United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.D., Appellant

and

DEPARTMENT OF THE AIR FORCE, AIR 

NATIONAL GUARD, Fort Dix, NJ, Employer

__________________________________________

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Docket No. 17-0334

Issued: June 19, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, 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 November 30, 2016 appellant, through counsel, filed a timely appeal from an 

August 12, 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.

 

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 established more than 16 percent permanent impairment 

of the left lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On September 6, 2002 appellant, a 33-year-old aircraft mechanic, filed a traumatic injury 

claim (Form CA-1) alleging that he sustained a left knee injury that day, in the performance of 

duty, as a result of slipping in a small puddle of fluid while repositioning a hydraulic test stand.3 

He did not stop work. OWCP accepted the claim for left knee sprain. It authorized a surgical 

arthroscopy of the left knee with subtotal medial and lateral meniscectomies and chondroplasty of 

the patellofemoral articulation, which appellant underwent on November 6, 2002. OWCP further 

authorized postoperative physical therapy to the left knee and paid wage-loss compensation. 

Appellant returned to full-time, full-duty work without restrictions on January 9, 2003.

On January 26, 2004 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7) for his left knee condition.

In a November 17, 2003 report, Dr. David Weiss, an osteopath and Board-certified 

orthopedic surgeon, diagnosed post-traumatic internal derangement to the left knee, tear of the 

medial and lateral meniscus to the left knee, post-traumatic chondromalacia patella to the left knee, 

status post arthroscopic surgery to the left knee with subtotal medial and lateral meniscectomy, 

and status post arthroscopic surgery to the left knee with chondroplasty of the patellofemoral 

articulation. Upon physical examination, he found well-healed portal arthroscopy scars and no 

gross effusion. Range of motion (ROM) was 140 degrees and patellar inhibition and apprehension 

signs were negative. Patellofemoral compression produced marked crepitus, but no pain. Valgus 

and varus stress tests produces firm end points and Drawer and Lachman signs were negative. 

Manual muscle testing of the gastrocnemius musculature was graded at 5/5 on the left and 

quadriceps testing was graded at 4+/5 on the left. Dr. Weiss found that appellant had reached 

maximum medical improvement (MMI) as of November 17, 2003. He determined that appellant

had 15 percent permanent impairment of the left lower extremity based on the fifth edition of the 

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

Guides)

4 due to 12 percent permanent impairment due to his motor strength deficit of the left 

quadriceps (knee extension) and 3 percent permanent impairment due to his pain.

On November 18, 2004 an OWCP medical adviser reviewed Dr. Weiss’ November 17, 

2013 report and concurred that appellant had reached MMI as of November 17, 2003, but 

disagreed with his impairment rating. He found that Dr. Weiss improperly assigned three percent 

 

3 The present claim was adjudicated under OWCP File No. xxxxxx543. The record establishes that appellant also 

suffered an injury on January 21, 2004 when he slipped and fell on ice while moving a power unit. OWCP accepted 

the claim for lumbar sprain and lumbar radiculopathy under File No. xxxxxx428. Appellant stopped work on the date 

of injury and underwent a lumbar fusion at L4-5 on September 14, 2004. In a decision dated June 5, 2015, OWCP 

granted him a schedule award for three percent permanent impairment of the right leg secondary to sensory deficits 

based on a September 10, 2013 report from Dr. Weiss, a Board-certified orthopedic surgeon.

4 A.M.A., Guides (5th ed. 2001).
3

permanent impairment for pain. The medical adviser assigned five percent permanent impairment 

for appellant’s marked crepitus produced by patellofemoral compression. He concurred with

Dr. Weiss’ 12 percent impairment rating for appellant’s 4+/5 motor strength deficit on the left 

quadriceps and zero percent rating for his ROM of 140 degrees. The medical adviser combined 

the total left lower extremity impairments using the Combined Values Chart on page 604 of the 

A.M.A., Guides yielding 16 percent permanent impairment of the left lower extremity.5

By decision dated December 23, 2004, OWCP granted appellant a schedule award for 16 

percent permanent impairment of the left lower extremity. The award ran for 40.08 weeks for the 

period November 17, 2003 to October 4, 2004. 

In a July 28, 2014 letter, counsel requested an additional schedule award and submitted a 

September 10, 2013 report from Dr. Weiss who found, using the sixth edition of the A.M.A., 

Guides,

6

that a sensory examination revealed a perceived sensory deficit over the L5 and S1 

dermatomes involving the bilateral lower extremities. Manual muscle strength testing of the 

gastrocnemius musculature was graded at 5/5 bilaterally. Hip flexors were graded at 5/5 

bilaterally. Quadriceps were graded at 5/5 bilaterally. Examination of the left knee revealed wellhealed portal arthroscopy scars, patellofemoral compression producing crepitus, and tenderness 

along the undersurface of the medial patellar facet. Dr. Weiss placed appellant in class 1 based on 

his diagnosis of sensory deficit left L5 nerve root with a default value of one percent permanent 

impairment. He assigned a grade modifier of 2 for Functional History (GMFH), Physical 

Examination (GMPE), and Clinical Studies (GMCS). Using the net adjustment formula of 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (2-1) + (n/a) + (2-1) 

resulted in a net grade modifier of 2, resulting in two percent permanent impairment of the left 

lower extremity. He placed appellant in class 1 based on his diagnosis of sensory deficit left S1 

nerve root with a default value of one percent permanent impairment. Dr. Weiss assigned a grade 

modifier of 2 for functional history and clinical studies. Using the net adjustment formula of 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he found that (2-1) + (n/a) + (2-1) resulted in a 

net grade modifier of 2, resulting in one percent permanent impairment of the left lower extremity. 

Dr. Weiss placed appellant in class 2 based on his diagnosis of left knee subtotal medial and lateral 

meniscectomy with a default value of 22 percent permanent impairment. He assigned a grade 

modifier of 2 for functional history, physical examination, and clinical studies. Using the net 

adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (2-

2) + (2-2) + (2-2) resulted in a net grade modifier of zero, resulting in 22 percent permanent 

impairment of the left lower extremity. He concluded that appellant had a combined total of 25 

percent permanent impairment of the left lower extremity.

On February 6, 2015 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, reviewed the medical evidence of record and a statement of accepted 

facts (SOAF). He reviewed Dr. Weiss’ September 10, 2013 report and found that he improperly 

utilized the A.M.A., Guides to determine appellant’s impairment rating. Dr. Magliato concurred 

with Dr. Weiss’ one percent impairment rating for appellant’s sensory deficit left of the L5 nerve 

root and two percent impairment rating for his sensory deficit of the left S1 nerve root. However, 

 

5 Appendix A, pages 604-06 of the fifth edition of the A.M.A., Guides is entitled Combined Values Chart.

6 A.M.A., Guides (6th ed. 2009).
4

he disagreed with Dr. Weiss’ rating for left knee subtotal medial and lateral meniscectomy. 

Dr. Magliato explained that the 22 percent impairment rating was incorrect because appellant did 

not undergo a total medial and lateral meniscectomy. As appellant underwent a partial medial and 

lateral meniscectomy, Dr. Magliato opined that he had 10 percent permanent impairment of the 

left lower extremity under Table 16-3, page 509, of the sixth edition of the A.M.A., Guides. 

Therefore, appellant had a total of 13 percent permanent impairment of the left lower extremity. 

In a June 11, 2015 letter, OWCP advised appellant of the deficiencies of his claim for an 

additional schedule award and requested an addendum report from Dr. Weiss clarifying his 

impairment rating within 30 days. It did not receive additional evidence from Dr. Weiss.

By decision dated September 22, 2015, OWCP denied appellant’s claim for an additional 

schedule award because the medical evidence of record failed to establish that he sustained more 

than 16 percent permanent impairment of the left lower extremity, for which he previously 

received a schedule award.

On September 30, 2015 counsel requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. 

In a September 24, 2015 addendum report, Dr. Weiss asserted that appellant, in fact,

underwent a subtotal medial and lateral meniscectomy and opined that he should be rated 

according to class 2 left knee total medial and lateral meniscectomy, which better represented the 

surgical procedure performed. He reiterated his conclusion that appellant had 25 percent 

permanent impairment of the left lower extremity.

By decision dated December 7, 2015, an OWCP hearing representative set aside the prior 

decision and remanded the case for further development, finding that Dr. Weiss’ September 24, 

2015 report constituted new medical evidence warranting review by an OWCP medical adviser to 

determine whether appellant had an increased permanent impairment of the left lower extremity. 

On December 16, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as an OWCP medical adviser, reviewed the medical evidence of record and Dr. Weiss’

September 24, 2015 report. He determined that appellant had 13 percent permanent impairment 

of the left lower extremity resulting from the September 6, 2002 employment injury. Dr. Harris

found that the date of MMI was September 10, 2013, the date of Dr. Weiss’ examination. He

concurred with Dr. Weiss’ impairment ratings for residuals due to left L5 and S1 radiculopathy, 

but disagreed with his determination that appellant had 22 percent impairment due to his medial 

and lateral meniscectomy. Dr. Harris explained that subtotal medial and lateral meniscectomy was 

the equivalent of a partial medial and lateral meniscectomy, which resulted in 10 percent 

permanent impairment under the sixth edition of the A.M.A., Guides. Thus, he concluded that 

appellant had 13 percent permanent impairment of the left lower extremity. 

By decision dated March 15, 2016, OWCP denied appellant’s claim for an additional 

schedule award, finding that he was previously paid a schedule award for 16 percent permanent 

impairment of the left lower extremity and the medical evidence of record failed to establish an 

increase in the impairment already compensated.
5

In a March 21, 2016 letter, counsel requested an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. On July 8, 2016 he requested that his request for an 

oral hearing be converted to a review of the written record.

By decision dated August 12, 2016, an OWCP hearing representative affirmed the prior 

decision, relying upon Dr. Harris’ December 16, 2015 report.

LEGAL PRECEDENT

The schedule award provisions of FECA7 provide for compensation to employees 

sustaining impairment from loss or loss of use of specified members 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 mater which rests in the sound 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. The A.M.A., Guides

has been adopted by OWCP as a standard for evaluation of schedule losses and the Board has 

concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated 

under the sixth edition of the A.M.A., Guides, published in 2009.9

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment CDX

condition, which is then adjusted by GMFH, GMPE, and GMCS.11 The net adjustment formula is 

(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Evaluators are directed to provide reasons for 

their impairment rating choices, including the choices of diagnoses from regional grids and 

calculations of modifier scores.12

ANALYSIS

OWCP accepted that appellant sustained a left knee sprain at work on September 6, 2002. 

On January 26, 2004 appellant, through counsel, filed a claim for a schedule award. By decision 

dated December 23, 2004, OWCP granted appellant a schedule award for 16 percent permanent 

impairment of the left lower extremity.

 

7 5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8 See Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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

2.808.5.a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (March 2017).

10 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.

11 A.M.A., Guides (6th ed. 2009), pp. 494-531.

12 See R.V., Docket No. 10-1827 (issued April 1, 2011).
6

In a July 28, 2014 letter, counsel requested an additional schedule award and submitted a 

September 10, 2013 report from Dr. Weiss who placed appellant in class 1 based on his diagnosis 

of sensory deficit left L5 nerve root with a default value of one percent permanent impairment. He 

assigned a grade modifier of 2 for functional history and clinical studies. Using the net adjustment 

formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that (2-1) + (n/a) 

+ (2-1) resulted in a net grade modifier of 2, resulting in two percent permanent impairment of the 

left lower extremity. He placed appellant in class 1 based on his diagnosis of sensory deficit left 

S1 nerve root with a default value of one percent permanent impairment. Dr. Weiss assigned a 

grade modifier of 2 for functional history and clinical studies. Using the net adjustment formula 

of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he found that (2-1) + (n/a) + (2-1) resulted 

in a net grade modifier of 2, resulting in one percent permanent impairment of the left lower 

extremity. Dr. Weiss placed appellant in class 2 based on his diagnosis of left knee subtotal medial 

and lateral meniscectomy with a default value of 22 percent permanent impairment. He assigned 

a grade modifier of 2 for functional history, physical examination, and clinical studies. Using the 

net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Weiss found that 

(2-2) + (2-2) + (2-2) resulted in a net grade modifier of 0, resulting in 22 percent permanent 

impairment of the left lower extremity. He concluded that appellant had a combined total of 25 

percent permanent impairment of the left lower extremity. In a September 24, 2015 addendum 

report, Dr. Weiss asserted that appellant underwent a subtotal medial and lateral meniscectomy 

and opined that he should be rated according to class 2 left knee total medial and lateral 

meniscectomy, which better represented the surgical procedure performed.

In accordance with its procedures, OWCP properly referred the evidence of record to its 

OWCP medical adviser, Dr. Harris, who reviewed the clinical findings of Dr. Weiss on 

September 10, 2013. Dr. Harris determined that appellant had 13 percent permanent impairment 

of the left lower extremity resulting from the September 6, 2002 employment injury. He found 

that the date of MMI was September 10, 2013, the date of Dr. Weiss’ examination. Dr. Harris 

concurred with Dr. Weiss’ impairment ratings for residuals due to left L5 and S1 radiculopathy, 

but disagreed with his determination that appellant had 22 percent permanent impairment due to 

his medial and lateral meniscectomy. He explained that subtotal medial and lateral meniscectomy 

was the equivalent of a partial medial and lateral meniscectomy, which resulted in 10 percent 

permanent impairment under the sixth edition of the A.M.A., Guides. Thus, Dr. Harris concluded 

that appellant had 13 percent permanent impairment of the left lower extremity.

The Board finds that OWCP’s medical adviser applied the appropriate tables and grading 

schemes of the sixth edition of the A.M.A., Guides to Dr. Weiss’ clinical findings. The medical 

adviser’s calculations were mathematically accurate. There is no medical evidence of record 

utilizing the appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a greater 

percentage of permanent impairment. Dr. Harris’ report explained that Dr. Weiss’ 22 percent 

impairment rating for the left lower extremity was erroneous because appellant did not undergo a 

total medial and lateral meniscectomy. Therefore, OWCP properly relied on the medical adviser’s 

assessment of 13 percent permanent impairment of the left lower extremity.13 

 

13 See M.T., Docket No. 11-1244 (issued January 3, 2012).
7

As appellant had previously received a schedule award for 16 percent permanent 

impairment of the left lower extremity and the medical evidence of record fails to establish an 

increase in the impairment already compensated, the Board finds that appellant failed to establish 

his claim for an additional schedule award.

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 employment-related 

condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not established more than 16 percent permanent 

impairment of the left lower extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the August 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: June 19, 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