United States Department of Labor

Employees’ Compensation Appeals Board

_______________________________________________

K.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, PALO 

ALTO VETERANS ADMINISTRATION HEALTH 

CARE CENTER, Palo Alto, CA, Employer

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Docket No. 19-0785

Issued: October 1, 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

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 27, 2019 appellant, through counsel, filed a timely appeal from a January 28, 

2019 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

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 February 26, 2013 appellant, then a 50-year-old physical therapist, filed an 

occupational disease claim (Form CA-2) alleging that her left knee osteophytosis and osteoarthritis 

had been aggravated by factors of her federal employment including standing at work. She noted 

that she first became aware of the condition on June 12, 2010 and realized its relation to her federal

employment on July 10, 2011. OWCP accepted the claim for temporary aggravation left lower 

leg osteoarthritis.

Appellant underwent a left knee total arthroplasty, which was performed on August 27, 

2013 by Dr. Nicholas J. Giori, a Board-certified orthopedic surgeon. This procedure was not 

authorized by OWCP as causally related to the accepted employment injury. 

In a January 9, 2014 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and 

OWCP second opinion physician, reviewed appellant’s history of injury, medical records and a 

statement of accepted facts (SOAF). He noted physical examination findings and disagreed with 

OWCP’s acceptance of temporary aggravation of left leg osteoarthritis, noted on the SOAF, as he 

believed this was an incorrect diagnosis. Dr. Hanley opined that there had been no aggravation of

appellant’s underlying osteoarthritis, but rather her condition was a natural progression of a 

preexisting condition. He also concluded that if there had been a temporary aggravation of her 

osteoarthritis it had resolved by July 2011. 

On February 6, 2014 OWCP proposed to terminate appellant’s wage-loss compensation 

and medical benefits as it found the January 9, 2014 report of Dr. Hanley constituted the weight 

of the medical opinion evidence and established that her accepted condition had resolved. 

By decision dated April 8, 2014, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective that day. Determinative weight was accorded to the January 9, 2014 

report of Dr. Hanley, who opined that appellant’s accepted temporary aggravation of left lower leg 

osteoarthritis had resolved with no residuals or disability. OWCP also found that the evidence of 

record did not support a finding that appellant’s total knee arthroplasty performed on August 27, 

2013 was causally related to the accepted condition of temporary aggravation of left knee 

osteoarthritis, but rather was due to a preexisting condition. 

In a letter dated March 16, 2015, Dr. John C. Zauner, a Board-certified orthopedic surgeon, 

reported that appellant had reached maximum medical improvement (MMI). 

Appellant filed a claim for a schedule award (Form CA-7) on June 23, 2015. 

In a letter dated July 7, 2015, OWCP informed appellant that no action would be taken on 

her claim for a schedule award as there was no medical evidence that she sustained a permanent 

impairment causally related to the accepted medical condition. It noted that an April 8, 2014 
3

decision terminated her compensation benefits as it found the weight of the medical opinion 

evidence established that she had no residuals of the accepted left knee condition. 

In a development letter dated October 11, 2017, OWCP advised appellant that the medical 

evidence of record was insufficient to establish her schedule award claim because no medical 

evidence had been received to support a finding of permanent impairment due to the accepted 

condition. It advised her that she should submit a medical report from her treating physician which 

evaluated her permanent impairment in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3

By decision dated November 17 2017, OWCP denied appellant’s claim for a schedule 

award finding that she had not submitted sufficient evidence to establish permanent impairment of 

a scheduled member or function of the body causally related to her accepted employment injury. 

On November 28, 2017 counsel requested a telephonic hearing before an OWCP hearing 

representative. The hearing was held on May 22, 2018.

By decision dated July 23, 2018, an OWCP hearing representative affirmed the 

November 17, 2017 decision denying appellant’s claim for a schedule award finding that she had 

not established permanent impairment due to her accepted temporary aggravation of her left lower 

leg osteoarthritis, warranting a schedule award. 

In a November 8, 2018 report, Dr. Fulton S. Chen, a Board certified physiatrist and pain 

medicine specialist, reviewed appellant’s medical history, including diagnostic testing, and 

provided findings on physical examination. He opined that appellant had reached MMI on 

March 16, 2015. Utilizing the A.M.A., Guides, he opined that appellant had 21 percent permanent 

impairment of the left lower extremity under the diagnosis-based impairment (DBI) methodology 

for rating a total left knee arthroplasty. Dr. Chen provided his permanent impairment calculations. 

On November 13, 2018 counsel requested reconsideration of the July 23, 2018 hearing 

representative’s decision affirming the denial of her schedule award claim.

On November 15, 2018 OWCP forwarded Dr. Chen’s report, along with a SOAF, for 

review by Dr. Jovito Estaris, Board-certified in occupational medicine serving as an OWCP district 

medical adviser (DMA). It noted the accepted condition was localized primary lower left leg 

osteoarthritis, while the SOAF provided to the DMA noted that appellant’s claim had been 

accepted for temporary aggravation of left leg osteoarthritis, which had resolved by April 8, 2014. 

In a report dated November 26, 2018, the DMA noted that he had reviewed the SOAF and 

medical records provided by OWCP. He reported that appellant had a diagnosis of left leg 

localized primary osteoarthritis, thereafter, he rated her permanent impairment based upon her total 

left knee replacement, pursuant to Table 16-3, page 511. The DMA agreed with Dr. Chen’s lower 

extremity permanent impairment rating of 21 percent, using the DBI methodology. He also rated 

 

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

appellant’s permanent impairment using loss of range of motion (ROM) methodology and found 

that appellant had zero percent permanent impairment of the left lower extremity. 

In a letter dated December 20, 2018, OWCP requested that appellant provide additional 

evidence explaining how the temporary aggravation of her preexisting left lower extremity 

osteoarthritis caused permanent impairment. It also noted that a termination decision had been 

issued on April 8, 2014 finding that the accepted condition had resolved without residuals or 

disability. 

In a letter dated December 27, 2018, counsel contended that appellant’s claim had been 

accepted for left lower leg primary osteoarthritis, not a temporary aggravation. 

By decision dated January 28, 2019, OWCP denied modification finding that the evidence 

of record was insufficient to establish permanent impairment of her left lower leg, warranting a 

schedule award.

LEGAL PRECEDENT

The schedule award provisions of FECA4 and its implementing federal regulations,5 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. For consistent results and to ensure equal justice, the Board has authorized the use of 

a single set of tables so that there may be uniform standards applicable to all claimants. 6 For 

schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the 

A.M.A., Guides, published in 2009.7 The Board has approved the use by OWCP of the A.M.A., 

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.8

The sixth edition of the A.M.A., Guides provides an DBI method of evaluation utilizing 

the World Health Organization’s International Classification of Functioning, Disability, and 

Health (ICF).9 In addressing lower extremity impairments, the sixth edition requires identification 

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

 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a). 

7 Federal (FECA) Procedure Manual, Part 2 --Claims, Schedule Awards andPermanent Disability Claims, Chapter 

2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter

3.700.2 and Exhibit 1 (January 2010).

8 C.T., Docket No. 18-0544 (issued May 22, 2019); D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro 

Rivera, 12 ECAB 348 (1961).

9 A.M.A., Guides (6th ed. 2009), page 3, Section 1.3, The International Classification of Functioning, Disability, 

and Health (ICF): A Contemporary Model of Disablement.
5

functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).

10

 The 

net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.12 OWCP’s procedures 

provide that, to support a schedule award, the file must contain competent medical evidence which 

shows that the impairment has reached a permanent and fixed state and indicates the date on which 

this occurred (date of MMI), describes the impairment in sufficient detail so that it can be 

visualized on review, and computes the percentage of impairment in accordance with the A.M.A., 

Guides.

13

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

member should be included.14 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.15

ANALYSIS

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

As noted in OWCP’s acceptance letter and the SOAF provided to Dr. Estaris OWCP 

accepted appellant’s claim for temporary aggravation of left lower leg osteoarthritis. In the referral 

letter to DMA Dr. Estaris, however, OWCP incorrectly noted the accepted condition as localized 

primary lower left leg osteoarthritis. Dr. Estaris reviewed and concurred with Dr. Chen’s DBI 

impairment rating for total knee replacement under Table 16-3 of the A.M.A., Guides. However, 

OWCP had previously determined that appellant’s total knee replacement was not required due to 

the accepted condition, but rather was required for appellant’s preexisting left knee condition. 

Therefore the DMA did not provide an opinion in compliance with the accepted condition. 

The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is 

not a disinterested arbiter.16 While the claimant has the burden of proof to establish entitlement to 

compensation, OWCP shares responsibility in the development of the evidence. It has the 

 

10 Id. at 493-553

11 Id. at 521.

12 C.T., supra note 8; D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 

229 (2001).

13 Supra note 7at Chapter 2.808.5 (March 2017).

14 C.T., supra note 8; J.H., Docket No. 17-1916 (issued January 19, 2019); Carol A. Smart, 57 ECAB 340 

(2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

15 Supra note 7at Chapter 3.700.3(a)(3) (January 2010).

16 L.G., Docket No. 18-0519 (issued March 8, 2019); T.C., Docket No. 17-1905 (issued May 25, 2018); Melvin 

James, 55 ECAB 406 (2004).
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obligation to see that justice is done.17 Accordingly, once it undertook to develop the medical 

evidence, it had the responsibility to do so in a manner that will resolve the relevant issues in the 

case. OWCP should have requested that the DMA provide an opinion as to whether appellant has

permanent impairment due to her accepted temporary aggravation of left knee osteoarthritis 

condition, and then address whether appellant was entitled to a schedule award for her total left 

knee arthroscopy. 

On remand, OWCP shall further develop the medical evidence of record and obtain an 

opinion from the DMA, or second opinion physician if necessary, regarding the nature and extent, 

if any, of appellant’s impairment due to her accepted condition. Following this and further 

development deemed necessary, OWCP shall issue a de novo merit decision regarding appellant’s 

schedule award claim.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the January 28, 2019 decision of the Office of 

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

consistent with this decision of the Board.

Issued: October 1, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

17 L.G., id.; RichardE. Simpson, 55 ECAB 490 (2004).