United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

WEST LOS ANGELES VETERANS 

ADMINISTRATION MEDICAL CENTER,

Los Angeles, CA, Employer

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Docket No. 17-1758

Issued: February 6, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 14, 2017 appellant, through counsel, filed a timely appeal from a June 19, 

2017 merit 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

ISSUE

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

percent permanent impairment of each lower extremity, for which he previously received 

schedule awards.

On appeal counsel contends that the extent of appellant’s injury was minimized rather 

than maximized. He asserts that appellant is entitled to full benefits under the law.

FACTUAL HISTORY

OWCP accepted that on August 28, 2012 appellant, then a 55-year-old housekeeping aid, 

sustained a sprain and unspecified internal derangement of the bilateral knees and temporary 

aggravation of unspecified arthropathy of the right lower leg due to his repetitive work duties. It 

authorized left knee arthroscopic chondroplasty, medial and lateral plica release, anterior 

synovectomy, and minimal lateral retinacular release for patella balance. Those initial 

procedures were performed by Dr. Michael Schiffman, an attending Board-certified orthopedic 

surgeon, on February 20, 2013. OWCP subsequently authorized right knee arthroscopic minimal 

lateral retinacular release, anterior synovectomy, debridement of fat pad, and subtotal medial 

meniscectomy of the posterior horn. Those procedures were performed by Dr. Schiffman on 

June 5, 2013.

OWCP received a December 12, 2014 medical report from Dr. Schiffman in which he 

found that appellant had eight percent permanent impairment of each knee and three percent 

whole person permanent impairment pursuant to the sixth edition of the American Medical 

Association, Guides to the Evaluation of permanent Impairment (A.M.A., Guides).

3

 

Dr. Schiffman diagnosed status post June 5, 2013 right knee arthroscopy with subtotal medial 

meniscectomy, anterior synovectomy, chondroplasty medial femoral condyle, fat pad 

debridement, and lateral release. He also diagnosed status post February 20, 2013 left knee 

arthroscopy, chondroplasty medial femoral condyle, medial and lateral plica release, anterior 

synovectomy, and minimal lateral retinacular release. Under Table 16-3, Knee Regional Grid, 

page 509 of the A.M.A., Guides, Dr. Schiffman identified a right knee meniscal injury as a 

class 1 diagnosis-based impairment (DBI) (mild) for total (medial or lateral) meniscectomy, 

meniscal tear, or meniscal repair. He assigned a grade modifier 1 for Functional History 

(GMFH) and Physical Examination (GMPE) and a grade modifier 2 for Clinical Studies 

(GMCS). Dr. Schiffman then used the net adjustment formula and calculated a net adjustment of 

+1 or grade D, eight percent impairment of the right leg, which converted to three percent 

permanent impairment of the whole person under Table 16-10, Impairment Values Calculated 

from Lower Extremity Impairment, page 530. For the left knee, he also identified the diagnosis 

of meniscal injury which fell under a class 1 DBI (mild problem) for total (medial or lateral) 

meniscectomy, meniscal tear, or meniscal repair. Dr. Schiffman assigned a grade modifier 1 for 

functional history and physical examination and a grade modifier 2 for clinical studies. He then 

applied the net adjustment formula and calculated a net adjustment of +1 or grade D, eight 

percent permanent impairment of the left leg, which converted to three percent whole person 

 

3 A.M.A., Guides (6th ed. 2009).
3

impairment under Table 16-10. Dr. Schiffman opined that appellant’s impairment was 100 

percent related to the accepted work-related injury. 

Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as an OWCP district 

medical adviser (DMA), reviewed the medical record, including Dr. Schiffman’s impairment 

ratings, on March 6, 2015 and determined that appellant had three percent permanent impairment 

of each lower extremity. He advised that appellant had reached maximum medical improvement

(MMI) on December 12, 2014, the date of Dr. Schiffman’s evaluation. 

On March 10, 2015 appellant filed a claim for a schedule award (Form CA-7).

By decision dated March 18, 2015, OWCP granted appellant schedule awards for three 

percent permanent impairment of each lower extremity. The award ran from December 12, 2014 

to April 11, 2015, for a total of 17.28 weeks of compensation.

On March 26, 2015 appellant, through counsel, requested a telephone hearing with an 

OWCP hearing representative. In a November 13, 2015 decision, an OWCP hearing 

representative set aside the March 18, 2015 schedule award decision and remanded the case for 

OWCP to obtain clarification from Dr. Harris with regard to the extent of any permanent 

impairment to the bilateral lower extremities. She noted that while Dr. Harris concurred with

Dr. Schiffman’s findings, it appeared that he relied on the physician’s whole person impairment 

ratings rather than his lower extremity impairment ratings. 

On November 24, 2015 OWCP referred Dr. Schiffman’s December 12, 2014 report to a 

DMA for review. In a November 30, 2015 report, Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as a DMA, recommended a second opinion impairment evaluation as

Dr. Schiffman’s June 5, 2013 operative report indicated that he had performed a partial 

meniscectomy rather than a total meniscectomy of the right knee, which would result in a lesser 

degree of permanent impairment. He noted that, because Dr. Schiffman’s February 20, 2013 

operative report failed to indicate that a total left knee meniscectomy was performed, there was 

no support for rating the left knee for that surgical procedure. 

On March 1, 2016 QTC Medical Services, OWCP’s scheduler, referred appellant, along 

with a statement of accepted facts (SOAF), the medical record, and a set of questions, to

Dr. Kevin J. Pelton, a Board-certified orthopedic surgeon, for a second opinion on whether 

appellant had permanent impairment due to his accepted work injuries.

In a March 21, 2016 report, Dr. Pelton noted his review of the SOAF and medical record. 

He noted appellant’s history and current complaints of frequent left plantar foot pain which 

appellant described as 4 on a scale of 0 to 10 and a 6 with prolonged walking, standing, and 

ascending or descending stairs. Appellant had a slight right leg limp. On neurological 

examination, Dr. Pelton found symmetrical deep tendon reflexes. There was normal sensation 

over the bilateral anterior lateral thighs, anterior lower leg, and dorsal feet. There was no

evidence of motor deficits. Appellant had mild palpable tenderness over the bilateral medial and 

lateral joint lines. A patellofemoral grind test was positive bilaterally. Muscle strength was 

normal. Valgus and varus stress test was negative bilaterally. Bilateral negative McMurray’s, 

negative anterior and posterior drawer, negative Lachman’s, and negative pivot shift test were 
4

also noted. Dr. Pelton diagnosed bilateral knee sprain; status post left knee arthroscopy with 

chondroplasty, medial and lateral plica release, anterior synovectomy and minimal lateral 

retinacular release for patellar balance; status post right knee arthroscopy with minimal lateral 

retinacular release, anterior synovectomy, debridement of the fat pad, and subtotal medial 

meniscectomy of the posterior horn; and radiographic evidence of three-millimeter joint space of 

the medial compartment bilaterally. 

Dr. Pelton advised that appellant’s left knee regional impairment was consistent with a 

class 1 mild soft tissue injury with a default permanent impairment rating of two percent.4 He 

opined that appellant had only mild residuals after surgery and that there was no evidence of a 

DBI estimated impairment based on the surgery. Dr. Pelton assigned a grade modifier 1 for mild 

functional history, mild physical examination, and mild clinical studies. He applied the net 

adjustment formula and found a net adjustment of zero, for a default grade C, two percent 

impairment of the left leg, which converted to one percent whole person permanent impairment.

Dr. Pelton determined that appellant’s right knee arthroscopy diagnoses represented a class 1 

subtotal medial meniscectomy with default leg permanent impairment of two percent.

5

 He

advised that appellant had continued slight residual functional losses and assigned a grade 

modifier 2 for slight functional history, moderate physical examination, and positive clinical 

studies. Dr. Pelton used the net adjustment formula and calculated a net adjustment of 2, which 

moved the default, grade C impairment to grade E, for three percent permanent impairment of 

the right leg. He determined that appellant had reached MMI on December 12, 2014, the date of

Dr. Schiffman’s evaluation.

On May 17, 2016 Dr. Katz, again serving as DMA, reviewed the updated medical record, 

including Dr. Pelton’s second opinion report, and concurred with his findings and calculations.

By decision dated October 19, 2016, OWCP found that the weight of the medical 

evidence rested with the opinions of Drs. Pelton and Katz and concluded that appellant was not 

entitled to additional schedule awards for either lower extremity.

On October 24, 2016 appellant, through counsel, requested a telephone hearing with an 

OWCP hearing representative. The hearing was held on April 25, 2017. 

By decision dated June 19, 2017, the hearing representative affirmed the October 19, 

2016 decision as to the lower extremity schedule awards. She found that the weight of the 

medical evidence rested with the opinion of Dr. Katz serving as OWCP’s DMA and concluded 

that appellant was not entitled to schedule awards greater than that which was previously 

awarded for the right and left lower extremities.

LEGAL PRECEDENT

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 

 

4 A.M.A., Guides 509, Table 16-3.

5

Id.
5

permanent impairment of the scheduled member or function.6 Neither FECA,7 nor its 

implementing regulations8specify 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.9 For schedule awards after May 1, 2009, permanent impairment is evaluated under 

the sixth edition.10

With respect to 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, Table 16-6, physical 

examination, Table 16-7, and clinical studies, Table 16-8. The adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).11

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 

three percent permanent impairment of each lower extremity.

OWCP accepted appellant’s claim for sprain and unspecified internal derangement of the 

bilateral knees and temporary aggravation of unspecified arthropathy of the right lower leg. On 

February 20, 2013 appellant underwent an authorized left knee arthroscopic chondroplasty, 

medial and lateral plica release, anterior synovectomy, and minimal lateral retinacular release for 

patella balance. He underwent an authorized right knee arthroscopic minimal lateral retinacular 

release, anterior synovectomy, debridement of fat pad, and subtotal medial meniscectomy of the 

posterior horn on June 5, 2013. On March 18, 2015 OWCP awarded three percent permanent

impairment of each lower extremity. On November 13, 2015 an OWCP hearing representative 

remanded the matter to OWCP for clarification on the extent of appellant’s permanent 

impairment. 

Following remand of the case by OWCP’s hearing representative OWCP requested that

Dr. Katz, a DMA, review the December 12, 2014 report of appellant’s physician, Dr. Schiffman,

who had found that appellant had eight percent permanent impairment of each leg under the sixth 

edition of the A.M.A., Guides. On November 30, 2015 Dr. Katz recommended a second opinion 

 

6 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).

7

Id.

8 20 C.F.R. § 10.404.

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

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

11 The net adjustment is up to +2 (grade E) or -2 (grade A).
6

impairment evaluation as the surgical procedures described in Dr. Schiffman’s February 20 and 

June 5, 2013 operative reports failed to support his permanent impairment ratings. 

Appellant was then referred to Dr. Pelton for a second opinion. In his March 21, 2016 

report, Dr. Pelton found that he had three percent permanent impairment of the right leg and two 

percent permanent impairment of the left leg under the sixth edition of the A.M.A., Guides. He 

reviewed appellant’s history, conducted a physical examination, and stated diagnoses. In 

calculating impairment for the right leg, Dr. Pelton selected the diagnosis of subtotal medial 

meniscectomy, which represented a class 1 impairment.

12

 He assigned a grade modifier 2 for 

slight functional history, moderate physical examination, and positive clinical studies. Dr. Pelton 

applied the net adjustment formula and found a net adjustment of 2, class E, for a permanent

impairment rating of three percent for the right lower extremity. Regarding the left lower 

extremity, he selected the diagnosis of mild soft tissue injury.13 Dr. Pelton assigned a grade 

modifier 1 for mild functional history, mild physical examination, and mild clinical studies. He 

applied the net adjustment formula and found a net adjustment of zero, class E, for a permanent

impairment rating of two percent for the left lower extremity. In his May 17, 2016 report,

Dr. Katz concurred with the permanent impairment ratings calculated by Dr. Pelton.

The Board finds that Dr. Pelton properly applied the A.M.A., Guides and determined that 

appellant had three percent right lower extremity permanent impairment and two percent left 

lower extremity permanent impairment.

As stated above, Dr. Schiffman, in his December 12, 2014 report, found that appellant 

had eight percent permanent impairment each of the right and left knee based on a total medial or 

lateral meniscectomy. He improperly based his impairment ratings on this surgical procedure. 

Dr. Schiffman’s June 5, 2015 operative report noted that a subtotal medial meniscectomy of the 

posterior horn of the right knee was performed and his February 20, 2013 operative report did 

indicate that a left knee total meniscectomy was performed. The Board finds, therefore, that his 

opinion is of diminished probative value and insufficient to establish greater permanent

impairment as it does not conform to the procedures of the A.M.A., Guides.

14

The Board finds that appellant has not demonstrated greater than three percent permanent 

impairment of the right and left lower extremities, for which he previously received a schedule 

award.

On appeal counsel contends that the extent of appellant’s injury was minimized rather 

than maximized. He asserts that appellant is entitled to full benefits under the law. However, for 

the reasons set forth above, the Board finds that, the weight of the medical evidence does not 

establish that appellant has greater than the three percent permanent impairment of each lower 

extremity previously awarded. There is no medical evidence of record, in conformance with the 

A.M.A., Guides, which supports any greater impairment.

 

12 Supra note 4.

13 Id.

14 See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative 

value where the A.M.A., Guides are not properly followed). 
7

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 failed to meet his burden of proof to establish more 

than three percent permanent impairment of each lower extremity, for which he previously 

received schedule awards.

ORDER

IT IS HEREBY ORDERED THAT the June 19, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 6, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board