United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.P., Appellant 

and 

DEPARTMENT OF ENERGY, WESTERN 

AREA POWER ADMINISTRATION, 

Cheyenne, WY, Employer 

__________________________________________ 

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Docket No. 15-1592 

Issued: February 12, 2016 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, 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 

COLLEEN DUFFY KIKO, Judge 

JURISDICTION 

On July 21, 2015 appellant, through counsel, filed a timely appeal from a May 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. 

ISSUE 

The issue is whether appellant has met his burden of proof to establish more than two 

percent impairment of the right leg, for which he received a schedule award. 

On appeal, counsel contends that appellant has greater impairment. He requests that the 

Board remand the case and direct OWCP to approve an impairment rating as outlined by an 

OWCP referral physician. 

 1

 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY 

OWCP accepted that on June 21, 2013 appellant, then a 43-year-old journeyman lineman, 

sustained right ankle sprain, right knee contusion, and right lateral meniscus derangement when 

he fell 25 to 30 feet from a power pole.2 It authorized right knee arthroscopy with partial lateral 

meniscectomy and anteromedial plica resection, and right knee chondroplasty, undersurface 

patella, medial femoral condyle, and lateral tibial plateau performed on February 5, 2014 by 

Dr. Ryan L. Hartman, a Board-certified orthopedic surgeon. 

On August 11, 2014 appellant filed a claim for a schedule award (Form CA-7) and 

submitted an impairment evaluation dated May 30, 2014 in which Dr. Kevin J. O’Toole, an 

attending physician Board-certified in occupational medicine, described his accepted right knee 

injuries. Dr. O’Toole examined the right and left knees. The right knee was without effusion. 

Active range of motion was measured in accordance with the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). 

Dr. O’Toole found appellant’s effort to be self-limited. Passive motion during McMurray’s 

testing showed movement well beyond his active endpoints, completely without resistance. 

Dr. O’Toole, therefore, relied on right knee measurements last reported by Dr. Hartman who 

found full extension and 128 degrees of flexion. The left knee measured +15 degrees of 

extension and 128 degrees of flexion. Suprapatellar circumference was measured at 20.5 inches 

in both legs. There was no joint line tenderness. Patellar grind was negative. The calf was 

supple and nontender. Dr. O’Toole assessed status post right knee arthroscopy which included 

chondroplasty for grade 3 changes of the lateral tibial plateau and grade 3 changes of the lateral 

patellar facet, medial femoral condyle, and undersurface of the patella. He also assessed status 

post “15 percent lateral meniscectomy” and status post resection of anteromedial plica. 

Dr. O’Toole noted that appellant had completed postoperative rehabilitation, was released 

to full duty, and had reached maximum medical improvement as determined by Dr. Hartman and 

Dr. Tracey L. Stefanon, a physician Board-certified in occupational medicine.3

 

Dr. O’Toole rated appellant’s impairment under the sixth edition of the A.M.A., Guides.

4

 

He noted that, under Table 16-3, Knee Regional Grid, the most appropriate category would be 

for the diagnosis of primary knee joint arthritis as it was the most serious condition. Dr. O’Toole 

advised that appellant had a class 1 impairment due to a three-millimeter cartilage interval, fullthickness articular cartilage defect with a default value of seven percent. He found a grade 

modifier 1 for Functional History (GMFH) based on appellant’s responses to a lower limb 

questionnaire in which he reported moderate pain going up or down stairs. Dr. O’Toole 

expected these symptoms to improve with time. He found a grade modifier 0 for Physical 

Examination (GMPE) as appellant’s physical examination findings were consistently 

unremarkable compared to the examinations performed by Drs. Hartman and Stefanon. 

 2

 Appellant stopped work on June 21, 2013 and returned to full-time, light-duty work on July 29, 2013. As of 

September 4, 2013 he performed full-time work with no restrictions. 

3

 On May 5, 2014 Dr. Hartman released appellant to return to full-duty work with no restrictions or need for 

further medical treatment. 

4

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

Dr. O’Toole found a grade modifier 2 for Clinical Studies (GMCS) as magnetic resonance 

imaging (MRI) scan findings were consistent with his diagnosis with moderate changes evident. 

He then applied the net adjustment formula and concluded that appellant had seven percent right 

lower extremity permanent impairment which represented three percent whole person 

impairment. 

In an August 26, 2014 report, Dr. Morley Slutsky, a physician Board-certified in 

occupational medicine and an OWCP medical adviser, reviewed the medical record, including 

Dr. O’Toole’s May 30, 2014 report. He noted that Dr. O’Toole rated appellant as if he had a full 

thickness articular cartilage defect or three millimeters of joint space narrowing in the right knee 

joint. Dr. Slutsky advised that the right knee surgical report identified grade 3 changes 

equivalent to partial thickness articular cartilage defects and not full thickness defects. He 

related that Dr. O’Toole did not document the knee x-rays performed on May 30, 2014 and joint 

space measurements taken in all three knee compartments. Dr. Slutsky suggested that he be 

asked whether he performed right knee x-rays on May 30, 2014 and if so, to provide his 

measurements for all three right knee compartments. If Dr. O’Toole had not performed such xrays, then he should be asked to explain how he determined that there were three millimeters of 

joint space narrowing in the primary knee joint. 

Dr. Slutsky used the diagnosis-based method in the sixth edition of the A.M.A., Guides to 

rate impairment of appellant’s right knee with a diagnosis of partial lateral meniscectomy, the 

most impairing diagnosis, which resulted in a class 1 impairment. He found a grade modifier 1 

for functional history under Table 16-6, page 516 and a grade modifier 0 for physical 

examination under Table 16-7, page 517. Dr. Slutsky found that no grade modifier was 

applicable for clinical studies. He applied the net adjustment formula and found that appellant 

had two percent right leg impairment which represented three percent whole person impairment. 

Dr. Slutsky concluded that appellant reached maximum medical improvement on May 30, 2014. 

By letter dated March 12, 2015, QTC Medical Services, OWCP’s medical appointment 

scheduler, referred appellant, together with the case record, a list of questions, and a statement of 

accepted facts, to Dr. John D. Douthit, a Board-certified orthopedic surgeon, for a second 

opinion evaluation.5

 

In an April 6, 2015 report, Dr. Douthit noted examining appellant on April 2, 2014. He 

reviewed appellant’s history and the medical record. On examination, Dr. Douthit found that 

appellant was overweight and had a slight limp favoring his left leg. Appellant had mild 

stiffness of the back, but full range of motion of the hips and ankles. Right knee range of motion 

was 10/100 degrees and left knee range of motion was 0/130 degrees. Appellant could squat 

only to 90 degrees. His knee was stable. There was no joint effusion. There was 1+ crepitation 

of the right patellofemoral joint and 1+ crepitation of the left patellofemoral joint. No instability 

was noted. Drawer signs and a Lachman sign test were negative. Dr. Douthit summarized that 

 5

 The Board notes that appellant was originally referred to Dr. Alfred C. Lotman, a Board-certified orthopedic 

surgeon, for a second opinion evaluation, but his appointment was cancelled because Dr. Lotman did not perform 

impairment rating evaluations. Dr. Lotman was then referred him to Dr. Dirk W. Dolbeare, a Board-certified 

orthopedic surgeon, however, QTC Medical Services cancelled his appointment. 
4

appellant had significant chondromalacia of the medial, femoral, and patellofemoral joints as 

noted on the arthroscopic report and confirmed by the prior MRI scan. 

Dr. Douthit reviewed postoperative records and advised that appellant had never 

recovered to full function. He found that appellant had reached maximum medical improvement 

some time ago. There was documentation that appellant had chondromalacia tricompartmental 

of the right knee. He also had debridement with minimal lateral meniscectomy, persistent knee 

pain, and limited restricted motion. Appellant lacked 10 degrees of extension and only had 100 

degrees of flexion. He had a slight limp and was unable to return to work as a lineman because 

he could not climb with his right knee difficulties. Dr. Douthit reviewed comparative right and 

left knee x-rays and found no difference in the joint space. He measured both joint spaces at five 

millimeters, but found no narrowing. There was also no narrowing of the patellofemoral joint 

space. Dr. Douthit advised that it was evident from the objective arthroscopic findings that 

appellant had a degree of chondromalacia of the joint surfaces not yet evident by narrowing of 

the joint based on his x-rays and early osteoarthritis. He noted that the sixth edition of the 

A.M.A., Guides, specified that there must be joint space narrowing on weight-bearing x-rays to 

use the regional grid and diagnostic criteria for arthritis. The A.M.A., Guides, suggested 

alternatives, but Dr. Douthit was unable to find a satisfactory and consistent alternative 

diagnosis-based rating. The only alternative method for rating appellant’s right knee impairment 

was the stand-alone loss of motion method noted in sections 16.23 and 16.25 of the A.M.A., 

Guides. Dr. Douthit determined that 100 degrees of flexion and -10 degrees of extension yielded 

10 percent impairment of the right knee for mild loss of motion. He further determined that his 

functional, clinical, and physical findings correlated with a mild restriction of joint motion and 

there was no adjustment up or down. Dr. Douthit concluded that the diagnostic method of using 

regional grids was inequitable as appellant had no measureable joint space narrowing. 

On April 24, 2015 Dr. Slutsky again reviewed the medical record, including 

Dr. Douthit’s April 6, 2015 findings. He disagreed with Dr. Douthit’s 10 percent permanent 

impairment rating of the right lower extremity as it was based on the range of motion method 

using invalid right knee range of motion measurements and a different diagnosis. Dr. Slutsky 

noted range of motion measurements taken during appellant’s previous examinations on 

December 30, 2013 to February 9, 2015, including Dr. O’Toole’s May 30, 2014 measurements. 

He found that his best range of motion was within normal limits (no extension lag and flexion of 

at least 110 degrees or greater) based on the medical documents from more than one year ago. 

This was in contrast to Dr. Douthit’s findings of right knee motion of -10 to 100 degrees. 

Dr. Slutsky advised that his findings may represent a temporary exacerbation of 

appellant’s condition, but did not reflect consistent range of motion findings and appellant’s best 

effort. Thus, he opined that Dr. Douthit’s use of range of motion measurements to rate 

impairment of the knee was based on inconsistent and unreliable findings. Additionally, 

Dr. Slutsky documented only one set of measurements, while the A.M.A., Guides, required that 

three tests of active range of motion measurements be obtained, and the greatest number be used 

for final rating calculations. Further, he reported that the A.M.A., Guides, indicate that range of 

motion be used primarily as a grade modifier and not as the primary impairment method. 

Dr. Slutsky reiterated his prior impairment calculations based on a diagnosis of partial lateral 

meniscectomy and concluded that appellant had two percent right leg impairment. He advised 

that appellant reached maximum medical improvement on April 2, 2015 the date of Dr. Douthit’s 
5

evaluation. Dr. Slutsky related that Dr. Douthit provided a detailed examination which allowed 

him to find that appellant’s right knee condition had stabilized at that time and no further 

treatment was planned. He concluded that appellant’s condition was not expected to change 

significantly from the date of maximum medical improvement. 

In a May 15, 2015 decision, OWCP granted appellant a schedule award for two percent 

impairment of the right lower extremity based on Dr. Slutsky’s opinion. 

LEGAL PRECEDENT 

The schedule award provision of FECA6

 and its implementing federal regulations set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions, and organs of the body. 

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 for all 

claimants under the law, good administrative practice requires the use of uniform standards 

applicable to all claimants.7

 The A.M.A., Guides has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.8

 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.9 It is well established that in 

determining the amount of a schedule award for a member of the body that sustained an 

employment-related permanent impairment, preexisting impairments of the body are to be 

included.10

In determining impairment for the lower extremities under the sixth edition of the 

A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower 

extremity to be rated. With respect to the ankle, the relevant portion of the leg (foot) for the 

present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 

501.11 After the Class of Diagnosis (CDX) is determined from the Foot and Ankle 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. The net adjustment formula is (GMFH-CDX) + 

(GMPE-CDX) + (GMCS-CDX).12 Under Chapter 2.3, evaluators are directed to provide reasons 

 6

 5 U.S.C. § 8107. 

7 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

8 Id. 

9 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3, Exhibit 1 

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

(February 2013). 

10 See Dale B. Larson, 41 ECAB 481, 490 (1990); id., Chapter 3.700.3.a.3 (January 2010). This portion of 

OWCP procedures provide that the impairment rating of a given scheduled member should include any preexisting 

permanent impairment of the same member or function. 

11 See A.M.A., Guides 501-7 (6th ed. 2008). 

12 Id. at 515-22. 
6

for their impairment rating choices, including choices of diagnoses from regional grids and 

calculations of modifier scores.13

Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities, 

provides that diagnosis-based impairment is “the primary method of calculation for the lower 

limb” and that most impairments are based on the diagnosis-based impairment where impairment 

class is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for 

functional history, physical examination and clinical studies. Chapter 16 further provides: 

“Alternative approaches are also provided for calculating impairment for 

peripheral nerve deficits, complex regional pain syndrome, amputation and range 

of motion. Range of motion is primarily used as a physical examination 

adjustment factor and is only used to determine actual impairment values when it 

is not possible to otherwise define impairment.”14

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

should be routed to a 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.15 

ANALYSIS 

The Board finds that appellant has no more than two percent impairment of the right leg. 

OWCP accepted his claim for right ankle sprain, right knee contusion, and right lateral meniscus 

derangement. It authorized right knee arthroscopy performed on February 5, 2014. The Board 

finds that the weight of the medical evidence rests with the opinion of Dr. Slutsky, OWCP’s 

medical adviser, who provided the only impairment rating that properly applied the sixth edition 

of the A.M.A., Guides. 

In a May 30, 2014 report, Dr. O’Toole, appellant’s treating physician, diagnosed primary 

knee arthritis (a three-millimeter cartilage full-thickness articular cartilage defect) and found that 

appellant had reached maximum medical improvement on that day. He classified his impairment 

as a class 1 default value of seven percent under Table 16-3, on page 510, of the A.M.A., Guides. 

Dr. O’Toole found a grade modifier 1 for functional history as appellant had moderate pain 

going up or down stairs, but no other activity problems. He found a grade modifier 0 for 

physical examination as his findings were consistently unremarkable compared to those of 

Drs. Harman and Stefanon. Dr. O’Toole found a grade modifier 2 for clinical studies as MRI 

scan findings were consistent with his diagnosis with moderate changes evidence. Applying the 

net adjustment formula resulted in a net adjustment of zero or a grade C impairment which 

equated to a seven percent of the right lower extremity. 

 13 Id. at 23-8. 

14 Id. at 497, 544-53. 

15 See supra note 10, Chapter 2.808.6(f) (February 2013). 
7

On August 26, 2014 Dr. Slutsky reviewed the medical record, including Dr. O’Toole’s 

report. He found that Dr. O’Toole’s impairment rating was not acceptable as it was based on a 

diagnosis of full-thickness articular cartilage defect and/or three millimeters of joint space 

narrowing in the primary joint of the right knee rather than a diagnosis of partial thickness 

articular cartilage defect as indicated by the February 5, 2014 surgical report. Dr. Slutsky further 

found that Dr. O’Toole had not provided specific joint space measurements in all three knee 

compartments. He used the diagnosis-based method in the sixth edition of the A.M.A., Guides,

to rate appellant’s impairment. Dr. Slutsky determined that a diagnosis of partial lateral 

meniscectomy resulted in a class 1 impairment. He found a grade modifier 1 for functional 

history under Table 16-6, page 516, and a grade modifier 0 for physical examination under Table 

16-7, page 517. Dr. Slutsky found that no grade modifier was applicable for clinical studies. He 

applied the net adjustment formula and concluded that appellant had two percent right lower 

extremity impairment based on findings in Dr. O’Toole’s evaluation. 

To determine the extent and degree of any employment-related impairment of appellant’s 

right lower extremity, OWCP referred appellant to Dr. Douthit for a second opinion evaluation. 

Examination of both knees revealed a range of motion of 10/100 degrees on the right and 0/130 

degrees on the left. Appellant could squat only to 90 degrees. His knee was stable. There was 

no joint effusion. There was 1+ crepitation each of the right and left patellofemoral joints. No 

instability was noted. Drawer signs and a Lachman sign test were negative. Dr. Douthit 

determined that 100 degrees of flexion and -10 degrees of extension yielded 10 percent 

permanent impairment of the right lower extremity under the sixth edition of the A.M.A., 

Guides. He advised that the diagnosed-based method was not equitable to rate appellant’s 

impairment as there was no measureable joint space narrowing. 

On April 24, 2015 Dr. Slutsky reviewed the medical record, including Dr. Douthit’s 

April 6, 2015 report and disagreed with his 10 percent right leg impairment rating. He explained 

that Dr. Douthit used invalid range of motion measurements, noting that previous measurements 

including those from Dr. O’Toole’s May 30, 2014 evaluation were within normal limits. 

Dr. Slutsky related that his right knee range of motion findings of -10 to 100 degrees may 

represent a temporary exacerbation of appellant’s condition, but did not reflect consistent range 

of motion findings and his best effort. He reasoned that, under the A.M.A., Guides, the 

diagnosis-based method was the preferred method for rating impairment while range of motion 

was used primarily as a grade modifier. Dr. Slutsky reiterated his prior calculations as set forth 

in his prior report of August 26, 2014, and concluded that appellant had two percent impairment 

of his right lower extremity under the A.M.A., Guides. 

The Board finds that Dr. Slutsky properly reviewed the medical record and evaluated 

appellant’s right lower extremity impairment in accordance with the A.M.A., Guides. There is 

no medical evidence in conformance with the A.M.A., Guides showing a greater impairment. 

Appellant has not met his burden of proof to establish greater than two percent right leg 

impairment. 

CONCLUSION 

The Board finds that appellant did not meet his burden of proof to establish more than 

two percent impairment of the right leg, for which he received a schedule award. 
8

ORDER 

IT IS HEREBY ORDERED THAT the May 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

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 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board