United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.D., Appellant

and

DEPARTMENT OF THE ARMY, MEDICAL 

COMMAND, Fort Jackson, SC, Employer

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Docket No. 19-0797

Issued: October 2, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On March 1, 2019 appellant filed a timely appeal from a January 17, 2019 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 13 percent 

permanent impairment of the left lower extremity, for which he previously received a schedule 

award.

FACTUAL HISTORY

On November 10, 2015 appellant, then a 56-year-old psychiatric nurse, filed a traumatic 

injury claim (Form CA-1) alleging that on November 7, 2015 he intervened in an altercation 

 

1

5 U.S.C. § 8101 et seq.
2

between psychiatric patients and injured his left leg and face while in the performance of duty. He 

stopped work on November 8, 2015.

On November 18, 2015 appellant underwent an open reduction, internal fixation of 

bicondylar left tibial plateau fracture via medial and lateral approaches, open repair of left lateral 

meniscus bucket handle tear and removal of preexisting external fixation device from lower left 

extremity, performed by Dr. Michael C. Tucker, a Board-certified orthopedic surgeon. By 

decision dated December 17, 2015, OWCP accepted appellant’s claim for displaced bicondylar 

fracture of the left tibia, closed fracture. It paid him compensation on the supplemental rolls for 

total disability commencing December 23, 2015. Appellant returned to work on April 19, 2016. 

In an April 19, 2018 South Carolina physician’s statement form report, Dr. Tucker 

diagnosed left tibial plateau fracture. He indicated in the appropriate space that appellant reached 

maximum medical improvement (MMI) on December 5, 2017. Dr. Tucker, indicated in the 

appropriate space that he utilized the sixth edition of the American Medical Association, Guides 

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

2 and indicated in the appropriate 

space that appellant sustained 25 percent permanent impairment of the left lower extremity.

On July 17, 2018 appellant filed a claim for a schedule award (Form CA-7).

OWCP referred Dr. Tucker’s report, the medical record, and a statement of accepted facts 

(SOAF) to Dr. Jovito Estaris, Board-certified in occupational medicine and OWCP district medical 

adviser (DMA), for evaluation of appellant’s permanent impairment rating. 

In a report dated August 4, 2018, the DMA, noted that Dr. Tucker’s report was deficient 

because he did not provide a detailed medical history and chief complaint. He also noted that

Dr. Tucker had not documented appellant’s physical examination of the left knee and no range of 

motion (ROM) measurements were recorded. The DMA found that Dr. Tucker used a cursory 

one-page form and did not explain key modifiers, analysis, or calculations. He indicated that 

OWCP should request that Dr. Tucker provide this additional information. The DMA further 

noted that, if Dr. Tucker was unable to provide the requested information, a second opinion 

examination should be obtained, which included three independent ROM measurements of the left 

knee consistent with the sixth edition of the A.M.A., Guides.

By letter dated August 15, 2018, OWCP requested that appellant provide his physician 

with a copy of the DMA’s report and obtain his comments.

In an August 27, 2018 South Carolina physician’s statement form report, Dr. Tucker 

indicated that appellant reached MMI on March 27, 2018. He indicated in the blank space 

provided that appellant had 20 percent permanent impairment of the left lower extremity.

In a September 28, 2018 report, the DMA explained that “[u]nfortunately, this is also a 

one[-]page report.” He noted that the permanent impairment rating of appellant’s left lower 

 

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

extremity was now 20 percent, but no additional medical data had been provided. The DMA 

recommended a second opinion examination with a Board-certified orthopedic surgeon.

On October 29, 2018 OWCP referred appellant to Dr. Seth Jaffe, an osteopathic physician 

Board-certified in orthopedic surgery, for a second opinion examination. 

In a November 20, 2018 report, Dr. Jaffe noted appellant’s history of injury and medical 

treatment. He related that appellant was currently working modified duty and that he was not 

under active medical care for his left knee, but that he had some intermittent pain and swelling for 

which he used over-the-counter medication, but no knee brace or assistive device. Dr. Jaffe noted 

appellant’s diagnosis of displaced left tibial plateau fracture, and that he had undergone open 

reduction internal fixation of this fracture on November 16, 2015. He related physical examination 

findings and concluded that appellant had 19 percent permanent impairment of the left lower 

extremity using the DBI method, Table 16-3, page 510 of the A.M.A., Guides, and 10 percent

permanent impairment of the left lower extremity using the ROM method.

In a December 29, 2018 report, the DMA noted that under the DBI method, the diagnosis 

was bicondylar comminuted fracture of the left tibia and fibula. He referred to Table 16-3

3

for a 

tibial plateau fracture, explained that appellant was a class 1, with a default value of 10, for less 

than 9 degrees of angulation. The DMA referred to Table 16-6

4

for grade modifier functional 

history (GMFH) and found that intermittent pain, modified activity, and no use of gait aid 

warranted a grade modifier of one. He then referred to Table 16-7

5

for grade modifier physical 

examination (GMPE) and determined that appellant was tender over the medial knee with mild 

limitation of flexion, stable. The DMA referred to Table 16-8

6 and noted that the grade modifier 

for clinical studies (GMCS) was three, due to a severe pathology from a comminuted, depressed 

fracture. He utilized the net adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS -

CDX) and calculated that appellant had a net adjustment of (1-1) + (2-1) + (3-1) = 3, equaling a 

grade E impairment. Based on these calculations, he concluded that appellant had 13 percent 

permanent impairment of the left lower extremity. The DMA determined that using the ROM 

method resulted in a lesser impairment rating of 10 percent. He referred to Table 16-237 and found 

that for 105 degrees of flexion, appellant would have received a 10 percent lower extremity 

impairment. The DMA noted that extension of 0 degrees did not support any impairment. He also 

referred to Table 16-258 and Table 16-17.

9

 

3

Id. at 510.

4

Id. at 516.

5

Id. at 517.

6

Id. at 519.

7

Id. at 549.

8

Id. at 550.

9

Id. at 545.
4

Regarding Dr. Jaffe’s report, the DMA explained that the discrepancy in impairment 

ratings was due to the different classes used. He noted that Dr. Jaffe utilized a class 2A, which 

required 10 to 19 degrees of angulation or 2 millimeters of articular surface step off. The DMA

explained that this was not found on x-rays of the left knee after surgery, which showed a stable 

position and alignment with healing fractures.10 He also noted that the DBI class was 1. The DMA

explained that, while Dr. Jaffe found three degrees of varus, the proper level was 2, for a class 1, 

with default value of 10 percent (less than nine degrees of angulation). The DMA found that MMI 

was reached on March 27, 2018.

By decision dated January 17, 2019, OWCP granted appellant a schedule award for 13 

percent permanent impairment of his left lower extremity. The award ran for 37.44 weeks, for the 

period March 27 to December 14, 2018 (and a fraction of a day).

LEGAL PRECEDENT

The schedule award provisions of FECA11 and its implementing regulations12 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.

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.13 As of May 1, 

2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.14

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).15 Under the sixth edition, for lower extremity impairments, the evaluator identifies the 

impairment of the class of diagnosis (CDX) condition, which is then adjusted by grade modifiers 

 

10 A January 19, 2016 x-ray of the left knee read by Dr. William John Savoca, a Board-certified diagnostic 

radiologist, revealed stable alignment and a stable fixation of the left knee. 

11 5 U.S.C. § 8107.

12 20 C.F.R. § 10.404.

13 Id. at § 10.404(a); see also R.E., Docket No. 18-1661 (issued May 28, 2019); see also BernardA. Babcock, Jr., 

52 ECAB 143 (2000).

14 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, ScheduleAwards, Chapter 3.700.2 and Exhibit 1 (January 2010).

15 Supra note 3at page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement.
5

of GMFH, GMPE, and GMCS.16 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) 

+ (GMCS-CDX).17

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

should be routed to an OWCP DMA for an opinion concerning the nature and percentage of 

impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing 

rationale for the percentage of impairment specified.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish more than 13 

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

schedule award. 

In support of his claim for a schedule award, appellant submitted reports dated April 19 

and August 27, 2018 from Dr. Tucker. However, his reports did not provide objective physical 

findings, statement of grade modifiers used, or references to the appropriate Tables in the A.M.A., 

Guides, in sufficient detail so that the claims examiner and others reviewing the file would be able 

to clearly visualize the impairment with its resulting restrictions and limitations.19 These reports 

were therefore insufficient to establish appellant’s schedule award claim. 

In light of the deficiencies in Dr. Tucker’s reports, OWCP properly referred appellant for 

a second opinion examination with Dr. Jaffe.

The Board notes that in his November 20, 2018 report, Dr. Jaffe, the second opinion 

physician, provided an impairment rating of 19 percent to the left lower extremity using the DB1 

method and 10 percent to the left lower extremity using the ROM method. 

The DMA reviewed Dr. Jaffe’s report along with the case record, and determined that 

appellant had 13 percent impairment of the left lower extremity.20 He determined that appellant 

had attained MMI as of March 27, 2018, the date of Dr. Tucker’s report. The DMA explained that 

appellant had a class 1, impairment for bicondylar comminuted fracture of the left tibia and fibula, 

a grade 1 impairment based on a functional history adjustment of 1 for intermittent pain, modified 

activity, no use of gait aid, and a physical examination adjustment of 2 for tenderness over the 

 

16 Id. at 493-556.

17 Id. at 521.

18 M.J., Docket No. 17-1776 (issued December 19, 2018); P.R., Docket No. 18-0022 (issued April9, 2018). See

Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.808.5 (March 2017).

19 See B.V., Docket No. 17-0656 (issued March 13, 2018).

20 OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file should be routed to a 

DMA for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., Guides, 

with the DMA providing rationale for the percentage of impairment specified. See Federal (FECA) Procedure Manual, 

supra note 14 at Chapter 2.808.6(f) (March 2017). See J.J.,Docket 18-1615 (issued March 5, 2019).
6

medial knee with mild limitation of flexion, stable, and a grade modifier of one for clinical studies 

of severe pathology, comminuted, depressed fracture. These deficits equaled 13 percent 

permanent impairment of the left lower extremity. The DMA also properly explained that Dr. Jaffe 

improperly utilized a class 2A, which required 10 to 19 degrees of angulation, or two millimeters 

of articular surface step off. He explained that this did not appear on x-rays of the left knee post 

surgery, and that the appropriate class in the DBI was class 1.

The Board finds that the weight of the medical evidence rests with the opinion of the DMA, 

as he provided the only impairment rating that properly applied the sixth edition of the A.M.A., 

Guides. The DMA appropriately applied the A.M.A., Guides in determining that appellant had 13

percent permanent impairment of the left lower extremity.21 The record does not contain any other 

medical evidence establishing greater than the 13 percent permanent impairment of the left lower 

extremity previously awarded. Thus, the Board finds that appellant has not met his burden of 

proof.

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 13 

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

schedule award compensation.

 

21 M.J., supra note 18; M.C., Docket No. 15-1757 (issued March 17, 2016). (The only medical evidence that 

demonstrated a proper application of the A.M.A., Guides was the report of the medical adviser).
7

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: October 2, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy 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