United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

F.V., Appellant

and

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer

__________________________________________

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Docket No. 18-0230

Issued: May 8, 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

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On November 13, 2017 appellant filed a timely appeal from June 6 and October 23, 2017 

merit decisions 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.2

ISSUES

The issues are: (1) whether OWCP properly denied appellant’s request for authorization 

of a total left knee replacement; and (2) whether appellant has met his burden of proof to establish 

greater than seven percent permanent impairment of the left lower extremity, for which he 

previously received a schedule award.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP following the October 23, 2017 decision. 

However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the 

case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered 

by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On March 31, 2015 appellant, then a 50-year-old tractor operator, filed a traumatic injury 

claim (Form CA-1) alleging that on March 6, 2015 he sustained a left knee injury in the 

performance of duty while preparing an aircraft for a tow. He did not initially stop work. 

On May 27, 2015 OWCP accepted the claim for sprain of other specified sites, left knee 

and leg. On September 16, 2015 it authorized left knee arthroscopy.3 Appellant underwent 

arthroscopy of the left knee with partial medial meniscectomy and resection of the plica, which 

was performed by Dr. Richard Langerman, a Board-certified orthopedic surgeon, on 

October 12, 2015. On January 6, 2016 OWCP accepted other spontaneous disruption of medial 

collateral ligament of the left knee and sprain of other specified sites of the left knee and leg. 

Appellant’s loss of wage-earning capacity was determined and he was placed on the supplemental 

rolls as of February 1, 2016. 

In a January 14, 2016 report, Dr. Langerman advised that appellant had undergone a left 

knee arthroscopy and meniscectomy on October 12, 2015. He explained that appellant was then 

13 weeks status post procedure. Dr. Langerman diagnosed degenerative joint disease of the left 

knee. He noted that he discussed appellant’s treatment options and that appellant wanted to 

proceed with a left total knee arthroplasty. Dr. Langerman explained that at the time of his 

arthroscopy in October, appellant was found to have advanced degenerative changes. He indicated 

that appellant received cortisone injections and anti-inflammatories without relief.

In a January 14, 2016 form entitled “Total Knee Arthroscopy Documentation of Medical 

Necessity” Dr. Langerman noted that he had treated appellant and all reasonable conservative 

treatment had failed, which caused pain and influenced function and now required total left knee 

arthroscopy. He indicated by checkmark that appellant had advanced joint disease demonstrated 

by x-ray or magnetic resonance imaging (MRI) scan demonstrating perlarticular osteophytes, joint 

subluxation, and joint space narrowing. Appellant’s findings included pain at the knee that 

increased with activity, weight bearing, passive range of motion, and the pain interfered with 

activities of daily life; limited range of motion, crepitus, joint effusion, and swelling were also 

noted. He also noted that conservative treatment including anti-inflammatory medication, physical 

therapy, home exercise, and cortisone shots had failed. 

On May 12, 2016 OWCP forwarded appellant’s medical record and a statement of accepted

facts (SOAF) to its district medical adviser (DMA) and requested that he address whether a total 

left knee arthroplasty was medically necessary and causally related to appellant’s accepted 

conditions. 

In a May 20, 2016 report, Dr. Nelson Saldua, a Board-certified orthopedic surgeon acting 

as the DMA, noted appellant’s history of injury and medical treatment with his chief complaint of 

left knee pain that affected his activities of daily living. He examined appellant’s left knee and 

provided physical examination findings. Dr. Saldua found that a left knee MRI scan from 

March 12, 2015 revealed grade 2 chondromalacia of the patella. He noted that appellant continued 

to be symptomatic, despite nonoperative treatment with unloader brace, steroid injection, 

 

3 The record reflects that appellant underwent a prior left knee arthroscopy performed in 2012 and 2014 and other 

services were performed in connection with a left knee diagnosis unrelated to the work injury.
3

nonsteroidal anti-inflammatory drugs, and physical therapy, that appellant underwent a knee 

arthroscopy with medial meniscal debridement on October 12, 2015. Dr. Saldua further noted that 

the attending surgeon recommended a total left knee arthroplasty, but that in his opinion the 

proposed total knee arthroplasty was not causally related to the accepted medical conditions of 

other spontaneous disruption of medial collateral ligament of the left knee and sprain of other 

specified sites of the left knee. He explained that a total knee arthroplasty was an acceptable 

treatment option for end-stage knee osteoarthritis and degenerative joint disease, but it was not a 

known treatment for the accepted conditions and was therefore not medically necessary. 

Dr. Saldua found that the criteria for total knee arthroplasty had not been met as there was no 

documentation of knee ROM less than 90 degrees, no radiology reports documenting significant 

loss of chondral clear space in at least one of the three compartments, and no documentation of 

night pain and of current functional limitations demonstrating necessity of intervention. He opined 

that the proposed total knee arthroplasty was not medically necessary.

On June 28, 2016 OWCP determined that a conflict of opinion existed between

Dr. Langerman, the treating physician, and Dr. Saldua, the DMA, with regard to whether a total 

left knee arthroplasty was medically necessary. It referred appellant, along with the medical record

and a SOAF to Dr. Michael Kiehn, a Board-certified orthopedic surgeon for an impartial medical 

evaluation, to resolve the conflict.

In an August 10, 2016 report, Dr. Kiehn noted appellant’s history of injury and treatment

and that he presented for evaluation of his left knee. He noted that in March 2015 appellant went 

home after work, his knee became painful and swollen, and appellant denied a significant trauma. 

Dr. Kiehn indicated that appellant underwent left knee arthroscopy, partial medial menisectomy 

and excision of plica, and that appellant continued with pain in the medial aspect of the knee. He 

noted that appellant had a medial off loader brace, which helped him somewhat, and he was

working light duty. Dr. Kiehn also noted that appellant had previously undergone knee surgeries

in 2012 and 2014 and that he needed to obtain the surgical notes to determine what procedures 

were performed. He examined appellant and provided physical examination findings relative to 

appellant’s left knee. Dr. Kiehn reviewed x-rays that revealed severe degenerative changes of the 

medial compartment of the left knee, no fractures, dislocations, or loose bodies. He noted that a

left knee MRI scan in March 2015 had showed significant edema within the medial femoral 

condyle and possible early avascular necrosis (AVN) of the medial femoral condyle. Dr. Kiehn

assessed post left knee arthroscopy, partial medial meniscectomy, and excision of plica. He

indicated that appellant had a significant amount of edema within the medial femoral condyle 

which could be an early AVN of that area. Dr. Kiehn opined that appellant might be a candidate 

for a partial knee replacement of the medial compartment, but that procedure may very well not 

be causally related to any work injury. He indicated that he would provide a supplemental report 

once he received additional records. 

In an August 19, 2016 addendum, Dr. Kiehn explained that he reviewed appellant’s 

surgical reports from 2012 and 2014, that appellant had a partial medial meniscal tear and a 

recurrent meniscal tear, the cartilage was intact. He also noted that appellant’s records indicated 

that during the last surgical procedure in 2015, appellant had chondromalacia findings of the knee,

which would predate his date of injury. Dr. Kiehn opined that appellant “would possibly benefit 

from a partial knee replacement versus a full replacement, but I do feel his need for knee 

replacement is causally related to his previous two surgeries and not work-related injury by at least 

51 percent.”
4

On December 2, 2016 appellant filed a schedule award claim (Form CA-7). 

In a development letter dated December 6, 2016, OWCP advised appellant of the type of 

evidence needed to establish his claim for a schedule award utilizing the sixth edition of the 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides).

4

 It afforded him 30 days to submit the necessary evidence. No response was received.

In a June 6, 2017 decision, OWCP denied authorization for total left knee arthroplasty. It

explained that OWCP’s medical adviser, in his report of May 20, 2016, was of the opinion that the 

total knee replacement was not medically necessary. Additionally, Dr. Kiehn’s impartial medical 

evaluation represented the special weight of the medical evidence and established that, while there 

might be a benefit to a partial knee replacement, such procedure would not be causally related to 

the employment injury.

On June 22, 2017 OWCP referred appellant to Dr. Michael Smith, Board-certified in 

physical medicine and rehabilitation, for a second-opinion examination in order to provide a

permanent impairment rating in accordance with the A.M.A., Guides.

In an August 8, 2017 report, Dr. Smith noted appellant’s March 6, 2015 employment injury. 

He diagnosed degenerative left knee with recurrent partial medial menisectomy, a medial collateral 

ligament (MCL) sprain, and a medial femoral condyle fracture. Utilizing Table 16-3 of the 

A.M.A., Guides,

5 Dr. Smith indicated that appellant fell into the category for primary joint knee 

arthritis, which was a class 1 impairment, and reported a grade modifier for physical examination 

(GMPE) of 1 and a grade modifier for functional history (GMFH) of 1. After applying the net 

adjustment formula ((1-1) + (1-1) =0), he determined that appellant had a net adjustment score of 

0 for a grade C impairment. Dr. Smith calculated seven percent permanent impairment under 

primary joint arthritis with cartilaginous defect fracture and MCL sprain. He noted that appellant 

reached maximum medical improvement (MMI) on August 8, 2017. 

OWCP routed appellant’s schedule award claim to Dr. Michael M. Katz, a Board-certified 

orthopedic surgeon serving as a DMA for review. 

In a September 27, 2017 report, the DMA reviewed appellant’s medical record, including

Dr. Smith’s August 8, 2017 report, and concurred with Dr. Smith’s findings. He indicated that 

based on the arthroscopic debridements, rating appellant’s permanent impairment of the left knee 

under Table 16-3 for primary knee joint arthritis at class 1 impairment for primary arthritis was 

reasonable.6 The DMA noted that a standing knee x-ray dated July 28, 2016, showed fairly good 

preservation of the cartilage interval, making it reasonable to rate under primary knee arthritis, 3

mm cartilage interval or full-thickness articular cartilage defect. He further explained that the 

class 1, default value was seven percent and that after applying the GMFH and GMPE, the 

adjustment was 0, therefore appellant had a class 1, grade C, permanent impairment rating of seven

percent. The DMA also explained that diagnosis-based ratings under Table 16-3 were not marked 

 

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

5

Id. at 511.

6

Id. 
5

by an asterisk and were therefore ineligible for an alternate ROM rating. He indicated that 

appellant reached MMI on August 8, 2017, the date of Dr. Smith’s report.

By decision dated October 23, 2017, OWCP granted appellant a schedule award for seven 

percent permanent impairment of the left lower extremity, finding that the weight of the medical 

evidence rested with the second opinion physician, Dr. Smith, and the DMA, Dr. Katz, who 

correctly applied the A.M.A., Guides to Dr. Smith’s August 8, 2017 examination findings. The 

date of MMI was found to be August 8, 2017. The award covered a period of 20.16 weeks, from

August 8 through December 27, 2017.

LEGAL PRECEDENT -- ISSUE 1

Section 8103 of FECA provides that the United States shall furnish to an employee 

who is injured while in the performance of duty, the services, appliances, and supplies 

prescribed or recommended by a qualified physician, which OWCP considers likely to cure, 

give relief, reduce the degree or the period of disability, or aid in lessening the amount of the 

monthly compensation.7 While OWCP is obligated to pay for treatment of employment-related 

conditions, the employee has the burden of proof to establish that the expenditure is incurred 

for treatment of the effects of an employment-related injury or condition.8

In interpreting this section of FECA, the Board has recognized that OWCP has broad 

discretion in approving services provided under section 8103, with the only limitation on 

OWCP’s authority being that of reasonableness.9 Abuse of discretion is generally shown 

through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken 

which are contrary to both logic and probable deductions from established facts. It is not 

enough to merely show that the evidence could be construed so as to produce a contrary factual 

conclusion.10 To be entitled to reimbursement of medical expenses, a claimant has the burden 

of proof to establish that the expenditures were incurred for treatment of the effects of an 

employment-related injury or condition. Proof of causal relationship in a case such as this 

must include supporting rationalized medical evidence.11 In order for a surgical procedure to 

be authorized, a claimant must submit evidence to show that the surgery is for a condition 

causally related to an employment injury and that it is medically warranted. Both of these 

criteria must be met in order for OWCP to authorize payment.12

 

7 5 U.S.C. § 8103; see M.P., Docket No. 19-1557 (issued February 24, 2020); D.B., Docket No. 18-0219 (issued 

August 17, 2018); L.D., 59 ECAB 648 (2008).

8 See B.I., Docket No. 18-0988 (issued March 13, 2020); R.M., Docket No. 19-1319 (issued December 10, 2019); 

Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

9 See J.E., Docket No. 18-0228 (issued August 8, 2019); Daniel J. Perea, 42 ECAB 214 (1990) (abuse of discretion 

by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of judgement, or 

administrative actions, which are contrary to both logic and probable deductions from established facts).

10 Minnie B. Lewis, 53 ECAB 606 (2002).

11 See K.W., Docket No. 18-1523 (issued May 22, 2019); M.B., 58 ECAB 588 (2007).

12 See K.W., id.; R.C., 58 ECAB 238 (2006).
6

FECA provides that if there is disagreement between an OWCP-designated physician and 

an employee’s physician, OWCP shall appoint a third physician who shall make an examination.13 

For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and 

rationale.14 Where OWCP has referred the case to an impartial medical examiner to resolve a 

conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-rationalized 

and based upon a proper factual background, must be given special weight.15

ANALYSIS -- ISSUE 1

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

OWCP accepted appellant’s March 6, 2015 traumatic injury claim for other spontaneous 

disruption of medial collateral ligament of the left knee and sprain of other specified sites of the 

left knee and leg. Appellant underwent a left knee arthroscopy with partial medial meniscal 

debridement on October 12, 2015.

Appellant’s treating physician, Dr. Langerman, thereafter sought authorization for total left 

knee replacement. However, OWCP’s referral physician, Dr. Saldua, indicated that the procedure 

was not a known treatment for the accepted conditions. Dr. Saldua explained that total knee 

replacement was an acceptable treatment option for end-stage knee osteoarthritis and degenerative 

joint disease, but those conditions were not work related. 

In light of the differing medical opinions, OWCP properly found a conflict of medical 

opinion, and referred the case to Dr. Kiehn, for an impartial medical evaluation to resolve the 

conflict.

16

In an August 10, 2016 report, Dr. Kiehn advised that appellant might be a candidate for a 

partial knee replacement of the medial compartment, but such procedure might not be causally 

related to any employment injury. He related that he would have to evaluate appellant’s prior 

medical records, regarding his prior left knee procedures. In an August 19, 2016 addendum report,

Dr. Kiehn explained that he reviewed appellant’s operative reports from 2012 and 2014. He 

opined that appellant would possibly benefit from a partial knee replacement versus a full 

replacement, but he also opined that appellant’s need for knee replacement was causally related to 

his previous two surgeries and not his work-related injury “by at least 51 percent.” The Board has 

previously explained that it is not necessary to prove a significant contribution of factors of 

employment to a condition for the purpose of establishing causal relationship.17 An employee is 

not required to prove that occupational factors are the sole cause of his claimed condition. If workrelated exposures caused, aggravated, or accelerated appellant’s condition, it is compensable.18

 

 

13 5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14 Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15 Gary R. Sieber, 46 ECAB 215, 225 (1994).

16 See supra note 14.

17 C.H., Docket No. 19-1315 (issued March 16, 2020); J.L., Docket No. 17-0782 (issued August 7, 2017); H.C.,

Docket No. 16-0740 (issued June 22, 2016).

18 Id.
7

The Board notes that insofar as Dr. Kiehn’s report indicates that the requested left knee 

replacement may be partially related to appellant’s accepted work injury and may be medically 

warranted, his opinion is speculative. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. The claimant has the burden of proof to establish entitlement to compensation. However, 

OWCP shares responsibility in the development of the evidence to see that justice is done.

19

 Once 

it undertakes development of the record, it must do a complete job in procuring medical evidence 

that will resolve the relevant issues in the case.20 Because further clarification is required with 

regard to Dr. Kiehn’s opinion, the case must be remanded to OWCP. 

On remand OWCP shall request a supplemental report from Dr. Kiehn to obtain a 

rationalized medical opinion as to whether appellant’s request for authorization of left knee 

replacement is medically necessary due to the accepted employment injury. Following this and 

other such further development as deemed necessary, OWCP shall issue a de novo decision. 

LEGAL PRECEDENT -- ISSUE 2

The schedule award provisions of FECA21 and its implementing federal regulations22 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.23 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.24 As of May 1, 2009, schedule awards are 

determined in accordance with the sixth edition of the A.M.A., Guides (2009).25 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.26

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, reference is made to Table 16-3 (Knee Regional Grid) 

 

19 See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

20 Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

21 5 U.S.C. § 8107.

22 20 C.F.R. § 10.404.

23 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).

24 Id.

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

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

Exhibit 1 (January 2010).

26 Id.; Isidoro Rivera, 12 ECAB 348 (1961).
8

beginning on page 509.27 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).28 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.29

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

should be routed to a DMA for an opinion concerning the nature and percentage of permanent 

impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale 

for the percentage of impairment specified.30 OWCP may follow the advice of its DMA or 

consultant where they have properly utilized the A.M.A., Guides.

31

ANALYSIS -- ISSUE 2

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

percent permanent impairment of the left lower extremity, for which he previously received a 

schedule award.

As appellant did not obtain a permanent impairment rating from Dr. Langerman, his 

treating physician, OWCP referred him to Dr. Smith for a second opinion permanent impairment 

evaluation. In his August 8, 2017 report, Dr. Smith calculated seven percent permanent 

impairment of the left lower extremity for appellant’s accepted conditions, based on the DBI 

methodology and using the A.M.A., Guides. He provided clinical findings and explained how 

those objective elements warranted the percentage assessed.

Dr. Katz, a Board-certified orthopedic surgeon serving as the DMA, concurred with

Dr. Smith’s permanent impairment rating.

The Board finds that OWCP properly determined that the impairment ratings by Dr. Smith, 

the second opinion physician, and Dr. Katz, the DMA, constituted the weight of the medical 

evidence.32 Dr. Smith’s opinion was based on the SOAF and the medical record. He provided an

impairment rating utilizing the appropriate portions of the A.M.A., Guides. Dr. Smith described 

how the objective clinical findings and physical examination warranted the specified percentage 

of impairment. Dr. Katz, the DMA, concurred with Dr. Smith’s seven percent left lower extremity 

permanent impairment rating and the methodology used. The Board therefore finds that OWCP 

properly determined that appellant had seven percent permanent impairment of the lower 

 

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

28 Id. at 515-22.

29 Id. at 23-28.

30 Supra note 27. 

31 See L.R., Docket No. 18-0923 (issued December 9, 2019); see Ronald J. Pavlik, 33 ECAB 1596 (1982).

32 J.H., supra note 23.
9

extremity. There is no probative medical evidence of record demonstrating greater impairment 

than that previously awarded.33

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

CONCLUSION

The Board finds that the case is not in posture for decision regarding appellant’s request 

for authorization of total left knee replacement. The Board also finds that appellant has not met 

his burden of proof to establish more than seven percent permanent impairment of the left lower 

extremity, for which he previously received a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the October 23, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.

IT IS FURTHER ORDERED THAT the June 6, 2017 decision of OWCP is set aside

and the case is remanded to OWCP for further proceedings consistent with this decision of the 

Board.

Issued: May 8, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

 

33 See J.M., Docket No. 18-1334 (issued March 7, 2019).