United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.D., Appellant

and

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Dallas, TX, 

Employer

__________________________________________

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Docket No. 17-0862

Issued: November 6, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On March 9, 2017 appellant filed a timely appeal from an October 14, 2016 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.2

ISSUE

The issue is whether appellant met his burden of proof to establish more than 55 percent 

permanent impairment of the right lower extremity and more than 37 percent permanent 

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

 

1

5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP after the October 14, 2016 decision was 

issued. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final 

decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).
2

FACTUAL HISTORY

On April 18, 2006 appellant, then a 49-year-old clerk, filed an occupational disease claim

(Form CA-2) alleging a bilateral knee condition that reportedly arose on or about 

December 15, 2005. On June 5, 2006 OWCP accepted appellant’s claim for multiple bilateral 

knee conditions, including medial and lateral meniscus tears, old disruption of anterior cruciate 

ligament (ACL), loose body, unspecified knee enthesopathy, and aggravation of preexisting 

conditions. Appellant underwent right knee arthroscopy on August 10, 2006, and left knee 

arthroscopy on October 30, 2006. OWCP subsequently expanded appellant’s claim to include 

bilateral old bucket handle tear of the medial meniscus and osteochondritis dissecans. On 

October 8, 2007 appellant underwent OWCP-approved left total knee arthroplasty.

By decision dated September 30, 2008, OWCP granted appellant a schedule award for 55

percent permanent impairment of the right lower extremity and 37 percent permanent 

impairment of the left lower extremity.3 The left lower extremity rating was based on the 

outcome/result (good) of appellant’s knee arthroplasty and the right lower extremity rating was 

based on appellant’s previous partial and medial meniscectomy in conjunction with knee joint 

arthritis.

On November 3, 2008 appellant underwent additional right knee surgery, which OWCP 

authorized.

On January 20, 2009 appellant returned to work as a modified mail processing clerk, with 

no loss in wages. By decision dated April 22, 2009, OWCP found that appellant’s position as a 

modified mail processing clerk fairly and reasonably represented his wage-earning capacity. 

Because his actual weekly earnings ($1,060.63) effective January 20, 2009 met or exceeded the 

current wages of his date-of-injury position, it determined that appellant had zero loss of wageearning capacity.

On December 2, 2013 appellant underwent OWCP-approved right total knee arthroplasty,

performed by Dr. Deepak V. Chavda, an orthopedic surgeon. OWCP resumed payment of wageloss compensation for temporary total disability.

On June 2, 2014 appellant returned to part-time (4 hours), limited duty as a modified 

custodian.4 OWCP paid appellant compensation for four hours of lost wages per day.

On April 16, 2015 appellant filed a claim for an additional schedule award (Form CA-7). 

The employing establishment noted that appellant had retired effective April 20, 2015.

In an April 1, 2015 report, Dr. Chavda diagnosed traumatic arthropathy and reported that 

appellant had undergone a left total knee arthroplasty in 2007 and a right total knee arthroplasty 

in December 2013. He found that appellant continued to suffer persistent pain since replacement 

 

3 The schedule award was based on the fifth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (2001) (A.M.A., Guides).

4 Appellant also has an accepted right shoulder condition (xxxxxx194), which arose on May 19, 2003. The 

modified custodian position was designed to accommodate limitations due to appellant’s employment-related right 

upper extremity condition, as well as his bilateral lower extremity conditions. 
3

of both knees, right worse than left. Dr. Chavda further diagnosed bilateral knee post-traumatic 

arthritis, and recommended physical therapy.

In an April 29, 2015 letter, OWCP advised appellant that for consideration to be given to 

the payment of a schedule award, the medical evidence must support a finding that the accepted 

injury resulted in permanent impairment after reaching maximum medical improvement (MMI). 

It found that Dr. Chavda’s April 1, 2015 report indicated that appellant’s condition had not yet 

reached MMI and; therefore, no additional action could be taken on his schedule award claim at 

that time.

On July 24, 2015 appellant filed another claim for schedule award (Form CA-7). In 

support of his claim, he submitted a May 6, 2015 report from Dr. Chavda, who indicated that 

appellant had reached MMI. Dr. Chavda referred appellant to Dr. Anil T. Bangale for an 

impairment rating.

In a June 9, 2015 report, Dr. Bangale, a family practitioner, diagnosed right knee 

traumatic degenerative joint disease and traumatic arthroplasty. He determined that appellant 

had reached MMI and opined that he had 20 percent whole person permanent impairment based 

on the A.M.A., Guides. (5th ed. 2001).

In an August 6, 2015 letter, OWCP noted that appellant was currently receiving 

compensation benefits on the periodic rolls. It advised him that a schedule award and 

compensation could not be paid concurrently on the same case file, thus, no further action would 

be taken on his July 24, 2015 schedule award claim. OWCP further noted that, should appellant

elect to receive retirement benefits in lieu of FECA wage-loss benefits, it would be able to 

address his claim at that time.

Appellant subsequently elected to receive retirement benefits effective June 1, 2016. On 

June 2, 2016 he filed a claim for an additional schedule award (Form CA-7).

In a June 8, 2016 report, Dr. Mary F. Burgesser, a Board-certified physiatrist, noted that 

appellant had developed bilateral knee injuries as a result of his federal employment duties. She

found that appellant had difficulty standing, sitting, climbing, and walking. Appellant also had 

moderate difficulty bathing and dressing. Upon physical examination, Dr. Burgesser found that 

appellant ambulated with an antalgic gait. Appellant’s range of motion was 0 to 90 degrees and 

there was no swelling and decreased sensation on the lateral right knee. Dr. Burgesser reiterated 

appellant’s accepted bilateral knee conditions and reported that an injection was not offered that 

day.

In a June 20, 2016 letter, OWCP advised appellant of the deficiencies of his claim and 

requested that he submit additional evidence, specifically a report from his treating physician that 

contained a detailed description of his permanent impairment based on the sixth edition of the 

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

In response, appellant resubmitted Dr. Bangale’s June 9, 2015 whole person impairment 

rating under the fifth edition of the A.M.A., Guides.
4

In an August 18, 2016 letter, OWCP advised Dr. Bangale that it required all impairment 

determinations to be calculated according to the sixth edition of the A.M.A., Guides, and 

requested a new report within 30 days.

By decision dated October 14, 2016, OWCP denied appellant’s claim for an increased 

schedule award. It noted that appellant had previously received an award for 55 percent 

permanent impairment of the right lower extremity and 37 percent permanent impairment of the 

left lower extremity, but the medical evidence did not support an increase in the impairment 

already compensated.

LEGAL PRECEDENT

The schedule award provisions of FECA5provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members of the body. FECA, 

however, does not specify the manner in which the percentage loss of a member shall be 

determined. The method used in making such determination is a matter which rests in the sound 

discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized 

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 OWCP as a standard for evaluation of 

schedule losses and the Board has concurred in such adoption.6 For schedule awards after 

May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides, 

published in 2009.7

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment Class of 

Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).

9

 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are 

directed to provide reasons for their impairment rating choices, including the choices of 

diagnoses from regional grids and calculations of modifier scores.10

 

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

7

See D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

8 A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.

9

Id. at 494-531.

10 See R.V., Docket No. 10-1827 (issued April 1, 2011).
5

ANALYSIS

OWCP accepted appellant’s occupational disease claim for multiple bilateral knee 

conditions. It also authorized numerous surgeries, including bilateral total knee arthroplasties. 

In September 2008, OWCP granted a schedule award for 55 percent permanent impairment of 

the right lower extremity and 37 percent permanent impairment of the left lower extremity under 

the fifth edition of the A.M.A., Guides (2001). Since the 2008 schedule award, appellant has 

undergone two additional right knee surgical procedures, including a December 2, 2013 right 

total knee arthroplasty. On June 2, 2016 he filed a claim for an additional schedule award (Form 

CA-7). It is appellant’s burden of proof to submit sufficient evidence to establish the extent of 

permanent impairment.11

In his June 9, 2015 report, Dr. Bangale determined that appellant had reached MMI and 

opined that he had 20 percent whole person permanent impairment based on the fifth edition of 

the A.M.A., Guides. The Board has long held that an opinion which is not based upon the 

standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule 

losses is of little probative value in determining the extent of a claimant’s impairment.12 

Dr. Bangale’s report was based on the fifth edition of the A.M.A., Guides. OWCP, however, 

currently uses the sixth edition of the A.M.A., Guides to calculate schedule awards.13 A medical

opinion, based on an inappropriate edition of the A.M.A., Guides, is of diminished probative 

value in determining the extent of permanent impairment.14

Moreover, Dr. Bangale provided a rating for whole person impairment. There is no 

statutory basis for the payment of a schedule award for whole body impairment under FECA.15 

Payment is authorized only for the permanent impairment of specified members, organs, or 

functions of the body.16 For these reasons, the Board finds Dr. Bangale’s opinion as to the extent 

of permanent impairment is of limited probative value and insufficient to establish that appellant 

is entitled to an increased schedule award.

The reports from Drs. Chavda and Burgesser fail to provide an impairment rating based 

on the sixth edition of the A.M.A., Guides. Thus, these reports are of no probative value 

regarding appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.

17

There is no probative medical evidence of record, in conformance with the sixth edition 

of the A.M.A., Guides, establishing that appellant has more than 55 percent permanent 

 

11 See Annette M. Dent, 44 ECAB 403 (1993).

12 See P.O., Docket No. 15-1631 (issued June 2, 2016); Fritz A. Klein, 53 ECAB 642 (2002).

13 See supra note 7.

14 See T.R., Docket No. 17-0047 (issued July 27, 2017).

15 See N.H., Docket No. 17-0696 (issued July 19, 2017).

16 Tania R. Keka, 55 ECAB 354 (2004).

17 See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where 

the A.M.A., Guides are not properly followed).
6

impairment of the right lower extremity and 37 percent permanent impairment of the left lower 

extremity. Accordingly, appellant has not established that he is entitled to a schedule award 

greater than that previously received.18

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 met his burden of proof to establish more than 55 

percent permanent impairment of the right lower extremity and 37 percent permanent 

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

ORDER

IT IS HEREBY ORDERED THAT the October 14, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 6, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

18 FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that 

schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in 

both cases are for impairment of the same member or function and where it is determined that the compensation for 

the later disability in whole or part would duplicate the compensation payable for the preexisting disability. 5 

U.S.C. § 8108; 20 C.F.R. § 10.404(c).