United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.S., Appellant 

and 

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, Milan, MI, Employer 

__________________________________________ 

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Docket No. 17-0489 

Issued: May 11, 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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On January 4, 2017 appellant filed a timely appeal from a December 21, 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. 

ISSUE 

The issue is whether appellant has more than two percent permanent impairment of the 

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

FACTUAL HISTORY 

On June 22, 2015 appellant, then a 39-year-old supervisor of education, filed a traumatic 

injury claim (Form CA-1) alleging that on June 19, 2015 he injured his left knee running across 

 1

 5 U.S.C. § 8101 et seq. 
2

the recreational yard responding to a medical emergency. OWCP accepted the claim for a torn 

left lateral meniscus. 

Dr. James L. Telfer, a Board-certified orthopedic surgeon, performed an authorized 

lateral partial meniscectomy of the left knee on November 23, 2015. He diagnosed arthritis with 

a lateral meniscal tear. 

OWCP paid appellant compensation for total disability beginning November 23, 2015. 

Appellant returned to work with restrictions on January 19, 2016 and to his usual work duties on 

February 26, 2016. 

Appellant, on February 26, 2016, filed a claim for a schedule award (Form CA-7). By 

letter dated February 29, 2016, OWCP advised that he had not submitted medical evidence 

establishing that he was at maximum medical improvement (MMI). 

In a report dated May 13, 2016, Dr. Telfer discussed appellant’s work injury and noted 

that he had a prior meniscal tear in the 1990s. He noted that x-rays obtained June 20, 2015 

showed arthritis, which was confirmed by surgery. Dr. Telfer opined that appellant had reached 

MMI but “may have some ongoing symptoms from the knee due to his damage noted at surgery. 

I have told him that it was quite possible that over time, his arthritis and symptoms from that 

source could progress, and he might very well require knee replacement surgery.” 

OWCP, by letter dated June 25, 2016, requested that appellant submit an impairment 

evaluation from his physician addressing the extent of any permanent impairment in accordance 

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

Permanent Impairment (A.M.A., Guides). 

In an August 17, 2016 progress report, Dr. Telfer diagnosed a complex tear of the left 

lateral meniscus and again noted that appellant was at MMI. He related that he did not normally 

provide impairment ratings and recommended a second opinion evaluation. Dr. Telfer found no 

effusion or instability, but slight atrophy of the quadriceps. He related that x-rays obtained prior 

to surgery showed “early lateral and patellofemoral arthritis.” Dr. Telfer found that appellant’s 

loss of tissue in the meniscus due to surgery and preexisting arthritis increased his chances of 

“future symptoms of arthritis,” but noted that his current symptoms were “minimal and 

tolerable.” 

On October 17, 2016 OWCP referred appellant to Dr. Richard H. Deerhake, a Boardcertified orthopedic surgeon, for a second opinion examination. In an impairment evaluation 

dated November 8, 2016, Dr. Deerhake reviewed the history of injury and the medical reports of 

record. He indicated that appellant had prior surgery for a meniscal tear on the left knee in the 

1990s and also had a history of a right knee condition. Dr. Deerhake noted that he was taking 

medication for arthritis, but determined that this was “not an allowed condition....” On 

examination he found slight effusion, significant medial and lateral femoral condylar spurring, 

some lateral joint line tenderness, no instability, and a negative drawer sign and McMurray’s 

test. Dr. Deerhake measured range of motion of 0 to 130 degrees. He identified the diagnosis as 

a class 1 partial lateral meniscectomy using the knee regional grid set forth at Table 16-3 on page 

509 of the A.M.A., Guides, which yielded a default value of two percent. Dr. Deerhake noted 
3

that he did not have clinical studies such as x-rays to show joint space. He applied grade 

modifiers of one for functional history and physical examination to find no change from the 

default value of two percent. 

On December 14, 2016 an OWCP medical adviser reviewed Dr. Deerhake’s opinion and 

concurred with his findings. He noted that the two percent permanent impairment of the left 

lower extremity was the “sole impairment of the left lower extremity resulting from the accepted 

work injury of June 19, 2015.” 

By decision dated December 21, 2016, OWCP granted appellant a schedule award for 

two percent permanent impairment of the left lower extremity. The period of the award ran for 

5.76 weeks from November 8 to December 8, 2016. 

On appeal appellant argues that OWCP should consider his preexisting left knee arthritis 

in rating his permanent impairment, citing OWCP procedures and Board precedent. 

LEGAL PRECEDENT 

The schedule award provision of FECA,2 and its implementing federal regulation,3 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.5

The sixth edition requires identifying 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).6 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). 

The Board has held that, in determining entitlement to a schedule award, preexisting 

impairments to the scheduled member are to be included.7

 OWCP procedures provide that any 

previous impairment to the member under consideration is included in calculating the percentage 

 2 Id. at § 8107. 

3

 20 C.F.R. § 10.404. 

4 Id. at § 10.404(a). 

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

2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5a (February 2013). 

6

 A.M.A., Guides at 494-531. 

7 See Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983). 
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of loss, except when the prior impairment is due to a previous work-related injury, in which the 

percentage already paid is subtracted from the total percentage of impairment.8 

It is well established that proceedings under FECA are not adversarial in nature, and 

while the claimant has the burden of proof to establish entitlement to compensation, OWCP 

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

done.9

 Once OWCP undertakes the development of the record, it has the responsibility to do so 

in a proper manner.10 

ANALYSIS 

OWCP accepted that appellant sustained a torn lateral meniscus due to a June 19, 2015 

employment injury. On November 23, 2015 Dr. Telfer performed a partial lateral meniscectomy 

of the left knee. In the surgical report and confirmed by x-rays, he indicated that arthritis was 

present with a lateral meniscal tear. 

On February 26, 2016 appellant filed a schedule award claim. In a May 13, 2016 report, 

Dr. Telfer indicated that x-rays dated June 20, 2015 revealed arthritis. On August 17, 2016 he 

advised that he did not perform impairment ratings, however, opined that appellant was at MMI 

from his meniscal tear and surgery, noting that he had no instability or effusion. 

OWCP referred appellant to Dr. Deerhake, an OWCP referral physician, who reviewed 

appellant’s history of injury and prior left knee surgery for a meniscal tear in the 1990s. He 

noted that he took medication for arthritis, but found that it was “not an allowed condition.” 

Dr. Deerhake also indicated that he did not have x-rays of the knee showing joint space 

measurements. Using Table 16-3 of the A.M.A., Guides, he identified the diagnosis as a partial 

lateral meniscectomy, which yielded a default value of two percent. Dr. Deerhake applied grade 

modifiers of one for functional history and physical examination, which yielded no adjustment 

from the default value of two percent. 

The Board finds that the case is not in posture for decision. As noted, preexisting 

impairments to the member under consideration are included in calculating the percentage of loss 

for a schedule award.11 As OWCP undertook development by referring appellant to 

Dr. Deerhake for an impairment evaluation, it has the responsibility to obtain a report that will 

resolve the relevant issue of the extent of his permanent impairment.12 On remand OWCP 

should obtain the June 20, 2015 x-rays and request a supplemental opinion from Dr. Deerhake 

regarding any impairment due to appellant’s preexisting left knee arthritis.13 After such 

 8

 Federal (FECA) Procedure Manual, Part 2, supra note 5 at Chapter 2.808.5(d) (February 2013). 

9 See Peter C. Belkind, 56 ECAB 580 (2005). 

10 See J.F., Docket No. 11-0314 (issued September 22, 2011); Donald R. Gervasi, 57 ECAB 281, 286 (2005). 

11 See supra note 8. 

12 See K.P., Docket No. 16-0685 (issued August 3, 2016). 

13 See J.F., supra note 10. 
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development as it deems necessary, OWCP shall issue a de novo merit decision regarding 

appellant’s entitlement to schedule award compensation. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the December 21, 2016 decision of the Office of 

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

consistent with this opinion of the Board. 

Issued: May 11, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board