United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, VA

LOMA LINDA HEALTH CARE SYSTEM, 

Loma Linda, CA, Employer

__________________________________________

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Docket No. 19-0352

Issued: July 24, 2020

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 3, 2018 appellant, through counsel, filed a timely appeal from a November 6, 

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

ISSUE

The issue is whether appellant has met his burden of proof to establish more than seven

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

schedule award.

FACTUAL HISTORY

On April 24, 2013 appellant, then a 62-year-old police officer, filed a traumatic injury claim 

(Form CA-1) alleging that he sustained a right knee injury on April 10, 2013 when exercising 

while in the performance of duty. On December 4, 2013 OWCP accepted his claim for right knee 

and leg sprain. It later expanded the accepted conditions to include internal derangement of the 

meniscus of the right knee. On March 19, 2014 appellant underwent OWCP-approved arthroscopy 

with partial medial meniscectomy. 

On June 15, 2016 appellant filed a claim for a schedule award (Form CA-7).

In a development letter dated June 16, 2016, OWCP requested that appellant submit a 

permanent impairment evaluation from his attending physician in accordance with the standards 

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

Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the requested evidence.

In a May 10, 2016 medical report, Dr. Rick Pospisil, a Board-certified orthopedic surgeon, 

provided a history of appellant’s clinical presentation. He described the April 10, 2013 incident 

at work and appellant’s medical treatment, including the March 19, 2014 partial medial 

meniscectomy. Dr. Pospisil reported physical examination findings for the right knee, including

a 2-degree varus deformity, mild medial joint line swelling and tenderness, marked patellofemoral 

crepitus, and full extension and flexion to approximately 100 degrees. He noted slight weakness 

to resisted flexion, no instability with varus/valgus stress, full extension with mild patellofemoral 

crepitus, negative Lachman’s test, and negative McMurray’s test. Dr. Pospisil advised that x-rays

revealed considerable narrowing of the medial joint line, with only two millimeters of articular 

surface wear medially and a large bone spur along the medial border of the patella which touched

the trochlea. He diagnosed status post right knee partial medial meniscectomy with traumatic 

arthritis and noted that appellant had reached maximum medical improvement (MMI).

Dr. Pospisil then performed a diagnosis-based impairment (DBI) rating by utilizing Table 

16-3 (Knee Regional Grid) beginning on page 509 of the sixth edition of the A.M.A., Guides. He 

noted that appellant’s meniscal injury of the right knee warranted a class of diagnosis (CDX) at 

the class 1 level with a default value of two percent of the right lower extremity. Dr. Pospisil 

found that appellant had a grade modifier for functional history (GMFH) of 1, grade modifier for 

physical examination (GMPE) of 1, and grade modifier for clinical studies (GMCS) of 1 (based 

on changes seen on a magnetic resonance imaging (MRI) scan due to the partial medial 

meniscectomy). Application of the net adjustment formula did not result in movement from the 

 

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

two percent default value and therefore appellant had two percent permanent impairment of the 

right lower extremity due to the meniscal injury.

Dr. Pospisil determined that, under Table 16-3 page 511, appellant’s right knee joint 

arthritis warranted a CDX of class 2 with a default value of 20 percent. He found that, for this 

condition, appellant had a GMFH of 2 (due to his gait), GMPE of 2 (due to moderate medial 

patellofemoral tenderness and moderate restriction of flexion), and GMCS of 3 (due to x-ray 

findings). Application of the net adjustment formula resulted in movement one space to the right 

of the 20 percent default value and therefore appellant had 22 percent permanent impairment of 

the right lower extremity due to primary right knee joint arthritis. Dr. Pospisil then determined 

that, under Table 16-3, appellant’s right patellofemoral arthritis warranted a CDX of class 2 with 

a default value of 15 percent. With respect to this condition, he indicated that appellant had “a net 

of a 1+ radiograph change for assigned diagnostic grade of D.” Application of the net adjustment 

formula resulted in movement one space to the right of the 15 percent default value and therefore 

appellant had 16 percent permanent impairment of the right lower extremity due to right 

patellofemoral arthritis. Dr. Pospisil totaled the above-described percentages to conclude that 

appellant had 40 percent permanent impairment of his right lower extremity. He apportioned 10 

percent of the permanent impairment to the aging process and 90 percent to appellant’s injury.

On October 21, 2016 OWCP routed Dr. Pospisil’s report, a statement of accepted facts 

(SOAF), and the case file to Dr. Jovito Estaris, a Board-certified occupational medicine physician 

serving as an OWCP district medical adviser (DMA). It requested that the DMA provide an 

evaluation of appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.

In a November 7, 2016 report, the DMA indicated that he had reviewed the SOAF and the 

medical record, including Dr. Pospisil’s May 10, 2016 report. He noted that appellant had 

undergone a medial meniscectomy on March 19, 2014 and returned to work at full duty on 

April 26, 2014. The DMA noted that appellant’s date of MMI was May 10, 2016. He determined 

that application of the DBI rating method under Table 16-3 on page 511 meant that appellant’s 

primary joint arthritis (with a two-millimeter cartilage interval) fell under class 2 with a default 

value of 20 percent. The DMA assigned a GMFH of 1 based on antalgic gait without use of 

ambulatory aids. He assigned a GMPE of 1 based on tenderness over the medial knee with nearfull range of motion. The DMA noted that the GMCS was not applicable because clinical studies 

were used in proper classification in the DBI grid. He calculated a net adjustment of -2, which 

meant that appellant’s primary right knee joint arthritis fell under a CDX of class 2. The DMA

found a right lower extremity permanent impairment rating of 16 percent. He explained that his 

impairment rating differed from Dr. Pospisil’s because Dr. Pospisil calculated impairment ratings 

on three diagnoses for the same knee, which was not in accordance with the A.M.A., Guides. The 

DMA explained that the A.M.A., Guides noted on page 497 that in most cases, only one diagnosis 

in a region would be appropriate and that, if two significant diagnoses were present, the examiner 

should use the diagnoses with the highest impairment rating in that region that was causally related. 

He further noted that Dr. Pospisil had given different functional history modifiers for the same 

knee.

On December 28, 2016 Dr. Pospisil responded to the DMA’s November 7, 2016 report. 

He referenced page 529 of the A.M.A., Guides, noting that, if more than one diagnosis is to be 

used for the same body part, it should have some functional basis for using those diagnoses. 
4

Dr. Pospisil argued that it was well established that the conditions involved should be divided into 

thirds: those that involve the inside, medial, and lateral portions of the knee. He noted that he had 

used different functional history modifiers for each of these portions of the knee. Dr. Pospisil

continued to maintain that appellant had 22 percent permanent impairment due to primary right 

knee arthritis, as well as 16 percent permanent impairment for right patellofemoral arthritis, for a 

total of 34 percent permanent impairment of the right lower extremity. He indicated that he would 

exclude the two percent he assigned for meniscal tear.

On January 30, 2017 OWCP routed Dr. Pospisil’s response to the DMA for review. In a 

report dated February 9, 2017, the DMA noted that page 529 of the A.M.A., Guides indicated that 

if there were multiple diagnoses within a specific region, then the most impairing diagnosis would 

be rated, because it was probable that this would incorporate the functional losses of the less 

impairing diagnosis. He indicated that in rare cases of complex injury, the examiner may combine 

multiple impairments within a single region. The DMA explained that knee joint arthritis was not 

considered a complex injury, as it was a degenerative condition that gradually occurred over time 

and he indicated that, with respect to dividing the knee joint into thirds, there was no evidence that 

this was accepted by the A.M.A., Guides. He further explained that, while Dr. Pospisil had given 

different functional history modifiers for all three conditions, functional history was only to be 

used for the single highest diagnosis-based impairment in one limb. The DMA maintained that

Dr. Pospisil had improperly used clinical studies for the GMCS when they were used for proper 

classification in the DBI grid. He concluded that appellant had 16 percent permanent impairment 

of the right lower extremity.

On March 30, 2017 OWCP referred appellant and the case file (including a SOAF) to

Dr. Steven Ma, a Board-certified orthopedic surgeon, for a second opinion regarding whether 

appellant’s conditions had resolved.

4

In a report dated May 3, 2017, Dr. Ma indicated that he had reviewed the SOAF and the 

medical record. On physical examination of the right knee, he noted a normal heel-to-toe gait, 

ability to adopt a semi-squatting position, extensive psoriatic lesions, arthroscopic scars present, 

no effusion, no swelling, no crepitus, and no ecchymosis. Dr. Ma observed no tenderness on 

compression of the patellofemoral joint, a negative apprehension sign about both patellae, no point 

tenderness, and no medial or lateral joint line tenderness. Both knees went from full extension to 

140 degrees of flexion and there was no ligamentous laxity about either knee. Sensory examination 

was intact to light touch and pinprick in both extremities, with motor strength at 5/5 in the right 

lower extremity. Dr. Ma diagnosed right knee strain and right knee internal derangement of the 

meniscus, noting that appellant’s current diagnosis connected to the work injury was a medial 

meniscus tear only, with incidental co-existing nonwork-related knee arthritis. He indicated that 

the work-related conditions had essentially resolved. 

In a June 6, 2017 telephone conversation, OWCP informed counsel that there had been a 

miscommunication with regard to Dr. Ma’s second opinion report, as he had not been asked to 

provide an impairment rating.

 

4

In an April 4, 2017 telephone conversation, OWCP informed counsel that, because there was such a large 

difference between the evaluations of Dr. Pospisil and the DMA, the case had been referred for a second opinion.
5

On June 6, 2017 OWCP referred appellant and the case file, including a SOAF, to

Dr. Michael Einbund, a Board-certified orthopedic surgeon, for a second opinion regarding 

appellant’s permanent impairment under the A.M.A., Guides.

In a report dated July 6, 2017, Dr. Einbund provided a history of clinical presentation and 

described the accepted employment conditions, as well as appellant’s medical treatment. On 

examination of the right knee, Dr. Einbund observed full range of motion, no swelling or 

instability, diffuse tenderness over the medial and lateral joint, a negative McMurray’s test 

medially and laterally, and some crepitus with range of motion. He noted normal knee extension 

of 0 degrees and flexion of 135 degrees. Dr. Einbund indicated that x-ray findings revealed no 

evidence of fracture or dislocation with slight narrowing of the medial joint to about three 

millimeters, as well as mild degeneration of the patellofemoral joint. He diagnosed right knee 

strain, internal derangement, and osteoarthritis. Dr. Einbund utilized the DBI rating method of the 

A.M.A., Guides to calculate appellant’s right lower extremity impairment. He noted that 

appellant’s accepted diagnoses were right knee strain and right knee internal derangement, and 

that the diagnosis of primary arthritis had been appropriately used in the past when calculating 

appellant’s right lower extremity impairment. Dr. Einbund found that, under Table 16-3, page 

511, a three-millimeter joint space narrowing warranted a CDX of class 1 with a default value of 

seven percent permanent impairment of the right lower extremity. He determined that appellant 

had a GMFH of 1 (due to limping gait without use of an ambulatory device), and GMPE of 1 (due 

to tenderness and crepitus findings on examination). Dr. Einbund advised that the GMCS was not 

applicable as clinical studies had already been used as a factor in selecting the diagnosis. He 

concluded that appellant had a net adjustment of zero, maintaining the default value of seven 

percent permanent impairment of the right lower extremity.

On November 14, 2017 OWCP routed Dr. Einbund’s report, a SOAF, and the case file to

the DMA for review and a determination of appellant’s permanent impairment. In a November 20, 

2017 report, the DMA indicated that he had reviewed the SOAF and medical record. Reviewing

Dr. Einbund’s July 6, 2017 report, he determined that application of the DBI rating method under 

Table 16-3 on page 511 of the sixth edition of the A.M.A., Guides meant that appellant’s right 

knee joint arthritis (three-millimeter cartilage interval) fell under a CDX of class 1 with a default 

value of seven percent. The DMA assigned a GMFH of 1 (due to antalgic gait, and pain and 

stiffness of the right knee), and a GMPE of 1 (due to tenderness in the right knee with crepitus). 

He noted that the GMCS was not applicable because clinical studies were used in proper 

classification in the DBI grid. The DMA calculated a net adjustment of zero, concurring with

Dr. Einbund’s rating of seven percent permanent impairment of the right lower extremity. He

indicated that there was a marked discrepancy between the ratings of Dr. Pospisil and Dr. Einbund

as the physicians observed different right knee cartilage intervals and Dr. Pospisil impermissibly 

included multiple diagnoses for rating the same joint. The DMA indicated that appellant’s date of 

MMI was July 6, 2017.

By decision dated July 31, 2018, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the right lower extremity (knee). The award ran for 20.16 weeks 

from July 6 through November 24, 2017 and was based on the opinions of Drs. Einbund and the 

DMA. 
6

On August 15, 2018 appellant, through counsel, requested reconsideration of OWCP’s 

July 31, 2018 decision. Counsel argued that a conflict in medical opinion evidence between

Dr. Pospisil and Dr. Einbund existed, because there was a discrepancy within the examination 

itself, and not with the application of the A.M.A., Guides. 

By decision dated November 9, 2018, OWCP denied modification of the July 31, 2018 

decision.

LEGAL PRECEDENT

The schedule award provisions of FECA,5and its implementing federal regulations,

6

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. 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.7 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

With respect to the right knee, the relevant portion of the right leg for the present case, 

reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.

9

 After the 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).10

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 

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

providing rationale for the percentage of impairment specified.11

ANALYSIS

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

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

schedule award.

 

5 5 U.S.C. § 8107.

6 20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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

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

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

10 Id. at 515-22.

11 See supra note 8 at Chapter 2.808.6(f) (March 2017).
7

OWCP accepted right knee and leg sprain, and internal derangement of the meniscus of the 

right knee. By decision dated July 31, 2018, it granted appellant a schedule award for seven 

percent permanent impairment of the right lower extremity (knee). The award was based on the 

opinions of referral physician Dr. Einbund and the DMA. By decision dated November 9, 2018, 

OWCP denied modification of the July 31, 2018 decision.

The Board finds that Dr. Einbund properly determined that appellant had seven percent 

permanent impairment of his right lower extremity.12 On July 6, 2017 Dr. Einbund conducted an 

evaluation of the extent of permanent impairment of appellant’s right lower extremity using the 

DBI rating method described in Table 16-3 of the sixth edition of the A.M.A., Guides. He correctly 

determined that, utilizing Table 16-3, the primary arthritis of appellant’s right knee had a CDX of 

class 1, which yielded a default value of seven percent for permanent impairment of the right lower 

extremity.13 Dr. Einbund determined that appellant had a GMFH of 1 (due to limping gait without 

use of an ambulatory device), and GMPE of 1 (due to tenderness and crepitus findings on 

examination). He correctly advised that the GMCS was not applicable as clinical studies had 

already been used as a factor in selecting the diagnosis. Dr. Einbund properly found that 

application of the net adjustment formula did not require movement from the seven percent default 

value and concluded that appellant had seven percent permanent impairment of his right lower 

extremity.14 

The Board further finds that the DMA also properly determined that appellant had seven 

percent permanent impairment of his right lower extremity. In his November 20, 2017 report, the 

DMA indicated that he had reviewed Dr. Einbund’s July 6, 2017 report and concurred with his 

determination that appellant had seven percent permanent impairment of his right lower extremity 

due to right knee deficits under the DBI rating method. He expressed agreement with

Dr. Einbund’s choice of the greatest impairment right knee diagnosis and grade modifiers, as well 

as the application of the net adjustment formula, and explained his reasons for agreement with

Dr. Einbund’s rating. 

On appeal counsel argues that Dr. Pospisil’s report created a conflict in the medical opinion 

evidence regarding the extent of permanent impairment of appellant’s right lower extremity, 

requiring referral to an impartial medical specialist. The Board notes, however, that no such 

conflict exists because Dr. Pospisil’s May 10, 2016 report is of limited probative value due to 

improper application of the A.M.A., Guides, as explained by the DMA in his February 9 and 

November 20, 2017 reports.15 The DMA noted, inter alia, that Dr. Pospisil impermissibly 

 

12 The Board notes that it was appropriate for OWCP to refer appellant to Dr. Einbund for further evaluation of the 

permanent impairment of his right lower extremity. There were significant discrepancies between the right lower 

extremity evaluations of Dr. Pospisil and the DMA, which required further development of the medical evidence. See

supra note 8 at Chapter 2.810.8(b), (c) (September 2010) (regarding OWCP’s procedures describing the role of the 

DMA in aiding OWCP in the development of evidence); R.A., Docket No. 18-0868 (issued October 25, 2018).

13 A.M.A., Guides 509-11, Table 16-3.

14 See supra notes 9 and 10.

15 See A.R., Docket No. 17-1504 (issued May 25, 2018); Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an 

opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate for 

evaluating schedule losses is of little probative value in determining the extent of a claimant’s impairment).
8

provided impairment ratings for all three right knee diagnoses (rather than for the most impairing 

diagnosis), and improperly divided the knee joint into thirds in order to give different functional 

history modifiers for all three areas.

The Board finds that appellant has not submitted probative medical evidence to establish 

more than seven percent permanent impairment of his right lower extremity. As such, an 

additional schedule award is not warranted.

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.

CONCLUSION

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

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

schedule award.

ORDER

IT IS HEREBY ORDERED THAT the November 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 24, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board