United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

U.S. POSTAL SERVICE, WATERFORD POST 

OFFICE, Waterford, CT, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 22-0239

Issued: July 11, 2022

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On December 2, 2021 appellant, through counsel, filed a timely appeal from a November 4, 

2021 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

On March 14, 2013 appellant, then a 54-year-old rural carrier associate, filed a traumatic 

injury claim (Form CA-1) alleging that on March 13, 2013 he sustained right chest injuries when 

his employing establishment vehicle was involved in a motor vehicle accident and struck a tree

while in the performance of duty. He stopped work on the date of injury. OWCP accepted the 

claim for right C7 lateral process fracture, right T1 transverse process fracture, right 1st and 2nd rib 

fractures, right distal femur osteophyte fracture, and complex facial laceration involv ing right 

upper eyelid/forehead. It paid appellant wage-loss compensation for the period May 18 to 

20, 2013. The employing establishment terminated appellant’s employment, effective 

June 10, 2013. 

On August 22, 2016 appellant filed a claim for compensation (Form CA-7) for a schedule 

award. 

In a report dated October 25, 2016, Dr. Karen M. Garvey, Board-certified in internal 

medicine and occupational medicine, noted that appellant presented with intermittent forehead 

numbness, neck, upper back, and right knee pain. She indicated that appellant’s physical 

examination revealed normal strength of the arms, back, legs, shoulders, and neck. Utilizing the 

diagnosis-based impairment method (DBI) of the sixth edition of the American Medical 

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

3 Dr. Garvey

indicated that pursuant to Table 16-3, page 510, she assigned a class of diagnosis (CDX) of 1 for 

the diagnosis of right femur closed fracture. She applied a grade modifier for functional history 

(GMFH) of 0 using Table 16-6, page 516, a grade modifier for physical examination (GMPE) of 

1 using Table 16-7, page 517, and a grade modifier for clinical studies (GMCS) of 2 using Table 

16-8, page 519, to find a Class 1, Grade C, a five percent permanent impairment of appellant’s 

right lower extremity. Dr. Garvey related that appellant had reached maximum medical 

improvement (MMI) on August 10, 2016.

4

On April 4, 2017 OWCP routed Dr. Garvey’s October 25, 2016 report, a statement of 

accepted facts (SOAF), and the case file to Dr. Arthur S. Harris, a Board-certified orthopedic 

surgeon, serving as OWCP’s district medical adviser (DMA)for review regarding appellant’s right 

lower extremity permanent impairment. 

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

4 Dr. Garvey found appellant had an eight percent permanent impairment for his right eyelid laceration and fullthickness lacrimal passages and entropion, a 12 percent permanent impairment for penetrating wound of orbit without 

foreign body, a zero percent impairment for closed cervical vertebrae fracture without spinal cord injury, a zero percent 

permanent impairment for closed dorsal vertebrae fracture without spinal cord injury, and a zero percent impairment 

for right closed rib fracture. By decision dated May 1, 2018, OWCP granted appellant the sum of $3,000.00 for 

permanent disfigurement of the face, head, or neck. 
3

In a report dated April 17, 2017, Dr. Harris concurred with the five percent permanent 

impairment rating for appellant’s right lower extremity and the date of MMI found by Dr. Garvey. 

On August 21, 2018 OWCP referred the case record to Dr. Morley Slutsky, Board-certified 

in occupational medicine, serving as OWCP’s DMA, for review of appellant’s entitlement to a 

schedule award. 

In an August 29, 2018 report, Dr. Slutsky reviewed the SOAF and medical evidence of 

record, including Dr. Garvey’s October 25, 2016 report and requested that she be asked to provide 

a supplemental report reflecting appellant’s physical examination findings of the right knee and 

hip. He advised that if Dr. Garvey could not provide appellant’s physical examination findings

OWCP should refer appellant for a second opinion examination.

In a letter dated October 10, 2018, counsel advised that Dr. Garvey had retired and would 

be unable to provide additional information. He requested that OWCP proceed with scheduling a 

second opinion examination. 

On June 27, 2019 OWCP referred appellant, together with a statement of accepted facts 

(SOAF) and medical record, to Dr. John Goldberg, a Board-certified orthopedic surgeon, for a 

second opinion evaluation to determine whether appellant had a permanent impairment of the right 

lower extremity. In a July 22, 2019 report, Dr. Goldberg noted appellant’s diagnoses of C7 lateral 

process fracture, T1 transverse process fracture, distal femoral osteophyte fracture, and permanent 

aggravation of right knee degenerative arthritis. He indicated that appellant had reached MMI. 

Dr. Goldberg concluded that appellant had 10 percent whole person permanent impairment, 24 

percent lower extremity permanent impairment, and 4 percent permanent impairment of the 

cervical and thoracic spine.

On August 12, 2019 OWCP routed Dr. Goldberg’s July 22, 2019 report, a SOAF, and the 

case file to Dr. Slutsky for review as to whether appellant sustained a permanent impairment of 

the right lower extremity due to his accepted conditions. 

In a report dated August 24, 2019, Dr. Slutsky reviewed Dr. Goldberg’s report and noted 

that he failed to provide complete physical examination findings and any of the key factors needed 

to rate appellant’s permanent impairment.

On September 27, 2019 OWCP referred appellant, together with a SOAF, list of questions, 

and medical record, to Dr. Stephen Silver, a Board-certified orthopedic surgeon, for a second 

opinion evaluation.

A November 5, 2019 magnetic resonance imaging (MRI) scan of appellant’s right knee 

demonstrated complex medial meniscus body and posterior horn tearing and mild-to-moderate 

patellofemoral/medial compartment osteoarthritis with a small joint effusion. 

In a report dated October 7, 2019, Dr. Silver noted his review of the SOAF, appellant’s 

medical records and performed a physical examination. He diagnosed right knee degenerative 

joint disease, rule out medial meniscal tear. Appellant’s right knee physical examination revealed 

negative anterior drawer, pivot shift, and posterior sign, pain on patella-femoral ballottement, and 

considerable medial joint line tenderness. He advised that he was unable to provide an impairment 
4

rating until he had reviewed the right knee MRI scan. In a December 9,2019 addendum, Dr. Silver 

advised that after reviewing the November 5, 2019 MRI scan that appellant was not amenable to 

a permanent impairment rating at that time as he had not reached MMI. 

By decision dated August 21, 2020, OWCP denied appellant’s claim for a schedule award 

for his right lower extremity, finding that the evidence of record was insufficient to establish 

permanent impairment due to his accepted employment injury as MMI had not been reached. 

On August 31, 2020 appellant, through counsel, requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

December 2, 2020. 

By decision dated January 28, 2021, OWCP’s hearing representative vacated the 

August 21, 2020 decision and remanded the case for referral to a new second opinion physician to 

provide an assessment of appellant’s work-related right lower extremity condition, any resulting 

impairment, and whether he had reached MMI.

On February 2, 2021 OWCP referred appellant, together with a list of questions, SOAF, 

and medical record, to Dr. Robert Moskowitz, a Board-certified orthopedic surgeon, for a second 

opinion evaluation, to provide an assessment of appellant’s right lower extremity permanent 

impairment. 

In a report dated March 9, 2021, Dr. Moskowitz indicated that he had reviewed the SOAF, 

the medical record, appellant’s history of injury, and performed a physical examination. He noted 

that appellant’s physical examination reflected full right knee range of motion (ROM), no visual 

or palpable right knee joint effusion, and no joint line tenderness. A review of imaging tests 

revealed right tibial femoral joint osteoarthritis, primarily on the medial side and patellofemoral 

osteoarthritis, which were preexisting conditions and unrelated to the accepted March 13, 2013 

employment injury. Dr. Moskowitz opined that appellant reached MMI on October 25, 2016. 

Using Table 16-3, page 510, he concluded that appellant had no permanent impairment under the 

sixth edition of the A.M.A., Guides using the diagnosis of patellar fracture due to the lack of any

abnormal examination findings.

On April 9, 2021 OWCP routed Dr. Moskowitz’ March 9, 2021 report, a SOAF, and the 

case file to Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as OWCP’s DMA,

for review as to whether appellant sustained permanent impairment of his right lower extremity as 

a result of his accepted conditions. 

In a report dated April 23, 2021, Dr. Hammel concurred with Dr. Moskowitz’ impairment 

rating. Using the sixth edition of the A.M.A., Guides, he found zero percent permanent impairment 

for the right lower extremity. Dr. Hammel explained that he utilized the DBI method for rating 

appellant’s permanent impairment for the accepted diagnosis of right distal femur osteophyte 

fracture. He found appellant had zero percent permanent impairment using the DBI method as 

appellant had only minor physical examination findings and his right knee ROM was full. Thus,

Dr. Hammel concluded that appellant had zero percent permanent impairment for the accepted 

right distal femur osteophyte fracture. He found March 9, 2021, the date of Dr. Moskowitz’

examination, to be the date of MMI. 
5

By decision dated May 14, 2021, OWCP denied appellant’s claim for a schedule award for 

his right lower extremity, finding that the medical evidence of record was insufficient to establish 

permanent impairment of a scheduled member due to his accepted work injury. 

On May 21, 2021 appellant, through counsel requested a telephonic hearing before a

representative of OWCP’s Branch of Hearings and Review. The hearing was held on 

September 13, 2021. 

By decision dated November 4, 2021, OWCP’s hearing representative affirmed the 

May 14, 2021 decision regarding appellant’s claim for a schedule award.

5

 

LEGAL PRECEDENT

The schedule award provisions of FECA6 and its implementing regulations7 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 of a member 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 and the Board has concurred in such 

adoption.

8

 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used 

to calculate schedule awards.

9

The sixth edition of the A.M.A., Guides provides the DBI method of evaluation utilizing 

the World Health Organization’s International Classification of Functioning, Disability and 

Health: A Contemporary Model of Disablement.

10

 Under the sixth edition, the evaluator identifies 

the impairment for the diagnosed condition CDX, which is then adjusted by grade modifiers of 

GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + 

5 The hearing representative also instructed OWCP to issue a formal decision regarding appellant’s entitlement to 

schedule award compensation for his right eye impairment. The Board notes that as OWCP has not issued a decision 

on appellant’s claim for a schedule award for an eye impairment, this issue is not presently before the Board. See 20 

C.F.R. §§ 501.2(c) and 501.3.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a); see also M.B., Docket No. 20-0552 (issued May14, 2021); T.T., Docket No. 18-1622 (issued 

May 14, 2019); Jacqueline S. Harris, 54 ECAB 139 (2002).

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

2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).

10 A.M.A., Guides, page 3, section 1.3. 
6

(GMCS - CDX).

11

 Evaluators are directed to provide reasons for their impairment rating choices, 

including the choices of diagnosis from regional grids and calculations of modifier scores.

12

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

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

using the A.M.A., Guides.

13

ANALYSIS

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

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

Appellant initially submitted an October 25, 2016 report from his treating physician,

Dr. Garvey, who opined that appellant had five percent permanent impairment of his right lower 

extremity. OWCP also obtained second opinion reports dated July 22, 2019 from Dr. Goldberg,

who opined that appellant had 24 percent permanent impairment of the right lower extremity, and

an October 7, 2019 report from Dr. Silver, who opined that appellant’s permanent impairment 

could not be rated as he had not reached MMI. However, Dr. Goldberg’s report did not provide 

complete physical examination findings and Dr. Silver indicated that appellant had not yet reached 

MMI. These reports, therefore,provided an insufficient basis for evaluating appellant’s permanent 

impairment of the right lower extremity.

14

After initial development of appellant’s schedule award claim, pursuant to the January 28, 

2021 remand of the case by OWCP’s hearing representative, on March 9, 2021 OWCP referred 

appellant for a second opinion evaluation by Dr. Moskowitz. Utilizing the sixth edition of the 

A.M.A., Guides, Dr. Moskowitz determined that appellant had zero percent permanent impairment

of the right lower extremity due to his accepted right distal femur osteophyte fracture. He opined 

that appellant had normal ROM of the right knee and no objective physical examination findings 

of permanent impairment due to the diagnosis of right distal femur osteophyte fracture.

OWCP then properly referred the medical record to the DMA, Dr. Hammel, who provided 

an April 23, 2021 report. Using the DBI rating method of the A.M.A., Guides, Table 16-3 at page 

510, the DMA concurred with Dr. Moskowitz’ opinion that appellant had zero percent permanent 

impairment of the right lower extremity attributable to his accepted diagnosis of right distal femur

osteophyte fracture. 

The Board finds that both Dr. Moskowitz and Dr. Hammel properly applied the A.M.A., 

Guides, Table 16-3 at page 510, and provided rationale to explain their opinions that appellant had 

zero percent permanent impairment of the right lower extremity, as appellant had no significant 

objective abnormal findings at MMI. Accordingly, the weight of the medical opinion evidence is 

11 Id. at 494-531.

12 Supra note 8;see M.B., supra note 8; R.V., Docket No. 10-1827 (issued April1, 2011).

13 Supra note 9 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

14 See M.P.,Docket No. 10-1005 (issued January 13, 2011).
7

accorded to Dr. Moskowitz’ March 9, 2021 second opinion report and the April 23, 2021 report of

Dr. Hammel. As such, the Board finds that appellant has not met his burden of proof to establish 

entitlement to a schedule award for his accepted right distal femur osteophyte fracture.

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 permanent 

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

ORDER

IT IS HEREBY ORDERED THAT the November 4, 2021 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 11, 2022

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board