United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, 

Athens, GA, Employer

__________________________________________

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Docket No. 18-0679

Issued: November 7, 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

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On February 9, 2018 appellant, through counsel, filed a timely appeal from a January 8, 

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 to consider the merits of this 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 The Board notes that following the January 8, 2018 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish permanent 

impairment of her left lower extremity, warranting a schedule award. 

FACTUAL HISTORY

On May 16, 2011 appellant, then a 61-year-old laboratory support worker, sustained a left 

knee injury on May 13, 2011 when walking down the second floor stairway to the first floor

while in the performance of duty. OWCP accepted her claim for tear of the lateral meniscus of 

the left knee. Appellant stopped work on May 17, 2011.

Appellant was treated by Dr. Charles Ogburn, a Board-certified internist, from May 26, 

2011 to February 13, 2012, for a cervical spine and left knee injury sustained after her May 13, 

2011 fall. Dr. Ogburn noted that x-rays of appellant’s left knee revealed age-related 

degenerative changes. He diagnosed left knee pain, suspected meniscus tear, and cervical 

radiculopathy. Dr. Ogburn performed a series of left knee injections. He recommended physical 

therapy and discharged appellant to return to work full duty on September 23, 2011.

A magnetic resonance imaging (MRI) scan of the left knee dated June 10, 2011 revealed

mucoid intrasubstance degeneration of the anterior cruciate ligament, possibly grade 1 sprain, 

small closed horizontal tear of the body of the lateral meniscus, increased T2 signal involving the 

free edge of the body of the lateral meniscus possibly representing small remote radial tear 

versus free edge fraying, lateral patella tilt, lateral overriding patella, and extensive irregular 

thinning of the articular cartilage of the patella.

Appellant treated with Dr. William C. Tally, a Board-certified orthopedist, from June 21 

to August 19, 2011, for left shoulder and neck pain. 

On July 20, 2016 appellant filed a claim for a schedule award (Form CA-7).

In an August 17, 2016 letter, OWCP requested that Dr. Tally submit a detailed report

which provided a rating of impairment pursuant to the sixth edition of the American Medical

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 

Dr. Tally did not respond.

By decision dated September 28, 2016, OWCP denied appellant’s claim for a 

schedule award, finding that the evidence of record was insufficient to establish permanent 

impairment of a scheduled member or function of the body due to her accepted May 13, 

2011 employment injury.

On October 6, 2016 appellant, through counsel, requested a telephonic hearing 

before an OWCP hearing representative. The hearing was held on May 1, 2017. 

In support of her schedule award claim, appellant submitted an October 3, 2016 

report from Dr. Brad Register, a Board-certified orthopedist, who treated her in 2012 for 

 

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

left knee and left shoulder pain. Dr. Register diagnosed left knee pain with a history of 

questionable lateral meniscus tear. He indicated that appellant had intermittent pain in the 

left knee, but that she had reached maximum medical improvement (MMI) and had not 

required further treatment for the left knee. Dr. Register referred her for an impairment 

rating.

In an October 6, 2016 report, a physical therapist opined that, pursuant to the

A.M.A., Guides, Table 16-3, Knee Regional Grid, appellant sustained two percent

permanent impairment of her left lower extremity. 

By decision dated June 9, 2017, the hearing representative affirmed the 

September 28, 2016 decision. 

On August 14, 2017 appellant, through counsel, requested reconsideration submitting

an October 28, 2016 impairment rating report from Dr. Register which was based on the 

findings of a physical therapist. The primary diagnosis was left knee pain. Dr. Register 

opined that, pursuant to the A.M.A., Guides, appellant had two percent permanent 

impairment of the whole person. 

In an August 16, 2017 letter, OWCP requested that appellant provide an impairment

rating conducted pursuant to the protocols of the A.M.A., Guides. It specifically requested

that she arrange for the submission of a detailed narrative medical report from her treating 

physician based upon a recent examination in accordance with the A.M.A., Guides. OWCP 

indicated that although appellant had submitted an impairment rating by Dr. Register, a whole 

person rating of impairment was inappropriate under FECA. 

Appellant submitted an updated impairment rating from Dr. Register dated 

August 30, 2017. The primary diagnosis was left knee pain and he noted that, pursuant to the 

A.M.A., Guides, Knee Regional Grid, for soft tissue injury/pain of the left knee, appellant’s 

diagnosis was a class 1, mild problem, with consistent motion deficits. Grade modifier for 

functional history (GMFH) was 2 for moderate deficit pursuant to the lower limb instrument 

(LEFS 20/80), the grade modifier for physical examination (GMPE) was 1 for mild range of 

motion deficits (98 flexion, -6 extension), and the grade modifier for clinical studies 

(GMCS) was zero due to no available clinical studies or relevant findings. Using the net 

adjustment formula, Dr. Register concluded that appellant was a grade C or two percent 

whole person impairment, which he converted to six percent permanent impairment of the 

left lower extremity. 

OWCP thereafter routed Dr. Register’s permanent impairment rating to a district medical 

adviser (DMA). In a report dated September 27, 2017, the DMA noted review of Dr. Register’s 

August 30, 2017 report, which demonstrated limited motion of 6 to 98 degrees for 6 percent left 

lower extremity impairment based on the diagnosis-based impairment (DBI) method. He

indicated that Dr. Register had not provided the necessary documentation of appellant’s residual 

subjective complaints, diagnostic studies, treatment, or diagnosis. The DMA also noted that 

there was insufficient information contained in the case record to make a determination of 

permanent impairment based on the A.M.A., Guides. He recommended that appellant be 

referred for a second opinion examination to establish a permanent impairment rating. 

On October 31, 2017 OWCP referred appellant for a second opinion to Dr. Howard B. 

Krone, a Board-certified orthopedist, for a determination of whether appellant had permanent 
4

impairment attributable to her accepted condition. In a report dated December 5, 2017,

Dr. Krone noted a history of appellant’s work-related condition and subsequent treatment. He 

noted examination findings and noted that she was ambulating without a cane. Dr. Krone found

that examination of appellant’s left knee was normal and that she had reached MMI in 2011. He 

further noted that the diagnosis was initially a lateral meniscal tear of the left knee, but that there 

were no MRI scan findings included for review and his examination did not demonstrate 

evidence of a lateral meniscal tear. Dr. Krone noted the diagnosis of left knee pain was 

secondary to the initial contusion of the anterior aspect of her left knee and had generally 

resolved within six to eight weeks post injury. He indicated that based upon the A.M.A., Guides

appellant had zero percent permanent impairment of the left lower extremity due to lack of 

physical findings.

On December 18, 2017 OWCP requested clarification from Dr. Krone regarding his 

opinion. It noted that Dr. Krone had not assigned an impairment rating based on the DBI 

method because he had not observed evidence of a lateral meniscus tear. OWCP requested

that he review additional medical evidence it had provided, including a left knee MRI scan 

dated June 10, 2011 and a medical report from Dr. Ogburn dated June 14, 2011, and provide a

supplemental impairment rating of permanent impairment, if any. It further requested that

Dr. Krone address whether appellant had permanent impairment based on the range of motion 

methodology of the A.M.A., Guides, and provide the date of MMI.

In a supplemental report dated December 18, 2017, Dr. Krone noted that Dr. Ogburn’s 

June 14, 2011 office note described MRI scan findings, but made no mention of a complete 

tear of the lateral meniscus. He further indicated that OWCP had not sent him a left knee

MRI scan report as dictated by a radiologist. Dr. Krone found that appellant’s physical 

examination had not demonstrated lateral joint line pain and opined that, if there was a lateral 

meniscus tear, he would have observed lateral joint line pain and a positive McMurray test, 

which he had not. He therefore again opined that appellant had zero percent permanent 

impairment of the left lower extremity. Dr. Krone advised that during his examination on 

December 5, 2017 appellant’s range of motion was normal and thus there would be no 

permanent impairment based on loss of range of motion. He noted that appellant reached 

MMI on July 12, 2011.

By decision dated January 8, 2018, OWCP denied modification of the June 9, 2017

decision.

LEGAL PRECEDENT

The schedule award provision of FECA5and 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 

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404. 
5

the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued 

beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.8

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).9 Under the sixth edition, for lower extremity impairments the evaluator 

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

modifiers of GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).11 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.12

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.13

ANALYSIS

The Board finds that this case is not in posture for decision. 

OWCP referred appellant to Dr. Krone for a second opinion examination to determine her 

permanent impairment for schedule award purposes. In a report dated December 5, 2017,

Dr. Krone provided findings on physical examination and noted that the diagnosis was initially a 

lateral meniscal tear of the left knee, but that no MRI scan findings were included for review and 

that the examination was normal and had not demonstrated evidence of a lateral meniscal tear.

He noted the diagnosis of left knee pain secondary to the initial contusion to the anterior aspect 

of her left knee, which would have resolved within six to eight weeks post injury. Dr. Krone

concluded that appellant had reached MMI in 2011 and, in accordance with the A.M.A., Guides,

she had zero percent permanent impairment of the left lower extremity.

On December 18, 2017 OWCP requested that Dr. Krone provide clarification of his 

opinion. In his supplemental report dated December 18, 2017, Dr. Krone noted receiving a 

 

7

Id. at § 10.404(a).

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

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

(January 2010).

9 A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A 

Contemporary Model of Disablement.

10 Id. at 494-531.

11 Id. at 521.

12 A.M.A., Guides 497.

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

Chapter 2.808.6(f) (February 2013).
6

fax from OWCP on December 19, 2017, which included an office note from Dr. Ogburn dated 

June 14, 2011. He noted that he had not been provided a left lower extremity MRI scan report 

and that Dr. Ogburn’s June 14, 2011 office note described MRI scan findings, but made no 

mention of a complete tear of the lateral meniscus. Dr. Krone also noted that his physical 

examination had not demonstrated lateral joint line pain, findings of lateral joint line pain, nor

a positive McMurray test. He therefore continued to opine that appellant had zero percent 

impairment of the left lower extremity pursuant to the A.M.A., Guides.

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.14 While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

justice is done.15 Once OWCP undertakes development of the record it must procure medical 

evidence that will resolve the relevant issues in the case.16 It began to develop the evidence 

when it referred appellant to Dr. Krone for a second opinion examination to determine whether 

appellant sustained permanent impairment. Dr. Krone questioned whether appellant had

evidence of a left lateral meniscus tear as her physical examination was negative. He clearly 

indicated that he had not received a copy of the June 10, 2011 MRI scan report of the left knee

upon which the accepted conditions of the claim had been based. The Board finds that the MRI 

scan report was necessary for full consideration of whether appellant sustained permanent 

impairment of her left lower extremity.17

Therefore, the Board finds that the case must be remanded to OWCP. On remand OWCP 

should prepare an updated statement of accepted facts and obtain a copy of the MRI scan of the 

left knee dated June 10, 2011. The case shall then be forwarded to Dr. Krone for a supplemental 

opinion, or to a new second opinion physician, to address whether appellant has permanent 

impairment of her left lower extremity in accordance with the sixth edition of the A.M.A., 

Guides. Following this and such further development deemed necessary, OWCP shall issue a de 

novo decision on appellant’s schedule award claim. 

CONCLUSION

The Board finds that this case is not in posture for decision. 

 

14 See X.V., Docket No. 18-1360 (issued April 12, 2019); Jimmy A. Hammons, 51 ECAB 219 (1999); Vanessa 

Young, 55 ECAB 575 (2004). 

15 See B.C., Docket No. 19-0920 (issued September 25, 2019); Richard E. Simpson, 55 ECAB 490 (2004). 

16 Supra note 14; Phillip L. Barnes, 55 ECAB 426 (2004). 

17 See P.E., Docket No. 17-0961 (issued March 14, 2018).
7

ORDER

IT IS HEREBY ORDERED THAT the January 8, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: November 7, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board