United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Beachwood, OH, Employer 

__________________________________________ 

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Docket No. 16-1738 

Issued: August 18, 2017 

Appearances: Case Submitted on the Record

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 August 31, 2016 appellant, through counsel, filed a timely appeal from a July 29, 

2016 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 this case. 

ISSUE 

The issue is whether appellant met his burden of proof to establish that he has ratable 

permanent impairment of the left lower extremity, warranting 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 June 26, 2012 appellant, then a 57-year-old letter carrier, was walking across a lawn 

when he stepped in a grass-covered hole and twisted his left knee. OWCP accepted his traumatic 

injury claim (Form CA-1) for left knee strain. Appellant stopped work on June 20, 2012 and 

received continuation of pay, followed by FECA wage-loss compensation through 

August 24, 2012. He returned to work on August 25, 2012 with restrictions that included using 

sidewalks as much as possible and no carrying in excess of 25 pounds. On or about April 5, 

2013, Dr. Jared S. Levin, a Board-certified orthopedic surgeon, released appellant to resume his 

regular duties. 

In an August 28, 2014 follow-up report, Dr. Levin advised that appellant’s left knee was 

progressing well and that he had no significant symptoms. He noted that he was able to work 

and perform his daily activities. Dr. Levin reported that the range of motion (ROM) in the left 

knee was zero to 130 degrees without effusion or instability. He also reported that there was 

neutral alignment of the left lower extremity and that the left knee was stable to varus, valgus 

stress, Lachman and posterior drawer, with no tenderness. Dr. Levin found that appellant had 

reached maximum medical improvement (MMI) with regard to his left knee. 

On October 20, 2014 appellant filed a claim for a schedule award (Form CA-7). 

On November 12, 2014 OWCP informed appellant that it required additional medical 

evidence in order to determine whether he was entitled to a schedule award for his accepted left 

knee strain. It advised him to submit an impairment rating in accordance with the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2009) 

(hereinafter A.M.A., Guides). OWCP afforded appellant 30 days to submit the requested 

information. However, it did not receive any additional medical evidence within the allotted 

time frame. 

By decision dated December 12, 2014, OWCP denied appellant’s claim for a schedule 

award. 

On December 19, 2014 counsel timely requested a hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

Counsel subsequently submitted a March 12, 2015 impairment rating from 

Dr. Catherine E. Watkins Campbell, who found seven percent left lower extremity permanent 

impairment under Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).3

 

Dr. Watkins Campbell based the impairment rating on a diagnosis of knee sprain 

(muscle/tendon) with mild motion deficits (class 1/Class of Diagnosis (CDX)).4

 

Dr. Watkins Campbell assigned a Functional History grade modifier (GMFH) of 1 and calculated 

 3

 Dr. Watkins Campbell is Board-certified in both family medicine and occupational medicine. 

4

 On physical examination, Dr. Watkins Campbell reported a maximum range of motion of -2 degrees extension 

and 106 degrees flexion. She also noted that appellant ambulated with a normal gait, and could perform only a 

limited squat. There was also no evidence of left knee laxity, localized tenderness, or crepitance. 
3

a net adjustment of 0.5

 Therefore, appellant’s class 1 impairment rating remained at the default 

(C) grade of seven percent. 

By decision dated June 9, 2015, the hearing representative set aside OWCP’s 

December 12, 2014 decision and remanded the case for further medical development. The 

hearing representative instructed OWCP to refer the case record, including 

Dr. Watkins Campbell’s March 12, 2015 impairment rating to the district medical adviser 

(DMA) for review.6

In a July 3, 2015 report, Dr. Morley Slutsky, the DMA, reviewed appellant’s file, 

including Dr. Watkins Campbell’s March 12, 2015 report and found there was no evidence to 

support an impairment under the A.M.A., Guides (6th ed. 2009).7

 He noted that when appellant 

reached MMI in August 2014, Dr. Levin reported a normal left knee examination, normal range 

of motion (ROM), and that there were no significant left knee symptoms. Dr. Slutsky further 

noted that in August 2014 appellant was able to perform activities of daily living without 

difficulty. He opined that these earlier findings contradicted Dr. Watkins Campbell’s March 12, 

2015 examination results. Consequently, Dr. Slutsky disagreed with her diagnosis of a soft 

tissue muscle/tendon problem with mild motion deficits. He explained that there was no 

diagnostic evidence to support underlying soft tissue pathology. Based on Dr. Levin’s 

August 2014 left knee ROM measurements (0 to 130° flexion), Dr. Slutsky found zero 

(0) percent left lower extremity permanent impairment under Table 16-23 and Table 16-25, 

A.M.A., Guides 549-50 (6th ed. 2009). 

By decision dated September 16, 2015, OWCP relied on Dr. Slutsky’s July 3, 2015 report 

and found no permanent impairment of the left lower extremity. 

Counsel timely requested a hearing before a representative of OWCP’s Branch of 

Hearings and Review, which was held on May 17, 2016. He did not submit any additional 

medical evidence, but argued, among other things, that Dr. Slutsky, the DMA, was neither fair 

nor impartial. 

In a July 29, 2016 decision, OWCP’s hearing representative affirmed the September 16, 

2015 decision. She found that Dr. Watkins Campbell had not presented any true evidence to 

support permanent impairment, and that her findings were inconsistent with the medical 

evidence of record. Consequently, the hearing representative deferred to Dr. Slutsky’s 

July 3, 2015 opinion. 

 5

 Dr. Watkins Campbell’s net adjustment calculation did not include grade modifiers for Physical Examination 

(GMPE) or Clinical Studies (GMCS). Net Adjustment ꞊ (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). See

section 16.3d, A.M.A., Guides 521 (6th ed. 2009). 

6

 The Federal (FECA) Procedure Manual provides in relevant part: “If the claimant’s physician provides an 

impairment report ... the case should be referred to the DMA for review.” Federal (FECA) Procedure Manual, Part 

2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6e (February 2013). The procedure 

manual further provides that “[a]fter obtaining all necessary medical evidence, the file should be routed to the DMA 

for opinion concerning the nature and percentage of impairment.” Id. at Chapter 2.808.6f. 

7

 Dr. Slutsky is Board-certified in occupational medicine. 
4

LEGAL PRECEDENT 

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.8

 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the American Medical Association, Guides to the 

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.9 

Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of 

the A.M.A., Guides (2009).10

ANALYSIS 

OWCP accepted appellant’s traumatic injury claim for left knee strain. 

Dr. Watkins Campbell examined appellant on March 12, 2015 and found seven percent left lower 

extremity permanent impairment under Table 16-3, A.M.A., Guides 509 (6th ed. 2009). 

Dr. Slutsky, the DMA, reviewed the case record, including Dr. Watkins Campbell’s report and 

found that appellant had no permanent impairment under the A.M.A., Guides. He noted that 

appellant showed no significant left knee symptoms when evaluated by Dr. Levin in 

August 2014. Dr. Slutsky further noted that appellant’s August 2014 examination revealed a 

normal left knee with normal ROM measurements. Lastly, at the time appellant was said to have 

reached MMI (August 2014), he was noted to have been able to perform his activities of daily 

living without difficulty. In light of the prior normal examination findings, Dr. Slutsky 

questioned the validity of Dr. Watkins Campbell’s March 12, 2015 diagnosis of a left knee soft 

tissue muscle/tendon problem with mild motion deficits. He explained that there was no 

diagnostic evidence to support underlying soft tissue pathology. Thus, the DMA relied upon 

Dr. Levin’s August 2014 examination findings to determine the extent of any left lower 

extremity permanent impairment. Based upon the reported knee ROM measurements, 

Dr. Slutsky found that appellant had zero percent left lower extremity permanent impairment 

under Table 16-23 and Table 16-25, A.M.A., Guides 549-50 (6th ed. 2009). 

Dr. Watkins Campbell’s March 12, 2015 left lower extremity impairment rating appears 

to have been based on appellant’s subjective complaints of pain and his self-reported functional 

limitations, in conjunction with left knee ROM deficits. Dr. Slutsky reasonably questioned the 

reliability of Dr. Watkins Campbell’s impairment rating because there was no diagnostic 

evidence to support underlying soft tissue pathology, as well as the fact that the most recent prior 

examination findings were essentially normal. Moreover, the Board notes that 

 8

 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ 

compensation. 5 U.S.C. § 8107(c)(2). 

9

 20 C.F.R. § 10.404. 

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 
5

Dr. Watkins Campbell failed to explain how her March 12, 2015 diagnosis and/or findings were 

attributable to the accepted left knee injury.11

Appellant submitted no additional impairment evaluations or ratings. As he failed to 

provide a rating in accordance with the applicable protocols and tables of the A.M.A., Guides, 

OWCP properly found that appellant had no ratable impairment attributable to his accepted left 

knee condition, and therefore, was not entitled to a schedule award. Accordingly, the Board will 

affirm the July 29, 2016 decision. 

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not established permanent impairment of the left lower 

extremity, warranting a schedule award under 5 U.S.C. § 8107. 

ORDER 

IT IS HEREBY ORDERED THAT the July 29, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: August 18, 2017 

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 

 11 See Veronica Williams, 56 ECAB 367, 370 (2005).