United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.R., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Pasadena, MD, Employer

__________________________________________

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Docket No. 19-0526

Issued: July 24, 2019

Appearances: Case Submitted on the Record

Scott B. Baron, 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 January 3, 2019 appellant, through counsel, filed a timely appeal from a September 14, 

2018 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 greater than nine 

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

schedule award.

 

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

FACTUAL HISTORY

OWCP accepted that on May 11, 2001 appellant, then a 36-year-old mail carrier, sustained 

a neck sprain, post-traumatic stress disorder, loose body and medial meniscus tear of the right 

knee, osteochondritis dissecans, degeneration of cervical intervertebral disc, and displacement of 

cervical intervertebral disc without myelopathy as a result of a motor vehicle accident that occurred 

while in the performance of duty.2 It authorized a right medial meniscus repair performed on 

July 10, 2001, cervical discectomy and fusion performed on November 22, 2002, right medial 

meniscectomy performed on July 10, 2003, autologous chondrocyte implant procedure on the right 

knee performed on December 23, 2003, and lumbar facet rhizotomies performed on July 1, 2004

and February 2, 2005.

On July 17, 2015 appellant filed a claim for a schedule award (Form CA-7). 

OWCP subsequently received an impairment evaluation dated June 8, 2015 by

Dr. Michael A. Franchetti, an attending Board-certified orthopedic surgeon. Dr. Franchetti 

provided an impression of status post arthroscopic attempted medial meniscus repair and 

chondroplasty medial femoral condyle followed by medial meniscectomy, removal of loose 

bodies, and repeat chondroplasty medial femoral condyle followed by autologous chondrocyte 

implant of the medial femoral condyle (Carticel implant) with post-traumatic degenerative joint 

disease of the right knee and painful loss of motion/arthrofibrosis.3 He advised that appellant had 

reached maximum medical improvement (MMI). Dr. Franchetti used the range of motion (ROM) 

method in the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

4

to find 30 percent permanent impairment of the right 

lower extremity due to appellant’s employment-related right knee conditions.

On August 11, 2015 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving 

as a district medical adviser (DMA), indicated that he had reviewed the medical record and a 

statement of accepted facts (SOAF). Regarding impairment of the right lower extremity, he 

utilized Table 16-3, Knee Regional Grid-Lower Extremity Impairment, on page 511. Dr. Berman 

found that a diagnosis of primary knee arthritis represented a class 1 impairment, three-millimeter 

(mm) cartilage interval with a full-thickness articular cartilage defect or ununited osteochondral 

fracture, had a default value of seven percent. He assigned a grade modifier for functional history 

(GMFH) of 2 due to moderate deficit under Table 16-6 on page 516. Dr. Berman assigned a grade 

modifier for physical examination (GMPE) of 2 for moderate loss of ROM and moderate problems

under Table 15-7 on page 517. He also assigned a grade modifier for clinical studies (GMCS) of

 

2 Appellant stopped work on May 11, 2001. On December 1, 2014 he returned to work at the Department of 

Defense (DOD). By decision dated February 18, 2015, OWCP reduced appellant’s wage-loss compensation to zero 

as his actual earnings from his position at DOD fairly and reasonably represented his wage-earning capacity. 

3 Dr. Franchetti also provided an impression of status post anterior cervical discectomy and fusion with plate fixation 

at C3-4, C4-5, and C5-6 followed by anterior cervical discectomy and fusion at C6-7 with anterior plate fixation 

followed by evacuation of postop retropharyngeal hematoma with breakage of the anterior fixation plate, chronic 

cervical strain, and chronic left cervical radiculopathy. Additionally, he provided an impression of chronic left 

shoulder sprain and strain with post-traumatic bursitis. 

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

1 for less than five-mm joint space narrowing under Table 16-8 on page 519. Using the net 

adjustment formula, Dr. Berman moved the class 1, grade C, seven percent impairment, to a grade 

E or nine percent permanent impairment of the right lower extremity. He found that appellant had 

reached MMI on June 8, 2015. 

OWCP determined that a conflict in medical opinion existed between Dr. Franchetti and

Dr. Berman regarding the extent of appellant’s permanent impairment of the right lower extremity. 

It referred appellant to Dr. Robert M. Saltzman, a Board-certified orthopedic surgeon, for an 

impartial medical examination. 

In a report dated December 30, 2015, Dr. Saltzman agreed with Dr. Berman’s nine percent 

right lower extremity permanent impairment rating. On physical examination of the right knee, 

he found full extension to 0 degrees and flexion to greater than 120 degrees. There was no effusion 

present. Strength was 5/5 with resisted knee extension and flexion. There was also less than one 

centimeter atrophy of the quadriceps on the right as compared to the left.

Dr. Saltzman noted that Dr. Berman correctly used the sixth edition of the A.M.A., Guides,

including the Knee Regional Grid for lower extremity impairments. He indicated that Dr. Berman

utilized Table 16-3 on page 511 and identified the diagnosis of primary knee joint arthritis as a

class 1 mild problem, with a three-mm cartilage interval with a full-thickness articular cartilage

defect or ununited osteochondral fracture, which was reported on x-rays by Dr. Franchetti.

Dr. Saltzman referred to page 543, noting that the DBI method was the method of choice for 

calculating impairment for the selected diagnosis. He indicated that Dr. Berman utilized Table 16-

3 on page 511 and correctly assessed that a three-mm cartilage interval and represented a grade C, 

seven percent impairment, and that, based on a GMPE adjustment on page 517, this impairment 

rating was adjusted from grade C to grade E, yielding nine percent permanent impairment of the 

right lower extremity. Dr. Saltzman noted that Dr. Franchetti used the ROM method to determine 

that appellant had 10 permanent impairment of the right lower extremity impairment. He advised 

that the nine percent impairment rating found by Dr. Berman took into account appellant’s pain, 

limp, ROM deficits, and restriction of activity. Dr. Saltzman concluded that appellant had reached 

MMI on June 8, 2015.

On February 16, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving 

as a DMA, found that appellant had nine percent permanent impairment of the right lower 

extremity. He advised that appellant had reached MMI on June 8, 2015. 

On February 24, 2016 OWCP requested that the DMA provide clarification of his 

February 16, 2016 report as he did not address Dr. Saltzman’s findings. It advised him to review 

the findings of Dr. Saltzman, as well as the findings of Dr. Franchetti and Dr. Berman, and the 

SOAF. OWCP also requested that the DMA explain whether Dr. Saltzman had properly calculated

appellant’s permanent impairment of the right lower extremity and determined his date of MMI. 

On March 30, 2016 the DMA indicated that he had reviewed the SOAF and medical record. 

He agreed with Dr. Saltzman’s nine percent right lower extremity impairment rating.

By decision dated June 30, 2017, OWCP granted appellant a schedule award for nine

percent permanent impairment of the right lower extremity. The award ran for the period June 8 
4

to December 6, 2015, for a total of 25.92 week, and was based on the December 30, 2015 report 

of Dr. Saltzman and March 30, 2016 report of the DMA. 

On June 18, 2017 appellant, through counsel, requested reconsideration. In support of his 

request he submitted a letter dated May 18, 2018 from Dr. Franchetti. Dr. Franchetti indicated a 

review of appellant’s medical records and noted that neither Dr. Berman nor Dr. Harris had 

performed an interview or physical examination. He maintained that both physicians had simply 

reviewed medical records to arrive at their opinions. Dr. Franchetti further maintained that the 

impairment reflected in his June 8, 2015 report remained a fair and an accurate assessment of 

appellant’s May 11, 2001 employment-related impairments based on his review of the voluminous 

medical records and his detailed report. 

By decision dated September 14, 2018, OWCP denied modification of its June 30, 2017 

decision, finding that Dr. Franchetti’s May 18, 2018 report was insufficient to establish that

appellant had more than nine percent permanent impairment of the right lower extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulation,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

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 GMFH, GMPE, and GMCS. The net 

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10 Under Chapter 2.3, the 

 

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); Federal (FECA) Procedure Manual, 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.
5

evaluators are directed to provide reasons for their impairment rating choices, including the 

choices of diagnoses from regional grids and calculations of modifier scores.11

Section 8123(a) 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.12 When there are opposing reports of virtually 

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant 

to section 8123(a) of FECA, to resolve the conflict in the medical evidence.13 Where a case is 

referred to an impartial medical examiner (IME) for the purpose of resolving a conflict, the opinion 

of such specialist, if sufficiently well rationalized and based on a proper factual and medical 

background must be given special weight.14

ANALYSIS

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

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

a schedule award.

OWCP accepted that appellant sustained neck sprain, post-traumatic stress disorder, loose 

body and medial meniscus tear of the right knee, osteochondritis dissecans, degeneration of 

cervical intervertebral disc, and displacement of cervical intervertebral disc without myelopathy 

with resulting cervical and lumbar spine and right knee surgeries performed on various dates from 

November 22, 2002 through February 2, 2005. 

OWCP properly determined that a conflict in the medical opinion evidence existed between

Dr. Franchetti, a treating physician, and Dr. Berman, an OWCP DMA, regarding the extent of 

appellant’s permanent impairment of the right lower extremity due to his accepted work-related 

conditions.

Dr. Saltzman was selected as the IME, to resolve the conflict in medical opinion, pursuant

to 5 U.S.C. § 8123(a). In his December 30, 2015 report, he reviewed the SOAF and medical 

record, and provided extensive physical examination findings. Dr. Saltzman concurred with

Dr. Berman’s assessment that appellant had nine percent permanent impairment of the right lower 

extremity for the diagnosis of primary knee joint arthritis in accordance with the A.M.A., Guides. 

He maintained that Dr. Berman properly assigned a class 1 impairment for mild arthritis knee 

problems with a three-mm cartilage interval with a full-thickness articular cartilage defect or

ununited osteochondral fracture, which represented a default grade C, seven percent impairment,

under Table 16-3, Knee Regional Grid, page 511. Dr. Saltzman further maintained that,

Dr. Berman properly applied the net adjustment formula, which required movement of the grade 

 

11 Id. at 23-28.

12 5 U.S.C. § 8123(a).

13 C.R., Docket No. 18-1285 (issued February 12, 2019).

14 Id.
6

C impairment to grade E, for a nine percent impairment of the right lower extremity. He explained 

that the impairment rating took into account appellant’s pain, limp, ROM deficits, and restriction 

of activity. Based on his examination and review of the record, Dr. Saltzman properly concluded 

that appellant had nine percent right lower extremity permanent impairment. The Board finds his 

impartial medical opinion is sufficiently well rationalized and based upon a proper factual and 

medical background such that it is entitled to special weight.

15

Dr. Franchetti, in a report dated May 18, 2018, reviewed the medical record and contended 

that neither Dr. Berman nor Dr. Harris, also an OWCP DMA, had interviewed or examined 

appellant. He contended that the physicians simply reviewed medical records to arrive at their 

opinions. Contrary to Dr. Franchetti’s contention, OWCP’s procedures specifically provide: “The

[c]laims [e]xaminer (CE) will ask the DMA to evaluate a case when it appears to be in posture for

schedule award determination. The DMA is responsible for reviewing the file, particularly the 

medical report on which the award is to be based, and then calculating the award.”

16

 Further,

Dr. Franchetti contended that his 30 percent right lower extremity impairment rating remained a 

fair and an accurate assessment of appellant’s impairment due to the May 11, 2001 employment 

injury. He, however, was on one side of the conflict resolved by Dr. Saltzman. The Board has 

held that reports from a physician who was on one side of a medical conflict are generally 

insufficient to overcome the special weight accorded to the IME, or to create a new conflict.17 

Dr. Franchetti’s report is thus insufficient to overcome the special weight accorded to

Dr. Saltzman’s opinion or to create a new conflict in medical opinion.18

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 greater than 

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

a schedule award.

 

15 See N.L., Docket No. 18-0743 (issued April 10, 2019); A.H., Docket No. 18-0050 (issued March 26, 2018); J.J.,

Docket No. 10-1758 (issued May 16, 2011).

16 Federal (FECA) Procedure Manual, supra note 8 at Chapter 3.700.3 (January 2010); see also D.P., Docket No. 

16-1908 (issued May 22, 2017).

17 See S.S., Docket No. 17-1361 (issued January 8, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes,

52 ECAB 387 (2001).

18 See S.S., id.; K.R., Docket No. 16-0542 (issued December 21, 2016).
7

ORDER

IT IS HEREBY ORDERED THAT the September 14, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 24, 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