United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Bethesda, MD, Employer 

__________________________________________ 

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Docket No. 15-1502 

Issued: April 12, 2016 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 July 6, 2015 appellant filed a timely appeal of a June 19, 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(e), the Board has jurisdiction 

to consider the merits of the case. 

ISSUE 

The issue is whether appellant has established more than eight percent permanent 

impairment of his right leg. 

FACTUAL HISTORY 

This case has previously been before the Board. On August 17, 1995 appellant injured 

his right knee. He filed a claim for benefits on August 18, 1995 which OWCP accepted for right 

knee sprain. 

 1

 5 U.S.C. § 8101 et seq. 
2

A magnetic resonance imaging (MRI) scan taken of appellant’s right knee on 

November 14, 1995 was interpreted by Dr. Timothy J. Greenan, a Board-certified diagnostic 

radiologist, as revealing mild tricompartmental osteoarthritis, and degenerative change of the 

posterior horns of the medial and lateral menisci. 

On February 15, 1997 Dr. Irvin A. Guterman, Board-certified in orthopedic surgery, 

performed a partial lateral meniscectomy, right knee arthroscopy and partial resection of a 

hypertrophic synovium. Appellant underwent a procedure to repair a right knee posterior of the 

lateral meniscus and hypertrophic synovium. 

By decision dated December 3, 2002, OWCP granted a schedule award for two percent 

permanent impairment of the right lower extremity. In a decision dated September 29, 2003,2

 the 

Board set aside the December 3, 2002 OWCP decision and remanded the case for further 

development. The Board found that OWCP had not explained why it selected a diagnosis-based 

leg impairment rating of two percent was utilized rather than an eight percent anatomic rating for 

thigh atrophy. By decision dated March 10, 2004, OWCP issued a schedule award for an 

additional six percent permanent impairment to the right leg. 

On August 28, 2006 appellant filed a Form CA-7 claim for an additional schedule award. 

By decision dated May 14, 2008, OWCP denied the claim for an additional schedule award. 

Appellant appealed to the Board and in a decision dated December 5, 2008,3

 the Board affirmed 

the May 14, 2008 OWCP decision. 

On October 11, 2010 appellant again requested an additional schedule award for 

permanent impairment of his right leg. 

In an October 11, 2010 report, Dr. Guterman advised that appellant had continued 

complaints of the right knee, including periodic episodes of exacerbation depending on his 

activities. On examination he measured a range of motion of 0 to 115 degrees in the right knee, 

with thigh circumference of 58 centimeters on the right and 60 centimeters on the left, 10 

centimeters above the patella. Dr. Guterman concluded that appellant had residual symptoms, 

quadriceps weakness, and mild degenerative joint disease, right knee, status post lateral 

meniscectomy. 

In a November 3, 2010 report, Dr. Guterman rated an 11 percent permanent impairment 

pursuant to the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (sixth edition) (A.M.A., Guides). He found that under Table 16-3, page 509 of the 

A.M.A., Guides appellant’s condition warranted three percent impairment for his partial lateral 

meniscectomy. Dr. Guterman rated a functional history grade modifier of 2 at Table 16-6, page 

516; a grade modifier of 1 for physical examination at Table 16-7, page 517; a grade modifier of 

1 for range of motion and 2 for muscle atrophy. This amounted to an additional 8 percent 

impairment of the lower extremity, for a total of 11 percent permanent impairment of the right 

lower extremity. 

 2

 Docket No. 03-1006 (issued September 29, 2003). 

3

 Docket No. 08-1651 (issued December 5, 2008). 
3

In a report dated February 27, 2012, Dr. Christopher R. Brigham, Board-certified in 

occupational medicine and an OWCP medical adviser, reviewed Dr. Guterman’s reports and 

found that appellant did not have any additional impairment of the right leg pursuant to the sixth 

edition of the A.M.A., Guides. He rated a class 1, two percent default impairment for appellant’s 

partial meniscectomy at Table 16-3, with a default score of two percent lower extremity 

impairment, finding that Dr. Guterman’s three percent right lower extremity impairment was not 

consistent with the default value of the class 1 rating. Dr. Brigham further found that 

Dr. Guterman’s additional eight percent lower extremity impairment was not rendered in 

accordance with the method value in the A.M.A., Guides for applying the grade modifiers to the 

default value of the impairment rating. He opined that Dr. Guterman’s grade modifier of 1 for 

functional history was not appropriate because the medical reports of record did not document 

any antalgic gait or corrective footwear; he therefore assigned a grade modifier of 0 for 

functional history. With regard to the grade modifier for physical examination, Dr. Brigham 

reported that the grade modifier of 2 for atrophy of two centimeters difference in the 

circumference of the right thigh was not applicable because the medical reports of record showed 

no difference in calf circumference. In addition, he found that the reported range of motion 

measurements did not support range of motion deficit of the right knee. Dr. Brigham therefore 

assigned a grade modifier of 1 for minimal palpatory findings. This rendered a net adjustment of 

minus 1, grade B, for two percent permanent impairment for the right knee.4

 

By decision dated March 5, 2012, OWCP found that appellant had more than the eight 

percent permanent impairment previously awarded. 

Appellant appealed to the Board. In a decision dated November 20, 2012,5

 the Board 

affirmed the March 5, 2012 OWCP decision. The complete facts of this case as set forth in the 

Board’s September 29, 2003, December 5, 2008, and November 20, 2012 decisions are 

incorporated herein by reference. 

On August 9, 2013 appellant again requested an additional schedule award for permanent 

impairment of his right leg. 

In a report dated October 21, 2013, Dr. Guterman, relying on the same findings and 

conclusions he presented in his November 3, 2010 report, reiterated his opinion that appellant 

had 11 percent left lower extremity impairment under the A.M.A., Guides pursuant to Table 16-3 

at page 509, based on 3 percent impairment for partial lateral meniscectomy, a grade modifier of 

2 for functional history; a range of motion grade modifier of 1 for range of motion; a grade 

modifier of 2 for muscle atrophy for physical examination. This rendered an additional eight 

percent permanent impairment of the lower extremities is determined. 

In an additional October 21, 2013 report, Dr. Guterman noted that appellant had 

undergone x-rays of his right knee which reflected no significant changes with mild degenerative 

joint disease. 

In an October 4, 2014 report, Dr. Lawrence A. Manning, an OWCP medical adviser, 

reviewed Dr. Guterman’s October 21, 2013 report and found that appellant was not entitled to an 

 4

 A.M.A., Guides 510. 

5

 Docket No. 12-1191 (issued November 20, 2012). 
4

additional schedule award. He noted that Dr. Guterman rated impairment based on muscle 

atrophy and reported that he was not sure how he calculated an additional impairment based on 

muscle atrophy. Dr. Manning expressed his disagreement with this finding, asserting that this 

would be part of the physical examination finding and used as a grade modifier in adjusting the 

diagnosis-based impairment in this case for lateral meniscus tear. He noted that there was no 

reference in the A.M.A., Guides for a diagnosis-based impairment based on muscle atrophy at 

page 509, Table 16-3. Dr. Manning found that the impairment for partial lateral meniscectomy 

ranges from one percent to three percent; based on the grade modifier submitted by 

Dr. Guterman, that is a grade 1 modifier for physical examination and grade 2 modifier for 

functional history, which warrants a class 1, grade E impairment of three percent. He advised 

that although Dr. Guterman reported mild arthritis of the right knee, he did not specify the joint 

space measurements required to rate an impairment under the A.M.A., Guides. Dr. Manning 

therefore concluded that, given the information in the record, the total permanent impairment for 

right lower extremity was three percent. He advised that in the event that joint space 

measurements were provided, he would review these to see if any further degree of impairment 

was warranted. Dr. Manning determined that the date of maximum medical improvement was 

October 21, 2013, the date of Dr. Guterman’s report. 

By decision dated November 10, 2014, OWCP found that appellant had no additional 

impairment of the right leg greater than the eight percent previously awarded. 

In a report dated July 14, 2014, received by OWCP on December 23, 2014, Dr. Guterman 

advised that appellant continued to experience persistent right knee pain, particularly along the 

back and outer aspect of the knee. He reported no swelling in the knee but advised that there was 

some tightness and pain with increased walking, in addition to slight effusion. Dr. Guterman 

asserted that appellant’s knee was stable to varus and valgus stress testing and had adequate 

strength; he reiterated that appellant underwent x-ray tests which showed no significant changes 

in his mild degenerative joint disease. He advised that he had residual right knee symptoms 

consistent with strain, osteoarthritis, and status post meniscectomy. Dr. Guterman recommended 

treatment with ice, stretching, and strengthening exercises, and restricting the amount of time 

appellant spent on his feet. 

In a December 2, 2014 report, Dr. Guterman advised that appellant’s right knee 

symptoms were generally unchanged. He had complaints of right knee pain and swelling which 

increased with activity. Dr. Guterman reported that on examination his right knee showed slight 

effusion with no point tenderness and mild medial tenderness with McMurray’s testing. He 

noted that x-rays taken on October 21, 2013 showed persistent degenerative changes with three 

millimeter joint space. 

In an additional December 2, 2014 report, Dr. Guterman found that appellant had 10 

percent right lower extremity impairment. He based this rating on the three percent impairment 

for partial lateral meniscectomy, set forth previously, combined with seven percent impairment 

for a three millimeter cartilage interval in the right knee pursuant to Table 16-3 with “appropriate 

grade modification.”6

 This report was not reviewed by an OWCP medical adviser. 

On December 8, 2014 appellant requested a review of the written record. 

 6

 Dr. Guterman did not specify the grade modifiers upon which he relied in calculating this rating. 
5

By decision dated June 19, 2015, an OWCP hearing representative affirmed the 

November 10, 2014 decision. She noted that Dr. Guterman had provided an additional right 

lower extremity impairment rating in his December 2, 2014 report based on his review of the 

October 21, 2013 x-ray report which demonstrated a three millimeter joint space due to 

degenerative changes in the right knee; she asserted, however, that Dr. Guterman did not provide 

the actual x-ray report with the cartilage measurement or explain how the diagnosed right knee 

mild degenerative joint disease was caused or contributed to by the accepted August 17, 1995 

work incident. The hearing representative found that because right knee degenerative change 

was not an accepted condition, Dr. Guterman’s amended rating of December 2, 2014 did not 

warrant further review. 

LEGAL PRECEDENT 

The schedule award provision of FECA7

 and its implementing regulations8 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. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law to all claimants, good administrative practice 

necessitates 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 the implementing regulations as the 

appropriate standard for evaluating schedule losses.9

 The claimant has the burden of proving 

that the condition for which a schedule award is sought is causally related to his or her 

employment.10

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

competent medical evidence which describes the impairment in sufficient detail for the claims 

examiner to visualize the character and degree of disability.11 The claims examiner should 

review the case file to determine if medical evidence meeting the above criteria has been 

submitted. This includes a detailed report that includes a history of clinical presentation, 

physical findings, functional history, clinical studies, or objective tests, analysis of findings, and 

the appropriate impairment based on the most significant diagnosis, as well as a discussion of 

how the impairment rating was calculated.12 

OWCP procedures further provide that, after obtaining all necessary medical evidence, 

the file should be routed to an OWCP medical consultant for an opinion concerning the nature 

 7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). 

9 Id.

10 Veronica Williams, 56 ECAB 367, 370 (2005). 

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

Chapter 2.808.5(b) (February 2013). 

12 See id. at Chapter 2.808.6(a) (February 2013). 
6

and percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical 

consultant providing rationale for the percentage of impairment specified.13 

ANALYSIS 

The Board finds that this case is not in posture for decision. 

Appellant was previously granted schedule awards for eight percent permanent 

impairment of the right lower extremity. He requested an additional award and submitted 

Dr. Guterman’s December 2, 2014 report, which found 10 percent permanent impairment for the 

right lower extremity. This was based on his rating for three percent impairment for partial 

lateral meniscectomy, set forth previously, combined with seven percent impairment for a three 

millimeter cartilage interval in the right knee pursuant to Table 16-3 with “appropriate grade 

modification.” 

This report was not reviewed by an OWCP medical adviser. In a June 19, 2015 decision, 

an OWCP hearing representative found that Dr. Guterman’s additional right lower extremity 

impairment rating, based on his review of an October 21, 2013 x-ray report showing a three 

millimeter joint space due to degenerative changes in the right knee, did not warrant an 

additional schedule award. She noted that Dr. Guterman did not provide the actual x-ray report 

with the cartilage measurement or explain how the diagnosed right knee mild degenerative joint 

disease was caused or contributed to by the accepted August 17, 1995 work incident. The 

hearing representative concluded that because right knee degenerative change was not an 

accepted condition, Dr. Guterman’s modified rating did not warrant further review. It is not 

clear, however to what extent she considered the medical evidence of record in reaching her 

opinion. 

In determining the degree of permanent impairment, preexisting impairments of the body 

member are to be included in the evaluation of permanent impairment. The Board has held that 

the employer takes the employee as he finds him.14 In the November 14, 1995 MRI scan report 

of appellant’s knee, which was taken shortly after the August 17, 1995 injury, Dr. Greenan noted 

that appellant had mild tricompartmental osteoarthritis, as well as degenerative change of the 

medial and lateral menisci. This is clearly suggestive of a preexisting condition. 

The Board notes that, in an October 4, 2014 report, an OWCP medical adviser advised 

that although Dr. Guterman reported mild arthritis of the right knee, he did not specify the joint 

space measurements required to rate an impairment under the A.M.A., Guides. He asserted that 

in the event that joint space measurements were provided, these would be reviewed to determine 

whether any further degree of impairment was warranted. However, while Dr. Guterman 

subsequently did provide these joint space measurements in his December 2, 2014 report, OWCP 

did not refer them to its medical adviser to determine whether they were sufficient to warrant an 

additional schedule award. 

Proceedings under FECA are not adversary in nature nor is OWCP a disinterested arbiter. 

While the claimant has the burden to establish entitlement to compensation, OWCP shares 

 13 See id. at Chapter 2.808.6(f) (February 2013). 

14 See D.F., 59 ECAB 288 (2007). 
7

responsibility in the development of the evidence. It has the obligation to see that justice is done. 

Accordingly, once OWCP undertakes to develop the medical evidence further, it has the 

responsibility to do so in the proper manner.15 

The Board finds that given OWCP’s failure to refer the case to an OWCP medical adviser 

for review of Dr. Guterman’s updated reports in accordance with the instructions provided in the 

medical adviser’s October 4, 2014 report, the case should be remanded. Following this and any 

other further development as deemed necessary, OWCP shall issue an appropriate merit decision 

on appellant’s schedule award claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision regarding appellant’s request 

for an additional schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the June 19, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

in accordance with this decision of the Board. 

Issued: April 12, 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 

 15 John W. Butler, 39 ECAB 852 (1988).