United States Department of Labor

Employees’ Compensation Appeals Board

_________________________________________

D.I., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Amesbury, MA, Employer

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Docket No. 16-1891

Issued: December 7, 2017

Appearances: Case Submitted on the Record

Daniel B. 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 27, 2016 appellant, through counsel, filed a timely appeal from a

September 12, 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 the case.

3

 

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.

3 Appellant timely requested an oral argument before the Board. By order dated February 7, 2017, the Board 

exercised its discretion and denied the request, finding that the issue presented could be addressed based on review 

of the case record. Order Denying Request for Oral Argument, Docket No. 16-1891 (issued February 7, 2017). 
2

ISSUE

The issue is whether appellant has more than 26 percent permanent impairment of the left 

lower extremity, for which he previously received a schedule award.

FACTUAL HISTORY

On November 13, 2012 appellant, then a 63-year-old retired letter carrier, filed an 

occupational disease claim (Form CA-2) alleging that his employment duties aggravated and 

accelerated his bilateral knee osteoarthritis. OWCP assigned the claim File No. xxxxxx209 and, 

on December 13, 2012, accepted the claim for aggravation of bilateral knee osteoarthritis.

Appellant has three prior claims for injuries to his knees. Under File No. xxxxxx218, 

OWCP accepted left knee strain and left medial meniscus tear, which occurred in the 

performance of duty on August 24, 1996. Appellant underwent left knee arthroscopy on 

February 28, 1997. Under File No. xxxxxx787, OWCP accepted left patellar tendon rupture due 

to an October 27, 2006 work-related fall. Appellant underwent left knee patellar tendon repair 

on October 27, 2006. Under File No. xxxxxx136, appellant filed a claim for a right knee 

condition that allegedly arose on or about November 6, 2006. OWCP denied that claim by 

decision dated December 2, 2008. It combined appellant’s lower extremity claims and 

designated File No. xxxxxx209 as the master file.

On February 6, 2013 appellant filed a claim for a schedule award (Form CA-7). In a 

January 31, 2013 report, Dr. David C. Morley Jr., a Board-certified orthopedic surgeon, advised 

that appellant had reached maximum medical improvement (MMI) with respect to both knees.4 

He diagnosed bilateral advanced medial compartment knee arthritis, which was causally related 

to appellant’s prior letter carrier duties. Utilizing the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides),

5

Dr. Morley calculated 32 percent permanent impairment for each lower extremity for “knee joint 

arthritis.” Appropriate tables and figures in the A.M.A., Guides were cited.

On January 2, 2014 an OWCP medical adviser reviewed Dr. Morley’s January 31, 2013 

report. He opined that appellant sustained temporary aggravation of the bilateral knee 

osteoarthritis and that his employment factors did not accelerate his preexisting knee condition. 

OWCP declared a conflict in medical opinion between Dr. Morley and its medical

adviser, and referred appellant to Dr. Robert R. Pennell, a Board-certified orthopedic surgeon, 

for an impartial medical examination.

In a March 17, 2014 report, Dr. Pennell noted that there was no scientific evidence that 

appellant’s work duties caused or contributed to his developing osteoarthritis in either knee joint. 

 

4 Dr. Morley noted that appellant tore his right meniscus in 1988, which required arthroscopic surgery. This was 

reportedly a nonindustrial injury, and appellant subsequently returned to work without significant problems.

Dr. Morley also noted appellant’s work-related left knee surgery in 2006. He explained that appellant reached MMI 

within months of the respective knee surgeries. 

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

He noted that nonoccupational risk factors for knee osteoarthritis included age and being 

overweight or obese. Dr. Pennell noted, however, that there was scientific evidence that 

appellant’s prior work-related left knee injuries would be contributing causes to his left knee 

osteoarthritis. He concluded that the prior left knee injuries and related surgeries resulted in a 

permanent aggravation of the left knee osteoarthritis. Dr. Pennell noted that appellant did not 

bring his x-rays with him. He noted that the radiologists who read the December 29, 2010 and 

May 1, 2012 bilateral knee x-rays concluded that appellant had moderate narrowing of the 

medial joint space, bilaterally with an assumed joint space measuring two millimeters (mm). 

Under Table 16-3, Knee Regional Grid, Dr. Pennell assigned class 2 for moderate problem with 

a two mm cartilage interval for the left knee. He assigned grade modifier 1 for functional history 

for a mild limp and also based on the American Academy/Association of Orthopedic Surgeons 

(AAOS) questionnaire. Dr. Pennell noted that the September 27, 2012 questionnaire was 

inconsistent with appellant’s statements provided on examination, where he reported that he was 

only a “little” tender on the sides of his knees and there was a relatively small joint effusion and 

no crepitation. There was also only minor laxity of the medial collateral ligament and no other 

instability. Dr. Pennell also noted a mild varus deformity and good range of motion of the knees 

with no leg length discrepancy. On that basis, he applied grade modifier 1 for physical 

examination. Dr. Pennell noted a clinical studies modifier was not applicable as the x-ray 

findings were used to place appellant in the diagnosis class. Applying the net adjustment 

formula, he calculated 16 percent permanent impairment of the left lower extremity.

On August 15, 2014 an OWCP medical adviser recommended that Dr. Pennell, as the 

impartial medical specialist, review recent left knee x-ray images, perform joint space 

measurements, and document the number of millimeters for each of the left knee comparts and 

then provide an impairment rating.

On January 13, 2015 OWCP forwarded bilateral knee x-rays from October 2, 2014 to

Dr. Pennell for review and an addendum report.

In a January 20, 2015 addendum, Dr. Pennell indicated that the medial joint space of the 

left and right knees measured one mm. Under Table 16-3, A.M.A., Guides 511 (6th ed. 2009),

6

he assigned class 3 for one mm cartilage interval and applied grade modifier 1 for functional 

history and grade modifier 1 for physical examination. A grade modifier for clinical studies was 

excluded. Dr. Pennell applied the net adjustment formula and calculated a net adjustment of -4 

which yielded 26 percent permanent impairment of the left lower extremity. 

On March 19, 2015 OWCP amended the accepted conditions to reflect permanent 

aggravation of left knee osteoarthritis and temporary aggravation of right knee osteoarthritis.

On October 30, 2015 an OWCP medical adviser concurred with Dr. Pennell’s impairment 

rating for the left lower extremity of 26 percent. He opined that MMI occurred on March 17, 

2014, the date of Dr. Pennell’s impairment examination. The medical adviser agreed with

Dr. Pennell’s assignment of grade modifier 1 for functional history as appellant had an antalgic 

gait, which did not require the use of a single gait aid/external orthotic device for stabilization 

and there was no documentation of a positive Trendelenburg. He also agreed with a grade 

 

6

See A.M.A. Guides 511, Table 16-3.
4

modifier 1 for physical examination as there was no tenderness to palpation and small joint 

effusions. The medical adviser further noted that since clinical studies were used to place 

appellant into the class, they could not be used again to assign a grade modifier.

By decision dated December 21, 2015, OWCP issued a schedule award for 26 percent 

permanent impairment of the left lower extremity. The period of the award ran for 74.88 weeks 

of compensation for the period March 17, 2014 to August 23, 2015. 

On January 14, 2016 appellant, through counsel, requested an oral hearing before a 

representative of OWCP’s Branch of Hearings and Review. A hearing was scheduled for 

June 28, 2016.7

In a June 17, 2016 letter and at the June 28, 2016 hearing, counsel presented arguments 

with respect to both the right and left knees. Appellant also testified at the hearing.

New evidence included: a September 27, 2012 AAOS lower limb questionnaire, FECA 

Circular No. 13-07, articles on knee osteoarthritis; excerpts from the Federal (FECA) Procedure 

Manual, a June 9, 2016 memorandum from one of appellant’s counsels; and documents 

pertaining to other individuals with FECA claims.8 

In a June 9, 2016 memorandum, counsel argued that appellant’s left lower extremity 

permanent impairment was 30 percent. He also argued that the finding of temporary aggravation 

of the right knee arthritis was erroneous.

By decision dated September 12, 2016, an OWCP hearing representative affirmed the 

December 21, 2015 decision which granted a schedule award for 26 percent permanent 

impairment of the left lower extremity. Special weight was given to Dr. Pennell’s impartial

medical evaluation. However, the hearing representative remanded the case for further action 

with regard to the right knee.

LEGAL PRECEDENT

The schedule award provisions of FECA9and its implementing 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 

 

7 On January 22, 2016 counsel requested a subpoena to compel attendance and testimony of Dr. Pennell. In a 

May 25, 2016 letter, an OWCP hearing representative denied his request for a subpoena as it had not been 

demonstrated that the relevant evidence from Dr. Pennell could not be obtained in writing if further clarification was 

deemed necessary to resolve the impairment issue. The hearing representative further found that if the decision 

rendered following the hearing was not favorable, the decision would include a specific finding on the subpoena 

issue which could then be appealed. The issue of whether a subpoena was properly denied is not before the Board 

on this appeal.

8

Per FECA Circular No. 13-07, the documents pertaining to other claimants were not scanned into this case file.

9

5 U.S.C. § 8107.

10 20 C.F.R. § 10.404.
5

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 beginning 

May 1, 2009, the sixth edition of the A.M.A., Guides is used.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), 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 The grade modifiers are used on the net adjustment formula described above to 

calculate a net adjustment. The final impairment grade is determined by adjusting the grade up 

or down the default value C, by the calculated net adjustment.16

Section 8123 of FECA provides that, if there is disagreement between the physician 

making the examination for the United States and the physician of the employee, the Secretary 

shall appoint a third physician, who shall make an examination.17 When there exist opposing 

medical reports of virtually equal weight and rationale and the case is referred to an impartial 

medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if 

sufficiently well rationalized and based upon a proper factual background, must be given special 

weight.18 OWCP’s medical adviser may review the opinion, but the resolution of the conflict is 

the responsibility of the impartial medical specialist.19

OWCP’s 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 

 

11 Id. at § 10.404(a).

12 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 2.808.5a (February 2013).

13 A.M.A., Guides 3, 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 497.

17 5 U.S.C. § 8123(a).

18 James F. Weikel, 54 ECAB 660 (2003).

19 V.G., 59 ECAB 635 (2008); Thomas J. Fragale, 55 ECAB 619 (2004); see also Richard R. LeMay, 56 ECAB 

341 (2005).
6

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

providing rationale for the percentage of impairment specified.20

ANALYSIS

OWCP initially accepted appellant’s claim for aggravation of bilateral knee osteoarthritis. 

It later amended the accepted conditions to reflect permanent aggravation of left knee 

osteoarthritis and temporary aggravation of right knee osteoarthritis. The issue is whether 

appellant has more than 26 percent permanent impairment of the left lower extremity, for which 

he previously received a schedule award. The Board finds that appellant has not met his burden 

of proof to establish more than the 26 percent permanent impairment previously awarded.

In his January 31, 2013 report, Dr. Morley found that MMI had been achieved in both 

knees and opined that appellant had 32 percent permanent impairment of each knee. An OWCP 

medical adviser reviewed the case record on January 2, 2014 and opined that appellant sustained 

temporary aggravation of the bilateral knee osteoarthritis and his employment factors did not 

accelerate his preexisting knee condition. OWCP thereafter properly declared a conflict in the 

medical opinion evidence and referred appellant to Dr. Pennell for an impartial medical 

examination. 

In his March 17, 2014 report, Dr. Pennell concluded that appellant’s prior left knee 

injuries and associated surgeries resulted in a permanent aggravation of the left knee 

osteoarthritis, but not the right knee osteoarthritis. However, without reviewing actual bilateral 

knee x-rays, he rendered an impairment rating for the left lower extremity. Following a review 

of the October 2, 2014 bilateral knee x-rays, Dr. Pennell opined in an addendum report of 

January 20, 2015 that appellant had 26 percent permanent impairment of the left lower extremity. 

He diagnosed permanent left knee osteoarthritis. Under Table 16-3, Dr. Pennell indicated as the 

left knee x-rays showed one mm medial joint space, appellant was class 3 or 30 percent default 

impairment. He excluded clinical studies, but found grade modifiers of 1 for functional history 

and physical examination. Utilizing the net adjustment formula, (GMFH 1 – CDX 3) + (GMPE 

1 – CDX 3) + (GMCS - CDX) (n/a), Dr. Pennell indicated that -4 moved the default impairment 

of 30 percent to the left 4 times, which yielded 26 percent left lower extremity permanent 

impairment. 

An OWCP medical adviser reviewed Dr. Pennell’s findings and concurred with his 

impairment rating. He opined that MMI occurred on March 17, 2014, the date of Dr. Pennell’s 

examination. Based on Dr. Pennell’s examination findings, the medical adviser agreed with his

determinations of grade modifiers of 1 for physical examination and functional history. He also 

agreed that since clinical studies (x-rays) were used to place appellant into the diagnosis class, 

they could not be used again to assign a grade modifier. Therefore, appellant had a total of 26 

percent left lower extremity permanent impairment. The record does not contain a rationalized 

impairment rating showing that appellant has more than the 26 percent permanent impairment of 

the left lower extremity previously awarded.

 

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

Chapter 2.808.6(d) (February 2013).
7

On appeal counsel challenges, without providing any arguments or reasons, the hearing 

representative’s affirmance of the December 21, 2015 schedule award for the left lower 

extremity. As noted, there is no evidence which demonstrates that appellant sustained greater 

than 26 percent permanent impairment of his left 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 employmentrelated condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has no more than 26 percent permanent impairment of the 

left lower extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: December 7, 2017

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