United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.F., Appellant 

and 

DEPARTMENT OF THE AIR FORCE, 

WRIGHT PATTERSON AIR FORCE BASE, 

OH, Employer 

__________________________________________ 

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Docket No. 15-0826 

Issued: November 5, 2015 

Appearances: 

Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On March 2, 2015 appellant, through counsel, filed a timely appeal from a January 28, 

2015 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 the case. 

ISSUE 

The issue is whether appellant has more than four percent permanent impairment of the 

right leg and eight percent permanent impairment of the left leg for which she received a 

schedule award. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On February 3, 2005 appellant, then a 49-year-old configuration and data management 

specialist, sustained bilateral knee injuries on February 3, 2005, when she was struck by a van 

and pinned between two vehicles while on temporary-duty assignment in Texas. She stopped 

work on February 3, 2005. OWCP accepted appellant’s claim for contusion of the bilateral 

knees, sprain/strain of an unspecified site of the bilateral knees and legs, bilateral myalgia and 

myositis, old collateral ligament injury, tear of the medial meniscus of the left knee, 

enthesopathy of the bilateral knees unspecified, and right chondromalacia patellae. 

Appellant underwent a left knee magnetic resonance imaging (MRI) scan on March 21, 

2005 which revealed bruising secondary to crushing injury, bruising of lateral aspect of the 

patella, possible lateral meniscus tear, small joint effusion, and chondromalacia patella. A right 

knee MRI scan revealed a bruising of the anterior aspect of the tibia secondary to trauma, 

chondromalacia patella, and degenerative disease of the knee with subchondral cyst in the medial 

femoral condyle. 

Appellant came under the treatment of Dr. Jan E. Saunders, an osteopath Board-certified 

in orthopedic surgery. On March 23, 2006 Dr. Saunders performed an authorized left knee 

arthroscopy with patellar chondroplasty and abrasion chondroplasty of the medial femoral 

condyle and trochlea. A grade 2 medial collateral ligament tear and partial anterior cruciate 

ligament disruption was observed. On July 6, 2006 Dr. Saunders performed an authorized 

arthroscopy of the right knee with chondroplasty of the medial femoral condyle, trochlea, and 

patella. 

On April 17, 2012 appellant filed a claim for a schedule award. She submitted an 

August 3, 2012 report from Dr. Martin Fritzhand, an osteopath, who noted that appellant had 

reached maximum medical improvement in January 2008. On examination, Dr. Fritzhand 

reported arthroscopic portal scars bilaterally, 1 to 2+ crepitus bilaterally, and tenderness on 

palpation of both the medial and lateral joint lines of the left knee. Appellant had pain on 

patellar compression of the right knee, and knee flexion was diminished to 90 degrees bilaterally. 

Muscle strength was intact, the right calf had two inches of atrophy, and pinprick and light touch 

were diminished over the lower legs. Dr. Fritzhand noted that appellant was unable to 

weight-bear, ambulate, or stand for more than short periods. He advised that she had difficulty 

going up and down stairs and was unable to squat or kneel. 

Pursuant to the sixth edition of the American Medical Association, Guides2 to the 

Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Fritzhand found that appellant had 

16 percent impairment of the left leg and 7 percent impairment of the right leg. 

Under Table 16-3, page 511 of the A.M.A., Guides, Knee Regional Grid, Primary Knee 

Joint Arthritis, appellant had two-millimeter cartilage interval for the left knee. Dr. Fritzhand 

noted x-rays of the left knee document the cartilage interval. He noted two-millimeter cartilage 

interval for the left knee was a class 2 impairment, grade C, with default impairment of 20 

percent of the leg. Pursuant to Table 16-6, Dr. Fritzhand found grade modifier for functional 

 2

 A.M.A., Guides (6th ed. 2008). 
3

history was 1 (AAOS 18); pursuant to Table 16-7, the grade modifier for physical examination 

was 1; and pursuant to Table 16-8, the grade modifier for clinical studies was 1. Appellant 

utilized the net adjustment formula to find a net adjustment of -2 which would place appellant at 

grade A with 16 percent permanent impairment to the left leg. 

For the right knee, Dr. Fritzhand used Table 16-3, Knee Regional Grid, Strain/Tendinitis, 

with mild motion deficits to assess impairment. He found appellant was a class 1 impairment 

with a default grade C. Dr. Fritzhand opined that she sustained seven percent permanent 

impairment to the right leg. 

In a report dated May 4, 2013, an OWCP medical adviser, Dr. Morley Slutsky reviewed 

Dr. Fritzhand’s report and disagreed with his findings. He determined that the right leg 

impairment was four percent. Dr. Slutsky disagreed with the diagnosis of knee strain/tendinitis 

Dr. Fritzhand had used for rating purposes. He stated that neither the right knee MRI scan nor 

intraoperative findings supported knee strain/tendinitis. Instead, Dr. Slutsky found the most 

impairing diagnosis in the right knee region was patellofemoral arthritis (with full-thickness 

articular cartilage defect) which he found to be consistent with the clinical findings at maximum 

medical improvement, which was patellofemoral crepitus and pain with compression. He noted 

that appellant did not have objective evidence of knee sprain or tendinitis either diagnostically or 

intraoperatively. Dr. Slutsky noted that she was a class 1 for patellofemoral arthritis with 

full-thickness articular cartilage defect with default impairment of three percent for grade C. He 

noted that the grade modifier for Functional History (GMFH) was 1, the grade modifier for 

Physical Examination (GMPE) was 2 and the grade modifier for Clinical Studies (GMCS) was 1. 

Dr. Slutsky applied the net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - 

CDX) of (1-1) + (2-1) + (1-1) for a net adjustment of 1 and a final grade of D for four percent 

impairment of the right leg. 

With regard to left leg, Dr. Slutsky found that appellant had eight percent impairment. 

He agreed with Dr. Fritzhand’s diagnosis of primary knee joint arthritis. However, Dr. Slutsky 

did not agree that there was evidence of two millimeters of primary knee joint narrowing for a 

class 2 category as Dr. Fritzhand did not provide a radiology report supporting this finding nor 

did he document actually reviewing left knee x-rays in his report. He noted that appellant’s 

intraoperative findings supported full-thickness articular cartilage defect in the primary knee 

joint which was a class 1, default seven percent impairment for grade C. Dr. Slutsky noted the 

grade modifier for functional history was 1, the grade modifier for physical examination was 2 

due to calf atrophy, and the grade modifier for clinical studies was not applicable. He used the 

net adjustment formula and noted a final net adjustment of 1 which yielded a grade D 

impairment of eight percent for class 1 primary knee joint arthritis. 

In a decision dated April 7, 2014, OWCP granted appellant a schedule award for eight 

percent permanent impairment of the left lower extremity and four percent impairment of the 

right lower extremity. 

On April 29, 2014 appellant requested an oral hearing which was held on 

November 14, 2014. 
4

In a decision dated January 28, 2015, an OWCP hearing representative affirmed the 

decision dated April 7, 2014. 

LEGAL PRECEDENT 

The schedule award provision of FECA3

 and its implementing federal regulations4 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after 

February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6 

For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be 

used.7

 

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator 

identifies the impairment Class of Diagnosis condition (CDX), which is then adjusted by grade 

modifiers based on functional history, physical examination and clinical studies.9 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 The grade 

modifiers are used on the net adjustment formula described above to calculate a net adjustment. 

The final impairment grade is determined by adjusting the grade up or down the default value C, 

by the calculated net adjustment.11 

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

should be routed to the medical consultant for an opinion concerning the nature and percentage 

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

providing rationale for the percentage of impairment specified.12 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 Id. at § 10.404(a). 

6

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003). 

7

 FECA Bulletin No. 09-03 (issued March 15, 2009). 

8

 A.M.A., Guides 3, section 1.3, The ICF: A Contemporary Model of Disablement. 

9 Id. at 494-531. 

10 Id. at 521. 

11 A.M.A., Guides 497. 

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

Chapter 2.808.6(f) (February 2013). 
5

ANALYSIS 

OWCP accepted the claim for contusion of the bilateral knees, sprain/strain of an 

unspecified site of the bilateral knees and legs, bilateral myalgia and myositis, old collateral 

ligament injury, tear of the medial meniscus of the left knee, enthesopathy of the bilateral knees 

unspecified, and right chondromalacia patellae. It authorized arthroscopic surgery which was 

performed on the left knee on March 23, 2006 and the right knee on July 6, 2006. On April 7, 

2014 appellant was granted a schedule award for eight percent permanent impairment of the left 

lower extremity and four percent impairment of the right lower extremity using the sixth edition 

of the A.M.A., Guides. 

OWCP based its schedule award decision on the August 3, 2012 report of Dr. Fritzhand 

and the May 3, 2013 report of Dr. Slutsky. The Board has carefully reviewed the medical 

adviser’s report and notes that, while the doctor found eight percent ratable impairment for the 

left lower extremity and four percent ratable impairment for the right lower extremity, it is not 

clear to what extent he considered the medical evidence of record in reaching his opinion. 

With regard to the left lower extremity, Dr. Slutsky agreed with Dr. Fritzhand’s diagnosis 

of primary knee joint arthritis, but Dr. Slutsky did not agree that there was evidence of two 

millimeters of primary knee joint narrowing for a class 2 category. He found no evidence of a 

radiology report supporting this finding nor did he believe Dr. Fritzhand had documented 

actually reviewing left knee x-rays in his report. 

However, Dr. Fritzhand’s report dated August 3, 2012 provided that, under Table 16-3, 

page 511 of the A.M.A., Guides, Knee Regional Grid, Primary Knee Joint Arthritis, appellant 

had two-millimeter cartilage interval for the left knee. He specifically noted that x-rays of the 

left knee documented the cartilage interval. Dr. Fritzhand noted that two-millimeter cartilage 

interval for the left knee was a class 2 impairment, grade C, with default impairment of 20 

percent of the leg. He noted that, pursuant to Table 16-6, the grade modifier for functional 

history was 1 (AAOS 18); pursuant to Table 16-7, the grade modifier for physical examination 

was 1; and pursuant to Table 16-8, the grade modifier for clinical studies was 1. Dr. Fritzhand 

utilized the net adjustment formula to find a net adjustment of -2 which would place appellant at 

grade A with 16 percent permanent impairment to the left leg. These findings would allow for 

an impairment rating greater than the eight percent impairment granted for the left lower 

extremity. With regard to the right leg, Dr. Slutsky did not fully explain the basis for his 

disagreement with Dr. Fritzhand regarding the strain or tendinitis diagnosis in view of the 

multiple accepted conditions. 

Proceedings under FECA are not adversary in nature nor were OWCP a disinterested 

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

shares responsibility in the development of the evidence. It has the obligation to see that justice 

is done. Accordingly, once OWCP undertakes to develop the medical evidence further, it has the 

responsibility to do so in the proper manner.13 

 13 John W. Butler, 39 ECAB 852 (1988). 
6

In view of the disparity in the evaluations of the medical adviser and Dr. Fritzhand and 

the failure of the medical adviser to adequately explain how his determination was reached in 

accordance with the relevant standards of the A.M.A., Guides, the Board finds that OWCP 

should further develop the medical evidence to determine the extent of the permanent 

impairment of her lower extremities pursuant to the A.M.A., Guides. Following this and any 

other further development as deemed necessary, OWCP shall issue an appropriate merit decision 

on appellant’s schedule award claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision regarding the degree of 

permanent impairment of appellant’s bilateral lower extremities. 

ORDER 

IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

in accordance with this decision of the Board. 

Issued: November 5, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board