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. 16-1818

Issued: December 28, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On September 12, 2016 appellant filed a timely appeal from an August 10, 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 to consider the merits of the case.

2

ISSUE

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

percent permanent impairment of the right lower extremity, for which he previously received a 

schedule award.

 

1

5 U.S.C. § 8101 et seq.

2 The record includes evidence received after OWCP issued its August 10, 2016 decision. The Board’s 

jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 20 C.F.R. 

§ 501.2(c)(1). Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal. 
2

FACTUAL HISTORY

This case has previously been before the Board. The facts and circumstances outlined in 

the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. On August 17, 1995 appellant, then a 39-year-old letter carrier, injured his right knee in 

the performance of duty.3 OWCP initially accepted appellant’s traumatic injury claim (Form 

CA-1) for right knee strain. It subsequently expanded the claim to include right knee lateral 

meniscus tear, which was surgically repaired on February 15, 1996. On September 30, 1996 

appellant’s surgeon released him to resume his full-time, letter carrier duties.

On December 3, 2002 OWCP granted appellant a schedule award for two percent 

permanent impairment of the right lower extremity. By decision dated September 29, 2003, the 

Board set aside the award and remanded the case for further consideration.4 On December 23, 

2003 OWCP granted a schedule award for a total of eight percent permanent impairment of the 

right lower extremity.5 The award covered a period of 23.04 weeks beginning October 1, 2001.6

By decision dated May 14, 2008, OWCP denied appellant’s claim for an additional 

schedule award. In a December 5, 2008 decision, the Board affirmed OWCP’s May 14, 2008 

decision.7 OWCP again denied an additional schedule award on March 5, 2012, which the Board 

affirmed by decision dated November 20, 2012.8

On August 9, 2013 appellant filed a claim for an additional schedule award (Form CA-7). 

In an October 21, 2013 report, Dr. Irvin A. Guterman, a Board-certified orthopedic surgeon, 

found 11 percent permanent impairment of the right lower extremity.9 He rated appellant under 

the sixth edition of the A.M.A., Guides (2009). Dr. Guterman found three percent permanent 

impairment based on appellant’s partial lateral meniscectomy, and an additional eight percent 

permanent impairment for muscle atrophy.

In an October 4, 2014 report, OWCP’s district medical adviser (DMA) found three 

percent permanent impairment of the right lower extremity based on appellant’s 1996 right knee 

partial lateral meniscectomy. He disagreed with Dr. Guterman’s additional eight percent rating

for muscle atrophy, but noted the possibility of impairment due to right knee osteoarthritis. 

However, the DMA noted that Dr. Guterman had not provided the requisite joint space 

measurements for rating impairment due to arthritis.

 

3 Appellant was cutting across a yard and fingering mail when he tripped in a hole.

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

5 The rating was based on a finding of two centimeter (cm) thigh atrophy under Table 17-6, American Medical 

Association, Guides to the Evaluation of Permanent Impairment 503 (5th ed. 2001).

6

In an amended decision dated March 10, 2004, OWCP reduced the amount of the award based on compensation 

previously paid pursuant to the December 3, 2002 schedule award. 

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

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

9 Dr. Guterman performed appellant’s February 15, 1996 right knee arthroscopic surgery.
3

By decision dated November 10, 2014, OWCP found appellant had not established that 

his right lower extremity permanent impairment exceeded the eight percent previously awarded.

Appellant timely requested a review of the written record by OWCP’s Branch of 

Hearings and Review.

In a December 2, 2014 supplemental report, Dr. Guterman revised his previous rating. 

He continued to find three percent right lower extremity impairment based on appellant’s 1996 

partial lateral meniscectomy. However, Dr. Guterman also found an additional seven percent 

impairment due to arthritis, noting that there was x-ray evidence of a three-millimeter cartilage 

interval.10 According to Dr. Guterman, appellant’s total right lower extremity permanent 

impairment was 10 percent.

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

November 10, 2014 decision.11 She noted that OWCP had not accepted right knee degenerative 

changes (arthritis), and therefore, Dr. Guterman’s additional seven percent rating for arthritis did 

not warrant further review. The hearing representative further noted that Dr. Guterman had not 

provided the underlying x-ray (October 21, 2013) report with cartilage measurements, and had 

not explained how the August 17, 1995 employment incident either caused or contributed to 

appellant’s mild right knee arthritis.

Appellant appealed to the Board on July 6, 2016. By decision dated April 12, 2016, the 

Board set aside the hearing representative’s June 19, 2015 decision, and remanded the case for 

further medical development. The Board noted, inter alia, that OWCP failed to refer

Dr. Guterman’s December 2, 2014 supplement report to the DMA for review.12 Additionally, 

the record included a November 14, 1995 right knee magnetic resonance imaging (MRI) scan, 

the results of which were clearly suggestive of preexisting osteoarthritis. The Board explained 

that preexisting impairment to the scheduled member should be included in the rating.

In a May 15, 2016 report, the DMA, Dr. Morley Slutsky, Board-certified in occupational 

medicine, advised that, although Dr. Guterman reported a three-millimeter cartilage interval, he 

did not specify the affected right knee compartment(s). He also noted that a copy of the 

October 21, 2013 x-ray report had not been provided, and Dr. Guterman had not assigned grade 

modifiers or performed net adjustment calculations with respect to the ratings for partial lateral 

meniscectomy (three percent) and knee arthritis (seven percent). The DMA further explained 

that only one diagnosis should be used to rate appellant’s knee impairment. He rated appellant 

based on his lateral meniscal tear and found two percent permanent impairment of the right 

lower extremity under Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).13

 

10 Dr. Guterman referenced an October 21, 2013 right knee x-ray.

11 OWCP did not refer Dr. Guterman’s December 2, 2014 supplemental report to its medical adviser prior to 

issuing the June 19, 2015 decision.

12 Order Remanding Case, Docket No. 15-1502 (issued April 12, 2016). 

13 Two percent was the default grade (C) for a meniscal tear under Table 16-3. Dr. Slutsky calculated a net 

adjustment of zero, thereby warranting no adjustment from the default rating of two percent.
4

On May 18, 2016 OWCP sought clarification from the DMA as to whether the current 

two percent rating was in addition to the previous award of eight percent right lower extremity 

permanent impairment.14

In a May 23, 2016 report, Dr. Slutsky explained that the previous eight percent award 

was for thigh atrophy (two centimeters) under the A.M.A., Guides (5th ed. 2001). He further 

explained that under the current edition of the A.M.A., Guides (6th ed. 2009), muscle atrophy 

was a grade modifier, not the sole basis for an impairment rating. Dr. Slutsky noted that 

appellant’s muscle atrophy had already been incorporated in the current two percent right lower 

extremity impairment rating.15 As such, the latest right lower extremity permanent impairment 

rating represented a six percent decrease from the prior rating/award. Because of numerous 

errors in the impairment ratings of record, Dr. Slutsky recommended that OWCP refer appellant 

for a second opinion evaluation, to include tri-compartment right knee x-rays, as well as 

appropriate measurements to determine if there was any ratable narrowing of the various knee 

compartments due to arthritis.

In an August 10, 2016 decision, OWCP denied appellant’s claim for an additional 

schedule award. It based its determination of the DMA’s May 23, 2016 report. It further noted 

that Dr. Guterman’s impairment rating(s) contained various deficiencies as documented by the 

DMA. As such, OWCP found that the medical evidence did not support an increase over the 

previously awarded eight percent right lower extremity permanent impairment.

LEGAL PRECEDENT

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions and organs of the body.16 FECA, 

however, does not specify the manner by which the percentage loss of a member, function or 

organ shall be determined. To ensure consistent results and equal justice under the law, good 

administrative practice requires the use of uniform standards applicable to all claimants. The 

implementing regulations have adopted the A.M.A., Guides as the appropriate standard for 

evaluating schedule losses.17 Effective May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).18

 

14 OWCP also provided Dr. Slutsky a copy of an October 11, 2010 examination report that it previously neglected 

to forward.

15 In his May 15, 2016 impairment rating, Dr. Slutsky included 1.8 centimeter atrophy as part of the physical 

examination grade modifier. 

16 5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’

compensation. 5 U.S.C. § 8107(c)(2).

17 20 C.F.R. § 10.404. 

18 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). 
5

After obtaining all necessary medical evidence, the case file should be routed to the 

DMA for an opinion concerning the nature and percentage of impairment in accordance with the 

A.M.A., Guides.

19

 The DMA should provide his or her rationale for the percentage of 

impairment specified.20

When determining entitlement to a schedule award, pre-existing impairment to the 

scheduled member should be included.21 Impairment ratings for schedule awards include those 

conditions accepted by OWCP as job related, and any preexisting permanent impairment of the 

same member or function.22 If the work-related injury has affected any residual usefulness in 

whole or in part, a schedule award may be appropriate.23 There are no provisions for 

apportionment under FECA.24 When the prior impairment is due to a previous work-related 

injury and a schedule award has been granted for such prior impairment, the percentage already 

paid is subtracted from the total percentage of impairment.25

ANALYSIS

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

By decision dated April 12, 2016, the Board remanded the case to OWCP with an 

instruction to have a DMA review the updated reports of Dr. Guterman.

In his May 15, 2016 report, Dr. Slutsky, OWCP’s medical adviser, reviewed

Dr. Guterman’s December 2, 2014 report and rated two percent permanent impairment of the 

right leg under the A.M.A., Guides. He recommended, however, that appellant be referred for a 

second opinion examination with an orthopedic surgeon due to numerous errors in impairment 

ratings. Dr. Slutsky advised that the examiner should be directed to perform right knee x-rays in 

all three compartments and perform measurements for each compartment to determine whether 

there was ratable narrowing in any of the compartments. He reiterated this recommendation in 

his May 23, 2016 report. OWCP, however, did not follow through with this recommendation in 

its August 10, 2016 decision and found that, as Dr. Slutsky rated two percent permanent 

impairment of the right leg, appellant was not entitled to an additional schedule award. The 

Board finds that, as OWCP failed to fully develop the medical evidence following referral to a 

 

19 Id. at Chapter 2.808.6f.

20 Id.

21 Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

22 Supra note 18 at Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent 

Disability Claims, Chapter 2.808.5d.

23 Id.

24 Id.

25 Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).
6

DMA, its August 10, 2016 decision must be set aside and remanded for further development

consistent with the May 15, 2016 recommendations of the DMA. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. 

However, OWCP shares responsibility in the development of the evidence to see that justice is 

done.26 Once OWCP undertakes development of the record, it must do a complete job in 

procuring medical evidence that will resolve the relevant issues in the case.27

On remand, OWCP should refer the matter to a second opinion orthopedic specialist for a 

new impairment rating.28 In accordance with Dr. Slutsky’s recommendation on May 15, 2016, 

the examiner should be directed to perform right knee x-rays in all three compartments and 

perform measurements for each compartment to determine whether there is a ratable narrowing 

in any of the compartments. 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 case is not in posture for decision.

 

26 William J. Cantrell, 34 ECAB 1223 (1983).

27 Richard F. Williams, 55 ECAB 343, 346 (2004).

28 See supra note 18 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.9(a) 

(September 2010).
7

ORDER

IT IS HEREBY ORDERED THAT the August 10, 2016 decision of the Office of 

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

consistent with this decision.

Issued: December 28, 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