United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

South Euclid, OH, Employer 

__________________________________________ 

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Docket No. 16-1093 

Issued: October 17, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On April 29, 2016 appellant, through counsel, filed a timely appeal from a January 21, 

2016 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. 

ISSUE 

The issue is whether appellant has more than 31 percent permanent impairment to his 

right leg, for which he has received schedule awards. 

                                                             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

FACTUAL HISTORY 

On September 3, 2002 appellant, then a 39-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that his right knee condition was causally related to his 

federal employment. On the claim form he attributed right knee osteoarthritis to years of 

carrying mail while walking four to five miles per day. Appellant indicated that he first became 

aware of the condition on March 1, 1995 and its relationship to his federal employment on 

February 1, 2001. 

The record indicates that appellant had undergone right knee arthroscopic surgery on 

May 11, 1995 by Dr. John Bergfeld, an orthopedic surgeon. The postoperative diagnosis was 

degenerative arthritis with torn lateral meniscus and articular cartilage changes. Appellant also 

underwent right knee arthroscopic surgery on June 25, 2002. OWCP accepted aggravation of 

right knee arthritis on January 22, 2003. Appellant was paid wage-loss compensation from 

July 13 to September 13, 2002. He submitted a claim for compensation (Form CA-7) on April 4, 

2003 requesting a schedule award. 

OWCP referred appellant for a second opinion examination by Dr. Sheldon Kaffen, a 

Board-certified orthopedic surgeon. In a report dated July 2, 2003, Dr. Kaffen provided a history 

and results on examination. As to permanent impairment, he applied the fifth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment and found 

that appellant had 20 percent right leg impairment due to loss of range of motion in the right 

knee. By report dated August 8, 2003, an OWCP medical adviser opined that appellant had 20 

percent right leg impairment based on loss of knee range of motion. 

By decision dated August 21, 2003, OWCP issued a schedule award for 20 percent 

permanent impairment to the right leg. The period of the award was 57.60 weeks from 

January 1, 2003. 

Appellant filed a claim for a recurrence of disability (Form CA-2a) on December 4, 2009, 

asserting that he continued to have right knee pain. By decision dated March 2, 2010, OWCP 

denied the claim for a recurrence of disability. 

In a report dated May 18, 2012, Dr. Robert Molloy, a Board-certified orthopedic surgeon, 

indicated that appellant underwent a total right knee arthroplasty surgery. On September 3, 2013 

appellant submitted an August 15, 2013 report from Dr. John Dunne, an osteopath. Dr. Dunne 

provided a history and results on examination. He opined that under the sixth edition of the 

A.M.A., Guides appellant had 59 percent right leg permanent impairment. Dr. Dunne opined 

that under Table 16-3 appellant had a class 4, grade A impairment for total knee replacement of 

59 percent. 

The case was referred to an OWCP medical adviser, Dr. Morley Slutsky Board-certified 

in occupational medicine, for review. In a report dated October 9, 2013, he requested that 

additional evidence from Dr. Molloy be obtained. No additional evidence was received. 

By decision dated January 10, 2014, OWCP found that appellant was not entitled to an 

additional schedule award. 
3

Appellant’s counsel requested a telephone hearing before an OWCP hearing 

representative on January 13, 2014. 

On February 21, 2014 OWCP received medical reports from Dr. Molloy. The most 

recent report was June 26, 2013, in which Dr. Molloy provided results on examination and 

indicated that appellant had 0 degrees extension and 120 degrees of flexion, with no effusion. 

He wrote that appellant was doing well postoperatively. 

In a decision dated September 17, 2014, an OWCP hearing representative remanded the 

case to OWCP for further development. The hearing representative indicated that the medical 

record should be referred to an OWCP medical adviser for review. 

In a report dated September 22, 2014, Dr. Slutsky reviewed the medical evidence and 

opined that appellant had 21 percent right leg permanent impairment under Table 16-3. He 

found that the permanent impairment was a class 2, grade A impairment for total knee 

replacement. 

OWCP found that a conflict existed in the medical evidence between Dr. Dunne and 

Dr. Slutsky with respect to the degree of permanent impairment in the right leg. It selected 

Dr. James Rutherford, a Board-certified orthopedic surgeon, as an impartial medical specialist. 

In a report dated January 22, 2015, Dr. Rutherford provided a history and results on examination. 

As to permanent impairment in the right leg, he opined that under Table 16-3 appellant had 31 

percent permanent impairment, for a class 3, grade A impairment for total knee replacement. 

Dr. Rutherford explained that appellant had a fair result from the surgery, with mild motion 

deficit. He discussed the grade modifiers applied in determining a grade A impairment, 

indicating that grade modifier one was used for functional history and physical examination. As 

to functional history, Dr. Rutherford appellant limped a little, which would be a grade modifier 

one under 4 Table 16-6. 

The medical evidence was referred to an OWCP medical adviser for review. By report 

dated April 9, 2015, an OWCP medical adviser, Dr. Daniel D. Zimmerman, a Board-certified 

internist, concurred that the right leg impairment was 31 percent. He opined that date of 

maximum medical improvement was January 22, 2015, the date of Dr. Rutherford’s 

examination. 

By decision dated April 20, 2015, OWCP issued a schedule award for an additional 11 

percent permanent impairment to the right leg. The period of the award was 31.68 weeks from 

January 22, 2015. 

Appellant, through counsel, requested a hearing before an OWCP hearing representative 

on May 7, 2015. A hearing was held on November 18, 2015. Counsel argued that 

Dr. Rutherford’s report should be clarified, as the permanent impairment should be 37 percent 

with a gait disturbance, citing a Board case W.B.3

 

                                                             3

 Docket No. 14-1982 (issued August 26, 2015). 
4

By decision dated January 21, 2016, the hearing representative affirmed the April 20, 

2015 OWCP decision. The hearing representative found that Dr. Rutherford represented the 

weight of the medical evidence and had properly applied the A.M.A., Guides. 

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 

permanent impairment of the scheduled member or function.4 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.5

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.6

 

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

16-3. The class of impairment Class of Diagnosis (CDX) 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).7 

5 U.S.C. § 8123(a) provides that when there is a disagreement between the physician 

making the examination for the United States and the physician of the employee, a third 

physician shall be appointed to make an examination to resolve the conflict.8 When there are 

opposing medical reports of virtually equal weight and rationale, the case must be referred to an 

impartial referee physician, pursuant to section 8123(a), to resolve the conflict in the medical 

evidence.9 It is well established that when a case is referred to an impartial medical specialist for 

the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized 

and based on a proper factual and medical background, must be given special weight.10 

                                                             4

 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). 

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

6

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

Chapter 2.808.5a (February 2013) and id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

7

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

8 Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a). 

9 William C. Bush, 40 ECAB 1064 (1989). 

10 Harrison Combs, Jr., 45 ECAB 716, 727 (1994). 
5

ANALYSIS 

In the present case, OWCP found a conflict in the medical evidence with respect to the 

degree of permanent impairment in the right leg based on appellant’s right knee condition. The 

Board notes that under Table 16-3, the diagnostic criteria of “total knee replacement” may be 

placed in class 2 (good result, with a default grade C permanent leg impairment of 25 percent), 

class 3 (fair result, with 37 percent default permanent impairment), or class 4 (poor result, 67 

percent default leg permanent impairment).11 Once the class is determined the default (grade C) 

impairment may be adjusted according to application of grade modifiers. While Dr. Dunne and 

Dr. Slutsky, the medical adviser, agreed that there was a grade A impairment for total knee 

replacement, they clearly disagreed as to the result of the surgery and therefore the class of 

impairment to be assigned. Dr. Dunne found a poor result for surgery, while Dr. Slutsky found a 

good result. 

The impartial medical specialist, Dr. Rutherford, provided a rationalized opinion that the 

proper application of Table 16-3, based on examination results, was a class 3 permanent 

impairment for a fair result. He noted mild motion deficit which was consistent with a fair 

result. Dr. Rutherford explained that applying the net adjustment formula resulted in a grade A 

(-2) impairment, which was consistent with both Dr. Dunne and Dr. Slutsky. At the hearing 

counsel referred to W.B., wherein the Board found that, based on the medical evidence, the 

claimant’s impairment was 37 percent under Table 16-3. In that case, the Board found that there 

was no conflict in the medical evidence, and none of the grade modifiers were applicable, but 

this does not establish that in all cases a fair result from a total knee replacement must result in 

the default impairment of 37 percent. Each case is dependent on the medical evidence of record. 

Dr. Rutherford explained that for functional history the grade modifier was one, based on Table 

16-6. Under this table an antalgic limp that is correctable with footwear or orthotics is a grade 

one.

12 This was consistent with his examination findings. Using the net adjustment formula 

(GMFH - CDX) the result is 1-3 or -2, without use of physical examination or clinical studies.13 

Therefore, the impairment was properly found to be a grade A, class 3 permanent impairment of 

31 percent. 

The Board finds that the special weight of the medical evidence was represented by the 

impartial medical specialist, who provided a rationalized medical opinion that the right leg 

permanent impairment under the sixth edition of the A.M.A., Guides was 31 percent. As noted 

above, a rationalized opinion from an impartial medical specialist is given special weight. The 

Board finds that the evidence of record does not establish more than 31 percent right leg 

permanent impairment. 

                                                             11 A.M.A., Guides 511, Table 16-3. 

12 Id. at 516, Table 16-6. 

13 It appeared that Dr. Rutherford had used range of motion in determining the diagnostic class, and therefore 

range of motion would not be used to determine a grade modifier for physical examination. A.M.A., Guides 516. 

Dr. Rutherford did not cite to clinical studies and did not apply a grade modifier in this regard. 
6

Appellant may request a schedule award or increased schedule award based evidence of a 

new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant had not established more than 31 percent permanent 

impairment to his right leg, for which he has received schedule awards. 

ORDER 

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

Compensation Programs dated January 21, 2016 is affirmed. 

Issued: October 17, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board