United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Fairborn, OH, Employer 

__________________________________________ 

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Docket No. 17-0174 

Issued: May 8, 2017 

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 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On November 3, 2016 appellant, through counsel, filed a timely appeal from a 

September 13, 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 13 percent permanent impairment of the left 

lower extremity, for which she previously received a schedule award. 

 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 July 29, 2008 appellant, then a 41-year-old mail carrier, filed a traumatic injury claim 

(Form CA-1) alleging that on July 23, 2008 she injured her left knee when she slipped on a step 

in the performance of duty. OWCP accepted the claim on December 23, 2008 for buttock 

contusion, left knee sprain/strain, and left knee medial meniscus tear. Appellant received wageloss compensation from February 10 to March 14, 2009. 

The record indicates that on January 25, 2011 appellant underwent a left knee partial 

medial meniscectomy, performed by Dr. Kevin Paley, an orthopedic surgeon. She filed a claim 

for a recurrence of disability (Form CA-2a) and began receiving wage-loss compensation as of 

January 25, 2011. On July 1, 2013 appellant accepted a job offer from the employing 

establishment for a modified letter carrier position. 

Appellant filed a claim for a schedule award (Form CA-7) on March 11, 2014. By 

decision dated May 5, 2014, OWCP found appellant was not entitled to a schedule award. It 

found there was no medical evidence of record supporting a left knee permanent impairment. 

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

on May 8, 2014. The hearing was held on December 2, 2014. 

In a report dated December 8, 2014, Dr. Martin Fritzhand, a Board-certified urologist, 

provided a history and results on examination. Flexion of the left knee was 90 degrees, and 

flexion contracture 20 degrees. Dr. Fritzhand opined that appellant had reached maximum 

medical improvement (MMI) in January 2014. As to permanent impairment of the left lower 

extremity, he applied Table 16-23 for knee range of motion. Dr. Fritzhand opined that there was 

no category on the diagnosis-based grid to account for appellant’s permanent impairment. Based 

on Table 16-23, he found 10 percent permanent impairment for loss of flexion and 35 percent for 

loss of flexion contracture, totaling 45 percent left lower extremity permanent impairment. 

By decision dated February 18, 2015, the hearing representative set aside OWCP’s 

May 5, 2014 decision and remanded the case to OWCP. She found the evidence was sufficient 

to warrant referral of the evidence to an OWCP medical adviser. 

In a report dated April 8, 2015, Dr. Morley Slutsky, an OWCP medical adviser Boardcertified in occupational medicine, opined that appellant had five percent left lower extremity 

permanent impairment. He found that Table 16-3, the knee regional grid, should be applied, 

with a diagnosis of left knee patellofemoral arthritis. 

OWCP thereafter found that a conflict in the medical evidence was created, and 

Dr. James Davidson, a Board-certified orthopedic surgeon, was selected as a referee physician. 

In a report dated June 27, 2015, Dr. Davidson found that appellant had 13 percent permanent 

impairment under Table 16-3. He indicated that the diagnosis was left knee strain, with 

moderate loss of range of motion. 

Another OWCP medical adviser, Dr. Daniel Zimmerman, an internist, reviewed the 

evidence and provided a July 26, 2015 report. He opined that appellant had 12 percent left lower 
3

extremity permanent impairment under Table 16-3 of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides). 

On July 28, 2015 OWCP expanded acceptance of the claim to include aggravation of left 

knee arthritis. It also requested that Dr. Davidson provide clarification of his opinion regarding 

permanent impairment. In an August 26, 2015 note, OWCP indicated that his office had 

informed OWCP that he would not provide an additional report. 

OWCP then selected Dr. Bernard Bacevich, a Board-certified orthopedic surgeon, as a 

referee physician. In a report dated October 1, 2015, Dr. Bacevich provided a history and results 

of a September 30, 2015 examination. He reported 115 degrees of flexion, with 23 degrees 

flexion contracture in the left knee. Dr. Bacevich indicated that he would use the diagnosis of 

sprain/strain under Table 16-3. He wrote, “Since [appellant’s] primary problem has been loss of 

motion, this would be a more appropriate category” than using a meniscal injury diagnosis under 

Table 16-3. Dr. Bacevich opined that appellant had moderate motion deficits and/or significant 

weakness, with 10 percent (grade C) default impairment. He found that appellant had 13 percent 

permanent impairment based on +2 adjustment to grade E, based on functional history, physical 

examination, and clinical studies. 

In a report dated December 3, 2015, another OWCP medical adviser, Dr. Michael M. 

Katz, opined that Dr. Bacevich correctly applied the A.M.A., Guides. He reported the date of 

MMI was September 30, 2015. 

By decision dated December 17, 2015, OWCP issued a schedule award for 13 percent left 

lower extremity permanent impairment. The period of the award was 37.44 weeks from 

January 8, 2014. 

On December 28, 2015 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. On April 13, 2016 appellant submitted a report dated March 18, 2016 

from Dr. Fritzhand. He opined that loss of range of motion was the appropriate methodology to 

determine permanent impairment in this case. A hearing was held on August 3, 2016. 

By decision dated September 13, 2016, the hearing representative found appellant did not 

establish more than 13 percent left lower extremity permanent impairment for which she 

previously received a schedule award. The hearing representative found the weight of the 

evidence was represented by Dr. Bacevich. 

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.3 Neither FECA nor the regulations 

specify the manner in which the percentage of impairment for a schedule award shall be 

 3

 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). 
4

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.4

 For schedule 

awards after May 1, 2009, the impairment is evaluated under the sixth edition.5 

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

16-3.6 The 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, physical examination, and clinical studies. Table 

16-23 of the A.M.A., Guides provides a method of evaluating leg permanent impairment based 

on knee motion impairments for loss of flexion or loss of flexion contracture.7

 

ANALYSIS 

OWCP had found a conflict in the evidence under 5 U.S.C. § 8123(a) with regard to 

appellant’s left knee permanent impairment and selected a referee physician.8

 Dr. Fritzhand had 

opined that appellant had 45 percent permanent impairment under Table 16-23, for loss of left 

knee range of motion. An OWCP medical adviser, Dr. Slutsky, found the impairment was five 

percent under Table 16-3, the diagnosis-based regional grid for the knee. The initial physician 

selected as a referee, Dr. Davidson, provided a June 27, 2015 report. When asked to provide 

clarification, Dr. Davidson declined, and OWCP then selected Dr. Bacevich.9

The October 1, 2015 report from Dr. Bacevich opined that appellant had 13 percent 

permanent impairment under the diagnosis-based regional grid, Table 16-3, but there was an 

issue that he failed to address prior to the application of Table 16-3. The A.M.A., Guides

indicate that the diagnosis-based method is the primary method of lower extremity permanent 

impairment evaluation.10 This does not mean, however, that the range of motion method under 

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

5 See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Award, Chapter 3.700, Exhibit 1 

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability 

Claims, Chapter 2.808.5a (February 2013). 

6

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

7 Id. at 549, Table 16-23. 

8

 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. 

9

 At the August 3, 2016 hearing, counsel indicated that he had not seen evidence regarding the selection of 

Dr. Bacevich. The record contains a ME023 appointment notification and a bypass history, in accord with OWCP 

procedures. Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 

3.500.5 (May 2013). 

10 Supra note 6 at 497. 
5

Table 16-23 is precluded,11 nor has the Board held that using Table 16-23 to evaluate a lower 

extremity permanent impairment is without probative value.12 

Dr. Bacevich did not address the issue of whether a range of motion evaluation under 

Table 16-23 would be appropriate. He applied Table 16-3, and referred only to the use of the 

knee strain diagnosis under that table. It is particularly important to address the issue of whether 

Table 16-23 would be applicable in this case, as (1) Dr. Fritzhand used such an approach, and 

(2) Dr. Bacevich himself indicated that appellant’s “primary problem has been loss of motion.” 

Dr. Bacevich’s examination results indicated a flexion contracture of 23 degrees, which would 

be 35 percent permanent impairment of the lower extremity under Table 16-23.13

The case will be remanded to OWCP to secure a clarifying report from the referee 

physician.14 Dr. Bacevich should be asked to explain whether application of Table 16-23 would 

be appropriate in this case under the A.M.A., Guides to properly determine the left lower 

extremity permanent impairment. 

The Board also notes that the December 17, 2015 schedule award commenced on 

January 8, 2014. The period covered by a schedule award commences on the date that the 

claimant reaches MMI from the residuals of the injury. The determination of such date is to be 

made in each case upon the basis of the medical evidence in that case.15 Dr. Bacevich examined 

appellant on September 30, 2015, and OWCP’s medical adviser, Dr. Katz, had used this date as 

the MMI date. On return of the case record OWCP should clarify the date of MMI in this case 

and explain its findings. After such further development as is deemed necessary, OWCP should 

issue a de novo decision. 

CONCLUSION 

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

 11 The A.M.A. Guides notes that in some cases range of motion will serve as an alternate approach. Supra note 6 

at 500. When regional grids refer to the range of motion section, or no diagnosis-based approach is applicable, 

range of motion may be used as a stand-alone method. 

12 When an attending physician has provided a probative medical opinion using Table 16-23, the Board has 

indicated the evidence is sufficient to require further development. See P.W., Docket No. 16-0684 (issued 

October 3, 2016); J.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued 

January 8, 2016). 

13 Supra note 6 at 549. 

14 A referee physician must resolve the conflict in the medical evidence, not an OWCP medical adviser or other 

physician. Richard R. Lemay, 56 ECAB 341 (2005). 

15 L.H., 58 ECAB 561 (2007). 
6

ORDER 

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

Compensation Programs dated September 13, 2016 is set aside and the case remanded for further 

action consistent with this decision of the Board. 

Issued: May 8, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board