United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

G.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Scranton, PA, Employer 

__________________________________________ 

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Docket No. 17-0498 

Issued: June 5, 2017 

Appearances: Case Submitted on the Record

Michael R. Mey, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 3, 2017 appellant, through counsel, filed a timely appeal from an August 30, 

2016 merit decision and a December 9, 2016 nonmerit 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

ISSUES 

The issues are: (1) whether appellant has more than 21 percent permanent impairment of 

the right lower extremity, for which he has received a schedule award; and (2) whether OWCP 

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 

5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

Appellant, then a 46-year old letter carrier, filed a traumatic injury claim (Form CA-1) on 

June 29, 1994 alleging that on that date he sustained a right knee injury in the performance of 

duty. He alleged that he was ascending stairs to deliver mail when the steps gave way. OWCP 

initially denied the claim for compensation on December 20, 1994. Appellant underwent right 

knee arthroscopic surgery, including a partial medial meniscectomy, on June 3, 1996. By 

decision dated January 27, 1997, an OWCP hearing representative reversed the December 20, 

1994 decision, and accepted that appellant sustained a right knee sprain as a result of the 

employment incident. 

By letter dated August 7, 1998, OWCP advised appellant that the accepted conditions had 

been expanded to include right medial meniscus tear, fracture tibia plateau, and degenerative 

joint disease of the right knee. 

On August 25, 1998 appellant’s treating physician, Dr. Thomas W. Byron, Boardcertified in orthopedic surgery, related that following appellant’s June 29, 1994 right knee 

meniscal injury he had developed extra articular changes in the right knee, consistent with 

degenerative arthritis. He opined that he expected appellant would require a total knee 

replacement in the future. Dr. Byron related that appellant currently had structural alignment 

deficits, with mild varus inclination of the knee, and moderate occasional pain. He related that 

appellant had 10 percent permanent impairment of the right lower extremity. 

In a September 9, 1998 report, an OWCP medical adviser opined that appellant had 20 

percent permanent impairment of the right lower extremity under the fourth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter 

A.M.A., Guides).3

 He indicated that the permanent impairment was based on Table 36 of the 

A.M.A., Guides. 

OWCP issued a schedule award on September 16, 1998 for 20 percent permanent 

impairment of the right lower extremity. 

In a report dated December 5, 2007, Dr. Byron diagnosed right knee osteoarthritis, and 

noted a June 3, 1996 right medial meniscectomy. He provided results on examination and 

indicated that appellant was working modified duty. Dr. Byron noted that appellant was 

scheduled to retire.4

 

 3

 A.M.A., Guides (6th ed. 2009). 

4

 An April 3, 2015 statement of accepted facts (SOAF) reported appellant retired in 2008. 
3

Appellant underwent a total right knee replacement surgery on January 9, 2014. On 

July 14, 2014 he filed a Form CA-7 (claim for compensation) requesting an additional schedule 

award. 

By report dated October 7, 2014, Dr. Eugene Kim, a Board-certified orthopedic surgeon, 

reported appellant was nine months status post total right knee surgery. He provided physical 

examination results, noting minimal swelling of the right knee with no instability. 

OWCP prepared a SOAF dated April 3, 2015 and referred the case to an OWCP medical 

adviser. In a report dated April 3, 2015, Dr. Morley Slutsky, an OWCP medical adviser, opined 

that appellant had 21 percent permanent impairment of the right lower extremity. He indicated 

that appellant’s permanent impairment had been rated under the sixth edition of the A.M.A., 

Guides based on the diagnosis of total knee replacement with good result. 

By decision dated May 12, 2015, OWCP issued a schedule award for an additional one 

percent permanent impairment of the right lower extremity. 

On May 19, 2015 appellant requested a hearing before an OWCP hearing representative. 

A hearing was held on December 14, 2015. 

Appellant submitted a report from Dr. Kim dated October 14, 2015. He reported that 

appellant had complained of medial discomfort in the right knee. Dr. Kim provided results on 

examination, and noted tender palpation over medial retinaculum, with no instability. By report 

dated November 23, 2015, he wrote that appellant had reported significant improvement with a 

Flector patch. Dr. Kim reported minimal tenderness of the right knee, with no swelling or 

instability. 

In a report dated February 4, 2016, Dr. David Cooper, a Board-certified orthopedic 

surgeon, provided a history and results on examination. He wrote that appellant reported pain 

and weakness of the right leg, with numbness outside of the surgery scar. Dr. Cooper reported 

reduced right knee range of motion, with 5 degrees extension and 95 degrees flexion. He 

reported diffuse tenderness both medially and laterally, laxity on the knee with some degree of 

mid flexion instability. Dr. Cooper opined that appellant had 71 percent permanent impairment 

of the right lower extremity, based on a total knee replacement with a poor result. 

By decision dated February 22, 2016, OWCP’s hearing representative remanded the case 

for further development. He directed OWCP to refer the case back to the OWCP medical 

adviser for an opinion as to whether appellant had more than 21 percent right lower extremity 

permanent impairment. 

In a report dated February 28, 2016, an OWCP medical adviser, Dr. Herbert White, Jr., 

opined that Dr. Cooper’s report was of diminished probative value as it was “so different” from 

Dr. Kim’s reports. He opined that examination findings that differed from previously recorded 

observations may be excluded from the impairment calculation. 

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

additional schedule award. It found the weight of the evidence was represented by Dr. White’s 

report. 
4

On April 5, 2016 appellant, through counsel requested a hearing before an OWCP 

hearing representative. A hearing was held on July 13, 2016. The record indicates that appellant 

submitted reports from Dr. Kim dated May 23 and June 1, 2016. In the June 1, 2016 report, 

Dr. Kim provided results on examination, noting tenderness over the medial femoral condyle, 

with trace swelling, no effusion or instability. 

By decision dated August 30, 2016, the hearing representative affirmed the March 14, 

2016 OWCP decision. He found the weight of the medical evidence was represented by 

Dr. White. 

On September 13, 2016 appellant, through counsel, requested reconsideration. No 

additional evidence was submitted. 

By decision dated December 9, 2016, OWCP denied merit review of the claim. It found 

appellant had not met any of the requirements for a merit review. 

LEGAL PRECEDENT -- ISSUE 1 

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.5 Neither FECA nor the regulations 

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.6 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.7

 

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

16-3. The Class of Diagnosis (CDX) impairment 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).8

 

ANALYSIS -- ISSUE 1 

In the present case, OWCP issued a schedule award decision dated September 16, 1998 

for 20 percent permanent impairment of the right lower extremity. An additional one percent 

permanent impairment award was granted in a decision dated May 12, 2015. The May 12, 2015 

 5

 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). 

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

7

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

8

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

award was based upon the report from OWCP’s medical adviser, Dr. Slutsky. Dr. Slutsky 

reported on April 3, 2015 that appellant’s permanent impairment had been rated under the sixth 

edition of the A.M.A., Guides based on the diagnosis of total knee replacement with good result.9

Appellant thereafter submitted a report dated February 4, 2016 from Dr. Cooper. Based 

on his examination, Dr. Cooper found that appellant had a 71 percent right lower extremity 

permanent impairment, for total knee replacement with a poor result. 

The case was remanded to an OWCP medical adviser, Dr. White, to review Dr. Cooper’s 

report. According to Dr. White, the February 4, 2016 report could not provide a basis for a 

permanent impairment rating because the examination results were inconsistent with another 

attending physician, Dr. Kim. He referred to a section of the A.M.A., Guides, with regard to 

examination findings that differed from previously recorded observations.10 This section 

explains that an examining physician may exclude some findings from the impairment 

calculation “as described later in this chapter.” The A.M.A., Guides relate that physical 

examination findings the examiner determines to be “unreliable or inconsistent” are excluded 

from grading the impairment, such as inconsistent range of motion results.11 

In this case, Dr. White was not the examining physician. The examining physician, 

Dr. Cooper, gave no indication that he felt the examination results were unreliable or 

inconsistent. He did not indicate, for example, that range of motion results were unreliable, and 

the Board notes that Dr. Kim had not provided range of motion results in his reports. 

If OWCP’s medical adviser felt that the physical findings reported by Dr. Cooper were 

inconsistent with other medical evidence of record, the proper procedure would have been to 

refer the case for a second opinion examination. In A.H., OWCP’s medical adviser opined that 

the physical examination findings from the attending physicians were inconsistent.12 The case 

was properly referred for a second opinion examination as to a permanent impairment under the 

A.M.A., Guides. Under OWCP procedures, when OWCP’s medical adviser cannot make a 

proper determination as to permanent impairment based on the evidence, the case should be 

referred for additional development.13 

The case will accordingly be remanded to OWCP for further development. OWCP 

should refer the case for a second opinion examination and report as to a permanent impairment 

to the right lower extremity. After such further development as is deemed necessary, it should 

 9

 A.M.A. Guides 511, Table 16-3. A grade A impairment for good result from total knee replacement is 21 

percent. 

10 Id. at 496. 

11 Id. at 517-518. 

12 Docket No. 10-0687 (issued October 20, 2010). 

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

Chapter 2.808.6(d) (February 2013); see also Chapter 2.808.6(f)(2)(c) (February 2013) (when OWCP’s medical 

adviser believes the permanent impairment has not been properly described, a new evaluation may be obtained). 
6

issue an appropriate decision. In light of the Board’s findings, the second issue is moot and will 

not be addressed on this appeal. 

CONCLUSION 

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

ORDER 

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

Compensation Programs dated August 30, 2016 is set aside and the case is remanded for further 

action consistent with this decision of the Board. 

Issued: June 5, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board