United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.B., Appellant 

and 

DEPARTMENT OF COMMERCE, 

U.S. CENSUS BUREAU, Chicago Heights, IL, 

Employer 

__________________________________________ 

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Docket No. 15-1848 

Issued: February 12, 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 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant, through counsel, filed a timely appeal from an April 15, 

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. 

ISSUES 

The issues are: (1) whether appellant has more than 21 percent permanent impairment of 

the left leg and 2 percent permanent impairment of the left arm; and (2) whether OWCP properly 

determined appellant’s pay rate for compensation purposes. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On May 20, 2010 appellant, then a 58-year-old enumerator, filed a traumatic injury claim 

(Form CA-1) alleging that on May 18, 2010 he sustained injuries while in the performance of 

duty. On the claim form he alleged that he had fallen over a fence while attempting to avoid an 

attack by a dog. The reverse of the claim form indicated that appellant was an intermittent 

employee whose work hours varied, and he stopped working on May 18, 2010. An employing 

establishment form report indicated that he had begun work on April 26, 2010. 

OWCP accepted the claim on August 31, 2010 for left knee sprain, contusions to the face, 

neck, and scalp, as well as contusions to the left shoulder and upper arm. Appellant underwent 

left knee surgery on January 21, 2011 to repair a torn medical meniscus. In addition, he 

underwent left knee total arthroplasty on December 17, 2012. 

An OWCP memorandum of telephone call dated August 31, 2010 indicated that the 

employing establishment reported that appellant’s employment term would have ended on 

July 26, 2010. With respect to his rate of pay, OWCP initially determined on September 14, 

2010 that appellant earned $17.50 per hour, at 4.5 hours per day, 4 days a week, for a weekly pay 

rate of $315.00. A wage-loss compensation payment covering the period July 3 to August 25, 

2010 reflected a pay rate of $315.00 per week. 

By letter dated September 23, 2010, the employing establishment reported that appellant 

was a temporary, intermittent enumerator. It indicated that he earned $17.50 per hour, working 

an average of 4.5 hours per day, 4 days per week. According to the employing establishment, 

appellant’s annual pay rate should be based on 150 times the average daily wage, or $227.16 per 

week. The record also contains an employing establishment form indicating that appellant had 

worked five weeks before he was injured, earning $2,130.65 during that time. In response to a 

request for additional information regarding appellant’s work history, the employing 

establishment submitted documents indicating that appellant had worked from April 6 to 10, 

2009, with earnings of $635.00. For 2010 appellant began work in April and worked intermittent 

hours. The compensation payment appellant received for the period August 20 to September 11, 

2010 was based on a pay rate of $227.16 per week. There were no additional wage-loss 

compensation payments at that time. 

In a report dated August 23, 2013, Dr. William Payne, a Board-certified orthopedic 

surgeon, indicated in his history that appellant underwent a total left knee arthroplasty on 

December 17, 2012. He opined that appellant had a work-related knee injury and the subsequent 

meniscus degeneration and tears resulted in degenerative arthritis and the need for additional 

surgery. 

With respect to a permanent impairment, appellant submitted a March 19, 2014 report 

from Dr. Neil Allen, a Board-certified internist. Dr. Allen provided a history and results on 

examination for the left shoulder and left knee. As to the left knee, he noted that MCL and LCL 

stress tests were negative for joint laxity, with positive Lachman’s grade 2/3. The range of 

motion for left knee was 120 degrees flexion, -5 degrees extension, with the right knee at 115 

degrees flexion and -5 degrees extension. For a left shoulder permanent impairment, Dr. Allen 

opined that under the sixth edition of the American Medical Association, Guides to the 
3

Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), appellant had two percent 

left arm impairment under Table 15-5. He found that appellant had a grade C impairment of two 

percent, with no adjustment based on grade modifiers. For the left knee, Dr. Allen identified 

Table 16-3. He reported that the default impairment was 67 percent for a class 4 impairment, 

which he adjusted to a grade A impairment of 59 percent based on applicable grade modifiers. 

OWCP referred the case to an OWCP medical adviser, Dr. Michael Hellman, for review. 

In a report dated August 11, 2014, Dr. Hellman concurred with Dr. Allen’s opinion as to the left 

shoulder, finding two percent left arm permanent impairment. As to the left knee, he provided a 

different opinion under Table 16-3. Dr. Hellman found that appellant should be rated for a good 

result after a total knee replacement, which results in a default impairment of 25 percent. He 

then adjusted the permanent impairment to a grade A, for 21 percent left leg permanent 

impairment based on the left knee. Dr. Hellman explained that a grade 2 Lachman’s means there 

was an endpoint which would not be considered a severe instability. He also indicated that all 

total knee arthroplasty procedures remove the anterior cruciate ligament, that the patella and 

extensor mechanism are the only anterior buttress for knee stability, and the examination 

explained in Dr. Allen’s notes “reasonably sounds like a normal and stable knee.” 

According to the medical adviser, he was unable to determine the date of the total knee 

arthroplasty, but the date of maximum medical improvement (MMI) was one year after the total 

knee arthroplasty surgery. 

By decision dated August 28, 2014, OWCP issued a schedule award for 21 percent left 

leg, and 2 percent left arm permanent impairment. The period of the award was 66.72 weeks 

from January 21, 2012. The pay rate was reported as $227.16 per week. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative, 

which was held on March 9, 2015. At the hearing appellant questioned the pay rate used by 

OWCP. 

By decision dated April 15, 2015, an OWCP hearing representative affirmed the 

August 28, 2014 schedule award. She found that the weight of the medical evidence was 

represented by OWCP’s medical adviser. In addition, the hearing representative found the pay 

rate was correct, citing FECA Circular 10-01. 

LEGAL PRECEDENT -- ISSUE 1 

5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of 

use of a member or function of the body, the claimant is entitled to a schedule award for the 

permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

determined. For consistent results and to ensure equal justice for all claimants OWCP has 

 2

 5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule 

award is payable and the maximum number of weeks of compensation to be paid; additional members of the body 

are found at 20 C.F.R. § 10.404(a). 
4

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.4

With respect to knee impairment, the A.M.A., Guides provides a regional grid at 

Table 16-3.5

 The Class of Diagnosis (CDX) is determined based on specific diagnosis, and then 

the default value for the identified CDX is determined. The default value (grade C) may be 

adjusted by using grade modifiers for Functional History (GMFH, Table 16-6), Physical 

Examination (GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The adjustment 

formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).6

 

The regional grid for the shoulder is found at Table 15-5.7

 An evaluation method similar 

to that used in Table 16-3 is applicable. For the upper extremities, the adjustment formula is 

based on Table 15-7 (functional history), Table 15-8 (physical examination), and Table 15-9 

(clinical studies). 

ANALYSIS -- ISSUE 1 

With respect to permanent impairment, the record contains a report dated March 19, 2014 

from attending physician, Dr. Allen, and an August 11, 2014 report from Dr. Hellman, an OWCP 

medical adviser. Both physicians concur with respect to two percent left arm permanent 

impairment based on the left shoulder contusion. Under Table 15-5, a shoulder contusion is a 

class 1 impairment with grade C (default) of two percent to the arm.8 Dr. Hellman used a GMFH 

of one, and a GMPE of one, with clinical studies not available.9 Applying the formula above, 

this would result in a net adjustment of -1 (0 + 0 +-1) to grade B, which is a two percent arm 

impairment. The medical adviser used a GMFH of 2, GMPE of 1, and GMCS of 0, resulting in 

no adjustment from the grade C impairment, also resulting in two percent impairment. Thus, the 

Board finds that the medical evidence establishes two percent permanent impairment of the left 

arm, for which appellant received a schedule award. 

As to the permanent impairment to the left leg based on the left knee, Dr. Allen and 

Dr. Hellman provide differing opinions. In reviewing the reports, the Board finds that 

Dr. Hellman, an OWCP medical adviser, provided a clear explanation as to his opinion, while 

Dr. Allen did not provide adequate explanation. Both physicians apply Table 16-3, the knee 

 3 A. George Lampo, 45 ECAB 441 (1994). 

4

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

Chapter 2.808.6.a (January 2010). See also A.W., Docket No. 13-621 (issued July 22, 2013). 

5

 A.M.A. Guides 509-11, Table 16-3. 

6

 The net adjustment is up to +2 (grade E) or -2 (grade A). The adjustment is not a simple addition or subtraction 

from the default value, as each grade provides its own value. 

7

 A.M.A., Guides 401-05, Table 15-5. 

8 Id. at 401. Grade B and D are also two percent, with grade A one percent and grade E three percent. 

9

 Table 15-9 indicates that the grade modifier is 0 if there are no available clinical studies. 
5

regional grid. For a total knee replacement, a “good” result (class 2, moderate problem) has a 

grade C leg impairment of 25 percent. A “fair” result (class 3, severe problem) has a grade C 

impairment of 37 percent, and a “poor” result (class 4, very severe problem) is a 67 percent 

grade C impairment. Dr. Allen applies the “poor” result, but does not provide any explanation as 

to why this is appropriate. A poor result under Table 16-3 is for “poor position, moderate to 

severe instability, and/or moderate to severe motion deficit.” The report from Dr. Allen does not 

refer to the requirements for a class 4 rating or discuss the examination results. For example, the 

range of motion results provided in the March 19, 2014 report do not indicate moderate-to-severe 

motion deficit. There is also no discussion explaining why the examination results showed 

moderate-to-severe instability or poor position. 

On the other hand, Dr. Hellman, the OWCP medical adviser, does explain why he would 

place appellant in class 2 for a good result from total knee replacement. He noted the Lachman’s 

results and indicated there was no evidence of significant instability. The medical adviser 

explained that the findings of Dr. Allen indicated that the knee was in a normal and stable 

condition. 

The Board finds that the opinion of Dr. Hellman as to the degree of permanent 

impairment for the left leg under the A.M.A., Guides is entitled to greater weight in this case. 

Dr. Hellman provided medical rationale to support his opinion, while Dr. Allen did not provide 

sufficient medical rationale to support an opinion that appellant had a class 4 permanent 

impairment under Table 16-3. Dr. Hellman, the medical adviser explained that he would adjust 

the grade C impairment using GMFH of 1 (mild problem), GMPE of 1 (mild problem), and 

GMCS of 0 (no available clinical studies). This results in a grade A, class 2 permanent 

impairment of 21 percent to the left leg.10 The Board thus finds this represents the weight of the 

medical evidence in this case. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment.11

There is, however, a remaining issue with respect to MMI. The period covered by a 

schedule award commences on the date that the employee reaches MMI from residuals of the 

employment injury.12 OWCP’s medical adviser opined that this occurred one year after the total 

knee replacement surgery, although he reported he did not know the date of the surgery. OWCP 

used the date of January 21, 2012 as MMI, which is one year after the meniscal surgery, not the 

total knee replacement surgery. While the record does not contain a surgical report, Dr. Payne 

indicated the date of total knee arthroplasty surgery was December 17, 2012. On return of the 

case record, OWCP should make proper findings with respect to the date of MMI in this case. 

 10 A.M.A., Guides 511, Table 16-3. 

11 A claim for an increased permanent impairment based on new medical evidence is not a request for 

reconsideration and is not subject to reconsideration request time limitations or to the clear evidence of error 

standards. R.P., Docket No. 10-1123 (issued January 25, 2011). 

12 Albert Valverde, 36 ECAB 233, 237 (1984). 
6

LEGAL PRECEDENT -- ISSUE 2 

Section 8114(d) of FECA provides: 

“Average annual earnings are determined as follows: 

(1) If the employee worked in the employment in which he was employed 

at the time of his injury during substantially the whole year immediately 

preceding the injury and the employment was in a position for which an 

annual rate of pay-- 

(A) was fixed, the average annual earnings are the annual rate of 

pay; or 

(B) was not fixed, the average annual earnings are the product 

obtained by multiplying his daily wage for particular employment, 

or the average thereof if the daily wage has fluctuated, by 300 if he 

was employed on the basis of a 6-day workweek, 280 if employed 

on the basis of a 5 1/2-day week, and 260 if employed on the basis 

of a 5-day week. 

(2) If the employee did not work in employment in which he was 

employed at the time of his injury during substantially the whole year 

immediately preceding the injury, but the position was one which would 

have afforded employment for substantially a whole year, the average 

annual earnings are a sum equal to the average annual earnings of an 

employee of the same class working substantially the whole immediately 

preceding year in the same or similar employment by the United States in 

the same or neighboring place, as determined under paragraph (1) of this 

subsection. 

(3) If either of the foregoing methods of determining the average annual 

earnings cannot be applied reasonably and fairly, the average annual 

earnings are a sum that reasonably represents the annual earning capacity 

of the injured employee in the employment in which he was working at 

the time of the injury having regard to the previous earnings of the 

employee in federal employment, and of other employees of the United 

States in the same or most similar employment in the same or neighboring 

location, other previous employment of the employee, or other relevant 

factors. However, the average annual earnings may not be less than 150 

times the average daily wage the employee earned in the employment 

during the days employed within one year immediately preceding his 

injury.” 

Sections 2.900.4 and 2.900.12 of OWCP procedures provide that, when computing 

compensation for census workers, when disability did not exceed 90 days, compensation should 

be paid on a daily basis according to section 8114(c). For enumerators who ordinarily worked 
7

4.5 hours a day, 4 days a week, where disability extended beyond 90 days and the claimant had 

similar employment during the years prior to the injury, compensation should be paid in 

accordance with section 8114(d)(1) and (2). Otherwise, it should be based on a weekly basis 

using the following formula: 150 times the actual daily wage divided by 52. The actual daily 

wage should be determined by multiplying the hourly pay rate by 4.5 hours.13

ANALYSIS -- ISSUE 2 

Appellant raised the issue of pay rate at the March 9, 2015 hearing. The pay rate for 

compensation purposes is determined under 5 U.S.C. § 8114(d). As noted above, 5 U.S.C. 

§ 8114(d)(1) applies if the employee worked in the position during substantially the whole year 

prior to the injury. That is not applicable in this case, as appellant had only worked since late 

April 2010 and the injury occurred on May 18, 2010. Moreover, 8114(d)(2) is not applicable, as 

the position would not have afforded employment for substantially a whole year. The employing 

establishment indicated that appellant was a temporary employee whose employment would 

have ended on July 26, 2015. 

Since neither 5 U.S.C. § 8114(d)(1) nor (2) would apply, FECA Circular 10-01 indicates 

that the pay rate is determined by the formula noted in 5 U.S.C. § 8114(d)(3). The hourly wage 

is multiplied by 4.5 to determine the daily wage, then the daily wage multiplied by 150, and the 

weekly wage calculated by dividing by 52. Using the information provided by the employing 

establishment of $17.50 per hour, this results in a daily wage of $78.75. The daily wage 

multiplied by 150 is $11,812.50, and divided by 52 results in a pay rate of $227.16 per week. 

Based on the evidence of record, the Board finds that OWCP properly determined appellant’s 

pay rate in this case. 

CONCLUSION 

The Board finds the probative evidence does not establish more than 21 percent left leg 

permanent impairment and 2 percent left arm permanent impairment. As to the date of MMI, 

additional findings are required. The Board further finds that OWCP properly determined 

appellant’s pay rate for compensation purposes. 

 13 Federal (FECA) Procedure Manual, supra note 4 at 2.901.10 (February 2013); see sections 2.900.4.c and 

2.900.12 (March 2011); see also 5 U.S.C. §§ 8114(c), 8114(d)(1). 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated April 15, 2015 is affirmed with respect to the degree of 

permanent impairment in the left leg and left arm, and with respect to pay rate. It is set aside 

with respect to the date of MMI and remanded for further development. 

Issued: February 12, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board