United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

W.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Cleveland, OH, Employer 

__________________________________________ 

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Docket No. 16-0806 

Issued: December 15, 2016 

Appearances: 

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 10, 2014 appellant, through counsel, filed a timely appeal from a 

December 21, 2015 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 the case. 

ISSUE 

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

right leg for which he received a schedule award. 

 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

FACTUAL HISTORY 

On December 1, 2006 appellant, then a 49-year-old letter carrier, injured his right knee 

when he pivoted to retrieve mail for casing. OWCP accepted his claim for right knee sprain and 

expanded it to include internal derangement of the posterior horn of the medial meniscus of the 

right knee and medial meniscus tear of the right knee. Appellant did not stop work, but returned 

to a light-duty position. 

A December 1, 2006 x-ray of the right knee revealed no fractures or dislocations. 

Appellant was treated by Dr. Steven P. Combs, a Board-certified orthopedist, on December 7, 

2006, for a right knee injury sustained at work. He reported that on December 1, 2006 while 

casing mail, he pivoted and felt a snap in his right knee. Dr. Combs noted tenderness over the 

anteromedial aspect of the right knee with mild laxity. On January 11, 2007 he noted a magnetic 

resonance imaging (MRI) scan of the right knee revealed a tear of the posterior horn of the 

medial meniscus. Dr. Combs diagnosed a torn posterior horn of the medial meniscus. Appellant 

submitted an April 17, 2007 MRI scan of the right knee, which revealed a horizontal tear 

involving the posterior horn of the medial meniscus, no evidence of ligamentous injury, and a 

small Baker’s cyst. On July 5, 2007 Dr. Combs performed an authorized arthroscopic right 

medial meniscectomy. 

On May 11, 2009 appellant filed a claim for a schedule award (Form CA-7). 

In a December 17, 2009 letter, OWCP requested that appellant obtain a medical report 

from his treating physician evaluating the extent of his permanent impairment under the sixth 

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

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

 

Appellant submitted reports from Dr. Combs. These included a July 2, 2009 report 

noting that the right knee was essentially normal with full range of motion. The knee was 

nontender with no effusion, erythema, or induration. X-rays were normal. 

In an October 6, 2010 report, Dr. William N. Grant, a Board-certified internist, opined 

that appellant had 28 percent impairment of the right leg. He found right knee weakness, 

stiffness, and discomfort, occasional swelling, and mild tenderness to palpation. Dr. Grant 

diagnosed right knee sprain and right derangement post medial meniscus surgery. Utilizing 

Table 16-23 on page 549 of the A.M.A., Guides, he found flexion contracture was 5 degrees for 

10 percent impairment and flexion was 75 degrees for 20 percent leg impairment. Dr. Grant 

combined these values to yield total right leg permanent impairment of 28 percent. 

In a January 27, 2010 report, an OWCP medical adviser reviewed the medical record and 

Dr. Grant’s October 6, 2010 findings. He noted that he was unable to provide an impairment 

rating because Dr. Grant’s report contained inaccurate information. The medical adviser noted 

that appellant sustained a torn medial meniscus of the right knee. Under the A.M.A., Guides,

Table 16-3, page 509 of the knee regional grid, the default rating for a medial meniscus tear was 

class C, or two percent impairment of the right leg with a maximum of three percent impairment 

 3

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

with grade modifiers. The medical adviser noted that Dr. Grant’s finding of 28 percent 

impairment was inaccurate. He recommended referring appellant to a second opinion physician 

for an impairment rating. 

On October 26, 2011 OWCP referred appellant to Dr. Robert J. Nickodem, Jr., a Boardcertified orthopedic surgeon, for a second opinion evaluation of appellant’s permanent 

impairment under the A.M.A., Guides. In a report dated October 26, 2011, Dr. Nickodem noted 

a history of appellant’s December 1, 2006 injury and the subsequent July 5, 2007 surgery. He 

noted findings that included no erythema, no swelling, no instability, intact muscle strength, and 

intact sensation. Range of motion for the right knee was to 135 degrees. Dr. Nickodem 

diagnosed surgically corrected internal derangement of the posterior horn. He noted that 

appellant reached maximum medical improvement. Dr. Nickodem noted that appellant had 

normal range of motion of the right knee and was unable to explain Dr. Grant’s findings of 

significant loss of range of motion. Under Table 16-3, Knee Regional Grid, Meniscal Injury, of 

the A.M.A., Guides, he calculated that appellant had two percent right leg impairment. 

Dr. Nickodem noted that appellant’s AAOS score was 73, which constituted a functional history 

grade modifier of 1, physical examination noted minimal findings for a grade modifier of 1, and 

clinical studies were a grade modifier of 1 for the findings on the MRI scan. He applied the net 

adjustment formula, which yielded zero adjustment. Dr. Nickodem noted that appellant was a 

class 1, grade C, partial medial meniscectomy for two percent right leg impairment.4

 

In a report dated December 30, 2011, an OWCP medical adviser concurred with 

Dr. Nickodem’s determination. He noted that pursuant to the A.M.A., Guides appellant had two 

percent impairment of the right lower extremity. 

OWCP determined that there was a conflict of opinion between Dr. Grant, appellant’s 

treating physician who found 28 percent impairment of the right leg, and Dr. Nickodem, the 

second opinion physician, who opined that appellant had 2 percent right leg impairment due to 

the accepted conditions. It prepared questions for the selected specialist advising that a conflict 

of medical opinion was present concerning the percentage of permanent impairment caused by 

the work injury of December 11, 2006.5 

On May 14, 2012 OWCP referred appellant to Dr. Nasimullah Rehmatullah, a Boardcertified orthopedic surgeon selected to act as a referee physician. Dr. Rehmatullah indicated, in 

a June 4, 2012 report, that he reviewed the record and examined appellant. He noted that 

appellant had reached maximum medical improvement. Dr. Rehmatullah noted appellant’s 

complaints of pain in the medial side of the right knee. Physical examination revealed that 

appellant walked without a limp and was able to squat down with some discomfort over the 

medial side of the right knee. The right quadriceps was 1⁄2 inch smaller than the left side. 

Appellant had no gross knee instability, but had tenderness in the medial joint line. 

 4

 A.M.A., Guides 509. 

5

 OWCP asked that the referee specialist respond to its questions with as much detail as possible. It advised that 

the specialist must use the A.M.A., Guides, sixth edition and that the report must: “reference all pertinent objective 

and subjective findings, including any diagnostic evidence, and show how you applied the criteria/tables in the 

A.M.A., Guides, [sixth] [e]dition” and that it must “provide a clear explanation regarding your calculations. If any 

information is missing to correctly calculate the percentage, please indicate the specific evidence that is needed.” 
4

Dr. Rehmatullah diagnosed twisting injury to the right knee on December 1, 2006 with a tear of 

the medial meniscus and status postsurgery on July 5, 2007. He noted that appellant had 

quadriceps atrophy on the right side, full range of motion of the right knee, and residual pain on 

the medial side of the right knee, in the medial joint line. Dr. Rehmatullah noted pursuant to 

Table 16-3, page 509 of the A.M.A., Guides appellant had seven percent permanent impairment 

of the right lower extremity. 

In a report dated March 19, 2013, an OWCP medical adviser reviewed Dr. Rehmatullah’s 

June 4, 2012 report and determined that an impairment rating could not be calculated due to 

incomplete information. He noted that Dr. Rehmatullah did not cite the applicable table in the 

A.M.A., Guides and failed to provide any of the required information necessary for a complete 

rating. The medical adviser recommended that OWCP refer appellant to a skilled examiner to 

obtain an accurate impairment rating. 

On March 29, 2013 OWCP referred appellant to a new independent medical specialist, 

Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon, to resolve the conflict. 

Dr. Ghanma indicated, in an April 26, 2013 report, that he reviewed the record and examined 

appellant. He noted right knee active range of motion from 0 to 140 degrees of flexion, which 

differed considerably from the findings of Dr. Grant on October 6, 2010. Range of motion was 

equal in both knees, there was no instability of either knee, negative drawer signs, and no 

crepitation on either side. Dr. Ghanma noted that appellant reached maximum medical 

improvement on August 27, 2007 and found that his current right knee examination was normal. 

He noted that the lower limb questionnaire score was 13 and that appellant complained of mild 

stiffness in his right knee during the past week and pain when going up and down stairs. 

Dr. Ghanma noted that, pursuant to the A.M.A., Guides, Table 16-3 Knee Regional Grid -- 

Lower Extremity Impairments, page 509, appellant was a class 1, default impairment of two 

percent right lower extremity impairment for a partial meniscectomy. Dr. Ghanma further noted 

pursuant to Table 16-6 on page 516, the grade modifier for functional history adjustment was 

based on the lower limb questionnaire score indicating a mild deficit. He noted that appellant’s 

grade modifier for physical examination was zero pursuant to Table 16-7 on page 517. 

Dr. Ghanma noted that appellant’s grade modifier for clinical studies was 1 as an MRI scan 

confirmed the diagnosis and mild pathology. Using the net adjustment formula on page 521, 

appellant’s net adjustment was equal to -1, grade B for two percent permanent impairment of the 

right leg. 

In a report dated July 2, 2013, an OWCP medical adviser concurred in Dr. Ghanma’s 

determination. Pursuant to the A.M.A., Guides appellant had two percent permanent impairment 

of the right lower extremity. 

In a September 23, 2013 decision, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right leg. The award ran from April 26 to June 5, 2013. 

On September 27, 2013 appellant requested an oral hearing which was held on 

January 14, 2014. 

In a decision dated May 14, 2014, an OWCP hearing representative vacated the 

September 23, 2013 decision and remanded the matter for further medical development. The 
5

hearing representative noted that OWCP should have sought to clarify the referee physician’s 

examination report of Dr. Rehmatullah prior to making the determination that appellant should 

be referred for a new referee examination. The hearing representative instructed OWCP to 

request clarification from Dr. Rehmatullah regarding his schedule award evaluation. 

On September 25, 2014 OWCP requested clarification from Dr. Rehmatullah with 

respect to his schedule award impairment rating. It prepared questions for the selected specialist 

advising that a conflict of medical opinion was present concerning the percentage of permanent 

impairment caused by the work injury of December 11, 2006. 

In a report dated November 4, 2014, Dr. Rehmatullah noted that, based on his 

examination of June 12, 2012 and review of the records, appellant reached maximum medical 

improvement on July 5, 2008. Using the A.M.A., Guides diagnosis-based impairment criteria, 

appellant was class 1 impairment to the right knee (page 509, Table 16-3) with a range of 

impairment from 1 percent to 13 percent. Dr. Rehmatullah noted that appellant had seven 

percent permanent impairment of the right lower extremity. 

In a report dated December 29, 2014, an OWCP medical adviser reviewed 

Dr. Rehmatullah’s November 4, 2014 report. He determined that the referee physician did not 

properly utilize the A.M.A., Guides in calculating an impairment range under Table 16-3 and 

Table 16-6 for a partial medial or lateral meniscectomy. The medical adviser noted pursuant to 

the net adjustment formula appellant was a grade B for two percent right lower extremity 

permanent impairment. 

In a decision dated March 13, 2015, OWCP denied appellant’s schedule award claim. 

On March 20, 2015 appellant requested an oral hearing, which was held on 

October 14, 2015. 

In a decision dated December 21, 2015, the hearing representative affirmed the 

March 13, 2015 decision. 

LEGAL PRECEDENT 

The schedule award provision of FECA6

 and its implementing federal regulations,7 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 

 6

 5 U.S.C. § 8107. 

7

 20 C.F.R. § 10.404. 
6

the A.M.A., Guides as the uniform standard applicable to all claimants.8

 For decisions issued 

beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.9

 

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).10 Under the sixth edition, for lower extremity impairments the evaluator 

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

based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies 

(GMCS).11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) 

+ (GMCS - CDX).12 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.13 

Section 8123 of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician, who shall make an examination.14 When there exist opposing 

medical reports of virtually equal weight and rationale and the case is referred to an impartial 

medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.15 

When OWCP obtains an opinion from an impartial medical specialist for the purpose of 

resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or 

elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in 

his original report. However, when the impartial specialist is unable to clarify or elaborate on his 

original report or if his supplemental report is also vague, speculative or lacking in rationale, the 

OWCP must submit the case record and a detailed statement of accepted facts to a second 

impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.16 

 8 Id. at § 10.404(a). 

9

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

(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a 

(February 2013). 

10 A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement. 

11 Id. at 494-531. 

12 Id. at 521. 

13 Id. at 497. 

14 5 U.S.C. § 8123(a). 

15 James F. Weikel, 54 ECAB 660 (2003). 

16 Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also supra note 9 at 

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 

2.810.11(c)(1)-(2) (April 1993). 
7

ANALYSIS 

OWCP accepted the claim for right knee sprain, internal derangement of the posterior 

horn of the medial meniscus of the right knee, and medial meniscus tear of the right knee. 

Appellant underwent an authorized arthroscopy of the right knee on July 5, 2007 to repair a 

medial meniscus tear. 

The Board finds that this case is not in posture for a decision as to whether appellant has 

more than two percent permanent impairment of the right lower extremity, as there remains an 

unresolved conflict in the medical evidence. 

OWCP found that a conflict in the medical evidence existed between appellant’s 

attending physician, Dr. Grant, who found 28 percent permanent impairment of the right lower 

extremity and OWCP referral physician, Dr. Nickodem who found that appellant had two 

percent permanent impairment of the right lower extremity. In order to resolve the conflict, it 

referred appellant to Dr. Rehmatullah for an impartial medical examination. 

OWCP noted that Dr. Rehmatullah, in his June 4, 2012 report provided seven percent 

lower extremity impairment, but he did not cite to the applicable tables in the A.M.A., Guides

and did not provide required information necessary for an acceptable rating report. It determined 

that his initial report of June 4, 2012 was of diminished value and referred appellant to second 

referee physician, Dr. Ghanma, to resolve the conflict of medical opinion and obtain an accurate 

impairment rating. OWCP did not seek clarification from Dr. Rehmatullah regarding his 

impairment rating. 

The Board has held that the exclusion of a medical report obtained from a designated 

impartial medical specialist is required under specific circumstances. In Joseph R. Alsing,

17 the 

Board excluded the medical report from a second impartial medical specialist, which was 

obtained prior to any attempt to have the original medical referee clarify his medical opinion. 

The Board stated: “Since the report ... was improperly obtained, it will not be given any weight 

on review by the Board and should not be considered by [OWCP].” The Board in Alsing

remanded the case to OWCP to obtain a clarification report from the first impartial medical 

specialist and to issue a de novo decision.18 OWCP procedures also direct exclusion of a report 

where “a second referee specialist’s report is requested before [OWCP] has attempted to clarify 

 17 Joseph R. Alsing, 39 ECAB 1012 (1988); Jeannine E. Swanson, 45 ECAB 325 (1994). 

18 See also Kim Law-Jackson, Docket No. 03-2075 (issued November 26, 2003) (where the Board found that 

OWCP erred when it failed to follow the instructions of the Board and obtain clarification of a report from the first 

impartial medical adviser prior to referring appellant to another impartial medical examiner). 
8

the original referee specialist’s report.”19 Consequently, Dr. Ghanma’s report must be excluded 

from consideration as it was obtained before OWCP sought clarification from Dr. Rehmatullah.20

OWCP eventually sought clarification from Dr. Rehmatullah. In a report dated 

November 4, 2014, Dr. Rehmatullah noted that, based on his examination of June 12, 2012 and 

review of the records, appellant reached maximum medical improvement. Using the A.M.A., 

Guides diagnosis-based impairment criteria, he advised that appellant had a class 1 impairment 

to the right knee under Table 16-3, on page 509, with a range of impairment of 1 percent to 13 

percent. Dr. Rehmatullah noted that appellant had seven percent impairment to the right leg. 

The Board notes that Dr. Rehmatullah reiterated his opinion as noted in his initial report 

of June 4, 2012, and opined that appellant had seven percent impairment to the right lower 

extremity. Dr. Rehmatullah failed to provide any further explanation of his opinion as requested 

by OWCP. Although it appears that he used the diagnosis-based impairment for a meniscal 

injury on page 509, he did not explain how he arrived at his calculation under the A.M.A., 

Guides. For example, Dr. Rehmatullah did not explain how he used grade modifiers and the net 

adjustment formula to determine the rating.21 The Board finds that he did not furnish sufficient 

rationale to support his stated conclusion that appellant had seven percent permanent impairment 

of the right leg. For these reasons, the Board finds that Dr. Rehmatullah’s report is of diminished 

probative value and is insufficient to resolve the conflict. 

When a case is referred to an impartial medical specialist for the purpose of resolving a 

conflict, the opinion of the specialist, if sufficiently well rationalized, must be given special 

weight.22 When the impartial specialist is unable to clarify or elaborate on his original report or 

if his supplemental report is also vague, speculative, or lacking in rationale, as is the case here, 

OWCP should refer the claimant to a second impartial specialist.23

The case will be remanded to OWCP for further development of the medical evidence 

and referral of appellant to a second referee physician to resolve the now existing conflict of 

opinion. After such further development as OWCP deems necessary, an appropriate decision 

should be issued regarding this matter. 

 19 OWCP’s procedures state that OWCP should request a supplemental report from the referee physician to 

clarify inadequacies in the initial report. Only if the referee physician does not respond or does not provide a 

sufficient response after being asked, should OWCP request a new referee examination; see E.M., Docket No. 13-

1876 (issued March 26, 2014); see also supra note 16 at Chapter 2.810.11(e) (September 2010). 

20 See Terrance R. Stath, 45 ECAB 412 (1994) (where the Board distinguished situations where medical reports 

were excluded because OWCP might have influenced the opinion of an impartial medical specialist from 

circumstances in which the medical report obtained was defective for other procedural reasons). See also id. at 

Chapter 2.810.12 (September 2010). 

21 See A.M.A., Guides 497 (explains the process of how a diagnosis-based impairment is determined). 

22 See supra note 15. 

23 See supra note 16. 
9

CONCLUSION 

The Board finds that the case is not in posture for decision. The case shall be remanded 

for further development of the medical evidence, to be followed by an appropriate merit 

decision. 

ORDER 

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’ 

December 21, 2015 decision is set aside. The case is remanded for action consistent with this 

decision of the Board. 

Issued: December 15, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board