United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.E., Appellant

and

DEPARTMENT OF JUSTICE, BUREAU OF 

PRISONS, FEDERAL CORRECTIONAL 

INSTITUTION, Fort Worth, TX, Employer

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Docket No. 19-0452

Issued: July 22, 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

JANICE B. ASKIN, Judge

JURISDICTION

On December 26, 2018 appellant, through counsel, filed a timely appeal from a 

November 30, 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 permanent 

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

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts and circumstances of the case 

as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are 

as follows.

On June 2, 1986 appellant, then a 24-year-old correctional officer, filed a traumatic injury 

claim (Form CA-1) alleging a left knee injury on that date when he lost his footing and landed on 

his left knee while in the performance of duty.

4

 By decision dated July 11, 2013, OWCP accepted 

appellant’s claim for closed fracture of the right upper end tibia and fibula and right injury to the 

peroneal nerve. 

On September 5, 2013 appellant filed a claim for a schedule award (Form CA-7). 

By decision dated September 9, 2013, OWCP denied the schedule award claim finding that 

the medical evidence of record established that appellant’s right knee conditions had not reached 

maximum medical improvement (MMI) and that he sustained a new right knee work injury due to 

factors of his federal employment. OWCP recommended that he file an occupational disease claim 

(Form CA-2) with supporting medical evidence for the new injury claim.

Appellant filed a second schedule award claim (Form CA-7) on December 17, 2014.

On February 11, 2015 appellant requested reconsideration of OWCP’s September 9, 2013 

decision and submitted additional medical evidence. OWCP, by decision dated April 1, 2016,

affirmed in part and modified in part its prior decision finding that the medical evidence submitted

established that appellant had reached MMI. It found, however, that the weight of the medical 

evidence rested with the opinion of Dr. Mysore Shivaram, a Board-certified orthopedic surgeon 

and an OWCP referral physician, and Dr. Eric M. Orenstein, a Board-certified orthopedic surgeon, 

serving as an OWCP district medical adviser (DMA), who both had opined that he had zero 

percent permanent impairment of the right lower extremity. 

Appellant, through counsel, appealed to the Board on October 17, 2016. By decision dated

December 2, 2016, the Board affirmed the April 1, 2016 OWCP decision finding that the weight 

of the medical evidence rested with the opinions of Dr. Shivaram and Dr. Orenstein and 

 

3 Docket No. 16-1216 (issued December 2, 2016).

4 The present claim was assigned OWCP File No. xxxxxx926. Appellant has a prior claim for a February 19, 1993 

traumatic injury, assigned OWCP File No. xxxxxx722, accepted for lumbar disc displacement. He also has a claim 

for a September 6, 2003 traumatic injury, assigned OWCP File No. xxxxxx408. OWCP accepted the claim for left 

shoulder tear. These claims have not been administratively combined. 
3

established that appellant had no permanent impairment of his right lower extremity due to his 

accepted employment-related conditions.

OWCP subsequently received a medical report dated May 12, 2017 by Dr. Neil Allen, a 

Board-certified internist and neurologist, who conducted an impairment examination. Dr. Allen’s 

examination of appellant’s right knee and lower leg found a stiff gait. He reported girth 

measurements that included 52.5 centimeters (cm) for the right thigh, 48 cm for the left thigh, 41

cm for the right calf, and 4l.5cm for the left calf. Dr. Allen also reported knee circumference that 

was 42.5 cm on the right and 41.5 cm on the left. He found moderate joint line tenderness on 

palpation and tenderness and hypertonicity through the gastrocnemius/soleus musculature. There 

was moderate/severe patellofemoral and primary knee joint (both medial and lateral crepitus) with

active range of motion (ROM). On neurovascular examination, popliteal pulses were intact 

bilaterally. Soft touch and sharp/dull discrimination were intact over the lateral aspect of the knee 

and lower and complete loss over the medial aspect of the knee, lower leg, and foot. Muscle 

strength on the right (affected side) was +5/5 for quadriceps, gastrocnemius, and anterior tibialis

and on the left (unaffected side) was +5/5 for hamstrings, quadriceps, gastrocnemius, and anterior 

tibialis. Dr. Allen reported ROM as 112 degrees (108 degrees, 111 degrees) of flexion with pain,

-8 degrees (-5 degrees, -7 degrees) of extension on the right (affected side), 118 degrees of flexion 

with pain, and -8 degrees of extension on the left (unaffected side). A posterior drawer and medial

collateral ligament and lateral collateral ligament stress tests were negative for joint laxity. A 

Lachman’s test was also negative. Clinical studies included January 12, 2016 right knee x-rays 

which was normal and revealed no evidence of deformity of the right proximal fibula. Overall, 

excellent healing of the previously reported fracture of the head of the fibula was found. A 

March 31, 1993 electromyogram/nerve conduction velocity (EMG/NCV) study of the bilateral 

lower extremities was normal with the exception of mild slowing conduction velocities of the 

posterior tibial nerves that were not felt to be clinically significant. 

Dr. Allen utilized the diagnosis-based impairment (DBI) rating method of the sixth edition 

of the American Medical Association, Guides to the Evaluation of Permanent Impairment

(A.M.A., Guides)

5

to calculate appellant’s right knee permanent impairment. He found that, under 

Table 16-2, page 511, Knee Regional Grid, a fracture of the upper end of the tibia and fibula 

represented a class one impairment with a default value of five percent impairment for proximal 

tibial shaft fracture, nondisplaced with abnormal physical examination findings. Dr. Allen 

referenced Table 16-6, page 516, and found a grade modifier 3 for functional history (GMFH). He 

referenced Table 16-7, page 517, and assigned a grade modifier 2 for physical examination

(GMPE) with moderate palpatory findings consistently documented and supported by observed 

abnormalities, stability, a negative Lachman’s test, moderate enlargement/deformity compared to 

opposite, unaffected side, no motion deficit, and no muscle atrophy. However, Dr. Allen excluded 

clinical studies as a grade modifier (GMCS) from his net adjustment calculation, citing to page 

521 because they had been used in the class placement. 

Regarding permanent impairment of the peripheral nerve, Dr. Allen utilized Table 16-12, 

pages 534 to 536, and found a class 1 impairment due to a superficial peroneal nerve with a very 

severe sensory deficit that represented a default value of three percent impairment. Dr. Allen did 

 

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

not assign a GMFH pursuant to Table 16.6, page 516. He cited Table 17-9, page 581, and assigned 

a GMCS of zero because an EMG/NCV of the bilateral lower extremities was normal with the 

exception of mild slowing conduction velocities of the posterior tibial nerves bilaterally, that were 

not felt to be clinically significant. Dr. Allen applied the net adjustment formula to find seven 

percent permanent impairment of the right knee and four percent permanent impairment of the 

peripheral nerve, for a combined right lower extremity permanent impairment of 11 percent due 

to appellant’s accepted employment-related conditions.

On August 4, 2017 OWCP routed Dr. Allen’s report, a statement of accepted facts (SOAF), 

and the case file to DMA Dr. Orenstein for review and a determination of permanent impairment 

of appellant’s right lower extremity and his date of MMI.

In a report dated September 10, 2017, Dr. Orenstein indicated that he had reviewed the 

SOAF and medical record. He referenced his prior opinion that appellant had no ratable permanent 

impairment of the right lower extremity due to the accepted employment-related conditions. 

Dr. Orenstein reviewed Dr. Allen’s May 12, 2017 report. He noted that although appellant’s right 

knee x-rays were reported as negative, the severity of symptoms reported on the lower limb 

questionnaire and pain disability questionnaire (PDQ) inventory were out of proportion for what 

one would expect from a nondisplaced proximal fibular fracture that healed in anatomical 

alignment six months post injury. Dr. Orenstein further noted that symptoms from the saphenous 

nerve would be unrelated to a peroneal nerve injury and there was no evidence on an EMG/NCV 

study of peroneal nerve damage. He recommended a right knee MRI scan to detect meniscal or 

cartilage damage from arthritis that could be causing his current knee symptoms and would be 

unrelated to the accepted employment-related conditions. Dr. Orenstein concluded that he stood 

by his original opinion that appellant had no ratable employment-related permanent impairment of

the right lower extremity.

On December 1, 2017 OWCP requested that Dr. Orenstein submit an additional report 

regarding the extent of appellant’s permanent impairment based on his review of a November 2, 

2017 MRI scan report. 

In a February 26, 2018 report, Dr. Orenstein again indicated that he had reviewed the 

SOAF and medical record, including his prior March 21, 2016 report, the reports of Dr. Shivaram 

and Dr. Allen, and diagnostic test results. He reiterated his prior finding regarding the discrepancy 

between appellant’s negative right knee x-rays and the severity of symptoms reported on his lower 

limb questionnaire and PDQ inventory. Dr. Orenstein also reiterated his finding that symptoms 

from the saphenous nerve would be unrelated to a peroneal nerve injury as there was no evidence 

of peroneal nerve damage on an EMG/NCV study. He indicated that although an October 13, 

2017 right knee MRI scan revealed partial thickness cartilage loss and mild underlying 

subchondral cystic change of the lateral trochlea, such findings did not result in permanent

impairment of appellant’s right lower extremity. Dr. Orenstein therefore concluded that his prior 

opinion, that appellant had no permanent impairment of the right lower extremity, remained 

unchanged.

By decision dated April 3, 2018, OWCP again denied appellant’s claim for a schedule 

award, finding that Dr. Orenstein’s February 26, 2018 opinion constituted the weight of the 
5

medical evidence and established that he had zero percent permanent impairment of the right lower 

extremity.

On April 12, 2018 appellant, through counsel, requested a telephonic hearing with a 

representative of OWCP’s Branch of Hearings and Review, which was held on 

September 17, 2018. 

In an addendum to his May 12, 2017 report, Dr. Allen indicated that he had reviewed

Dr. Orenstein’s impairment rating. He disagreed with Dr. Orenstein’s impairment rating 

methodology, indicating that it was inconsistent with the sixth edition of the A.M.A., Guides.

Dr. Allen cited page 389 of the A.M.A., Guides, which provides that when a specific diagnosis 

was not listed in the DBI grid, an examiner should identify a similar listed condition to be used as 

a guide to the impairment calculation. He indicated that a proximal fibular fracture was not a listed 

diagnosis and, therefore, the most similar condition (regionally) was chosen, which was a proximal 

tibial shaft fracture, nondisplaced, with abnormal examination findings. Dr. Allen maintained that 

his diagnosis was then adjusted according to the A.M.A., Guides protocol described on page 3 of 

his May 12, 2017 report. Regarding appellant’s peripheral nerve impairment, he indicated that 

this was assessed and graded according to section 16.4a on page 532 of the A.M.A., Guides. 

Dr. Allen indicated that there were four criteria considered when rating sensory deficits, none of 

which involved EMG testing. EMG findings were instead utilized as a “non-key” or adjustment 

factor. Dr. Allen indicated that Dr. Orenstein inappropriately utilized appellant’s EMG findings 

to find zero percent lower extremity permanent impairment rating. He related that the “key factor”

(basis of the impairment) when rating peripheral nerve impairment was objective findings,

specifically sensory and/or motor deficit(s), not clinical study findings. Dr. Allen further related 

that functional history and clinical studies (EMG findings) were used to modify the impairment 

within a class rather than define the class itself. He indicated that sensory deficits were 

demonstrated, as noted within the examination portion of his report. Dr. Allen maintained that 

corresponding impairment, based upon these findings, was calculated accurately and appropriately 

based on the A.M.A., Guides. He reiterated the calculations he first presented in his May 12, 2017 

report.

By decision dated November 30, 2018, an OWCP hearing representative affirmed the 

April 3, 2018 decision, finding that Dr. Orenstein’s opinion was entitled to the weight of the 

medical evidence.

LEGAL PRECEDENT

The schedule award provisions of FECA,6and its implementing federal regulations,7set 

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 

 

6 5 U.S.C. § 8107.

7 20 C.F.R. § 10.404.
6

the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued after 

May 1, 2009, the sixth edition will be used.9

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.

10

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

the employee’s physician, OWCP shall appoint a third physician who shall make an examination.11 

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

rationale.”

12

ANALYSIS

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

OWCP accepted appellant’s claim for closed fracture of the right upper end tibia and fibula 

and right injury to the peroneal nerve as a result of his June 2, 1986 employment injury. In support 

of his claim for a schedule award, appellant submitted a May 12, 2017 impairment evaluation from

Dr. Allen, a Board-certified internist and neurologist. Dr. Allen utilized the DBI method and found

7 percent permanent impairment of the right knee and 4 percent permanent impairment of the 

peripheral nerve, for a combined total of 11 percent permanent impairment of the right lower 

extremity.

In a September 10, 2017 report, Dr. Orenstein, the DMA, reviewed Dr. Allen’s May 12,

2017 report and disagreed with Dr. Allen’s impairment rating. While he found that appellant had 

no permanent impairment of the right lower extremity, Dr. Orenstein recommended additional 

diagnostic testing of the right knee. He recommended a right knee MRI scan to determine whether 

there was meniscal or cartilage damage from arthritis that could be causing appellant’s current 

knee symptoms, which would be unrelated to the accepted work conditions.

In a February 26, 2018 supplemental report, Dr. Orenstein reviewed diagnostic test results, 

including an October 13, 2017 right knee MRI scan, which revealed partial thickness cartilage loss 

and mild underlying subchondral cystic change of the lateral trochlea. He maintained that these 

findings did not result in any permanent impairment of appellant’s right lower extremity. 

 

8

Id. at § 10.404(a).

9 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).

10 Id. at Chapter 2.808.6(e) (March 2017); see also Tommy R. Martin, 56 ECAB 273 (2005). 

11 5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

12 C.H., Docket No. 18-1065 (issued November 29, 2018).
7

Dr. Orenstein concluded that his prior opinion that appellant had no permanent impairment of the 

right lower extremity remained unchanged.

In an addendum to his May 12, 2017 report, Dr. Allen reviewed Dr. Orenstein’s findings. 

He disagreed with Dr. Orenstein’s impairment rating, contending that it was inconsistent with the 

sixth edition of the A.M.A., Guides. In addition, he explained that, in accordance with the A.M.A., 

Guides, he used the diagnosis of proximal tibial shaft fracture, nondisplaced with abnormal 

examination findings because proximal fibular fracture was not a listed as a diagnosis under the 

DBI method. Dr. Allen further explained that his peripheral nerve impairment rating was 

calculated in accordance with the A.M.A., Guides as it was based on objective sensory deficit 

findings. He reiterated the calculations from his May 12, 2017 report and opinion that appellant 

had 11 percent permanent impairment of the right lower extremity. 

The Board finds that there remains an unresolved conflict in the medical evidence between

Dr. Allen, appellant’s treating physician and DMA Dr. Orenstein regarding the extent, if any, of 

appellant’s right lower extremity permanent impairment. Thus, pursuant to 5 U.S.C. § 8123(a), 

the case will be remanded to OWCP for referral of appellant, together with the medical record and 

an updated SOAF, to an appropriate Board-certified specialist for an impartial medical

examination to determine the extent and degree of appellant’s right lower extremity permanent 

impairment in accordance with the sixth edition of the A.M.A., Guides.

13

 After such further 

development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

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

 

13 G.W., Docket No. 17-0957 (issued June 19, 2017).
8

ORDER

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

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

consistent with this decision of the Board.

Issued: July 22, 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