United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.J., Appellant 

and 

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Richmond, VA, Employer 

__________________________________________ 

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Docket No. 16-0364 

Issued: June 22, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On December 21, 2015 appellant, through counsel, filed a timely appeal from a July 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 this case. 

ISSUE 

The issue is whether appellant has more than five percent permanent impairment of each 

lower extremity, for which she previously received schedule awards. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

This case was previously before the Board on nonmerit issues.2 The facts and 

circumstances of the prior appeal are incorporated by reference. The relevant facts follow. On 

September 14, 2005 appellant, then a 45-year-old associate advocate, filed a traumatic injury 

claim (Form CA-1) alleging that on September 9, 2005 she injured her knees, left elbow, and 

three fingers on her right hand when she slipped and fell while walking to her car in the 

performance of duty. She stopped work on September 9, 2005. OWCP accepted appellant’s 

claim for bilateral knee strain. Appellant was on and off work and received disability 

compensation for intermittent periods. 

On July 16, 2008 appellant filed a claim for a schedule award (Form CA-7). 

By letter dated October 29, 2008, OWCP advised appellant that, under FECA, schedule 

awards were not granted for soft tissue injuries such as sprains and strains and requested that she 

provide medical evidence to establish that she sustained a bilateral knee injury causally related to 

her September 9, 2005 employment injury, which warranted a schedule award. 

In a December 4, 2008 report, Dr. Anuj Gupta, Board-certified in orthopedic surgery, 

related appellant’s complaints of bilateral anterior knee pain and conducted an examination. He 

observed mild swelling in both joints and maximum tenderness over the lateral facet of both 

patellofemoral compartments with no tenderness or instability was noted medially and laterally. 

Dr. Gupta diagnosed bilateral knee arthrosis and opined that the primary cause of appellant’s 

knee pain was chronic arthrosis of both knees and significant loss of the patellofemoral cartilage. 

He reported that appellant did not require surgery and had reached maximum medical 

improvement. Dr. Gupta advised that appellant could continue working full duty. 

Utilizing Table 17-31 of the fifth edition of the American Medical Association, Guides to 

the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), Dr. Gupta determined 

that appellant had 4 percent whole person impairment and 10 percent impairment of the lower 

extremity. He explained that because appellant merely exacerbated a preexisting condition as a 

result of her work injury only 50 percent of the impairment rating was work related. Dr. Gupta 

concluded, therefore, that appellant had 2 percent whole person permanent impairment and 5 

percent impairment of the lower extremity for each knee for a total of 10 percent permanent 

impairment of the lower extremities. 

On September 2, 2009 appellant filed an additional claim for a schedule award. 

In a letter dated September 9, 2009, OWCP requested that appellant’s physician provide 

his opinion on whether appellant had reached maximum medical improvement and whether she 

sustained any impairment in accordance with the sixth edition of the A.M.A., Guides. No 

response was received. 

By decision dated November 16, 2009, OWCP denied appellant’s schedule award claim 

on the basis of insufficient medical evidence. It found that she did not submit a report from her 

 2

 Docket No. 11-677 (issued September 26, 2011). 
3

treating physician which established that she sustained a permanent impairment under the sixth 

edition of the A.M.A., Guides due to her September 9, 2005 employment injury.

On November 5, 2010 OWCP received appellant’s request, through counsel, for 

reconsideration. Appellant submitted an October 21, 2010 report by Dr. Gupta who related 

appellant’s complaints of continued bilateral knee pain. Dr. Gupta noted that he recalculated his 

previous impairment rating to the sixth edition. Referencing Table 16-3 of the sixth edition of 

the A.M.A., Guides, he reported that appellant was a class 1 for osteoarthritis of both knee joints, 

which correlated to 10 percent lower extremity impairment for each side, for a total of 20 percent 

impairment of the bilateral lower extremities. Dr. Gupta reiterated that because appellant 

aggravated a preexisting condition, only 50 percent of the impairment rating was attributable to 

her work injury, which lowered appellant’s impairment rating to 10 percent permanent 

impairment of the bilateral lower extremities. 

By decision dated November 23, 2010, OWCP denied appellant’s request for 

reconsideration finding that she did not submit any evidence that warranted further review of the 

merits. It found that the medical evidence was either duplicative or immaterial to appellant’s 

schedule award claim because the diagnosed condition was unrelated to appellant’s work injury.3

 

Appellant filed an appeal to the Board. In a decision issued on September 26, 2011, the 

Board found that Dr. Gupta’s October 21, 2010 report constituted new evidence that was relevant 

to appellant’s schedule award claim. The Board remanded the case to OWCP to review this 

evidence and further develop the case as it deemed necessary.4

Following the Board’s September 26, 2011 decision, OWCP referred appellant’s claim to 

an OWCP medical adviser to determine whether appellant had reached maximum medical 

improvement and sustained permanent impairment to her lower extremities. In a handwritten 

October 7, 2011 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon and OWCP 

medical adviser, noted that appellant’s claim was accepted for bilateral knee strain. He 

recounted that appellant’s treating physician relied on Table 16-3 of the sixth edition of the 

A.M.A., Guides and assigned 10 percent permanent impairment for each knee due to arthritis. 

Dr. Dyer explained that he could not calculate impairment for appellant’s arthritis since this 

condition was not accepted by OWCP. He related her complaints of bilateral knee pain as a 

result of a fall at work and reported that x-rays revealed a small effusion with normal articular 

cartilage and normal ligaments. Dr. Dyer referenced Table 16-2 of the sixth edition of A.M.A., 

Guides and opined that appellant had one percent impairment for each lower extremity. He 

noted a maximum medical improvement of October 21, 2010. 

 

3

 On December 3, 2010 OWCP received appellant’s request for a telephone hearing before an OWCP Branch of 

Hearings and Review hearing representative. Appellant resubmitted Dr. Gupta’s October 21, 2010 medical report. 

In a decision dated December 22, 2010, OWCP advised appellant that she was not entitled to an oral hearing 

regarding her schedule award claim because she had previously requested reconsideration on the same issue. 

4

 Docket No. 11-677 (issued September 26, 2011). 
4

On December 5, 2011 OWCP granted appellant a schedule award of one percent 

permanent impairment for each lower extremity. The award ran for 5.76 weeks from October 22 

to December 1, 2010. 

On December 14, 2011 OWCP received appellant’s request for a telephone hearing 

before an OWCP hearing representative. 

By decision dated January 24, 2012, the OWCP hearing representative determined that 

Dr. Dyer did not adequately explain how he calculated appellant’s impairment rating as he did 

not specify the diagnosis he used or default grade relied upon in his calculation of impairment. 

He set aside the December 5, 2011 schedule award decision and remanded the claim for referral 

to a second opinion examiner. 

Following the December 14, 2011 decision, OWCP prepared a statement of accepted 

facts (SOAF) and referred appellant’s claim to Dr. Eric S. Furie, a Board-certified orthopedic 

surgeon and second opinion examiner. In a March 20, 2012 report, Dr. Furie described the 

September 9, 2005 employment incident and noted that appellant’s claim was accepted for 

bilateral knee strain. He related appellant’s complaints of continued bilateral knee pain when 

performing activities. Dr. Furie reviewed appellant’s history and conducted an examination. He 

observed decreased sensation to light touch in the bilateral feet and decreased sensation at the 

level of the left ankle. Examination of appellant’s bilateral knees revealed normal alignment and 

no effusion, abrasion, laceration, or ecchymosis. Dr. Furie also reported negative anterior 

Lachman examination and negative posterior drawer. He observed tenderness on palpation of 

her bilateral patellae, left worse on right, tenderness on palpation of the femoral condyles, and 

minimal tenderness on palpation of both lateral joint lines. Dr. Furie recounted that x-rays 

revealed no fracture, dislocation, or significant decrease in joint space of both lateral joint lines. 

Dr. Furie reported that appellant’s current medical findings no longer supported the 

diagnosis of bilateral knee strain but demonstrated a diagnosis of patellofemoral arthrosis. He 

explained that her arthrosis may have been aggravated by the fall on her knees and the residual 

from the injury was now increased articular cartilage, inflammation, and damage. Dr. Furie 

opined that the September 9, 2005 employment injury caused a permanent aggravation of a 

preexisting condition. He indicated that the aggravation may cease if appellant underwent 

surgical treatment, but if appellant was not interested in surgical intervention then she had 

reached maximum medical improvement. Utilizing table 16-3 of the sixth edition of the A.M.A., 

Guides, Dr. Furie noted that appellant’s diagnosis of patellofemoral osteoarthritis was a class 1 

Class of Diagnosis (CDX) condition for a default three percent impairment. He assigned grade 

modifiers of 2 for Functional History (GMFH), 2 for Physical Examination (GMPE), and 1 for 

Clinical Studies (GMCS). Dr. Furie applied the net adjustment formula for a total adjustment of 

2, which resulted in 5 percent permanent impairment rating of each lower extremity for a total of 

10 percent impairment of the bilateral lower extremities. 

In a May 2, 2012 medical adviser report, Dr. Dyer reviewed Dr. Furie’s March 20, 2012 

second opinion report and concurred with his calculations that appellant had five percent 

permanent impairment for each lower extremity due to her patellofemoral arthrosis. He 

indicated that according to Table 16-3 of the sixth edition of the A.M.A., Guides, appellant was a 

class 1 diagnosis for default three percent permanent impairment. Dr. Dyer provided grade 
5

modifiers of 2 for functional history, 2 for physical examination, and 1 for clinical studies. 

Applying the net adjustment formula, he determined that appellant had an adjustment of +2, 

which totaled five percent permanent impairment for each lower extremity. Dr. Dyer reported 

that since appellant previously received an award for one percent permanent impairment, she was 

entitled to an additional four percent impairment for each lower extremity. He indicated that 

appellant reached maximum medical improvement on March 20, 2012, the date of Dr. Furie’s 

second-opinion report. 

On May 7, 2012 OWCP expanded appellant’s claim to include permanent aggravation of 

bilateral patellofemoral osteoarthritis of the knees. In a separate decision of the same date, it also 

granted her an additional four percent permanent impairment for each lower extremity. The 

award ran for 23.04 weeks from March 21 to August 29, 2012. Appellant did not appeal this 

schedule award decision. 

On March 27, 2014 appellant filed another schedule award claim (Form CA-7). 

By letter dated April 7, 2014, OWCP requested that Dr. Gupta provide a medical report 

based on a recent examination with his medical opinion on whether appellant had more than five 

percent permanent impairment for each lower extremity in accordance with the sixth edition of 

the A.M.A., Guides. 

In a May 16, 2014 report, Dr. Gupta noted a diagnosis of bilateral knee degenerative joint 

disease and related that appellant continued to complain of significant pain within both knee 

joints. Upon examination, he observed full extension range of motion to roughly 110 degrees on 

both sides and crepitus with the patellofemoral compartment on both sides. Dr. Gupta reported 

that radiographs of both knee joints demonstrated fairly stable degenerative changes within both 

knee joints. He explained that the symptoms appellant experienced were relatively stable and 

that the conservative treatment measures did not provide very much relief in her symptoms. 

Dr. Gupta indicated that because appellant’s condition appeared relatively stable, he was not in a 

rush to have appellant undergo knee replacement surgery. 

The employing establishment submitted a position description of her duties as a lead case 

advocate. 

OWCP referred appellant’s claim to Dr. Alexander N. Doman, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine whether appellant had 

increased permanent impairment, in addition to her previously awarded five percent impairment 

to each lower extremity, in accordance with the sixth edition of the A.M.A., Guides. In an 

August 21, 2014 report, he described the September 9, 2005 employment injury and noted that 

her claim was accepted for bilateral knee strain and aggravation of bilateral patellofemoral joint 

arthrosis. Dr. Doman related appellant’s continued complaints of bilateral anterior-type knee 

pain. Upon examination, he observed tenderness subjectively to pressure under the patellar facet 

on both the left and right knee. Range of motion was full for appellant’s left knee and to 138 

degrees for the right knee. Dr. Doman reported no knee effusion and no patellofemoral 

instability. He recounted that x-rays of the left and right knee were normal and the 

patellofemoral joint was well aligned. Dr. Doman indicated that maximum medical 

improvement occurred one year from the date of injury on September 9, 2006. He reported that 
6

his impairment evaluation was based on aggravation of chondromalacia of the patella and 

explained that this diagnosis was supported by her subjective complaints of knee pain and lack of 

objective medical findings. Dr. Doman referenced Table 16-3 of the sixth edition of the A.M.A., 

Guides and determined that appellant was a class 1 injury for a criterion of soft tissue. He 

recounted grade modifiers of 1 for functional history, 1 for physical examination, and 0 for 

clinical studies, which resulted in a grade B classification. Thus, Dr. Doman concluded that 

appellant had one percent permanent impairment of each lower extremity. 

In a letter dated September 8, 2014, OWCP requested that Dr. Doman clarify whether his 

impairment rating of one percent for each lower extremity was appellant’s total impairment 

rating or in excess of the five percent permanent impairment that she already received. 

On September 13, 2014 Dr. Doman provided a clarification report and explained that the 

one percent impairment was a final, total impairment and was not in excess of the previously 

given five percent impairment of each lower extremity. 

In September 25 and 29, 2014 reports, Dr. Dyer reviewed Dr. Doman’s August 21, 2014 

second opinion report and September 13, 2014 addendum. He related that in 2005 appellant had 

a fall at work which resulted in a bilateral knee strain and aggravation of chondromalacia of her 

bilateral knees. Dr. Dyer noted a date of maximum medical improvement of September 9, 2006, 

approximately one year after appellant’s work injury. He indicated that a magnetic resonance 

imaging (MRI) examination showed no fracture but a small effusion. Utilizing Table 16-3 of the 

sixth edition of the A.M.A., Guides, Dr. Dyer opined that appellant was a class 1 B for knee 

sprain, which resulted in one percent permanent impairment of each lower extremity. He noted 

that he agreed with Dr. Doman that appellant had a class 1 diagnosis which resulted in one 

percent impairment, not in excess of the previously awarded five percent permanent impairment. 

In a decision dated September 29, 2014, OWCP denied appellant’s claim for an increased 

schedule award. It found that the medical evidence failed to establish that appellant sustained 

more than five percent impairment of each lower extremity as a result of her work injury. 

On October 6, 2014 OWCP received appellant’s request, through counsel, for a telephone 

hearing before an OWCP hearing representative, which was held on May 12, 2015. Appellant 

was represented by counsel. She related that she had other injuries to her right foot, hip, and 

back, but had not had any other injuries to her knees other than the September 9, 2005 

employment injury. Counsel alleged that OWCP did not follow proper due process procedure 

because it did not mail a “due process letter” to the medical adviser asking that he explain why 

the second opinion report was more probative than appellant’s treating physician’s opinion. He 

also asserted that OWCP should have referred appellant for an impartial medical examination as 

a conflict in medical evidence existed between OWCP’s physicians and appellant’s physicians. 

Appellant resubmitted Dr. Gupta’s May 16, 2014 report. 

By decision dated July 28, 2015, the OWCP hearing representative affirmed the 

September 29, 2014 OWCP decision. 
7

LEGAL PRECEDENT 

An employee seeking compensation under FECA has the burden of proof to establish the 

essential elements of his or her claim, including an injury was sustained in the performance of 

duty as alleged and that an employment injury contributed to the permanent impairment for 

which schedule award compensation is alleged.5

 Where a claimant has previously received a 

schedule award and subsequently claims an additional schedule award due to a worsening of his 

or her condition, the claimant bears the burden of proof to establish a greater impairment 

causally related to the employment injury.6

 

The schedule award provision of FECA7

 and its implementing regulations 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, the Board has authorized 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 OWCP as the appropriate standards for evaluating schedule 

losses.8

 Effective February 2009 the sixth edition of the A.M.A., Guides was adopted by 

OWCP.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.10 Under the sixth edition, the evaluator identifies the impairment class for the 

diagnosed condition, which is then adjusted by grade modifiers based on functional history, 

physical examination, and clinical studies. The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons for their 

impairment rating choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.12

In determining impairment for the lower extremities, an evaluator must establish the 

appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee, 

 5 See A.M., Docket No. 13-0964 (issued November 25, 2013). 

6 Edward W. Spohr, 54 ECAB 806 (2003). 

7

 5 U.S.C. §§ 8101-8193. 

8

 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

10 A.M.A., Guides (6th ed. 2009), p. 3, section 1.3. 

11 Id. at 494-531. 

12 Id. at 23-28; see also R.V., Docket No. 10-1827 (issued April 1, 2011). 
8

the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional 

Grid) beginning on page 509.13 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.14 

ANALYSIS 

OWCP initially accepted appellant’s claim for bilateral knee strain and later for 

permanent aggravation of bilateral patellofemoral osteoarthritis of the knees. It previously 

issued schedule awards totaling five percent for permanent impairment each of appellant’s left 

and right lower extremity. On March 27, 2014 appellant filed a claim for an increased schedule 

award. The Board has evaluated the evidence, and finds that appellant has not established 

impairment greater than five percent impairment of each lower extremity, for which she was 

previously awarded. 

OWCP referred appellant’s claim to Dr. Doman for a second opinion examination to 

determine whether appellant sustained additional impairment of her bilateral lower extremities in 

excess of her previous five percent award according to the sixth edition of the A.M.A., Guides. 

In an August 21, 2014 report, Dr. Doman accurately described the September 9, 2005 

employment injury and noted that her claim was accepted for bilateral knee strain and 

aggravation of bilateral patellofemoral joint arthrosis. Upon examination, he observed 

tenderness to pressure under the patellar facet on both knees and no effusion or patellofemoral 

instability. Range of motion was full for appellant’s left knee and to 138 degrees for the right 

knee. Dr. Doman indicated that maximum medical improvement occurred one year from the 

date of injury on September 9, 2006. 

Utilizing Table 16-3 of the sixth edition of the A.M.A., Guides, Dr. Doman determined 

that appellant was a class 1 injury for a criterion of soft tissue. He explained that his 

classification was based on the diagnosis of aggravation of chondromalacia of the patella and 

supported by appellant’s subjective complaints of knee pain with lack of objective medical 

findings. Dr. Doman reported grade modifiers of 1 for functional history, 1 for physical 

examination, and 0 for clinical studies, which resulted in a grade B classification. After applying 

the net adjustment formula, he opined that appellant had one percent permanent impairment of 

each lower extremity. In a September 13, 2014 addendum, Dr. Doman clarified that the one 

percent permanent impairment was a final, total impairment and not in addition to the previously 

awarded five percent. In September 25 and 29, 2014 report, Dr. Dyer, an OWCP medical 

adviser, reviewed Dr. Doman’s August 21 and September 13, 2014 reports and agreed with his 

evaluation and calculations that appellant had one percent permanent impairment of each 

bilateral lower extremity. 

The Board finds that Dr. Doman and the OWCP medical adviser properly applied the 

A.M.A., Guides and determined that appellant had one percent permanent impairment of each 

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

14 Id. at 515-22. 
9

bilateral lower extremity. Both physicians referenced the appropriate tables concerning the 

nature of appellant’s condition based on examination findings and provided medical rationale for 

the percentage of impairment in accordance with the A.M.A., Guides. As appellant has 

previously received a schedule award in this amount, she is not entitled to an additional schedule 

award. 

The only other current medical evidence of record was a May 16, 2014 report by 

Dr. Gupta. Dr. Gupta related appellant’s complaints of significant pain with both knee joints and 

noted a diagnosis of bilateral knee degenerative joint disease. Upon examination, he observed 

full extension range of motion to roughly 110 degrees on both sides and crepitus with the 

patellofemoral compartment. Dr. Gupta reported that appellant’s symptoms were relatively 

stable and that conservative treatment measures did not provide much relief. The Board notes 

that Dr. Gupta’s report did not address the extent of any permanent impairment due to 

appellant’s injury, provide a description of any impairment in accordance with the A.M.A., 

Guides, or opine on whether appellant reached maximum medical improvement. OWCP 

procedures provide that to support a schedule award, the file must contain medical evidence 

which shows that the impairment has reached a permanent and fixed state and describes the 

impairment in sufficient detail so that it can be visualized on review and computes the 

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

15 Appellant did not submit 

such evidence. Accordingly, the Board finds that since there is no current medical report that 

provides an impairment rating there is no medical basis to support appellant’s claim for an 

additional schedule award.16

Appellant may request a schedule award based on evidence of a new exposure or medical 

evidence showing progression of an employment-related condition resulting in permanent 

impairment. 

CONCLUSION 

The Board finds that appellant has not established more than five percent permanent 

impairment of each lower extremity, for which she previously received schedule awards. 

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

Chapter 2.808.7 (February 2013). 

16 W.T., Docket No. 15-214 (issued March 26, 2015). 
10

ORDER 

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

Workers’ Compensation Programs is affirmed. 

Issued: June 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board