United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Warren, MI, Employer

__________________________________________

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Docket No. 18-1467

Issued: March 5, 2019

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 July 23, 2018 appellant filed a timely appeal from a February 27, 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 more than two 

percent permanent impairment of his right 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 March 27, 2014 appellant, then a 58-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that he suffered from right knee pain as a result of walking, 

standing, and mounting and dismounting vehicles while at work. He noted that he first became 

aware of his claimed condition and realized its relation to his federal employment on 

February 10, 2014. Appellant stopped work on March 4, 2014 and returned to modified duty on 

March 5, 2014. 

OWCP accepted his claim for right knee strain. 

On January 28, 2015 appellant filed a claim for a schedule award (Form CA-7). After 

development of the medical evidence, OWCP granted him a schedule award for two percent 

permanent impairment of his right lower extremity. 

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

In a January 11, 2016 report, Dr. Peter E. Metropoulos, Board-certified in occupational 

medicine, opined that appellant had 22 percent permanent impairment of the right lower extremity3

according to the sixth edition of the American Medical Association, Guides to the Evaluation of 

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

4

 He noted that appellant’s claim had been accepted for 

right knee sprain and provided examination findings. Dr. Metropoulos diagnosed right knee 

progressive pain with loss of function and decreased range of motion with diagnostic evidence of 

tricompartmental osteoarthritis. He reported that appellant had reached maximum medical 

improvement (MMI) as of January 21, 2015. 

In a February 11, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon 

and OWCP district medical adviser (DMA), noted his disagreement with Dr. Metropoulos’

January 11, 2016 impairment rating report. He explained that Dr. Metropoulos applied Table 16-

3, Knee Regional Grid, for separate diagnoses, which was duplicative and inconsistent with the 

methodology outlined in the A.M.A., Guides. Dr. Katz recommended that OWCP refer appellant’s 

schedule award claim for a second opinion evaluation. 

 

2 Docket No. 17-1056 (issued November 3, 2017).

3 Dr. Metropoulos indicated that his evaluation of impairment was based on Table 16-3, Knee Regional Grid, and 

supplemental Table 16-5, Table 16-6, Table 16-7, Table 16-8, and Table 16-23. He determined that appellant had 

seven percent permanent impairment for his right ankle sprain condition, two percent permanent impairment for 

appellant’s medial meniscus tear, seven percent for appellant’s tear of the gastrocnemius muscle tendon, and seven

percent for his tricompartmental osteoarthritis. 

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

In a May 18, 2016 supplemental report, Dr. Metropoulos noted that the A.M.A., Guides 

allowed for a medical examiner to combine diagnoses if the most impairing diagnosis did not 

adequately reflect a claimant’s functional loss. He explained that based on appellant’s complaints 

of continuing and increased right knee pain and objective examination findings, a combination of 

diagnoses more accurately reflected appellant’s total functional loss to his right lower extremity. 

In a June 2, 2016 report, Dr. Katz reiterated that the A.M.A., Guides clearly provides that 

the examiner should use the diagnosis which offers the highest impairment rating. In a June 28, 

2016 report, he indicated that he was unable to provide a current impairment rating or MMI date 

based on the current evidence of record and again recommended a second opinion evaluation. 

OWCP found a conflict in medical opinion between Dr. Metropoulos, appellant’s treating 

physician, and Dr. Katz, DMA, regarding the degree of permanent impairment to appellant’s right 

lower extremity as a result of his accepted right knee condition. It referred appellant’s case, along 

with a statement of accepted facts (SOAF) and a copy of the medical record, to Dr. Paul J. 

Drouillard, an osteopath Board-certified in orthopedic surgery, for an impartial medical 

examination and opinion to resolve the conflict pursuant to 5 U.S.C. § 8123(a). 

In a September 27, 2016 report, Dr. Drouillard discussed appellant’s history of injury and 

reviewed the medical record of evidence, including the SOAF. He related that a December 2, 2015 

right knee magnetic resonance imaging (MRI) scan showed tricompartmental osteoarthritis 

degenerative tear in the posterior horn of the medial meniscus, and a small Baker’s cyst. Upon 

physical examination of appellant’s right knee, Dr. Drouillard observed some palpable crepitus 

under the patellofemoral joint of both knees, consistent with chondromalacia. Drawer, Lachman, 

pivot shift, and McMurray’s tests were negative. Dr. Drouillard diagnosed right knee degenerative 

joint disease. He reported that, according to the SOAF, appellant’s claim had been accepted for 

right knee strain and he had been granted a schedule award for two percent permanent impairment 

of the right lower extremity. Dr. Drouillard noted his agreement with that assessment. 

On October 13, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as 

a DMA, reviewed Dr. Drouillard’s September 27, 2016 report. He noted that a SOAF was not 

contained within the case file. Dr. Harris reported that according to Table 16-3, page 509, of the 

sixth edition of the A.M.A., Guides, appellant had two percent lower extremity permanent 

impairment “for residual problems status post straining injury right knee.” He noted a date of 

MMI of September 27, 2016. Dr. Harris reported that, as appellant was previously awarded two 

percent right lower extremity permanent impairment, appellant was not entitled to an increased 

schedule award. 

By decision dated November 4, 2016, OWCP denied appellant’s claim for an increased 

schedule award. 

On April 20, 2017 appellant appealed to the Board. By decision dated November 3, 2017, 

the Board determined that there had been no conflict, pursuant to 5 U.S.C. § 8123(a), between

Dr. Metropoulos and Dr. Katz with respect to the extent of appellant’s right lower extremity 

impairment and, therefore, Dr. Drouillard was a second opinion examiner. The Board also found 

that Dr. Drouillard’s September 27, 2016 impairment rating report was of diminished probative 

value as he had not provided an impairment rating in accordance with the sixth edition of the 
4

A.M.A., Guides. The case was remanded for Dr. Drouillard, acting as a second opinion physician,

to provide a supplemental report which properly conformed to the sixth edition of the A.M.A., 

Guides. The Board also noted that Dr. Harris, a DMA, had not been provided with a copy of the 

SOAF. 

On December 11, 2017 OWCP requested an addendum medical report from

Dr. Drouillard. It requested that he provide medical rationale for how he arrived at the two percent 

right lower extremity permanent impairment rating. OWCP advised Dr. Drouillard to clearly 

reference specific tables, measurements, calculations, and protocols in the sixth edition of the 

A.M.A., Guides. 

In a February 7, 2018 supplemental report, Dr. Drouillard related appellant’s complaints 

of pain at the front of the right knee, particularly the infrapatellar and suprapatellar areas. He 

reviewed appellant’s history and the SOAF, and noted that appellant’s claim had been accepted 

for right knee sprain. Dr. Drouillard discussed appellant’s medical records and indicated that a 

July 14, 2014 right knee MRI scan report demonstrated moderate degenerative changes in the 

patella. Upon physical examination of appellant’s right knee, he observed repetitive flexion and 

extension with no palpable crepitus. Range of motion was 0 to 120 degrees bilaterally. Drawer, 

Lachman, pivot shift, and McMurray’s testing were negative. Dr. Drouillard diagnosed resolved 

right knee sprain, mild-to-moderate degenerative joint disease in both knees, most pronounced at 

the patellofemoral joint, and possible degenerative changes of the right hip. 

Dr. Drouillard referenced Table 16-3, Knee Regional Grid, of the A.M.A., Guides and 

assigned a class 1 diagnosis based on the accepted diagnosis of right knee sprain with normal range 

of motion. He found a grade modifier of 1 for functional history (GMFH) due to the fact that 

appellant was still symptomatic and zero for physical examination (GMPE) due to normal range 

of motion and no evidence of any functional impairment. Dr. Drouillard related that a grade 

modifier for clinical studies (GMCS) was inapplicable. Utilizing the net adjustment formula, he 

indicated that a GMFH of 1 minus class diagnosis of 1 equaled a grade modifier of 0, and a GMPE

of 1 minus diagnosis of 1 equaled a grade modifier of 0. Dr. Drouillard calculated that, with zero 

net adjustment, appellant had a final right lower extremity permanent impairment rating of two 

percent. 

By decision dated February 27, 2018, OWCP denied appellant’s claim for an increased 

schedule award. It found that the medical evidence of record failed to establish that he was entitled 

to more than the two percent permanent impairment of his right lower extremity previously 

awarded. OWCP determined that the “special weight” of the medical opinion evidence rested with 

the February 7, 2018 report of Dr. Drouillard as an “impartial medical examiner.” 

LEGAL PRECEDENT

The schedule award provisions of FECA and its implementing regulations 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. FECA, however, does not 

specify the manner in which the percentage of loss of a member shall be determined. The method 

used in making such determination is a matter which rests in the sound discretion of OWCP. For 

consistent results and to ensure equal justice, good administrative practice necessitates the use of 
5

a single set of tables so that there may be uniform standards applicable to all claimants. The 

A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and 

the Board has concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment 

is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.6

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).7 In determining impairment for the lower extremities under the sixth edition of 

the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the 

lower extremity to be rated. 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 509.8 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 the GMFH, GMPE, and GMCS. 

The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Under 

Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices, 

including choices of diagnoses from regional grids and calculations of modifier scores.10

A claim for an increased schedule award may be based on new exposure.11 Absent any 

new exposure to employment factors, a claim for an increased schedule award may also be based 

on medical evidence indicating that the progression of an employment-related condition has 

resulted in a greater permanent impairment than previously calculated.12

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

should be routed through an OWCP medical adviser for an opinion concerning the nature and 

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser 

providing rationale for the percentage of impairment specified.13

 

5 20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002). 

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

2.806.6.6a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

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

Contemporary Model of Disablement (6th ed. 2009).

8 See A.M.A., Guides (6th ed. 2009) 509-11.

9

Id. at 494-531.

10 Id. at 23-28.

11 A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

12 James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

13 Id. See C.K., Docket No. 09-2371 (issued August 18, 2010).
6

ANALYSIS

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

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s November 4, 2016 decision because the 

Board considered that evidence in its November 3, 2017 decision and found it insufficient for 

purposes of an increased schedule award. Findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.14

The Board initially notes that OWCP improperly accorded Dr. Drouillard the special 

weight of an impartial medical examiner under 5 U.S.C. § 8123(a). In its November 3, 2017 

decision, the Board found that there was no conflict in medical opinion evidence regarding 

appellant’s permanent impairment and, therefore, Dr. Drouillard was a second opinion examiner. 

As noted, findings made in prior Board decisions are res judicata. Despite the Board’s previous 

determination as to Dr. Drouillard’s status as a second opinion physician, OWCP in its 

February 27, 2018 decision, still afforded Dr. Drouillard the special weight of medical opinion as 

an impartial medical examiner. Due to the Board’s previous findings of no conflict in the medical 

opinion evidence, Dr. Drouillard should only be considered as an OWCP referral physician.15 

Although his report must not be given special weight with respect to the matter of permanent 

impairment, it can still be considered for its own intrinsic value.16

In a February 7, 2018 report, Dr. Drouillard reviewed appellant’s history, including the 

SOAF, and provided examination findings. He diagnosed resolved right knee sprain, mild-tomoderate bilateral degenerative joint disease, and possible degenerative changes of the right hip. 

Dr. Drouillard referenced Table 16-3, Knee Regional Grid, of the A.M.A., Guides and determined 

that appellant had a right lower extremity permanent impairment rating of two percent based on 

his accepted diagnosis of right ankle sprain. Based on his February 7, 2018 report, OWCP 

determined that appellant was not entitled to an increased schedule award than the previously 

received award of two percent permanent impairment of his right lower extremity.

The Board finds, however, that Dr. Drouillard’s February 7, 2018 supplemental report 

lacks medical rationale. He reported his impression was that appellant’s accepted right knee sprain 

had resolved, but went on to provide an impairment rating based on the diagnosis of right knee 

sprain. Dr. Drouillard, however, failed to explain how appellant had a permanent impairment due 

to a condition that had resolved.17 Furthermore, the Board notes that he also diagnosed 

degenerative joint disease in appellant’s right knee 

It is well established that proceedings under FECA are not adversarial in nature, and while 

the employee has the burden of proof to establish entitlement to compensation, OWCP shares 

 

14 See B.R., Docket No. 17-0294 (issued May 11, 2018).

15 See L.Y., Docket No. 16-0012 (issued May 17, 2016).

16 See R.H., Docket No. 17-1477 (issued March 14, 2018).

17 See T.W., Docket No. 16-0176 (issued January 10, 2018).
7

responsibility in the development of the evidence.18 Once OWCP undertook development of the 

evidence by referring appellant to second opinion physician Dr. Drouillard, it had an obligation to 

do a complete job and obtain a proper evaluation and report that would resolve the issue in this 

case.19 In light of these deficiencies in Dr. Drouillard’s February 7, 2018 second opinion report, 

the Board will, therefore, set aside OWCP’s February 27, 2018 decision and remand the case for 

a new second opinion examiner to conduct a proper analysis under the A.M.A., Guides in order to 

determine the extent of appellant’s right lower extremity impairment. 

On remand OWCP shall update the SOAF and refer appellant to a new second opinion 

physician for an evaluation concerning the extent of appellant’s permanent impairment in 

accordance with the A.M.A., Guides. After this and other such further development as may be 

deemed necessary, it shall render a de novo decision.

CONCLUSION

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

 

18 Donald R. Gervasi, 57 ECAB 281 (2005); William J. Cantrell, 34 ECAB 1233 (1983).

19 Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).
8

ORDER

IT IS HEREBY ORDERED THAT the February 27, 2018 merit decision of the Office 

of Workers’ Compensation Programs is set aside, and the case is remanded for further action 

consistent with this decision.

Issued: March 5, 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