United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

E.M., Appellant

and

U.S. POSTAL SERVICE, KILMER 

PROCESSING & DISTRIBUTION CENTER, 

Edison, NJ, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 19-0664

Issued: November 19, 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

JANICE B. ASKIN, Judge

JURISDICTION

On February 4, 2019 appellant filed a timely appeal from a December 20, 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 greater than 37 percent permanent impairment of his 

right lower extremity, for which he previously received schedule award compensation.

FACTUAL HISTORY

On April 18, 2007 appellant filed a notice of recurrence (Form CA-2a) alleging that on 

March 2, 2007 he sustained a recurrence of a medical condition causally related to his July 22, 

 

1 5 U.S.C. § 8101 et seq.
2

1992 employment injury.2 He noted that he stopped work on March 6, 2007 due to right knee pain 

and loss of range of motion (ROM). On July 17, 2007 OWCP accepted appellant’s claim for 

recurrence of a medical condition, post-traumatic arthropathy right lower extremity.

On December 3, 2007 Dr. James M. Lee, an orthopedic surgeon and appellant’s attending 

physician, performed a second right knee arthroscopy.

3

 

In a March 22, 2008 letter, OWCP informed appellant that his April 18, 2007 claim should 

have been developed as a new traumatic injury claim, and that he was entitled to 45 days of 

continuation of pay.

On November 19, 2010 Dr. Lee performed an additional right knee arthroscopy.

On February 2, 2011 appellant filed a schedule award claim (Form CA-7). By decision 

dated December 28, 2012, OWCP granted him a schedule award for 30 percent permanent 

impairment of the right lower extremity due to his accepted right knee conditions. The period of 

the award was from September 30, 2011 through May 26, 2013.

On November 1, 2013 Dr. Lee recommended a total right knee replacement, which was 

performed on May 14, 2014 by Dr. Louis C. Almekinders, a Board-certified orthopedic surgeon.

In a report dated October 20, 2014, he found that appellant had reached maximum medical 

improvement (MMI). On October 27, 2014 appellant filed an additional schedule award claim 

(Form CA-7).4

In a report dated March 29, 2016, Dr. Almekinders found that as a result of the total knee 

replacement appellant had 31 percent permanent impairment of the right lower extremity. On 

June 6, 2017 OWCP referred Dr. Almekinders’ March 29, 2016 report to the district medical 

adviser (DMA), Dr. Michael M. Katz, a Board-certified orthopedic surgeon, for review and 

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

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

5

 In a June 6, 2017 report, Dr. Almekinder determined 

that appellant had 25 percent permanent impairment of his right lower extremity due to his total 

knee replacement and therefore was not entitled to an additional schedule award.

 

2 Appellant has a previously accepted claim under OWCP File No. xxxxxx054 for right knee contusion, left wrist 

and hand contusion, and right leg traumatic arthropathy sustained when he tripped over a coworker while in the 

performance of duty on July 22, 1992.

3 Appellant first underwent right knee arthroscopy on January 4, 1993.

4 On October 3, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that on March 3, 2015 he 

sustained a recurrence of disability causally related to his March 2, 2017 employment injury. He alleged that the 

employing establishment failed to provide him with modified duty in keeping with his employment-related work 

restrictions. On November 27, 2015 appellant accepted a modified-duty position at the employing establishment. By 

decision dated February 23, 2016, OWCP determined that appellant’s modified-duty position as a manager of 

distribution operations fairly and reasonably represented his wage-earning capacity. It reduced his wage-loss 

compensation benefits to zero based on his actual earnings in this position.

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

By decision dated September 21, 2017, OWCP denied appellant’s claim for an additional 

schedule award finding that he had no more than 30 percent permanent impairment of his right 

knee for which he had previously received a schedule award.

On August 15, 2018 appellant requested reconsideration of the September 21, 2017 

schedule award denial.

On September 26, 2018 OWCP referred appellant for a second opinion evaluation with

Dr. Lawrence N. Larabee, Jr., a Board-certified orthopedic surgeon, and requested that he evaluate 

appellant’s permanent impairment for schedule award purposes in accordance with the A.M.A.,

Guides. In his October 24, 2018 report, Dr. Larabee described appellant’s history of injury and 

listed his right knee surgeries. He described appellant’s findings on physical examination 

including an audible “pop” of the iliotibial (IT) band as it rubbed across the prosthesis. Appellant 

reported that this was painful and caused him to stop walking after 200 yards. He was unable to 

fully extend his right knee by 10 degrees and exhibited flexion of 110 degrees, internal rotation 5 

degrees, and external rotation 5 degrees based on three ROM tests. In his left, unaffected knee, 

appellant had full extension as well as hyperextension of 5 degrees and flexion of 130 to 135 

degrees. Dr. Larabee diagnosed status post right knee arthroplasty and multiple knee surgeries 

with loss of ROM of the right knee. He reported that appellant’s date of MMI was 

October 20, 2014. 

Dr. Larabee provided a November 20, 2018 addendum report utilizing the diagnosis-based 

impairment (DBI) method to determine impairment and found that appellant had 37 percent 

permanent impairment of the right lower extremity pursuant to the A.M.A., Guides. Under Table 

16-3, Knee Regional Grid, page 511 of the A.M.A., Guides, Dr. Larabee identified the diagnosis 

of fair result of the total knee replacement a class 3 impairment with a default rating of 37 percent. 

He assigned grade modifier of 3 for functional history (GMFH) under Table 16-6, page 516 due 

to appellant’s difficulty walking. Under Table 16-7, page 517, Dr. Larabee assigned a grade 

modifier 3 for physical examination (GMPE) based on appellant’s loss of range of motion. He 

assigned grade modifier 3 for clinical studies (GMCS) in accordance with Table 16-8, page 591 as 

the clinical studies confirmed the diagnosis of severe pathology. Using the net adjustment formula 

of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he calculated that appellant had a net 

adjustment of 0, which equaled a grade C or 37 percent impairment rating.

On November 27, 2018 OWCP referred Dr. Larabee’s report to the DMA. In a report dated 

November 27, 2018, the DMA agreed with Dr. Larabee’s impairment rating for total knee 

replacement with a fair result and a default value of 37 percent permanent impairment.6 He found 

that Dr. Larabee accurately determined appellant’s GMFH7and GMCS at 3.8 The DMA further 

noted that the GMPE was not applicable as it was used to rate the class of the total knee 

replacement.9 After applying the net adjustment formula, he determined that appellant had 37 

 

6 A.M.A., Guides 511, Table 16-3.

7

Id. at 516, Table 16-6.

8

Id. at 519, Table 16-8.

9

Id. at 521.
4

percent permanent impairment of his right lower extremity entitling him to a schedule award. As 

appellant had previously received schedule awards totaling 30 percent of the right lower extremity 

due to his right knee conditions, the DMA found that appellant was entitled to an additional award 

of 7 percent permanent impairment of the right lower extremity. He determined that the date of 

MMI was October 24, 2018 the date of Dr. Larabee’s examination upon which impairment was 

based.

By decision dated December 20, 2018, OWCP granted appellant a schedule award for a 

total of 37 percent impairment of his right lower extremity which constituted an additional 7

percent increase to his previous schedule awards of 30 percent permanent impairment of the right 

lower extremity.

LEGAL PRECEDENT

The schedule award provisions of FECA10 and its implementing federal regulations11 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members, functions, and organs of the body.

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 for all claimants under 

the law, good administrative practice requires the use of uniform standards applicable to all 

claimants.12 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.13 As of May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides (2009).14 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.15

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 509.16 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 

 

10 5 U.S.C. § 8107.

11 20 C.F.R. § 10.404.

12 J.H., Docket No. 18-1207 (issued June 20, 2019); K.P., Docket No. 18-0777 (issued November 13, 2018); 

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13 Id.

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

2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, 

Exhibit 1 (January 2010).

15 Id.; Isidoro Rivera, 12 ECAB 348 (1961).

16 A.M.A., Guides 509-11 (6th ed. 2009).
5

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).17 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.18

ANALYSIS

The Board finds that appellant has not met his burden of proof to establish greater than 37 

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

schedule award compensation.

In a November 20, 2018 report, Dr. Larabee, OWCP’s second opinion physician, found 

that appellant had 37 percent impairment of his right lower extremity due to a fair result of his 

total knee replacement. He utilized the DBI method for rating appellant’s permanent impairment. 

Under Table 16-3, Knee Regional Grid, page 511 of the A.M.A., Guides, Dr. Larabee identified 

the diagnosis of total knee replacement as a class 3 impairment with default rating of 37 percent. 

He applied GMFH, GMPE, and GMCS of 3 to the net adjustment formula, which resulted in a net 

adjustment of 0, which equaled 37 percent permanent impairment of the right lower extremity.

On November 27, 2018 Dr. Katz, a DMA, noted appellant’s accepted conditions and 

reviewed the medical record, including the clinical findings of Dr. Larabee. He agreed with

Dr. Larabee’s 37 percent right lower extremity impairment rating, but noted an error in the 

application of the net adjustment formula in that GMPE should not have been included as it was 

used to rate the class of the total knee replacement.19 This error did not impact the final grade of 

the impairment. 

The DMA determined that MMI was October 24, 2018 the date of Dr. Larabee’s 

examination upon which the impairment rating was based. On appeal appellant contested the date 

of MMI asserting that it should be October 20, 2014 and that compensation be recalculated to 

reflect the period of award from October 20, 2014. It is well settled that MMI arises at the point 

at which an injury has stabilized and will not improve further.20 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 a payment of less compensation benefits.21 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 medical evaluation which is accepted as definitive by OWCP.22 Payment of an 

increased award based on additional impairment may be considered at a later date.23 Dr. Larabee’s 

 

17 Id. at 515-22.

18 Id. at 23-28.

19 Id. at 521.

20 Supra note 13 at Chapter 3.700.3.1.a(1)(b).

21 R.M., Docket No. 18-1313 (issued April 11, 2019); Mark A. Halloway, 55 ECAB 321, 325 (2004).

22 Id.; supra note 13 at Chapter 2.808.7.b.

23 Supra note 19.
6

report formed the basis of the most recent definitive permanent impairment rating. The Board 

therefore finds that appellant reached MMI for the calculation of this award on October 24, 2018

and that he has not met his burden of proof to establish entitlement to an increased schedule 

award.

24

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 greater than 37 

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

schedule award compensation.

ORDER

IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: November 19, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

24 Supra note 20.