United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

O.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Las Vegas, NV, Employer 

__________________________________________ 

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Docket No. 15-1692 

Issued: January 4, 2016 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

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 August 4, 2015 appellant, through counsel, filed a timely appeal from a June 15, 2015 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act1

 (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 established any ratable left lower extremity impairment 

related to his accepted injuries entitling him to a schedule award. 

On appeal, counsel contends that OWCP’s decision is contrary to fact and law. 

                                                             1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that appellant, a 57-year-old tractor trailer operator, sustained a left knee 

strain and left knee contusion on May 24, 2008 due to slipping off a step while exiting a truck in 

the performance of duty. Appellant received appropriate disability compensation and medical 

benefits. He returned to light duty effective September 25, 2009. 

In December 2009 appellant’s treating physician, Dr. Randall Yee, a Board-certified 

orthopedic surgeon, requested authorization to perform a left total knee arthroplasty as appellant 

still had pain from his employment injury which required surgical intervention. 

On January 20, 2010 OWCP referred appellant to Dr. Aubrey Swartz, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine whether the surgery was 

causally related to his accepted conditions. In a February 22, 2010 report, Dr. Swartz found that 

appellant’s complex medial meniscus tear was primarily a result of the May 24, 2008 

employment injury. He asserted that there had also been further acceleration and permanent 

aggravation of the arthritic process in the left knee. Dr. Swartz concluded that appellant’s 

employment-related conditions were still present and had not resolved. He determined, however, 

that appellant’s need for a left total knee arthroplasty was not causally related to the May 24, 

2008 employment injury as it was instead related to the natural progression of his osteoarthritis. 

On September 27, 2010 OWCP found a conflict in the medical opinion evidence 

regarding appellant’s request for surgery and referred appellant to Dr. Anthony Serfustini, a 

Board-certified orthopedic surgeon, to resolve the conflict. In a November 1, 2010 report, 

Dr. Serfustini conducted an impartial medical examination and found no objective evidence of 

permanent aggravation to his preexisting knee condition as there were no alternations of 

anatomical structures that would denote a permanent aggravation, no evidence of any fracture, 

subluxation, or dislocation to the knee, and x-ray findings of advanced osteoarthritis especially 

noteworthy for the medial femoral compartment, and less so to the lateral compartment. He 

concluded that appellant had no residuals from his employment injury and what he did suffer 

from was ongoing osteoarthritis which had been slowly progressing over the past 10 years. 

Dr. Serfustini opined that appellant would benefit from joint replacement for both knees, but 

explained that this would treat his underlying and preexisting osteoarthritis condition which had 

no causal relationship to the May 24, 2008 employment injury. 

Appellant nonetheless underwent total left knee arthroplasty on February 28, 2011. 

On August 29, 2012 appellant, through counsel, filed a claim for a schedule award (Form 

CA-7). 

In a September 13, 2012 letter, OWCP notified appellant of the deficiencies of his claim 

and requested a medical report from his physician assessing his permanent impairment based on 

the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter, A.M.A., Guides) and establishing that he had reached maximum 

medical improvement. Appellant did not respond. 
3

By decision dated February 21, 2013, OWCP denied appellant’s schedule award claim as 

the medical evidence of record did not establish a ratable impairment of a scheduled member. 

On February 25, 2013 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. 

Appellant submitted a March 28, 2013 report from Dr. Demitri Adarmes, a Boardcertified physiatrist and internist, in support of his schedule award claim. Dr. Adarmes found 

that a March 27, 2013 electromyography and nerve conduction studies had normal results with 

no evidence of “an acute lumbosacral plexopathy, entrapment, or peripheral neuropathy in the 

lower limbs.” He determined that appellant had reached maximum medical improvement for his 

left knee as of February 28, 2012, one year from the date of his surgery. Appellant reported “no 

trouble with the left knee” and stated that it gave out from time to time especially with pivoting, 

but he did not use a cane or orthotics. 

Upon examination, Dr. Adarmes found normal alignment and no varus or valgus 

deviation of the left leg. Crepitation was present with passive range of motion and there was a 

mild effusion of the knee. Appellant had a negative Lachman’s test and a negative 

anterior/posterior drawer test and no laxity with varus and valgus stress. 

Dr. Adarmes opined that appellant had two percent permanent impairment of the left leg 

for knee sprain based on Table 16-3,2

 page 509, of the A.M.A., Guides. He assigned a grade 

modifier of 1 for Functional History (GMFH) based on mild problems with gait derangement and 

appellant’s answers to the American Academy of Orthopedic Surgeons (AAOS) lower limb 

questionnaire. Dr. Adarmes assigned a grade modifier of 1 for Physical Examination (GMPE) 

based on palpatory (crepitation) findings, and found that a grade modifier for Clinical Studies 

(GMCS) was not applicable in this case. Using the net adjustment formula of (GMFH - CDX) + 

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

modifier of 0, resulting in an impairment class 1, default grade C, equaling two percent 

permanent impairment of the left leg. Dr. Adarmes further opined that appellant had 59 percent 

permanent impairment of the left lower extremity for his left total knee replacement. He applied 

Table 16-3, p. 511, noting that the default impairment was 67 percent for class 4. Dr. Adarmes 

then assigned a grade modifier of 1 for functional history, a grade modifier of 2 for physical 

examination, and noted clinical studies as “confirmatory.” When applying the net adjustment 

formula, he concluded that there was a net adjustment of -2, which was the maximum allowed, 

yielding 59 percent permanent impairment for the left total knee replacement. 

On June 12, 2013 a telephonic hearing was held before an OWCP hearing representative. 

By decision dated September 5, 2013, OWCP’s hearing representative set aside the prior 

decision and remanded the case for further development regarding the extent and degree of any 

impairment warranting a schedule award. 

                                                             2

 Table 16-3, pages 509-11 of the sixth edition of the A.M.A., Guides is entitled Knee Regional Grid -- Lower 

Extremity Impairments. 
4

On September 25, 2013 Dr. Leonard Simpson, an OWCP medical adviser, reviewed the 

medical evidence and found that Dr. Adarmes’ March 28, 2013 report was not sufficient to 

establish two percent permanent impairment of the left leg based on appellant’s accepted left 

knee conditions. Dr. Simpson opined that according to Table 16-3 of the A.M.A., Guides “there 

would be a [c]lass 0 [to] 0 percent impairment of the left lower extremity due to any ‘sequelae’ 

following the sprain/contusion.” He explained that no significant objective abnormal findings on 

examination or radiographic studies at maximum medical improvement would result in a class 0, 

equaling a zero percent impairment for the accepted left knee sprain and contusion. Dr. Simpson 

further indicated that Dr. Adarmes’ impairment rating for the left total knee replacement was not 

applicable as the preexisting osteoarthritis condition was not accepted by OWCP and the related 

surgery was not authorized by OWCP. He found that appellant had no significant objective 

abnormal findings of muscle or tendon injury and determined that he had no ratable impairment 

according to the sixth edition of the A.M.A., Guides. 

By decision dated August 13, 2014, OWCP denied appellant’s schedule award claim on 

the basis that the medical evidence of record did not establish a ratable impairment of a 

scheduled member. 

On August 20, 2014 appellant, through counsel, requested an oral hearing before an 

OWCP hearing representative. A telephonic hearing was held before an OWCP hearing 

representative on March 23, 2015. 

On March 23, 2015 appellant’s counsel argued that OWCP should expand the claim to 

accept the following conditions based on the second opinion report of Dr. Swartz: complex 

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

By decision dated June 15, 2015, OWCP’s hearing representative affirmed the 

August 13, 2014 denial of a schedule award. He found that Dr. Swartz’ February 22, 2010 report 

did not support additional employment-related conditions and noted that since the left knee was 

replaced, the conditions no longer existed, and could not be rated for permanent impairment. 

LEGAL PRECEDENT 

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim, including that he or she sustained an injury in the 

performance of duty as alleged and that an employment injury contributed to the permanent 

impairment for which schedule award compensation is alleged.3

 

The schedule award provision of FECA4 and its implementing regulations5 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

                                                             3 See A.M., Docket No. 13-0964 (issued November 25, 2013) (where the employee claimed entitlement to a 

schedule award for permanent impairment to the left lower extremity due to his employment-related lumbar 

condition, the Board found that the medical evidence did not establish a ratable impairment to the lower extremity 

resulting from his spinal condition and, therefore, denied his schedule award claim). 

4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404. 
5

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 to all claimants, good administrative practice 

necessitates 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 the implementing regulations as the 

appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of 

the A.M.A., Guides is May 1, 2009.7

 It is well established that in determining the amount of a 

schedule award for a member of the body that sustained an employment-related permanent 

impairment, preexisting impairments of the body are to be included.8

 A schedule award is not 

payable under section 8107 of FECA for an impairment of the whole person.9

 

A schedule award is not payable for a member, function, or organ of the body not 

specified in FECA or in the implementing regulations.10 As neither FECA nor the regulations 

provide for the payment of a schedule award for the permanent loss of use of the back or spine, 

no claimant is entitled to such an award.11 However, as FECA makes provision for the 

extremities, a claimant may be entitled to a schedule award for permanent impairment to an 

extremity even though the cause of the impairment originates in the spine, if the medical 

evidence establishes impairment as a result of the employment injury.12 

The medical evidence required to establish a causal relationship is rationalized medical 

opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a 

physician’s rationalized opinion on the issue of whether there is a causal relationship between the 

claimant’s diagnosed condition and the implicated employment factors. The opinion of the 

physician must be based on a complete factual and medical background of the claimant, must be 

one of reasonable medical certainty, and must be supported by medical rationale explaining the 

nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.13 

                                                             6 Id. 

7

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

Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010). 

8 See Raymond E. Gwynn, 35 ECAB 247, 253 (1983); Federal (FECA) Procedure Manual, Part 3 -- Medical, 

Schedule Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of OWCP’s procedures provide that the 

impairment rating of a given scheduled member should include any preexisting permanent impairment of the same 

member or function. 

9 See Gordon G. McNeill, 42 ECAB 140, 145 (1990). 

10 See Tania R. Keka, 55 ECAB 354 (2004). 

11 See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19). 

12 See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award 

provision to provide for an award for permanent impairment to a member of the body covered by the schedule 

regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member. 

13 See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989). 
6

ANALYSIS 

The Board finds that appellant has not established any ratable left lower extremity 

impairment related to his accepted injuries entitling him to a schedule award. The medical 

evidence fails to establish that appellant sustained any permanent impairment to a scheduled 

member of the body causally related to the May 24, 2008 employment injury. OWCP accepted 

appellant’s claim for a left knee strain and left knee contusion. However, the medical evidence 

of record does not establish, nor has OWCP accepted that he sustained permanent impairment to 

his left lower extremity due to the accepted left knee injuries. 

OWCP properly relied on a September 25, 2013 report from Dr. Simpson, an OWCP 

medical adviser, who concluded that appellant had no permanent impairment of a scheduled 

member under the sixth edition of the A.M.A., Guides. He reviewed the March 28, 2013 

assessment of Dr. Adarmes, appellant’s attending physician, who found no evidence of any 

consistent combination of subjective and objective findings revealing any residuals of the left 

knee strain or contusion as to diagnosis or range of motion. Dr. Adarmes did not properly apply 

the A.M.A., Guides when computing two percent permanent impairment of the left leg as his 

report was not sufficient to establish significant objective abnormal findings of muscle or tendon 

injury. He had found that a March 27, 2013 electromyography and nerve conduction studies had 

normal results with no evidence of “an acute lumbosacral plexopathy, entrapment, or peripheral 

neuropathy in the lower limbs.” Dr. Adarmes determined that appellant had reached maximum 

medical improvement for his left knee as of February 28, 2012, one year from the date of his 

surgery. Appellant reported “no trouble with the left knee.” Upon examination, Dr. Adarmes 

found normal alignment, no varus or valgus deviation of the left leg, and no laxity with varus and 

valgus stress. Appellant had a negative Lachman’s test and a negative anterior/posterior drawer 

test. 

Dr. Simpson properly reviewed the medical record and found no basis for an impairment 

to a scheduled member of the body.14 He determined that Dr. Adarmes’ March 28, 2013 report 

was not sufficient to establish two percent permanent impairment of the left lower extremity 

based on appellant’s accepted left knee conditions of contusion and strain. Dr. Simpson 

explained that the findings of no significant objective abnormal findings on examination or 

radiographic studies at maximum medical improvement would result in zero percent impairment 

for the accepted left knee sprain and contusion.15 Dr. Simpson further indicated that 

Dr. Adarmes’ impairment rating for the left total knee replacement was not applicable as the 

preexisting osteoarthritis condition had not been accepted by OWCP and the related surgery had 

not been authorized by OWCP. The Board finds that OWCP’s medical adviser properly 

concluded that there was no medical evidence of impairment to the left leg resulting from the 

accepted conditions and that, therefore, there was no ratable impairment of a scheduled member 

under the sixth edition of the A.M.A., Guides. 

                                                             14 The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the 

treating physician to determine the permanent impairment. See J.H., Docket No. 13-0693 (issued September 16, 

2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010). 

15 A.M.A., Guides, Table 16-3. 
7

Appellant failed to submit sufficient medical evidence to establish permanent impairment 

to a specified member, organ, or function of the body listed in FECA or its implementing 

regulations as a result of his employment-related accepted left knee strain and contusion. 

Appellant may request a schedule award or an increased schedule award based on 

evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment. 

CONCLUSION 

The Board finds that appellant has not established permanent impairment related to his 

accepted injuries warranting a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the June 15, 2015 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: January 4, 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