United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.M., Appellant

and

U.S. POSTAL SERVICE, PROCESSING &

DISTRIBUTION CENTER, Lansing, MI, 

Employer

__________________________________________

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Docket No. 18-1313

Issued: April 11, 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 June 20, 2018 appellant, through counsel, filed a timely appeal from a March 2, 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 over the merits of this case. 

 

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.
2

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish more than 

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

schedule award; and (2) whether he has met his burden of proof to establish a date of maximum 

medical improvement (MMI) prior to May 17, 2016. 

FACTUAL HISTORY

On September 8, 2008 appellant, then a 49-year-old mail handler, filed a traumatic injury 

claim (Form CA-1) alleging that on September 5, 2008 he twisted his left knee when pulling a 

wire container while in the performance of duty. He stopped work on September 5, 2008. OWCP 

accepted the claim for aggravation of tear of the left knee medial meniscus.3 Appellant underwent

left knee arthroscopy, partial medial meniscectomy on September 22, 2009.4

On April 26, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a development letter dated May 4, 2016, OWCP notified appellant that the evidence of 

record did not contain a medical report providing an opinion on the issue of permanent impairment. 

Appellant was instructed to obtain a narrative medical report for a physician containing an 

evaluation of his permanent impairment, if any, with citation to the sixth edition of the American 

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

5

 He

was afforded 30 days to provide the necessary report. 

By decision dated June 9, 2016, OWCP found that appellant had not established permanent 

impairment of a scheduled member or function of the body in accordance with the A.M.A., Guides.

On June 16, 2016 counsel requested a telephonic hearing before an OWCP hearing 

representative.

Submitted to the record was a September 6, 2016 report by Dr. Catherine Watkins 

Campbell, Board-certified in occupational and family medicine, who indicated that appellant was 

seen on May 17, 2016 for evaluation. She noted appellant’s history of injury, medical treatment,

and physical examination findings. Dr. Watkins Campbell referenced the sixth edition of the 

 

3 The present claim, OWCP File No. xxxxxx606 has been administratively combined OWCP File No. xxxxxx645, 

with File No. xxxxxx645 serving as the master file. In OWCP File No. xxxxxx645, OWCP accepted that on 

November 23, 2007 appellant sustained a left shoulder strain when he was pulling a mail container from a semi-truck. 

Appellant also had a prior claim under OWCP File No. xxxxxx666, which has been administratively combined with 

the instant claim. OWCP accepted that appellant sustained a left shoulder sprain, with impingement, on December 14, 

2007 when he pushed a cart loaded with mail in the performance of duty. By April 18, 2013 decision, OWCP 

determined that the claimant had established 12 percent permanent impairment of the right and left upper extremity 

and awarded schedule award compensation accordingly.

4 On April 2, 2010 OWCP also accepted that appellant sustained a right shoulder lateral tear, impingement 

syndrome, and acromioclavicular degenerative disease under this claim. 

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

A.M.A., Guides, Table 16-3

6

and found that appellant sustained two percent permanent 

impairment of the left lower extremity. She explained that appellant’s left knee meniscal injury 

was rated as a diagnosis-based impairment (DBI) under Table 16-3, class 1 for partial (medial or 

lateral meniscectomy) with a default rating of two percent permanent impairment. Dr. Watkins 

Campbell then explained that appellant was assigned a 0 grade modifier for functional history

(GMFH), a grade modifier of 1 for physical examination (GMPE), and a grade modifier of 1 for 

clinical studies (GMCS). She explained that the net adjustment of 0 resulted in the default 2 

percent permanent impairment rating for the left lower extremity.

By decision dated November 14, 2016, OWCP’s hearing representative set aside the 

June 9, 2016 decision and directed that Dr. Watkins Campbell’s report be referred to an OWCP 

district medical adviser (DMA) for further review. 

On November 18, 2016 Dr. Watkins Campbell’s report, a statement of accepted facts 

(SOAF), and appellant’s medical record were referred to Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon acting as an OWCP DMA, for an opinion as to whether appellant had sustained 

permanent impairment of the left lower extremity. 

In a November 21, 2016 report, Dr. Harris reviewed the SOAF and the medical evidence 

including Dr. Watkins Campbell’s report. He referred to Table 16-3, Knee Regional Grid of the 

A.M.A., Guides, and explained that appellant had undergone a partial medial meniscectomy of the 

left knee. Dr. Harris concurred with Dr. Watkins Campbell’s calculation that appellant had two 

percent permanent impairment of the left lower extremity, pursuant to Table 16-3.7 He opined that 

the date of MMI was May 17, 2016, the date that appellant was seen for evaluation by Dr. Watkins 

Campbell.

By decision dated January 11, 2017, OWCP denied appellant’s claim for an additional

schedule award. It explained that, while appellant had two percent permanent impairment of the 

left lower extremity, he had previously been granted a schedule award for “12 percent permanent 

impairment of the left lower extremity” in OWCP File No. xxxxxx606 on April 18, 2013, and he 

was therefore not entitled to an additional schedule award.

By letter dated January 23, 2017, counsel requested a telephonic hearing before an OWCP 

hearing representative.

By decision dated May 5, 2017, OWCP’s hearing representative found that at the time there 

was no evidence of record establishing that appellant had previously received a schedule award 

for 12 percent permanent impairment of the left lower extremity. She returned the case record to 

OWCP for issuance of a schedule award for two percent permanent impairment of the left lower 

extremity. 

 

6

Id. at 509. 

7

Id.
4

By decision dated June 28, 2017, OWCP granted appellant a schedule award for two

percent permanent impairment of the left lower extremity. The period of the award ran from

May 17 to June 26, 2016, for a total of 5.76 weeks of compensation.

By letter dated July 6, 2017, counsel requested a telephonic hearing before an OWCP 

hearing representative, which was held on December 6, 2017. He explained that appellant agreed 

with the percentage of permanent impairment. However, the date of MMI should be changed to 

February 8, 2010 to avoid a Social Security offset.

By decision dated March 2, 2018, OWCP’s hearing representative affirmed the June 28, 

2017 decision. She found that no medical evidence had been submitted which established that 

appellant’s permanent impairment of the left lower extremity had been improperly calculated or 

that appellant had a greater impairment. OWCP’s hearing representative also explained that 

OWCP had properly found that appellant reached MMI on May 17, 2016, the date he was seen for 

evaluation by Dr. Watkins Campbell. She found that there was no strong persuasive proof to 

establish that appellant reached MMI on an earlier date.

LEGAL PRECEDENT -- ISSUE 1

The schedule award provisions of FECA,8and its implementing federal regulations,9set 

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.10 For decisions issued 

after May 1, 2009, the sixth edition will be used.11

In addressing lower extremity impairments, the sixth edition requires identifying the 

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

on GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) 

+ (GMCS-CDX).13

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

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

 

8 5 U.S.C. § 8107. 

9 20 C.F.R. § 10.404. 

10 Id. at § 10.404(a). 

11 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 2.808.6 (March 2017).

12 A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010). 

13 A.M.A., Guides 521. 
5

impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the 

percentage of impairment specified.14

ANALYSIS -- ISSUE 1

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

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

schedule award. 

Dr. Watkins Campbell examined appellant on May 17, 2016, related appellant’s physical 

examination findings, and provided her opinion as to appellant’s left lower extremity permanent 

impairment. She explained that appellant had undergone a partial medial meniscectomy of the left 

knee and that, under Table 16-3 of the A.M.A., Guides, this diagnosis resulted in two percent 

permanent impairment of appellant’s left lower extremity. 

Subsequently, Dr. Harris reviewed Dr. Watkins Campbell’s report, again referenced Table 

16-3, and concluded that appellant’s partial medial meniscectomy resulted in two percent 

permanent impairment of the left lower extremity. Both Dr. Watkins Campbell and Dr. Harris

were in agreement that appellant had two percent permanent impairment of the left lower extremity 

due to his accepted left knee tear of the medial meniscus for which he underwent a partial 

meniscectomy. 

Counsel has stipulated that appellant’s permanent impairment of the left lower extremity 

was properly calculated. As the record contains no other probative, rationalized medical opinion 

which indicates that appellant has greater permanent impairment of his left lower extremity based 

upon the A.M.A., Guides, appellant has not met his burden of proof to establish greater than two 

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

award.15

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.

LEGAL PRECEDENT -- ISSUE 2

It is well established that the period covered by a schedule award commences on the date 

that the employee reaches MMI from the residuals of the employment injury. The Board has 

defined MMI as meaning that the physical condition of the injured member of the body has 

stabilized and will not improve further. The Board has also noted a reluctance to find a date of 

MMI which is retroactive to the award, as retroactive awards often result in payment of less 

compensation benefits. The Board, therefore, requires persuasive proof of MMI in the selection 

 

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

Chapter 2.808.6(f) (March 2017).

15 See A.T., Docket No. 17-1940 (issued December 20, 2018). 
6

of a retroactive date of MMI.

16

 The determination of whether MMI has been reached is based on 

the probative medical evidence of record and is usually considered to be the date of the evaluation 

by the attending physician, which is accepted as definitive by OWCP.17

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish a date of MMI

prior to May 17, 2016. 

The Board notes that MMI means that the physical condition of the injured member of the 

body has stabilized and will not improve further,18 and date of MMI is usually considered to be 

the date of the evaluation accepted as definitive by OWCP.19 The Board requires persuasive proof 

of MMI if a retroactive date is selected.

20

 Dr. Watkins Campbell examined appellant on May 17, 

2016 and provided an impairment rating. Dr. Harris agreed with Dr. Watkins Campbell’s 

permanent impairment rating. He selected May 17, 2016 as the date of MMI as that was the date 

appellant had been examined by the treating physician and formed the basis of the definitive 

permanent impairment rating. There is no persuasive evidence that choosing a retroactive date of 

MMI would be appropriate in the present case. The Board therefore finds that appellant reached 

MMI on May 17, 2016. 

CONCLUSION

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

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

schedule award. The Board also finds that appellant has not met his burden of proof to establish a 

date of MMI prior to May 17, 2016. 

 

16 J.H., Docket No. 14-1584 (issued October 5, 2016). 

17 Mark A. Halloway, 55 ECAB 321, 325 (2004).

18 Adela Hernandez-Piris, 35 ECAB 839 (1984). 

19 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.a (January 2010).

20 C.S., Docket No. 12-1574 (issued April 12, 2013); P.C., 58 ECAB 539 (2007); James E. Earle, 51 ECAB 

567 (2000). 
7

ORDER

IT IS HEREBY ORDERED THAT the March 2, 2018 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: April 11, 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