United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.D., Appellant

and

U.S. POSTAL SERVICE, NETWORK 

DISTRIBUTION CENTER, Jersey City, NJ, 

Employer

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Docket No. 19-0414

Issued: August 19, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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

JANICE B. ASKIN, Judge

JURISDICTION

On December 18, 2018 appellant, through counsel, filed a timely appeal from an 

October 26, 2018 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 his burden of proof to establish greater than three

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

schedule award.

FACTUAL HISTORY

On December 17, 2013 appellant, then a 58-year-old plumber, filed a traumatic injury 

claim (Form CA-1) alleging that on December 6, 2013 he strained his right knee while working 

under a sink while in the performance of duty. He stopped work on December 20, 2013. On 

February 18, 2014 OWCP accepted appellant’s claim for sprain of the right knee. On July 29, 

2014 it expanded acceptance of the claim to include a right knee medial meniscus tear. 

On October 10, 2014 appellant underwent authorized right knee arthroscopy, partial medial 

meniscectomy, loose body removal, and chondroplasty of the patellofemoral joint. In an operative 

report of the same date, Dr. Louis Rizio, a Board-certified orthopedic surgeon, noted preoperative 

and postoperative diagnoses of right knee medial meniscus tear, loose body, and chondromalacia 

of the patellofemoral joint. Appellant returned to full-time modified work as a customer care agent 

on March 20, 2017. In a letter dated March 21, 2017, OWCP notified him that it had therefore 

terminated his periodic wage-loss compensation payments, effective March 20, 2017.

On May 17, 2017 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated May 19, 2017, OWCP requested that appellant submit an 

impairment evaluation from his attending physician addressing the extent of his employmentrelated permanent impairment, if any, in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3

By decision dated July 19, 2017, OWCP denied appellant’s claim for a schedule award,

finding that the evidence submitted was insufficient to establish permanent impairment to a 

scheduled member or function of the body due to his accepted employment injury as defined by 

FECA. 

On July 25, 2017 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative. 

In a report dated November 29, 2017, Dr. Harvey R. Manes, a Board-certified orthopedic 

surgeon, performed a physical examination for evaluation of appellant’s permanent impairment 

pursuant to the A.M.A., Guides. He indicated that appellant had full range of motion (ROM) and 

normal muscle strength of the right knee, and the only positive finding was crepitation. Dr. Manes 

noted that appellant’s ROM was 150 degrees of flexion and 0 degrees of extension. He diagnosed 

arthritis and related that this condition was from his 2013 injury. Dr. Manes indicated that 

appellant had reached maximum medical improvement (MMI) on April 5, 2017. He further noted 

that, according to Table 16-3, Knee Regional Grid, of the A.M.A., Guides, page 511, appellant’s 

 

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

primary knee arthritis would be placed in class 1 with a default impairment of seven percent.

Dr. Manes assigned a grade modifier of 1 for functional history (GMFH) under Table 16-6, page 

516, for pain, stiffness, and weakness, and a grade modifier for physical examination (GMPE) 

from Table 16-7, page 517 of 1 for pain with crepitation and ROM. No grade modification was 

made for clinical study (GMCS) findings. He explained that, pursuant to the net adjustment 

formula on page 521, appellant would receive a net adjustment of zero, which would then result 

in the default rating of seven percent permanent impairment of the right lower extremity. 

On January 16, 2018 a telephonic hearing with an OWCP hearing representative was held. 

At the hearing, the hearing representative noted that appellant had now submitted an impairment 

evaluation. By decision dated January 26, 2018, she remanded the case to OWCP for further 

medical development, noting that she had made a summary decision, which was outlined in the 

hearing transcript.

On February 12, 2018 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), reviewed the SOAF, medical records, and Dr. Manes’

permanent impairment evaluation. Upon review of the record, he diagnosed status post right knee 

arthroscopic partial medial meniscectomy, loose body removal, and chondroplasty. Using the 

diagnosis-based impairment method, the DMA indicated that appellant had three percent 

permanent impairment of the right lower extremity as he had undergone a partial medial 

meniscectomy, under Table 16-3, page 509 of the A.M.A., Guides.

The DMA also related that the A.M.A., Guides did not allow for impairment ratings to be 

calculated using the ROM method for appellant’s diagnosis. He noted that Dr. Manes’ impairment 

evaluation was based on the Knee Regional Grid for arthritis and, while the operative report and 

MRI scan showed arthritic changes in appellant’s knee, the Knee Regional Grid, Table 16-3 at 

page 511, calculated permanent impairment for arthritis based on radiographic evidence of a three

millimeter cartilage interval, full thickness articular cartilage defects, and/or ununited 

osteochondral fractures. The DMA indicated that none of appellant’s medical records contained 

the required findings of retained joint space. He related that the date of MMI was November 29, 

2017, the date of Dr. Manes’ physical examination, because an April 5, 2017 date of MMI was not 

supported by the medical evidence. 

By decision dated April 26, 2018, OWCP granted appellant a schedule award for three

percent permanent impairment of the right lower extremity. The period of award ran for 8.64 

weeks from November 29, 2017 to January 28, 2018. 

On May 2, 2018 appellant, through counsel, requested a telephonic hearing before an 

OWCP hearing representative.4 The hearing was held on September 19, 2018. 

By decision dated October 26, 2018, OWCP’s hearing representative affirmed the 

April 26, 2018 decision, finding that the evidence of record failed to establish that appellant had 

 

4 Appellant submitted additional evidence with the request. However, this evidence pertained to an unrelated 

hearing loss claim.
4

more than three percent permanent impairment of his right lower extremity, for which he 

previously received a schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,6set 

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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

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, the relevant portion of the leg for the present case, reference 

is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 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 GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10 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.11

In some instances, a DMA’s opinion can constitute the weight of the medical evidence.12 

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.

13

 In this instance, a detailed opinion 

by a DMA may constitute the weight of the medical evidence as long as he or she explains his or 

her opinion, shows values and computation of impairment based on the A.M.A., Guides, and 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

9 See A.M.A., Guides 509-11 (6th ed. 2009).

10 Id. at 515-22.

11 Id. at 23-28.

12 J.H., Docket No. 18-1207 (issued June 20, 2019); M.P., Docket No. 14-1602 (issued January 13, 2015); supra

note 8 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.8(j) (September 2010).

13 Id.
5

considers each of the reported findings of impairment.

14

 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 DMA would constitute the weight of medical 

opinion.15

ANALYSIS

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

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

a schedule award.

In support of his schedule award claim, appellant submitted an impairment evaluation 

report from Dr. Manes dated November 29, 2017. Based on physical examination and the Knee 

Regional Grid for arthritis in the A.M.A., Guides, Table 16-3, Dr. Manes calculated a permanent 

impairment rating of seven percent of appellant’s right lower extremity. 

OWCP referred Dr. Manes’ report to Dr. Harris, its DMA for review. The DMA explained 

that Dr. Manes’ impairment evaluation was based on the Knee Regional Grid, Table 16-3 for 

arthritis, which was inappropriate as appellant’s examination did not include findings of three

millimeter cartilage interval, full thickness articular cartilage defect, or ununited osteochondral 

fracture.

The DMA found that appellant had a three percent permanent impairment of the right lower 

extremity based upon his partial medial meniscectomy. The Board has held that, when an 

attending physician’s report gives an estimate of permanent impairment, but it is not based on 

proper application of the A.M.A., Guides, OWCP may follow the advice of its medical adviser if 

he has properly used the A.M.A., Guides.

16

 The Board, thus, finds that OWCP properly found the 

impairment rating by the DMA constituted the weight of the medical evidence. The DMA’s

opinion was based on an accurate SOAF and the complete medical record. He provided a thorough 

impairment rating, utilizing the appropriate portions of the A.M.A., Guides for appellant’s partial 

medial meniscectomy under Table 16-3, page 509. The DMA described how appellant’s objective 

findings and physical examination warranted the specified percentage of impairment. 

There is no additional evidence of record which provides for a higher rating of permanent 

impairment. Therefore, the Board finds that appellant has not met his burden of proof to establish 

greater than the three percent permanent impairment of the right lower extremity previously 

awarded.

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.

 

14 Id.

15 Id.

16 See P.L., Docket No. 17-0355 (issued June 27, 2018); see also Ronald J. Pavlik, 33 ECAB 1596 (1982).
6

CONCLUSION

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

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

a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 26, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board