United States Department of Labor

Employees’ Compensation Appeals Board

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A.T., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION,

Corpus Christi, TX, Employer

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Docket No. 17-1940

Issued: December 20, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 September 15, 2017 appellant filed a timely appeal from an August 18, 2017 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 has met his burden of proof to establish more than two 

percent permanent impairment of the right lower extremity, for which he has previously received 

a schedule award.

 

1 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY

On July 25, 2016 appellant, a then 45-year-old customs and border patrol officer, filed a 

traumatic injury claim (Form CA-1) alleging that he sustained a right knee injury when he stepped 

over a tree branch and into a hole causing him to fall on his right knee on the other side of the hole. 

OWCP accepted his claim for sprain of unspecified site of right knee and other tear of the lateral 

meniscus of the right knee. On November 2, 2016 appellant underwent a right knee arthroscopy

with partial lateral meniscectomy and chondroplasty using abrasion and micro fracture technique

and lateral compartment and patellofemoral articulation.2

In a November 22, 2016 report, Dr. Charles W. Breckenridge, a Board-certified orthopedic 

surgeon, found full extension, full flexion, mild swelling, negative McMurray testing, and minimal 

quadriceps atrophy. He determined that appellant was status right knee arthroscopy with partial 

lateral meniscectomy status post chondroplasty utilizing micro fracture technique, lateral 

compartment and patellofemoral articulation for traumatic chondral injuries. Dr. Breckenridge 

indicated that he could return to work on November 28, 2016 in a modified capacity. He noted 

that appellant should be able to progress with his activity in six weeks.

In a January 3, 2017 report, Dr. Breckenridge examined appellant and found that he was 

able to fully extend the knee and had flexion to 130 degrees. He noted that McMurray testing was 

negative, he had mild discomfort over the anterior aspect of the knee, and quadriceps atrophy was 

noted with no evidence of hip pathology. Dr. Breckenridge advised that appellant was status post 

right knee arthroscopy with partial lateral meniscectomy, status post chondroplasty utilizing micro 

fracture technique, and lateral compartment and patellofemoral articulation for traumatic chondral 

injuries. He explained that he reached substantial improvement to allow him to return to regular 

work activity. Dr. Breckenridge indicated that appellant would require further strengthening, but

he advised that appellant had reached maximum medical improvement. He referred to the sixth 

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

(A.M.A., Guides).

3 Dr. Breckenridge referenced Table 16-34

and explained that under partial 

meniscectomy, medial or lateral, a default value of C was listed as a reference. He explained that 

with respect to quadriceps atrophy and weakness, as per the adjustment grid, the functional history 

would be considered a grade 2 modifier. Dr. Breckenridge also found that physical examination 

secondary to quadriceps atrophy would also be a grade 2 modifier. He explained that clinical 

studies would be utilized for the diagnosis and the default value of C would move to E. 

Dr. Breckenridge opined that appellant had three percent right knee permanent impairment and

was released to regular work.

On April 11, 2017 appellant filed a schedule award claim (Form CA-7).

 

2 Appellant had a previous left knee arthroscopy.

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

4

Id. at 509.
3

In order to determine the nature and extent of appellant’s right lower extremity impairment

stemming from his accepted conditions, OWCP referred Dr. Breckenridge’s report to a district 

medical adviser (DMA). 

In a May 24, 2017 report, Dr. Jovito Estaris, a Board-certified occupational medicine 

physician serving as an OWCP DMA, found that appellant had two percent permanent impairment 

of the right lower extremity under the sixth edition of the A.M.A., Guides. Relying on Table 16-3 

at page 509 of the A.M.A., Guides,

5 which rates impairments based on sensory and motor deficits, 

he found a diagnosis of a lateral meniscus tear of the right knee and for a meniscal injury and a 

partial lateral meniscectomy, appellant was a class 1 with a default value of 2. Dr. Estaris referred 

to Table 16-6 at 516 of the A.M.A., Guides for functional history. He determined that appellant 

had a grade modifier of 1 for pain on kneeling and no antalgic gait. Dr. Estaris referred to Table 

16-7 at page 517 of the A.M.A., Guides for physical examination adjustment. He found that 

appellant had a grade modifier of 1 for muscle atrophy and full range of motion. Dr. Estaris noted 

that clinical studies adjustment was not utilized. He advised that the magnetic resonance imaging 

(MRI) scan showed a lateral meniscus tear, which when used in diagnosis and proper classification 

of diagnosis-based impairment (DBI) grid, resulted in (GMFH - CDX) + (GMPE - CDX) = (1-

1)+(1-1) = 0. Dr. Estaris advised the net adjustment resulted in 0 = class 1 = 2 percent. He

concluded that appellant had no more than two percent right lower extremity permanent 

impairment. 

Dr. Estaris further explained that the difference in the ratings was due to the use of grade 

modifiers. He noted that Dr. Breckenridge used a grade modifier of 2 for functional history and 

mentioned muscle atrophy and weakness as criteria. However, Dr. Estaris explained that those 

findings were criteria for physical examination and not functional history, with no antalgic gait, so 

at best, it was a grade modifier of 1. He noted that the grade modifier of 2 required an antalgic 

limp and asymmetric shortened stance, with routine use of single gait aid (cane or crutch), which 

was “obviously not seen in this case.” Dr. Estaris also explained that Dr. Breckenridge used a 

grade modifier of 2 for physical examination, but that there was a mention of atrophy with no 

accompanying measurement. He added that in the absence of measurement, the best fit was a 

grade modifier of 1. Dr. Estaris explained that there was full range of motion and this was a grade 

modifier of 0. Regarding clinical studies, he referred to page 500 the A.M.A., Guides, the first 

column and second paragraph and explained that in some cases, the class would be defined by 

physical examination findings or clinical studies results. However, when that was the case, those 

same findings were not used as grade modifiers to adjust the rating. 

By decision dated August 18, 2017, OWCP granted appellant a schedule award for two 

percent permanent impairment of the right lower extremity for the period January 3 to February 12, 

2017, for a total of 5.76 weeks of compensation. 

LEGAL PRECEDENT

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 

 

5

Id.
4

vested the authority to implement the FECA program with the Director of OWCP.

6

 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use 

of specified members, functions, and organs of the body.7 FECA, however, does not specify the 

manner by which the percentage loss of a member, function, or organ shall be determined. To 

ensure consistent results and equal justice under the law, good administrative practice requires the 

use of uniform standards applicable to all claimants. Through its implementing regulations, 

OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.8 

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the 

initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections, 

Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included 

various changes to the original text, intended to serve as an erratum/supplement to the first printing 

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second 

printing of the sixth edition. 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (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

In determining impairment for the lower extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity 

to be rated. With respect to the knee, reference is made to Table 16-3 (Knee Regional Grid) 

beginning on page 509.11 After the class of diagnosis (CDX) is determined from the Knee 

Regional Grid (including identification of a default grade value), the net adjustment formula is 

applied using the grade modifier for functional history (GMFH), grade modifier for physical 

examination (GMPE), and grade modifier for clinical studies (GMCS). The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, evaluators 

are directed to provide reasons for their impairment rating choices, including choices of diagnoses 

from regional grids and calculations of modifier scores.13

 

6 See 20 C.F.R. §§ 1.1-1.4.

7 For a complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

8 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

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

Claims, Chapter 2.808.6a (March 2017). 

10 Isidoro Rivera, 12 ECAB 348 (1961).

11 See supra note 3 at 509-11.

12 Id. at 515-22.

13 Id. at 23-28.
5

In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the 

medical evidence. This occurs in schedule award cases where an opinion on the percentage of 

permanent impairment and a description of physical findings is on file from an examining 

physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In 

this instance, a detailed opinion by the medical adviser may constitute the weight of the medical 

evidence. As long as the medical adviser explains his or her opinion, shows values and 

computation of impairment based on the A.M.A., Guides, and considers each of the reported 

findings of impairment, his or her opinion may constitute the weight. If the attending physician 

misapplied the A.M.A., Guides, no conflict would exist because the attending physician’s report 

would have diminished probative value and the opinion of the medical adviser would constitute 

the weight of medical opinion.14

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than two 

percent permanent impairment of his right lower extremity, for which he received a schedule 

award.

In a November 22, 2016 report, Dr. Breckenridge, a Board-certified orthopedic surgeon, 

performed a physical examination and provided his opinion as to appellant’s right lower extremity 

permanent impairment. Referencing Table 16-3 for the diagnosis of a partial meniscectomy, 

medial or lateral, he opined that appellant had three percent permanent impairment of the right 

knee.

In a May 24, 2017 report, Dr. Estaris serving as a DMA properly evaluated the physical 

examination findings contained in Dr. Breckenridge’s January 3, 2017 report to find that appellant 

had two percent permanent impairment of her right lower extremity. He also relied upon Table 

16-3.15 Dr. Estaris explained that his difference in the ratings was due to the grade modifiers

assigned. He noted that Dr. Breckenridge had used a grade modifier of 2 for functional history 

and mentioned muscle atrophy and weakness as criteria. However, Dr. Estaris explained that those 

findings were criteria for physical examination and not functional history. He advised that there 

was no antalgic gait, and therefore, appellant was only entitled to a grade modifier of 1. Dr. Estaris

also noted that the grade modifier of 2 required an antalgic limp and asymmetric shortened stance, 

with routine use of single gait aid (cane or crutch), which was “obviously not seen in this case.”

He also explained that Dr. Breckenridge used a grade modifier of 2 for physical examination 

despite no indication that appellant had atrophy. Dr. Estaris added that since no measurement had 

been provided, the best fit was a grade modifier of 1. He explained that appellant had full range 

of motion and thus a grade modifier of 0. Regarding clinical studies Dr. Estaris referred to page 

500 the A.M.A., Guides and explained that in some cases, the class would be defined by physical 

examination findings or clinical studies results. However, when that was the case, those same 

findings, could not be used as grade modifiers to adjust the rating. 

 

14 Supra note 8 at Chapter 2.810.8j (September 2010); M.P., Docket No. 14-1602 (issued January 13, 2015).

15 Supra note 3.
6

Dr. Estaris opined that appellant had two percent permanent impairment of his right lower 

extremity. The Board finds that the May 24, 2017 impairment rating from Dr. Estaris represents 

the weight of the medical evidence in this case as he properly applied the appropriate provisions 

of the A.M.A., Guides to the clinical findings of record.16 Dr. Estaris correctly noted the errors of

Dr. Breckenridge’s use of the grade modifiers in his application of the A.M.A., Guides. As the 

record contains no other probative, rationalized medical opinion which indicates that appellant has 

greater permanent impairment of his right lower extremity based upon the A.M.A., Guides, 

appellant has not met his burden of proof to establish greater than two percent right knee permanent 

impairment, for which he previously received a schedule award.

On appeal appellant argues that another employee with the same modifiers and same rating 

received a three percent schedule award. The Board notes that the medical opinion of the DMA 

has fully explained the basis for his right lower extremity permanent impairment rating. As noted, 

appellant has not submitted medical evidence showing that he has more than two percent 

permanent impairment of his right lower extremity.

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 met his burden of proof to establish more than two 

percent permanent impairment of the right lower extremity, for which he previously received a 

schedule award.

 

16 K.P., Docket No. 18-0777 (issued November 13, 2018); W.M., Docket No. 11-1156 (issued January 27, 2012).
7

ORDER

IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 20, 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