United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

T.F., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Las Vegas, NV, Employer

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Docket No. 19-0157

Issued: April 21, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 29, 2018 appellant filed a timely appeal from an August 30, 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 her burden of proof to establish permanent 

impairment of her right lower extremity, warranting a schedule award.

FACTUAL HISTORY

On October 4, 2009 appellant, then a 38-year-old transportation security officer (screener), 

filed a traumatic injury claim (Form CA-1) alleging that on September 28, 2009 she injured her

 

1

5 U.S.C. § 8101 et seq.
2

right knee moving luggage while in the performance of duty. OWCP accepted the claim for sprain 

of the right knee and leg. It subsequently expanded acceptance of the claim to include a temporary 

aggravation of preexisting right knee patellar chondromalacia. On September 22, 2010 appellant 

underwent an authorized right knee arthroscopy and removal of a loose body and chondroplasty 

of the trochlea and medial femoral condyle. 

On January 24, 2011 appellant filed a claim for a schedule award (Form CA-7).2

By decision dated July 27, 2011, OWCP denied appellant’s claim for a schedule award as 

the medical evidence then of record failed to establish that her condition was at maximum medical 

improvement (MMI) . By decision dated December 20, 2011, an OWCP hearing representative 

affirmed the July 27, 2011 decision.

On May 15, 2014 appellant again filed a claim for a schedule award (Form CA-7).

On June 5, 2014 OWCP requested that Dr. Robert W. Patti, an attending Board-certified 

orthopedic surgeon, address whether appellant had reached MMI and provide an impairment rating 

for her accepted conditions utilizing the sixth edition of the American Medical Association, Guides 

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

3

. 

In a July 1, 2014 response, Dr. Patti advised that he was unable to perform an impairment 

rating for permanent partial disability as he was not a rating physician.

4

By decision dated February 19, 2015, OWCP denied appellant’s claim for a schedule 

award, finding that she had not submitted any medical evidence supporting that she had sustained 

a permanent measurable impairment of a scheduled member or function. 

On August 25, 2017 OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified 

orthopedic surgeon, for a second opinion examination regarding her current condition and the 

extent of her permanent impairment, if any, due to her accepted right knee conditions.

In a report dated September 19, 2017, Dr. Swartz discussed appellant’s history of injury 

and reviewed the medical evidence of record. He noted that he had previously evaluated her on 

February 22, 2010 and had recommended surgery, which had been performed on 

September 22, 2010. On examination, Dr. Swartz found crepitus of the knees, more on the right, 

no instability, lateral tenderness in the left knee with only slight tenderness of the right knee, and 

full strength of the knees. He measured range of motion (ROM) of the right knee from 0 to 130 

degrees and in the left knee from 0 to 120 degrees. Dr. Swartz diagnosed status post right knee 

contusion, noting that surgery had demonstrated a loose body, chondromalacia, degenerative 

 

2 Appellant again submitted schedule award claims (Form CA-7) on April 3 and May 11, 2011. On February 21, 

2011 she returned to modified employment. 

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

4

In a report dated August 22, 2013, Dr. Patti advised that appellant’s only right knee complaint was minor crepitus 

and aching. On examination, he found a normal gait with good alignment and superb bilateral strength. Dr. Patti 

further found no effusion, good stability, full flexion and extension, and no joint line tenderness. He diagnosed a 

resolved right knee condition and opined that appellant could perform her usual employment. 
3

arthritis, synovitis, and bone-to-bone arthritis of the patella. He opined that appellant had 

continued residuals of her employment injury due to a permanent aggravation of preexisting 

patellar chondromalacia and arthritis in the femoral condyle and trochlea. Dr. Swartz indicated 

that he would need to reevaluate appellant prior to determining an impairment rating to perform 

three ROM joint measurements and obtain standing x-rays of the knees.

In a supplemental report dated October 24, 2017, Dr. Swartz measured ROM for the knees 

three times, obtaining a maximum right knee measurement of 0 to 140 degrees and left knee 

measurement of 0 to 120 degrees. Referring to x-rays of the knees, he noted a 3 millimeter (mm) 

cartilage interval for the patellofemoral compartment, a 4.4 mm cartilage interval for the medial 

compartment, and a 5.5 mm interval for the lateral compartment. Dr. Swartz opined that appellant 

had no ratable impairment for the patellofemoral compartment. He further observed that she stood 

and squatted well with both knees, walked without a limp, had no right lower extremity atrophy, 

and only slight tenderness of the right knee with crepitus. Dr. Swartz opined that appellant had no 

ratable impairment using either the ROM method or based on loss of cartilage interval.

In a report dated December 4, 2017, Dr. Arthur Harris, a Board-certified orthopedic 

surgeon serving as a district medical adviser (DMA), opined that appellant did not have a ratable 

impairment of the right knee using the diagnosis-based impairment (DBI) method of the A.M.A., 

Guides. He noted that Dr. Swartz had not found significant joint space narrowing based on x-rays 

of the right knee. The DMA further indicated that the A.M.A., Guides did not allow for impairment 

ratings to be calculated using the ROM methodology as there was no asterisk next to the diagnosis 

in the applicable regional grid. 

By decision dated December 22, 2017, OWCP denied appellant’s claim for a schedule 

award finding that the medical evidence of record did not demonstrate a measureable impairment

of the right knee.

On January 3, 2018 appellant requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

Thereafter, appellant submitted a statement dated December 31, 2017, asserting that the 

ROM measurements obtained of her right knee were flawed and that she continued to have 

residuals of her injury.

A telephonic hearing was held on June 15, 2018. OWCP’s hearing representative advised 

appellant that she could submit medical evidence from her treating physician addressing

Dr. Swartz’s impairment rating. She held the record open for 30 days for the submission of 

additional evidence. No additional evidence was received. 

By decision dated August 30, 2018, OWCP’s hearing representative affirmed the 

December 22, 2017 decision. 
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LEGAL PRECEDENT

The schedule award provisions of FECA5 and its implementing regulations6 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. OWCP has adopted the 

A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth 

edition of the A.M.A., Guides is used to calculate schedule awards.7 

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).8 Under the sixth edition, the evaluator identifies the impairment class for the 

diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional history 

(GMFH), physical examination (GMPE), and clinical studies (GMCS).9 The net adjustment 

formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10 OWCP procedures provide 

that, after obtaining all necessary medical evidence, the file should be routed to the medical adviser 

for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., 

Guides with the medical adviser providing rationale for the percentage of impairment specified.11

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her right lower extremity, warranting a schedule award. 

Appellant’s treating physician, Dr. Patti, advised that he did not provide impairment 

ratings. Consequently, OWCP referred her to Dr. Swartz to determine the extent of permanent 

impairment of the right lower extremity, if any, causally related to her accepted employment 

injury. 

On September 19, 2017 Dr. Swartz found that appellant had full strength of the knees with 

no instability, a good gait, and the ability to squat well bilaterally. He found some crepitus in both 

knees, more on the right, and slight lateral right knee tenderness. Dr. Swartz diagnosed a 

 

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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

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

8

Supra note 3at page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement.

9

Id. at 494-531

10 Id. at 411.

11 See supra note 7at Chapter 2.808.6(f) (March 2017). 
5

permanent aggravation of preexisting patellar chondromalacia and arthritis in the femoral condyle 

and trochlea due to appellant’s employment injury.12

In an October 24, 2017 addendum, Dr. Swartz measured ROM of the knees three times, 

with a maximum measurements of 0 to 140 degrees on the right and 0 to 120 degrees on the left. 

He opined that appellant had no ratable impairment using either the ROM method or the DBI 

method based on cartilage interval. 

In accordance with its procedures, OWCP routed the case record to Dr. Harris, a DMA, 

who reviewed the evidence of record. The DMA diagnosed status post right knee arthroscopic 

removal of a loss body and chondroplasty. He noted that an x-ray obtained on October 23, 2017 

had revealed patellofemoral joint degenerative changes and calcific tendinopathy, and that

Dr. Swartz had reviewed the x-rays and found no “significant joint space narrowing.” The DMA

opined that appellant had no impairment using the DBI method.13 He further correctly noted that 

the A.M.A., Guides did not allow the ROM method to be used as an alternative impairment method 

as there was no asterisk next to the diagnosis in the DBI knee regional grid.14 

The Board finds that the DMA properly applied the A.M.A., Guides to rate appellant’s 

right knee permanent impairment based on the findings in Dr. Swartz’s report.15 There is no 

probative medical evidence of record demonstrating a ratable permanent impairment.16

On appeal appellant asserts that her treating physicians did not perform impairment ratings. 

As noted, however, she has the burden to submit current medical evidence in conformance with 

the A.M.A., Guidesto support permanent impairment.17 As such evidence has not been submitted, 

appellant has not met her burden of proof.18

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.

 

12 The Board notes that OWCP accepted appellant’s claim for a sprain of the right knee and leg and a temporary 

aggravation of preexisting right knee patellofemoral chondromalacia. Upon return to the case record, it should 

consider whether the acceptance of her claim should be expanded to include the conditions found by Dr.Swartz, its 

referral physician, as employment related.

13 Supra note 3at 511, Table 16-3.

14 Id.; see also A.R.,Docket No. 19-0250 (issued May 6, 2019).

15 See K.J., Docket No. 19-0901 (issued December 6, 2019).

16 See T.H., Docket No. 19-1066 (issued January 29, 2020); F.E., Docket No. 17-0584 (issued December 18, 2017).

17 J.D., Docket No. 19-1207 (issued February 3, 2020).

18 See J.S., Docket No. 17-0714 (issued August10, 2018).
6

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish permanent 

impairment of her right lower extremity, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: April 21, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board