United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

IMMIGRATION & CUSTOMS 

ENFORCEMENT, Newark, NJ, Employer 

__________________________________________ 

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Docket No. 15-0556 

Issued: August 18, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 12, 2015 appellant filed a timely appeal from a December 2, 2014 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 more than 13 percent 

impairment of the left leg for which he received schedule awards. 

On appeal appellant maintains that the Board found that the opinion of an OWCP referral 

physician established that he had a 26 percent left lower extremity impairment. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In an April 16, 2014 decision, the Board 

found the case was not in posture for decision regarding whether appellant had more than 10 

percent permanent impairment of the left leg. The Board noted that the accepted conditions were 

left medial and lateral meniscal tears. The Board noted that in a March 11, 2013 report, 

Dr. Emily Hoff-Sullivan, a Board-certified orthopedic surgeon and OWCP referral physician, 

indicated that a February 5, 2013 left knee x-ray demonstrated severe degenerative changes and a 

one-millimeter joint interval of the medial and patellofemoral compartments. She advised that 

appellant’s left knee arthritis had advanced since the 2008 injury and concluded that he had 26 

percent left leg impairment based on a diagnosis of class 3 primary knee joint arthritis. The 

Board remanded the case to OWCP, as the record clearly established that appellant had 

preexisting left knee joint arthritis, which should have been considered in determining the extent 

of impairment. On remand OWCP was to obtain a supplemental report from its medical adviser, 

Dr. Arnold T. Berman, a Board-certified orthopedist, who had previously found only 10 percent 

left leg impairment because it was inappropriate to rate impairment for arthritis if it was not an 

accepted condition.2

Following remand, OWCP forwarded the Board’s decision to Dr. Berman for review. In 

an April 25, 2014 report, Dr. Berman noted his review of the medical record, including Dr. HoffSullivan’s report. He conceded that she had correctly found 26 percent impairment based on a 

one millimeter cartilage interval found on the February 5, 2013 x-ray. He, however, stated: 

“Dr. Hoff-Sullivan stated that the arthritis had advanced since 2008. This could 

be the case. However, it is not well documented and the degree of advancement 

is highly questionable. Therefore, this requires apportionment. Apportionment is 

described and defined by the [American Medical Association], Guides to the 

Evaluation of Permanent Impairment, sixth edition, page 609 as follows: ‘The 

extent to which each of two or more probable causes are found responsible for an 

effect (injury, disease, impairment, etc.), only probable causes (at least more 

probable than not) are included. Hence, the first step in apportionment is 

scientifically-based causation analysis. Second, one must allocate responsibility 

among the probable causes and select apportionment percentages consistent with 

the medical literature and facts of the case in question. Arbitrary, merely opinion 

based unscientific apportionment estimates which are nothing more than 

speculations, must be avoided. Apportionment impairment can also be 

apportioned to more than one cause.’” 

The medical adviser indicated that, based on this definition and the medical facts available, 

appellant should receive a 50 percent apportionment which would result in 13 percent left lower 

extremity impairment. 

 In a June 4, 2014 decision, appellant was granted a schedule award for an additional three 

percent impairment of the left leg, for a total impairment of 13 percent. He timely requested a 

 2

 Docket No. 14-76 (issued April 16, 2014). 
3

hearing which was held on September 19, 2014. At the hearing, appellant testified that his 

condition had worsened since the 2008 injury. He stated that he was also receiving Department 

of Veterans Affairs (VA) disability for his left knee, described a 1990 ankle injury, and 

maintained that the opinion of OWCP referral physician should be credited. 

 By decision dated December 2, 2014, an OWCP hearing representative affirmed the 

June 4, 2014 schedule award decision. 

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 second printing of the American Medical Association, Guides to the Evaluation of 

Permanent Impairment5

 (hereinafter A.M.A., Guides) as the uniform standard applicable to all 

claimants.6

 For decisions after 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 for the Class of Diagnosis (CDX), which is then adjusted by 

grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and 

Clinical Studies (GMCS).9

 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX).10 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.11

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5

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

6

 20 C.F.R. § 10.404(a). 

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

(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

8

 A.M.A., Guides, supra note 5 at 4, section 1.3, “The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.” 

9 Id. at 494-531. 

10 Id. at 521. 

11 Id. at 23-28. 
4

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

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

providing rationale for the percentage of impairment specified.12

It is well established that in determining entitlement to a schedule award, preexisting 

impairment to the scheduled member is to be included. There are no provisions for 

apportionment under FECA.13 Rated impairment should reflect the total loss as evaluated for the 

scheduled member at the time of the rating examination.14

ANALYSIS 

The Board finds this case is not in posture for decision. In its April 16, 2014 decision, 

the Board remanded the case for a supplemental report from Dr. Berman, its medical adviser, 

after reviewing Dr. Hoff-Sullivan’s March 11, 2013 report.15 She had found 26 percent 

impairment due to class 3 primary knee joint arthritis. 

In his April 25, 2014 report, Dr. Berman apportioned the arthritis rating found by 

Dr. Hoff-Sullivan. He indicated that appellant should receive a 50 percent apportionment or 13 

percent left lower extremity impairment due to arthritis. 

As noted in the Board’s April 16, 2014 decision and explained above, there are no 

provisions for apportionment under FECA,16 and rated impairment should reflect the total loss as 

evaluated for the scheduled member at the time of the rating examination.17 As Dr. Berman’s 

April 25, 2014 report did not cure the deficiencies noted previously by the Board, the case must 

again be remanded for OWCP to obtain a supplemental report from OWCP medical adviser 

regarding the degree of appellant’s left lower extremity impairment.18

The Board also notes that appellant testified at the September 19, 2014 hearing that he 

was receiving VA benefits for his left knee. Section 8116(a) of FECA provides that while an 

employee is receiving workers’ compensation benefits, he or she may not receive salary, pay, or 

remuneration of any type from the United States, except in return for services actually performed 

or for certain payments related to service in the armed forces, including benefits administered by 

the VA, unless such benefits are payable for the same injury or the same death being 

 12 See supra note 7 at Chapter 2.808.6(f) (February 2013). 

13 Peter C. Belkind, 56 ECAB 580 (2005). 

14 Supra note 7 at Chapter 2.808.5d (February 2013). 

15 Supra note 2. 

16 Supra note 13. 

17 Supra note 14. 

18 Id.; see also C.W., Docket No. 09-290 (issued January 28, 2010). 
5

compensated for under FECA.19 Thus, there is a prohibition against an employee receiving 

benefits under both FECA and VA for the same injury, including any increase in a serviceconnected disability.20 The accepted conditions in this case include aggravation of preexisting 

tear of the medial meniscus of the left knee and derangement of left lateral meniscus. On remand 

OWCP should secure information from the VA regarding appellant’s left knee disability to 

determine if his VA benefits would preclude entitlement under FECA. 

After this and such further development deemed necessary, OWCP shall issue an 

appropriate merit decision. 

CONCLUSION 

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

appellant’s left lower extremity impairment. 

ORDER 

IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside. The case is remanded to OWCP for proceedings 

consistent with this opinion of the Board. 

Issued: August 18, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 19 5 U.S.C. § 8116(a). 

20 Kelvin L. Davis, 56 ECAB 404 (2005).