United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.F., Appellant

and

U.S. POSTAL SERVICE, STERLING POST 

OFFICE, Sterling, IL, Employer

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Docket No. 21-0021

Issued: September 28, 2021

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 7, 2020 appellant, through counsel, filed a timely appeal from an August 4, 

2020 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 greater than five 

percent permanent impairment of her left lower extremity, for which she previously received a 

schedule award.

FACTUAL HISTORY

On September 8, 2017 appellant, then a 50-year-old city carrier assistant, filed a traumatic 

injury claim (Form CA-1) alleging that on September 6, 2017 she sustained left knee anterior 

cruciate ligament damage when she tripped over a string that was across a driveway while in the 

performance of duty. She stopped work on September 7, 2017. OWCP accepted the claim for left 

knee sprain. Appellant accepted a modified job offer and returned to work on December 4, 2017. 

OWCP expanded its acceptance of the claim on February 20, 2018 to include chondromalacia 

patellae of the left knee. On May 9, 2019 it further expanded its acceptance of the claim to include 

posterior cruciate tear and left knee medial meniscus tear.

On October 9, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a development letter dated October 17, 2019, OWCP requested that appellant submit a 

detailed report from her treating physician which provided an impairment evaluation pursuant to 

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

Impairment (A.M.A., Guides).3 It specifically requested an opinion as to whether she had reached 

maximum medical improvement (MMI), a diagnosis upon which the impairment was based, a 

detailed description of objective findings and subjective complaints, and a detailed description of 

any permanent impairment under the applicable criteria and tables in the A.M.A., Guides.

In response, counsel submitted a November 6, 2019 medical report from Dr. Neil Allen, a 

Board-certified internist and neurologist. On physical examination, he observed grade 1+ edema 

over the left joint and lower leg, crepitus with range of motion without assistance, and tenderness 

over the proximal third of the tibia. Dr. Allen performed three measurements of the left knee active 

range of motion (ROM) from minus 11 to 120 degrees. He diagnosed a primary joint arthritis, 

full-thickness articular cartilage defect of the left knee. Referring to the sixth edition of the 

A.M.A., Guides,Dr. Allen noted that using the diagnosis-based impairment (DBI) method resulted 

in a nine percent left lower extremity permanent impairment. Under the ROM method, referencing 

Table 16-23, page 549, he noted 129 degrees flexion resulting in 0 percent left lower extremity

permanent impairment and a minus 9 degrees extension resulting in 10 percent left lower extremity 

permanent impairment. Dr. Allen used Table 16-17, page 545, to find a ROM modifier adjustment 

of .50 percent, which yielded a total permanent impairment of 10.50 percent rounded up to 11

percent. He concluded that the ROM methodology of 11 percent impairment represented 

appellant’s right upper extremity impairment as it produced the higher rating over the 9 percent 

DBI methodology.

 

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

On January 16, 2020 OWCP forwarded Dr. Allen’s report, the medical record, and a 

statement of accepted facts (SOAF) to Dr. Eric M. Orenstein, a Board-certified orthopedic 

surgeon, a district medical adviser (DMA). In a January 25, 2020 report, Dr. Orenstein reviewed

Dr. Allen’s findings and concluded that appellant had five percent permanent impairment of the

left lower extremity. He noted that appellant had a diagnosis of left patellofemoral arthritis, ratable 

under Table 16-3, page 511 of the A.M.A., Guides. Dr. Orenstein explained that a full-thickness 

articular cartilage fell into class of diagnosis (CDX) of 1, and that he had a grade modifier for 

functional history (GMFH) of 2, and a grade modifier for physical examination (GMPE) of 2 for 

moderate palpatory findings, and a grade modifier for clinical studies (GMCS) of 2. Next, he 

found that the net adjustment was 2, which moved the rating to the right and resulted in a final 

permanent impairment rating of five percent. Dr. Orenstein found that the DBI section did not 

reference the ROM section as an alternative method for calculation of a permanent impairment 

rating for the diagnosis of patellofemoral arthritis and, therefore, the ROM method was not 

applicable. He also opined that patellofemoral arthritis was the more appropriate and specific 

diagnosis rather than the diagnosis of knee arthritis used by Dr. Allen. Dr. Orenstein also related 

that the date of MMI was November 6, 2019, the date of Dr. Allen’s examination.

By decision dated March 18, 2020, OWCP granted appellant a schedule award for five 

percent permanent impairment of the left lower extremity. The award ran for 14.40 weeks for the 

period November 6, 2019 to February 14, 2020, and was based on the opinion of the DMA.

On March 24, 2020 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review, which was held on June 26, 2020.

By decision dated August 4, 2020, OWCP’s hearing representative affirmed the March 18, 

2020 decision. 

LEGAL PRECEDENT

The schedule award provisions of FECA,4 and its implementing federal regulations,5 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.6 As of May 1, 2009, the 

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

 

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See also A.K., Docket No. 19-1927 (issued March 31, 2021); T.T., Docket No. 18-1622 (issued May 14, 2019).

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

2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 --Medical, Schedule Awards, Chapter 3.700.2 and 

Exhibit 1 (January 2010).
4

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 509.8 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 (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).9

 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.10

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

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

impairment in accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale for 

the percentage of impairment specified.11

ANALYSIS

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

five percent permanent impairment of her left lower extremity for which she received a schedule 

award.

The record contains a November 6, 2019 report from Dr. Allen, who opined that appellant 

had 11 percent permanent impairment of the left lower extremity based upon the ROM 

methodology. Dr. Allen explained that he utilized the ROM method because it resulted in a higher 

impairment calculation than the DBI method. However, his rating was improper under the 

A.M.A., Guides which explains that while ROM is an alternative approach for calculating 

permanent impairment of the lower extremities, it is to be used primarily as a physical examination 

factor and is only used to determine actual impairment values when it is not possible to otherwise 

define impairment.12

In a February 10, 2020 report, DMA Dr. Orenstein explained that the A.M.A., Guides do 

not allow an impairment rating due to loss of ROM for the applicable diagnosis. In addition, he 

disagreed with Dr. Allen’s choice of diagnosis as primary knee arthritis rather than the more 

appropriate and specific diagnosis of patellofemoral arthritis in his impairment determination. The 

Board notes that Dr. Allen did not explain why he rated appellant’s permanent impairment for 

 

8

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

9

Id. at 515-22.

10 Id. at 523-28.

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

12 A.M.A., Guides 497;see also M.S., Docket No. 20-0036 (issued February 5, 2021); N.M., Docket No. 19-1925 

(issued June 3, 2020); M.P.,Docket No. 18-1298 (issued April12 2019).
5

primary knee arthritis; however, the DMA did explain that he had based his rating on 

patellofemoral arthritis as that was in fact appellant’s diagnosed condition. 

In rating appellant’s left lower extremity permanent impairment, the DMA referred to 

Table 16-3 for the diagnosis of patellofemoral arthritis of the knee, applied the appropriate grade 

modifiers and net adjustment formula, and determined that appellant had five percent left lower 

extremity permanent impairment using the DBI method.

The Board finds that the weight of the medical evidence rests with the opinion of the DMA,

Dr. Orenstein, as he properly utilized the medical evidence of record, Dr. Allen’s examination 

findings, and applied the appropriate provisions and grading schemes of the sixth edition of the 

A.M.A., Guides to the clinical findings in determining that appellant had five percent permanent 

impairment of the left lower extremity based on her accepted left knee conditions.13 Using the 

DBI rating method of the A.M.A., Guides, the DMA identified a CDX of 1 with a default grade C 

for full thickness articular cartilage defect. He explained the assignment of modifiers, reporting a 

GMFH and GMPE of 2. Application of the net adjustment resulted in a score of + 2 warranting 

movement from the default grade C to the right, equating to five percent permanent impairment of 

the left lower extremity for patellofemoral arthritis of the knee. For these reasons, the Board finds 

that OWCP properly relied on the DMA’s assessment of five percent permanent impairment of the 

left lower extremity in granting appellant’s schedule award.14

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 her burden of proof to establish greater than 

five percent permanent impairment of the left lower extremity, for which she previously received 

a schedule award.

 

13 M.S., id.; G.W., Docket No. 19-0430 (issued February 7, 2020).

14 The A.M.A., Guides directs examiners to rate DBI’s for the lower extremities pursuant to Chapter 16.2 which 

indicates at page 497, section 16.2a that impairments are defined by class and grade using regional grids for the hip, 

knee, and foot/ankle. The A.M.A., Guides explains that in most cases only one diagnosis in a region will be 

appropriate. If a patient has two significant diagnoses, the examiner should use the diagnosis with the highest 

impairment rating in that region that is causally related for the impairment calculation. A.M.A.,Guides 497.
6

ORDER

IT IS HEREBY ORDERED THAT the August 4, 2020 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: September 28, 2021

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board