United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Marysville, CA, Employer 

__________________________________________ 

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Docket No. 16-1768 

Issued: January 30, 2017 

Appearances: Case Submitted on the Record

Appellant, pro se 

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 August 30, 2016 appellant filed a timely appeal from a March 3, 2016 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1

 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

 Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an 

OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. 

§ 501.3(e)-(f). One hundred and eighty days from OWCP’s March 3, 2016 decision was August 30, 2016. Since 

using September 1, 2016, the date the appeal was received by the Clerk of the Appellate Boards would result in the 

loss of appeal rights, the date of the postmark or other carriers’ date marking is considered the date of filing. The 

date of the other carriers’ date marking is August 30, 2016, rendering the appeal timely filed. See 20 C.F.R. 

§ 501.3(f)(1). 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUE 

The issue is whether appellant has more than 15 percent permanent impairment of the left 

lower extremity. 

FACTUAL HISTORY 

On December 14, 2006 appellant, then a 43-year-old customer service supervisor, filed a 

traumatic injury claim (Form CA-1) alleging that on November 18, 2006 she hyperextended her 

left knee in the performance of duty. She did not stop work. OWCP accepted the claim for a 

tear of the left medial meniscus and primary osteoarthritis of the left knee. 

Appellant underwent a left knee arthroscopy on July 12, 2007. Dr. Lee P. Tocchi, an 

attending Board-certified orthopedic surgeon, performed a left subtotal meniscectomy of the 

medial meniscus and a chondroplasty of the medial femoral condyle, medial tibial plateau, 

trochlea, and patella on March 6, 2009. On May 16, 2014 he performed a repeat subtotal medial 

meniscectomy and chondroplasty of the medial femoral condyle, trochlea, and patella. 

In a progress report dated November 5, 2014, Dr. Tocchi noted that appellant had some 

varus valgus instability and a “slightly antalgic” gait. On June 17, 2016 he advised that appellant 

experienced some left knee hyperextension, instability, and locking. On examination, Dr. Tocchi 

found 120 to 125 degrees flexion, full extension, varus valgus instability, swelling, and crepitus 

of the patellofemoral joint. He diagnosed primary osteoarthritis of the left knee. 

Appellant on July 20, 2015 claimed a schedule award (Form CA-7). She indicated that 

she had retired from the employing establishment in 2010.3

 In a July 20, 2015 telephone call, 

appellant informed OWCP that Dr. Tocchi could not evaluate permanent impairment. 

On August 21, 2015 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified 

orthopedic surgeon, for a second opinion evaluation regarding the extent of any left knee 

permanent impairment. In a report dated October 23, 2015, Dr. Swartz reviewed her history of a 

November 2006 left knee work injury and resulting surgeries. On examination he found medial 

tenderness, some crepitus, and no instability of the left knee. Dr. Swartz noted that appellant 

used a cane. He measured range of motion as negative 15 to 90 degrees and a loss of 

circumference of the left thigh and calf. Dr. Swartz determined that appellant had “crepitus with 

motion in the left knee and limited motion” and noted that the operative report of May 16, 2014 

found grade 4 chondromalacia. He referred appellant for standing x-rays of the knees bilaterally. 

X-rays of the left knee, obtained on December 3, 2015, revealed a progressive loss of 

joint space medially with osteophytosis compared with 2012 diagnostic studies. The x-rays 

revealed 4.2 millimeters of medial compartment joint space, 4.8 millimeters of lateral 

compartment joint space, 4 millimeters of medial femoral patellar joint space, and 1 millimeter 

of lateral femoral patellar joint space. 

 3

 Appellant also noted that she had received a schedule award for her right knee under another OWCP file 

number. 
3

In a supplemental report dated December 20, 2015, Dr. Swartz reviewed the x-ray 

findings. Referencing Table 16-3 on page 511 of the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he found that 

one millimeter of patellofemoral cartilage interval constituted a class 2, or 15 percent lower 

extremity impairment. Dr. Swartz applied a grade modifier of one for functional history as 

appellant had pain with ambulation but did not limp or use a cane. He determined that was 

basically an antalgic gait. He applied a grade modifier of three for physical examination findings 

of severe motion loss. Dr. Swartz utilized the net adjustment formula and found no adjustment 

from the 15 percent default value. He concluded that appellant had 15 percent permanent 

impairment of the left lower extremity and that she had reached maximum medical improvement 

on October 23, 2015. 

An OWCP medical adviser reviewed the opinion of Dr. Swartz on January 12, 2016 and 

concurred with his findings. 

By decision dated March 3, 3016, OWCP granted appellant a schedule award for 15 

percent permanent impairment of the left lower extremity. The period of the award ran for 43.2 

weeks from October 23, 2015 to August 20, 2016. 

On appeal, appellant questions why she received a greater schedule award for her right 

knee impairment under another file number when physicians determined that her left knee 

condition was more severe than her right knee condition. She also maintains that Dr. Swartz did 

not perform an adequate examination and inaccurately determined that she did not limp, use a 

cane, or have instability. Appellant notes that in a report dated November 15, 2014, Dr. Tocchi 

found that she had a mildly antalgic gait. 

LEGAL PRECEDENT 

The schedule award provision of FECA,4 and its implementing federal regulation,5 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.6

 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.7

The sixth edition requires identifying the impairment Class of Diagnosis (CDX) 

condition, which is then adjusted by grade modifiers based on Functional History (GMFH), 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 

6 Id. at § 10.404(a). 

7

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

Chapter 2.808.5a (February 3013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 

(January 2010). 
4

Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is 

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

ANALYSIS 

OWCP accepted that appellant sustained a left medial meniscal tear and left knee 

osteoarthritis due to a November 18, 2006 employment injury. Appellant underwent 

arthroscopic surgery on July 12, 2007. On March 6, 2009 and May 16, 2014 Dr. Tocchi 

performed a subtotal meniscectomy of the medial meniscus and chondroplasty. 

On July 20, 2015 appellant claimed a schedule award and advised OWCP that Dr. Tocchi 

could not provide an impairment evaluation. OWCP referred her to Dr. Swartz for a second 

opinion examination. 

Dr. Swartz, in his impairment evaluation on October 23, 2015, measured range of motion 

of the left knee as negative 15 to 90 degrees and found reduced left thigh and calf circumference. 

He further found medial tenderness and crepitus of the left knee without instability. Dr. Swartz 

noted that appellant used a cane. He reviewed the findings from the May 16, 2014 operative 

report diagnosing grade 4 chondromalacia and referred appellant for standing knee x-rays. Left 

knee x-rays dated December 3, 2015 showed 4.2 millimeters of medial compartment joint space, 

4.8 millimeters of lateral compartment joint space, 4 millimeters of medial femoral patellar joint 

space, and 1 millimeter of lateral femoral patellar joint space. In his December 20, 2015 

addendum, Dr. Swartz found that, under Table 16-3 on page 511 of the A.M.A., Guides, one 

millimeter of patellofemoral cartilage interval yielded a class 2, or 15 percent permanent 

impairment of the leg. He applied a grade modifier of one for functional history due to 

appellant’s pain while walking without a limp or use of a cane and a grade modifier of three for 

reduced motion on physical examination. Dr. Swartz used the net adjustment formula and 

concluded that appellant had 15 percent permanent impairment of the left leg.9

 An OWCP 

medical adviser reviewed Dr. Swartz’ reports on January 12, 2016 and agreed with his 

impairment rating. 

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

determined that one millimeter of patellofemoral cartilage interval yielded a default value of 15 

percent under Table 16-3 of the A.M.A., Guides. As argued by appellant on appeal, however, 

the physician noted that she used a cane in his original report but, in his December 20, 2013 

addendum, indicated that she did not use a cane. Based on this finding, Dr. Swartz determined 

that appellant had a grade modifier of one for functional history. Table 16-6 on page 516 of the 

A.M.A., Guides provides that the use of a single gait aid such as a cane or crutch constitutes a 

grade two modifier for functional history. The Board, consequently, finds that the case should be 

remanded for OWCP to obtain clarification from Dr. Swartz regarding the appropriate grade 

 8

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

9

 Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) or (1-2) + (3-2) = 0, 

yielded a zero adjustment. A grade modifier for clinical studies is not applicable as it was used to place appellant in 

the appropriate class. See A.M.A., Guides 521. 
5

modifier for functional history applicable in this case. Following such further development as 

OWCP deems necessary, it should issue an appropriate decision. 

CONCLUSION 

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

ORDER 

IT IS HEREBY ORDERED THAT the March 3, 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: January 30, 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