United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.L., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINSITRATION MEDICAL 

CENTER, Orlando, FL, Employer 

__________________________________________ 

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Docket No. 17-0834 

Issued: August 11, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On March 6, 2017 appellant, through counsel, filed a timely appeal from a January 23, 

2017 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 more than one percent permanent impairment of her 

left lower extremity for which she previously received a schedule award. 

FACTUAL HISTORY 

The case has previously been before the Board.3

 The facts of the case as presented in the 

Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows. 

OWCP accepted that appellant sustained a left knee contusion and left knee derangement 

when she tripped on a chair in the performance of duty on October 13, 2006. Appellant 

underwent an authorized left knee arthroscopic surgery on February 9, 2007. She received leave 

buy-back compensation from February 9 to 23, 2007. 

On May 21, 2007 appellant filed a claim for a schedule award (Form CA-7). On 

October 30, 2007 OWCP denied appellant’s schedule award claim as no evidence had been 

submitted in support of the claim. On November 5, 2007 appellant requested a telephone 

hearing before an OWCP hearing representative. By decision dated June 12, 2008, OWCP’s 

hearing representative affirmed the denial of the schedule award claim, finding that the record 

was devoid of evidence establishing permanent impairment. 

By decision dated April 3, 2009, the Board affirmed the June 12, 2008 OWCP decision 

denying a schedule award for the left lower extremity.4

 The Board noted that the medical 

evidence of record did not contain a probative medical opinion as to an employment-related 

permanent impairment. 

Appellant submitted a May 12, 2010 report from Dr. Robert Murrah, a Board-certified 

orthopedic surgeon. Dr. Murrah noted that a magnetic resonance imaging (MRI) scan had shown 

some chondromalacia patella, with no tear of the meniscus. 

In an August 10, 2010 report, Dr. Murrah provided results on examination and diagnosed 

chronic left knee pain and swelling following the October 13, 2006 injury, and chondromalacia 

patella. He opined that appellant had reached maximum medical improvement and had five 

percent whole body permanent impairment. In an October 26, 2010 report, Dr. Murrah wrote 

that he had assigned appellant 11 percent left lower extremity permanent impairment under the 

sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter A.M.A., Guides) (2009). 

By report dated April 13, 2012, an OWCP medical adviser, Dr. Howard Hogshead, a 

Board-certified orthopedic surgeon, opined that appellant had one percent left lower extremity 

permanent impairment. He applied Table 16-3 of the A.M.A., Guides, to determine a diagnosisbased impairment (DBI) rating for the knee. 

 3

 Docket No. 13-0894 (issued July 8, 2013); Docket No. 08-2054 (issued April 3, 2009). 

4

 Docket No. 08-2054 (issued April 3, 2009). 
3

In a decision dated July 10, 2012, OWCP issued a schedule award for one percent left 

lower extremity permanent impairment. The period of the award was 2.88 weeks from 

August 10, 2010. An OWCP hearing representative affirmed the schedule award determination 

in a February 5, 2013 decision. Appellant appealed to the Board. 

The Board subsequently set aside the February 5, 2013 decision.5 The Board found that 

OWCP’s medical adviser had not fully explained how Table 16-3 had been applied with respect 

to the net adjustment for the diagnosed condition. It was noted that the medical adviser had 

found clinical studies not applicable, although Dr. Murrah had referred to MRI scan results. 

OWCP referred the case to another OWCP medical adviser, Dr. James Dyer, a Boardcertified orthopedic surgeon. By report dated July 25, 2013, Dr. Dyer opined that the left lower 

extremity permanent impairment under Table 16-3 was one percent. In an August 8, 2013 

report, he opined that there was no tear of the meniscus and no basis for an additional permanent 

impairment. 

By decision dated August 14, 2013, OWCP found that appellant was not entitled to an 

additional schedule award. It found the medical evidence of record did not establish more than 

one percent left lower extremity permanent impairment. 

Appellant, through counsel, on September 3, 2013 requested an oral hearing before an 

OWCP hearing representative. A hearing was held on February 13, 2014. Counsel argued that 

the case should be referred for a second opinion examination. 

By decision dated April 7, 2014, the hearing representative affirmed the August 14, 2013 

OWCP decision. He found the weight of the evidence was represented by OWCP’s medical 

adviser, Dr. Dyer. 

On December 16, 2015 appellant submitted a report dated February 13, 2015 from 

Dr. Samy Bishai, an orthopedic surgeon. Dr. Bishai provided results on examination, including 

left knee range of motion (ROM). He opined that appellant had 20 percent left lower extremity 

permanent impairment under Table 16-23 of the A.M.A., Guides, for loss of knee ROM. 

In a report dated June 4, 2015, Dr. Murrah provided a history and results on examination. 

He reported full ROM of the left knee. The record also contains a report from Dr. Murrah dated 

December 10, 2015, reporting full ROM of the left knee. 

The case was referred to an OWCP medical adviser, Dr. Jovito B. Estaris, Board-certified 

in occupational medicine. In a report dated February 27, 2016, Dr. Estaris found that appellant 

had one percent permanent impairment under Table 16-3. He reviewed Dr. Murrah’s report and 

indicated the diagnosis was contusion, with a class 1 default impairment of one percent. 

Dr. Estaris applied grade modifier 1 for physical examination, functional history, and clinical 

studies, resulting in no adjustment from the default impairment. 

 5

 Docket No. 13-0894 (issued July 8, 2013). 
4

By decision dated March 14, 2016, OWCP found that appellant was not entitled to 

additional left lower extremity permanent impairment. It found that the probative medical 

evidence did not establish more than one percent permanent impairment of the left lower 

extremity. 

On March 31, 2016 counsel again requested a hearing before an OWCP hearing 

representative. A hearing was held on November 9, 2016. Counsel argued the medical evidence 

was sufficient to require further development. 

By decision dated January 23, 2017, the hearing representative affirmed the March 14, 

2016 OWCP decision. He found that OWCP’s medical adviser properly utilized the findings of 

Dr. Murrah and the medical evidence did not establish more than one percent left lower 

extremity permanent impairment. 

LEGAL PRECEDENT 

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.6

 Neither FECA,7 nor its 

implementing regulations8 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 adopted the A.M.A., Guides as the uniform standard applicable to all 

claimants.9 For schedule awards after May 1, 2009, the impairment is evaluated under the sixth 

edition.10 

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

16-3. The class of impairment (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).11 

 6

 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). 

7 Id. 

8

 20 C.F.R. § 10.404. 

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

10 FECA Bulletin No. 09-03 (March 15, 2009). 

11 The net adjustment is up to +2 (grade E) or -2 (grade A). 
5

ANALYSIS 

OWCP accepted that appellant’s left knee contusion and left knee derangement had 

occurred in the performance of duty on October 13, 2006. Appellant underwent left knee 

arthroscopic surgery on February 9, 2007. She received a schedule award for one percent 

permanent impairment of the left lower extremity. The issue is whether appellant has established 

greater permanent impairment for purposes of an increased schedule award. 

The Board finds that appellant has not established more than one percent permanent 

impairment of the left lower extremity for which she previously received a schedule award. 

Following the Board’s last review of this schedule award claim, OWCP requested and 

received a July 25, 2013 report from Dr. Dyer, an OWCP medical adviser. Dr. Dyer explained 

that appellant did not have a tear of the meniscus and, therefore, had one percent permanent 

impairment pursuant to Table 16-3. 

In support of her claim, appellant submitted a February 13, 2015 report from Dr. Bishai, 

opining that appellant had 20 percent left lower extremity permanent impairment. 

The February 13, 2015 report, however, is of diminished probative value to the issue 

presented. Dr. Bishai applied Table 16-23, for knee motion impairment. He did not, however, 

discuss how the ROM measurements for knee flexion were made.12 Moreover, as noted by 

OWCP’s medical adviser, subsequent reports from appellant’s attending physician, Dr. Murrah, 

reported full ROM of the left knee. Dr. Murrah reported full ROM in reports dated June 4 and 

December 10, 2015. It is unclear whether any reported limitation of knee ROM by Dr. Bishai 

were in accord with the A.M.A., Guides. 

The Board has previously held that the diagnosis-based impairment (DBI) methodology 

is the primary method of lower extremity permanent impairment evaluation.13 Dr. Bishai did not 

explain why use of the ROM method was appropriate in the present case. The ROM method is 

used to determine actual impairment values of the lower extremities only when it is not possible 

to otherwise define impairment.14 

For these reasons, the Board finds Dr. Bishai’s opinion is insufficient to establish the 

degree of left lower extremity permanent impairment in this case. OWCP’s medical adviser did 

provide a rationalized medical opinion on this issue. In his February 27, 2016 report, Dr. Estaris 

indicated that he had applied Table 16-3, the DBI table, to the knee examination findings by 

Dr. Murrah. The medical adviser noted that the grade C (default) impairment for history of knee 

contusion or other soft tissue lesion was one percent.15 Applying the net adjustment formula,16 

 12 A.M.A., Guides 546, Figure 16-8 discusses measuring knee flexion. 

13 Id. at 497. 

14 See P.M., Docket No. 16-0367 (issued March 27, 2017). 

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

16 Supra note 9. 
6

Dr. Estaris used grade modifier one for functional history, physical examination, and clinical 

studies. This results in no adjustment from the default impairment. 

The Board finds that the weight of the evidence is represented by Dr. Estaris. Dr. Estaris 

properly explained how he applied Table 16-3 to determine the degree of appellant’s left lower 

extremity permanent impairment. Based on the evidence of record, appellant has not established 

more than one percent left lower extremity permanent impairment. 

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 more than one percent permanent 

impairment of her left lower extremity for which she previously received a schedule award. 

ORDER 

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

Compensation Programs dated January 23, 2017 is affirmed. 

Issued: August 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board