United States Department of Labor

Employees’ Compensation Appeals Board

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G.S., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISIONS, Milan, MI, Employer

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Docket No. 18-0227

Issued: May 24, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 November 13, 2017 appellant filed a timely appeal from a November 8, 2017 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 established more than two percent permanent 

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

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

This case has previously been before the Board.2 The facts and circumstances as set forth 

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows. 

On June 19, 2015 appellant, then a 39-year-old education supervisor, injured his left knee 

while responding to a medical emergency at the correctional facility’s recreation yard.3 OWCP 

accepted his traumatic injury claim (Form CA-1) for left knee lateral meniscus tear. On 

November 23, 2015 appellant underwent OWCP-approved left knee arthroscopic surgery.4 He 

received wage-loss compensation for temporary total disability. On January 19, 2016 appellant 

returned to work in a full-time, limited-duty capacity. He resumed his regular duties on 

February 26, 2016.5 Appellant also filed a claim for a schedule award (Form CA-7). 

In a May 13, 2016 report, Dr. Telfer advised that appellant reached maximal medical 

improvement (MMI). He also advised appellant that it was quite possible that his left knee arthritis, 

as evidenced on x-ray (June 20, 2015) and during surgery, could progress to the point where 

appellant might require knee replacement surgery. In the short term, Dr. Telfer explained that 

appellant was able to manage his day-to-day symptoms with activity modification, over-thecounter medications, and similar conservative measures. In an August 17, 2016 follow-up report, 

he reiterated that appellant reached MMI. Dr. Telfer indicated that appellant was back at work 

and reported no significant difficulties. He explained that the combination of the loss of meniscal 

tissue through injury and surgery, and appellant’s preexisting arthritis, would likely increase the 

chance of future symptoms of arthritis. Currently, appellant’s symptoms were fairly minimal and 

tolerable. Dr. Telfer noted that there was no way to project a timetable for future difficulties with 

appellant’s left knee. Because he was either unable or unwilling to prepare an impairment rating, 

OWCP referred appellant for a second opinion evaluation.

By decision dated December 21, 2016, OWCP granted a schedule award for two percent 

permanent impairment of the left lower extremity pursuant to the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., 

Guides).6 OWCP based the award on a November 8, 2016 impairment rating provided by

Dr. Richard H. Deerhake, a Board-certified orthopedic surgeon and OWCP referral physician. 

Dr. Deerhake rated appellant based on his November 23, 2015 partial lateral meniscectomy.7 He

 

2 Docket No. 17-0489 (issued May 11, 2017).

3 Appellant was running across the baseball field when he felt his knee pop and give way. 

4 Dr. James L. Telfer, a Board-certified orthopedic surgeon, performed a diagnostic arthroscopy with minimal 

chondral debridement and partial lateral meniscectomy.

5

In a February 25, 2016 report, appellant’s surgeon released him to return to his “usual work duties without 

restriction.”

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

7 Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509 (6th ed. 2009). OWCP’s district medical adviser 

(DMA) concurred with Dr. Deerhake’s two percent left lower extremity permanent impairment rating.
3

did not evaluate appellant for left knee arthritis noting there were “no clinical studies in terms of 

standing x-rays to evaluate joint space.” Dr. Deerhake also indicated that “arthritis ... [was] not 

an allowed condition ... in regards to [appellant’s] knee....”

Appellant subsequently appealed to the Board. By May 11, 2017 decision, the Board set 

aside OWCP’s December 21, 2016 decision, and remanded the schedule award claim for further 

medical development.8 The Board found that additional development was necessary with respect 

to appellant’s preexisting left knee arthritis. The Board explained that, when determining 

entitlement to a schedule award, preexisting impairment to the scheduled member should be 

included.9

OWCP subsequently received a February 10, 2017 left knee magnetic resonance imaging 

(MRI) scan interpreted by Dr. Eric C. Ferguson a diagnostic radiologist that revealed a tear of the 

lateral meniscal body which was likely a degenerative-type tear. He indicated that the left knee 

MRI scan also showed blunting of the posterior horn of the lateral meniscus that may be from prior 

debridement, degenerative blunting, or minor tearing. There was also evidence of moderate bony 

and chondral degenerative changes in the lateral compartment, mild medial compartment 

degenerative changes, and moderate degenerative changes of the patellofemoral joint.

In a May 26, 2017 addendum report, Dr. Deerhake reviewed appellant’s June 20, 2015 left 

knee x-ray and indicated that he did not “find significant narrowing of the joint on his standing 

knee film which would allow for additional award for the arthritic changes in [appellant’s] knee.”

He explained that while appellant had some mild degenerative knee symptoms, it was not the cause 

of his current discomfort and pain. Dr. Deerhake attributed appellant’s problem to having had his 

lateral meniscus excised.

In a June 15, 2017 report, the DMA reviewed the record, including appellant’s 

February 10, 2017 left knee MRI scan, and concurred with Dr. Deerhake’s May 26, 2017 

impairment rating. The DMA explained that although appellant had preexisting left knee arthritis,

Dr. Deerhake’s review of appellant’s x-rays did not demonstrate joint space narrowing that would 

warrant impairment for arthritis under the A.M.A., Guides (6th ed. 2009).

By decision dated June 26, 2017, OWCP denied appellant’s request for an increased 

schedule award. It found that the evidence established that he had no more than the two percent 

left lower extremity permanent impairment previously awarded.

On August 15, 2017 appellant requested reconsideration and submitted additional 

evidence. 

On July 27, 2017 Dr. Chad A. Krueger, a Board-certified internist, evaluated appellant for 

musculoskeletal pain and back pain. He noted that appellant experienced bilateral knee pain with 

 

8 See supra note 2.

9

Id.
4

locking, loss of strength, and difficulty climbing stairs, bending, and squatting. Dr. Krueger 

diagnosed chronic left knee pain.

On August 3, 2017 Dr. Krueger related that appellant experienced “constant and severe 

arthritic pain involving both knees and the lower back.” He discussed his complaints of reduced 

left knee motion, loss of strength, locking, pain, and limitations with activity. Dr. Krueger opined 

that appellant reached MMI in November 2016.

By decision dated November 8, 2017, OWCP denied modification of its June 26, 2017 

decision. It found that appellant had not submitted evidence establishing more than two percent 

permanent impairment of the left lower extremity.

LEGAL PRECEDENT

Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the 

permanent loss of use of specified members, functions, and organs of the body.10 FECA, however, 

does not specify the manner by which the percentage loss of a member, function, or organ shall be 

determined. To ensure consistent results and equal justice under the law, good administrative 

practice requires the use of uniform standards applicable to all claimants. The implementing 

regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule 

losses.11 Effective May 1, 2009, schedule awards are determined in accordance with the sixth 

edition of the A.M.A., Guides (2009).12

When determining entitlement to a schedule award, preexisting impairment to the 

scheduled member should be included.13 Impairment ratings for schedule awards include those 

conditions accepted by OWCP as job related, and any preexisting permanent impairment of the 

same member or function.14 If the work-related injury has affected any residual usefulness in 

whole or in part, a schedule award may be appropriate.15 There are no provisions for 

apportionment under FECA,

16 but when the prior impairment is due to a previous work-related 

 

10 For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(2).

11 20 C.F.R. § 10.404.

12 See 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 (March 2017).

13 Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

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

2.808.5d.

15 Id.

16 Id.
5

injury and a schedule award has been granted for such prior impairment, the percentage already 

paid is subtracted from the total percentage of impairment.17

ANALYSIS

OWCP accepted that appellant sustained a left knee lateral meniscus tear. On 

November 23, 2015 appellant underwent a left partial lateral meniscectomy. He later filed a 

schedule award claim. Because his attending physician was unable to provide an impairment 

rating, OWCP referred appellant to Dr. Deerhake, who initially found two percent left lower 

extremity permanent impairment based on appellant’s left partial lateral meniscectomy. On 

remand Dr. Deerhake considered whether there was any additional lower extremity impairment 

attributable to appellant’s preexisting left knee arthritis. 

In his May 26, 2017 addendum report, Dr. Deerhake reviewed appellant’s left knee xray(s) and found that he did not have joint space narrowing on standing x-rays sufficient to show 

entitlement to a schedule award for arthritis. He attributed appellant’s symptoms to the left 

meniscus surgery, which Dr. Deerhake initially rated in his November 8, 2016 report.

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

left lower extremity. In his November 8, 2016 impairment evaluation, Dr. Deerhake identified the 

diagnosis as Class of Diagnosis (CDX) one partial lateral meniscectomy using Table 16-3 on page 

509 of the A.M.A., Guides, which yielded a default (C) value of two percent. He assigned grade 

modifiers for Functional History (GMFH 1) and Physical Examination (GMPE 1), and the net 

adjustment (0) resulted in no change from the default value of two percent (grade C).18 An OWCP 

medical adviser reviewed the evidence on December 14, 2016 and June 15, 2017 and concurred 

with Dr. Deerhake’s findings. There is no probative medical evidence showing more than two 

percent permanent impairment of the left lower extremity.19

OWCP received a February 10, 2017 left knee MRI scan, as well as additional reports from

Dr. Krueger. However, Dr. Krueger did not provide an evaluation and/or rating with respect to 

the extent of any left lower extremity permanent impairment under the A.M.A., Guides

(6th ed. 2009).20

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.

 

17 Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

18 Net Adjustment (0) ꞊ (GMFH 1-CDX 1) + (GMPE 1-CDX 1). See Section 16.3d, A.M.A., Guides 518-21 (6th

ed. 2009).

19 See D.I., Docket No. 16-1891 (issued December 7, 2017).

20 See R.M., Docket No. 17-1410 (issued November 9, 2017).
6

CONCLUSION

The Board finds that appellant has not established more than two percent permanent 

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

ORDER

IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 24, 2018

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