.A., Guides, 

he should be rated under the diagnosis-based condition of “Strain; tendinitis” of the right knee. 

He found that this condition fell under class 1 and had a default value of two percent of the right 

leg.26 The Board notes, however, that Dr. Berman did not adequately explain why he chose to 

rate appellant’s right knee impairment under the diagnosis-based condition of “Strain; tendinitis” 

given that appellant’s claim had been accepted for aggravation of joint effusion of his right knee. 

Dr. Berman advised that appellant’s accepted condition was “based upon a knee sprain,” but his 

claim was not accepted for this particular medical condition. Under the A.M.A., Guides, 

evaluators are directed to provide reasons for their impairment rating choices, including choices 

of diagnoses from regional grids and calculations of modifier scores.27 Dr. Berman noted that a 

claimant fell under class 1 for “Strain; tendinitis” on Table 16-3 for “palpatory findings and/or 

radiologic findings,” but he did not explain how appellant’s specific findings met this 

requirement. It is also noted that appellant had multiple right knee surgeries prior to sustaining 

the accepted condition of aggravation of joint effusion of his right knee. In determining the 

amount of a schedule award for a member of the body that sustained an employment-related 

permanent impairment, preexisting impairments of the body are to be included.28 

Therefore, the case shall be remanded to OWCP in order to request that Dr. Berman or, if 

appropriate, another medical specialist, provide additional clarification of these matters pertaining 

to appellant’s right knee impairment.29 After this development directed by the Board, OWCP shall 

issue an appropriate decision regarding appellant’s entitlement to schedule award compensation. 

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether appellant 

has more than a two percent permanent impairment of his right leg, for which he received a 

schedule award. 

 26 Dr. Berman further indicated that, under Table 16-6, Table 16-7 and Table 16-8 on pages 516 through 519 of 

the sixth edition, appellant had a grade modifier 1 for functional history adjustment, grade modifier 1 for physical 

examination and grade modifier 1 for clinical studies. He stated that application of the net adjustment formula 

meant that there was no movement from the default value of two percent for appellant’s right leg and concluded that 

the total impairment of his right leg was two percent. 

27 See supra note 10. 

28 See supra notes 11 through 14. 

29 On appeal, counsel argued that appellant had a 10 percent permanent impairment of his right leg given that 

Dr. Platto found such an impairment on February 21, 2013 due to limited right knee motion, as calculated under 

Section 16.7 of the A.M.A., Guides. Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower 

extremities, provides that diagnosis-based impairment is the primary method of calculation for the lower limb. The 

range of motion rating method is primarily used as a physical examination adjustment factor and is only used to 

determine actual impairment values when it is not possible to otherwise define impairment under the diagnosisbased rating method. The Board notes that Dr. Platto did not adequately explain why it was appropriate to use the 

range of motion rating method in this case. Moreover, it was not appropriate for Dr. Platto to use the fifth edition of 

the A.M.A., Guides when he derived grade modifiers because the sixth edition of the A.M.A., Guides was in effect 

at the time of his February 21, 2013 evaluation. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded to OWCP for further proceedings 

consistent with this decision of the Board. 

Issued: September 10, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board