United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 15-0096 

Issued: May 20, 2016 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On October 17, 2014 appellant, through counsel, filed a timely appeal of a July 28, 2014 

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 to consider the merits of the case. 

ISSUE 

The issue is whether appellant sustained any permanent impairment causally related to 

her accepted torn right meniscus condition, thereby warranting a schedule award under 5 U.S.C. 

§ 8107. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

Appellant, a 33-year-old letter carrier, injured her right knee on April 27, 2006 when a 

coworker struck her leg with a postcon. She filed a claim for benefits under file number 

xxxxxx521, which OWCP accepted for right leg contusion. 

In the current claim, on December 16, 2009 appellant filed a claim for occupational 

disease (Form CA-2), alleging that she developed a right knee condition causally related to 

employment factors. He claimed that, after his 2006 injury, the pain never stopped. OWCP 

requested further information from appellant by letter dated January 19, 2010. 

A report dated November 25, 2009, received by OWCP on March 1, 2010 reflected that 

appellant had undergone a magnetic resonance imaging (MRI) scan which showed a torn right 

lateral meniscus. 

By decision dated April 8, 2010, OWCP denied appellant’s occupational disease claim, 

finding that she had failed to establish fact of injury. It found the factual information failed to 

provide a clear and detailed description of work factors and suggested her condition was related 

to her prior accepted injury, not due to new work factors. OWCP noted that appellant had filed a 

recurrence claim which had not yet been finally adjudicated. 

On May 6, 2010 appellant, through counsel, requested an oral hearing, which was held on 

October 28, 2010. 

In a June 30, 2010 report, Dr. Robert L. Hecht, Board-certified in physical medicine and 

rehabilitation, advised that he had initially treated appellant on May 2, 2006 for an April 27, 

2016 work injury. He reported that when he examined her again on January 19, 2010 she had 

begun to develop pain in her back because she had been favoring both knees. Dr. Hecht related 

that the strenuous activities in which appellant engaged at work had aggravated the pain in her 

back and right knee. He advised that appellant had been involved in a nonwork-related motor 

vehicle accident in 1995, in which she injured her lower back and right knee but that these 

problems had resolved prior to the April 27, 2006 work incident. Dr. Hecht noted that the 

November 25, 2009 right knee MRI scan showed a lateral meniscal tear and that the left knee 

MRI scan taken on December 14, 2009 was unremarkable. 

Dr. Hecht opined that appellant had sustained an initial injury at work to her right knee 

and that, due to increased responsibilities, strenuous work, and favoring her right knee, she had 

developed consequential injuries to her left knee and lower back. He opined that she had been 

unable to work since December 16, 2009 because of her back and knee injuries. 

By decision dated January 26, 2011, an OWCP hearing representative vacated the 

April 8, 2010 decision. She found that, although the medical evidence appellant submitted was 

insufficient to meet her burden of proof to establish the occupational disease claim, the evidence 

raised an uncontroverted inference between the claimed conditions and the identified 

employment factors sufficient to require OWCP to further develop the medical evidence. 

OWCP’s hearing representative found that Dr. Hecht’s June 30, 2010 report contained a 

sufficiently accurate description of her work duties to support his opinion that appellant had 
3

developed a back strain and knee conditions as the result of her work duties and favoring her 

right leg. She, however, found that his report did not provide sufficient reasoning to support his 

opinion that appellant sustained derangement of both knees. 

OWCP’s hearing representative advised that, while the November 25, 2009 right knee 

MRI scan showed a lateral meniscus tear, it was unclear as to whether this was due to the 

April 2006 work incident, the work she performed after she returned to work, or a combination 

of both. She further determined that because the instant case and the traumatic claim under file 

number xxxxxx521 were so closely related, the cases should be consolidated. OWCP’s hearing 

representative remanded the case for preparation of a new statement of accepted facts, which 

should include details of how both injuries occurred and a description of appellant’s work duties, 

and referral to a second opinion examiner, to determine whether her work duties as a letter 

carrier caused an injury to her back or her left knee by way of direct cause, aggravation, or 

acceleration and to determine what role, if any, the right knee injury played in the development 

of any further conditions. She also directed OWCP to determine whether the right knee 

meniscus tear was caused by either the April 26, 2006 traumatic work incident or by the work 

duties that she performed after she returned to work, or by a combination of both. The hearing 

representative instructed OWCP to issue a de novo decision following the development of the 

medical evidence. 

OWCP referred appellant to Dr. David Lotman, a Board-certified orthopedic surgeon, for 

a second opinion evaluation. In a report dated March 1, 2011, Dr. Lotman related that appellant 

had complaints of spasms in the right knee, deep to the patella, which were provoked by 

walking. He also noted that she experienced swelling of the knee at night and locking of the 

knee while standing. Dr. Lotman reviewed appellant’s medical records, noting that meniscal tear 

had been diagnosed based upon a November 25, 2009 MRI scan. He concluded that his 

diagnosis of appellant’s condition was resolved contusion of the right knee. In addition, as to 

whether work duties as a letter carrier directly caused, aggravated, or accelerated an injury to her 

back and/or her left knee, Dr. Lotman replied that her work duties were consistent with the 

development of back and knee symptomatology. He further opined that appellant’s right knee 

injury caused a temporary aggravation of her preexisting left knee and back symptomatology. 

On May 23, 2011 OWCP accepted the claim for contusion of the right knee. Appellant 

filed claims for wage-loss compensation (Form CA-7). 

By decisions dated September 13 and October 21, 2011, OWCP denied appellant’s 

claims for periods of wage-loss compensation. 

By letter dated September 20, 2011, appellant’s counsel requested an oral hearing. 

By decision dated December 7, 2011, an OWCP hearing representative set aside the 

September 13 and October 21, 2011 decisions because Dr. Lotman had failed to identify a firm 

diagnosis in relation to the low back and knee problems and had failed to identify a period of 

disability, if any, stemming from any accepted conditions. He instructed the district office to 

further develop the medical evidence by referring appellant to a new second opinion specialist to 

determine the nature of the low back and bilateral knee conditions and the duration of any work-
4

related disability. The hearing representative directed the district office to issue a de novo

decision following the receipt of the specialist’s report and any other case development. 

In order to determine whether appellant sustained a right or left knee condition or lower 

back condition causally related to factors of her employment, OWCP referred her to Dr. Richard 

Steinfeld, a Board-certified orthopedic surgeon, for a second opinion evaluation. In a report 

dated January 19, 2012, Dr. Steinfeld diagnosed a torn right lateral meniscus. He advised that 

the diagnosed condition, a lateral meniscus tear, was most likely medically connected to her 

work injury by direct cause. Dr. Steinfeld stated that appellant had denied any prior injury or 

difficulty with her right knee prior to being struck by the mail cart and he therefore opined that 

this sort of traumatic incident could certainly result in a meniscus tear. He advised that it did not 

appear that appellant had sustained any other knee injury, at least according to the subjective 

history she provided during his evaluation. Dr. Steinfeld further advised that she did not believe 

that her lower back issue was related to her knee issue.2

On March 2, 2012 OWCP accepted the claim for torn right lateral meniscus of the right 

knee. 

In a June 18, 2013 report, Dr. David Weiss, an osteopath, found that appellant had four 

percent right lower extremity impairment pursuant to the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides). He noted that, 

under Table 16-3, Knee Regional Grid, Lower Extremity Impairments, at page 509 of the 

A.M.A., Guides,3

 appellant’s torn right lateral meniscus condition yielded a class 1 rating. Using 

the Adjustment Grid, Functional History, at Table 16-6, page 516 of the A.M.A., Guides,

4

Dr. Weiss found that appellant had a grade modifier of 3 for functional history based on her 

score of 62 for a daily activities lower limb questionnaire. However, he found this to have no 

application to appellant’s rating and gave no grade modifier for functional history. Dr. Weiss 

assigned a grade modifier of 1 for physical examination, for a mild problem, with minimal 

palpatory findings, consistently documented, without observed abnormalities, pursuant to 

Table 16-7, page 517 of the A.M.A., Guides.

5

 He found no grade modifier for clinical studies. 

Using the diagnosis-based impairment, Dr. Weiss found that appellant had a class 1 rating for 

right medial meniscus tear, which yielded a default right lower extremity impairment of two 

 2

 The Board notes that by decision dated February 13, 2012, an OWCP hearing representative remanded for the 

district office to ask Dr. Steinfeld for a supplemental report to clarify his opinion of causal relationship of the 

diagnosed conditions that he considered to be a result of the employment. She instructed the district office to ask 

Dr. Steinfeld to specifically identify those conditions that had already been accepted as work related and to provide a 

rationalized medical opinion regarding disability for work for the claimed periods from 2009 to 2011, as being 

causally related to or a result of the employment conditions. While Dr. Steinfeld did submit a February 28, 2012 

supplemental report addressing these questions, the Board notes that the issue of whether appellant sustained any 

periods of disability stemming from his accepted conditions is not contested on appeal. In addition, OWCP only 

accepted a right knee condition and did not accept a lower back or left knee condition. 

3

 A.M.A., Guides 509. 

4 Id. at 516. 

5 Id. at 517. 
5

percent.6

 Adjusting the grade by a grade modifier of 1 for physical examination, did not change 

the default rating which remained at two percent. 

On August 13, 2013 appellant filed a claim for a schedule award (Form CA-7) based on 

partial loss of use of her right lower extremity. 

In a September 24, 2013 report, an OWCP medical adviser reviewed the record, 

including Dr. Weiss’ report, and found that appellant had no ratable impairment of the right 

lower extremity pursuant to the sixth edition of the A.M.A., Guides. The medical adviser 

explained that he gave most weight to Dr. Lotman’s report of March 2011. 

By decision dated September 27, 2013, OWCP denied appellant’s claim for a schedule 

award, finding that she had not established any permanent impairment causally related to her 

accepted torn right meniscus condition. 

By letter dated October 3, 2013, appellant’s attorney requested a hearing. 

By decision dated January 10, 2014, an OWCP hearing representative set aside the 

September 27, 2013 decision, finding that the September 24, 2013 report from OWCP’s medical 

adviser was not sufficiently rationalized as to constitute the weight of the medical evidence. She 

further found that the district medical adviser did not address the July 18, 2013 report of 

Dr. Weiss, which reflected results on examination and provided four percent permanent 

impairment under the A.M.A., Guides. The hearing representative therefore remanded the case 

to the district office and directed that it refer appellant to a Board-certified orthopedist for a 

second opinion permanent impairment evaluation on whether appellant had any permanent 

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

OWCP referred appellant to Dr. Jonathan D. Black, Board-certified in orthopedic 

surgery. In a February 18, 2014 report, Dr. Black found that appellant had no ratable 

impairment. He opined that, although the statement of accepted facts mentioned that she had a 

lateral meniscus tear, this apparently was never significant enough for her treating physicians to 

require surgical intervention. Dr. Black noted that appellant had no signs and symptoms of 

ongoing problems with the lateral meniscus on physical examination. He further advised that 

she was managing any symptoms she continued to have with anti-inflammatory medication and 

was able to work her normal duties in a school cafeteria. Based on these factors, Dr. Black 

accorded her zero percent impairment rating for the right lower extremity. 

In a February 28, 2014 report, an OWCP medical adviser reviewed Dr. Black’s report 

and found that appellant had no ratable impairment of the right lower extremity pursuant to the 

sixth edition of the A.M.A., Guides. 

 6

 Dr. Weiss also accorded a two percent right lower extremity impairment rating for right and left sensory deficits 

at L4. However, as OWCP has not accepted a lower back condition, it properly denied a schedule award based on 

these ratings. 
6

By decision dated March 3, 2014, OWCP denied appellant’s claim for a schedule award, 

finding that she had not sustained any permanent impairment causally related to her accepted 

torn right lateral meniscus condition. 

By letter dated March 10, 2014, appellant’s counsel requested an oral hearing which was 

held on June 9, 2014. 

By decision dated July 28, 2014, an OWCP hearing representative affirmed the March 3, 

2014 decision. 

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 Effective May 1, 2009, OWCP began using 

the A.M.A., Guides (6th ed. 2009). The claimant has the burden of proving that the condition for 

which a schedule award is sought is causally related to her employment.10

ANALYSIS 

On appeal counsel contends that there is a conflict in the medical evidence between the 

opinions of Dr. Black and Dr. Weiss regarding whether appellant has impairment stemming from 

her accepted right lateral meniscus tear condition.11 The Board finds that the case is not in 

posture for decision. 

In the present case, OWCP found that appellant did not have a ratable impairment for the 

right lower extremity impairment based on the opinion of Dr. Black, OWCP’s referral physician. 

The Board finds that OWCP improperly relied on Dr. Black’s opinion, as he failed to provide an 

impairment rating in conformance with the applicable tables and protocols of the A.M.A., 

 7

 5 U.S.C. § 8107. 

8

 20 C.F.R. § 10.404. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent 

Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010). 

9 Id.

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

11 Counsel further contends that appellant is entitled to a total four percent impairment rating in light of 

Dr. Weiss’ two percent right lower extremity impairment rating for right and left sensory deficits at L4. As noted 

above, however, OWCP has not accepted a lower back condition and it properly denied a schedule award based on 

these ratings. 
7

Guides. Dr. Black made minimal findings in his report. He asserted that, although the statement 

of accepted facts mentioned that appellant had a lateral meniscus tear, this was insufficient for 

her treating physicians to require surgical intervention and opined that she had no signs and 

symptoms of ongoing problems with the lateral meniscus tear on physical examination.12 

Dr. Black further advised that appellant was managing any continued symptoms with antiinflammatory medication and was able to work in a school cafeteria. Due to this lack of clarity, 

the Board is unable to render an informed judgment as to whether appellant had any permanent 

impairment due to the accepted condition. While the claimant has the burden to establish 

permanent impairment, once OWCP undertakes the development of the evidence, it has an 

obligation to provide a valid opinion.13 

Accordingly, the Board will set aside OWCP’s July 28, 2014 decision and remand to 

OWCP for further development of the medical evidence and to determine whether appellant has 

any permanent impairment of the right lower extremity due to the accepted right torn medical 

meniscus. The opinion should clearly indicate the specific background and protocols of the 

A.M.A., Guides upon which the opinion is based. After such further development of the record 

as it deems necessary, it shall issue a de novo decision. 

CONCLUSION 

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

further development of the medical evidence. 

 12 The Board notes that the A.M.A., Guides 509, Table 16-3, allow a rating between one and three percent for a 

lateral partial meniscal tear, independent of a meniscectomy or meniscal repair. 

13 Horace L. Fuller, 53 ECAB 775 (2002). 
8

ORDER 

IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of 

Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further 

action consistent with this decision of the Board.14

Issued: May 20, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 14 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015.