United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.B., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE, 

Holtsville, NY, Employer

__________________________________________

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Docket No. 17-0788

Issued: March 14, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 28, 2017 appellant filed a timely appeal from a February 17, 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 25 

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

schedule award.

On appeal appellant asserts that the medical evidence of record establishes that he has 31 

percent impairment of the right lower extremity.

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board. In a January 8, 2009 decision, the Board 

found that appellant’s actual earnings as a part-time, limited-duty tax examining technician fairly 

and reasonably represented his wage-earning capacity, and that OWCP’s Branch of Hearings and 

Review properly denied his request for a review of the written record.2 In a January 6, 2010

decision, the Board found that OWCP did not meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits on September 24, 2008.3 Appellant was returned 

to the periodic compensation rolls. In an August 23, 2012 decision, the Board affirmed a 

September 22, 2011 OWCP hearing representative’s decision, finding that appellant had not 

established entitlement to a schedule award because the medical evidence of record did not 

establish that maximum medical improvement had been reached following a recent surgery. The 

Board also affirmed OWCP’s January 11, 2012 nonmerit decision denying appellant’s 

September 27, 2011 reconsideration request.

4

 The facts and circumstances as set forth in the 

Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.

On August 18, 2005 appellant, then a 51-year-old tax examiner technician, was injured 

when a chair moved from under him while he was in the performance of duty. OWCP accepted 

the claim for cervical sprain, cervicalgia, cervicobrachial syndrome, right knee sprain, lumbago, 

lumbar sprain, and aggravation of knee osteoarthritis of the right knee. Appellant underwent a 

total right knee replacement on August 17, 2011. 

On August 16, 2013 appellant filed a claim for a schedule award (Form CA-7). He 

submitted treatment notes dated August 8 and September 26, 2013 and January 9, 2014 in which

Dr. Bradley D. Gerber, an attending Board-certified orthopedic surgeon, described examination 

findings, noted that appellant was status post right knee total replacement, and diagnosed knee 

pain and osteoarthritis of the knee. Dr. Gerber indicated that appellant’s left knee was becoming 

worse and advised that appellant’s impairment was total and that he could not return to work.

On January 10, 2014 OWCP referred appellant to Dr. Leon Sultan, Board-certified in 

orthopedic surgery, for a second opinion evaluation on January 28, 2014. In a February 20, 2014 

decision, it suspended appellant’s monetary compensation under section 8123(d) of FECA 

because he did not attend a physical examination scheduled with Dr. Sultan on January 28, 2014. 

OWCP then referred appellant to Dr. Hormozan Aprin, a Board-certified orthopedic surgeon, for 

a second opinion evaluation on March 12, 2014.

By decision dated March 4, 2014, OWCP denied appellant’s schedule award claim, 

finding that the medical evidence of record was insufficient to establish permanent impairment 

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

 

2 Docket No. 08-0401 (issued January 8, 2009).

3 Docket No. 09-1275 (issued January 6, 2010).

4 Docket No. 12-0588 (issued August 23, 2012).
3

Permanent Impairment (hereinafter A.M.A., Guides).

5

 Appellant timely requested a review of 

the written record with OWCP’s Branch of Hearings and Review.

An April 1, 2014 magnetic resonance imaging (MRI) scan of the left knee demonstrated 

severe tricompartment osteoarthritis. A lumbar spine MRI scan that day demonstrated 

degenerative disc changes and disc bulging at multiple levels.

In an April 7, 2014 report, Dr. Aprin indicated that he examined appellant on 

March 12, 2014. He noted his review of the statement of accepted facts (SOAF) and medical 

record and recorded appellant’s complaints of occasional neck pain and constant back pain that 

radiated into the right leg, with occasional numbness, and pain and swelling in his left knee. On 

examination Dr. Aprin noted decreased cervical and lumbar range of motion with muscle spasm. 

Knee flexion was diminished bilaterally. He advised that the accepted conditions continued to 

be active and maintained that the accepted conditions should be expanded to include left knee 

osteoarthritis. Dr. Aprin indicated that appellant could return to work four hours daily with 

restrictions and that he had not reached maximum medical improvement (MMI).

In treatment notes dated April 24 and September 11, 2014, Dr. Gerber reiterated his 

findings and conclusions.

On September 11, 2014 appellant filed a second schedule award claim (Form CA-7). 

By decision dated September 17, 2014, an OWCP hearing representative affirmed the 

March 4, 2014 decision, finding that, as the medical evidence established that appellant had not 

reached MMI, he had not established permanent impairment of the right leg.

In December 2014, OWCP again referred appellant to Dr. Aprin for a second opinion

evaluation. In a January 13, 2015 report, Dr. Aprin again described physical examination 

findings of decreased cervical, lumbar, and bilateral knee range of motion. He advised that 

appellant was totally disabled due to the August 18, 2005 employment injury, noting that he 

needed a left total knee replacement. Dr. Aprin advised that appellant had reached MMI with

regard to his right knee, and needed to see a spine surgeon.

Dr. Gerber continued to submit reports with regard to appellant’s knee conditions. 

On January 24, 2015 appellant elected to receive retirement benefits from the Office of 

Personnel Management, effective March 10, 2015. On January 29, 2015 he again filed a 

schedule award claim (Form CA-7).

In February 2015, OWCP referred appellant to Dr. Ajendra Sohal, a Board-certified 

physiatrist. In a February 25, 2015 report, Dr. Sohal noted her review of the SOAF and medical 

record, and appellant’s complaints of neck, back, and bilateral knee pain. She described physical 

examination findings of tenderness in the cervical and lumbosacral areas. Dr. Sohal diagnosed 

cervical and lumbar sprain/strain, underlying obesity, status post right knee replacement, and left 

knee osteoarthritis. She advised that appellant could work part time as a tax examiner with 

 

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

restrictions on lifting and that he would likely need left knee replacement surgery. Dr. Sohal 

opined that he did not need pain management for treatment of his lower back, and that obesity 

and underlying degenerative joint disease were preventing him from returning to work. 

On March 10, 2015 OWCP expanded the acceptance of appellant’s claim to include 

aggravated osteoarthritis of the left knee.

By decision dated April 10, 2015, OWCP denied appellant’s claim for a schedule award, 

finding the medical evidence of record did not establish permanent impairment of a scheduled 

member or function of the body. Appellant timely requested a review of the written record and 

submitted additional schedule award claims.

In an April 18, 2015 New York State Workers’ Compensation Board (hereinafter New 

York State) form report of permanent impairment, Dr. Michael DiGiovanna, an osteopath 

practicing family medicine, advised that appellant had 100 percent permanent impairment of the 

right knee due to decreased range of motion and decreased strength.

Dr. Gerber continued to submit treatment notes describing appellant’s condition. On 

April 9, 2015 he advised that appellant had 60 percent loss of use of the right leg. On May 28, 

2015 Dr. Gerber requested authorization for a total left knee replacement.

In an August 10, 2015 report, Dr. Henry J. Magliato, a Board-certified orthopedic 

surgeon and OWCP medical adviser, noted his review of the record, including the opinions of

Dr. DiGiovanna and Dr. Gerber regarding appellant’s right knee impairment. He indicated that, 

as neither physician referenced the sixth edition of the A.M.A., Guides, referral for a second 

opinion evaluation was warranted.

On August 18, 2015 OWCP again referred appellant to Dr. Aprin for an opinion on

permanent impairment of the right lower extremity. In a September 10, 2015 report, Dr. Aprin

noted that he examined appellant on September 3, 2015 and described examination findings. 

With regard to right lower extremity impairment, based on a diagnosis of right total knee 

replacement, he advised that under Table 16-3, Knee Regional Grid, appellant had a class 2 

impairment. Dr. Aprin reported appellant’s subjective complaints of mild pain and swelling and 

decreased range of motion of the right knee with difficulty squatting, kneeling, climbing stairs, 

rising from a chair after a long period, and standing or walking for extended periods. Objective 

findings included a healed surgical incision, swelling of the right knee, and decreased knee 

flexion with positive diagnostic study findings. Dr. Aprin found modifiers of 2 each for 

functional history, physical examination, and clinical studies. After applying the net adjustment 

formula, he concluded that appellant had 25 percent loss of use of the right leg, with MMI

reached on October 23, 2014.

On September 22, 2015 Dr. Magliato, an OWCP medical adviser, reviewed the medical 

evidence of record, including Dr. Aprin’s report. He agreed that, for a moderate problem with a 

diagnosis of total knee replacement, under Table 16-3, appellant had 25 percent right lower 

extremity permanent impairment with MMI reached on October 23, 2014.6

 

6 On October 6, 2015 OWCP authorized left total knee replacement.
5

By decision dated October 19, 2015, OWCP granted appellant a schedule award for 25 

percent permanent impairment of the right leg, to run for 72 weeks, for the period March 10, 

2015 to July 25, 2016. It found that the weight of the medical evidence rested with the opinion 

of Dr. Aprin.

By decision dated October 23, 2015, OWCP’s Chief of the Branch of Hearings and 

Review found that, as appellant had been issued a schedule award on October 19, 2015, there 

was no basis for his current hearing request of the April 10, 2015 decision denying entitlement to 

a schedule award. Appellant was advised that, if he disagreed with the October 19, 2015 

decision, he could pursue the appeal rights enclosed with that decision.

Appellant timely requested a review of the written record from the October 19, 2015 

decision granting a schedule award. He submitted evidence previously of record and a treatment 

note dated October 22, 2015 in which Dr. Gerber again advised that appellant had 60 percent

impairment of the right lower extremity.

By decision dated March 15, 2016, an OWCP hearing representative noted her review of 

the written record and affirmed the October 19, 2015 schedule award decision. She found that 

the medical evidence of record did not support greater permanent impairment than the 25 percent 

awarded.

On August 9, 2016 appellant requested reconsideration. Relevant medical evidence 

submitted included a March 31, 2016 New York State form report of permanent impairment in 

which Dr. DiGiovanna advised that appellant had 50 percent right knee impairment due to 

decreased range of motion and decreased strength.7 Dr. Gerber also submitted a New York State 

form report on April 28, 2016. He advised that appellant had 60 percent right knee impairment 

and 40 percent impairment for right knee disfigurement. On a May 27, 2016 New York State 

form report, Dr. DiGiovanna advised that appellant had 100 percent impairment of the right 

knee.

In a treatment note dated July 28, 2016, Dr. Gerber advised that appellant had a class 3 

right knee impairment due to a fair result following total knee replacement and that, after 

applying adjustments for physical examination, functional history, and clinical studies, had a 

final right leg impairment of 31 percent. An upper extremity permanent impairment worksheet 

was attached which indicated that appellant had 81 percent impairment for total knee 

replacement. It indicated that both knees were considered. In treatment notes dated 

November 10, 2016 and January 12, 2017, Dr. Gerber reiterated that appellant had 31 percent 

lower extremity impairment. In the latter report, he reported right knee physical examination 

demonstrated no effusion, erythema, ecchymosis, scars, or deformities. Flexion was to 110 

degrees, with 0 degrees in extension. There was no varus or valgus instability present. 

By decision dated February 17, 2017, OWCP found that, as the newly submitted evidence 

by appellant’s treating physicians did not conform to the sixth edition of the A.M.A., Guides, 

appellant was not entitled to an additional schedule award for increased impairment of his right 

leg.

 

7 Dr. DiGiovanna also submitted a report dated March 31, 2016 regarding appellant’s left knee.
6

LEGAL PRECEDENT

It is the claimant’s burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of any employment injury.8 

The schedule award provisions of FECA,

9

and its implementing federal regulations,10 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from 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 for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.12

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).13 Under the sixth edition, for lower extremity impairments the evaluator 

identifies the impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade 

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

Studies (GMCS).14 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS 

- CDX).15 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.16 Section 16.2a of the A.M.A., Guides, provides that if the class selected is defined by 

physical examination findings or clinical studies results, these same findings may not be used as 

grade modifiers to adjust the rating.17

OWCP procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser 

 

8 See Tammy L. Meehan, 53 ECAB 229 (2001).

9 5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.

11 Id. at § 10.404(a).

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

Chapter 2.808.5a (February 2013); see also at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010).

13 A.M.A., Guides, supra note 6 at 4, section 1.3, “The International Classification of Functioning, Disability and 

Health (ICF): A Contemporary Model of Disablement.”

14 Id. at 494-531.

15 Id. at 521.

16 Id. at 23-28.

17 Id. at 500.
7

providing rationale for the percentage of impairment specified.18 In determining entitlement to a 

schedule award, preexisting impairment to the scheduled member is to be included.19

ANALYSIS

The Board finds that appellant has not established greater than the 25 percent right lower 

extremity permanent impairment previously awarded. The sixth edition of the A.M.A., Guides

classifies the lower extremity impairment by diagnosis, which is then adjusted by grade 

modifiers.20 Section 16.2a includes instructions for performing an impairment analysis using the 

regional grids. This includes identifying a diagnosis and applying the grade modifiers.21 

With respect to a diagnosis of total knee replacement, Table 16-3 of the A.M.A., Guides, 

shows three classes of impairment: good result, fair result, and poor result. A good result is 

characterized by good position of the prosthesis, stability, and functionality. It has a default 

impairment value of 25 percent of the lower extremity. A fair result is characterized by fair 

position, mild instability, or mild motion deficit. It has a default lower extremity impairment 

value of 37 percent.22

Dr. Aprin, an OWCP referral physician, and Dr. Magliato, an OWCP medical adviser, 

evaluated appellant’s right lower extremity under Table 16-3 based on the diagnosis of total knee 

arthroplasty. Table 16-3 indicates that in rating a total knee arthroplasty, for a class 2 

impairment, moderate problem, the procedure should have a good result with good position, be 

stable and functional, and for a class 3 impairment, severe problem, there should be a fair result 

with fair position, mild instability, and/or mild motion deficit.23 

In his September 15, 2015 report, with regard to right lower extremity impairment,

Dr. Aprin advised that appellant had a moderate problem under Table 16-3. He based his 

opinion on appellant’s subjective complaints of mild pain and swelling and decreased range of 

motion of the right knee with difficulty squatting, kneeling, climbing stairs, rising from a chair 

after a long period, and standing or walking for extended periods, and his objective findings 

included a healed surgical incision, swelling of the right knee, and decreased knee flexion with 

positive diagnostic study findings, appellant had a class 2 impairment. Dr. Aprin found 

modifiers of 2 each for functional history, physical examination, and clinical studies and, after 

applying the net adjustment formula, concluded that appellant had 25 percent loss of use of the 

right leg, with MMI reached on October 23, 2014.

 

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

Chapter 2.808.6f (February 2013).

19 Peter C. Belkind, 56 ECAB 580 (2005).

20 A.M.A., Guides, supra note 6 at 497-500.

21 Id. at 499-500.

22 Id. at 511.

23 Id.
8

Dr. Magliato reviewed the medical evidence, including Dr. Aprin’s report. He agreed 

with Dr. Aprin that appellant had 25 percent right lower extremity impairment under Table 16-3, 

with MMI reached on October 23, 2014.

Contrary to appellant’s assertions on appeal, the opinions of Dr. Gerber and

Dr. DiGiovanna are insufficient to establish entitlement to an increased schedule award. In 

treatment notes dated July 28 and November 10, 2016 and January 12, 2017 Dr. Gerber advised 

that appellant had 31 percent right leg impairment. Both he and Dr. DiGiovanna provided New 

York State form reports of impairment. While Dr. Gerber made reference to a diagnosis-based 

impairment in his July 28, 2016 treatment note, neither he nor Dr. DiGiovanna made reference to 

the sixth edition of the A.M.A., Guides in any way. The Board has long held that an opinion 

which is not based upon the standards adopted by OWCP and approved by the Board as 

appropriate for evaluating schedule losses is of little probative value in determining the extent of 

a claimant’s permanent impairment.24

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 employmentrelated 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 25 

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

schedule award.

 

24 I.F., Docket No. 08-2321 (issued May 21, 2009).
9

ORDER

IT IS HEREBY ORDERED THAT the February 17, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 14, 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