United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.I., Appellant

and

U.S. POSTAL SERVICE, STONYBROOK POST 

OFFICE, Stonybrook, NY, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 18-0377

Issued: August 27, 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

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 18, 2017 appellant, through counsel, filed a timely appeal from an 

October 10, 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 to consider the merits of the 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 has more than eight percent permanent impairment of his 

right lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On February 15, 2013 appellant, then a 56-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his right knee on February 13, 2013. He reported that 

after he placed mail in a mailbox, a snow bank collapsed as he stepped towards his vehicle. By 

decision dated July 25, 2013, OWCP accepted appellant’s claim for tear of the right lateral 

meniscus and partial tear of the anterior cruciate ligament (ACL) on the right.

On April 24, 2013 appellant underwent a magnetic resonance imaging (MRI) scan of his 

right knee which demonstrated postsurgical changes of the medial meniscus, and vertical tear of 

the lateral meniscus, osteoarthritis, and high-grade partial tear of the ACL with mild anterior tibial 

translation. On October 18, 2013 his attending physician, Dr. John Brennan, a Board-certified 

orthopedic surgeon, performed right knee surgery authorized by OWCP. This surgery consisted 

of arthroscopy with partial medial and lateral meniscectomies and debridement. Appellant 

returned to full-duty work on November 2, 2013.

On September 11, 2014 appellant filed a recurrence of his medical condition (Form 

CA-2a). He reported that he developed gradual discomfort and decline in his right knee. Appellant 

alleged that he now had a total tear of his ACL on the right. By decision dated November 19, 

2014, OWCP accepted his claimed recurrence and authorized a second right knee arthroscopy.

On November 21, 2014 Dr. Brennan performed right ACL reconstruction using allograft. 

On February 12, 2015 OWCP entered appellant on the periodic rolls for wage-loss compensation.

In a letter dated May 8, 2015, OWCP referred appellant, a statement of accepted facts 

(SOAF), and list of specific questions to Dr. David Benatar, a Board-certified orthopedic surgeon, 

for a second opinion evaluation. Dr. Benatar completed a report on May 26, 2015 and listed 

appellant’s history of two work-related right knee surgeries, and a third including a meniscectomy 

when appellant was 25 years old. He reviewed appellant’s medical history and performed a 

physical examination finding a minimally antalgic gait on the right with a small knee effusion. 

Dr. Benatar reported slight weakness to right knee extension, but full range of motion. He found 

significant medial tenderness and a strong McMurray’s sign medially. Dr. Benatar also reported 

some atrophy, significant crepitus, mild pain on patellar grind, and minimal stability of the ACL. 

He concluded that appellant had disabling residuals related to his accepted condition, but that 

appellant could return to light duty with restrictions. Dr. Benatar also noted that appellant’s current 

condition was an aggravation of a preexisting condition. He diagnosed arthritis and reported that 

appellant’s arthritis had progressed.

On August 23, 2015 appellant elected to receive Office of Personnel Management 

retirement benefits rather than wage-loss compensation benefits from OWCP.
3

On August 24, 2015 appellant filed a claim for a schedule award (Form CA-7). In a 

development letter dated September 11, 2015, OWCP requested additional medical evidence in 

support of his claim for permanent impairment of a scheduled member. It afforded appellant 30 

days for a response.

In a note dated September 9, 2015, Dr. Brannan reported that appellant had reached 

maximum medical improvement (MMI). He completed a separate note on September 9, 2015 and 

reported appellant’s symptoms of pain, weakness, and stiffness in his right leg. Dr. Brannan found 

no right knee effusion and “reasonably good range of motion.” He also reported that appellant’s 

ligamentous examination was stable. Dr. Brannan diagnosed tear of the medial meniscus. 

In a report dated January 8, 2016, Dr. Thomas P. Nipper, a Board-certified orthopedic 

surgeon, reviewed appellant’s history of injury, his 1990 right knee surgery, and his two recent 

knee surgeries. He found that appellant had reached MMI. Dr. Nipper applied the sixth edition of 

the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides)

3

and found that, based on the diagnosis-based impairment methodology, appellant had 10 

percent permanent impairment of his right lower extremity for successful ACL reconstructive 

surgery.4 He also found that appellant had an additional 3 percent permanent impairment for 

meniscectomy,

5

totaling 13 percent permanent impairment of the right lower extremity.

On March 24, 2016 OWCP referred the medical record and the SOAF to its medical adviser 

to determine the extent of appellant’s percentage of permanent impairment for schedule award 

purposes. In his May 25, 2016 report, OWCP’s medical adviser reviewed the medical evidence of 

record and found that it was insufficient to form the basis of a schedule award. He recommended 

an additional medical evaluation for schedule award purposes.

On October 17, 2016 OWCP referred appellant for a second opinion evaluation with

Dr. Joseph Estwanik, a Board-certified orthopedic surgeon. In his November 10, 2016 report, 

Dr. Estwanik reviewed the SOAF and appellant’s medical history. He noted that appellant’s MRIs 

demonstrated medial meniscus tear, ACL tear, and near full cartilage loss in the medial 

compartment, 50 percent loss of cartilage in the lateral tibial compartment, and abnormality of the 

patellofemoral joint. Dr. Estwanik opined that appellant’s loss of cartilage was preexisting and 

“unrelated to his current [w]orkers’ [c]ompensation claim.” On physical examination he found no 

significant patellofemoral crepitus, no effusion, and “a good Lachman test.” Dr. Estwanik noted, 

“only trace movement but a good endpoint and good surgical result.” He found that appellant had 

complete range of motion from 0 to 140 degrees. Dr. Estwanik noted pain with the medial 

McMurray’s test, but no catching or locking. He further found tenderness from the medial joint 

palpation which was associated with appellant’s “known and preexisting osteoarthritis.” 

Additionally, Dr. Estwanik found that appellant’s meniscectomy and ACL reconstruction were 

successful. He determined that appellant had reached MMI on May 1, 2015. Dr. Estwanik applied 

the A.M.A., Guides and found that appellant had a total 10 percent permanent impairment due to 

 

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

4

Id. at 510, Table 16-3.

5

Id. at 509.
4

meniscal injury, which was 2 percent permanent impairment, and ligament repair with mild laxity,

which was 8 percent permanent impairment.6 He concluded that appellant would eventually need 

a total knee replacement for this preexisting osteoarthritis.

OWCP’s medical adviser reviewed Dr. Estwanik’s report on December 3, 2016. He

applied the A.M.A., Guides and found that appellant’s impairment rating should be based on his 

partial medial and lateral meniscectomies, rather than based upon his ACL injury, with a default 

grade C of 10 percent impairment. The medical adviser found that appellant’s functional history 

grade modifier was zero as he had no antalgic gait and no pain inventory. He reached grade 

modifier one for physical examination as appellant had minimal palpatory findings on 

examination. The medical adviser determined that the clinical studies adjustment grade modifier 

should not be used as clinical studies were used to determine the impairment class. He then applied 

the net adjustment formula of the A.M.A., Guides to reach a negative one adjustment or grade B 

impairment of eight percent permanent impairment of the right lower extremity due to partial 

medial and lateral meniscectomies. The medical adviser determined the date of MMI was 

November 10, 2016.

OWCP referred its medical adviser’s report to Dr. Estwanik on December 6, 2016. 

Dr. Estwanik responded on December 12, 2016 and disagreed that the appropriate diagnosis-based 

estimate was the partial medial and lateral meniscectomies. He contended that the ACL tear was 

the most salient feature of appellant’s accepted conditions. Dr. Estwanik noted, “It is well known 

in knee surgery data that an ACL tear is considered ‘the beginning of the end of the knee.’”

On February 13, 2017 OWCP’s medical adviser disagreed with Dr. Estwanik and noted 

that appellant’s physical findings including good Lachman’s test, trace movement, and a good 

surgical result. He opined that these findings indicated that appellant “does not have any residual 

instability of the ACL after ACL reconstruction.” The medical adviser contended that to qualify 

for mild laxity appellant needed to demonstrate at least 5 millimeters of laxity and that

Dr. Estwanik did not document this finding in his evaluation. He concluded that the key factor for 

calculating impairment should be meniscal injury and not ACL tear.

By decision dated February 21, 2017, OWCP granted appellant a schedule award for eight

percent permanent impairment of his right lower extremity. 

On March 1, 2017 OWCP received counsel’s request for an oral hearing before an OWCP

hearing representative. Appellant appeared at the oral hearing on August 16, 2017 and his counsel 

contended that OWCP’s medical adviser failed to consider all the appropriate conditions for the 

basis of appellant’s schedule award. Counsel asserted that appellant’s employment injury 

aggravated his preexisting arthritis and that this condition should be considered in his impairment 

rating.

By decision dated October 10, 2017, OWCP’s hearing representative found that appellant 

had not established more than eight percent permanent impairment of his right lower extremity. 

He determined that the weight of the medical evidence rested with OWCP’s medical adviser 

regarding the application of the A.M.A., Guides. The hearing representative further determined

 

6

Id. at 509-10, Table 16-3.
5

that appellant had not established any additional employment-related conditions including 

preexisting arthritis as found by Dr. Estwanik which should be considered for schedule award 

purposes. 

LEGAL PRECEDENT

The schedule award provision of FECA7and its implementing regulations8set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment for loss 

of loss of use, of scheduled members or functions of the body. FECA, however, does not specify 

the manner in which the percentage loss of a member shall be determined. The method used in 

making such determination is a matter which rests in the discretion of OWCP. For consistent 

results and to ensure equal justice, the Board has authorized the use of a single set of tables so that 

there may be uniform standards applicable to all claimants. OWCP evaluates the degree of 

permanent impairment according to the standards set forth in the specified edition of the A.M.A., 

Guides, published in 2009.9 The Board has approved the use by OWCP of the A.M.A., Guides for 

the purpose of determining the percentage loss of use of a member of the body for schedule award 

purposes.10 It is well established that in determining the amount of a schedule award for a member 

of the body that sustained an employment-related impairment, preexisting impairments are to be 

included.11

The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment (DBI) 

method of determining the percentage of permanent impairment. In addressing lower extremity 

impairments, the sixth edition requires identifying the impairment class for the diagnosed 

condition, however, it appears that it should be Class of Diagnosis (CDX), which is then adjusted 

by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and 

Clinical Studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + 

(GMCS - CDX).13

ANALYSIS

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

 

7 Supra note 2.

8 20 C.F.R. § 10.404.

9 For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A., 

Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability 

Claims, Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, 

Chapter 3.700, Exhibit 1 (January 2010).

10 P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11 P.R., id.; Carol A. Smart, 57 ECAB 340 (2006).

12 A.M.A., Guides 515.

13 Id. at 521. J.B., Docket No. 09-2191 (issued May 14, 2010).
6

OWCP accepted appellant’s claim for tear of the right lateral meniscus and tear of the 

anterior cruciate ligament. It authorized two surgeries, arthroscopy with partial medial and lateral 

meniscectomies as well as right ACL reconstruction using allograft. OWCP granted appellant a 

schedule award for eight percent permanent impairment of his right lower extremity based on his 

partial medial and lateral meniscectomies. OWCP’s hearing representative further found that 

appellant was not entitled to have his preexisting right knee arthritis considered in his permanent 

impairment for schedule award purposes.

Appellant’s attending physician, Dr. Nipper, determined that appellant was entitled to a 

schedule award for 10 percent permanent impairment of his right lower extremity for successful 

ACL reconstructive surgery.14 He also found that appellant had an additional 3 percent permanent 

impairment for meniscectomy15 totaling 13 percent permanent impairment of the right lower 

extremity. Dr. Nipper did not provide any findings on physical examination supporting the 

selection of ACL as the appropriate diagnosis for rating or in support of any aspect of his 

impairment rating. Before the A.M.A., Guides can be utilized, a description of appellant’s 

impairment must be obtained from appellant’s physician. In obtaining medical evidence required 

for a schedule award, the evaluation made by the attending physician must include a description 

of the impairment including, where applicable, the loss in degrees of active and passive motion of 

the affected member or function, the amount of any atrophy or deformity, decreases in strength or 

disturbance of sensation, or other pertinent descriptions of the impairment. This description must 

be in sufficient detail so that the claims examiner and others who review the file will be able to 

clearly visualize the impairment with its resulting restrictions and limitations.16 As Dr. Nipper’s 

report does not comply with these requirements, OWCP properly undertook further development 

of the claim to determine appellant’s percentage of permanent impairment for schedule award 

purposes.17

As a consequence of the deficits in Dr. Nipper’s report, OWCP referred appellant for a 

second opinion evaluation with Dr. Estwanik. Dr. Estwanik noted the extent of appellant’s right

knee arthritis as found on x-ray and MRI scan. He reported that this condition was preexisting and 

not related to appellant’s employment injury such that he did not consider it for schedule award 

purposes. Dr. Estwanik also provided findings on physical examination including evaluation of 

appellant’s ACL which demonstrated a good Lachman test, only trace movement, but a good 

endpoint and good surgical result. He determined that appellant had eight percent permanent 

impairment of his right lower extremity based on deficiencies in the ACL and also awarded two 

percent impairment for meniscal injuries. OWCP’s medical adviser reviewed the medical records 

and determined that appellant’s schedule award should be based solely on his partial lateral and 

medial meniscectomies.

Dr. Estwanik disagreed with this evaluation method and asserted that appellant’s ACL 

deficits were the appropriate rating method as the ACL tear was the most salient feature of 

 

14 Supra note 4.

15 Id. at 509.

16 Robert B. Rozelle, 44 ECAB 616, 618 (1993).

17 D.H., Docket No. 18-0024 (issued May 7, 2018).
7

appellant’s accepted conditions. He noted, “It is well known in knee surgery data that an ACL 

tear is considered ‘the beginning of the end of the knee.’” OWCP’s medical adviser again 

reviewed Dr. Estwanik’s findings and noted that he did not clearly indicate that appellant had five 

millimeters of laxity which was necessary to establish a class 1 impairment due to ACL injury.

The February 21, 2017 schedule award decision was based on OWCP’s medical adviser’s 

opinions dated December 3, 2016 and February 13, 2017. The medical adviser did not explain 

whether appellant’s preexisting condition of arthritis had been considered or whether it should be 

considered in the impairment rating.18 Furthermore, the medical adviser did not provide a citation 

to the A.M.A., Guides or other medical authority for his specific requirement of five millimeters 

of ACL laxity. The A.M.A., Guides specifically require “mild laxity” for impairment ratings due 

to ACL injuries and specifically note that surgery is not a rating factor.19 The A.M.A., Guides

further provide that the physical examination adjustment for knee instability grade 1, is slight 

instability, “[g]rade 1 Lachman’s test; slight laxity patellar mechanism.”

20

 

As noted above, OWCP procedures provide that impairment ratings for schedule awards 

include those conditions accepted by OWCP as employment related and any preexisting permanent 

impairment of the same member or function. If the work-related injury has affected any residual 

usefulness in whole or in part, a schedule award may be appropriate as there is no apportionment.21 

The Board is unable to determine from the current record whether Dr. Estwanik or OWCP’s 

medical adviser appropriately applied the A.M.A., Guides in determining appellant’s permanent 

impairment for schedule award purposes, therefore this case must be remanded for further 

development and appropriate impairment rating under the A.M.A., Guides. The Board is unable 

to determine based on the physical findings contained in the record which diagnosis should be 

utilized as the basis for appellant’s schedule award. Dr. Estwanik opined, based on his own 

findings and his own physical examination of appellant, that the diagnosis of ACL injury with mild

laxity was appropriate for rating purposes. OWCP’s medical adviser defined mild laxity as at least 

five millimeters of laxity and determined that Dr. Estwanik’s report did not specifically support 

this finding. OWCP procedures required that in reviewing medical evidence for the purposes of a 

schedule award, OWCP’s medical adviser should determine the percentage of permanent 

impairment based on the standards of the sixth edition of the A.M.A., Guides and provide medical 

reasoning for the percentage of impairment specified.22 The record before the Board does not 

include a medical report determining the appropriate percentage of permanent impairment based 

 

18 R.R., Docket No. 16-0589 (issued February 3, 2017).

19 Supra note 4.

20 Id. at 517, Table 16-7.

21 Supra note 18; B.K., 59 ECAB 228 (2007). See also Federal (FECA) Procedure Manual, supra note 9 at Chapter 

2.808.5(d) (March 2017) (schedule awards may include preexisting impairments as there is no apportionment under 

FECA).

22 Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.6.f (March 2017).
8

on all the conditions of appellant’s right lower extremity, which contrary to OWCP’s hearing 

representative findings, should consider his preexisting arthritis.

23

 

The Board will remand the case to OWCP for further medical development. OWCP should 

refer appellant to a second opinion specialist to properly determine the impairment to appellant’s 

right lower extremity based on the accepted employment injuries and his preexisting arthritis and 

utilizing the proper tables and figures of the A.M.A., Guides. After such further development as 

necessary, OWCP shall issue a de novo decision on the extent of impairment to appellant’s right 

lower extremity. 

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the October 10, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further development 

consistent with this opinion of the Board.

Issued: August 27, 2018

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

 

23 See supra note 18; C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser 

does not provide sufficient explanation for his rating that his report is not entitled to constitute the weight of the 

medical opinion evidence).