United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

L.G., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, East Boston, MA, 

Employer 

__________________________________________ 

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Docket No. 17-0534 

Issued: May 25, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

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 January 10, 2017 appellant, through counsel, filed a timely appeal from a 

December 5, 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 met her burden of proof to establish permanent 

impairment of her lower extremities due to her accepted employment injuries, thereby 

warranting a schedule award. 

FACTUAL HISTORY 

On September 14, 2010 appellant, then a 48-year-old screener, filed a traumatic injury 

claim (Form CA-2) claiming that on August 24, 2010 she sustained injury when she tripped on a 

mat and fell to the floor at work. She stopped work on August 31, 2010 and received 

continuation of pay. 

On December 9, 2010 OWCP accepted appellant’s claim for lumbar contusion, lumbar 

strain, right knee contusion, and right knee strain. It paid wage-loss compensation beginning 

November 10, 2010. Appellant returned to limited-duty work on a full-time basis on 

November 17, 2010 and later returned to regular duty on a full-time basis with intermittent work 

stoppages. 

The findings of an April 7, 2011 magnetic resonance imaging (MRI) scan of appellant’s 

right knee contained an impression of no meniscal tear. 

In a report dated May 16, 2011, Dr. Joseph Abate, an attending Board-certified 

orthopedic surgeon, reported the findings of his physical examination on that date. He noted that 

appellant had significant subjective complaints during the examination with no significant 

swelling, over reactive nonlocalized tenderness throughout, good full extension, full flexion, no 

instability, no crepitation, and no instability. 

In June 2011 OWCP referred appellant to Dr. Stanley Hom, a Board-certified orthopedic 

surgeon, for a second opinion examination and evaluation of the nature and extent of her workrelated medical condition. 

In a July 13, 2011 report, Dr. Hom discussed appellant’s factual and medical history, 

including the circumstances of her August 24, 2010 work injury and her preexisting fibromyalgia 

condition. He noted that there were minimal right knee findings during the physical examination 

he conducted on July 13, 2011 and indicated that the MRI scan for appellant’s right knee was 

negative for meniscal tear. The findings were suggestive of some degenerative changes in the 

right medial compartment. Dr. Hom posited that, without a specific diagnosis, it was not 

medically reasonable to relate appellant’s current right knee symptoms to the accepted 

August 24, 2010 work injury. He indicated that it was possible that some of the right knee 

symptoms were related to the preexisting fibromyalgia. Dr. Hom noted appellant’s complaints 

of low back pain but indicated that the MRI scan of her low back did not show any evidence of 

disc herniation or impingement of nerve roots. In a form report dated July 13, 2011, he indicated 
3

that appellant could work eight hours per day with restrictions, including lifting, pushing, and 

pulling no more than 15 pounds.3

A January 18, 2012 MRI scan of her lumbar spine contained an impression of disc bulge 

at L4-5. The report indicated that there was no significant change compared with the last MRI 

scan of the lumbar spine obtained on November 15, 2010. 

In a report dated January 9, 2013, Dr. George Mina, an attending Board-certified 

orthopedic surgeon, reported his physical examination findings noting that appellant’s right knee 

had full range of motion with no effusion, no medial or lateral instability, mild tenderness over 

the patella, and negative anterior drawer sign. He further indicated that appellant ambulated 

well, not using any assistive devices, and that she had no trouble getting on or off the examining 

table. Dr. Mina provided the diagnosis of chronic strain of the right knee with preexisting 

osteoarthritis. He determined that appellant had one percent permanent impairment of her right 

lower extremity under the sixth edition of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter A.M.A., Guides). In making 

this determination, Dr. Mina referenced Table 16-3 (Knee Regional Grid) beginning on page 509 

of the sixth edition. Citing Table 17-4 (Lumbar Spine Regional Grid) beginning on page 570, he 

also calculated one percent permanent impairment of the lumbar spine which he felt was 

preferable to preexisting lumbar degenerative disc disease disclosed by MRI scan. Dr. Mina 

placed appellant at maximum medical improvement (MMI) as of one year following the 

August 24, 2010 date of injury. 

On November 9, 2012 appellant filed a claim for a schedule award (Form CA-7) claiming 

a schedule award due to her accepted employment injuries. 

OWCP referred the case record to Dr. David I. Krohn, a Board-certified internist serving 

as an OWCP medical adviser, for evaluation and an opinion on permanent impairment of the 

lower extremities. 

In a report dated November 1, 2015, Dr. Krohn discussed the medical evidence of record, 

including the reports of Dr. Hom and Dr. Mina. He noted that, using Table 16-3 of the sixth 

edition of the A.M.A., Guides for “strain” of the right knee, in the absence of significant 

objective abnormal findings of muscle or tendon injury at MMI, he would assign a class 0 

impairment which correlated with no permanent impairment of the right lower extremity. 

Dr. Krohn felt that the only abnormality on right knee examination, namely mild patellar 

tenderness, was a nonspecific physical finding subjectively reported by appellant with no 

objective support for a specific diagnosis. He indicated that this was in agreement with the 

conclusions of Dr. Hom and that Dr. Abate had indicated on May 16, 2011 that appellant’s 

subjective complaints were out of proportion to objective findings. Dr. Krohn noted that his 

impairment rating was contradictory to that assigned by Dr. Mina but he noted that Dr. Mina’s 

 3

 In a supplemental report dated August 8, 2011, Dr. Hom noted that appellant’s symptoms localized to her low 

back appeared to be causally related to the August 24, 2010 work injury. He advised that her recommended work 

restrictions were based on all of appellant’s musculoskeletal conditions including “what may also be a component of 

fibromyalgia.” 
4

findings on physical examination did not provide objective evidence for injury to muscles or 

tendons. He found that appellant had reached MMI in August 2011. 

In a decision dated February 24, 2016, OWCP denied appellant’s claim for a schedule 

award. It found that appellant failed to meet her burden of proof to establish permanent 

impairment of her lower extremities due to her accepted employment injuries. 

Appellant requested a telephone hearing with a representative of OWCP’s Branch of 

Hearing Review. During the hearing held on November 2, 2016, counsel argued that the opinion 

of Dr. Mina established permanent impairment of the lower extremities. 

By decision dated December 5, 2016, OWCP’s hearing representative affirmed the 

February 24, 2016 decision denying appellant’s claim for a schedule award. He determined that 

appellant had not met her burden of proof to establish permanent impairment of her lower 

extremities due to her accepted employment injuries. The hearing representative found that the 

weight of the medical evidence, with respect to appellant’s permanent impairment, rested with 

the November 1, 2015 opinion of the Dr. Krohn, the medical adviser. 

LEGAL PRECEDENT 

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 

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

Although the A.M.A., Guides includes guidelines for estimating impairment due to 

disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8

 A 

schedule award is not payable for the loss, or loss of use, of a part of the body that is not specifically 

enumerated under FECA.9 Moreover, neither FECA nor its implementing regulations provide for 

 4

 5 U.S.C. § 8107. 

5

 20 C.F.R. § 10.404 (1999). 

6 Id. 

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

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

Chapter 2.808.5a (February 2013). 

8 Pamela J. Darling, 49 ECAB 286 (1998). 

9 Thomas J. Engelhart, 50 ECAB 319 (1999). 
5

a schedule award for impairment to the back or to the body as a whole. Furthermore, the back is 

specifically excluded from the definition of organ under FECA.10

In 1960, amendments to FECA modified the schedule award provisions 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. 

Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be 

entitled to a schedule award for permanent impairment to an extremity even though the cause of 

the impairment originated in the spine.11

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating 

spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or 

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides 

Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition” 

(July/August 2009) (hereinafter The Guides Newsletter) is to be applied.12 The Board has long 

recognized the discretion of OWCP to adopt and utilize various editions of the A.M.A., Guides

for assessing permanent impairment.13 In particular, the Board has recognized the adoption of 

this methodology for rating extremity impairment, including the use of The Guides Newsletter, 

as proper in order to provide a uniform standard applicable to each claimant for a schedule award 

for extremity impairment originating in the spine.14

ANALYSIS 

OWCP accepted that on August 24, 2010 appellant sustained a work-related lumbar 

contusion, lumbar strain, right knee contusion, and right knee strain. On November 9, 2012 

appellant filed a claim (Form CA-7) for schedule award compensation due to her accepted 

employment injuries. OWCP denied appellant’s claim finding that the weight of the medical 

opinion evidence rested with Dr. Krohn, OWCP’s medical adviser, who found no permanent 

impairment of the lower extremities under the standards of the sixth edition of the A.M.A., 

Guides. 

The Board finds that appellant failed to meet her burden of proof to establish permanent 

impairment of her lower extremities due to her accepted employment injuries. 

In support of her claim, appellant submitted a January 9, 2013 report from Dr. Mina, an 

attending physician, who determined that appellant had one percent permanent impairment of her 

right lower extremity impairment under the sixth edition of the A.M.A., Guides. In making this 

 10 James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990). 

11 Supra note 9. 

12 See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3 

-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as 

Exhibit 4. 

13 D.S., Docket No. 14-12 (issued March 18, 2014). 

14 See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014). 
6

determination, Dr. Mina referenced Table 16-3 (Knee Regional Grid) beginning on page 509 of 

the sixth edition. He noted findings of patellar tenderness, full range of motion, and no 

instability. Citing Table 17-4 (Lumbar Spine Regional Grid) beginning on page 570, Dr. Mina 

also calculated one percent permanent impairment of the lumbar spine which he felt was 

preferable to preexisting lumbar degenerative disc disease disclosed by MRI scan. 

The Board notes that, after receiving Dr. Mina’s January 9, 2013 report, OWCP referred 

the case for review by an OWCP medical adviser, Dr. Krohn. 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 providing rationale for the percentage of 

impairment specified.15

The Board finds that Dr. Krohn properly determined that appellant had no permanent 

impairment of her lower extremities under the standards of the sixth edition of the A.M.A., 

Guides. In his November 1, 2015 report, Dr. Krohn properly indicated that the right knee 

symptoms described by Dr. Mina were subjective in nature and could not support a ratable 

impairment. He explained that, using Table 16-3 of the sixth edition of the A.M.A., Guides for 

“strain” of the right knee, in the absence of significant objective abnormal findings of muscle or 

tendon injury at MMI, he would assign a class 0 impairment which correlated with no 

impairment of the right lower extremity. It is noted that Table 16-3 of the sixth edition of the 

A.M.A., Guides provides that, for a ratable impairment based on muscle strain, the examination 

findings must show objective palpatory findings, radiographic findings, motion deficits, or 

significant weakness.16 Dr. Krohn explained that no such true objective findings were reported 

in appellant’s case. 

The Board notes that Dr. Mina found impairment referable to preexisting lumbar 

degenerative disease, but that he did not identify permanent impairment causally related to the 

accepted August 24, 2010 lumbar strain or contusion. The Board has held that a preexisting 

impairment may be included in the calculation of percentage of loss referable to a work-related 

injury. However, where there is no demonstrated permanent impairment due to an accepted 

workplace injury, the claim is not ripe for consideration of any preexisting impairment.17 The 

Board further notes that Dr. Mina’s opinion on lower extremity impairment of the lumbar spine 

is also deficient because he improperly applied the standards of Table 17-418 to find a lumbar 

spine impairment, rather than applying the standards of The Guides Newsletter. The Board has 

held that The Guides Newsletter provides the standards for evaluating any permanent impairment 

in the lower extremities referable from the lumbar spine.19

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

Chapter 2.808.6f (February 2013). 

16 See A.M.A., Guides 509, Table 16-3. 

17 M.F., Docket No. 16-1089 (issued December 14, 2016); Thomas P. Lavin, 57 ECAB 353 (2006). 

18 See A.M.A., Guides 570, Table 17-4. 

19 See supra note 12. 
7

Because Dr. Mina’s impairment evaluation was not conducted in accordance with the 

standards of the sixth edition of the A.M.A., Guides, it is of limited probative value regarding 

appellant’s lower extremity impairment. OWCP properly accorded the weight of the medical 

opinion evidence to the opinion of Dr. Krohn.20 Appellant has not submitted probative medical 

evidence supporting lower extremity impairment. Thus a schedule award is not warranted. 

CONCLUSION 

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her lower extremities due to her accepted employment injuries, thereby 

warranting a schedule award.

ORDER 

IT IS HEREBY ORDERED THAT the December 5, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 25, 2017 

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 

 20 See Linda Beale, 57 ECAB 429 (2006); James Kennedy, Jr., 40 ECAB 620 (1989).