United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.E., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Fort Worth, TX, Employer 

__________________________________________ 

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Docket No. 16-1216 

Issued: December 2, 2016 

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 May 23, 2016 appellant, through counsel, filed a timely appeal from an April 1, 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. 

 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

ISSUE 

The issue is whether appellant has met his burden of proof to establish permanent 

impairment of his right leg warranting a schedule award. 

FACTUAL HISTORY 

On June 2, 1986 appellant, then a 24-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) under File No. xxxxxx926 alleging that he sustained a left knee injury on 

that date when he lost his footing and landed on his left knee. In a September 29, 1986 decision, 

OWCP denied the claim as it had not received medical evidence to establish a left knee condition 

causally related to the established June 2, 1986 employment incident. 

Following OWCP’s decision, additional medical evidence was received into the record. 

On June 2, 1986 appellant was seen by Dr. Christian J. Renna, an osteopath specializing in neuro 

musculoskeletal and preventive medicine. He was seen again by Dr. Renna the next day, June 3, 

1986, after x-rays had been taken and a fibula head fracture with peroneal nerve contusion had 

been diagnosed. Appellant was placed in a full cast on that date and asked to return for removal 

of the cast in two weeks, with no weight bearing during the two-week period. 

On June 27, 1986 Dr. Renna completed a request for examination and/or treatment (Form 

CA-16). He noted having examined appellant the day after the initial injury and having put 

appellant into a full leg cast.3

 Dr. Renna reexamined appellant and reported tenderness in the 

right fibula, numbness, and slight stiffness after he had slipped on water and fell while walking 

in a tunnelway. He diagnosed a right fibula fracture and checked a box marked “yes” indicating 

that the diagnosed condition was caused or aggravated by the employment activity described. 

In a September 23, 1986 report, Dr. Renna noted a history that appellant fell at work on 

June 2, 1986 and complained about right knee pain. He reported examination findings which 

included a right knee x-ray that revealed a fibula head fracture with a peroneal nerve contusion. 

Dr. Renna found that appellant’s fracture had healed satisfactorily and he was released to return 

to work on June 29, 1986. 

Thereafter, the claim was essentially dormant until 2013. By letter dated June 27, 2013, 

appellant requested reconsideration of the September 29, 1986 decision. He explained that his 

supervisor had completed his Form CA-1 and incorrectly stated that he had injured his left knee 

rather than his right knee. 

In a July 11, 2013 decision, OWCP vacated the September 29, 1986 decision and found 

that appellant had sustained a right knee condition causally related to his June 2, 1986 

employment incident, based on Dr. Renna’s reports. By letter of the same date, it accepted his 

 3

 Appellant had returned to Dr. Renna on June 6, 2016 and explained that he had fallen over an ant hill and ants 

had gotten into the cast and were biting him. He then took a tin snips and removed the cast himself, but he noted 

that he had remained on crutches nonetheless. Dr. Renna replaced the full leg cast at that time. However, on 

June 16, 1986 appellant again returned with the cast having been broken due to unbearable itching. The cast was 

completely removed and appellant was placed into a knee immobilizer. 
3

claim for right closed fracture of the upper end tibia and fibula and injury to the right peroneal 

nerve.

4

 

On September 5, 2013 appellant filed a claim for a schedule award (Form CA-7) for his 

right knee. 

In a May 1, 2013 report, Dr. John W. Ellis, a family practitioner, provided a history of the 

June 2, 1986 employment incident and reviewed appellant’s medical records. He noted 

appellant’s complaints of continued pain, instability, and grittiness in his right knee. Dr. Ellis 

reported findings on examination of appellant’s left shoulder, elbow, wrist, and knee, right knee, 

and emotional conditions. The right knee had a scar over the distal patella, which resulted from 

a fall in 1982 during his military service. It was a small laceration that was treated topically with 

no sutures and caused only a mild cosmetic deformity. On the lateral aspect of the right knee, 

there was a scar at the lateral distal femur from where the fracture of the fibula occurred on 

June 2, 1986. There was crepitation on movement of the right knee. There was 115 degrees of 

flexion and full extension. There was also mild laxity of the medial collateral ligament. There 

were hyperpigmented and reddish birthmarks on the anterior right knee, tibial tuberosity, lateral, 

and slightly anterior right calf. Dr. Ellis diagnosed a fractured right fibula and internal 

derangement, traumatic arthritis and chondromalacia, and laxity of the medial collateral ligament 

of the right knee. He opined that appellant’s employment contributed to, aggravated and/or 

caused his injuries, disabilities, and impairments. Dr. Ellis concluded that appellant had been 

temporarily totally disabled for 45 days while his right leg was in a cast. 

By decision dated September 9, 2013, OWCP denied appellant’s claim for a schedule 

award. It found that his right knee conditions had not reached maximum medical improvement 

(MMI) based on Dr. Ellis’ May 1, 2013 report. In addition, Dr. Ellis’ report presented clear 

evidence of a new work injury in the form of occupational factors affecting the right knee. Thus, 

OWCP recommended that appellant file an occupational disease claim with supporting medical 

evidence. 

On December 17, 2014 appellant filed another Form CA-7 claim for a schedule award. 

In an October 27, 2014 report, Dr. Ellis provided a history of appellant’s claims for 

compensation, reviewed his medical records, and reported findings on physical examination. He 

diagnosed a closed fracture of the upper end tibia and fibula and injury to the peroneal nerve. 

Dr. Ellis reiterated his diagnoses of traumatic arthritis and chondromalacia and medial collateral 

ligament laxity of the right knee. He also reiterated his opinion that appellant’s conditions, 

impairment, and disability were caused by his employment. Dr. Ellis advised that appellant may 

need right knee surgery in the future. He noted that appellant had reached MMI as of the date of 

his examination. Utilizing the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Ellis found that appellant had 14 

 4

 Prior to this claim, OWCP, under File No. xxxxxx772, had accepted that appellant sustained lumbar disc 

displacement on February 19, 1993. In decisions dated May 30 and December 23, 2014, it denied his claim for a 

schedule award for the lumbar condition. Under File No. xxxxxx408, OWCP had accepted that appellant sustained 

a left shoulder tear on September 6, 2003. It subsequently issued schedule award decisions reflecting that he had 18 

percent permanent impairment of the left arm. These other claims are not before the Board on the present appeal. 
4

percent permanent impairment of the right lower extremity due to mild laxity of the medial 

collateral ligament and a peroneal nerve injury. 

On February 10, 2015 appellant requested reconsideration of the September 9, 2013 

decision. 

On May 22, 2015 OWCP forwarded the file to Dr. Morley Slutsky, a Board-certified 

occupational medicine physician and district medical adviser (DMA), for a review of the medical 

record and an impairment rating. Dr. Slutsky responded on that same date noting that he had not 

received all of the medical evidence which Dr. Ellis had reviewed in making his impairment 

rating. 

Dr. Slutsky again asked OWCP on July 6, 2015 that a complete medical record be 

provided to him in order to complete the impairment rating. OWCP provide him with the 

additional medical records. 

OWCP received Dr. Slutsky’s report on July 24, 2015 in which he found that appellant 

had no right lower extremity impairment and that he had reached MMI. Dr. Slutsky explained 

that there were no diagnostic test findings or physical examination findings of a peroneal nerve 

injury, closed fracture of the upper end tibia and fibula, or impairment due to these conditions 

under File Nos. xxxxxx926 or xxxxxx772. He noted that Dr. Renna had found that the closed 

fracture of the upper end tibia and fibula had healed and released appellant to return to work. 

Dr. Slutsky advised that Dr. Ellis’ findings of laxity of the medial collateral ligament, crepitation, 

and loss of range of motion (ROM) were inconsistent with the other providers’ findings and, 

thus, were unrelated to the accepted fracture which had healed in 1986 without significant 

residual findings. 

On December 14, 2015 OWCP referred appellant to Dr. Mysore S. Shivaram, a Boardcertified orthopedic surgeon, for a second opinion. 

In a January 12, 2016 report, Dr. Shivaram reviewed a statement of accepted facts and 

appellant’s medical records. He noted appellant’s chief complaints regarding his left foot and 

calf. Appellant had no particular complaints regarding his right leg. On examination of the right 

lower extremity, Dr. Shivaram reported no evidence of swelling or deformity. Appellant’s gait 

was normal and he was able to perform heel and toe gait. A right knee examination revealed no 

obvious swelling or deformity. Skin condition was normal. There was no evidence of intraarticular effusion. ROM was normal. Extension was 0 degrees and flexion was 135 degrees. 

The knee was stable for valgus. There was varus stress with the knee in extension and flexion. 

Appellant was able to dorsiflex, invert, and evert the ankle without any difficulty. There 

was no evidence of tingling or numbness in the peroneal nerve distribution. Appellant 

complained about periodic numbness in his right fifth toe. He had intact sensation in this toe. 

The dorsalis pedis and posterior tibial pulse were 2+. Right foot sensory examination was 

normal. Appellant had relatively normal right hip ROM. However, he complained about right 

knee pain when his hips and knees were flexed. There was no evidence of right knee instability. 

A Lachman test and anterior drawer sign were negative. There was no evidence of laxity of the 

medial collateral ligament as indicated by Dr. Ellis. X-rays of the right knee and proximal tibia 
5

and fibula were normal. There was no evidence of deformity of the right proximal fibula. 

Dr. Shivaram advised that overall appellant had excellent healing of the previously reported 

fracture of the head of the fibula. He found “absolutely no evidence of peroneal nerve injury to 

the right leg.” 

Dr. Shivaram diagnosed a normal right knee examination and advised that appellant had 

reached MMI on December 2, 1986 approximately six months following his nondisplaced 

fractured head of the fibula. He noted that he had no preexisting permanent impairment. 

Dr. Shivaram found no evidence of permanent disability. He noted that “[appellant] had 

overreaction to pain and there was significant symptom magnification during the proceedings.” 

Utilizing Table 16-3, page 510 of the sixth edition of the A.M.A., Guides, Dr. Shivaram 

determined that a tibial plateau fracture would most closely match appellant’s injury. He found a 

class 0 impairment for nondisplaced fracture with no significant objective abnormal findings at 

MMI. This resulted in no impairment. Dr. Shivaram also found a class 0 impairment for 

peroneal nerve injury under Table 16-12, page 535 as there were no objective sensory or motor 

deficits. This resulted in no impairment. Dr. Shivaram noted that while Dr. Ellis’ clinical right 

knee examination revealed crepitation on movement, mild laxity of the medial collateral 

ligament, and -6 degrees to 104 degrees of ROM, his examination did not reveal any of these 

findings. He reiterated his findings of no instability of the knee, no chondromalacia as described 

by Dr. Ellis, and no clinical indication of an injury to the peroneal nerve. A review of the 

medical records indicated that there was only a fracture of the head of the fibula and not a closed 

fracture of the tibia and fibula. There was no indication that appellant required further right knee 

surgery. Based on the above findings, Dr. Shivaram concluded that there was no evidence of 

right knee disability or permanent impairment. 

On March 23, 2016 Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon and 

DMA, reviewed the medical record and agreed with Dr. Shivaram’s January 12, 2016 opinion 

that appellant had no right lower extremity impairment under the sixth edition of the A.M.A., 

Guides. He advised that Dr. Ellis’ October 27, 2014 findings were suspect as no other examiner 

who came in contact with appellant observed Dr. Ellis’ findings on physical examination of the 

right lower extremity. Dr. Orenstein noted that almost every response in a pain disability 

questionnaire was a 9 or 10, which was consistent with Dr. Shivaram’s observation that appellant 

had overreacted to pain. 

In an April 1, 2016 decision, OWCP denied appellant’s claim for a schedule award. It 

found that the weight of the medical evidence rested with the opinions of Drs. Shivaram and 

Orenstein who determined that appellant had no impairment of the right leg. 

LEGAL PRECEDENT 

The schedule award provision of FECA5

 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, 

 5

 5 U.S.C. § 8107. 
6

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

regulations as the appropriate standard for evaluating schedule losses.7

 For decisions issued after 

May 1, 2009, the sixth edition is used to calculate schedule awards.8

 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.9

It is the claimant’s burden to establish that he or she has sustained a permanent 

impairment of the scheduled member as a result of any employment injury.10 OWCP procedures 

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

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

on which this date occurred (date of MMI), describe 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.

11

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.12 

ANALYSIS 

The Board finds that appellant has not established ratable right leg permanent 

impairment. OWCP accepted his claim for right closed fracture of the upper end tibia and fibula 

and injury to the right peroneal nerve. The Board finds that the weight of the medical evidence 

rests with the opinions of Dr. Shivaram, an OWCP referral physician, and Dr. Orenstein, the 

DMA, who properly applied the sixth edition of the A.M.A., Guides. 

In an October 27, 2014 report, Dr. Ellis, appellant’s treating physician, examined 

appellant and found that he had 14 percent permanent impairment of the right leg under the sixth 

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

7 Id.

8

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

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

(February 2013). 

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

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

permanent impairment of the same member or function. 

10 Tammy L. Meehan, 53 ECAB 229 (2001). 

11 Supra note 7 at Chapter 2.808.5 (February 2013). 

12 Id. at Chapter 2.808.6(f) (February 2013). 
7

edition of the A.M.A., Guides due to the diagnosed mild laxity of the medial collateral ligament 

and a peroneal nerve injury. 

Dr. Slutsky, a DMA, reviewed Dr. Ellis’ findings on July 2, 2015 and disagreed with his 

impairment rating and date of MMI. He found that appellant had no right lower extremity 

impairment under the sixth edition of the A.M.A., Guides and that appellant had reached MMI. 

Dr. Slutsky reasoned that there were no diagnostic or physical examination findings of a 

peroneal nerve injury, closed fracture of the upper end tibia and fibula, or impairment due to 

these conditions. He noted Dr. Renna’s finding that the closed fracture of the upper end tibia and 

fibula had healed and that appellant could return to work. Dr. Slutsky concluded that Dr. Ellis’ 

findings of laxity of the medial collateral ligament, crepitation, and loss of ROM were 

inconsistent with the other providers’ findings and, thus, were not related to the accepted 

fracture, which had healed in 1986 without significant residual findings. 

In a January 12, 2016 report, Dr. Shivaram, a second opinion physician, reviewed the 

medical record and reported essentially normal findings on examination with the exception of 

varus stress with the right knee in extension and flexion and appellant’s complaint of right knee 

pain when his hips and knees were flexed. He reported normal right knee x-rays. Dr. Shivaram 

diagnosed a normal right knee examination and advised that appellant’s fracture of the head of 

the fibula had healed excellently. He determined that appellant had reached MMI on 

December 2, 1986. Dr. Shivaram found that appellant had overacted to pain and exhibited 

significant symptom magnification during his examination. He utilized Table 16-3, page 510 of 

the sixth edition of the A.M.A., Guides and determined that a diagnosis of tibial plateau fracture 

closely matched appellant’s injury and resulted in a class 0 impairment for nondisplaced fracture 

with no significant objective abnormal findings at MMI. Dr. Shivaram found that this 

represented zero percent impairment. He noted that unlike Dr. Ellis’ examination of the right 

knee, his examination did not reveal crepitation on movement, mild laxity of the medial 

collateral ligament, -6 degrees to 104 degrees of ROM, and chondromalacia. Dr. Shivaram also 

found no instability of the knee. He related that his review of the medical records only indicated 

a fracture of the head of the fibula and not a closed fracture of the tibia and fibula. He advised 

that there was no indication that appellant required further right knee surgery. Dr. Shivaram 

concluded that there was no evidence of permanent impairment based on his findings. On 

March 23, 2016 Dr. Orenstein, a DMA, reviewed Dr. Shivaram’s January 12, 2016 report and 

agreed with his impairment rating. 

The Board finds that the weight of the medical evidence is represented by the reports of 

Drs. Shivaram and Orenstein who reviewed the findings on examination and properly applied the 

A.M.A., Guides. These physicians agreed that appellant has no permanent impairment of his 

right lower extremity due to his accepted right closed facture of the upper end tibia and fibula 

and right injury to the peroneal nerve. There is no current medical evidence of record, in 

conformance with the A.M.A., Guides, which supports greater impairment. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the 

reasons stated above, the Board finds that counsel’s contentions are not substantiated. 
8

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. 

CONCLUSION 

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment of his right leg warranting a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the April 1, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 2, 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